Amendments Nos. 21 and 22, in the name of Deputy O'Malley, are being discussed with amendment No. 20b.
Consumer Information Bill, 1976: Committee Stage (Resumed).
This amendment is concerned with the creation of a new means of appointment of the Director of Consumer Affairs, a means different from the one which existed in the Bill as originally drafted. The main features of the new procedure are that, firstly, the Director will be appointed by the Civil Service Commissioners after an open competition and secondly, that the appointment will be open to anyone in the State who has the necessary qualifications. It will not be confined to personnel already within the civil service. However, on appointment the director will become a civil servant and have all the immunities attached to that status. The appointment will be for five years but will be renewable. The director may be removed from office at any time by the Minister but the Minister will have to lay down a statement giving the reasons for such removal on the table of the House. These will be open to discussion in the normal way.
However, if the Minister decides to remove a person he will not be able to replace him with somebody of his own choosing. The Minister will be confined, by the provisions of this section, to appointing somebody through the procedure of open competition and he will have no direct control over the person chosen by that procedure. Therefore, there will be no question of his appointing somebody who might in any way reflect his own views or the views expressed to him by some pressure group as to who would be the appropriate personality to hold the post of director. Criticism has been made of the fact that any power exists for the Minister to remove a director. Some people felt that such a move should not be allowed to take effect until there has been a resolution approving it passed by both Houses of the Oireachtas or some other such proceeding. That view was expressed by Deputy Haughey. The safeguards already contained in the Bill in relation to the personality and the means of appointment of a replacement and the requirement of laying the reasons for the removal before the House are sufficient and stringent enough. There is no doubt that the Opposition of the day will probe any unreasonable action by the Minister involved in the proceedings. They will be able to take effective action against any capricious move by a Minister in this area.
The danger of going further would be that if the director for some reason or other ceased to be effective—that could happen through illness of one sort or another or if he had in some way compromised himself—it is desirable that the post be vacated as quickly as possible and the business of the director which is quite considerable be allowed to be carried on by the replacement. If the Minister is not allowed to remove the director at any time but is required to go through a lengthy procedure before any such removal can take effect there is the danger that a person would continue to hold on to a post while he was not effective in it either by reason of illness or having compromised his position in some way. For that reason it is our submission that the best procedure is to allow the Minister to remove him quickly but to submit the Minister to the requirment of having to explain the reasons for such action subsequently very fully. The knowledge that he would have to do that would be a sufficient check on the Minister against acting in a manner which is not in the public interest in removing the director.
I appreciate the effort of the Parliamentary Secretary to cover the questions put to him by Deputy Haughey yesterday and I appreciate that the Minister's position is a difficult one. I welcome the reaction of the Parliamentary Secretary to the contribution by Deputy O'Malley on Second Stage and his amendments to this section. In fact, he goes a long way to try to meet the requirements because, as I see it, this amendment covers amendment No. 21 in the name of Deputy O'Malley. This is a dual purpose amendment because it covers both appointment and removal from office but it does not meet the requirements in Deputy O'Malley's amendment No. 22. It gives the director some greater security from political interference by the Minister at any given time.
Last evening the Parliamentary Secretary made an effort to answer a question posed by Deputy Haughey with regard to the obvious contradiction as between subsection (2)—the office of director shall be a position in the civil service—and subsection (4) (a). As far as I understand it, it is the Government collectively who remove a civil servant from office. That is a reserved function, if you like, of the Government.
The distinction here is between removing a civil servant from the civil service, which would have to be done in the way mentioned by the Deputy, and removing him from this particular office, which is what is in question here. If he were removed from the office of director he would not necessarily be removed from the civil service.
That is a convenient answer. In the original Bill it was envisaged that this office would be filled by an officer from the Department of Industry and Commerce. Now it is the Civil Service Commission who will select the officer. As the Parliamentary Secretary said a moment ago, it could be anybody; it need not necessarily be a civil servant.
But he becomes a civil servant on appointment.
The original intention was to legislate for consumers to be informed. At that stage the Parliamentary Secretary did not visualise the creation of a post of Director of Consumer Affairs. It was subsequently decided to create such an office. There will be more consumer protection Bills to come.
