Seanad Éireann debate -
Tuesday, 11 Dec 1956

Vol. 46 No. 14

Civil Service Regulation Bill, 1956—Committee Stage.

Section 1 agreed to.

SECTION 2.

Mr. Cox

I move amendment No. 1:—

In sub-section (1), before paragraph (d), to insert a new paragraph as follows:—

( ) in relation to a civil servant who is a court official, the Chief Justice, or.

Under this Bill, the Revenue Commissioners are the appropriate authority for those who work under them and I suggest that, in the case of officers of the court, the appropriate authority should be the judges. That was always the position in this country down to 1924 and, I understand, is still the position in the United Kingdom. It has always seemed to me that it was a retrograde step in 1924 to place the officers of the courts, who administer the actual work of the courts, under the Minister for Justice instead of being under the Judiciary as they previously were. I think everyone will understand the point I wish to make and I would ask the Minister to consider it.

Mr. Sweetman

Certain named officers are, of course, already covered by the provisions of the Court Officers Act, 1926. The Master of the High Court and taxing masters are appointed by the Government and no principal officer nor any officer nominated as a registrar can be reduced without the concurrence of the Chief Justice and that of the President of the High Court.

In his amendment, Senator Cox strives to go further than that. I am afraid it is an amendment I must resist. I am aware that it was to some degree the previous position but I think it is wrong that judges should exercise administrative as well as judicial functions. One must ensure that a judge is not asked to work with certain named people—the Master of the High Court, Taxing Masters and so forth—except on terms of complete amity and I think that always would arise.

I do not think you could possibly accept the proposition that judges should be the administrators as well as the judicial interpreters of the courts. What the Senator proposes to do is to make them administrative. This would be a new step in the administration since 1924. Instead of there being Ministers and, therefore, ultimately someone in the Government responsible to the Oireachtas for the working of civil servants, in relation to the courts it would be someone who would not be responsible to the Oireachtas, someone, whose function I would suggest, is to deal with the judicial rather than the administrative end.

Mr. Cox

I do not press the amendment and I shall withdraw it.

Amendment, by leave, withdrawn.

Section 2 agreed to.

SECTION 3.

Question proposed: "That Section 3 stand part of the Bill."

Mr. Murphy

This is an important section dealing with the suspension of civil servants. It makes provision that suspension may be made either by the appropriate authority, who would be a Minister in most cases, or by somebody nominated by him. In regard to suspension generally, I think the Minister would find no difficulty in agreeing with me that the approach to suspension should be that it would not be used as a disciplinary method of itself. In other words, it should not be a punishment. It should only take-place for certain grave offences and in the public interest. It should not be used by people simply to punish those whom they consider to be guilty of some offence.

In sub-section (5) there is provision that the appropriate authority when making a recommendation may attach some limitations to it. I should imagine that the limitations might be dealt with by the Minister in Section 17. There are just a few points I want to make. First of all, as far as possible the power to suspend should not be put down to too low a level, but where it is necessary to put it down to junior grade there should be some limitation as to the time of suspension. I will suggest that if it is necessary for junior officials to be given the power to suspend they should be limited, say, to a period of 48 hours. Perhaps it might be possible for the Minister, when drawing up the appropriate regulations, to consult with the staff associations under the machinery so that there would be general acceptance of what the position would be. I hope the Minister will find it possible to accept the viewpoint I expressed on this section.

Mr. Crowley

I want to support Senator Murphy's suggestion to the Minister. I do not want to repeat what he has said. All sides of the House would like to feel satisfied that the use of this power of suspension should not at any time be open to abuse. If the power of suspension has to be given to junior officials—and I appreciate it may have to be done from time to time—I suggest some safeguard should be given in this section to make sure that the person penalised by suspension as a result of the decision of a junior official should be guaranteed definite limitation on the length of time for which the suspension can operate. I strongly support Senator Murphy in his appeal that some such safeguard is put into the regulations when they are framed.

Mr. Sweetman

Suspension must be considered in relation to the fact that the only basis upon which it is reasonable to grant the power of suspension low down the ladder, shall I say— Senators will know what I mean—is that the public service, at the time that some Act requires, has to be continued in an efficient and proper manner and that it is not possible for the person who is the suspending authority in relation thereto to get in touch with the higher authority at that particular point of time.

Let us take for example a ganger working with a gang of men out on a bog. If one of the men takes up a shovel and hits one of his colleagues, the ganger must have the power to suspend that man without having to send a message to the engineer at headquarters to know should he suspend or not. But it must be something that requires attention at that point of time before he is able to take counsel with the higher authority in order to maintain the efficiency and propriety of the service. That is a very rough and ready formula but I think it is a formula all of us would accept as being an appropriate formula on which to decide how far the power of suspension should be delegated downwards.

All of us, without question, will accept also that the power of suspension is one that must not be abused under any circumstances and under this Bill there must be, what was not the case before, a most specific decision by the appropriate authority—that is to say, broadly, the Minister and, in certain cases, the Revenue Commissioners, etc.—to nominate either the class of persons or the particular person to be a suspending authority. The fact that a person is so nominated, the restriction in that he has not that right without the nomination, and the fact that he will know that, if he abuses his power, his nomination will certainly be revoked by his Minister— not merely will it be revoked by his Minister but, because of the principle of nomination, the matter must of necessity come to higher authority— should operate to ensure that there will not be abuse.

Mr. Murphy

In view of what the Minister has said, I think he would be sympathetic to attaching a time limitation to the suspension by a person nominated.

Mr. Sweetman

I am, frankly, against trying to run anything within specific statutory lines. I believe the better approach is to lay down general principles, to ensure that those general principles are conformed to and, if they are not conformed to, to take good steps to see that the conformation is more accurate in the future. That is a better line of approach than to try to legislate by minutiae.

Question put and agreed to.

Section 4 agreed to.

SECTION 5.

Mr. Murphy

I move amendment No. 2:—

To add a new sub-section as follows:—

(2) Notwithstanding the provisions of sub-section (1) of this section, an established civil servant shall not be removed from office without being afforded an opportunity of making to the appropriate authority any representations either orally or in writing he may wish to offer directly or through his staff association representative.

I should like to make it clear right away that in proposing this amendment I am not challenging the Government's ultimate responsibility in regard to the tenure of office of established civil servants. What I am trying to provide is that the individual should have the right to be heard and, after he is heard, that the decision lies with the Government. There is no provision here whatever for the individual being heard either himself or through his staff association and I think there could be no objection in this country to the individual being given the right to have his case heard and to have his case put to the Government.

It is the position that, because civil servants are employees of the Government, they cannot, like other employees, take a case to court for wrongful dismissal. They cannot sue the Government. Therefore, we are obliged to take every care. Making it clear that I am not attempting to challenge the Government's ultimate responsibility, I think there should be no objection to the individual being given the opportunity of presenting his case for his defence, or whatever it may be, and doing it through his staff association if he so desires. The amendment provides that the appropriate authority should pass on the representations to the Government. I think that will be necessary. Again, and finally, the responsibility would rest with the Government to come to a decision after views had been put forward on behalf of the individual concerned.

I trust that the Minister will find it possible to accept this amendment and that he will not imagine that it is in any way attempting to weaken the Government's responsibility in regard to the tenure of office of civil servants.

Professor O'Brien

I agree with Senator Murphy on this. It is entirely an anachronism in the 20th century that civil servants should have no rights against their employers, Senator Murphy said that he understands the principle that the Government cannot be sued. That is a relic, as I understand, of the English common law, of the Royal prerogative, that the Crown is not able to be brought into the law courts. But that is not the case in a country such as ours with a Constitution, and I certainly feel very strongly that the section as it stands confers on the Government of this country entirely wrong arbitrary powers.

Civil servants are established officers. They have pension rights. They are not like people who can move from one job to another—weekly wage earners—and I think before their service is dispensed with they should have the right to state their case, to have their case heard by some sort of judicial tribunal which would report to the Minister. It is just a hangover from the old days of the common law that the Crown is above the law courts. The Irish Government is holding on to that. The parliamentary draftsman holds on to it simply because it has always been there.

The time has come to brush up our minds and to get some fresh ideas about the rights of civil servants. The ordinary salaried officer employed by a private company cannot be just sacked in this way without his trade union or somebody coming to his assistance. In the same way there are a large number of professions—my own—and so on, where a considerable amount of security of tenure is provided by law and I really cannot see why a civil servant should not have some security of tenure, some protection against the entirely arbitrary action of Governments.

I can see a position arising in the future—I do not for a moment suggest that any Government that we have known since the Treaty would be guilty of it—where civil servants would be dismissed on ideological grounds, for all sorts of improper motives, and I certainly do think that they should have some degree of protection, some right to be represented and some right to put their case before their services are dispensed with, their pension rights forfeited and their whole living destroyed in this entirely arbitrary manner.

The Minister referred, on Section 2, to the necessity of having general principles and not being put on the rails of strict rules. Very well, I would be quite prepared to have general principles protecting the civil servants but, certainly, I do think they are entitled to some protection. The section as it stands is quite out of harmony with the law as we know it in other countries and other constitutions in the 20th century.

Dr. McHugh

I feel sympathetic towards this amendment but, before knowing whether to support it or not, I should like to ask the Minister if, in fact, there is at present any mechanism by which the civil servant, who is dismissed or suspended, can make representations either directly or through his staff association representative. I think it might help a number of us to reach a decision on this amendment.

Mr. Cox

While I fully approve in general of the principle that people should always have an opportunity of being heard, it seems to me that there is inherent in the suggestions that are made now something that might possibly weaken the position of the civil servant rather than strengthen it. It seems to me that, as matters stand at present, a civil servant holds office unless some very extraordinary thing happens. If that were to be altered, it would seem to me that one would have to introduce instead some principle, a contractual principle, that a civil servant might be removed from office on one month's notice or six months' notice or something of that kind. One could scarcely have the position that the civil servant held office as a right like a judge. It seems to me that those who are pressing for this strengthening, as they think, of the position of the civil servant would, if they had their way, lead to a much more revolutionary change, namely, that the civil servant would have to hold office on some contractual basis and might be subject to removal from office simply by notice. In other words, he may be placed in a very much less strong position than he is in to-day.

Professor Hayes

Senator Murphy put his case for this amendment in a rather moderate way, but surely Senator George O'Brien went to the fair entirely on the matter. It is put as if, in regard to the Civil Service here, one never heard of the circumstances of any established civil servant's dismissal. To listen to Senator George O'Brien, one would think that Governments since 1922 had been engaged in walking on civil servants, dismissing them, firing them here and there, like snuff at a wake—which is not the case.

We must take this as we know it. I think the answer to Senator Murphy's case, about their having a legal right, is that, if you leave Section 5 as it stands, they hold office at the will and pleasure of the Government. Of course they have no legal right, but if you alter it you might find, as Senator Cox suggests, that you have very much reduced the security of tenure which by practice over the years they now enjoy. I wish it were true, as Senator O'Brien says, that an ordinary clerk cannot be dismissed. I have experience of quite a number of people who have been dismissed after a number of years with no compensation at all. The truth with regard to civil servants is that the Government—whatever Government is in office, apart from a small number of political cases— regard the dismissal of an established civil servant in the ordinary way for disciplinary reasons as a matter of very great importance. As far as my experience goes—and I have had something to do with one or two cases where I was asked to intervene—they get every opportunity of making their case, first to their own Department, then to their own Minister and subsequently to the Government.

