Public Service Management (No. 2) Bill, 1997: Committee Stage.
I move amendment No. 1:
In page 3, lines 28 and 29, to delete "together with" and substitute "excluding".
The Bill as drafted defines the Department of Defence as "that part of the Department together with the principal military branches, but does not include a Scheduled Office". My amendment seeks to delete the reference to the principal military branches and exclude them from the scope of the Bill.
The Secretary of a Department has considerable powers under the Bill. These powers could be used to the detriment of the Defence Forces. The present system is satisfactory. The Chief of Staff and senior officers should not be included in the scope of the Bill.
There is an important principle at stake. That principle is the relationship between the State and the Defence Forces. Historically, and with good reason, we have been reluctant to introduce a political dimension into the Defence Forces. The civil sections of the Department of Defence should be governed by the Secretary. That is satisfactory. However, that is where it should stop.
There are inconsistencies between this Bill and the Defence Act. I wonder about the constitutional aspects of it, although I am not an expert in that area. There is potential for ambiguity and conflict between the Bill and the Defence Act, 1954, which is the basic code of military law in the Defence Forces.
I and the Minister have attended several commissioning services at the Curragh. The commissioning ceremony mentions obeying orders from an officer, military superior or the Minister. This is undermined by the Bill. In other sections of the Bill the powers conferred on the secretary general of the Department, as the person will be called in future, are in fundamental conflict with what the powers and responsibilities of the Chief of Staff, the staff in general and the three branches should be.
Under section 4(1)(a) the authority and responsibility for the management of the Department is the function of the secretary general. This includes military personnel and the outputs of the Department, including the military branches. I have problems with the Bill as drafted. I would like to hear what the Minister has to say on the matter and I will then consider how to proceed.
I agree with Senator Dardis that there is a need for overall responsibility. This responsibility, in the military sense, should not be taken over by a superior within the Department of Defence, which would appear to be the case if "together with" is included in section 1. The division between the military establishment and the Civil Service is one which should be maintained to ensure the Chief of Staff and the chief officers should deal with military matters. There should be consultation with the Department of Finance on the overall organisation outside military matters. If section 1 is combined with the first part of section 4, there is a diminution of power from the military point of view and the Civil Service is given increased power, which they do not deserve. I do think this will be welcomed by military personnel.
I am glad to have the opportunity to clarify this important issue. Under the Defence Act, 1954, three military branches — those of the Chief of Staff, the Quartermaster General and the Adjutant General — are described as the principal military branches of the Department of Defence. They are accordingly included in the definition of the Department of Defence for the purposes of this Bill. It is essential to do so to ensure the Secretary of the Department of Defence, who is currently the accounting officer for the Department's Vote, which includes the expenditure of the principal military branches, retains overall accountability for those branches and to ensure his strategy statement covers the totality of the Department.
This definition does not cover the Defence Forces generally. It does not imply or authorise any interference by civilian staff in operational matters relating to the Defence Forces; nor does it interfere with the right of direct access to the Minister which the heads of the principal military branches enjoy. The current proposal does not alter the line of authority over the Defence Forces or diminish the position of Chief of Staff. When the draft outline of the Bill was circulated prior to its submission to Government, one of the staff associations representing personnel in the Defence Forces became aware of this definition and formed the view, which they publicly expressed, that this measure represented an alteration to the status quo. The Minister for Defence has been particularly anxious to allay these fears and has explained the position to the military authorities.
The Government has been involved in a significant and substantial reorganisation of the Defence Forces which will involve alterations in the arrangements under which the Defence Forces operate and which will involve changes in relation to the three military branches. These are currently being addressed, together with other issues affecting the Defence Forces, and will necessitate a major overhaul of defence legislation. It has been made clear to the military authorities that this work is being given highest priority within the Department of Defence and that legislation for the new blueprint outlining the future organisation of the Defence Forces may require a consequential change in the arrangements set out in this Bill. That change should be effected in comprehensive legislation rather than creating problems in the transitional period. I cannot, therefore, accept the amendment.
