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Dáil Éireann debate -
Wednesday, 24 Oct 1979

Vol. 316 No. 4

National Council for Educational Awards Bill, 1978: Committee Stage (Resumed).

Debate resumed on amendment No. 106:
In page 8, subsection (3), between lines 21 and 22, to insert a new paragraph as follows:
"(3) (a) The Director shall be responsible to the Council and shall implement its policy and decision.".
—(Deputy Horgan).

When I was cut off by the bell last week I was trying to drag the attention of the House back to the specific wording of my amendment, because I feel it is a distinct improvement on the first subparagraph of section 10 (3). I was drawing attention to the extraordinary role given to the director in the council. For example, the council, apparently, and the Minister mentioned this in his reply to my amendment, shall have no option but to consider any proposal made to it by the director whether or not he is in a minority of one in relation to the proposal he is making. This is an extraordinary position in which to put any council. It could produce a situation theoretically—I do not want to stretch it too far—in which the director could effectively hamstring the operations of the council by insisting on the observance of this subsection at all times. I find it extraordinary that we should have anything in the Bill about the director beyond the fact that the council should have a director because the plain, ordinary understanding of the function of a director is that he does what the council tells him and that he has charge of the day-to-day operation of the council within the general parameters of policy as laid down by the council. That is true as it ought to be of every director and council. So, when we see special functions and special roles being written into this Bill for the director, we have to ask why. I invite the Minister to comment specifically on the terms of my amendment:

The Director shall be responsible to the Council and shall implement its policy and decisions.

It says here "decision" but, with the agreement of the House, I should like to make that "decisions". I believe a simple misprint is responsible. I cannot think of anything clearer than this. If it were accepted it would involve, certainly, the deletion of (3) (a) of section 10 and I believe it makes subparagraphs (b) and (c) equally irrelevant. On the Report Stage I hope to make this point more directly. The whole problem can be solved if the Minister accepts this very simple amendment, which goes to the heart of the matter and makes clear what precisely the role of the director is and ought to be.

The amendment Deputy Horgan has put down would probably be necessary if in fact the wording of the subsection carried the kind of dangers the Deputy reads into it. It is not an extraordinary role for a director to direct. Nobody can claim that it is but this direction is under the council. Subsection (3) (a) states that "The Director shall, in accordance with any direction given to him in that behalf by the Council, control and direct the activities of the Council and the staff of the Council." That makes it clear where the direction in this case will come from. The words used are: "by the Council". The director only controls and directs the activities of the council and the staff in so far as he is directed to do so by the council.

The point made by Deputy Horgan, that even if the director is in a minority of one he can put a proposal to the council, is true but the fact that he is in a minority of one carries the answer to the whole problem posed by that Deputy. The council are in full control and may refuse the proposal. I cannot see the dangers referred to by Deputy Horgan arising because of the wording of the three subsections. I do not see any reason to change the wording because I do not see any dangers to the council. The council will consist of 25 members, including the director, and those people will be chosen for their ability. It is extremely unlikely that they will be so malleable and easily manipulated—"manipulation" was the word used by Deputy Horgan—by one director. It is not unknown for the chairman of such a council to have a will of his own. It is unlikely that a director would be able to manipulate certain chairmen who are known to be men of sound character. Even in the case of the extraordinary, in fact, the impossible case of positing a weak council the wording of the Bill in this subsection protects the activities of the council.

I support Deputy Horgan's amendment. I accept that in laying down the functions, duties and responsibilities of a director there will always be different avenues open to a Minister to express those functions, duties and responsibilities. However, the words used in section 10 may give the impression abroad that a director has overbearing powers in relation to his duties, responsibilities and powers under the Bill. My amendment, No. 107, seeks to water down the subsection as it stands. The amendment under discussion is a sound one. The Bill should explicitly state that the director is an employee of the NCEA. I accept that he is the most important employee but, nevertheless, he is an employee. It should be made clear that the director merely carries out the policy as expressed by the NCEA. There may be a misunderstanding of his powers, duties and responsibility if the subsection is allowed remain in its present form.

I maintain that there is an ambiguity in the section as drafted. My preferred solution would be to substitute my subsection for subsections (a), (b) and (c) but I would be prepared to consider the insertion of my amendment as a new subsection (a) and the rewording of subsections (a), (b) and (c) as (b), (c) and (d) in order to remove this fundamental ambiguity. I have a strong opinion about this and it was with some reluctance that I was prepared to suggest the alternative. There is no amendment tabled to delete subsections (b) and (c)—

The amendment in my name seeks to delete (b) and (c).

My apologies. My amendment seeks to insert this statement with force at the beginning of the section which deals with the powers, responsibilities and duties of the director so that all the subsequent subsections, whatever form they remain in, would effectively have to be construed in relation to this statement of principle.

I appreciate the motives of the Deputies and what they have said on the subsection. I gather that they feel that the powers given in the Bill to the director will in some way be overbearing—the word used—or overwhelm the council. If I thought that was so I would accept the amendment but I do not think it is so. I have referred to the intellectual and moral strength of 24 members and the director and I cannot see how we could possibly get a collection of people with the expertise to act on the NCEA who could be put in the pocket of the director under the wording of the Bill. That wording makes it clear that the role of the council is vis-à-vis the director and of the director vis-à-vis the council. I deny that there is a fundamental ambiguity, as suggested by Deputy Horgan. If I accepted the amendment I would be criticising the intellectual and moral calibre of the council.

