JOINT COMMITTEE ON FINANCE AND THE PUBLIC SERVICE debate -
Wednesday, 11 Jun 2003

Vol. 1 No. 10

Draft Civil Service Code of Conduct and Behaviour.

Chairman

The next item on the agenda is the draft Civil Service code of conduct and behaviour which was referred to the joint committee for consideration by an order of the Dáil of 8 May, to be returned to the Dáil and Seanad by 3 July in order that further discussions with the trade unions can progress over the summer. Members have already been circulated with a copy of the draft code and further briefing documentation received from the Department of Finance this week. At our last meeting the matter was discussed in detail with Department of Finance representatives. However, it was decided not to come to any conclusions on it due to the fact that certain Opposition spokespersons were unable to attend the meeting as it clashed with questions to the Minister for Finance in the Dáil Chamber.

For the benefit of members not present at the last meeting, the draft code sets out the principles and standards which will govern the behaviour of staff in a modernised Civil Service. It was approved by the Government in 2000 and laid before the Houses of the Oireachtas on 29 November that year. It was then sent to the joint committee of the last Dáil in December 2000. On 13 March 2001 representatives of the Department of Finance made an oral presentation to that committee. At the time of dissolution of the 28th Dáil it was awaiting presentations from the Civil Service unions and other bodies before finalising its deliberations.

I propose to open a discussion on the topic, to conclude today, to ascertain whether members have any views on the matter, after which I will draft a report on our suggested amendments which, as I stated, must be returned to the Dáil and the Seanad by 3 July. Can I get agreement to complete our discussion today and for the clerk to circulate our report next week? Do Deputies and Senators have any further comments to add to the discussion we had at the previous meeting?

Deputy Burton

I raised two issues at our previous meeting. One related to the period that must elapse after a person retires from or leaves the public service before he or she can take up employment involving or connected with work he or she carried out as a public servant. I instanced a number of areas in which I had concerns. One concerns tax officials going to work for accountancy firms. The key question here is not one of officials working subsequent to their career in the Civil Service, rather of their working perhaps almost immediately on material on which they worked during their Civil Service employment. In regard to Fingal County Council and other local authorities, it is now common practice for staff at senior levels in the county council's management to almost immediately find employment and consultancy work if they are planners, engineers or senior management staff such as directors of services, for example, on issues such as waste management.

One of the problems in the Civil Service - one of the reasons public private partnerships and public contracts run so much over budget - is that there is an overuse of consultancy. Consultancy work is often carried out in a manner which is extremely costly to the taxpayer. I am concerned about whether it is appropriate for someone who has held a high office in a local authority to work on material for which they may have had responsibility on the local authority in a role such as director of planning, director of water and drainage or director of services, within a couple of months of leaving that high office. The suggestion in the code of conduct is for a one year sanitation period.

Deputy Lenihan suggested that from constitutional advice he received previously, there was no legal effect whatever to any restriction. However, when staff are retiring from the public service at senior level with good pensions, a one year period is too short. A clear code of conduct should also be drawn up such that if someone has been a planning manager, it is not appropriate, two or three months later, for him or her to become the principal adviser to a major developer. The same is true in regard to contracts on roads and engineering services.

This issue is also tied in with the costs being incurred in regard to consultancies. On many of our local authorities and public project management institutions in the public service, managers do not seem to be able to decide if it is a fine day unless they commission consultants to tell them what the weather is like. A culture of dependency on consultants has evolved. At one stage it was a good idea to seek outside expertise, but this new dependency culture somewhat echoes the way people depended on politicians for their entitlements in the old days. Some areas of the public service now depend on consultants for their every thought. The same is true of advisers and politicians who hold high public office in a world in which lobbying is extensive. Clear guidelines should be drawn up. To be consistent, they should apply to persons who have held public office and are now embarking on a commercial career in an area over which they have formerly had direct responsibility.

