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JOINT COMMITTEE ON FINANCE AND THE PUBLIC SERVICE debate -
Wednesday, 28 May 2003

Vol. 1 No. 9

Civil Service Code of Standards and Behaviour: Presentation.

This item was referred to the committee for consideration by orders of the Dáil and Seanad on 8 May, to be back to the Dáil and Seanad by 3 July so that further discussion with the unions can progress over the summer. A copy of the draft has been circulated to members. The draft sets out the principles and standards which govern the behaviour of staff in a modernised Civil Service. It was approved by the Government in 2000 and laid before the Houses on 29 November 2000. It was then sent to the previous joint committee in the last Dáil in December 2000 and on 13 March 2001 the Department of Finance made an oral presentation on the draft code to that committee. At the time of the dissolution of the 28th Dáil, the previous committee was awaiting a presentation from the Civil Service union and other bodies before finalising its deliberations. That is where it stood until now.

I would like to introduce Mr. Pat Casey, Mr. Colm Sweeney and Mr. Ken Spratt from the Department of Finance who are here to brief the committee on the code. You are all very welcome. I suggest we invite Mr. Casey to make a presentation to the committee which will be followed by a question and answer session. Because certain members of the committee are in the Dáil this afternoon for questions to the Minister for Finance, I suggest we do not conclude our deliberations on this matter until our next meeting in case those members have observations to make. Is that agreed? Agreed.

I remind the visitors that while the comments of members are protected by parliamentary privilege, those of visitors are not so protected. Members are also reminded of the long-standing parliamentary practice to the effect that members should not comment on, criticise or make a charge against a person outside the House or an official by name in such a way as to make him or her identifiable. I invite Mr. Casey to make his presentation to the committee.

Mr. Pat Casey

I thank the committee for this opportunity to discuss the draft Civil Service Code of Standards and Behaviour. As the committee is aware, the draft code was referred to the committee members' predecessors in December 2000 and a presentation was made to the committee in March 2001. Unfortunately, the previous committee was not in a position to finalise its deliberations before its dissolution. The Minister for Finance believes this draft code will benefit from informed debate within the committee and would welcome observations the committee may wish to offer.

The draft code, which has been in gestation for many years, was approved by the Government on 21 November 2000 and laid before both Houses the following week. Prior to submission to Government, the draft code was considered and approved by the human resources management, HRM, working group and the strategic management initiative, SMI, implementation group of Secretaries General. Around the same time the code was referred to the joint committee, it was also referred for consultation with the Civil Service group of unions. Detailed discussions with the unions on the code took place during 2001. Further discussions will take place after the committee has finalised its deliberations and early implementation of the code in the Civil Service was agreed under Sustaining Progress. The code was also submitted to the Standards in Public Office Commission which made observations. The observations of the commission and the Civil Service unions, as well as changes recommended by the committee, will be resubmitted to the Government for final decision before promulgation in the Civil Service.

I propose to provide for committee members background information on the code and to highlight some recent developments and issues that were raised by their predecessors at the presentation in March 2001.

The introduction of a Civil Service code serves several separate needs. First, there is a need to ensure that civil servants continue to deliver the highest quality of service to the Government, the other institutions of the State and the public. As in other administrations across the world, Irish public servants face new and challenging objectives as a result of reforms in the public sector, such as devolution of responsibility and greater managerial discretion, and the changing relationship between public and private sectors. In this complex environment, it is vital that the integrity and credibility of public servants is maintained and underpinned by the promulgation of codes of conduct, which clearly set out expected standards of behaviour.

Second, the existing rules governing the behaviour of civil servants are set out in a variety of Department of Finance circulars, some of which date back to the early decades of the State and are written in language which may not relate well to the modern reader. While not superseding the existing circulars, the draft code sets out in a single document the main principles which should govern the behaviour of civil servants and the values which the Civil Service wishes to espouse.

Furthermore, the changing environment in which civil servants work has given rise to issues in recent times which have not been the subject of specific instruction and which need to be addressed at this time - for example, offers of gifts, hospitality and post-retirement employment. On the latter point, the sub-committee of the Committee of Public Accounts, in its first report on DIRT, recommended that the Department of Finance report back on proposals to avoid a conflict of interest where officials leave the Civil Service to take up employment in the private sector. This matter is dealt with in sections 20 and 21 of the draft code.

The code applies to all civil servants, with the following qualifications. The provisions of the code relate to civil servants on career break or other forms of special leave, including the restrictions in relation to civil servants and political activity, save where they are clearly not relevant - for example, where they concern behaviour while in the workplace. The provisions of the code apply to the posts of Government Press Secretary, Assistant Government Press Secretary and all ministerial and Attorney General private office staff whose tenure is coterminous with that of the relevant Minister or Attorney General, with the exception of the provisions relating to civil servants and politics.

A copy of the code is to be given to all existing staff and to each new entrant to the service. They will all be required to indicate in writing that they have received and read it. A breach of the code will constitute a breach of terms of employment of a civil servant and may result in disciplinary action.

The code is not intended to be an exhaustive list of guidelines for all possible eventualities. Individual Departments and offices may provide supplementary guidance for their own staff relevant to their particular circumstances.

The code has 21 sections and is divided into three areas, first, standards underpinning service delivery, second, behaviour at work and third, standards of integrity. The main service delivery features include requirements for civil servants to be impartial in the performance of their duties - section 4; respect the law - section 6; refrain from engaging in political activity - this requirement does not apply to those in the craft and State industrial-related grades - section 5; avoid improper disclosure of information gained in the course of their work - section 7; maintain high standards of service in all their dealings with the public - section 8; and report criminal convictions to one's personnel officer - section 9.

The main work behaviour features include requirements for civil servants to attend at work as required and comply with the terms of sick leave regulations - section 10; have due regard for State resources - section 11; and show due respect for their colleagues' beliefs and values - section 12.