I hope so. After four years of promises this is an extremely weak measure.
We are at a very advanced stage of follow-up legislation.
If I checked the records I would probably find a question in April or May of 1973 addressed to the Minister for Industry and Commerce which would have brought from him the reply that he and his Department were at an advanced stage of consumer protection legislation.
I could deal with that but it is not relevant here.
I am dealing with a comment the Parliamentary Secretary made last evening. There was a Bill dealing with mergers and monopolies. That has disappeared. Originally it was not the intention to create this post but I welcome its creation. Now the powers of the director can be extended. I also welcome the Parliamentary Secretary's reaction to Deputy O'Malley's amendments and to his contribution on the Second Stage. I give him full credit for taking the advice given to him on that occasion and bringing in amendments on the lines suggested. All credit to the Parliamentary Secretary for doing this. Now the Parliamentary Secretary states he would not be removing the director from the civil service if he proved unsuitable. I find this a little too much to swallow.
This is dealing with the removal of the director from the office of director. If he were being removed from the civil service that would be a different matter and that is not dealt with in this Bill.
Let us assume the director selected by the Civil Service Commission is not a civil servant. On taking up the office of director he becomes a civil servant, and in due course he is found wanting. Up to the time of his appointment as Director of Consumer Affairs he has not had any experience in a Government Department. If he becomes an alcoholic and the Minister in his wisdom decides he is not fit to continue in that office, an arrangement is to be made whereby this person will be side-slipped into the civil service. This is where the danger lies. If he is a civil servant, he may be removed from office by the decision of the Government. Here is a specific case of one civil servant who cannot be removed by a decision of the Government. He can only be removed by a decision of the Minister, and that decision and the reasons for it must be laid on the table of the House. Nowhere in the amendments submitted by Deputy O'Malley did he go so far as to suggest how you would get rid of the director.
You would not get rid of him at all.
The first part of subsection (3) of section 9 of the original Bill read:
The Director shall hold office for such term as may be determined by the Minister——
Deputy O'Malley's amendment No. 22 sought the deletion of the remainder of the subsection:
and may be removed from office at any time by the Minister.
I was a member of the Government over a period and in that capacity I was a party to the removal of civil servants from office for one reason or another. No member of the Government ever enjoyed that situation. The Parliamentary Secretary is not a member of the Government, but I remember, particularly as Minister for Posts and Telegraphs having to send recommendations on those lines. It was never a pleasant function, and I can say categorically that I had a predecessor—perhaps I am made of sterner stuff—in the Department of Posts and Telegraphs a number of years before me whose health had broken down because of the distress occasioned to him by the necessity for him to sign files to the Government recommending this action. One can visualise why such action becomes necessary in that Department.
In regard to decisions of this kind which are built into our legislation, it is felt that members of the Government will not act improperly collectively when it comes to the removal of civil servants from office, and I think that history will have shown that. I admire the effort made here and I am not specifically opposing it, but I would ask the Parliamentary Secretary, between now and Report Stage, to have another look at this provision.
There are many reasons why people have to be removed from office, for instance, health. If a Director of Consumer Affairs is appointed for a five-year period and after three years he gets a stroke or a heart attack, the Minister can remove him from office and there is no embarrassment in disclosing the reason why. However, in the other case I have mentioned, that of the alcoholic, he has been selected by the Civil Service Commissioners as being fully qualified to perform this very serious and responsible function. Then he develops this sickness. We in Ireland have different interpretations of that sickness. The Parliamentary Secretary may say that it should not be necessary for the Minister to remove him from office. If the Minister for Industry and Commerce calls him into the office and says he must remove him from that office——
He may just not reappoint him for another term.
I am referring to a situation where he is three years in office and has two years to go. I am trying to put myself in the position of the Parliamentary Secretary and wondering how best to tackle this. I am not suggesting an alternative, but if the Parliamentary Secretary could, between now and Report Stage, look at the possibility of providing an acceptable alternative——
I will have another look at it and if I can see something better——
The ready answer to that is that the particular individual can save himself the embarrassment of the reason being laid on the table of the House by offering his resignation. However, it might not worry the director if the matter was to be publicised, but he might have a wife and family or she might have a husband and——
I can assure the Deputy that I will consider what he has said and if it can be improved any further I will make whatever changes are necessary on Report Stage.