I made another point, to which I received an interesting reply. I asked about the tradition in Scandinavian countries - Senator Mansergh will tell me the year of the various revolutions in the 19th century - whereby civil servants had the right to become involved in politics. To some extent, our rights in this respect are pretty restricted, being confined to those of the status of clerical officer and below. An adviser is permitted to be a member of a political party, which seems logical. However, is an adviser who becomes a candidate for election obliged to take leave of absence or stand down? My recollection is that when such people have stood for office, they have taken leave of absence or resigned from the position. I am referring to the guidance note, Rules Governing Civil Servants and Political Activity, which regarding advisers and staff working in the Minister's office states: "This means that they can be members of political parties, contribute to political debate, campaign during local, national and European elections and referenda, and stand for local election". It does not make clear, however, whether they should take leave of absence or stand down should they decide to stand for local election. It might be preferable if they were required to do so. If we are laying down laws for civil servants, we should be consistent in dealing with those who come from parties and work in ministerial offices during different terms of Government. I would like some clarification on this issue.

Chairman

We are here to deal with the public service. As such, the Deputy's comments about local authorities do not come within our remit, nor are they related to the proposals in front of us. Regulations for local authorities will be dealt with separately, possibly emanating from what is agreed here. I allowed the discussion because it is a generic point.

Deputy Burton

The generic point also applies to senior civil servants on leaving office. I referred to this the last day, particularly regarding the privatisation of State companies, where there have been a number of examples of crossovers, although I do not know when these occurred or what time periods were involved. On crossing over to an area of the private sector which relates directly to the responsibilities one had as a civil servant, the sanitation period should be two years.

Chairman

Before I call on Deputy Bruton, I must point out that I understand a 12 month ban is not proposed. The provision is merely that where a conflict of interest is perceived, approval must be obtained. A person can actually move the following month under these new proposals.

Deputy Burton

It could be the following day.

Chairman

There is a one year period after which approval is not required, but one can actually move the following morning with permission.

Deputy Burton

My point relates to a person dealing directly in his or her new job with an area for which he or she was responsible as a public servant. I do not have a problem with somebody retiring and moving to the private sector. I have a problem with the person dealing with issues formerly within his or her remit, particularly if he or she was a senior public servant. To be consistent, my view is that this should also apply to members of Government. That is the norm in many countries.

Deputy R. Bruton

The general provisions here are not too bad, but in specific types of transaction the State needs to secure greater controls. If, for example, one is party to selling off State assets and subsequently turns up working for the body which bought the assets, there will be a question mark over the whole process. The State probably needs to consider imposing specific rules for certain transactions such as privatisation and those who must deal with very sensitive issues of judgment, including situations in which they must select from among competing applications. There is a need for greater clarity on this issue, certainly on some transactions. One does not want to tie everybody up in black knots if they are moving without any serious scope for conflicts of interest. I would not like to impose unfair restrictions. However, provision should be made for specific guidelines on certain types of dealings with the private sector. In these matters, there is not only a potential for conflict afterwards but the whole process could be open to question if no rules are set out in advance.

While the general document is good, it seems to contain guidelines for quality control - those upstairs are telling people what they should do and the rules by which they must abide - rather than a code of practice for delivering their best potential within the public service. This is disappointing. I also sense disappointment in relation to the SMI and modernisation programmes. We have not really aspired to quality management as a process within the public service, as opposed to telling people what they must not do in order to protect the system.

It is also disappointing that no explicit reference to redress for public service decisions is made in the code for dealing with customers. We have seen the capacity of the public service to circle the wagons and offer extremely bureaucratic responses to genuine cases in which people are seeking to obtain redress. We saw this when the Revenue Commissioners came before us - it took the Ombudsman to crack the defences. Some of the Ombudsman's earlier papers have been highly critical of the failure to develop redress procedures throughout the public service. A document of this nature should have a more positive tone about what constitutes best practice in the delivery of public services. It should not be so much about not abusing the desk at which one sits or turning up dishevelled. There is too much about what one must not do and too little about what one can do and what the system can do to help one achieve one's potential. People may say that this is not what we set out to do; I say in reply we should have set out to produce a document with that broader context.

Deputy Ó Caoláin

I welcome the establishment of the outside appointments board. It is undoubtedly an important new structure to oversee deliberations on any proposals such as outside appointments or consultancy being undertaken by former members of the Civil Service. This may be described as a hot political issue. Deputy Burton referred to the position regarding local government which does not come under this remit. There is a growing number of examples of this problem at myriad levels, but it is particularly apparent at local government level.