The features of the draft code relating to standards of integrity include requirements to refrain from using one's official position to benefit oneself or others with whom one has personal or business ties - section 13; refrain from engaging in outside business or activity which would in any way conflict with the interests of one's Department or office - sections 14, 18 and 19; ensure the receipt of gifts by civil servants from those with whom they have official dealings is governed by the highest standards - section 16; ensure that acceptance of hospitality does not influence, or is not seen to influence, the discharging of official functions - section 17; and seek the approval of the appropriate authority in certain circumstances prior to accepting an appointment within 12 months of resigning or retiring - sections 20 and 21.

The last two sections, 20 and 21, relating to former civil servants accepting appointments or engagements, are new provisions being introduced for civil servants. These provisions are designed to foster a culture in which civil servants are aware of the potential for conflict of interest when accepting positions outside the Civil Service following their retirement or resignation. The code requires civil servants intending to be engaged in an outside business with which they have official dealings to inform the appropriate authority of such an intention. More generally, the code provides that where certain former civil servants consider that a conflict of interest might arise by taking up employment in the private sector they must first seek approval from either an outside appointments board, as defined in the code, or from the Secretary General head of office, depending on the officer's grade.

Approval to take up an appointment may be unqualified or conditions may be attached. The purpose of these provisions is to ensure that there is no cause for suspicion of impropriety surrounding the post-retirement or post-resignation employment of former civil servants.

The composition of the outside appointments board, which will be established when the code is promulgated, with a majority of outside representatives, will clearly provide an independent element in the process of scrutiny. The term "outside representatives" means non-civil servants. The board will also set down guidelines for civil servants in relation to acceptance of outside appointments.

The second part of the presentation covers the main developments since we last made a presentation to the joint committee. The main developments since the March 2001 presentation were discussions with the Civil Service unions and the enactment of the Standards in Public Office Act in July 2001. This Act requires the Minister for Finance to consult the Standards in Public Office Commission when drawing up codes of conduct.

The draft code was circulated to the Civil Service group of unions and two meetings were held with it in 2001. The unions were advised at the outset that the code was approved by Government and that any proposed changes to it will require further Government approval. Several issues were raised by the unions and while some issues were discussed and resolved, agreement was not reached on three issues. These are the provisions relating to civil servants and politics, criminal convictions and conflicts of interest. It was agreed with the unions that their views on these sections would be submitted to Government for consideration.

I will give the joint committee a brief summary of the unions' concerns on each of these sections. The first issue relates to civil servants and politics. Section 5 of the code reiterates the rules governing civil servants and politics. Briefly, these rules are as follows: civil servants are not permitted to stand for election to either House of the Oireachtas or to the European Parliament and civil servants in the craft and State industrial-related grades are free to engage in politics - this means that they can be members of political parties, contribute to public debate, campaign during local, national and European elections and stand for local elections; clerical officers and equivalent grades may apply for permission to engage in politics; and all civil servants above clerical level are totally debarred from engaging in politics.

The staff panel of unions are seeking a relaxation of the existing rules. They felt that staff officers, that is the grade above clerical officer, should be allowed to engage in politics in the same way as clerical officers. The unions' main concern is that civil servants should be allowed to contribute to public debate and express their opinions on matters of public interest where those matters are not related to their work as civil servants. However, changing or even relaxing the existing rules could be problematic. While it might be possible for some civil servants to distinguish what is and what is not related to one's work, for many, if not most, civil servants it could be very difficult to draw a clear line between these issues. Furthermore civil servants are transferred to new areas of work on a frequent basis and it would not be practical to develop a policy on a post by post basis.

Finally, the impartiality of the Civil Service, and the associated public perception, needs to be maintained and protected. Allowing civil servants to contribute to public debate could interfere and possibly damage that perception. It is, therefore, proposed to advise the Minister not to relax the existing rules.

Section 9 of the code requires an officer who has been convicted of a criminal offence to report the facts of the case to his or her personnel officer. The unions are agreeable to this. However, officers are also required to report cases where summary proceedings are brought and the court decides not to proceed to conviction but, instead, gives the officer the benefit of the Probation Act. In such cases, the unions do not want officers to have to report their charge and the outcome of the case to personnel officers.

It is proposed to advise the Minister that the reference to the Probation Act be retained for three reasons. First, a person's position in the Civil Service could be undermined if that person was charged with an offence and given the benefit of the Probation Act. If a personnel officer is aware of the case, he or she may be able to take action to limit the extent to which the officer's position is undermined - for example, a person handling cash in his or her office, given the benefit of the Probation Act for larceny, could be moved to a non-cash position. Second, no employer-employee relationship can survive without a bond of trust. Not being informed of a criminal charge is, in itself, a breach of the bond of trust. Finally, the interests of the public service must be paramount and personnel officers must be aware of the possibility of damage being done to the integrity of the Civil Service.

The final issue relates to conflicts of interest. The unions objected to the inclusion of section 14.4 of the code as they consider the provision as "far too sweeping", with departmental management having the final say. Section 14.4 states: "A civil servant is not permitted to make representations on behalf of an outside association or organisation, either as an individual or as a member of a delegation, in relation to matters for which his or her Department or office has responsibility, except with the prior consent of the Head of his or her Department or office." Civil servants must not misuse their official position to further private interests or organisations.

It is proposed to advise the Minister to consider retaining section 14.4 of the draft code. It is also proposed to advise personnel officers to be reasonable in considering requests for consent but also to take into account the overriding concern of not allowing an officer to be a member of a delegation where a conflict of interest exists or could be perceived as existing.

The second main development since the presentation to the previous committee was the enactment of the Standards in Public Office Act 2001 on 14 July 2001. Section 10(3) of the Act provides that the Minister for Finance shall consult the Standards in Public Office Commission when drawing up codes of conduct for the guidance of persons holding positions of employment in public bodies. Accordingly, the draft code was submitted to the commission for its consideration and observations were made in April 2002. The commission's main observations were that a definition of "civil servant" should be included, the title should be changed to "Code of Conduct" and reference should be included to the fact that the code is admissible in proceedings before a court, tribunal or committee of the commission. These observations will be submitted to the Minister for consideration.