The truth is that a very, very small number of people have been dismissed for ordinary disciplinary reasons and that the civil servant at the present moment is better off under the practice of the Civil Service than he would be by the insertion of any kind of proviso in this Bill. Actually, Government activities are so multifarious that one could not set down everything in writing. It is true that civil servants used to be servants of the Crown: it is true they are now servants of the Government, but it is also true that they enjoy in fact a very sound and reasonable security of tenure and that when a civil servant is established his dismissal is a matter of extreme slowness and is regarded as a matter of very great gravity. I do not think there is any reason at all—and I do not think any examples can be given—which would justify the use of the words "arbitrary dismissal."

Mr. Murphy

I did not use them.

Professor Hayes

I did not say Senator Murphy used them but they were used. My hearing is quite good. Senator Murphy is not the only pebble on the legislative beach. The words "arbitrary powers" were used. I have been in intimate touch with the Civil Service since 1922 and I do not think it is true that powers were used arbitrarily to dismiss an established civil servant in the ordinary way. I have known certain cases. When I examined one case that was made, when I got some of the facts, it seemed to me that the case that was made could have been more justly and more properly made against the head of the Department for slowness than against anybody for arbitrary action against the civil servant in question. I do not think it would be a good thing for the civil servants themselves, from the points of view of their security of tenure, that any endeavour should be made to put it down in writing. I think they are better off under the practice which has obtained.

This point is frequently raised that you might at some time get a Government which would want to do something arbitrarily. If you get that kind of unscrupulous Government, it must have a majority, of course, and if you have an unscrupulous majority with an unscrupulous Government, it does not matter what you have in the various Acts—they will be beaten, too.

Professor O'Brien

As Senator Hayes referred to what I said, I wish to make my position clear. I tried to make it clear that no Irish Government since the Treaty had abused its powers in relation to the dismissal of civil servants or would in my opinion have done so. I made that clear. What I did say is that the section as it stands gives arbitrary powers to the Government. I entirely agree with what Senator Hayes has said, that the powers have not been abused since this State was set up. No one would suggest for a moment that the present Government or the present head of the Civil Service would act improperly in this matter. Let us be quite clear about that.

It is my experience of life that if arbitrary powers are given to anybody, they are liable to be invoked quite unexpectedly. I do not withdraw the word "arbitrary". The powers in this are arbitrary, in the sense that they can be exercised without any reason given without any explanation, without any adjudication. They are arbitrary powers. They have not been abused since the Treaty. They are not being abused now. They will not be abused, as far as I can see, by any Government that is likely to come in the near future. As I said, speaking as a lawyer, if arbitrary powers are conferred on anybody, they can be used and can be abused and it is our duty as legislators to protect future generations against future Governments.

Mr. Kissane

On the Second Reading, I took some exception to this section because it seemed to me, like Senators who have spoken, that there is something too authoritarian about the wording of the section. At the same time, I doubt if I would be inclined to agree that the amendment put down by Senator Murphy would entirely meet the position. As Senator Hayes has stated, there have not been any abuses of the kind envisaged by the proposer of the amendment or by anybody who supported it. It is only as a very last resort that any Government would have recourse to the extreme measure of dismissing a civil servant.

I rather think that a little alteration in the section would meet the objection to a certain extent. If the words "for stated reasons" could be brought in, people outside would be in a position to know whether any injustice had been meted out to the established civil servant in question. Together with the slowness or the hesitation which any Government would have about getting rid of the services of any civil servant, there is also the further safeguard of the searchlight of public opinion and especially the possible inquiry into the whole matter by the Dáil and the Seanad at a subsequent date. In order to meet this situation it would be better if we could have the section redrafted so as to put the onus on the Government of stating the reason why they are getting rid of an established civil servant, if any such occasion ever should arise.

Mr. Crowley

Senator Hayes almost convinced me that there was no necessity for this amendment. I say that deliberately because I think his experience is the experience of everyone here. What strikes me is that, if we are all so easily satisfied, what precisely is the objection to putting it on record? As I know the position, we have as a State recognised the right of citizens to free association. We have, in fact, enacted legislation which would apply at least moral sanctions on private employers to recognise that right as far as their employees are concerned. I submit there is the strongest possible case now for us to write into this Bill, or into some other suitable Bill, the fact that we recognise that right.

The wording of this section is very specific. It says that "Every established civil servant shall hold office at the will and pleasure of the Government." I do not know whether it is a weakness in the Bill, but there are other sections—for instance, Section 7 and one or two others—in which provision is made for the operation of suspension or dismissal by what is called the appropriate authority. As far as I can gather, the appropriate authority would eventually be the Minister in charge of the Department concerned and not the Government. That seems to be entirely at variance with the wording of Section 5 and I submit there is room here for further examination of this and for amendment. In my view, the proper amendment would be that proposed by Senator Murphy.

Dr. Sheehy Skeffington

I should like to support this amendment. It seems a most moderately phrased amendment. It is one I feel sure the Minister would have himself inserted in the Bill if the thought had crossed his mind as he was reading the draft. Obviously it is one of which he must approve the general principle, one to which he could not possibly object and one which he would not find awkward in practice. I should regret it if it were to be rejected simply because it is regarded as slightly embarrassing to have a Bill amended in the Seanad and sent back to the Dáil. This is an excellent amendment, giving a very reasonable protection to every established civil servant about whom, if we do not amend Section 5, we shall appear before the public as content to say that "Every established civil servant shall hold office at the will and pleasure of the Government" full stop. I do not think that is enough. It is in no sense a slur upon an Irish Government to suggest that such an amendment as Senator Murphy has put forward, requiring that a dismissed civil servant should have the right to make representations, either orally or in writing, should be incorporated in this Bill. Nobody could object to such an amendment. I should like the Seanad to ask themselves, in the abstract, if they like, just what kind of Government would be likely to find such a clause awkward? Certainly no Irish Government so far, and certainly no democratic Government. I strongly support this amendment. I hope the Minister will accept it and that the Seanad will pass it.

Mr. Sweetman

I must confess that I think this discussion just a little bit unreal. I think Senator McHugh did bring the debate down to reality when he asked what the existing practice was. The existing practice is, of course, that every civil servant has the right of appeal personally to the Minister, and that practice will be continued under this Bill.

Professor O'Brien

The Minister cannot promise that for future Governments.

Mr. Sweetman

The fact is that, irrespective of what one puts in this Bill, the type of Government which wishes to do away with that practice will be able to ride roughshod over every provision in the Bill. We must be practical about these things. I have had occasion since I became Minister to interview a lower grade civil servant who felt she had a grievance. It was her right to come and put her case personally to me. She did so. I shall not go into the details for obvious reasons—I do not want to identify the officer in question—but she had the right to make representations to me and she was accorded that right. It is commonplace that such is the practice and I believe that that practice will be continued under any future responsible Government. If any Government does not wish to continue that practice, then it will be a Government under which nothing you could put in this Bill would protect a civil servant.

Mr. Murphy

What type of Government would do that?

Mr. Sweetman

We must, I suppose, be allowed to differ in our opinion of the type of Government that would act in that way. Suppose one did insert this amendment, how am I to deal with a civil servant, and this has happened, who has just packed up and vanished without leaving any address? How can I afford him a right under that section? I have personally had to deal with a case in which a civil servant just packed up and vanished. All efforts to trace him have failed. If this amendment were written into this Bill, I would have to afford that civil servant an opportunity. I would have to find him and tell him that he had that opportunity.

The existing practice is a sound practice. I think that amendment No. 3 suggests, in relation to a Minister, a principle that Senator Murphy did not really mean. As I understand it, the Senator means that a Minister shall be bound under Statute to say to his colleagues in Government that he has had representations in respect of this established civil servant. Surely that implies that the Minister would not bring to the Government the appropriate knowledge and he would ask his colleagues to decide something without their being in possession of all the facts? I do not suggest that would happen. I am not prepared to suggest that would happen to any Minister in any Government which I could comtemplate with equanimity as being an Irish Government.

I think that if you want to protect civil servants, you are in fact giving them greater protection by a wide practice than you are under a specified amendment. If that specified amendment were there and I were operating under it, my instinctive reaction would be, not to take the wide practice, but to act within the exact terms of the statutory section. I think that would be the reaction of all of us.

Senator Crowley mentioned another point. In Section 5, we were earlier dealing with the question of the office of a civil servant being held at the will and pleasure of the Government. It is only with the established civil servants we were dealing and it is only in the case of the unestablished civil servants that the appropriate authority comes in in regard to the determination of office.

Dr. McHugh

Earlier I asked for information as to whether there was any mechanism to enable civil servants to appeal either directly or through staff representatives. On the case put up by the Minister, I am now convinced the amendment is necessary, because I think, although the practice of appeal seems to have been a very good one and very generally observed by such people as the Minister himself, there is no guarantee, as Professor O'Brien points out, that some future Minister will not refuse to hear a civil servant on such a matter. Then, the civil servant will have no redress and no mechanism for dealing with it, or for publication——

Mr. Sweetman

Surely it is living in a vacuum to think it would not be published?

Dr. McHugh

I do not think it would.

Mr. Sweetman

Do you not think there would be questions in the Dáil about it? I do.

Dr. McHugh

Yes, but the answer would be made that the Minister is not bound to hear the civil servant——

Mr. Sweetman

But that would be publication, and it was merely to publication that I adverted.

Dr. McHugh

If there was a right inserted in the Bill in accordance with the terms of Senator Murphy's amendment, everybody would know where he stood and the atmosphere would probably be better all round. After all, what drawback is there in inserting it?

Dr. Sheehy Skeffington

I understood when I spoke before that we were considering only amendment No. 2. I would feel considerably less strongly about amendment No. 3 and I think the case the Minister made in relation to Section 3 is a sound one. I do not feel that anything much is really added to the protection of a civil servant by amendment No. 3, but amendment No. 2 is emphatically a useful thing, and I am not convinced, I am afraid, by the Minister's suggestion that if there was such a Government as would not grant the unwritten right, then that Government would also ride roughshod over such a piece of legislation. I think you might as well say there is no need for the clauses of the Constitution which protect our rights as citizens because, if a certain Government proposed to neglect observance of those rights in practice, it would tear up the Constitution.

I think it is a very curious attitude of mind to say that the unwritten law has always been this and for that reason you do not want it to be written. If this amendment were a very intricately-worded one, or if it gave rise to very complicated mechanism, I think the Minister would be right to say: "I do not want to be tied by it." All it says, in effect, is that an established civil servant shall not be removed from office without being afforded an opportunity of making to the appropriate authority any representations, either orally or in writing, which he may wish to offer.

I must say I have not heard anything from the Minister which would show me that acceptance of this amendment would make it awkward for any Minister or any Government. Therefore, I should like to see it being pressed and accepted.

Mr. Murphy

It seems to me that we were not speaking about amendments on certain occasions, but it is a pity that the amendments have not been closely read because I think if they were, there would be no objection from any side of the House to their acceptance. It seems to me that Senator Hayes, even though speaking against the amendments, made the best case for them, because he said, I think—I am sorry I cannot find my note——

Professor Hayes

Trust your memory.