The attempt to draw a distinction between the Civil Service and the wider public sector is another cause of concern. It has been frequently suggested to me that those who previously worked in sections of the wider public sector and are in receipt of a retirement package have been re-engaged in other parts such as local authorities or health boards. Within the constituency of informed opinion, great concern has been expressed that people can, on the one hand, draw pensions from public moneys while, on the other, be re-employed. It is almost like being paid twice from the public purse. While this aspect is not covered under the remit of the outside appointments board, I have no other means to highlight my concern. The committee might address it at some future time because the concern expressed by the wider public is sufficient to merit scrutiny of the issue.

The representative unions have recommended a reconsideration and relaxation of the very strict standards and codes that currently apply. In his address to the meeting of the committee on 28 May Mr. Casey commented on this. The unions have expressed concern about civil servants making contributions to public debate on issues that do not come under their direct employment remit. Mr. Casey baldly dismisses any possible relaxation in this area. However, I question this approach. Are we not denying society the benefit of the observations and keenly felt views of staff in public service employment regarding issues that do not directly compromise their employment terms and are not in conflict with their area of employment and responsibility? Mr. Casey's view that changing or even relaxing the existing rules could be problematic is not a sufficient response. It merits re-examination because we only have one pool of talent from which to draw. To exclude an enormous swathe of concerned, responsible and intelligent people from wider public debate and engagement on a raft of issues is doing society a disservice.

Applicants for appointment to the Civil Service have a responsibility to disclose details of court appearances and charges that may have been proffered against them in the past, even in situations where the alleged offender has been given the benefit of the probation Act. This must be reconsidered. The unions correctly indicate that in a situation where somebody has been given the benefit of the probation Act, it should not be a requirement to highlight this in applications for employment within the Civil Service.

My experience, prior to and since my first election in 1985, of dealing with the Civil Service has been very positive, but there is no doubt that at times, despite the requirement in the code of practice, there remains, for whatever reason, a resistance or reluctance on the part of some within the wider service to identify themselves adequately in the context of making inquiries. It does not happen in many cases, but it arises in some. I highlight it because it would be useful to emphasise the importance of staff being willing and prepared to identify themselves accurately. It is very difficult to find a way through some Departments. Some officials can have similar names, which can be problematic, especially where there is a reluctance to provide surnames. That reluctance must change and people's disposition in this regard must be challenged. The person making the inquiry makes his or her identity known and there must be a reciprocal identification by the person taking the inquiry. While it does not happen in all cases - I acknowledge that excellent co-operation was received in the majority of cases I have experienced - a sufficient number of occasions involving problems with identification have arisen to merit my highlighting this point.

Recommendation No. 14(4) in the November 2000 document is open to question. It 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. . . " It does not specify to whom the representation might be made, for example, would it be made to the Chairman in his role as a Deputy? Do other situations arise where it might be a valid function or performance on the part of the civil servant? What is the position in the Civil Service regarding, for example, recommending one application over another for support within a Department? How widely do we interpret the word "representation"? There are many grey areas that could apply in this specific case. Perhaps greater clarity might help to ensure a better understanding of what is intended. The word "representation" is open to a wide interpretation. It is not specified to whom the representations would be made.

Senator Mansergh

I would like to take up a number of points from what has been a very interesting discussion. The culture for 50 or more years in the Civil Service has been to keep the head down. That has changed and most civil servants are no longer reluctant to identify themselves. That has been my experience.

To address another point to which Deputy Ó Caoláin referred, I have experience of being part of a group receiving a deputation on behalf of the gay rights lobby which included a fairly senior civil servant. I cannot remember if we were in government or opposition at the time, but I did not see anything inappropriate about this. If a civil servant were to make representations about something on which he or she or others in his or her section were to make a decision, that would not be appropriate.

I would like to clarify the issue of candidacy and the public service given that I went through this in the past year. I examined this matter thoroughly with my Department and the Department of Finance. My understanding is that there is no incompatibility between being a special adviser and a local councillor. There are a number of instances from different parties where that has been the case. As far as election to the Oireachtas or the European Parliament is concerned, one must make a distinction between being nominated a candidate by one's party and handing in one's nomination papers when one is officially nominated. Although I was not going to do it, I was advised that, in theory and legally, I could have remained as a special adviser until the day I submitted my nomination papers. The returning officer required a copy of my letter of resignation and its acceptance. In practice, I resigned the day the general election was called because I was not going to spend any time in the Taoiseach's office from that time on.