I now turn to the third part of the presentation, which addresses the four main issues raised by members of the previous joint committee at the March 2001 meeting. The first related to outside appointments, as dealt with in sections 20 and 21. Information was sought on outside appointments and the practices in other jurisdictions. In 2000 the European Institute of Public Administration produced a report, Ethics in the Public Sector: Access of Civil Servants to Private Activities. The main objective of the report was to provide an insight into the legal systems governing the movement of public officials to posts in the commercial sector. The report was considered at an EU conference of relevant directors general in November 2000.

The EIPA report found that all 15 EU member states have similar approaches to ethics and conflicts of interest with regard to relations between civil servants and the private sector. However, on the issue of civil servants taking up temporary or permanent employment in the private sector, member states do not have similar approaches. The report found that the general trend in member states is the creation of committees in charge of considering ethical issues in public administration, which produce codes of ethics regulating the relations of civil servants with the private sector. Few member states have introduced specific regulations to date.

In 12 member states - Germany, Belgium, Denmark, Greece, Italy, Luxembourg, the Netherlands, Austria, Portugal, Finland, Sweden and Ireland - there is either no control mechanism in place or the public sector employer considers each case and makes a decision. In other words, there is no independent mechanism to consider applications for permission to move to the private sector.

France, where the movement of senior civil servants to the commercial sector is more developed, has the most explicit policy in this area. Cases are submitted to an ethics committee, which examines the compatibility of the envisaged job with the civil servant's administrative function and issues a reasoned opinion. The French are strict on this issue and the ethics committees can impose bans of up to five years on taking up employment. Similarly, in Spain rules on incompatibility have been laid down which forbid the exercise of private activities in the same field as that of the public post held for a period of two years.

The UK's system, where proposals to take up outside employment are considered by the Advisory Committee on Outside Appointments, provides a valuable model which the outside appointments board may find helpful when developing its system. In summary, 12 member states have yet to develop a control system similar to the proposed outside appointments board. Spain has a method of monitoring decisions by public sector employers. France and the UK have independent committees to consider applications for permission to move to the private sector.

The previous committee specifically sought more information on the periods of time during which civil servants in other jurisdictions are prohibited from engaging in private activities where a conflict of interest may exist. Spain, like the UK, imposes bans of up to two years while the French impose bans of up to five years. I understand that bans of up to one year are imposed on Canadian public office holders. These bans are increased to two years for Cabinet Ministers and Secretaries of State in Canada. It is also important to remember that the courts generally take the view that restraint of trade clauses must be reasonable in their extent and nature and in the protection of the former employer's interests.

The second issue raised by the previous committee in the course of the debate related to the issue of civil servants and politics. As referred to earlier, it is proposed to advise the Minister not to change the existing rules for the reasons set out earlier. Restrictions on civil servants participating in politics have traditionally been imposed to ensure the political impartiality of the civil service and public confidence therein. Impartiality is seen as being a core element of an effective and efficient civil service and is reflected in the code as such. In particular it is felt that involvement in political activity may lead to civil servants being compromised in the performance of their official duties in that the relationship and trust between Ministers and their Civil Service advisers, which is essential to the smooth running of our system of government, could be damaged if the latter were identified with a particular political viewpoint.

The third issue raised by the previous committee related to the Official Secrets Act 1963 and the Freedom of Information Act 1997. Under the Freedom of Information Act members of the public have a legal right to information held by Departments and other public bodies. However, the requirement under the Official Secrets Act that civil servants avoid improper disclosure of information gained in the course of their work still applies.

The committee is aware that the Government approved the drafting of the Criminal Justice (Protection of Confidential Information) Bill in July 2001. Head 1 of the general scheme defines the circumstances in which a disclosure is made with lawful authority for the purposes of the Bill. There is a general provision that disclosure will be made with lawful authority if it is authorised under the Freedom of Information Act. In addition, it provides that a disclosure will be made with lawful authority if it is made in accordance with a civil servant's official duty. It appears that these provisions may address the concerns of the previous committee in this area. The Bill is included in the Government's legislative programme for 2003, but it is not expected to be enacted before 2004.

The committee raised the possibility of a review mechanism following promulgation of the code. The conditions of employment of civil servants are continually reviewed and changes are made to such conditions by the Minister for Finance as appropriate. Similarly, the draft code will be monitored on an ongoing basis and changes will be made if and when they are required.

Under Sustaining Progress it was agreed with the Civil Service unions that early implementation of the code is important. In that context, following consideration of the code by the committee, discussions with the Civil Service unions will be finalised with a view to early implementation. The Minster considers the promulgation of the Civil Service code to be a priority element within the general reform and modernisation of the Civil Service under the strategic management initiative. I thank the committee for taking the time to consider the draft code. The Minister has asked me to say he is grateful for the benefit of the experience of the members of the joint committee and would welcome their views and comments on the code.

Thank you, Mr. Casey, for your presentation. It was helpful in providing the committee with the background to this matter and an update on recent progress. Is the ban on civil servants entering the private sector within a certain time after their employment terminates restrictive? It appears that at least 12 of the European Union countries have not taken this approach. You highlighted the three countries - England, France and Spain - that have, to a greater or lesser extent, taken it. I am concerned that we will create unnecessary demarcation lines between the public and private sectors. It is possible that one of the problems we have in this country is an insufficiency in the free flow of ideas, thought and experience. While it is good to maintain impartiality and independence, there is an overall loss in terms of restrictive practices. It goes against the trend in a modern society to introduce new restrictions in this area. While there are conflicts of interests, they can be addressed.

Are these restrictions compatible with European Union regulations? While we will not conclude our deliberations today, I hope the committee will have greater success than the unions in terms of its observations and recommendations. The recommendations by the unions on the involvement in politics and other aspects were, by and large, rejected.

I understand that in the past, a public service initiative allowed for the secondment of people to and from industry and the professions. Its purpose was to allow for greater understanding of both the public and private sectors, with a greater flow of information. These proposals will hinder such a development and I am concerned they will impose new demarcation lines. It is regrettable that society will, for a period of years, lose by the retirement from the public sector of those who have gained good experience, even in cases where they could benefit society by working in the private sector, on an employment or consultancy basis.