Amendment put.
The Committee divided: Tá, 17; Níl, 62.

  • Bermingham, Joseph.
  • Collins, Edward.
  • Corish, Brendan.
  • Cosgrave, Liam.
  • Creed, Donal.
  • Desmond, Barry.
  • Enright, Thomas W.
  • Fitzpatrick, Tom. (Cavan-Monaghan).
  • Horgan, John.
  • Kelly, John.
  • L'Estrange, Gerry.
  • Lipper, Mick.
  • Murphy, Michael P.
  • Quinn, Ruairi.
  • Ryan, John J.
  • Spring, Dan.
  • Tully, James.

Níl

  • Ahern, Bertie.
  • Ahern, Kit.
  • Andrews, Niall.
  • Aylward, Liam.
  • Barrett, Sylvester.
  • Brady, Vincent.
  • Briscoe, Ben.
  • Browne, Seán.
  • Burke, Raphael P.
  • Callanan, John.
  • Cogan, Barry.
  • Colley, George.
  • Collins, Gerard.
  • Cowen, Bernard.
  • Daly, Brendan.
  • de Valera, Síle.
  • de Valera, Vivion.
  • Doherty, Seán.
  • Farrell, Joe.
  • Filgate, Eddie.
  • Fitzgerald, Gene.
  • Fitzpatrick, Tom. (Dublin South-
  • Central).
  • Fitzsimons, James N.
  • Flynn, Pádraig.
  • Fox, Christopher J.
  • Gallagher, Dennis.
  • Geoghegan-Quinn, Máire.
  • Gibbons, Jim.
  • Haughey, Charles J.
  • Hussey, Thomas.
  • Keegan, Seán.
  • Kenneally, William.
  • Killeen, Tim.
  • Killilea, Mark.
  • Lawlor, Liam.
  • Lemass, Eileen.
  • Lenihan, Brian.
  • Leonard, Jimmy.
  • Leonard, Tom.
  • Leyden, Terry.
  • Loughnane, William.
  • Lynch, Jack.
  • McCreevy, Charlie.
  • McEllistrim, Thomas.
  • MacSharry, Ray.
  • Meaney, Tom.
  • Molloy, Robert.
  • Morley, P.J.
  • Murphy, Ciarán P.
  • Nolan, Tom.
  • O'Connor, Timothy C.
  • O'Donoghue, Martin.
  • O'Hanlon, Rory.
  • O'Leary, John.
  • O'Malley, Desmond.
  • Power, Paddy.
  • Reynolds, Albert.
  • Smith, Michael.
  • Walsh, Joe.
  • Walsh, Seán.
  • Wilson, John P.
  • Woods, Michael J.
Tellers: Tá, Deputies L'Estrange and B. Desmond; Níl, Deputies Woods and Briscoe.
Amendment declared lost.

Amendments Nos. 107 and 107a are related. Deputy Collins will move amendment No. 107 and the Minister's amendment No. 107a may be discussed with it.

I move amendment No. 107:

In page 8, subsection (3), to delete lines 25 to 29 and insert:

"(b) The Director may submit to the Council for consideration such recommendations regarding the functions of the Council as he shall consider appropriate."

This deals with the same subject matters as the last amendment. It attempts to clarify the duties, responsibilities and functions of the director. At present paragraphs (b) and (c) in section 10 (3) are unsatisfactory and will give rise to tension between the director and the council because of their wording. The important word to note is "recommendations". The amendment says:

"(b) The Director may submit to the council for consideration such recommendations regarding the functions of the council as he shall consider appropriate."

The words used in the Bill as it stands are:

(b) The Director may from time to time make such proposals...

There is a difference between recommendations and proposals. I would have preferred the word "recommendations". It is more suitable and a better parliamentary word than "proposals". The word "proposals" in the context of paragraphs (b) and (c) seems to carry weight and to say that if the director makes these proposals they must be accepted by the council. The word "recommendations" means that the director knows that he is subordinate to the council as such, that he is making recommendations to the council for consideration by the council and, if necessary, for decision by the council but at the behest of the council. The word "proposals" will be seen from time to time as carrying more weight than the council might want to attach to them.

In paragraph (c) I do not like the word "shall". The Bill as it stands states:

(c) The Council shall consider any proposal...

That is dictating to the council. "Now, council, you must be a good little council and you must consider what the director tells you to consider. You must know your place. The director is really the man who knows what is going on, who is running the show, who is directing you, and you shall do this". The council should not be in a position of "must" do anything. In parliamentary terms the word "shall" is mandatory on the council. That is demeaning the council. If a proposal comes before the council from the director it should be within the council's own powers and decision to decide whether they will consider the proposal. Surely, if they are a body of 25 intelligent men and women, they must have the right to decide for themselves whether they shall consider any proposal. They should be equally entitled not to consider a proposal coming from the director if they so see fit. The word "shall" is indicative of the powers the Minister is trying to give the director over the council. It is wrong that the council should be directed in the Bill to consider any proposal that the director should make to the council.