On the issue of conflicts of interest, problems arise if a person has adjudicated on certain matters in the public service and he or she immediately goes to the other side and starts submitting applications on those matters on which he or she has been adjudicating. Regardless of whether that is right or appropriate, the case for a time gap is made. On the other hand, we must not be too defensive in that people can have experience that can be of public as well as of private benefit. Let us take a hypothetical and unnamed example of a leader of a political party who has held high Government office and then takes up membership of boards of public companies such as exporting companies. That may be of public as well as of private benefit and not necessarily lead to conflicts of interest.

What concerns me is that, in drawing up rules, a great deal of pragmatism and discretion needs to be applied. There may also possibly be a need for power to be vested in heads of Departments or the Secretary General of the Department of the Taoiseach to give advice and, if necessary, decide on the appropriate course of action in certain cases.

Blanket bans may not be in the public interest. While it has not applied to me, there are people in the advisory profession who are not retired civil servants after a full career in the public service. If for any reason they cease or choose to cease to be an adviser, they must earn a living. Bans on any area in which they have experience may, in some cases, be overly harsh. Then again, there could be instances where a genuine conflict of interest could arise. There may be some case for vesting a deciding power in the head of a Department.

Deputy Ó Caoláin raised the issue of senior civil servants who retire and are re-employed. This happens occasionally because of their expertise in a certain area. My understanding is that, if they return on a part-time consultancy basis, they do not receive full pay in addition to their pension. They receive some extra payment or incentive but it is nothing remotely of the order of what they once earned. It may be on a per diem or per hour basis. I do not think it is as open to abuse as the Deputy believes.

The threshold in terms of the level of seniority in the permanent Civil Service beyond which a person may not become involved in politics is very low, arguably too low. I value, as I am sure we all do, the impartial Civil Service that behaves correctly and appropriately and whose advice is not politically motivated. However, most political systems make use of former administrators and public servants and it is quite difficult in this country to move from one sphere to the other. For example, my understanding is that to qualify for the Administrative Panel in the Seanad - I have no personal interest in this since I was not elected from the panel nor did I run for election on it - one has to have been a local councillor. However, 20 or 30 years in the Civil Service is not a qualification. That is more by convention than by law.

Deputy Burton

It is a qualification.

Senator Mansergh

Is the Deputy certain of that?

Deputy Burton

Yes.

Senator Mansergh

I was advised otherwise.

Deputy Burton

It requires a knowledge of and experience in public administration.

Senator Mansergh

Is the Deputy certain that straightforward civil servants can qualify for the Administrative Panel?

Senator O’Toole

If it were to result in an argument, it would have to go to court. One case in the previous Seanad election regarding Mrs.Sinnott went to an arbitration body.

Deputy Burton

That was in the area of education.

Senator O’Toole

It concerned her knowledge and experience in the area. I have no doubt that a civil servant with the number of years of experience concerned would be considered to have a knowledge and experience of public administration.

Senator Mansergh

That is good. Civil servants should be encouraged, where appropriate, to make measured contributions to public debate. There has been an increasing frequency, which on the whole has been good, of Secretaries General of Departments addressing conferences and so on, with which I do not see a problem. There was the instance in the last referendum on the Nice treaty where the head of IDA Ireland made a contribution to the debate. Some Oireachtas Members objected to this but I did not because I thought it was appropriate. He said that, if there was a "No" vote, it would be likely to have an impact on investment. It was perfectly appropriate for that to be said.

I would go further. Going back a generation, Dr. James Deeney, who was chief medical officer in the then Department of Health, wrote a fine volume of memoirs. I have encouraged one or two of our senior civil servants, with political approval, to write something about their careers in the public service. We should not be defensive about contributions they have made. As speakers have pointed out, they have something valuable to contribute.