Mr. Casey indicated that 12 countries do not have a specific code of conduct while three countries have one. Is there a large body of evidence to indicate that there have been problems with the question of a conflict of interest? Have circumstances arisen on a regular basis that are a cause for concern to the Civil Service and, if so, is it necessary to consider a code of conduct for members? Has consideration been given to the imposition of penalties against those who break the code of conduct and what standing would they have?

Mr. Casey indicated that on the question of the involvement in politics by senior civil servants, the unions appear to be more anxious to give people a free hand in this area. I would have thought they would be more anxious to avoid a conflict of interest.

A Deputy is threatening to take a legal challenge against the abolition of the dual mandate. If he wins his case will it mean that this restriction cannot be applied to civil servants? In view of this, is it necessary to include it in the code of conduct, given that civil servants may stand for election, or is it the case that other restrictions apply to them?

I welcome Mr. Casey and his colleagues and I thank Mr. Casey for his presentation. In terms of the code of practice, what is the position of political advisers and advisers to Ministers and Minister of State, of whom there is a plethora located in Government Buildings? The figure was over 75 at the last count. There is reference to advisers to Ministers and Ministers of State. Does this include those who have been seconded from the Civil Service to act as adviser or those who remain in the Civil Service? If so, what is the position regarding those who are brought in as advisers? To what extent, if any, are they covered by the code?

You say that advisers are covered by the code except when they engage in political activity or the giving of political advice. Where does political advice stop and political activity commence? For example, I recently obtained a reply from the Department of Education and Science to a freedom of information request regarding an impending public meeting in Wexford to consider the position of a school. Civil servants in the Department's building unit prepared a briefing note on the school which, to the best of my knowledge, was amended by other civil servants. There was a subsequent fall-out in the Department on the question of identifying those who wrote the note and those who amended it. To what extent would that be covered within the code of ethics? Can civil servants change a prepared briefing note on a factual situation? What is the ethical position in the Department?

What is the position regarding a Minister who acts totally outside the realms of what the Civil Service would consider to be acceptable? Freedom of information requests can disclose information on this area. For example, if a Minister introduced proposals which go well beyond his budget for the year, what is the position of the civil servant who must deal with this issue? It is likely that two civil servants could be involved, in different parts of the Department. For example, those close to the Minister may take a different view than the person charged with overall responsibility for budgeting within the Department. To what extent must they co-operate and act together to point out the errors the Minister is making?

The actions of the former Minister for Education and Science, Deputy Woods, in the run-up to the previous general election were anything but reasonable. They were outside the normal standards of behaviour of Ministers. He created an expectation that helped gather Fianna Fáil votes throughout the country. However, what he said and the promises he made were unrealistic. That is confirmed in the minutes of a meeting that occurred on 1 February where the former Minister, Deputy Woods, said he wanted the Civil Service to portray positive news and information from the Department when referring to schools rather than the realistic position. What is the position of the civil servant where this code is concerned, where I, as Minister, instruct the building unit to put a positive spin on information being released, as happened in the Department of Education and Science?

As I must leave, I propose that the Vice-Chairman, Deputy Finneran, take the Chair.

Deputy Finneran took the Chair.

What is the position of the civil servant where the Minister issues an instruction that is clearly unethical and will result in the civil servant acting in an unethical capacity in that he or she is not able to portray the real position? How does that fit into this code? What section of the code would see civil servants saying to the Minister that they could not and would not do certain things? How do the witnesses see people being protected in this regard and how will it work?

On the issue of post-retirement employment - comments have been made on this issue - I too have certain reservations about senior civil servants taking up or not being able to take up employment. I can clearly see where there would be conflicts of interest in certain circumstances. However, that should be compared with a senior tax inspector who leaves the service to take up employment in the private sector. As far as I know, there are no restrictions on this. A tax inspector leaving the Revenue Commissioners who has worked there for years has accumulated considerable expertise, knows the loopholes and can provide a considerable legitimate service to his clients and employers, at a loss to the taxpayer. What is the position in terms of restrictions on post-retirement employment and where do the witnesses see it in terms of the code?

There is the question of civil servants and political activity and their standing for local elections and so on. This area is a mess because many civil servants who are not of a particularly high grade are prohibited from standing for local election whereas reasonably senior people within health boards are elected to and hold quite responsible positions that are politically important in the sector. There does not appear to be any real co-ordination.

A different view can be taken on who can and cannot stand. In my area a civil servant was refused permission to stand for local elections, yet a person in a similar position in another part of the country became a member of a local authority and subsequently a Member of the House. One wonders how clearly defined the rules are and how they apply to local authorities and health boards. A strange rule applies in this regard to local authorities in that council employees cannot be elected if they are above a certain grade. However, they can be head, neck and heels involved in the local cumann and can attend meetings and so on. Where is the cut-off there? Civil servants at a high level can be involved in local cumainn despite not being able to stand for election. I would like the witnesses to comment on that. From where did the drive come to bring about this code of conduct? Was it driven by civil servants who wanted it or did the initiative come from the Government?

Mr. Casey

I thank members for their comments and questions and will try to provide as much clarity as I can. Perhaps the easiest way is to respond to the points as they were raised.

On the first point made by the Chairman on the ban or restrictions on people moving from the Civil Service to the private sector following retirement and resignation, we have a policy of encouraging people to move from the private to the public sector and from the public to the private sector. There are lateral mobility schemes and career break opportunities in certain circumstances, but they are limited.

The purpose behind this provision in the draft code is to deal with the issue of when a person retires or resigns from the Civil Service and to foster a culture of awareness of potential conflict of interest. It is not that there is a blanket ban or prohibition on people moving, but where a conflict or the potential for a conflict of interest arises, this is flagged within the individual's mind followed by a process to deal with it. The process is that the individual civil servant can raise it with his or her head of office or with the outside appointments board, whichever level is appropriate. The draft code sets out the level at which civil servants apply to the outside appointments board, namely, assistant secretaries and upwards.