Mr. Murphy

Yes; he said that the cases were very few in number and that no Government liked to sack any civil servant. I think this is making provision for the few exceptional cases and if no Government would like to sack any established civil servant, what is the objection to hearing any representations that he may wish to make or that may be made on his behalf? I cannot see any objection to these amendments. It is all right for the Minister to talk about rights and practice. I think he made it clear to us, however, that there is no right; there may be a practice, and I accept there is a practice, and I am quite confident that the Minister, or any possible successor, would not interfere with that practice, but if he accepts that this is a good practice, what is his objection to embodying this in legislation?

Let us look at the amendment again. It simply provides—it, does not challenge the Government to take the responsibility in the matter—that not-withstanding that right of the Government, the individual shall be given the right or the opportunity of making representations to the appropriate authority and the appropriate authority would, in most cases, be the civil servant's own Minister and his own Department who would probably have the best knowledge of the individual concerned. No. 3 amendment is necessary in order that the Minister would transmit those representations to the Government, as it is the Government who determine the tenure of office of the civil servant.

Some Senators have, in effect, said that the amendments do not please them because they do not go far enough. I can understand their point of view. In my opinion, and in the opinion of many Senators who have spoken, these are very moderate amendments indeed, and I would ask the Minister seriously to consider them again. If they are not acceptable to him in the form in which they are drawn up, I hope he will not find himself against the acceptance of them in principle.

I think that in the Dáil—I have not the volume with me now—the impression was given when discussing this section, that it was simply a re-enactment of some clause in the 1924 Act; in other words that the Oireachtas had already accepted this principle and it was simply being re-enacted in this current measure. I have looked in the 1924 Act and, while I may be wrong, I cannot find that clause there. It may be general practice; it may be in regulation form since, but now, for the first time in my opinion, it is being written into legislation. If it is being written into legislation, what is the objection to giving the individual the right to make representations? It may be all right for the Minister to say that, in practice, an individual would be given every facility; that the Government would be very slow indeed to dismiss established civil servants and that the cases may be very few and far between. In my opinion, all these are good arguments for the acceptance of these amendments. Really, I would implore the Minister to look at the amendments. I do not think he has given them proper consideration. Certainly he has not given to the Seanad good arguments in opposition to the amendments.

The Minister said there were no rights and spoke about good practice. I accept that he will not interfere with that practice. The passage of this Bill unamended will not mean any change in the good existing practice but we are dealing with legislation. For the first time we are writing this into an Act of the Oireachtas which will be in operation for decades. The Minister may be gone and we do not know what future Minister for Finance we may be cursed with. I think it right that we in the Seanad and the Minister, being in agreement with the present good practice, should have these amendments written into the legislation.

That will not burden him in the least. It will not prove any embarrassment to him in dealing with discipline within the Civil Service. I hope that in view of the wide support from all sides of the House for these amendments the Minister will either accept them, or, if he cannot accept them in the form in which they are tabled, reconsider the matter between now and Report Stage.

Professor Hayes

I should like to put this point to Senator Murphy. What he is endeavouring to do is to write into an Act of Parliament the position with regard to established civil servants. The practice which has obtained heretofore has been recognised by different Governments of different complexions as being better for civil servants than this amendment and that, in fact, it is better for established civil servants than almost any kind of amendment we could devise.

For example, I think Senator Kissane suggested that reasons should be stated so that outsiders would know. If Senator Kissane gives that more consideration he will, I think, agree with me that it is bad enough for a civil servant to be dismissed, but it would be very much worse if the reasons for his dismissal had to be stated in Iris Oifigiúil or some other public place. I think that would be very much worse for the individual concerned.

I myself have interviewed people whom it was proposed to dismiss, but there are very considerable delays of various kinds. I think the practice is much better than anything you can write in by way of legislation. Senator Kissane suggested that outsiders would know when justice was done. I do not think they would. If you say that so-and-so was dismissed for a particular reason that would not enable outsiders to judge themselves or to say whether the matter was just or unjust. I think very elaborate precautions are taken at present to see that no injustice is done. As a person with experience of civil servants and the work they do and as one who has been appealed to by people in danger of dismissal, I suggest in all seriousness that, as a general rule, such precautions are now taken as it would not be possible to write in in any kind of amendment.

In fact, it is much better to let practice develop and continue than to endeavour to put it into words. With all respect to my colleague, Senator O'Brien, I think that neither his experience nor mine for the past 34 years has enabled us to say that arbitrary power was exercised in the ordinary way. If that is the case for that period, we ought to let it continue longer. As soon as a Government wants to act arbitrarily, I do not think that a mere amendment of this Bill will hold them back.

Senator Murphy will find that the reason why this section was not in the 1924 Act is a political one. The Crown was still there in 1924. It is not there now. That is the reason for Section 5 as it stands. It is quite simple. The power was exercised all the time by the Government. There is no use saying to a Minister that he must carry certain representations to the Government. I think the civil servant is better safeguarded under the present practice than he would be under this amendment or, indeed, under any amendment which the parliamentary draftsman could frame. If a Minister for Finance were to say suddenly that he had determined to dismiss a particular man, that he would not hear his representations, his staff representations or anybody, surely there would be terrific publicity about that?

Dr. McHugh

Is there not a large amount of legislation concerned simply with recognising and confirming existing right practice?

Mr. Kissane

I fear that Senator Hayes has misinterpreted my conception of stated reason.

Professor Hayes

I am very sorry.

Mr. Kissane

What I mean is that the aggrieved person himself should be given the reason for his dismissal because, as the section stands at present, nothing at all need be said to the individual. He could be dismissed right away without any reason being given. If he got the reason he would then have the basis upon which he could ventilate his grievance.

Professor Hayes

I thought the Senator meant that it should be stated publicly.

Professor O'Brien

I do not wish to enter into the merits of this matter any more because they have been fully discussed. From the Constitutional point of view, it seems to me that this debate has taken a somewhat dangerous direction. The attitude of the Minister and the Leader of the House may be summarised as follows. First of all, because people have not had legal rights in the past, owing to the benevolent practice of Governments in the past, they should not have them now. Secondly, if they are given rights in a statute now, a future Government may repeal that statute. That seems to me to undermine the whole basis of legislation. If the fact that future Governments may change the law is a reason for never giving anybody civil rights, all the discussion about Restrictive Trade Practices Acts, the Statute of Limitations, Married Women's Property Acts, is futile because we will be told that any Government which wants to change this can change it. In fact, we are only wasting our time.

Professor Hayes

I did not say a word about amending legislation by another Government.

Mr. Sweetman

There seems to be a certain amount of weaving round these points, but there is one point I made which has not been met. It is, I think, a point that Senator Murphy should have met. Suppose an officer of the Department of Finance decides that he does not want to work any more, that he packs up, goes away and does not turn in in the morning or does not turn in for the next month; suppose he vanishes and leaves his home. On the amendment I could not dismiss him because I must afford him an opportunity of making a case. How can I afford him an opportunity of making his case if I do not know where he is?

Dr. McHugh

Give him a time limit.

Mr. Sweetman

How could I give him a time limit? The essence of writing into a statute a provision of that sort is that you have the person concerned ready to hand for the purpose. Inevitably you would get cases where that would not be the position. Frankly, I do not know any form of words which I could produce that would meet the case that might be made in respect of the person who was ready to hand and the case of the person who was not available. I do not know any form of words that could do. Certainly, Senator Murphy's form of words will not meet the case in question.

Senator Hayes is perfectly correct when he says, in answer to Senator Murphy, that the reason Section 5 comes in now is that this is one of the reasons for this Bill. As I indicated in the Dáil, the reason for this Bill is to put on an Irish basis the regulation of the Civil Service and not to have it merely being run on the basis of the old residual powers and functions that vested in the Crown, prior to our being established ourselves. That is why this is coming in now. There is nothing sinister whatever in my mind or in the mind of anybody else in embodying Section 5, except purely that we wish to rely on an Irish base instead of on the old base carried forward from earlier times.

I do not honestly see how you can get a suitable form of words that would cover the difficulties that will arise in practice, and, at the same time, give the protection that Senator Murphy has in mind. Again, it is an established practice that, where a Minister in either House of the Oireachtas indicates officially that he is going to carry out a certain line, that line is accepted by his successor regardless of political Parties. My view is quite clear for the reason, as I say, that this amendment proposed by Senator Murphy is not a practical one in its existing form. I do not think it is possible to provide one that is practical, but, if he or anybody else produces one on Report Stage, I will consider it. I do not consider myself fit to provide one that would do what people have in mind.

Mr. Murphy

We have now reached the point of whether or not these amendments are practical. Personally, I do not agree with the Minister's interpretation about an opportunity of making representations. I do not see any great difficulty in that. However, if he would like to have the matter examined by his parliamentary draftsman between now and the Report Stage——

Mr. Sweetman

I have already done that. I do not come to this House, I hope, with that insult to the Senator or to any other Senators. I always get the amendments carefully examined before I come.

Mr. Murphy

Between now and Report Stage, I shall examine the point myself. Would it be in order to withdraw these amendments with a view to examining them? Could I bring forward the appropriate amendments on the Report Stage?

An Leas-Chathaoirleach

If the House is agreeable.

Mr. Murphy

It might be met by another sub-section to Section 5 to clarify that particular point.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach

Amendment No. 3 is cognate.

Amendment No. 3 not moved.

Question proposed: "That Section 5 stand part of the Bill."

Professor Stanford

May I suggest it might be improved by an amendment similar to Senator Murphy's amendment, with the substitution for the words "without being afforded", of something of this kind: "Without being offered by registered post to his official address". I submit it simply as a possibility.

Question put and agreed to.

Section 6 agreed to.

SECTION 7.

Question proposed: "That Section 7 stand part of the Bill."

Mr. Murphy

I think I asked on the Second Stage why it is necessary to provide that a civil servant who has been serving a probationary period in a higher post may be restored not simply to his former grade but to a lower grade. You will find that mentioned at the end of page 5—7 (b) (ii).

Mr. Sweetman

The reason is that there might not be a vacancy in the grade to which he belonged before. If there was not such a vacancy, it might be desirable to offer him an opportunity of getting in at a lower grade.

Mr. Murphy

But will he retain his former salary?

Mr. Sweetman

If there is not a vacancy, we cannot take him in at all.

Mr. Murphy

But, in effect, he would not be occupying a higher post. He would still be graded at the lower grade I take it, however, that the Minister can, I hope, give me this assurance—that the regular practice would be that the man or woman would revert to the former grade rather than be reduced in grade because of not serving a probation to the satisfaction of the appropriate authority.

Mr. Sweetman

If there is a vacancy in his old grade, then obviously he would automatically be put back into it. If there is no vacancy in his own grade, we have the alternative of either putting him out or putting him in a lower grade where there is a vacancy. It is to try to ease things for him where there is no vacancy in his own grade that the provision is included.

Mr. Murphy

Sub-paragraph (a) of the section provides that the appropriate authority shall, notwithstanding Section 5, terminate the services of a civil servant, unless, immediately prior to his appointment to his probationary position, he held another position in the Civil Service. I understand that the former position was that it was the Government who would dismiss the civil servant who had been serving the probationary period and who was not regarded as satisfactory. There may be good reasons for the change, but now it is changed to "appropriate authority" which would, as you see, be the Minister.

Professor Hayes

He is not a civil servant at all when he is on probation. He is not established.

