Civil Service Regulation Bill, 1956—Report and Final Stages.

I move amendment No. 1:—

In page 5, between lines 30 and 31, to insert 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 the recognised Civil Service staff association of which he is a member.

I propose, with your permission, to discuss amendments Nos. 1, 2, 3 and 4 together. The purpose of these amendments was discussed at length on Committee Stage and we eventually finished with the question as to whether the amendment tabled in my name for Committee Stage was practicable or not. In order to examine the practicability of the amendment, I withdrew it. These amendments are now down for the Report Stage. There is, however, just one change in effect from an amendment we discussed on Committee Stage; that is No. 4. I found, on looking at the matter again, that the amendment down for the Committee Stage could mean that the Government would have appointed certain civil servants and would be under an obligation to pass on the representations to itself. That has been corrected in amendment No. 4.

I do not think that I should weary the House by going through all the arguments again. We discussed them for nearly an hour on the Committee Stage and it was in order to meet the Minister's point as to whether the amendments were practicable or not that it was withdrawn and put down for Report Stage.

I should like to support this amendment. I have been thinking a great deal about the debate which we had last week and, from the constitutional and legal point of view, it seems to me that important issues have been raised on this matter and I, for one, am not satisfied with the reply of the Minister for Finance. I think that, in spite of all that has been said about the practice in the past in this country and the good intentions regarding the future, civil servants should have some rights against their employer. The fact that Governments in the past have acted properly in this matter is no guarantee that Governments will continue to act properly in future.

The whole purpose, as I take it, of legislation is to give rights to people and not merely to give them the expectation that other people will behave properly. An example of what I mean is the law in relation to cruelty to children. The great majority of parents are kind to their children and it is almost incredible that people should be cruel to their own children. Nevertheless, the law has provided for dealing with these exceptional cases when they arise. I take it the whole purpose of legislation is to protect people against injury of one sort or another when it arises either normally or exceptionally. The whole purpose of legislation is to make injustice not only improbable but impossible. Every revolution, as far as I can read history, has arisen from the abuse of legal rights. Almost every revolution in its early stages has arisen from Governments of countries making unexpected use of rights which have fallen into abeyance and I think it is our duty to protect the future servants of this State from the abuse of the rights contained in this Bill.

The argument that has been made that other Governments might repeal this legislation is to my mind a confession of failure. That would be a reason for giving nobody rights either in a Bill or even in the Constitution against Governments or, indeed, against anybody else. All that the Legislature can do is to provide for the foreseeable future and no legislation can possibly provide against the violation of people's rights, the abuse of privilege, or the repeal of protective legislation in the future. All we can do is to try to look into the foreseeable future and ensure the people's rights against the abuse of arbitrary powers. I may say that the section, as it stands, is quite out of line with the development of administrative law in other countries.

I am afraid the Senator must take the amendment as it stands.

This amendment is much more in line with the development of administrative law than is the section as it stands. As I said on the Second Reading and again on the Committee Stage—and I repeat it today—this section is a hangover from the old British notion that the Crown cannot be sued. The Minister has tried to explain that away. In other countries, the Executive is being controlled more and more by legislation. The old idea that the Executive is above the law has disappeared in almost every country in the world. Even in Great Britain, where the privilege of the Crown has always been above the law, that idea has disappeared and the privilege has been almost frittered away. It would be an extraordinary state of affairs if the last area in which the prerogative of the Crown is to remain should be the Irish Republic, but on this section, as it stands, that comment might not be unreasonably made.

I would like to support this amendment. It has been said that when the Soviet Government took over control in Poland, the existing legislation in that democratic State was such that they were able to put through almost all their measures without altering the law. That was partly because various powers had been granted to the Ministers, with good motives, but capable of being misconstrued. It was partly because Ministers were assumed to be generous and reasonably-minded people and, in some cases, the rights of the subject had not been written into the legislation. I think that is what we are trying to do here. It is a fundamental right that one should have some opportunity of defending oneself. For that reason, I think we should press this amendment.