There is also a provision for a waiting period of one year where a conflict of interest arises. Civil servants who hold positions shall not, within 12 months of resigning or retiring from office, accept an offer of appointment from an employer outside the Civil Service or accept an engagement in a particular consultancy where the civil servant concerned believes that the nature and terms of such appointment or engagement could lead to a conflict of interest without first obtaining approval from the appropriate authorities. That is the purpose of the provision. It is not to prevent movement between the public and private sectors.

The second comment relates to compatibility with EU regulations and what is happening in other member states. My understanding from the report of the European Institute of Public Administration is that this is being dealt with in various ways by member states but that three member states have a process by which external bodies deal with potential conflicts of interest. Others have a process within the Civil Service but the key issue is that it is not independent of the Civil Service. It is not that they are not addressing the conflict of interest issue, they are, but they are doing so in a way that does not involve an independent body making the decision. We adopt a two-pronged approach. An independent body makes the determination for senior positions, that is the outside appointments board, and for grades below that the head of office does so, therefore decision-making is confined within the public service.

Regarding penalties for those who break the code of conduct, the code will be given to all civil servants who read it and sign a form stating they have read it and agree to its provisions. Breaches of the code will be treated as breaches of discipline and the sanctions appropriate to breaches of discipline may be applied if appropriate to the breach. Some elements of the code require civil servants to act in a manner which is lawful and obviously those who breach the procedures in that regard will be subject to disciplinary inquiries and whatever outcome follows will be applied. It will also be subject to whatever legal inquiries are necessary to address the issue. Whatever outcome follows from that will be acted upon. The penalties provided will only apply where there is a breach of the code that needs to be treated as a disciplinary breach.

On the point about the dual mandate——

Mr. Casey is saying this is an issue the unions have taken up and they are not happy with restrictions on senior civil servants getting involved in political elections, but if a Deputy is successful in taking a case to the Supreme Court regarding the dual mandate, would that apply retrospectively to senior civil servants? His argument is that as a Deputy he should not be barred from sitting on a county council. Would the same argument not apply here? Similar arguments could apply to the professions or owners of business and might apply here.

Mr. Casey

The main provision in the code is section 5 regarding civil servants and politics. The code is clear and repeats the provision that civil servants above a certain grade, the clerical grade, are not allowed to participate in politics. The unions are seeking some relaxation of that but it is proposed to recommend to the Minister not to relax those restrictions. The main reasons were set out in the presentation - civil servants need to provide impartial advice to all Governments regardless of political persuasion. If a senior civil servant is of a particular political persuasion and acts within the Administration, the Government's view is that that will impact on the impartiality of the Civil Service. It could create a perception that the Civil Service is not as impartial as it is currently.

I do not see how the dual mandate proposal impacts on the current proposals, as county councillors are also members of political parties. The current line is set at the clerical level.

Is there confusion as to what is the clerical level? The case I quoted involved a person holding a job being told he could not stand for election, while someone with the same job in another part of the country, both of them employed by a Department, was able to stand and subsequently became a Member of the House. How clearly defined are these lines?

Mr. Casey

The line is very clearly defined in relation to civil servants engaging in politics. It is set out in a Department of Finance circular and in the code. For clarity, the phrasing is that the civil servants are not permitted to stand for election to either House of the Oireachtas or to the European Parliament. This restriction applies to all categories of staff, it is total and absolute. Civil servants in the craft and state industrial-related grades are free to engage in politics subject to the general restrictions relating to parliamentary elections. All civil servants who are members of those grades know they are members of such grades - effectively those are grades which are not involved at the administrative level, including the clerical level.

The third element is that members of the clerical grade in the Civil Service and non-industrial civil servants in a grade with a salary maximum equal to or below the clerical officer maximum may apply for permission to engage in politics on the same basis as staff referred to already, the craft and industrial grades. That means if one is a clerical officer in the Civil Service one must apply for permission. If one is not in a clerical officer grade and one is unsure whether the restriction applies, one identifies the maximum salary point appropriate to one's grade and if it is equal to or lower one can apply for permission, but if it is higher one cannot. The relevant paragraph is clear - all civil servants above clerical level are debarred from engaging in politics.

Acting Chairman

Can we get copies of that circular for members of the committee for the next meeting?

Mr. Casey

The paragraph I have read out is in the code under section 5 but we can provide copies of that circular - it is a 1932 circular.

Deputy McGrath referred to two people, one could stand and one could not. I would be surprised if both cases involved people of identical grade in a Civil Service Department. In that case, if they were civil servants above clerical level neither should have been allowed to stand. I presume the individuals involved were members of the craft and State industrial-related grades or——

I do not know. Is the Department of Agriculture and Food covered by that?

Mr. Casey

It is. It may have staff in craft and State industrial-related grades and they would be mainly unestablished civil servants working on arterial drainage schemes and so on. I will try to get more details to provide the Deputy with a clearer picture in that regard.

The Deputy also asked about political advisers to Ministers, where they stand in relation to the code and about individuals brought in to Minister's offices. A person who works as an adviser to a Minister in a Civil Service Department becomes a civil servant whether permanent and established, recruited under the Civil Service Commissioners Act, or temporary and unestablished, recruited under excluding order by the Civil Service Commissioners. The latter applies to individuals who were not civil servants and were appointed as ministerial advisers in private offices and in the Office of the Attorney General. The code also sets out the position in that regard.

For the purposes of clarity, section 3(1) of the code, which relates to its application, applies to all staff, whether full time or employed on an atypical basis, and those on special leave, including career breaks, except where rendered inappropriate by the context. The requirements in relation to official secrecy apply to former staff while requirements in relation to post-retirement resignation do not apply to civil servants who retired prior to the code. The code also applies to posts of Government Press Secretary, Assistant Government Press Secretary, personal assistant and special adviser in the offices of Ministers and Ministers of State, with the exception of the provisions in relation to civil servants in politics. That means all advisers who become unestablished civil servants and civil servants seconded to Minister's offices will be treated in the same manner for the provisions of the code. The only exception is that in relation to civil servants in politics for the group of people mentioned earlier. I hope that clarifies the matter for Deputies.