It is important if one is a public servant to have rules and not to have grey areas. A grey area that troubled me was the so-called frequent flyer provision. I remember having a conversation with Deputy John Bruton at an airport when he said to me to go ahead and use them and he would be answerable. Needless to say I did not trust that and never used those frequent flyer miles but there was a decision by Government that given the time being given up by civil servants, it was appropriate for public servants to use frequent flyer miles. Where there is a significant doubt, a decision on a rule one way or the other helps people in order that they are not agonising over theoretical ethical dilemmas.

Deputy C. Lenihan

If one reads about the tribunals in the newspapers, it seems we have had a remarkable absence of corruption among our middle to senior ranking civil servants. It is a pity in one way that we have to introduce these measures.

Given our wealth, it is remarkable there has been such an absence of corruption among our public servants generally. I am reluctant to name names but a well known prison governor was hustling for advertisements for Kilmacud Crokes. That is now specifically banned and the situation has been clarified whereby, now, according to these rules the Governor of Mountjoy Prison would not be able to importune people supplying services to Mountjoy Prison to place advertisements in a Kilmacud Crokes magazine. I am glad because those kinds of creeping professionalism or advertising industry practices coming into public services are regrettable.

Chairman

The Deputy should not refer to someone who could be identified and is not in a position to respond to the comment. He should make a general comment but should not say something that makes an individual identifiable.

Deputy C. Lenihan

There was a specific issue here.

Chairman

It was raised in the Dáil and the person is not here to defend himself.

Deputy C. Lenihan

It could not happen now, which is welcome.

Regarding comment on political activity, I am not entirely with Senator Mansergh on this. There is a requirement that if one is above a certain grade in the Civil Service, there is a vow of silence that should be taken on political controversy, an important term. If there is political controversy, at national or local level, civil servants should refrain from entering the fray. This struck me on one occasion in my constituency when there was a controversy about a school and a person I identified as a civil servant made a comment that he was a civil servant and he knew a certain situation to be quite different, obviously from his inside knowledge of the system.

Deputy Burton

I know the school about which the Deputy is talking.

Deputy C. Lenihan

It was nothing to do with our pre-election promises which have been largely honoured. It relates to an issue which arose where a person in a public meeting revealed he was a civil servant and stated the situation was different from what was being stated. That was inappropriate because if one has knowledge deriving from one's insider status, it is wrong to use it in any context, for either public or private gain. I do not agree with Deputy Ó Caoláin that that should be broadened and that such people should be allowed on public platforms for broad-ranging campaigns, for instance. I would be worried about middle ranking civil servants appearing even in worthy justice issues such as the Birmingham Six or Guildford Four campaigns and identifying themselves as civil servants. That is inappropriate.

Regarding representations, Deputy Ó Caoláin may not have read the relevant section as closely as he read the minutes of the last meeting. There is not a ban on civil servants making representations on behalf of a school their child attends, as Deputy Burton mentioned, but they must do so with the consent of their head of Department. That is appropriate. A Minister, Deputy or senior civil servant would not like to see one of their civil servants sitting across from them in a delegation or making representations for their own cause.

This goes back to conflicts of interest. Should one use one's position to improve one's own lot, or the lot of one's community? There is an important principle here that should be maintained. Representations are not barred, just dependent on the agreement of one's head of Department. If he or she says it is fine for a civil servant to campaign for an extension to a school, the civil servant can go ahead. However, this only applies to civil servants working in a relevant area and who have a day to day responsibility for it. It would not apply to a civil servant in the same Department but working in a different area. He or she can make a case or appear in a delegation like anyone else.

Deputy Burton has made some interesting comments on the one year rule. I worked in companies - including Esat Digifone as an adviser and senior executive - which had prominent former civil servants, either on their boards or as advisers or consultants. My experience is that they are not hired for insider knowledge but for their experience in dealing with the public administration or other expertise.

Deputies Burton and Bruton have raised a serious issue regarding price setting by civil servants, either in connection with privatisation or other specific instances of price setting for licences, tenders or other forms of evaluation. This area should be regulated properly with perhaps even more serious guidelines than those outlined in this document. The detail of such guidelines would be more important than what is stated or interpreted in this document. This is very serious because, as Deputy Burton said, within one year a person might be involved in setting the price for a licence and then advise an outside body about it.