This amendment is put forward as an amendment which will make the Government act properly. This amendment will not have any effect in making any Government act properly. I take it Senator Murphy agrees with that. The amendment aims merely at ensuring that the present practice will be continued, namely, that the civil servant threatened with dismissal or removal will have, under a new sub-section to be inserted, the right of making representations either orally or in writing. The fact remains that, having heard his representations, the Government can still of course dismiss him. That is agreed.

Therefore, this amendment is not a guarantee in any sense that any Government will act properly. Neither, in the words of Senator O'Brien, does it make injustice impossible. It does not make injustice impossible and, in my judgment, it does not even make injustice less probable. It was never suggested that, if this were inserted, other Governments might not repeal the legislation. In no country is the civil servant as secure as he is in this one. That has been the practice all along. The idea enshrined in this amendment does not, in fact, give any further security to the civil servant than the measure of security he at present enjoys. It gives him no protection whatever beyond ensuring, by legislation, that he must be heard. It affords him no protection against a Minister who does not want to hear him or who, hearing him, turns a deaf ear to what he says.

The powers of the Crown have no bearing on this at all. I was surprised to find my colleague, Senator O'Brien, waving the green flag in relation to the Crown. This amendment does not concern the Crown. It does not take in any way from the powers of the Government. It does not make the Minister suable. All the Minister has to do, if he wants to dismiss a civil servant, is to hear his representations, as he does now, and then proceed to act. The Minister is not in a position that he can be sued for doing something which, even under this amendment, he has power to do. Finally, my objection to the amendment is that the present situation in practice gives the civil servant more direct protection than anything we can write into a statute. The object that the amendment seeks to achieve is not in fact achieved by the wording. Indeed, I doubt if it could be achieved by any wording.

I had not intended to speak on this but I am brought to my feet by the case made by Senator Hayes. It seems to me, if we accept what Senator Hayes has said, that we do not require any articles in our Constitution guaranteeing the rights of citizens, because we all know they have plenty of unwritten rights, that Governments will always treat them well, and there is, therefore, no point in having either legislation or a Constitution which puts in writing the rights of citizens, rights we all recognise.

This amendment is trying to put into writing a principle which is recognised as good by Senator Hayes, which is recognised as good by the Minister, and which is recognised as good by the Government. Simply to argue that because we are all agreed that it is a good thing we do not therefore need to write it in, seems to me to be an argument which might lead us to tear up the Constitution on the grounds that, as we all know, we are all in favour of civil liberty.

I wonder would the Minister clarify the position in regard to this amendment? I have more or less an open mind but, frankly, I do not like the amendment very much. Nevertheless one must pay attention to the arguments that have been advanced in favour of it. Is the Minister in a position to outline to the House the procedure normally adopted with regard to the removal of a civil servant from office?

I might perhaps help the House by repeating at this stage what I said in the other House in relation to this matter. This issue was raised on a different section, but the point at issue was exactly the same. Notwithstanding what Senator Sheehy Skeffington has said, that it is desirable that this type of amendment should be written into the Statute Book, I think it is far better to deal with it in another way. I told the staff associations, who saw a copy of this Bill, that I would deal with the matters that are included here by way of an arrangement under Section 17. I explained to them that I thought the method we would have would be a satisfactory one and that it would in fact carry out, by specific arrangement, under Section 17, what is the existing practice.

What I said in the other House, and what I would like to repeat here, is that I propose to arrange that when an established civil servant is in danger of dismissal he will be notified that he can, if he wishes, make representations himself against dismissal or that, if he preferred, he would be entitled to ask his staff association to do it for him. I think that is the correct procedure. I believe that the approach to the staff association should come from the civil servant himself.

In practice, of course, there is always a good deal of coming and going in relation to any difficult case of dismissal. Senator Hayes has referred to the fact, and it is an undoubted fact, that the civil servants here were always on a far more secure tenure than elsewhere. Indeed if we were to take a census of thought in the community at large, I believe that census would undoubtedly reveal that, by and large, the people throughout the country feel there is no need further to protect civil servants. In fact, I think they would be rather somewhat stronger in the other way.