I am not too clear what it means except in relation to politics. The part relating to maintaining standards and so on is clear. Political influence is referred to in the context of maintaining the highest standards of probity and not seeking to use improper influence, in particular political influence, to effect decisions. Where does it kick in? For example, if I am appointed special adviser to a Minister and an announcement regarding lottery grants is to be made, I am instructed by the Minister to contact, say, Senator Higgins, Deputy Ring and so on and tell them what is happening, am I acting in accordance with the code of practice and how it fits into the Official Secrets Act? Is such a person entitled to divulge such information prior to the Minister's announcement?

Mr. Casey

It may be that the information will be provided in the public domain. In this case I would expect that information regarding lottery grants would come into the public domain. If the Minister makes clear his intention to advise colleagues or other Members of the House in advance of the embargo date of the information and if the civil servant receives an instruction in that regard, he or she is merely providing the information early and acting on behalf of the Minister. That falls within the code.

Let us take it a step further. If, in relation to school buildings, the Minister announces that letters are to be sent to schools in relation to good news applying to them and the civil servant prepares a letter, the normal reading of which would indicate the project is to proceed, althought the civil servant knows it cannot proceed, how stands an instruction in that regard?

Mr. Casey

We are moving into an area where facts are less clear. My comment would be that the Minister has some money available in the Estimates for school buildings and has, at his discretion, the ability to make decisions in relation to its allocation. However, practice within the Department - I have no information other than what I read in the papers - says there are guidelines on the allocation of funding for school buildings and they are available to individuals within the Department and to the Minister. I presume, with all guidelines, the Minister may have discretion to shift an allocation for one reason or other. If he gives an instruction to a civil servant that a particular building is to receive priority funding, the civil servant, again acting on behalf of the Minister, should be able to carry out the instruction. If funding is not available the House, as I understand it, approves an allocation of funding for the particular Department and the Department cannot spend in excess of that unless it receives approval to do so in the form of a Supplementary Estimate.

If the issue gives rise to the provision of a Supplementary Estimate the onus is on the civil servant to raise the matter with his or her superiors. The civil servant in that case should bring the information to the notice of his superiors who can then consult the Minister to have the decision amended to take account of reality. The Minister can only seek to have additional funds made available from the Department of Finance in the form of a Supplementary Estimate.

The code is essentially sound and commendable and I commend those who put such an enormous amount of work into it. Paragraph 7.2 relates to criminal convictions and provides that officers are required to report cases even where the Probation Act applies. I presume that obligation is on the officer?

Mr. Casey

That is the intention.

There is an obligation on the officer and there is a sanction in the event of the officer failing to report?

Mr. Casey

It is intended that the officer will report himself or herself and the question of a sanction may or may not arise depending on the nature of the issue and what the personnel officer decides.

Deputy McGrath has already referred to the issue of engagement in politics and it is important. Obviously, this only applies to the mainstream Civil Service as such; it does not apply to health boards or local authorities. There is an urgent need to address the issue at local authority and health board level of engagement in politics at any level, either at political club or cumann level. For example, community welfare officers have absolute discretion and interact on a one to one basis with people in relation to the awarding of medical cards, supplementary welfare and the special housing aid scheme for the elderly. They make recommendations and, in most cases, they are implemented. I would like immediate measures taken to address this aspect.

In terms of the outside employment of former civil servants, either following retirement from the public service or where their period of service within the public service has expired, or if they take early retirement, we recall that a former Secretary General of the Department of the Taoiseach found himself on the board of Esat. There are two sides to the coin. It is a pity that expertise should be lost and that an individual who has garnered such expertise over a period of 35 or 40 years might not be able to put it to use. What is the position regarding sanctions and disciplinary procedures? Once a person has left the public service after 35 or 40 years, what sanctions can be applied? It is fine to talk about disciplinary committees but if a former Secretary General of a Department decides to take a position on the board of a company within the 12 month period, what can be done or will this be enshrined in the legislation?

The other issue I wish to address is the semi-State sector. Is a code of conduct envisaged for, for example, the IDA, Forfás and Bord Fáilte? We concur with the representatives' opinion that we would like the code of conduct to come into operation as quickly as possible. Is it envisaged, by virtue of the fact that the legislation is not expected before the Houses of the Oireachtas before 2004, that the code of conduct would come into effect on an interim basis and then become law when the Bill hopefully is enacted in 2004?

Mr. Casey

In relation to the Senator's first point, this code applies to the Civil Service only. However, there is provision in the Standards in Public Office Act for this code to form the basis of codes in other sectors. The Standards in Public Office Commission will be the appropriate body for issuing or approving codes in those other sectors. It is envisaged that the Civil Service code will become a template for the other sectors, but I do not wish to pre-empt the work of the commission.

The second point was in relation to outside appointments and an individual who retires from the Civil Service and is no longer employed. The question is what enforcement powers exist at the level of the board in relation to employment within the one year threshold. The outside appointments board will develop its own procedures in this regard, but it is open to it to pursue that individual by way of injunction through the courts. The code will not apply to civil servants who have retired before the code is promulgated but will apply to all civil servants after that and it will become part of their terms and conditions of employment.

To answer the Senator's last question, section 17 of the Civil Service Regulation Act 1956 allows the Minister for Finance to set the terms and conditions of civil servants and this would form part of the terms and conditions of civil servants. We are advised by the Attorney General who confirmed that as a correct view and interpretation. There will be an ability to pursue civil servants who are within the Civil Service. Those who leave after the code is promulgated will have to comply because they also can be pursued through the courts.

The Senator's third question related to semi-State bodies. As I understand it, there is a code in relation to State-sponsored bodies and I can make that code available to the committee.