The Minister for Defence sought and obtained a clear assurance from the Attorney General regarding the constitutionality of this Bill. The advice of the Attorney General was as follows:
The conferring of functions on Secretaries in section 5 is subject to an exception where provision is made by or under any other Act and, therefore, the functions conferred on the Chiefs of Staff under Part II of the Defence Act, 1954, are not in any way affected by the provisions of the new legislation. I confirm your view that the respective position of the Chiefs of Staff and Secretary are not affected by this Bill.
I am still uncomfortable about the matter. The principle is an important one. The Schedule lists the offices and branches of the public service which are excluded, including the Houses of the Office of the Oireachtas, the Office of the Ombudsman and the Office of the Director of the Public Prosecutions. Perhaps the matter could be dealt with through the Scheduled Office.
The Minister said the position had been explained to the military authorities by the Minister for Defence. Is there any indication of how satisfied they were with the explanation? I do not know how satisfied they were. The Minister is correct in his assertion regarding the staff association. The matter was raised at their conference in Galway when reservations were raised.
This is part of an overall strategy. We have the efficiency audit group and the implementation plan and defence amendment legislation which would appear to diminish the status of military office holders, namely, the Adjutant General, the Quartermaster General and the Chief of Staff. There is a proposal for two Deputy Chiefs of Staff and that those appointments would be made by the Government rather than the President. The President has appointed the present office holders because she is the commander of the Defence Forces under the Constitution. The Office of the President and the role of the President arise, therefore. It is not at all satisfactory to treat the Army in this way. There should be an exclusion and an absolute separation. The military authorities could be given responsibility for certain outputs by giving them a budget and authority for administering it rather than having to constantly refer to the Department.
I remain unconvinced. I believe there is merit in the amendment and I am not convinced that the Bill would not be improved by the exclusion of the principal military branches.
The Minister mentioned the statutory group, which was part of the overall strategy and said that the Defence Act, 1954, is currently being reviewed by the efficiency audit group. He also said that when the new defence legislation is brought before the House, this legislation might be changed. Would it not be better to accept this amendment now? It would not create any major difficulty since there will be a new defence Act in any event. The separation and the perceived diminution of the role of the Chief of Staff, the Adjutant General and the Quartermaster General are causing problems. Why can the Minister not accept the amendment at this stage? It is not radical and its acceptance would not alter the Bill. Acceptance of the amendment would maintain the status quo until such time as the new Defence Act is brought before the Houses at which stage this Bill could be reviewed again.
There are two issues arising here. Senator Dardis raised the issue of the new proposals for the Defence Forces. What is being done in this Bill is simply an acknowledgment of the status quo. The Bill does not change anything and I am confirmed in that view by the Attorney General. Without this provision we would be changing things and it would be absurd to enter into a specific change about the financial accountability of the Secretary of the Department of Defence without reference to the new proposals which will be far more comprehensive and extensive and which will require lengthy debate. The legislative changes made in the new Defence Act — which will be substantial legislation — will come before the Houses of the Oireachtas. If, arising from that, amendments are needed to this Bill to implement what is in the major legislation, they will be made. For us to introduce a change in the current arrangements at this stage would cause more problems than it would solve without reference to all the legislation which will have to follow in relation to the new arrangements for the Defence Forces. These new arrangements are widely known and are largely welcomed. I regret that I cannot accept this amendment.
There is a fundamental difference of opinion. It is our contention on this side of the House that there is a change being made in this Bill. The Minister contends there is not but I believe the change is a fundamental one.
I am giving the House an absolute assurance that there is no change. I could not give that assurance if I thought there was.
I want to refer again to what is in the Schedule. The offices covered by the Schedule include the Offices of the Houses of the Oireachtas, the Office of the Attorney General, the Office of the Comptroller and Auditor Geneeral, the Office of the Director of Public Prosecutions, the Office of the Ombudsman and, in Part II the Office of the Tánaiste, the Office of the Revenue Commissioners, etc. It seems very inconsistent to have those offices covered in the Schedule and to have the military authorities dealt with——
The military authorities have a statutory basis in their own right. The status quo is not changed in any way at this point.
Amendment put and declared lost.
Section 1 agreed to.
Section 2 agreed to.
I move amendment No. 2:
In page 5, before section 3, to insert the following new section:
"3.—A Minister of the Government having charge of a Department shall, in accordance with the Ministers and Secretaries Acts, 1924 to 1995, be answerable to the Houses of the Oireachtas for the performance of functions that are assigned to the Department pursuant to any of those Acts, but shall be personally responsible only for such functions of which he or she can reasonably be expected to have personal knowledge."