What are the facts? I told the House the other day that two-thirds of the civil servants in the country are in the Post Office service. I got some figures from the Post Office in regard to the number of dismissals involved. In 1954 there were 17 dismissals of established civil servants from the Post Office. Eleven were dismissed for convicted or admitted dishonesty. Five were dismissed for abandoning duty—clearing out. There was only one case of dismissal other than for dishonesty or abandonment of duty. Out of the 20,000 in the Post Office service, one was dismissed for causes other than dishonesty or abandonment of duty.

In 1955 the total number of dismissals was 24. Fifteen of these were for either convicted or admitted dishonesty. Six were for abandonment of duty and the remaining three were for other causes. In the present year to date we have had eight dismissals— six for dishonesty, one for abandonment of duty and one for another cause. When one considers the number of civil servants there are in that Department, I would suggest those figures make it clear beyond question that the practice has, to put it very mildly, not been a harsh one. I propose to do in the future in other sections what is done now in the Post Office as a matter of course. I propose to put the matter beyond question so that not merely in that Department but in others the persons concerned would have it in writing that they were in danger of dismissal and that they had the option of making representations themselves or of getting the staff association to do it on their behalf. I have committed myself to this both in the Dáil and in this House. I have also committed myself to the staff association in that regard.

There is no doubt that such commitments have been taken to be binding not merely on the Minister of the day but on his successors in matters of this sort. When this matter was being discussed in the other House, the Deputy who raised it appeared to be quite satisfied with the procedure which I am proposing to crystallise now. He was satisfied that the procedure I proposed adopting was in substance, if not in form, what he had in mind—something on the lines of Senator Murphy's amendments here. Of course the substance is of far greater importance than the form. I do not think that Senator Murphy's amendments would give any civil servant one iota of security more than he has at the moment. In fact I can well see the argument that it would give somewhat less security because, when bound by statute, people are inclined to give just so much and no more.

I do not honestly think that it is reasonable of this House to suggest that whatever Government was in power would act unreasonably in the future since no Government has so acted in the past. I do not think it reasonable to suggest that the Government of the day should be bound by statute to send formal notice by registered post to a person who, shall we say, was convicted of dishonesty. An explicit practice already exists and it will be crystallised more through this measure. I do not think that the Seanad, in these circumstances, would deem it necessary to include such a procedure in legislation. It would seem to me to carry an imputation not merely against this Government but against future Governments.

I might also take the Seanad into my confidence in respect of one matter which makes it utterly impossible, even if I did think that on the merits I should accept the amendments. If Senators look at the Civil Service Commissioners Bill they will see that it is drafted on the basis that it was passed after this Bill. Therefore, if we do not pass this Bill now without these amendments it would be necessary to come to the House again with an amendment to the other Bill which we passed last week, because that Bill was drafted on the basis that this Bill would be signed first.

To be quite frank, I must take my share of the responsibility for not pointing that out to the Seanad last week when the two Bills were before the House. They came before the House in the correct order, but we reversed the order. Hence, if this Bill is not passed to-day and a motion for early signature also passed which will enable this Bill to be signed before the other, an amendment to the other Bill will be necessary.

Should we have taken this Bill first?

We should have cleared all stages of this Bill before clearing all stages of the Civil Service Commissioners Bill.

May I ask the Minister whether the procedure at the moment is something like this: where a civil servant's conduct is considered unsatisfactory, he receives notification of that fact and is advised to look after himself; and representations on behalf of a civil servant likely to be dismissed or who has been dismissed may be made by an association or by public representatives?

In relation to the civil servant who is still available, apart from the civil servant who has merely abandoned duty and whom we cannot find, most certainly the situation is as outlined by Senator Ó Buachalla. Representations are made and frequent consultations take place between the establishment officers and the civil servants' associations dealing with the Department of Posts and Telegraphs. I am now extending that practice, which has been there in the Department of Posts and Telegraphs, to all other Departments. There is constant contact between the staff associations who look after those employed in the Post Office and the establishment officer of that Department. The same practice will now operate in the other Departments as a result of the arrangements I made with the civil servants' associations.

Is the Senator pressing the amendment?

As I understand the Minister is putting the general purpose of this amendment into the arrangements being made under Section 17, I would like to withdraw the amendment.

Amendment, by leave, withdrawn.
Amendments Nos. 2, 3 and 4 not moved.