The phrasing of paragraphs (b) and (c), as is in the Bill, is giving the director superior rights over the council. It will be seen that the director has the upper hand in deliberations and in the evolution and laying down of policy at council level. That is wrong. The council should be superior to the director. That is not the position as the Bill stands at present. The director will be seen to have inordinate power, especially under paragraph (c). That will make it quite clear to the council that the director has the upper hand. We as parliamentarians should not demean the council, and that is being done here by the inclusion of the word "shall" which allows the director to have the powers given to him in paragraphs (b) and (c).

Has Deputy Collins an amendment down to section 10 (3) (c)?

Yes, amendment No. 107 is to delete lines 25 to 29 on page 8. That means that paragraphs (b) and (c) are deleted.

Lines 25 to 29 cover both paragraphs (b) and (c).

My amendment deletes paragraphs (b) and (c) and puts in a new paragraph (b) which incorporates paragraphs (b) and (c) as at present in the Bill but there is a difference in words. My amendment states that "the Director may submit to the Council for consideration such recommendations...""Recommendations" is a different word from "proposals". I am not trying to say that the director should not have the right to submit proposals but I am saying that he may submit them. They are only recommendations and are not proposals. The word "proposals" has an emotive terminology in this paragraph.

The Chair would like to again point out that amendment No. 107 (a) is being taken with amendment No. 107, which is the Minister's amendment. They are both related.

I will leave the Minister to explain his amendment.

I want to support Deputy Collins's amendment, which contains a much more elegant set of phrases than that which appears in the Bill. I believe it is much more consistent with the general spirit of the Bill. The Minister's approach, as exemplified in this section, seems more to be the iron fist and the iron glove. We should have something more sensible, more intelligible and less mandatory.

I want to take up the points made by Deputy Collins and supported by Deputy Horgan on the grounds of elegance. I do not believe that the difference between "recommendations" and "proposals" in the particular context of the work of the council is so great that it in any way affects the relationship between the director and the council. That is what this amendment is about. A proposal put by the director to the council may be rejected and a recommendation put to the council may not be accepted. It is the same thing. He can recommend and the council can refuse to accept his recommendation. He can propose and his proposal can be defeated. I believe that the wording of the subsection is adequate to ensure the powers of the council with regard to recommendations and with regard to proposals.

Deputy Collins takes particular exception to the word "shall" in giving powers to the director vis-à-vis the council and he interprets the word “shall” correctly in this case. He uses the word “shall” in his amendment when the director is the objective and states that “the director shall”. I would have thought in so far as the council are concerned, being a body of people, that they would be able to sustain the force and strength of “shall” far better than an individual would. I do not believe in this particular section, either on grounds of elegance of phrase, as Deputy Horgan put it, or on the grounds of the substantive meaning of the section, that there is anything to be feared.

I want to make it quite clear that I am not particularly concerned about elegance but I am concerned about putting things in proper perspective, which I am trying to achieve in this amendment. I am making it as clear as crystal that the council are superior to the director and that is the reason for the amendment.

I am saying that the word "proposal" is not ukase, command, order, that the director must put a proposal before the council and that the council have full power to accept or reject. I believe that in that the council are safeguarded.

I am sure they are. Can the Minister confirm that the council have the power to direct the director to make proposals to the council? Paragraph (b) states:

The Director may from time to time make such proposals regarding the functions of the Council as he shall consider appropriate.

Would it not be in order to specify, therefore, that the director may from time to time make such proposals to the council regarding the functions of the council as requested by the council?

I believe that section 10 (3) (a) shows that the council may direct the director to bring proposals before them. I believe it is quite clear.

I assumed that was the case. Why was it necessary to specify the director in his own autonomous position to be able to make such proposals?

Paragraph (a) to a certain extent absorbs paragraph (c).

Amendment, by leave, withdrawn.

I move amendment No. 107a:

In page 8, subsection (3) (b), to insert "to the Council" before "such" in line 25.

Amendment agreed to.

I move amendment No. 108:

In page 8, to delete lines 30 to 32 and insert:

"(4) The Director shall retire upon reaching the age of sixty-five years.".

It is not stated anywhere that the director should retire at 65 but I would consider it good policy if we here would support a retiring age of 65, if not earlier, for public servants. It should be mandatory for the director of this board to retire at 65. Accordingly, I am endeavouring to have this condition of employment stipulated in subsection (4) of section 10.

I am very much in sympathy with the spirit behind Deputy Collins' amendment though I fear that in practice it may be a little rigid because there may be situations, though I should hope not, in which persons who reach retiring age are granted extensions from time to time to enable them, for instance, to complete certain projects in which they are closely involved. In general, though, I support the amendment. Ours is a changing society. We have a changing country and a changing Dáil. One of the aspects of that change is that there are many younger people who are anxious and avid for responsibility and we should be very slow to encourage gerontocracies. I speak in the knowledge that we as politicians may be as guilty as anybody else in this regard. Somebody said once that it is difficult enough to get into this place but once in it is almost impossible to get out of.

It has been arranged.

We are talking here about an aspect that relates to the public service. We may have problems in the years ahead in that in situations in which there have been promotions of comparatively young men to positions from which it is not possible for them to be promoted further, there are just behind them a large group of people who are only slightly younger but whose natural and legitimate promotional aspects are frustrated indefinitely. Therefore, a retiring age of 65 seems to be reasonable. The Minister will be aware that in the public service there is a regulation at least in regard to certain grades that once a public servant in a Government Department reaches the age of 60 his Minister may request his resignation. In such circumstances I do not think that an official would have any option but to respond in a positive way to the request, regardless of what might be his personal feelings on the matter.