I would like to explain the reasoning behind my amendment. On Second Stage the Minister said better than I could what part of the problem seems to me to be in terms of trying to establish genuine accountability. He said: "The notion that every Minister can even know about, let alone direct and manage every action every day in his or her Department, is absurd". This dichotomy between legal requirement and practical reality creates enormous difficulties for us in trying to do our jobs as parliamentarians.
Everyone, including the Minister of State, who knows the reality of managing anything will be aware that the Ministers and Secretaries Act, as far as the presumption that a Minister can know about everything going on in the Department, has long lost its relevance. A way must be found to liberate Ministers from the type of responsibility which is still attributed to them when something goes wrong in the Department. It may go wrong at a low level in certain respects but the repercussions may reverberate and suck the Minister in in terms of responsibility.
On Second Stage the Minister said this Bill would bring the legislative situation into close correspondence with current reality. This reiteration in section 3 copperfastens, as far as it goes and despite the changes in Departments and among civil servants, the principle underlying the Ministers and Secretaries Act. My amendment tries to separate general parliamentary accountability which somebody must have, and the Minister is the natural person in this regard, and explain things which need to be explained in departmental terms while protecting the Minister from accusations of personal responsibility for things about which the Minister could not reasonably be expected to know. How one defines that is a different matter, although it becomes a detail in practice if one accepts the principle.
I am trying to find a way to separate ministerial departmental responsibility from ministerial personal responsibility. I could go back over rows in the Dáil which attributed blame to Ministers from all parties, and this has nothing to do with individual parties or Ministers. It is part of the inevitability of the growth in the size, scale and complexity of Departments that a Minister cannot know everything that happens in his Department. Once that is accepted, as the Minister's speech did, surely there is some way to recognise and incorporate this reality into legislation. Section 3 ignores that reality. While it is accepted a Secretary General of a Department cannot be expected to know about everything at all times, this does not apply to a Minister. Is my understanding of what is involved correct? What is the Minister of State's reaction to the route I have tried to signpost along which one might go to achieve this distinction?
Senator Lee raised a point dear to the hearts of all Ministers and potential Ministers. When replying to Second Stage, the Minister of State at the Department of Finance, Deputy Doyle, explained that under the Bill the Minister would remain legally responsible for all the actions of his or her Department. However, she expressed the hope that since the Bill identified clearly specific matters which required a personal input from a Minister in relation to a Department or scheduled office, the practice of this House and of Dáil Éireann would evolve in a manner which took account of the distinction in responsibilities which the Bill set out to effect.
Senator Lee's amendment attempts to give that distinction statutory form and it is one which I suspect would be personally endorsed by every Minister or Minister of State, particularly those who have been pilloried for actions of which he or she knew nothing until they became politically live issues. If I emphasise personal issues it is because we have a responsibility, in bringing legislation before this House or accepting amendments to it, to ensure that the final product accords with the Constitution. That is the problem here. Our Constitution is unambiguous on this point. It states that Ministers are "in charge" of Departments and the Government is answerable to Dáil Éireann in respect of those Departments and their activities. It does not allow for a statutory distinction to be made between answerability and personal responsibility.
In bringing forward this Bill we have had in various sections to underline the continuing role of Ministers to ensure that the arrangements proposed remained within the confines of what is constitutionally permissible. That exercise involved elements of walking a tight rope. I am afraid that following all our natural instincts as politicians and going along with Senator Lee's amendments would cause the Bill to stumble into unconstitutionality. For that reason only I am compelled, with some reluctance, to oppose the proposed amendment and to rely on the evolution of a set of practices in the House and in the Dáil that will allow the spirit and content of the rest of this Bill to emerge in the way we would all like. It does not seem constitutionally possible to do what the Senator is proposing and which we probably would prefer.
I thank the Minister of State for that explanation. I take the point that the Constitution may be or is a problem in this respect if one chooses to interpret the Constitution's mention of "in charge of" in that global way. Maybe that is the best legal advice one has. However, if this matter is as important as I for one think it is; if it is important both in terms of managerial efficiency and in terms of the way our political system operates; and if it is important in terms — which I would hold — of a Constitution where it relates to the actual practice of Government, it ought to reconcile reality with practice closely.