It would be even more important that such provisions would apply to all the regulators who have been appointed. It is now the fashion for modern government to appoint regulators for entire industries such as the aviation and electricity sectors. What regulations will apply to regulators? They are privy to very sensitive commercial information about pricing in individual companies. How will that be governed going forward? It is a very sensitive area and a matter of legitimate concern.

We have dealt with sponsorship and so on. This is welcome but it would be difficult legally to enforce a ban for longer than the one year period on civil servants taking up positions. We are now discussing what public servants do when they leave the public service for the private sector, but there does not seem to be the same access rights from the private sector to the public service. I know this is not strictly germane to this but the public service does not seem to benefit from the experience gathered by people up to the age of 40 years or so in the private sector. There are many of that age in the private sector who would like to opt into the public sector for family and other reasons. They do not have the opportunity to do so at a middle or senior level. While people are interested in getting more private sector experience into the public sector, there seems to be a distinct gap in the system whereby we are now regulating the behaviour of civil servants who could spend 30 or 40 years in the public service. However, we are not allowing for senior personnel in the private sector to go into the Civil Service at middle to senior level and share their undoubted knowledge. While we allow public servants to go into the private sector, we do not allow private sector personnel to participate in good governance.

Senator White

I agree with Deputy Burton. A one year gap prior to senior civil servants becoming board members of companies which may be applying for public tenders is not adequate. Given that the people concerned may have access to business networks and information, there should be a gap of at least two years before senior civil servants could become board members of private companies which may be tendering for State contracts.

Even though the legislation has been updated, it is archaic and traditionalist in that one can only become involved in political activity at a certain level. As Senator Mansergh said, it would be a good thing if senior civil servants could become politicians because they might be able to achieve things. The legislation reads like a Charles Dickens novel, even though it has been updated. It is old-fashioned.

Senator O’Toole

The trade unions would agree with Senator White's latter point. The legislation appears to be very old-fashioned. Deputy Bruton also said it was quite old-fashioned and archaic. The way it is put together seems anachronistic. Harry Boland's letter seems more modern in many respects than the guidelines.

We need to examine the first point Deputy Bruton made. What we set out to do, rightly or wrongly, was to establish core and ethical values with regard to how personnel go about their work. It does not take from the point made that these things need to be stated. Perhaps here is not where they need to be stated but in the SMI or somewhere else. We are trying to establish that there is a set of core values, standards and ethical practices which govern the operations of civil servants. These should be put on paper in order that staff know where they stand on issues.

When one sets out to change things, one becomes almost like a zealot. One may look at the issue from one side only to see how it might work. Senator Mansergh made what I consider to be a very important point, one which troubles me. We should recognise that very often movement from the Civil Service into the private sector can bring good values in that direction. A positive energy can be created. The real issue is to get the balance between this idea and the issues Deputy Burton raised, which are equally valid. While doing some work last year for the Members' services committee, I came across a code of practice for the American Congress. It is very strict in regard to what people can and cannot do after they leave a post. The 12 month time span is very much set in stone in relation to what one can do during and after that time. It would be worthwhile looking at that issue.

I am worried that some of the issues being discussed here would prevent civil servants from participating in activities in their local communities such as residents' associations, football clubs or whatever. For that reason, we should consider the matter from that point of view. I am not happy with the level of consultation that has taken place with staff in this regard. I am conscious that those who drafted this code of conduct are the same people who drafted the Houses of the Oireachtas Commission Bill which prevented members of staff being represented on the commission. They talk down to people. I insist that whatever is agreed is discussed with the staff associations, unions and groups at whatever level in the Civil Service to ensure there are no ridiculous requirements. This crucial factor was referred to at the beginning. I do not want to get involved in writing the code of conduct because I am not sufficiently familiar with the issues. However, I want to ensure we come up with something that works and reads well.

Deputy Burton

In regard to page 10 of the code of conduct, no definition of "politics" is included. The footnote refers to politics as political matters, matters of current political interest, political action or position, political issues and political activity. I am coming at this from two angles. On the one hand, I want a sanitation period for those leaving the Civil Service to work in areas directly related to their previous remit and, on the other, most of the rest of Europe, going back to the middle of the 19th century, allows civil servants a large amount of freedom to participate in politics as opposed to party politics. In that sense the code is very restrictive.