We should not be above thinking in terms of writing something similar into this legislation because we must make room for younger people in terms of promotions and so on. Of course, we must provide also meaningful opportunities for older people to acquire and to exercise the responsibility to which their age and experience entitles them. We tend to ignore older people, to put them on a shelf as it were. In the past it has been said that the reason for the respect for old age was that it was unusual in primitive or even in comparatively recent modern societies to have a large number of elderly people. This was because of the shorter life expectancy then but the situation is different now as a result of medical science and better health conditions generally. We now have many more older people but we have not even begun to think in terms of how to utilise that resource for the benefit of the community. However, that is a side issue. In the case we are talking of here we should not assume that there are not other people who could do the job just as well and we should bear in mind also that there are other jobs that the person concerned could do elsewhere. That is why I am in sympathy with the spirit of Deputy Collins' amendment.

The amendment seeks to delete subsection (4) and in a sense it appears to be consequential on amendment No. 31 which sought to exclude the director from membership of the council. Subsection (4) proposes to bind the director, as a member of the council, to the conditions of non-eligibility— bankruptcy, imprisonment and so on—that we have discussed.

Regarding the retirement age, I take Deputy Horgan's point about the dangers of gerontocracy and the problems about hold-ups in promotion, about young people anxious to improve themselves, but I do not consider the Bill to be the place in which to specify a retirement age of 65 for the director. There will be a contract of employment and it is in that document that the retiing age ought to be specified. I am aware that we are not discussing here the contract of employment but it is more than likely that the retiring age mentioned by Deputy Collins will be the age specified in that contract. For all the staff of the council, the director included, the terms and conditions of employment are subject to the approval of the Minister and come under the eye of the Minister for the Public Service. It is only reasonable to expect that the terms and conditions of service in the case of the director and of the other employees of the council will be in line with the terms and conditions of service obtaining in the public sector generally.

My main objection to the amendment is that to insert the retiring age in the legislation is to make the whole situation rigid and not to allow for any flexibility. If one wished to change the age provided for, it would be necessary to bring in an amendment to the Act and to go through the laborious process of this House. It would be much easier to make the change if the age were set out in the contract of employment but not in the Act.

I do not think there will be any danger of the person who will be the director of the council being able to last more than that number of years anyway having regard to the rate of work that will be involved and which has been involved up to now even for the ad hoc council.

I take Deputy Horgan's point about respect for the elderly and about increased life expectancy but I do not accept that respect for the old resulted merely from the situation of there being so few of them around. It was more than that, as was exemplified by some African tribes who are their grandfathers in order to continue the spirit of the family.

I accept what the Minister has said. I know he is speaking directly about subsection (2) of section 11 which provides for a contract being entered into by the director and also by the other servants of the council. I merely raised the question of age in order to have clarification of there being a retiring age of 65 for the director as well as for the other servants of the council. I take the Minister's point that it will be included in the contract of employment.

Amendment, by leave, withdrawn.

I move amendment No. 109:

In page 8, after line 32, to insert a new subsection as follows:

"( ) The Director may resign his office by giving six months' notice in writing to the Council.".

There is nothing in the Bill that gives the director an avenue to retire officially from the position of director. It is important that it should be specified in the Bill rather than be left to the contract of employment. The director's position is very important in the context of the council and it is not one that should be vacated at short notice because of the need to ensure continuity. If I may digress slightly, the position in relation to the National College of Art and Design is proof of what I am saying. A director will retire at 65 years of age. That is understandable and we should plan accordingly. If a director wishes to resign prior to his retirement we are obliged in this Bill to ensure—I have said six months as the period to be laid down—that the council, the Minister and the Government will have adequate time to plan his replacement and so ensure continuity of office. That is important and should not be left to a contract. It should be specified in the Bill that the director's position is of such importance that he must give six months' notice in writing to the council of his intention to resign.

As the Deputy noted when he was proposing his amendment, this matter is also dealt with in the contract of employment. There are certain reasons why it would not be desirable to have the period mentioned become part of our statute law. The six months' notice might be something that would keep a highly competent person from applying for the position. We have had reference already to the changing composition of our society and one feature of that is mobility and a desire for high mobility. If the person is tied by statute to a six months' notice it might keep those who have the qualifications and ability to make a contribution from applying for the position. Flexibility would be needed in trying to get someone as director for this important position. For the reason that this would limit flexibility it would not be acceptable to stipulate six months' notice in writing in our legislation.

I disagree with the Minister when he says that it would deter people of high ability from applying for the position. If the position is made attractive enough, both financially and from the point of view of work satisfaction, it will attract a person of high ability. We have an overriding responsibility to ensure that we avoid a position where we do not know what will happen in three months. It will take more than three months to recruit a top class director. I suggest that by protecting ourselves, as we are doing here by ensuring that there is a six months' notice required, there would be a smoother running position in relation to the directorship.

I would call the Deputy's attention to the reverse of the coin, the obverse of which he has shown us. The question of notice is generally reciprocal and if, for example, a director was not satisfactory the Council would have to give him six months' notice.

I contend it would take that period in any event to recruit a top class man.

If it is not in the Bill there is flexibility and one can deal better with the situation. It is a human situation. There is more likelihood of consultation and the parties being able to arrange things if they are not hide bound by a provision in the law.