Mr. Murphy

This would apply to young people coming into the Service or less young people coming from the universities and serving on probation. I understand that the present practice is that, if they are not regarded as satisfactory, it is the Government who terminate their employment. That is now being changed to "appropriate authority". I wonder if there is a reason for this change in the existing practice. I am sure the practice at the moment is good, as the Minister said previously and I wonder is there any need for this change. It has not been referred to.

Mr. Sweetman

The practice was that the Minister would always deal with the matter. Then there began to be some doubt as to whether that practice was covered by the legal authority there and in order to remove the matter beyond doubt—pending the introduction of this Bill which has been on the stocks for a considerable time—the matter was brought to the Government. The effect of paragraph (a) of this Bill is to go back to the initial practice before the doubt arose.

Question put and agreed to.

SECTION 8.

Question proposed: "That Section 8 stand part of the Bill."

Mr. Murphy

This section provides that a civil servant may be retired by the appropriate authority before he reaches the normal retirement age. I have experience of such provisions in various superannuation funds, but it is usual that the right is also exercisable by the employee. In other words, if the employer has the right to retire the employee before the normal retirement age, usually five years prior to the normal retirement age, the employee has an equal right of retiring himself five years before the normal retirement age. I wonder if the civil servant has the right also to retire at 55 or 60, as the case may be?

Mr. Sweetman

Yes, he has, at 60.

Mr. Murphy

Apart from grounds of ill health?

Mr. Sweetman

Yes, he has that right.

Question put and agreed to.

SECTION 9.

Question proposed: "That Section 9 stand part of the Bill."

Mr. Murphy

Sub-paragraph (iv) of (c) of sub-section (2) refers to a fee. In my experience of such medical examinations, it is unusual to fix a fee. A civil servant could in this case be told he was being retired on medical grounds and he would have the right to appeal to a medical referee appointed by the Minister; but in the first instance he must send in with his application, a fee to be fixed by the Minister. I suppose there might be some grounds for fixing a fee to prevent or discourage mischievous applications, but such applications would, I think, be few and far between. I think it is not asking for too much that the civil servants should have the right of appealing to this medical referee without being obliged to send in any fee, a fee which, I think, later on may be confiscated. I do not think it is returnable.

Professor Hayes

You may be sure it is not. Nobody will ever see it again.

Mr. Sweetman

I could not possibly accept that.

Mr. Murphy

I do not really see the necessity for fixing a fee, but if the Minister thinks it is necessary, then I would ask him to see that it is not fixed at an unreasonably high level.

Mr. Sweetman

The Senator may be sure it will not be fixed at an unreasonably high level. Before any question is referred to the medical referee, the chief medical officer of the Civil Service has found that, in his opinion, the civil servant cannot be retained on the grounds of ill health. If the medical referee overrules the chief medical officer, then the fee is returned. It is not like any other case where we have an appeal. All of us who have to deal with things like this know that, if there is not a deterrent on appeals, appeals would be thrown in in every case. I know if I was fortunate enough, that is, from my own point of view, in being back in the situation of being able to advise people, clients who were not successful in the District Court, to appeal in the Circuit Court, if they were to lose nothing, I would do so. The nature of an appeal is that one takes a chance, if you like to term it that, as to whether the decision of the person to whom one will appeal will override the former decision. In this case, the Senator can be assured that the amount that is involved for civil servants is very small compared with the very big benefit they would get.

Question put and agreed to.

NEW SECTION.

Mr. Sweetman

Would the Senator agree to discuss his amendment and Section 10, which he opposes, together, as I think they are the same?

Dr. Sheehy Skeffington

Yes. I move amendment No. 4:—

Before Section 10, to insert a new section as follows:—

(1) A woman civil servant shall have the right to retire on marriage.

(2) Any woman civil servant who shall have retired on marriage under this section shall have the right to re-enter the service under the same conditions as are prescribed for widows under Section 11.

The present Section 10 provides, with some exceptions not very clearly defined, for unestablished civil servants, that women civil servants are required compulsorily to retire on marriage, and that is the principle to which I have taken exception; and for that reason I have put down these amendments. I do not want to quote all the Articles of the Constitution which I quoted on the previous stage, but in Article 40 we are told that "All citizens shall, as human persons, be held equal before the law." I notice with approval that the Minister for Justice in the Dáil the other day said—I am quoting from Volume 160 of the Official Report, No. 6, column 832—when introducing the Married Women's Status Bill, which will soon come before us:—

"The object of the Bill is to put married women in the same legal position as single women and men. In other words, it means to get rid once and for all of the disabilities under which married women at present suffer."

I notice that the Attorney-General, later in the Second Stage, quoted that paragraph with approval, when justifying the Government's motives in introducing that Bill. I suggest there is something unreal in asking that "all the disabilities from which married women suffer" shall be "got rid of once and for all" by an Act which is going through Dáil Eireann, while at the same time an Act which is going through the Seanad places married women under the necessity of retiring from the Civil Service upon marriage whether they like it or not. I would propose that she get the right to do so; but for the State to intervene and say: "She shall" seems to me to be placing her under a legal disability, and discriminating against the married woman, as opposed to other citizens, who are supposed to be "equal" in legal status before the law.

I notice, again, that the other day our delegate to the United Nations Social, Humanitarian and Cultural Committee rightly pointed out that on many points the status of Irish married women is better than that obtaining in other countries. The delegate was dealing specifically with the question of nationality rights after marriage, and in general she summed up the position by saying that "in Ireland the position of women is particularly favourable". In many cases that is true, but here is a piece of legislation in which we are giving continuance to a bad concept that has held sway too long in this country, that women shall be forced to retire from their positions on marriage if they are in State employment—because many married women do now in fact retain their posts in various enterprises, academic posts, and so on, which are not under State control.

It is just, as our Constitution says, that married women should not be forced "by economic necessity"—and that is the phrase in the Constitution —to work after marriage. That she shall not be forced by economic necessity—that is a good concept, even though in practice we may not always be able to ensure that it be enforced. I would suggest, however, that a married woman should have the right to decide for herself whether she will continue in employment or not, and that it should not be for the State to interfere so much in her private life as to say she shall not work in State employment after marriage.

Under Section 11 of this same Bill, we do allow a widow who was previously a civil servant under certain conditions to go back into the Service after the death of her husband. Some married women might like to retire from their posts for a period of years and perhaps to resume work, just as a widow is allowed to resume work in the Service, after her children are grown up, or perhaps at school, or possibly, in the case of a childless marriage, to go back to work at an earlier date. It is unwarranted interference with the life of the married woman, however, for the State to lay it down that she shall not work in State employment after she has married.

I believe that she, and not we, should have the right to decide. I should like the Minister if he is not accepting my amendment, if he is defending the older concept which is enshrined in the draft Bill before us, to say why the married woman should continue to be deprived of the right to make a choice for herself, as to whether she will continue in State employment or not after marriage.

On the Second Stage I stressed the loss to the country of much talent, skill, and service by this automatic dismissal on marriage of women teachers, Civil Service lawyers, doctors, dentists and so on. That is a very real loss especially in a country where we simply have not got enough qualified teachers for instance; yet we commit the extravagance of dismissing married women teachers who might be, perhaps, the best kind of teachers, dismissing them arbitrarily on marriage whether they want to go or not. My amendment does not say that they shall remain at work on marriage. It gives them to right to retire on marriage if they want to. My amendment expresses what ought to be the simple right of all citizens, of all human beings, to make decisions in their own personal lives for themselves, and not to have them imposed upon them by the State. We hear a lot in this country about "State interference" in family life, State interference in this and that. Here we have a case where we have an opportunity of removing a kind of State interference in the life of married women citizens, who, in my contention, ought to be treated in exactly the same manner as other citizens.

Mrs. Dowdall

I disagree thoroughly with Senator Sheehy Skeffington and feel that these two new sub-sections are quite unnecessary. He said that a woman had the right to choose for herself. When she marries she is making the biggest decision of her life. I would ask the Senator does he think that women in the Civil Service are super-human, that they can run a home and family successfully and also run a position in the Civil Service? If that is so, I would say there must be something in the opinion held by some of the public that jobs in the Civil Service are sinecures and that civil servants sit around all day making tea.

Most women in this country, thank God, are just ordinary and average. I would say they are unable to hold down two positions and I would further say that the important position is that of wife, mother and housekeeper. It may be said that we are losing freedom in this matter. The Senator suggested that in this respect we were back in the 15th, 16th and 17th centuries by adhering to this principle, but by acting along the lines of sub-sections such as these, we women would be back in the stage where the men sat at home and the women went out and earned their living or we would be in the position of women in the countries where women are free to work in the mines, free to work as navvies on the quay side and free to drive trains and be railway porters. That is not the kind of freedom I, as a woman, hope for for myself and my countrywomen.

These two sub-sections are quite unnecessary. The first one is the thin end of the wedge to allow women to remain at work after marriage. The only women who will remain and use this section if it becomes law, are, if I may say so, the greedy ones who want to have this extra money, who are not affected so much by the cost of living as the rate of living. Most of the women whom I have consulted on this matter are thoroughly against the inclusion of these sub-sections.

Some of the women I have consulted about it could be said, through their intelligence and education, to be the type who might rise to the highest ranks in the Civil Service and they thoroughly disapprove. There are higher authorities than those quoted by the Senator, to whom people like myself give allegiance, who say women cannot successfully run their homes and their families and hold positions such as are suggested by the Senator.

Professor Stanford

As a matter of principle I should like to support Senator Sheehy Skeffington on this matter. As he points out, it really may be against the Constitution to impose a legal disability on women. Senator Mrs. Dowdall's intervention makes me a little uneasy. May I say to her that if we adopt the suggestion made by Senator Sheehy Skeffington we are not interfering in any way with the liberty of women; we are simply removing a legal disability? Senator Mrs. Dowdall and the many women whom she has consulted will be perfectly free under the improved Bill as Senator Sheehy Skeffington sees it. I really do think he is right in that case.

I think that in this respect our legislation is lagging behind what we might call a measure of civilisation in this matter. We are not taking account of a very clear social change. I think we are being old-fashioned and I agree with Senator Sheehy Skeffington when he says that we are losing talent and ability by imposing this legal restriction on married women. I certainly support him and I hope other members of the House will consider supporting him. I trust they will think of the suggestion I have made that in State legislation we must consider the change in society which faces us in relation to married women.

Mr. Sweetman

I am not going to discuss the merits of the problem that is posed by this amendment. I take the view that in relation to this Bill only two things arise. The first is whether the section is constitutional. I am advised categorically by the Attorney-General that it is. The second question that arises in relation to this Bill is that there is an established practice. If that practice is to be changed in relation to married women, I think it should be changed as part of a much more general picture than that which faces us here in relation to the duties of wives in the home and the right of married women to work.

All those are things which should be considered as part of the general picture and should not be considered merely as a by-wind on an amendment to the Civil Service Regulation Bill. In relation to this Bill, I felt my duty was not to consider that general picture but merely to carry on the existing practice until that picture was changed on a decision of far greater general application than this. If I were to adopt the Senator's amendment, I would be making the Civil Service Regulation Bill the leader for a change through a general discussion here without having the general picture considered. I do not think it is proper that I should.

Dr. Sheehy Skeffington

I should like just to refer to one or two points made by Senator Mrs. Dowdall whose views I respect very much, but whose opinions I do not share. I feel that she was saying that, because there are many women whom it would not suit to remain in a Civil Service position after marriage, we must forcibly prevent all women from so remaining. That is the issue. I am not suggesting that women must be forced to remain in employment. I suggest that Senator Mrs. Dowdall seemed to argue as if I were trying to keep married women in their posts whether they liked it or not.