I want to highlight a number of issues, the first of which relates to those who have convictions about the need to proselytise in relation to their religion. Others might regard this as political activity but, on the other hand, it is a fundamental freedom. The related activity, in which many young people engage nowadays, is human rights related campaigns which are very wide and pervasive. If these issues do not relate directly to the civil servant's area of decision-making or operation, I do not think it can be considered as party political activity. For instance, some in the Civil Service may be engaged in what is happening in Burma, or were previously engaged in what was happening in South Africa. The world has moved on and taking positions on human rights is an important civil right. I am not saying I have the answer in this regard but I do not think the code addresses it correctly. I do not think it reflects how society has changed with regard to those who wish to express points of view on broad human rights issues, so to speak.

Traditionally we did not have a problem with people proselytising on their religious viewpoints, rightly so. There have been problems in the United Kingdom where people may have been members of secret religious organisations which may have been seen to influence their approach to their jobs, for example, members of the police service being masons.

What Deputy Lenihan mentioned was important. We have developed and encouraged parents' participation in boards of management over the past ten years. In particular, my colleague, Niamh Breathnach, as Minister for Education, encouraged parents to take part. There is nothing wrong with this except in certain instances where there may be party political sensitivities. The kind of participatory democracy we, of all parties, try to encourage occurs where a civil servant who is a parent is invited by others to be part of a school management board. A civil servant might write a broader document which, while avoiding party political activity, would encourage civic and social activity. People of all political parties are trying to build a community based society. However, the code does not address this.

As an accountant, I was taught the principle of Chinese walls. In other words, if a person obtained information in a particular context, he or she would not reveal it while wearing another hat, if it was privileged information from work the person was doing or from client relationships. Obviously, civil servants in the Department of Foreign Affairs would have to be particularly sensitive in regard to information. However, that should not disbar staff in the Department of Foreign Affairs who wish to be active on a school board of management or some other civic type activity. The code is too restrictive in that sense.

Various revolutions in the 1840s throughout Europe, particularly in Scandinavia and Germany, gave civil servants a right and sense of obligation to be part of civil society. Should we have another look at enlarging those freedoms while avoiding party political issues?

Senator Mansergh

In Germany, a country of which I have some experience, one can be active. For career purposes it is probably wise to be active in one of the main parties, right up to the top of the civil service. Civil servants are appointed Ministers of state without having to be members of the Bundestag. The problem is that when a senior CDU civil servant's party is in opposition, he or she is likely to be on retirement - I am not sure whether it is on full pay. However, a senior opposition civil servant is rendered inactive. We would not want to go that far.

I agree with the Deputy. I have been a member of a school board of management since the late 1980s. My job at the time was as a political adviser but if I had been a senior civil servant, I would not have seen anything wrong in being on the board——

Senator White

People do it everywhere.

Senator Mansergh

——or any need to seek permission to do so. If I had been in the Department of Education and Science——

Senator White

It would have been different.

Senator Mansergh

——it might have been a different issue. If a person in the Department of Foreign Affairs is involved in anti-apartheid issues, even if he or she does not actually deal with the issue in the Department, attendance at rallies and so on is probably inappropriate. One has to use judgment in these cases. I agree in general with Deputy Burton that measured contributions to public debate, which are not and cannot easily be construed as being of a party political character, could often enrich us rather than otherwise. To be fair to the public service and the political system, there has been more encouragement of this in the past ten or 15 years than there was 25 years ago.

Chairman

Before we conclude our discussion, I want to make a few observations. We will have a draft report ready for the next meeting and must report back to the Dáil and Seanad by 3 July.

In regard to paragraph 14(4), mentioned by Deputy Ó Caoláin and on which there has been a great deal of discussion, about a civil servant not being entitled to make representations, the view is that it is too restrictive. The Department or those on top have the final say. If they consider there has been a breach of the regulation, the civil servant can be subject to disciplinary action. That is too severe. There must be some latitude to participate.