Amendment, by leave, withdrawn.
Question proposed: "That section 10, as amended, stand part of the Bill".

I do not propose to object to the section in its entirely but I reserve the right to enter amendments on Report Stage in relation to the need to clarify the relationship between the director and the council.

I also reserve the right to re-enter amendment No. 107 or any other amendment on Report Stage in relation to section 10.

Question put and agreed to.
NEW SECTION.

Amendment No. 110 proposes to insert a new section. Amendment No. 124 is consequential and the two may be discussed together.

I move amendment No. 110:

In page 8, before section 11, to insert a new section as follows:

"11—(1) The Council shall appoint a Registrar whose functions shall be to establish and maintain all the records, minutes, decisions and correspondence of the Council.

(2) The appointment of the Registrar shall be on such terms and conditions as the Council shall decide, and he or she shall be an officer of the Council and may be removed only by a special resolution of the Council.

(3) The Registrar may resign his office by giving six months' notice in writing to the Council.

(4) The Registrar shall have the right to be present at all meetings of the council and any such other meetings as the Registrar shall see fit.

(5) The Registrar shall convene meetings of the Council.

(6) The Registrar shall maintain a register of awards made by the Council.".

This amendment is very important. We are establishing an award-making council which will give awards to students. We are setting down standards for courses and establishing on a statutory basis a very important educational council. As it is a statutory council making awards and considering standards, it is important that there should be an officer with prime responsibility for recording the decisions taken by the council, the awards made by the council and the important matters which the council has made a decision on. There is a registrar in the universities and there should be one in the NCEA. An independent office should be created to establish the position of registrar and it must be made clear that he should be an independent person having his own contract, being responsible directly to the council and being present at meetings. The secretarial work of the council should be his responsibility. He should be the convenor of meetings, keep the minutes of meetings and maintain a register of awards made by the council. There is a legal need for such an office. I consider it of such importance that I put down this amendment. I was rather surprised it was not in the Bill originally.

The Deputy is probably aware that the director has being doing registrar's work and is also aware that there are eight authorised posts of assistant registrar in the NCEA. My main reliance is on section 11 (1) of the Bill. It provides that the council may appoint such members of staff as they think fit, subject to the concurrence of the Ministers for Education and the Public Service. That authority embraces all posts, including that of registrar, but excludes that of director. It covers adequately the whole position of staffing without it being specified in this section of the Bill. Its authorised assistant registrars are dealing with the situation as of now; in the future, section 11 (1) of the Bill empowers the council to employ a registrar, if sanctioned.

My point is that I consider the position of registrar as of equal importance to that of director. The present system referred to by the Minister needs to be tied together and to be under the umbrella of a registrar as such. The present director is over-worked in this aspect. There is a legal need to specify the office of registrar in the council. It should not be left under section 11 (1). This is a statutory office which should be enshrined in this Bill, given pre-eminence and not left to the omnibus provisions of section 11 (1). The office of registrar is very important. He has separate and independent responsibilities. His powers of position should be made quite clear in the Bill, and not left to section 11.

I am confident that the House will see that section 11 of the Bill gives power to the council to appoint members of staff. The council are fully aware of their own needs. When, and if, the post of registrar becomes necessary, then the powers for such appointment are already in the Bill. We must adhere to the old principle of not multiplying beings beyond necessity.

I contend that there is necessity for this.

Is amendment No. 110 withdrawn?

It is, with right to re-enter.

Amendments Nos. 111 and 112 not moved.

I move amendment No. 113:

In page 8, to delete lines 42 to 44 and insert:

"(3) (a) The Council may suspend for a period or remove from office any of its officers (including the Director and Registrar) by a special resolution passed at a meeting at which two-thirds of the members present and voting supported.

(b) The Minister may consider an appeal under this section from an officer so suspended or removed from office and may confirm the decision of the Council or refer the matter back to the Council for further consideration.".

I prefer my wording to that used in section 11. It is the council's prime responsibility to remove any of their officers, including the director, by a special resolution, on condition that there be two-thirds of the members present and voting in favour of it. That is a fair provision which makes it quite clear that the council have a procedure to remove their officers. Section 11 is not sufficiently clear in its setting down of the powers of this council. Section 11 (3) reads:

The Council may not remove or suspend any of its officers (including the Director) from office save with the consent of the Minister.

Why should people have to run to the Minister if they want to suspend, say, a relatively minor officer? The Minister has enough work to do without his consent being sought to the council's decision to remove an errant servant. The wording is wrong. Under my amendment the council's position would be stronger. In that amendment, they have the right to suspend or dismiss an officer without referring to anyone. In paragraph (b) there is an avenue for the dismissed or suspended person to appeal to the Minister, but that is a different matter. My amendment removes responsibility from the Minister in the first instance, in relation to a dismissal or suspension. I am giving the council the primary function and responsibility of making their own decision in this regard, and allowing an appeal mechanism to the Minister. This is better than the structure of subsection (3) as it now stands.

I maintain that the section as it is is the more humane. There is the possibility of a cloistral situation within the council and their power to suspend or dismiss may be exercised in that kind of cloistral atmosphere. It is far better that the Minister should have the final say in it.

I am allowing the Minister that.