On the contrary, the Bill as it stands is trying to put the married woman out of her position whether she likes it or not. All I am asking is that she be allowed to choose whether or not she would remain in employment in the Civil Service. Senator Mrs. Dowdall would like some authoritative ruling on this, so as to prevent all married women from continuing in employment in the Civil Service. That does not seem to me to be an attractive doctrine. My question is whether the State Parliament is to decide whether women may remain in employment after marriage. My purpose in the amendment was to leave the choice to the individual "human person", in the phrase of our Constitution.

I think it was rather unfair of Senator Mrs. Dowdall to suggest that this is just a first step towards putting women down into the mines, driving trains and so on. I recognise that there are some types of posts which women would find unattractive, and for which they might not be fitted, but I do notice that in this country, where we sometimes talk rather lightheartedly about the inadequate strength of women, we are quite prepared to allow them to scrub the floors of Civil Service offices. We do not say: "This is men's work. It is too difficult for women, it is too base and degrading and menial a task." We allow them to scrub the floors.

I cannot help remembering that, under the terms of Senator Mrs. Dowdall's contention, and of those enshrined in the Bill as it is, such women as Madame Markievicz would have been excluded from active service in the Citizen Army in the College of Surgeons, and later on in the heroic struggle for our national freedom, in which not only married women but single women participated and took full active parts. I cite her only because she was a married woman and because she took a very full part in active service and carried a gun. Perhaps we have gone back a little since those days; perhaps we would now say she was very "unlady-like", but I am emphatically not one of those who would say that. There are, and have always been, many married Irishwomen prepared to choose to play a full part in whatever activity attracts them in public life, whether it be a simple one, or a dangerous and heroic one.

I will suggest that those who would hesitate to accept this amendment are really afraid the married women in employment in the Civil Service would agree with me, because if, as is apparently sustained by Senator Mrs. Dowdall, Irishwomen do not take this view at all, then it is quite obvious that all of them will avail of the right granted in my section, and leave the Civil Service on marriage. However, they will be doing so from free choice, and the merit will be theirs and not that of the State, as exemplified by the clause if we pass it unamended.

I suggest it is, in fact, because some are afraid that in reality the married women civil servants might, on the contrary, in some numbers agree with me, that State power is invoked to prevent their having any freedom of choice in the matter. The Minister has said that he feels this Bill is not one in which he can make this kind of change because it is such a significant change. He says it is only one detail in "a general picture". This Bill is concerned with Civil Service regulations; it is not concerned with the general picture of the whole State. The suggestion is that, because we cannot in a single Bill change the whole picture, therefore we should do nothing.

I believe, in fact, that if the Minister looks about him he will find that the general picture has been changing right along, and that there are many professions, including his own, in which he will find married women playing their part to-day where 20 or 30 years ago they did not. The general picture has already been changing, in fact, and I think that a Bill framed to modify Civil Service regulations is the very place where we can best make this change in relation to Civil Service practice.

As the State has the direction of civil servants, we can effect in this Bill a change in the Civil Service, and the general picture will look after itself. I notice that, in replying to me, the Minister did not advert to the quotation of his colleague, the Minister for Justice, in relation to the Married Women's Status Bill and to the hope of that colleague that we would "get rid once and for all of all the disabilities under which married women at present suffer." I feel that perhaps the Minister for Justice did not mean that. On the other hand, I hope that he did. But the Minister has not adverted to that.

Amendment put and declared lost.

Dr. Sheehy Skeffington

Division.

An Leas-Chathaoirleach

Will the Senators desiring a division please stand?

Dr. Sheehy Skeffington and Professor Stanford rose.

An Leas-Chathaoirleach

The names of the dissenting Senators will be recorded in the Official Report.

Section 10 agreed to.

Business suspended at 6 p.m. and resumed at 7 p.m.

SECTION 11.

Question proposed: "That Section 11 stand part of the Bill."

Mr. Murphy

This section makes provision for the readmission of widows, who were formerly in the Civil Service. There are some little matters about which I am in doubt. It is provided that the widow may be required to work a trial period. I can quite appreciate that, in the case of widows who have been out of the service for a considerable length of time, that requirement is prudent, in order to see if the person concerned is able to continue in the service and to take up a permanent post again but I would hope that the Minister could tell us that it would not be his intention that it would be a regular provision that widows returning to the Civil Service would generally be required to serve a trial period. In my opinion that should not be the general rule but should be required only in exceptional cases.

It is also provided that the widow may be required to serve that trial period in a grade or rank lower than her original position. I said on Second Reading—and I am serious about this —that a widow who is being readmitted may have been an executive officer and if she were obliged to serve the trial period on readmission as a temporary clerical assistant she might be quite hopeless in that position whereas she might be quite a good executive officer. I do not know if the grades I mention are the appropriate grades but the idea I have in mind is that persons who have filled higher posts quite capably may be quite incompetent in lower posts and posts requiring less responsibility. I would hope that, here again, it would be the general practice that, as far as possible, a readmitted widow would be placed in her original grade, that it would not be the regular practice to place her in a lower grade or the lowest grade and give her a trial period in that grade.

I made the point on Second Reading that to place her in a lower grade would be rather unfair. In most cases the widow would return to the service in order to earn enough to rear a young family and, as, say, a temporary clerical assistant, on the rate appropriate to single persons, she would earn barely enough to keep herself and her salary would be quite inadequate to maintain a home and a young family. I would hope that, as a general practice, widows returning to the Service would, as far as possible, be placed in their original grades.

Provision is made in the section that if a widow is put into a lower grade than her original grade she will be eligible for promotion to a higher grade, but I think most promotion in the Civil Service is on a competitive basis and it would be rather unfair that a widow should have to compete for a higher post in order to get back to the post she vacated on marriage. Such a widow would not have a fair chance in such competition because competitive examinations, especially written examinations, can be very onerous in the case of persons who finished school years ago. I would hope, therefore, that the Minister could assure us that the general practice would be, as far as possible, that a widow would be reinstated in her original grade. As far as possible also, the Minister should say that it would be the general practice that she should not have to undergo a further trial period.

Mr. Kissane

Senator Murphy is concerned about the position of the widow who comes back to the Civil Service, and that is only natural. As he says, it would be rather hard on such a person to find herself in a lower grade than that which she had occupied previously. I thought I understood the Minister to say that, as far as possible, such a person would be restored to the grade she held originally. These are the words he used, I think, and these are the words that, I think, have been repeated by Senator Murphy himself.

As regards possible promotion, there is a point there that should get the consideration of the Minister. The equitable way of dealing with the question of promotion for a readmitted widow would be that, as soon as a vacancy would occur in the branch in which she had been working before she retired, she would be chosen automatically to fill that vacancy and thereby restored to her original grade as soon as possible. If the Minister gives us that assurance, he will go a long way towards meeting the point made by Senator Murphy.

Mr. Sweetman

It has been the normal practice that a widow would come back to the grade in which she was classed before retirement. That would certainly be the normal practice. One of the things that must be remembered however is that if she were a typist, for example, and if she had not typed for a long time, she might have lost her manipulative skill. That is one of the cases we have in mind in relation to the probationary period. If she were out only for a short time, we do not and should not consider a probationary period necessary.

In regard to the point raised by Senator Kissane, that would cut across the whole principle of promotion, that the most suitable person for the position should be promoted. If in fact she had not lost her skill in the interval in which she was no longer a civil servant, the probability is extremely great that she would be the most suitable, because of her previous experience; but one could not lay it down as an automatic promotion.

I have been at great pains to ensure, in so far as I can, that the one thing counted in relation to promotion of a civil servant is whether the person concerned is the most suitable; in other words, that I get at any promotion the best man or the best woman for the higher grade concerned. In the normal course, such a widow would qualify, but I do not think we can accept it as an automatic basis.

Mr. Murphy

In spite of Senator Kissane's help, we did not get the point over to the Minister. I was not talking about ordinary promotion: I was talking about a widow who, because of lack of a vacancy in her particular grade, is brought back to the Service in a lower grade. I was saying that, whilst she is waiting there in the lowest grade, the first opportunity should be taken of a vacancy to bring her back into her former grade, provided always that she is capable of filling the position. It would not be a promotion in the ordinary sense. I am making the point that she should not have to go into the ordinary running. She is down in the lower grade simply because there is no vacancy in her former grade. I am saying that the first opportunity should be availed of, when such a vacancy occurs, to put her back into her normal grade.

Mr. Sweetman

I appreciate the Senator's point of view. Perhaps I did not make myself clear. It is probably unfortunate in her case, but the principle must be there that the most suitable person is taken from any grade to a higher grade. I do not think any of us would wish that promotion should be based on anything except merit.

Mr. Kissane

All things being equal.

Mr. Sweetman

All things being equal, I should imagine that she would be the most suitable.

Question put and agreed to.

SECTION 12.

Question proposed: "That Section 12 stand part of the Bill."

Mr. Murphy

Here again we have more or less the same principle, except that it would be a man on this occasion—a man who had been retired on the grounds of ill health and was called back, presumably when he had recovered his health. Here again he may be brought back into a position lower than his former post and here again I would hope that, when a vacancy would occur in his former grade, he would be reinstated there. That is only elementary justice. A man has been retired because of ill health, probably forced to retire on the grounds of ill health. He may recover his health, as sometimes happens. He may then be able to come back into the Service and there may not be a vacancy in the grade from which he was put out. He may be brought into a lower grade. Surely in such a case, as soon as a vacancy occurs in his former grade, he should be put back into it.

Mr. Sweetman

I do not think the Senator appreciates that this section is for the purpose of recalling what was an established civil servant as an unestablished civil servant.

Question put and agreed to.

SECTION 13.

Mr. Murphy

I move amendment No. 5:—

In sub-section (1) (a), line 50, to delete "or" and substitute "and".

This deals with a suspension. As the Seanad knows, I am rather keen that suspension should be looked upon as a very serious thing, something not to be indulged in lightly. It is necessary under previous sections that the power to suspend should be brought down to a particular level. By this amendment, I am trying to make it more difficult—may I admit that?— and more onerous to suspend any civil servant, no matter in what grade he may be.

I do not like that suspension should be done lightly, that it should be done simply as a first reaction to any offence. It should be done only where there is grievous or grave misconduct, or grave irregularity and it appears to the suspending authority that the public interest might be prejudiced by allowing the civil servant to remain on duty. Senators will see that, under the section as it stands at the moment, suspension may take place or be operative under three heads (a), (b) and (c). I am endeavouring to couple (a) and (b) together.

Under paragraph (a) a man may be suspended for something which is regarded as grave misconduct or grave irregularity and, if he is so suspended, one is immediately in effect inflicting punishment right away. One is not suspending in the public interest. One is simply deciding to take punitive action without dealing with the matter through the medium of disciplinary machinery. I am seeking to provide that such suspension for grave misconduct or grave irregularity should only take place if and when it appears to the suspending authority that the public interest might be prejudiced by allowing the officer in question to remain on duty.

Mr. Sweetman

I must ask the House to reject this amendment categorically for two reasons. First of all, this section was discussed at some length in the Dáil and the section is in its present form as a result of amendment in the Dáil after a somewhat lengthy debate on the points at issue. In the ordinary course of events and in the absence of most specific reasons in this House, I am bound to take the view that the section, having been amended in a certain way in the Dáil because of certain arguments there, should not now be re-amended back to its original form in this House.