There are symbolic dimensions of Constitutions which are also important and where we all know the image may diverge from the reality or vice versa. That would not necessarily be a reason in the symbolic sections of a Constitution for wishing to change the symbolism. Here we are dealing with the actual functioning of government. This is not symbolic, it is practical. It is also of vital importance for good Government and the most effective possible conduct of government.
Therefore, all I can say is that if the present Government's advice is that this would be definitely unconstitutional, I will not press something that is so in the current circumstances. The Constitution is coming under increasing review in terms of possible amendments. I understand we are shortly to have a referendum about Cabinet confidentiality. In practical terms this is at least as important as Cabinet confidentiality. I agree with the referendum on Cabinet confidentiality because I thought, unfortunately, that the Supreme Court ruling was misguided. Leaving that aside, this particular matter seems to be of such significance that it will continue and become more serious. It will not go away and Departments will become ever more complex. The range of responsibilities that Departments and Ministers take upon themselves will grow, so this will remain a problem if we do not do something concrete about it.
One would hope that practice will evolve in the Oireachtas to take cognisance of the list of things for which Ministers are attributed particular responsibility here. In reality, however, it will be a difficult for Opposition Deputies to resist the temptation to hold Ministers responsible for something which is not specifically listed here as such. I strongly urge that the responsible governmental authorities think seriously about the possibility of a constitutional referendum on this issue as soon as possible because it is that important in terms of the realities of good government.
I thank the Senator for his contribution. The Bill has gone a long way towards highlighting particular things for which Ministers will have a high level of accountability. However, they will have a lower level of accountability in a debate in the House on wider issues about which they could not be expected to know everything. The Houses will recognise those distinctions in time. It may be worthwhile to consider changing the Constitution in the context of other changes that may arise in the future.
One must distinguish between symbolism and practicalities in the Constitution. There are few Constitutions which include the degree of detail about the functioning of government as our Constitution. That may have been done for valid reasons at the time, but perhaps we should consider deleting or amending them along the lines I have suggested. I would favour amendment rather than deletion. I take the Minister's point about the specification of responsibilities. However, as long as section 3 is included, which reiterates the principle of ministerial responsibility with no qualification, any Member of the Oireachtas is entitled, while adhering fully to the letter of the legislation, to hold the Minister personally responsible for anything in his or her Department, including things about which they have no way of knowing. The legislation is out of kilter with reality, so who can blame Deputies for abiding by the letter of the law? That is why the issue of constitutional change is a matter of urgency.
Amendment, by leave, withdrawn.
Section 3 agreed to.
Question proposed: "That section 4 stand part of the Bill."
Section 4 deals with responsibility and accountability within Departments and Offices. Any section which makes Departments more accountable and staff more responsible is welcome. On Second Stage I said I hoped such accountability would be extended to local authorities and health boards. The Minister of State at the Department of Finance, Deputy Doyle, also emphasised that point on Second Stage. Departments, particularly heads of Departments, should be more accountable.
I also welcome the greater precision of accountability, although I question how this will work in practice. Will Ministers name civil servants who are held accountable for errors or oversights? How will accountability be perceived to be exercised in the public domain in terms of the attribution of responsibility?
A strategy statement is managerial terminology. Who could be against a strategy statement? There are so many demands for strategy statements littering legislation, one wonders how people get time to do anything apart from writing strategy statements. The section states that strategy statements will be written within six months after the coming into operation of this Act or within six months after the appointment of a new Minister of the Government having charge of the Department. This seems to be based on the premise that we will have four to five year Governments on a regular basis. What will be the effect of this legislation if there is a rapid turnover of Governments? Can one six months' statement cover a number of things? It might be useful to clarify the rigidity of the six months concept. I did not table an amendment because nobody can foresee such a situation, but some elasticity should be permitted for circumstances which may occur in the near future if we do not have regular four to five year Governments.
Senator Lee raised a practical point which I will consider and come back on Report Stage. Short term Governments occurred in the early 1980s. We cannot spend six months in Government preparing a strategy statement and then do so again after a general election. I will reflect on the Senator's point.
Question put and agreed to.