I move amendment No. 5:—

In page 13, between lines 5 and 6, to insert a new sub-section as follows:—

( ) all statutory instruments embodying arrangements made under paragraph (c) of sub-section (1) shall be laid on the Table of both Houses of the Oireachtas.

This is a modification of the amendment which I withdrew on the Committee Stage. I altered my amendment in the light of what the Minister said. He made a sound case in relation to paragraphs (a) and (b) of Section 17 (1), but I feel that in relation to paragraph (c) a requirement that statutory instruments of this kind should be put on the Table of both Houses would be a useful thing. Sub-section (1) Section 17 states:—

"The Minister shall be responsible for the following matters—".

I skip paragraphs (a) and (b).

(c) the fixing of—

(i) the terms and conditions of service of civil servants, and

(ii) the conditions governing the promotion of civil servants."

Sub-section (2) states:—

"The Minister may for the purpose of sub-section (1) of this section, make such arrangements as he thinks fit and may cancel or vary those arrangements."

It would seem to me, and I think probably to most Senators, that it would be a legitimate thing to ask the Minister, when he makes "such arrangements as he thinks fit" in relation to the terms and conditions of civil servants or the conditions governing their promotion, that he should place these arrangements on the Table of both Houses. It might be unreasonable to ask that both Houses should approve them before they come into force, but I do not think it is unreasonable to ask that both Houses should be given an opportunity of seeing them. It is for that reason that I put down this amendment for the insertion of a new sub-section to the effect that all statutory instruments embodying arrangements made under paragraph (c) of sub-section (1) shall be laid on the Table of both Houses of the Oireachtas.

I do not wish to detain the House very long on this, but I should like to comment on what the Minister said about the technical difficulties of passing any amendments now in the Seanad. I think the Minister would agree with me that, while in practical politics that might be a good argument, there might be cases where an amendment would be so important and so valuable that we would be prepared to recall the Dáil if necessary and that consequently our real argument should be as to whether it is a sufficiently important amendment.

I accept the Senator's view on that completely.

I thought the Minister probably would. Therefore, I should like gently to remind him that if he had accepted our amendments last week, we might have given him all stages then, and that consequently it was not the Seanad who held up this Bill, but, shall we say, the reluctance of the Minister to allow himself to be swayed by the arguments of Senator Murphy, other Senators and myself not only in relation to the amendments which have just been withdrawn but this amendment, the principle of which was first enunciated here by Senator Professor O'Brien. I would urge upon the Minister the importance of having such a—I will not call it a safeguard—such a guarantee in relation to statutory instruments embodying such important arrangements from the point of view of civil servants.

I might be able to shorten the time of the House if I made a suggestion on this.

Perhaps the Minister would give Senator Cox an opportunity to speak.

It occurs to me, that if this amendment were adopted, considerable legal difficulty might arise. Under sub-section (1), the Minister is responsible for certain things. Under sub-section (2), he may make certain arrangements. It might be very difficult to decide what was or was not a statutory instrument. It might be argued that any arrangement the Minister made, that is to say, anything the Minister did under sub-section (1), was a statutory instrument and that it would have to be laid on the Table of the House. It is difficult to see how one is to differentiate between those two things.

Only in relation to paragraph (c).

That was the point I was going to make, only from a slightly different angle. I am advised by the Attorney-General that none of the arrangements that will be made under Section 17 will be statutory instruments. Therefore, I cannot accept the amendment as it is, but I am prepared to make this suggestion for the benefit of the Seanad if they wish me so to do. There are in relation to paragraph (c) circulars with application to staffs which, under the existing practice, are circulated to all Departments and are brought to the notice of civil servants generally for their instruction and guidance. As I say, these are not statutory instruments; these are the type of arrangements that will be made under (c), and I am prepared to make provision that in future a copy of circulars of that sort which, as I say, under the existing practice are made available widely, will always be in the Library, and that would mean that they would be available to the members of the House. They would be non-statutory instruments. I cannot present something that is not a statutory instrument.

In the circumstances, I beg leave to withdraw the amendment, and I welcome the manner in which the Minister has met the point.

Amendment, by leave, withdrawn.
Bill received for final consideration.
Agreed to take Final Stage to-day.
Question—"That the Bill do now pass"—put and agreed to.