There is another reason, which is operative, apart from that broader principle. When I introduced the Bill into the Dáil there was no paragraph (b). Neither was there in paragraph (a) the word "grave" before either "misconduct" or "irregularity". I explained to the Dáil, and I shall take this opportunity of explaining to the Seanad, the difficulty which would unquestionably arise if we accepted Senator Murphy's suggestion that (a) and (b) should be linked. Paragraph (a), of course, is in respect of internal knowledge, knowledge within the possession of the suspending authority. Paragraph (c) refers to charges that are made by some extern person to the suspending authority, charges which require investigation.

The best illustration we can take, particularly at this season of the year, is what may happen during the Christmas period. We all know that people have small lapses at Christmas time. Let us consider what might happen in the post office in Naas. Of course, this would never happen anywhere in Kildare, but we will take it for the sake of example. Suppose a postman in Naas comes in suffering somewhat from the Christmas spirit, suffering to such an extent that he is unable to carry out his duties of sorting the mail and prevents others, who have not been celebrating in the same way, from carrying out their duty of sorting the mail, clearly such a person must be suspended from duty. Again, if somebody comes in in such a filthy temper, as Deputy Larkin said in the Dáil, that it would be better for him as well as everybody else working with him not to allow him to carry on in his job for the moment until he has cooled down, then clearly such an officer must be suspended from duty for the time being in order to avoid trouble.

I do not want to be bound to treat the Christmas episode as grave misconduct but, if I adopt Senator Murphy's suggestion, I am immediately so bound. When I was asked to insert the word "grave" in the other House I made it clear that if I were to amend paragraph (a) in such way as to make certain that it covered suspension in respect of misconduct or irregularity, it could only be suspension in respect of grave misconduct or grave irregularity and I must have, as an alternative, the case where the public interest requires suspension. That, of course, is for the benefit of the officer concerned rather than for my benefit as the person in charge of the administration of the Civil Service. That point of view was accepted by the other House and, if one considers it from that point of view, one must appreciate undoubtedly that there will be cases where suspension is not merely in the public interest but essential to the public interest. So long as you have that, and I think we all accept that one must have it, then it is essential in the interests of the officer concerned that one should be enabled to remove him from duty in the public interest without classifying such suspension as being rendered necessary by reason of grave misconduct or serious irregularity, either of which would be a black mark against him for the rest of his career.

Amendment, by leave, withdrawn.

Question proposed: "That Section 13 stand part of the Bill."

Mr. Murphy

The point I wish to raise on the section has been answered to a great extent by the Minister. Paragraph (c) of sub-section (1) says:

"A charge of grave misconduct or grave irregularity is made against the civil servant and it appears to that suspending authority that the charge warrants investigation."

Here, the official would be suspended right away under this sub-section.

Mr. Sweetman

That is not so. This is an enabling power.

Mr. Murphy

It says "may" at the start but I am wondering why it should be necessary to suspend a person because a charge has been made by somebody outside. The charge might be a mischievous one and the official concerned would suffer an injustice right away. A charge might be ill-founded but the official would presumably, without any investigation of the allegations, be suspended immediately. I agree that there must be some such proviso, but I hope equally that the Minister will agree that this power should not be invoked lightly. Simply because a charge is made, suspension should not follow.

Mr. Sweetman

I most certainly agree that suspension should not be invoked lightly but there are cases in which it would be in the officer's own interest that he should be suspended pending investigation.

Question put and agreed to.

SECTION 14.

Mr. Murphy

I move amendment No. 6:—

In sub-section (2) (b), line 19, before "to" to insert "either orally or in writing".

I have already referred on the Second Stage to the purpose underlying this amendment. It is, I think, also reflected in amendment No. 2 which has already been discussed. On amendments Nos. 2 and 3 I asked that provision should be made for an opportunity of hearing the man concerned or for his staff representative to make representations on his behalf. I am asking here that the provision should be extended so that a civil servant who is charged with an offence will be given an opportunity of making a reply in writing or orally and, if he wishes, to be accompanied by his staff representative to speak on his behalf.

I understand that in parts of the Civil Service it is the established practice—this is the case generally in the Post Office—that any person up in a disciplinary case may, if he wishes, be accompanied by a representative of his union or staff association. In other parts of the Civil Service I believe that right, if I may refer to it as a right, is not recognised. The man concerned is not allowed to ask that staff representatives should accompany him to assist in his defence. I hope I can impress on the Minister the fact that any staff association or worthwhile trade union would be most desirous that discipline generally should be high in the Civil Service and that they would like, equally with the Minister or his representatives, to have the people concerned in any offence appreciate the nature of the offence and see that it did not occur again.

I think here we should be more concerned with seeing that conduct is improved for the future rather than with inflicting punishment. I think the Minister will agree that it is, perhaps, a greater economy to the State to ensure that a person who is up on a disciplinary charge should not come away feeling that he has been severely punished and serve the rest of his career with a chip on his shoulder, thus being of very little worth to the State. From my own experience, I find it is best for both sides that the person concerned should appreciate that he has been guilty of some offence and should appreciate that the other side is prepared to forgive him provided he is determined to make a genuine effort to maintain good conduct in future. I have found that such people are improved by the disciplinary machinery, that, in fact, they are far better people afterwards, always provided that they have the opportunity of being heard and have the opportunity of having their staff representatives with them so that they feel they are not being unjustly treated.

I am not attempting to imply that the Minister or his representatives would deal unjustly with anybody but we are dealing with discipline in a very big service indeed and it is proper that when a man is charged with an offence he should have every opportunity of defending himself and of having somebody present who can advance extenuating circumstances. I think the principle here can be accepted by the Minister and that he will agree with me that the staff associations in the Civil Service would help in the maintenance of discipline in the service itself. As I said, in amendments Nos. 2 and 3 the same thing was provided for, and in view of the fact that the Minister did not at that time object or make any reference to the admission of the staff representatives, I trust in these amendments he will be able to accept this principle.

Mr. Crowley

I want to support Senator Murphy's amendment. I would like, in doing so, to try to emphasise one particular aspect of the matter which strikes me. Due to the fact that this section purports to afford the civil servant an opportunity of making representations to the appropriate authority—I shall not comment on the wording of this section but I think it does point a moral—I am anxious to make this point. It occurs to me, from the wording, that the opportunity afforded to the civil servant would be an opportunity of making representations in writing. If that is so, I think it is undesirable, to say the least of it. Not all of us can get things down on record on paper as well as we would wish and I suggest, in the case of a civil servant who is suspended, to require him to commit himself to paper in circumstances in which his mind would be very disturbed would be undesirable to say the least of it. He could hardly be expected to do justice to himself in such circumstances. On that ground, I submit there is a very strong case for the acceptance of the amendment proposed by Senator Murphy and I appeal to the Minister to consider in what way this principle should or could be written into that section of the Bill.

Dr. McHugh

I think the insertion of the words "either orally or in writing" would in fact do some injustice to the civil servant because under the Bill as it stands at present he can make representations both orally and in writing. If you limit him to either one or the other then you limit him; on the other hand, if you force him to do both, you force him. I think it is best left as it is.

Mr. Sweetman

That was exactly the point I was about to make. The situation is that the section as it stands covers either oral or written representations, or both. The word is "representations" and it is not qualified. If you wish to have oral or written representations it can be done under the section as drafted without the insertion in this section of amendment No. 6 or in Section 15 of amendment No. 8.

I gather from Senator Murphy's remarks that we are discussing amendments Nos. 7 and 9 as well as Nos. 6 and 8 because it was really more to amendment No. 7 that he addressed himself. I do not know whether the Senator or Senator Crowley has read the Committee Stage debate on this Bill in the Dáil on 21st November. This matter was discussed at some length in the Dáil following an amendment by Deputy James Larkin. I think I might reiterate to some degree what I then said. One must first of all remember that in considering this question, talking in very rough terms, the 30,000 civil servants involved consist of 20,000 Post Office employees and 10,000 others. I said in the Dáil that in relation to the Post Office employees there has grown up over the years a practice incorporated in what has become known as the Post Office Rule Book.

I made it clear in the other House, and I want to make it clear here, that the Post Office Rule Book which has grown up over the years, in negotiation with the Unions concerned, is not referred to in this Bill. However, as soon as this Bill is passed the acceptance of the existing practice as laid down in the Post Office Rule Book will be confirmed by me by an amendment under Section 17. Bearing that in mind, I said in the other House and should like to repeat it, that I think it is undesirable to implement in legislation specific matters of this kind.

I think the substance is much more important than the form and that it is desirable that we should see exactly what the substance is. I made that clear to the civil servants' organisation and I said so in the Dáil on the 21st November. I have not got the exact reference but it was on the debate on Section 15. I made it clear to the organisation concerned that I would permit them to make representations on behalf of their members in cases where dismissals were involved. I thought we should start on that line and see how it worked out. That referred, of course, to the Post Office employees who comprise about two-thirds of the Civil Service. It is in that section that the most numerous cases of difficulties arise.

I do not think it desirable to write things like this in relation to staff associations and representations into the statute. I think that matter should be dealt with on an extra-statutory basis for reasons that must be obvious to everyone. This is exactly what I said in the other House on the occasion I mentioned:—

"I may say, as part of those arrangements, I propose to provide that an officer, when the point is reached that dismissal would be the penalty, would be notified under sub-section (5) that he has the right to offer any representations he may wish and to add at the time when that notification is sent to him that he may if he so wishes get his staff organisation to make representations on his behalf."

In doing that, I am going substantially further than the existing practice. I think it is a good thing I should do that. However, I think it should be done on an extra-statutory basis so that the associations who have the task, with me and the officials in my Department, of working out the practice, should get the opportunity of doing it without, at this stage, being tied by any legislative enactment.

Mr. Murphy

May I, by leave of the House, withdraw amendment No. 6? In view of what the Minister and Senator McHugh have said I think I had better withdraw that amendment.

Amendment, by leave, withdrawn.

Mr. Murphy

I move amendment No. 7:—

In sub-section (2) (b), line 20, before "may" to insert "or his staff association representative".

I understood the Minister to say that, of the 30,000 civil servants, 20,000 are in the Post Office and that in fact there is provision for disciplinary cases in that section to be dealt with in the way I suggest—that is, that a civil servant so concerned might have his staff representative or his trade union representative with him when his disciplinary case is being dealt with. If that is so, I cannot see why the Minister should object to an extension of the same practice in relation to the remaining 10,000 civil servants. What he has said is that he has agreed to allow the staff associations to make representations in case of dismissal.

However, I would point out that the dismissal would have already been decided upon. At that stage, representations would simply be an appeal for mercy which, of course, is always very desirable. What I was trying to provide was something further than that and which apparently, according to the Minister, applies now to the 20,000 civil servants employed in the Post Office—namely, that if they are up on a disciplinary charge they may be accompanied by their trade union advocate in order to put forward extenuating circumstances or make whatever other case there may be in defence of the official concerned.

I think the Minister will agree that, among the remaining 10,000 civil servants, there must be quite a few thousand who are in low grades and who may not be able to put forward their own defence either orally or in writing and that in justice they should be allowed to bring along their staff representative to help them in putting forward their defence. I hope the Minister will see the point I am making. He has said that for the 20,000 civil servants in the Post Office service adequate provision is apparently already made. Why cannot he extend the same provision to the remaining 10,000?