Government amendment No. 3:
In page 7, between lines 13 and 14, to insert the following new subsection:
"(3) The Freedom of Information Act, 1997, shall not apply to a record containing—
(a) a strategy statement that has not been approved under subsection (1)(c),
(b) a preliminary or other draft of the whole or part of the material contained in a strategy statement,
(c) the unamended version of a strategy statement that is approved under subsection (1)(c) with an amendment, or
(d) a direction under section 7 in connection with the obligations of the Secretary General of a Department or Head of a Scheduled Office under section 4(1)(b) or 5(1),
during the period of 5 years immediately following the creation of the record.".
This amendment seeks to clarify the position of strategy documents in relation to public information. The strategy document is of fundamental importance in the new administrative structure envisaged in this Bill. It will be prepared by the secretary general or the head of a scheduled office and approved with or without amendment by the appropriate Minister and then laid before the Oireachtas.
It may well be that in the course of preparing and finalising the statement documents, some proposals may be floated which do not survive rigorous appraisal or which fail to secure full political endorsement. The Government thinks it is important that secretaries general, and those on whom they draw when considering what to include in a statement, should have the fullest freedom and should not be inhibited by any feeling that sensitive issues should not be explored out of fear that should they not find a place in the final authorised document, their subsequent decimation might be used to generate adverse publicity for the Minister or secretary general involved.
This amendment has been drafted to deal with that situation only. It provides that rejected and discarded drafts do not pass into the public domain through the normal operation of the Freedom of Information Bill, which, having passed through the Houses of the Oireachtas, awaits the President's signature, for a period of five years. It imposes a similar embargo in relation to directions given by a Minister in connection with the preparation of a strategy statement. I emphasise that this restriction applies only to availability under one piece of legislation; it does not preclude in any way such documents being sought and provided to the courts, to tribunals of inquiry or to Oireachtas committees under the legislation now before the other House. It seeks to place the strategy statement in the public domain but not the drafts involved in its preparation.
This is a dangerous amendment because the Freedom of Information Bill, 1997, has not yet been signed by the President. Local authorities and health boards are not included in this legislation and now we are excluding people who draft strategy statements. The danger is that secretaries general will try to include such an exclusion in all legislation. We must oppose this amendment, otherwise the Freedom of Information Bill will be diluted by new legislation. Civil servants might be inhibited if they are asked questions at an early stage. Perhaps, however, it will ensure that those who draft strategy statements get it right the first time so that they will not come under such scrutiny. If strategy statements are the way to go in the future, it would give a better focus on the people making strategy statements. As Senator Lee said, nobody knows where they will go because of the time limits being placed upon them. This is an unfortunate dilution of the Freedom of Information Act before that Act even comes into force.
I find this amendment quite surprising. Perhaps "surprising" is not the right word because it is unwarranted. I described the Freedom of Information Bill as the "yes, but" Bill when it was debated in the House and I am now confirmed in my view that it was such a Bill. In other words, the general philosophy is that information should be available to the public — that is a philosophy with which I would agree — but there are many reasons for not furnishing information.
I am prepared to accept that when a document is being drafted within the Department it should probably reach completion before it becomes available, but will this be the "anti-leaking" element of the Bill? The Minister talked about the potential for adverse publicity when he moved the amendment. We can be fairly sure that the leaking system would work extremely efficiently if there was a potential for favourable publicity before the strategy statement had been approved.
This is an immediate example of the limitations of the heralded Freedom of Information Act. The question then arises: how many more pieces of legislation with similar limits will there be because we do not want to abide by the terms of a Bill which was put before the House, approved and welcomed by all? Although I can understand the reason for it, this is quite extraordinary and I do not find it acceptable.
I must share the concern expressed by Senator Lanigan and Senator Dardis. It is disappointing that last week we celebrated the passing of the Freedom of Information Bill, 1996, and congratulated ourselves on the fundamental change this would make to the ethos of the public service and almost first thing the following week we are dealing with a Bill in which the "yes, but" mentality appears to operate.
It is fair to say that not everything which is discussed or proposed in Departments can become public knowledge on the day of discussion. There is a reasonable question to be raised about where a balance is drawn between what is and is not necessarily confidential in the course of policy formulation. Perhaps it is just unfortunate that this Bill comes before the House at this particular time.