I accept that, but there is one other matter. Further on in this measure it says that the director shall be independent in the performance of his functions. Here we have——
That is not in the amendment.
I know it is not. What is in the amendment is that he will be appointed by the Minister following a recommendation by the Civil Service Commission. Subsection (3) of the amendment states:
A person appointed to be the Director shall hold office for a period of five years but the Minister may, if he thinks fit, continue the appointment (including an appointment previously continued under this subsection) for such further period not exceeding five years as he considers appropriate.
Am I reading correctly that he can be appointed for five years and that appointment can be extended for another period of five years? Does the bracketed portion "(including an appointment previously continued under this subsection)" mean that he can be employed for five years and continue his appointment for a further period not exceeding five years and that he can continue to do that?
Yes, he can for successive periods of five years not limited in number.
It would be far easier to have in that section that the person appointed shall hold office indefinitely.
I appeal to the Parliamentary Secretary to have a good look at subsection (3) again. I do not know what line my colleague Deputy O'Malley will take on this. We are talking about a brand new appointment and the Minister wants a good man.
I would be very grateful if we could make progress on this amendment and get something transacted here.
We lost about ten minutes before the start.
I ask the Deputy if he can let us have this amendment. I have assured him I will look at any improvements that can be made in it and the Deputy or the representative of his party can put a further amendment to the amended Bill setting out any improvements to the means that are now being established by this amendment. On that basis, given that, as the Deputy says, he has not a specific proposal at this juncture, we could proceed and have this amendment dealt with and move on to the section.
I will give way to the Parliamentary Secretary again. He is in a hurry for this Bill and I feel that the consumers are anxious for it.
I want to get it through the House and the Seanad.
I accept that, but in regard to giving him this amendment so that he can get on to the section, I remind him that there are still eight more amendments on this section. We will not get on to the section tonight. I will concede this amendment to him, but I want to express an opinion and ask the Parliamentary Secretary to consider it between now and the next time. The bracketed portion should be omitted. People go stale in office. It happened to us. It happened to the Government before they got started, but the situation is that ten years is long enough for this Director of Consumer Affairs and it would be advisable that he be removed from office. As the Parliamentary Secretary says, he is a civil servant and can be slotted in somewhere else.
I will have a good look at that suggestion. It is worth considering.
I move amendment No. 24:
In page 7, subsection (5) (a), line 22, to delete "description" and to substitute "descriptions".
This is purely an amendment to correct the text as there may be more than one description involved. It is suggested that we should use the term "descriptions" in the plural rather than the singular. The section says:
(5) The functions of the Director shall be
(a) to keep under general review practices or proposed practices in relation to the advertising of, and the provision to members of the public of information in relation to and description of goods, services, accommodation and facilities.
We are going to change that to "and descriptions", the plural.
I move amendment No. 25:
In page 7, subsection (5) (b), line 25, to delete "he" and to insert "the Minister requests him to carry out examinations or where the Director".
This amendment is to allow a Minister to request the director to carry out inquiries into particular matters. The Minister, naturally enough, is going to be responsive to public opinion and is going to be in touch with it through Deputies in the House. It is desirable that he should have this power and the director should have the power to comply with a request from the Minister to carry out an inquiry in relation to a particular matter on which any Deputy or any member of the public might go to the Minister and say "Look, this aspect is worth inquiring into". It goes without saying that the Minister would not have the power to influence the director's findings. He would merely have the power to ask him to inquire into a matter.
This is a serious amendment. Again I have difficulty. The Parliamentary Secretary is suggesting that we amend subsection (5) (b) from:
to carry out examinations of any such practices or proposed practices where he considers that, in the public interest, such examinations are proper,
...where "the Minister requests him to carry out examinations or where the Director...
We are dealing here with the functions of the director. Subsection (4) which comes immediately before the one we are discussing says:
The Director shall be independent in the performance of his functions.
I do not accept that this independence is maintained if it is built into this section that he should carry out his examinations of such practices when he considers in the public interest such examinations are proper.