The decision to dismiss must be referred to the Minister, to protect the employee of the council. It is necessary, for example, that the Minister should be satisfied that there is no danger of a charge on public funds as a result of such a decision. It is with the Minister that the power should rest.

I feel that the Minister, in this section, is hamstringing the council at every hand's turn. That is the position in relation to the director's situation vis-à-vis the council. If the Minister asks 25 good, sound men and women to serve on a council, surely he will expect them to serve responsibly and to use their own God-given brains to manage the affairs of the council. Surely the Minister does not expect them to play ducks and drakes with each other on the question of a dismissal or suspension. Surely the Minister will grant them the intelligence to make a proper decision about the suspension of a minor servant and give them credit for being able to make a decision.

Why is the Minister trying to hamstring the council at every hand's turn, which he is doing? He says there may be a charge on public funds. There may very well be, but surely they will not make a decision on a dismissal or a suspension in the knowledge that they are doing something wrong. Surely they will not be that silly. They will make a decision on a suspension or on a dismissal based on logic, and based on the realities of the situation. Surely they must be allowed that facility without having to run to the Minister about every decision they have to make. The Minister is contradicting himself.

There is no interference with the council. The council's judgment, intellect and integrity may be brought into play, and they may decide on a removal or a suspension. Section 11 (3) reads:

The Council may not remove or suspend any of its officers (including the Director) from office save with the consent of the Minister.

The Minister may consent to what they do. He will have an over view. He may very well consent in 100 per cent of the cases. He may consent in 99 per cent of the cases but, to protect the minor servants, in the phrase the Deputy used, each person as an employee, no matter what role the employee is in, is entitled to the full consideration of the council with all their intellectual power and ability, and also to come to the Minister who, we would hope, would add an extra dimension of humanity to particular cases.

We are establishing a statutory body with their own seal. We are appointing people to do a certain job. If there is a question of an unfair dismissal we have another statutory body to examine that.

We want to keep them out of it.

Why? Why did the Minister appoint them in the first place?

I did not.

Does the Minister mean that they are doing their work? Why does he want to exclude them?

We are excluding them from the activities of the National Council for Educational Awards.

Because it is not necessary. This is a simple power in section 11 (3).

That is a rather peculiar statement. I would have thought that any State body, such as the unfair dismissals body, would have the full support of a Government Minister and the Minister——

The Deputy is playacting now.

The Minister should not seek to use the Bill to remove from the council their duty to consider unfair dismissals. If the council, in their wisdom or otherwise, dismiss a servant unfairly, there is an avenue open under the Unfair Dismissals Act and the Labour Court procedures. There are many avenues open for the protection of servants of the council. I fully agree that they should be protected where necessary.

The wording of the subsection indicates the attitude of the Minister to the council. Why not phrase subsection (3) as follows: "The Council may remove or suspend any of its officers (including the Director) from office with the consent of the Minister"? The Minister phrased the subsection negatively. He did not phrase it positively and say the council may remove or suspend. The Minister's attitude to the council is demeaning.

He also leaves himself open to a political approach if a servant of the council feels he can bring pressure on the Minister, be he a Fianna Fáil, Fine Gael, or Labour Minister, because of his political affiliations whether active or passive. It is rather unfortunate to have that type of pressure brought on any Minister and it should be avoided. It is important that we try to minimise it, especially in this case where there are statutory bodies to consider any redress to which an employee might feel he is entitled. That avenue is there. The Minister does not need to be involved in this. Unfortunately, I have to come to the conclusion that this is another attempt by the Minister to encircle the council with all sorts of ifs, ands and buts.

I should like to comment on Deputy Collins' statement. This debate has indicated Deputy Collins' mind more than the Minister's, and the state of his mind is one in which he wants to give almost Fascist powers to the council and to downgrade the individual working for the council. This was clearly indicated to me when the Deputy objected to the provision that the council shall do something on the proposal of the director. He suggested it was wrong to make the council do something, but it was not wrong to make the director do something.

Also in the course of the discussion he referred to the minor servant of the council and asked why should the minor servant of the council have to go through the council and then on to the Minister in the event of his suspension or dismissal. I would be more afraid of the philosophy behind that kind of argumentation than I would be of the philosophy behind the wording of section 11 (3). It is a kind of Croppies-lie-down attitude to anybody who happens to be working for the council and who holds the office of director or any other office under the council. I submit there is, as I said initially, in section 11 (3) an added dimension of humanity which is desirable in the case of servants of the council, if we use that phrase.

I must reject the Minister's allegation about Fascism. It is not in my nature to support any such thing. I feel the council have superior rights to the rights of an employee of the council. They are the premier organ in this Bill and should be seen as such. The council should have autonomy in relation to what they should consider and what they should not consider. The Minister was upset at my use of the word "shall" in relation to individuals. I suggested in my amendment that the director shall retire at the age of 65 years. That is a reasonable provision to put in a Bill. It is reasonable that senior civil servants should retire at 65 years of age. I certainly hope to retire at 65 years. I am trying to avoid a position in law where, if this is not specified, there may be some arguments between the council, the Minister and the director as to the age at which the director should retire.

I fully appreciate the dignity of mankind and of workers. If there is a question of a member of the senior staff being dismissed, such as the director, an assistant registrar, or the registrar if such an officer is appointed, I agree the Minister should be informed and his consent should be sought. As the subsection stands, each case will have to come to the Minister's desk and, to a certain extent, that may be a waste of his time.