I want to probe the implications of this a little further. I got the impression that this was meant to protect civil servants. As I read it, it seems more likely that it will be used to protect politicians because the Minister used a delicious phrase with regard to an original draft. He spoke of where it "does not survive rigorous appraisal". The implications of that would be that a strategy statement, composed by the secretary general and the brightest and best minds of the Department, may be lacking in rigour. Who is to provide the rigorous appraisal which finds the departmental submission defective in terms of rigour? In reality, what we mean by that is that there will be considerations other than administrative or Civil Service rigour which will influence the amendment. In that sense, it is politicians more than civil servants who are intended to be protected by this amendment.
Where the question of optimising public benefit in the matter arises is whether it is possible to achieve the degree of confidentiality in the formulation of policy at a certain higher level than is envisaged here. It would be in the interest of public discourse if there was greater public access to thinking at an earlier stage of policy formulation partly because a great deal of what tends to be deemed confidential, because there is an ethos of confidentiality, de facto need not be confidential. It may well be that everybody in their senses would agree to 90 per cent of the contents of these things; but one invokes or fosters an ethos of confidentiality, the subversion of which was the purpose of the Freedom of Information Act, by making documents 100 per cent confidential.
On a specific matter, the amendment states that the Freedom of Information Act shall not apply to "the unamended version of a strategy statement that is approved under subsection (1)(c) with amendment". Does that mean that if the strategy statement is approved by the relevant Minister without amendment, for which section 5(1)(c) allows, it will then come into the public domain? Is it only the strategy statement which has been amended after this subsequent "rigorous appraisal" which will not be available? After all, if it has not been amended, it is in the public domain already. That is a way of informing the public that there has not been an amendment, that this is the original strategy statement. Is my reading of that correct?
Would it be possible to bring this more into accordance with the spirit of the Freedom of Information Act? Is it necessary to have this blanket blockage on the entirety of an amended version? I am teasing this out as I stand on my feet, so I am not suggesting there is an infallible way of doing it. Why the entirety of a document should be blocked before a limited section has been changed is not entirely clear to me. Obviously, it then allows people to home in on the changed area. Nevertheless, if a document is amended, there will be the suspicion that large sections may have been amended, which would almost be a vote of no confidence in the Civil Service. I would have thought one might wrestle with the ways which are necessary to preserve what is deemed to be essential confidentiality and at the same time release more information into the public domain or at least not try to block it under the Freedom of Information Act.
I am delighted to say a few words on this timely debate because the lack of information brought down one Government and almost brought down a second six months later, when there was a dispute about officials A and B and important issues which affected the State, and politicians had to carry the can.
I agree with Senator Burke. Civil servants and local government staff should be accountable. The day of small local authority developments with the ass and cart are long gone and projects now cost millions of pounds. If a major mistake is made, one can never find out who made it. The county manager will defend the people who made it, but one will never find out and the person concerned will never be made accountable. We have moved away from that and it is high time we rectified that at all levels and left the dark ages. For far too long there have been people in responsible positions who may not have given their full attention to the job on hands and major mistakes have been made. The case of officials A and B cost taxpayers a great deal of money.
Six months after the collapse of the Reynolds Administration, the foundations of the current Government were rocked because of a lack of accountability. A democratically elected Government must be able to obtain the truth and those responsible for administering the system should be obliged to answer for their actions. Unlike Pontius Pilate, I am not seeking anyone's head on a plate. However, people in positions of power at local or national level should be responsible for their work and be accountable to the Minister of the day.
I am reluctant to interrupt the Senator but he appears to be addressing section 4 rather than the amendment currently under discussion.
I will be guided by the Chair's advice. The spirit behind the Bill is laudable and I agree with Senator Burke that it is high time we moved in that direction. If accountability can be achieved in private business, why can it not be achieved at Government and local authority level?
I reiterate that this proposal does not apply to the strategy statement, which will be placed in the public domain, in full and in a completely transparent way, under the provisions of the Freedom of Information Bill. In addition, there is nothing attaching to the strategy statement, including previous drafts, etc., which cannot equally be produced before committees of the Oireachtas. Therefore, the question of concealment of information is not at issue. What is at issue is the necessity to give civil servants and Ministers space to enter, discuss and consider drafts, table and evaluate proposals and, ultimately, develop a strategy statement which can be placed, in its entirely, in the public domain. If any Oireachtas committee has concerns about any aspect of the process, it will be free to obtain the fullest information, which can then, if required, be placed in the public domain.