It has been said this document was written by people "up there" to tell people "down there" how to do things. Another attitude running through it is that the people who wrote it believe staff in the public service are a more pure breed than those who are not. They seem to look down their noses on the other 1.4 million in the workforce

My principal objection to this document is that there should be far more movement of staff between the 1.4 million not in the public sector and the 400,000 who are. There should be more interaction, movement, flexibility and learning between them. Anything that seeks to impose restrictions introduces rigidities and demarcation rather than opening up both sides of the equation for the cross-fertilisation of ideas. This may be counter to what others have said. I will give an example with which Deputy Burton may disagree. If, for instance, a senior official was about to retire from the Department of Agriculture and Food, I would hate to think he or she would have to be put out to grass for 12 months and that his or her expertise would be lost to the public and private sectors and the country at large. His or her experience could be invaluable to some of our major agricultural exporting companies.

Deputy Burton

There is a difference between exercising and practising one's profession when one has retired and with being directly and immediately responsible or taking up a position in regard to matters over which the person recently had a direct input. If we encourage this, we will possibly end up with private companies stalking civil servants with a view to acquiring them subsequently. The public must be reassured that if somebody ultimately becomes involved, that it is not done indecently and in a way which appears to be very compromising. It is a question of balance and upholding the integrity of the Civil Service and the integrity of access to information and decision-making.

Senator Mansergh

While I accept that Deputy Burton has been representing both viewpoints, I can bridge the two points of view. We need a brake in the system in order that in cases where there is any serious doubt, the head of a Department, perhaps in consultation with the Minister, can make a decision on the appropriateness or otherwise of any involvement. I am not certain it is possible to formulate a general rule consistent with best public interest such as putting a blanket ban on involvement. I accept that there are and have been, in this country and others, situations which lead to a clear perception of abuse. One does not want that to happen. We must have a degree of discretion and somebody to make the judgment or decision as to whether something is appropriate so soon after holding a position of responsibility.

Deputy Ó Caoláin

Senator Mansergh talked about including a brake. I apologise for having to go to the local government sector to point up specific cases but it is an area with which I am rather more familiar than the Civil Service. The Government is the facilitator of a very encouraging retirement package to facilitate exactly what the Senator is talking about putting a brake on. As Deputy Burton has indicated, there are people with particular expertise such as engineers, not least of all in the area of waste management. I smiled when the Senator said the re-engaged consultant engineer with this expertise——

Senator Mansergh

I did not say "engineer".

Deputy Ó Caoláin

I ask the Senator to allow me to finish the point. He suggested the remuneration would not be at levels commensurate with what they had earlier earned - he is damned right they are not - they are much greater such are the packages being negotiated by persons with such expertise. Nowadays those who have been in the public service giving service through their professional qualifications and in receipt of a very attractive cessation package with a pension are now coming back with very generous consultancy fees to the same position with their respective local authorities. I do not hold any particular angst against these individuals personally. Those whom I know are very fine individuals and cannot be faulted for availing of what was on offer. The Senator is talking about putting on a brake while at the same time his own party in government is offering facilitation. It does not hold up. If the Senator agrees there is something patently wrong, he should address it.

Chairman

I take the Deputy's point and it is happening everywhere but I think his point is more critical of the retirement packages on offer. If somebody is retired, why should their skills be lost to society at large? We do not wish to be over-prescriptive

Deputy Ó Caoláin

That is another example of what I said of people availing twice of the Exchequer funding available for the same service.

Chairman

I take the Deputy's point.

Senator Mansergh

By way of clarification, I was primarily talking and thinking of the national Civil Service. I can think of people employed on consultancy to deal with a problem with which the Deputy's party would have been intimately concerned, the Northern Ireland problem and Anglo-Irish relations. I have a brother in the local government service who has spent nearly 30 years in the public service. He has often said to me that if he went off and made some private consultancy arrangements, he would probably be much better off.

Chairman

We will conclude this item on the agenda and try to agree on the report at our next meeting. It has to be laid before the Dáil and the Seanad before we conclude.

Deputy Ó Caoláin

Will the points I raised be taken into account? The trade unions expressed concerns about the issue of those who have been before the courts and had the benefit of the probation Act. The trade union movement also expressed concern about wider lobbying in political areas not under the direct aegis of the specific civil servant. These are quite specific areas on which Mr. Casey quite bluntly lowered the lump hammer which has to be withdrawn and a much lighter implement applied.

Chairman

I will request that it be referred to and included. The formula of words will come before the committee before we sign off on our report.