In the normal course of events there would not be very many of them.

No, but if the Minister is to allow the council to enter into their own contracts, as they are entitled to do under the Bill, there will also be recourse to the civil law, to the Labour Court and to the Unfair Dismissals Act. The Minister is assuming powers which are unnecessary and which I do not think he should put into this Bill.

Amendment, by leave, withdrawn.
Amendments Nos. 114 to 124, inclusive, not moved.

I move amendment No. 125:

In page 9, subsection (6), line 16, to delete "or servant of the Council".

This amendment relates to the position of an employee other than the director who wishes to stand for a political party. I consider that he has every right to do so and his rights of employment should be protected in the event of his withdrawing or not being re-elected. He should be given leave without pay. We should recognise his right to return to work for the council should he cease to be a Member of the Dáil. The word "disqualified" in section 11 (6) may mean that he will lose his pension rights and his position on becoming a Member of Dáil Éireann. We should neither discourage nor punish people for standing for election. We should be human in this regard. The correct attitude in this matter would be for the council to give the employee leave without pay for the duration of his service in the Dáil and to keep his position open for him. I feel that the word "disqualified" might mean that an employee would lose his job.

The sentiments expressed by Deputy Collins were expressed by me when I was on that side of the House. I took a great deal of persuasion to admit the subsection into the Bill. In the end I was persuaded that it should be inserted. I know that I once argued that it was a standard provision in Bills and I am doing the same now. Being a standard provision does not give it validity. However, I was convinced of the wisdom of inserting in the Bill that while a person is a Member of the Oireachtas he should not be employed by the council. On balance, it is better to have the section that way. I held very strong views about the matter and I expressed them in this House. For that reason I was reluctant to insert it but I have been convinced that the smooth running of the council would be better assured if the person did not have a dual allegiance —an allegiance to the Seanad or Dáil as well as an allegiance to the NCEA.

I am sorry that the Minister feels that he is being consumed by the system, but it happens to the best. Does an employee of the council who stands for the Dáil and is elected lose his pension rights? Does he have the right to resume his employment with the council if he retires or is not re-elected? These two points are important. We should not punish people who want to stand for election to Dáil Éireann. I should not like to be party to anything which would discourage citizens from standing for election.

Section 11 (5) reads:

Where a person who is an officer (including the Director) or servant of the Council is nominated as a member of Seanad Éireann or for election to either House of the Oireachtas, he shall stand seconded from employment by the Council and shall not be paid by, or be entitled to receive from the Council any remuneration or allowances—

(a) in case he is nominated as a member of Seanad Éireann, in respect of the period commencing on his acceptance of the nomination and ending when he ceases to be a member of that House;

(b) in case he is nominated for election to either such House, in respect of the period commencing on his nomination and ending when he ceases to be a member of that House or fails to be elected or withdraws his candidature, as may be appropriate;

and in addition to the foregoing he shall not be entitled to reckon the whole or any part of such period for any benefits payable under any scheme under section 14 of this Act.

That is the section leading to the subsection which the Deputy mentioned. I think it would be unfair if he were not allowed to resume his position after the period and I think there should be a mechanism whereby he would not suffer the loss of his superannuation. If I have not got such a mechanism, I am prepared to consider it.

His pension rights should be protected and I am glad that the Minister agrees with me. His period of service in the Oireachtas should not be disregarded in connection with his salary increments. While he would be getting an allowance, God bless it, from Dáil Éireann, his service in Dáil Éireann should be reckoned as service in his employment so that he would get whatever increases he would otherwise have been entitled to.

I accept the Deputy's point of view, although as of now it is not clear whether his increments would increase if he were on an incremental scale. It is unlikely that he would make it into the Oireachtas before he was very near the top of the incremental scale anyway.

I merely make the point generally. I think the Minister agrees with me that we should encourage participation in the Oireachtas rather than discourage it.

I am totally in agreement with the Deputy.

I agree to withdraw the amendment on condition that the Minister will have a look particularly at the superannuation position.

Amendment, by leave, withdrawn.
Section, as amended, agreed to.
SECTION 12.

I move amendment No. 126:

In page 9, line 17, to delete "subsections (1) and (2)" and substitute "subsections (2) and (3)".

The reference in the Bill to subsections (1) and (2) was an incorrect reference and this is a drafting amendment.

Amendment agreed to.

Amendments Nos. 127 and 128 are related and may be discussed together.

I move amendment No. 127.

In page 9, subsection (2), line 27, after "Council" to insert "or pending approval by the Council.".

This relates to the question of an examiner being engaged to participate in an examination of knowledge or ability. An examiner should be allowed to be employed where the course is under consideration by the council for approval. It may very well be that there might be an outside course which is seeking NCEA approval and that there may be a need to employ an examiner to examine the position and to assess standards and so on. The section should allow for an examiner to be employed for the purposes of looking at courses for which approval is pending. It is an enabling clause and gives the council more freedom.

I concur with the spirit of what Deputy Collins has said. I would urge the Minister to take a positive attitude to it and to have a look at the whole thing between now and Report Stage, because there may be a time lag between the creation of courses, the inauguration of courses, even the examination of courses, and their validation by the NCEA and it would be sad to see this process delayed by any undue rigidity in the structure. This is why we suggest that any course for which approval is pending should be included here.