I do not see any reason why that should not be done. Certainly, there does not seem to be any reason, in view of what the Minister said—that he will make provisions under Section 17 for a continuation of the existing arrangement for the 20,000 employees in the Post Office. Can he not also make similar arrangements for the 10,000? I am inclined to agree with the Minister that it would be better to make such provisions under Section 17 rather than to write them into the legislation, as I suggest, in Section 14. The only method I had of pressing this viewpoint was to put down an amendment to Section 14. I sincerely recommend to the Minister that when he comes to make regulations under Section 17 he will extend to the remaining 10,000 civil servants the provisions now operating in regard to the other 20,000 and apparently regarded as desirable by the Minister. If so, the amendment could be withdrawn.

Mr. Sweetman

I do not want Senator Murphy to put words into my mouth that I did not use. I never said I accepted the existing arrangements in relation to the Post Office as being entirely satisfactory. I said that because they are there I am going to carry them on. The Senator wants me to branch out into a new line. I have indicated that I will go a certain distance but I should like to see how that works out before I go any further.

Mr. Murphy

I am sorry if I put words into the mouth of the Minister. I certainly did not intend to do that. If he says the provisions in the Post Office Rule Book are not quite satisfactory from his end, but he is going to carry them on, in those circumstances, I would ask him to extend the the provisions to the remaining 10,000. The point I am making is that a man on a disciplinary charge should be allowed to have with him a representative of a staff organisation. All through the debate on this amendment, the Minister has not objected to that provision: he objected, I think, to writing it into legislation.

An Cathaoirleach

I understood the Senator to say he was withdrawing this amendment.

Mr. Murphy

No. I said that, if the Minister could give me to understand that when making the regulations under Section 17, he would extend them to the remaining 10,000, this could be withdrawn. The Minister has said he does not contemplate doing that. I should like him then to deal with the point as to whether or not a person on a disciplinary charge should not be allowed to have with him to help and assist him a representative of his organisation. That is generally accepted in industry. As a country, we have subscribed to I.L.O. conventions. They provide for trade union representation. Here, we are talking about Civil Service staff organisations. In this the middle of the 20th century, I think the Minister or his Department should find no difficulty whatever in allowing a man up on a disciplinary charge to have with him, if he so wishes, somebody from his staff organisation to help him.

May I again attempt to make the point I made on the Second Reading? In disciplinary cases, it is not a matter for negotiation. I do not envisage that if the Minister agrees that a staff representative would go in with a man, they would bargain as to the punishment. That is the responsibility of the Minister and his officials. That is not questioned at all. In justice, however, the man should be allowed to take somebody along with him. It may be a low-grade civil servant or it may even be a young girl, frightened out of her wits on the charge and, without anybody intending to do an injustice, there would be an injustice if she were not given the assistance of her organisation. I think that is a fundamental right. I do not see that the Minister could object to such a person bringing with him or her somebody——

An Cathaoirleach

The Senator will recognise that there is a great deal of repetition.

Mr. Murphy

I am sorry if I have repeated my remarks but I hope I have convinced the Minister.

Mr. Sweetman

I should not like Senator Murphy's remarks to go on the record without my adverting to them. The Senator is completely outside the realms of accuracy if he suggests that far more consideration is not given to the civil servant than to the person normally employed outside in industry. We all know that. The general impression outside is that too much leniency is given to the civil servant. I do not subscribe to that view. I think a fair line is taken. However, when Senator Murphy comes to this House and says he wants as fair a crack, if I may put it that way, for the civil servant as is given in industry, he is asking me to accept something that is not the case. I believe the civil servant is given far more chance than the ordinary person engaged outside.

Amendment, by leave, withdrawn.

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

Mr. Murphy

In sub-section (1) of this section, there is a reference to "ordinary remuneration". The sub-section reads:—

"Where a suspending authority terminates the suspension of a civil servant by restoring him to duty and the appropriate authority is satisfied that the civil servant has not been guilty of misconduct or irregularity (including misconduct or irregularity charged against him after suspension), the civil servant shall be paid ordinary remuneration in respect of the period of suspension."

Why the reference to "ordinary remuneration"? Am I to understand that that could be different from the remuneration which the civil servant would have received, if he had not been suspended? Remember, he was suspended and then it was found that he was not guilty of any misconduct and he was reinstated. Does that mean that, in effect, he is fined by being paid only what is termed "ordinary remuneration"? I think that would be an injustice to the civil servant who has been found not guilty. If he suffers some reduction in salary because he was suspended when he should not have been suspended, then he is suffering an injustice. What is meant by the expression "ordinary remuneration"?

Mr. Sweetman

The words "ordinary remuneration" there cover his normal pay. If the word "ordinary" were not inserted there, the position might arise that the other members with him had worked overtime and were being paid for overtime. However, he would not be paid overtime for the overtime he did not work.

Question put and agreed to.

SECTION 15.

Amendments Nos. 8, 9 and 10 not moved.

Question proposed: "That Section 15 stand part of the Bill."

Mr. Murphy

I am struck by the start of this section and I would ask Senators and the Minister to look at it again. Sub-section (1) (a) provides:—

"Where, in the opinion of the appropriate authority, a civil servant has, in relation to his official duties, been guilty of misconduct, irregularity, neglect or unsatisfactory behaviour, but a loss of public moneys or funds has not resulted therefrom, the appropriate authority may, subject to sub-section (5) of this section, do either or both of the following things—

(i) place the civil servant on a lower rate of remuneration,

(ii) reduce the civil servant to a specified lower grade or rank."

There is provision for either or both of two things—that is, if the man has been adjudged guilty. I am sure the Minister would agree that it is possible that the punishment of a man so adjudged might simply be a reprimand.

I think the Minister is tying himself too tightly in this section. In effect he is tying himself to two punishments or a combination of those two and he is leaving himself or the appropriate authority no room whatever to deal with the offences by prescribing some other punishment. I do not know if it is necessary to tie up the appropriate authority so tightly. I wonder has the Minister looked at that particular point? It struck me as being a bit strange that the appropriate authority should be tied up by saying he can do either or both of these things.

Professor Hayes

He need not do either.

Mr. Murphy

If he decides not to do one or the other——

Mr. Sweetman

He can reprimand.

Mr. Murphy

That is the point on Section 15.

Question put and agreed to.

Section 16 agreed to.

SECTION 17.

Dr. Sheehy Skeffington

I move amendment No. 11:—

To add a new sub-section as follows:—

( ) Any statutory instruments embodying such arrangements shall be laid on the Table of both Houses of the Oireachtas.

I do not intend to keep the House very long on this. The amendment is quite self-explanatory. It deals with a point made first by Senator Professor O'Brien on the Second Stage, and he spoke as Chairman of the Statutory Instruments Committee. He made the point that these "arrangements" under Section 17, sub-sections (1), (2) and (3) are important arrangements. They deal with the regulation and control of the Civil Service, with the classification, reclassification, numbers and remuneration of civil servants. They deal also with the fixing of the terms and conditions of service of civil servants and with conditions governing the promotion of civil servants. Under sub-section (2), we give the Minister power to make "such arrangements as he thinks fit". We give him that power, which I think it is legitimate to give, but I think it is also legitimate to ask that any statutory instruments embodying these arrangements shall be laid on the Tables of both Houses of the Oireachtas. I think such a practice is, in fact, already enshrined in many Acts.

Professor O'Brien

I suggest, with great respect, that the Minister's reply on the Second Reading, as reported at column 1207, is an oversimplification of the situation. As I understand it, regulations on these matters have been made for many years and have always been laid on the Table of the Houses in the form of Statutory Rules and Orders.

Mr. Sweetman

If I may interrupt the Senator—never, in the type of thing visualised here.

Professor O'Brien

I speak subject to correction and I have been asked to raise this point. I am speaking on the best information I have that there are two lots of regulations involved in this section and that the first lot are those dealing with the matters mentioned in sub-section (1) and that, until this Bill has been passed, these generally have been in the form of ordinary Statutory Rules and Orders. I have been told that the Minister has made confidential arrangements in correspondence with Departments which have not appeared in public documents and that the effect of this section—I am simply looking for clarification—is greatly to widen this sphere of the arrangements and that now a large number of documents, hitherto published, will be treated as confidential arrangements which will not be published. If I am not correct in my information I will, of course, bow to the Minister but I have been assured by somebody who knows Civil Service practice that this is the case. If that is so I suggest it is a retrograde step to give too much power to the Minister without responsibility to the Oireachtas.

Mr. Sweetman

I think there is some clarification I can give to the House on this matter. Prior to this Bill and to the other Bill, which is also on to-day's Order Paper, the Civil Service Commissioners Bill, the two matters were dealt with under the one Bill. There are, were and will be many regulations that are appropriate to the Civil Service Commissioners Bill that were previously made under the joint Bill. Now they will be made under the other Bill, not under the arrangements that are here. We can deal with those regulations when we come to the other Bill. Similarly there are a great many things dealt with—in my view unsatisfactorily—by regulation in relation to the regulation of the Civil Service. Because they were not dealt with by statute I have dealt with very many of those in this statute and therefore that type of regulation is now statutory and will not be done by regulation in the future.

In addition there are types of confidential circulars issued, confidential instructions issued by my Department to other Departments. Senator O'Brien is correct when he states that those have never been published previously. They could not possibly be published because they are only the internal matters of organisation not suitable for publication. I would suggest to Senator Sheehy Skeffington on his amendment that the fundamental thing in Section 17 is that the arrangements are not statutory instruments. If they were statutory instruments then it would be a different case. They are merely the confidential arrangements by virtue of which authority is delegated throughout other Departments, and things like that. There might be, and I must qualify what I said to Senator Professor O'Brien, a circular of a very general nature which heretofore might have been dealt with by regulation.

I can conceive that perhaps there might be some such circular and our practice in that respect would be to submit such circular to the staff associations which would then publish it in their journals. If I could find a method of dealing solely with that type of circular, I would not mind bringing it to the House but I think it would be impossible to provide a form of words to deal with that type of circular alone. I agree with Senator O'Brien that it would be a retrograde step to cease to publish anything that was hitherto published. I think, however, that consideration of the various things that were published by way of regulation up to this will show that they follow normally under either the other Bill or that they are already so covered in the statutory basis of this Bill. There might be certain cases in relation to general circulars in regard to pay, for example. There one would obviously communicate them to the staff association who would publish them in the staff journal. How exactly one could differentiate between them and what Senator O'Brien has in mind, I am not sure, but I am prepared to look into it.

Mr. Murphy

Under the Civil Service Regulation Act, 1924, the regulations made by the Minister providing for the classification, remuneration and other conditions and terms of service must be laid on the Table.

Mr. Sweetman

The classification comes in under the other Bill.

Mr. Murphy

Yes. Remuneration does not. Remuneration comes in under Section 17 here. With respect to the Minister, classification is mentioned here in Section 17—classification, reclassification, numbers and remuneration of civil servants. I quite agree that matters regarding the regulation and control of the Civil Service need not be embodied in a regulation and laid on the Table of the Oireachtas, but when it comes to the remuneration of civil servants, we should continue the provisions in the 1924 Act that is, that such regulations should be laid before each House of the Oireachtas as soon as may be after they are made.