I welcome the civil servants. I am concerned that the code as drafted in relation to employment and outside appointments and consultancy engagement following resignation or retirement is particularly weak in relation to very senior civil servants. I would like the committee to tease out this matter in more detail. The practice is now routine of Secretaries General of Departments getting a five to seven year appointment. It has become the norm for the Government not to renew those appointments and I do not think that most Secretaries General apply for renewal.

Younger people in their late 40s to mid-50s are usually appointed to these posts. It means that somebody is retiring as a Secretary General of a Government Department at a relatively young age in the sense that they may well have a capacity for commercial or consultancy work for a further five to ten years after they have retired from the Civil Service. I do not have any problem with that situation. Unless there is a clear demarcation and a clear sanitation period after somebody of the rank of Secretary General or Assistant Secretary has retired, I suggest they should be effectively disbarred for a period of not less than two years from engaging in employment or consultancy in the area in which they were previously involved as a civil servant. There is a risk of a person being lined up or head-hunted by commercial interests to become involved very quickly after they have been involved in making critical decisions. I do not have a problem if they go into an entirely different area of employment or consultancy work which does not relate to their previous role as a Secretary General or an Assistant Secretary General.

The norm in other countries is that the rules are much tougher. To be consistent, I believe exactly the same rules ought to apply to politicians and in particular to people who have served as Ministers. This rule should not just apply to the Civil Service alone. I am concerned that the rules as drafted are not strict enough. My understanding is that most European Union countries and the United States are moving or have moved to a longer time period than the one-year period indicated.

To some extent, that might be addressed by a closer definition of those areas in which the senior civil servant was involved. This is particularly important in the context of this country and the question of privatisations which may apply to public companies which were under the remit of the Secretary General's Department or where the Secretary General may have been involved. I do not think it appropriate in those cases that a former senior civil servant should pop up on the boards of companies who are buying State assets or act as advisers to those companies as soon as they cross over - poacher turning gamekeeper, as it were.

This poses a particular difficulty for the Revenue Commissioners when senior tax people cross over to work for accounting firms which are queuing up to get them. As everybody knows, their experience of working in the Revenue Commissioners is a wonderful asset. If we come back for a further discussion I would like to hear Mr. Casey's comments on it and hear more about what happens in other countries. I do not wish to disbar highly qualified people who have given great service to the State from being active, but their activity in an area which was within their remit should perhaps be limited. What comparative studies have been done and has Mr. Casey considered drawing this closer?

Campus and Stadium Ireland, which relates to my constituency, involves a number of people who up to very recently were senior public servants. I do not cast any aspersions on them - they are all great people. I still see many people who up to very recently were senior public servants and who may be on secondment or have left the Civil Service - it is not my business to ask them. They are very heavily engaged in the remit of that company. What clarification is there about such an operation? Ultimately, it would be of benefit to civil servants to clarify that point.

Regarding the appointment of ministerial advisers, programme managers or whatever one wants to call them, has the Department of Finance considered the qualifications of those people or whether their qualifications or suitability for appointment should be assessed or validated? While this is a tricky area for politicians, my party has made its views clear. We believe that the provision of outside advice can be critically important. At the same time there should be a process whereby the qualifications of the adviser, whether coming from the public service or outside, should be the subject of some level of scrutiny. While those people are subject to codes of conduct, they hold very important positions.

Deputy McGrath mentioned civil servants and political activity. There is a long tradition in Scandinavian countries going back to the revolution of 1848 that political rights for civil servants are viewed as an absolute part of democratic and civil rights. Has there been any discussion at European Union level about the different traditions in different EU countries concerning civil servants having the capacity to exercise political rights, as it were, as part of their civil rights? In countries like Sweden and Denmark that has been a tradition since the revolutions in the 19th century.

Acting Chairman

Before I call Deputy Lenihan, I wish to advise him that we agreed earlier in the meeting that as we will not reach conclusion today, there will be a further opportunity to tease out some of these matters.

I wish to apologise for my late arrival, which was due to having to be in the Chamber for questions to the Minister for Finance, as was Deputy Bruton.

Acting Chairman

We understand that difficulty.

I apologise for being late; I was detained by other business for longer than I expected. I welcome the civil servants who drew up the code. Following on from a question from Deputy Burton on the one year ban and the call to increase it, is there a legal or constitutional issue in that because of the seven year contracts, a person cannot be prevented from working? I imagine it would be difficult to legally sustain a ban beyond one year on, for example, a Secretary General leaving a Department and going to work elsewhere. I presume there would be a legal or constitutional impediment relating to the right to work that would make it very difficult to enforce a ban of up to five years.

As a senior executive with Esat Digifone, I came up against this issue. I was elected and the companies I worked for were very keen on enforcing what they called non-compete clauses in employment contracts. I was advised by a lawyer to sign one of these immediately because they have no legal standing in Irish law. While I cannot speak for the public sector, certainly in the private sector a non-compete clause has no validity in Irish law. It is not possible to prevent a person from going to work for the competition because it is not enforceable in Irish law.

Such clauses in employment contracts are very popular in America where they can be sustained. In Irish law these cannot be sustained unless there is a high degree of training in the position held. It is very hard to sustain non-compete clauses except in cases such as, for example, a person joining the NASA space programme with a doctorate and whose skills are derived from extensive subsequent training in that organisation. The effect is presumably similar to the public sector one year ban on people working elsewhere after leaving their current position.

How will these standards be enforced and what sanctions will exist? We all know that bank officials became very assiduous when the anti-money laundering legislation was introduced. Up to then the culture was one of referring matters upwards and it did not matter what a bank official signed or agreed. There was little concern about the addresses on bogus non-resident offshore accounts. The anti-money laundering legislation placed an individual responsibility on the bank clerk to ensure that there was full compliance with that legislation.

Mr. Casey

I will respond first to DeputyBurton's comments. Sections 20 and 21, as members know, set out the position in relation to outside appointments following resignation or retirement. The time period that is reflected here as being appropriate is 12 months. Consideration was given to longer time periods but the difficulty that arose was, as indicated by Deputy Lenihan, a legal issue. The courts, I understand, will enforce what is seen as a reasonable restriction by the employer on an employee's terms and conditions, but the issue is the definition of what is reasonable. A longer period was considered but there was a feeling that it could be difficult to enforce. However, the matter will be for the outside appointments board, which is referred to in the code as having the decision-making power in relation to this and in making a recommendation and providing guidelines.