There are a couple of fairly serious problems with regard to this. As the House knows, there are committees for assessing the courses, for setting them up; the Council appoints the committees and consults them and has the benefit of their research. The appointment of an examiner before that stage has been reached would be a waste if the course which was to be examined failed of approval. It would also be very misleading for the institution concerned if examiners were appointed and then this gave both the students and the administration of the college the impression that because examiners were appointed the Council's decision was being anticipated. A whole series of events could be set in train and this could be damaging educationally. I cannot see any overwhelming reason for this amendment which was supported by Deputy Horgan. In fact, if an examiner were appointed and the course was not approved and the institution was aware of the existence of an examiner already appointed, it could be very embarrassing for the council. This amendment seems to be putting the cart before the horse.

If the council were requested by an institution or college to examine a course with a view to having it approved by the council, would that not be a situation in which it would be desirable for the council to have an examination of the course?

The committee will do the assessing. It will assess the buildings, the equipment, the staffing and the course content and make a report to the council—it is a committee of the council—and the council will then make their decision and it is consequent on all that activity that an examiner will be appointed. Any other chronological procedure would be wateful and in the circumstances hazardous.

On the contrary, surely the facility of employing an examiner to look at a course for which approval is pending is an efficient approach to the matter.

If I thought that, when a course had been assessed over a period and had been considered by the council and approved, they could not have examiners appointed in time, I would see some point in the amendment but I simply cannot see that as the real situation.

Amendment, by leave, withdrawn.
Amendment No. 128 not moved.

Has the Minister conquered the spelling of analogous?

It is "analogous".

We need not waste the time of the House on this.

I will give the Deputy the full etymological history of the word now if he wants it.

Not at this stage.

The Chair has a reputation for being liberal.

Amendments Nos. 129 and 130 not moved.
Section 12, as amended, agreed to.
SECTION 13.

I move amendment No. 131:

In page 10, subsection (4), line 13, after "rearrangement" to insert "in keeping with his or her experience and qualifications".

This is to ensure that transferred staffs would have protection in relation to their position consequent on being transferred. With regard to the transfer of staff, subsection (4) (a) states that staff who are employed in a particular grade or class of employment shall be bound to perform the duties allocated to them in any distribution or rearrangement. The wording of the subsection is rather dictatorial and seems to be somewhat restrictive. I have attempted to protect the transferred staff by adding the words "in keeping with his or her experience and qualifications". There is a responsibility on the council to understand that people are employed in certain capacities in accordance with their qualifications. The council do not have the right to do what they like with transferred staff. They have an obligation to ensure that staff who are transferred will continue to do work in keeping with their experience and qualifications. This is not stated in the subsection as it stands and it could be punitive on some officers of the council. People could be dealt with unfairly unless they are protected. We have the opportunity of affording such protection to the employees of the council by specifying their right to continue in a certain capacity. The council should not assume the right to change a person's position without reference to experience and qualifications.

The purpose of the section is to look after the interest of existing staff on transfer and it is quite logical and reasonable to assume that on the day the President signs the Bill and makes an Act of it—which day may God speed—the council will continue in the same rooms and offices and at the same tasks.

I would hope they would have bigger offices.

Does the Georgian atmosphere not grab the Deputy?

I think it is beautiful.

But it is slowly being raped.

Not the NCEA headquarters. They are very well kept.

There is a very short lease of only two or three years. If the Minister wishes to preserve it——

We should stay on the amendment.

I thought Deputy Collins wanted to stray into aesthetics for a moment. The new duties will be broadly similar and that is the whole purpose. If we were dealing with a much more rigid council there might be some basis for the Deputy's fears which prompted the amendment, but I rely on the good sense and humanity of the council and their director and staff in making the necessary arrangements.

The Deputy will note that subsection (4) (a) states:

The Council may, following consultation with any recognised staff associations or trade unions concerned, redistribute or rearrange the duties to be performed....

The Deputy may be assured that people who work for the council will be looked after by their staff association and there is no need for this amendment. If we start the process of examining semantically the amendment and the words "in keeping with his or her experience or qualifications", it is obvious that a person could be employed by the council the day before this Bill becomes an Act whose experience was in a different field and whose qualifications could be in something other than the purely educational sphere. There could be endless argument about the suitability of a qualification for a specifically educational council. We can rely on the humanity and good sense of the council and on the safeguards already provided in subsection (4).

I am merely trying to protect the staff and the wording of this part of the subsection is not to my liking. However, if the Minister gives assurances that every effort will be made to protect the present staff, I will be happy to withdraw the amendment.

Amendment, by leave, withdrawn.
Section 13 agreed to.
SECTION 14.

Amendment No. 132 has been ruled out of order.

Question proposed: "That section 14 stand part of the Bill."

What is the legal position regarding acts done and awards made prior to the council being established as a statutory body? What is the mechanism to be used to protect the ad hoc council in their activities?

The Deputy will be aware that my amendment No. 28 to section 3 (5) has provided that awards made and courses approved by the ad hoc council shall be recognised by the statutory body from the commencement of the Act. Section 13 of the Bill makes provision for the transfer of the staff of the ad hoc council, so that the Deputy's amendment is covered in part at least.

What about other legal acts?

Progress reported; Committee to sit again.
Business suspended at 1.30 p.m. and resumed at 2.30 p.m.
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