I would like the Minister to look at this section again. I think it is misdirected because I do not believe the Minister is desirous of getting out of that form of provision, of laying these things on the Table. With the section as it stands, the provision of the 1924 Act will be amended and it will no longer be necessary to lay these matters on the Table of the two Houses.

Mr. Crowley

I wish to support this amendment. I find it difficult to follow the Minister's reasoning on this question because this section of the Bill is very specific. It obviously covers classification, reclassification, numbers and the remuneration of civil servants and these are matters which, as Senator Murphy has said, were covered by the relevant sections of the Civil Service Regulation Act, 1924, which we are supposed to be repealing. The House is entitled to an explicit explanation as to why it is now proposed to cease the practice of laying these provisions before both Houses of the Oireachtas.

In his introductory speech on the Second Reading of this Bill, one of the points the Minister emphasised was that he did not propose any radical change. I suggest this is a most radical change and a complete departure from what I regard as proper procedure. The Minister ought to have another look at this section because I would be far more inclined to support the amendment as proposed by Senator Sheehy Skeffington than this section as it stands.

Dr. Sheehy Skeffington

In view of what the Minister and other Senators have said, I should like to suggest that perhaps it would meet the case if my amendment were to be reintroduced on the Report Stage, or accepted then by the Minister, in an amended form to apply to paragraphs (b) and (c) of sub-section (1), and not to paragraph (a). I think the case has been established by him that there may be confidential circulars to handle under paragraph (a) of sub-section (1). It seems impossible to me, however, to have a "confidential circular" dealing with classification, with the numbers of civil servants or with their remuneration. Those are matters of public interest surely. The same applies to paragraph (c), the terms and conditions of service of civil servants and the conditions governing the promotion of civil servants. I think it would be unwise to suggest that there is anything secret and confidential about these matters. On the contrary, it is in the public interest that they should be made available to the public and to both Houses.

It is obvious that I have not suggested in my amendment that these statutory instruments would have to be approved by both Houses of the Oireachtas. That was not my suggestion, but simply that they should be seen. We are giving the Minister under sub-section (2) of the section power to make "such arrangements as he thinks fit". That is a pretty wide power and I cannot see that there should be anything secret about the way in which it is implemented.

In regard to the matters with which paragraphs (b) and (c) are concerned, I cannot see what harm could be done by revealing such arrangements to the members of the Oireachtas. Consequently, I would be prepared, if necessary, to drop this amendment now, and to reintroduce it on the Report Stage so that it would apply not to paragraph (a) but to paragraphs (b) and (c) of sub-section (1) of Section 17.

Mr. Sweetman

So far as paragraph (b) is concerned, there is no secret about that at all, because all the information in relation to paragraph (b) is given in the Book of Estimates.

Dr. Sheehy Skeffington

All of it?

Mr. Sweetman

Yes, classification, reclassification, numbers and remuneration. That is published in the Book of Estimates every year. There is no question of there being anything secret about it, and the only question I would ask the Senator on that is: when it is published in the Book of Estimates, is it worth having the additional administrative cost of laying an Order before the Oireachtas as well? I think the fact that it is available once a year in the Book of Estimates is sufficient without having to vary it in relation to numbers.

Supposing there were in a section of the Department of Agriculture ten civil servants of certain grades at the time of publication of the Book of Estimates and supposing that the work of that section grew and you wished to make it 15. Under the Senator's suggestion, you would have to table a special amendment. I do not think that is what is in the Senator's mind. I think what is in the Senator's mind and what is in Senator O'Brien's mind is that there should be no effort to cloak that sort of thing. In my opinion, the publication in the Book of Estimates once a year is sufficient.

If the Senator agrees with me in relation to the control of the Civil Service I think he will, on reflection, also agree that there are certain items in paragraph (c) of the sub-section which, though of a directive type, are really part of control. I think the Senator might reflect on that between this and Report Stage. These are in fact part of the control in relation to the terms and conditions of employment. The terms and conditions of service are things that are fixed on recruitment. They are there already and it is merely a question of carrying them on. Normally, it is on recruitment that they are invoked and, as I have already made it quite clear in relation to promotion, the thing that must govern us in all promotions is that the best qualified and most suitable candidates get the promotion.

Mr. Kissane

The Minister referred to the Book of Estimates in relation to information about Civil Service regulations of a confidential nature.

Mr. Sweetman

Section 17, sub-section (1), paragraph (b).

Mr. Kissane

In any case, is it not always possible to get information about these things through the medium of a question in the Dáil or by way of motion either in the Dáil or in this House?

Dr. Sheehy Skeffington

I do not know whether it is as easy as all that.

Mr. Sweetman

By the number of questions I have had to answer in the Dáil during the past month it seems to be very easy to get information.

Dr. Sheehy Skeffington

It is easy to put a question, but not always to get an answer.

Mr. Kissane

I am afraid the Minister did not fully answer my question. If, for instance, there is something agitating the mind of some member of the Dáil or Seanad and he wants to get information about it—something connected with Civil Service regulation—is a member of the Dáil not entitled to put down a question in order to get information and is the Minister in charge of the Department concerned not obliged to give that information?

Professor Hayes

No Minister is obliged, strictly technically.

Mr. Sweetman

I think that is a fact; I think the situation is as Senator Kissane has stated. I think that is virtually always the case. There might be certain cases of internal control that it might not be desirable to answer by way of question. For example, I can think of one thing bearing on the doctrine of collective responsibility of the Government. Supposing there was an arrangement by virtue of which I had delegated certain powers to some other Minister. Notwithstanding the fact that I had delegated the powers to that Minister he and I would be both responsible as members for what was done. If the Senator had in mind posing a question by way of motion in this House, or by way of parliamentary question in the other, as to whether in fact I had done a certain thing or whether, say, the Minister for Defence had done it under delegated power, that would be a matter of internal division of responsibility which should not be dealt with in public. Both were equally responsible. However, in relation to terms and conditions of service they are things on which information should be given. Not merely would they be answered in either House but I find it difficult to see circumstances in which the staff organisations themselves would not know the position.

Dr. Sheehy Skeffington

I think the Minister has made a good case not merely in relation to paragraph (a) but also in relation to paragraph (b). He has made it clear that once a year all these regulations are published. That should satisfy us. I do not feel he made a case, however, for paragraph (c). I do not feel that one can always get answers that satisfy one. I think Deputies are quite entitled, as members of the Dáil, to put down questions. Sometimes, when one reads the answers, one might possibly feel that the question was not fully understood, or that, for some other reason, as full a reply as was desired was not forthcoming. The same arises in this House although, I might say, that the Minister now in the House is rather good in giving us a clear answer. On occasions, however, I have found that I have failed to get satisfactory replies, even though the answers given were usually fairly lengthy. I should like to suggest to the Minister that he should accept on Report Stage an amendment relating only to paragraph (c) of the sub-section.

An Cathaoirleach

Is the Senator suggesting that he withdraw this amendment and put down one for Report Stage?

Dr. Sheehy Skeffington

Yes, a slightly different amendment.

Amendment, by leave, withdrawn.

Question proposed: "That Section 17 stand part of the Bill."

Mr. Cox

There is a point I should like to make on this section in relation to solicitors and barristers in the full-time service of the State. Under Section 17, the Minister has power to make regulations as to the discharge of their duties and the general conduct of civil servants.

I would like to ask that, in relation to the legal gentlement who are wholetime officers, the Minister would make such regulations only in agreement with the Attorney-General. Solicitors and barristers who are full-time officers are subject to their own professional discipline. The Attorney-General would have perhaps a more intimate contact with the conduct of legal procedure and other such matters than would the Minister—I do not mean to say the present Minister but the Minister in the abstract. I do feel there should be a provision that, in regard to regulations as to the conduct and discharge of their duties by such legal whole-time officers, these should always be made with the agreement and concurrence of the Attorney-General. These are clearly matters which the Attorney-General would be familiar with and with which an ordinary Minister might not be familiar. I should like the Attorney-General to have a say in the regulations which might be made.

Mr. Walsh

I should like to support Senator Cox's remarks. I feel that as the Attorney-General is a member of the Government and that as he has intimate contact with the legal fraternity, it would be appropriate that he would be consulted in connection with the making of such regulations.

Mr. Sweetman

I am not quite clear exactly as to what class of official Senator Cox is referring, but may I say one thing before I deal with that? I want to make it quite clear that I am speaking now as Gerard Sweetman and not as Minister for Finance. Personally, I feel barristers are not the best people to offer advice on how solicitors should carry out their affairs or what is appropriate for solicitors. I would prefer even a Minister to give such advice. The Bill provides that in certain circumstances the Attorney-General is an appropriate authority. I am not quite clear whether it is in relation to the officers who are under the Attorney-General in that respect that the Senator was speaking or whether he was referring to other civil servants.

Mr. Cox

No, I was referring to such officers who would be under the Attorney-General, that is to say in respect of whom the Taoiseach under Section 2, sub-section (2) (c), has power to delegate his authority to the Attorney-General as the appropriate authority.

Mr. Sweetman

If the Attorney-General is the appropriate authority——

Mr. Cox

Section 17 might possibly run counter to that. The Attorney-General is named as the appropriate authority but under Section 17 the Minister could make regulations as to the conduct and discharge of their duties. I suggest it is there the Attorney-General should be brought back.

Mr. Sweetman

It seems to me if the Minister for Finance of the day were to make regulations in respect of the officers solely under the control of any other appropriate authority as indicated, in this Bill over the head, so to speak, of that appropriate authority— and I think that is what Senator Cox means—we would arrive at a situation which would be quite farcical. The Minister for Finance has to make general regulations of control over all but not in relation to a specific Department. Obviously, those regulations must be worked out in consultation with the appropriate authority concerned, be he the Minister or the Attorney-General as in this case. Of course, the reason that the Attorney-General is mentioned in Section 2, sub-section (1) (b) is that he is not a member of the Government. Senator Walsh is incorrect in suggesting he is a member of the Government. He is not.

Mr. Walsh

I understood he was present at all Cabinet meetings.

Mr. Sweetman

Presence at a Cabinet meeting is not a sign that one is a member of the Government. There is one honoured civil servant there to take a record but he is not a member of the Government. Because the Attorney-General is not a member of the Government one has to have a specific clause in Section 2 to cover the Attorney-General and the delegation to him by the Taoiseach of the powers of an appropriate authority.

It must be obvious that the Minister for Finance, who is responsible for the Civil Service as a whole, in the exercise of that responsibility, has to consult his colleagues when they are dealing with any official solely in the service of a specific authority. In fact, in so far as we can, we delegate to appropriate authorities and will delegate to appropriate authorities powers and functions under this Bill. In general my principle in relation to the administration of the Civil Service is that I wish only to retain as Minister for Finance such general control as is necessary to ensure that individual Departments do not get out of step with each other, but that in individual Departments it should be exercised by the individual Minister rather than cause unnecessary administrative clogging by having to come back to me for unnecessary delegation.

Mr. Cox

If the Minister would consider it between now and the Report Stage, it might be mentioned again on the Report Stage.

Mr. Sweetman

If I think an amendment is necessary I will introduce it.

Question put and agreed to.

Sections 18 to 23, inclusive, agreed to.

Schedule agreed to.

Title agreed to.

Bill reported without amendment.

Report Stage ordered for next sitting day after Wednesday, 12th December, 1956.