Specifically on the question of privatisations where very large sums of money are involved, did the group give any consideration to the fact that somebody crossing over having had that area directly within their remit would be in a very powerful position based on their knowledge? It would be questionable if a retired Secretary General or Assistant Secretary, who as recently as two years previously had been in charge of a particular area, was to cross over and go, for example, to one party to the privatisation bid as opposed to another. It certainly puts invidious pressure on former Secretaries General and also opens the way for commercial companies interested in privatisations to make large inducements. Did the committee consider such scenarios?

Mr. Casey

We looked at any area where a conflict of interest could arise, which is the guideline provided in the draft code. This would cover conflicts of interest no matter what area they arise in and would encompass privatisation and other issues. Where a conflict of interest arises, there is provision in section 20 of the code for an officer first to become aware of this and then to raise it with his or her head of office or Secretary General in the case of a grade below Assistant Secretary and raise it with the outside appointments board for Assistant Secretaries and upwards. There is a provision to deal with that issue, which would include privatisation.

The guidelines given to the outside appointments board would relate to a one year period and I would expect an appointments board to follow them. I am suggesting that the one-year period is too short in certain instances, particularly in regard to the large-scale disposal of State assets through a privatisation process. I ask the Department to reconsider this, particularly in the context of seven-year appointments and people having, potentially, a further ten years of business life. They are not being disbarred from other work. It would be to have a longer period in regard to work which was within their remit.

Acting Chairman

It is possible for the committee to include such a proposal in its report.

I would like the advice of the group because it is a tricky and delicate issue. While I am giving a point of view, I would welcome——

Acting Chairman

The committee can make its own report and include whatever decisions or recommendations it likes. It will be making a report.

Mr. Casey

We will certainly put forward to the Minister for consideration any proposals that the committee recommends. That would include the point that the time period should either be extended or that flexibility should be included for an extension on particular issues, if that is helpful.

What about the other points regarding advisers?

Mr. Casey

In regard to advisers, there is no element in the code relating to qualifications. The main reason for that is that appointments to the Civil Service are made by the Civil Service Commissioners under the Civil Service Commissioners Act 1956, which covers all established civil servants, and appointments made to other positions within the Civil Service are made on an unestablished basis by the commissioners under an excluding order.

Currently, programme managers and advisers, where they are not civil servants, are appointed in the context of an excluding order mechanism and there are no qualifications, as I understand it, in this regard. Ministers are free to appoint their advisers and to take on board whatever qualifications they see fit in making the appointments. Appointment by the commissioners under a temporary excluding order follows on from a Minister appointing an individual as an adviser. The proposal put forward by the Deputy would require Ministers to reconsider their current practice and to take on board a proposal that would state that there would have to be a certain level of qualifications.

The other option would be that the advisers would compete under a selection process run by the Civil Service Commissioners to be appointed to positions in Government and may or may not be successful in that competition. Ministers might not feel that this is the most appropriate model by which to choose their advisers.

I may have misused the word "qualification". I was not talking about degrees but about suitability for appointment. We are not talking about an external competition in the traditional Civil Service manner but, nonetheless, Mr. Casey is saying that a scrutiny process is not outside the bounds of possibility.

Mr. Casey

That is stretching it a little. The excluding order mechanism is used by the commissioners to make appointments to the Civil Service of individuals who will become unestablished civil servants. That is a different status to established civil servants. The main issue in this regard is that Ministers currently have, within their powers and discretions, the ability to choose their own advisers. The Deputy is suggesting another layer of scrutiny on such appointments. There is a political aspect to that which I cannot comment on and I am not sure the code is the appropriate place to put the issue in regard to appointments of a political nature. The situation is that where appointments are made to the Civil Service, which would include appointments of people in a temporary, unestablished capacity, the provisions of the code apply to them. That is the focus of the code, rather than the selection process involved in becoming an established or unestablished civil servant.

The other issue raised by the Deputy was the question of civil servants in politics and whether there had been discussions at EU level in this regard. In my opening presentation, I remarked on a report by the European Institute of Public Administration on ethics in the public sector and access of civil servants to private activities. That report deals with those moving from the private to the public sector. There is information in the presentation provided to the committee but we have not provided information in regard to this issue at EU level. I will make inquiries to discover whether it is available and it can be made available to the committee. Perhaps I could come back to the committee in the coming days in that regard.

Deputy Conor Lenihan raised two issues. The first concerned the one-year time period and the question of a ban, which I have already addressed in my comments to Deputy Burton, and the second issue was that of enforcement, which I addressed in response to an earlier question from Senator Higgins. For the clarity of Members, I will restate the position which is that the outside appointments board will be responsible for developing guidelines in this area. The code, under section 17 of the Civil Service Regulation Act 1956, will be applied by the Minister for Finance to all civil servants and becomes part of their terms and conditions of being a civil servant. That means that individuals who leave after the code is promulgated will be aware of the one year condition. Failure to comply with the restriction can be pursued by way of injunction through the courts.

Acting Chairman

I thank Mr. Casey, Mr. Sweeney and Mr. Spratt for attending the committee and for their contributions. As agreed earlier in the meeting, the committee will reconvene to accommodate some members who could not attend this session. Therefore, it has been decided that there will be no conclusions today. I suggest we meet next Thursday morning at 10.30 a.m. if that is suitable for the committee and for Mr. Casey and his colleagues.

Mr. Casey

Unfortunately, I will be away on EU business next week and feeding into the following week. If an alternative date is suitable for the committee, I will be happy to attend. If not, perhaps one of my colleagues could attend.

Acting Chairman

In that case, we will defer a decision regarding the date of the next meeting. We will liaise with members of the committee and with Mr. Casey's office.

The joint committee adjourned at 4.50 p.m. sine die.
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