To expose the freedom of information legislation to the kind of necessary cut and thrust dialogue which should go into the making of a good strategy statement would be likely to inhibit the working of that system to its fullest potential. That system is not designed to protect one side or the other; it is aimed at protecting the relationship so that both sides, civil servants and politicians, can engage in the interaction necessary to produce a good strategy statement. This will assist and facilitate the efficient, modern approach untilised in the operation of Departments to which Senator Lee alluded. I do not believe it represents an attempt to prevent the public from gaining access to information in the sense that, through the Oireachtas committees, such information can be quite easily obtained. I ask Senators to accept that there is nothing more to the matter and that the process outlined is a sensible way to proceed.
It is obvious that when the freedom of information legislation was introduced——
The Senator stated earlier that this represented a precedent or the thin end of the wedge. However, I assure him that it is not the intention. The provision is very specific and relates to a narrow and limited function involving the preparation of a strategy statement. It has no special implications. I do not believe it would be the practice of any Government to try to limit, on a regular basis in legislation, the operation of the Freedom of Information Bill about which there is general broad agreement.
I am glad to hear the Minister of State's assurance. It is important he placed it on record, that this is not intended as a precedent or thin end of the wedge. The week after a wide welcome was given to the freedom of information legislation, we were dismayed to believe that that legislation would not apply, for whatever reasons, to certain provisions of the Bill. This seemed to mean that what had been given with one hand was being taken back by the other. For this reason, I welcome the Minister of State's explicit commitment that this is not intended in that way.
I accept that there must be a reasonable balance of confidentiality in the formulation of policy at certain stages. The Minister of State made a good case in that regard. However, I suspect that if one had more time to consider this issue in detail, one might develop a slightly different formulation which would be more satisfactory to those who sought the most liberal freedom of information legislation possible. The Minister of State's assurances go some way towards alleviating my own anxieties.
Amendment put and declared carried.
Section 5, as amended, agreed to.
Section 6 agreed to.
I move amendment No. 4:
In page 7, line 24, to delete "the" where it firstly occurs and substitute "general policy".
I am concerned that the nature of the directions a Minister might give to a secretary general of a Department should as far as possible be clarified. In the context of my earlier amendment about areas of personal responsibility as distinct from institutional responsibility, these should also be confined to matters of real substance and should not involve possible trivia. For that reason I suggested a Minister ought to confine himself to using the phrase "general policy" when giving directions because, as it stands, the provision is totally open ended in this regard. There is a policy implication in this amendment — it does not simply involve a stylistic revision — which concerns the legislative image and perception of relation between Ministers and secretaries general. I would welcome the Minister's response on this point.
This section, as set out in the Bill, would allow a Minister to give a direction to a secretary general on any matter other than a dismissal. Senator Lee's amendment would confine this power to the general policy obligations of a secretary general. I am conscious that earlier proposals for public service reform, particularly those contained in the report of the Public Service Organisation Review Group in the late 1960s, emphasised a distinction between policy and execution. I accept that the board delineation of functions between Ministers and secretaries general set out in the Bill attempts to follow in some respects this broad distinction. However, our experience and that of other jurisdictions in the intervening years suggests that the distinction between policy and execution is less easy to effect in practice than previously thought and securing consensus on whether a specific matter falls on a particular side of the boundary line tends to be difficult. That circumstance alone would make me wary of any restriction which confined a direction specifically to the words "general policy obligations."
There is, however, a second point to which I already alluded which involves the need to preserve, because of the strict requirements of our Constitution, the position of the Minister as the person in charges of his or her Department. Whether he or she has a wide power to direct is possibly the crucial touchstone by which the reality of a Minister's chargeship can be ascertained. For these two broad reasons, the difficulty of defining "general policy obligations" and in particular because of the constitutional imperative that the Minister is the person in charge, I cannot accept the amendment, although I accept the spirit in which it is proposed.
The more I hear about constitutional imperatives, the more I think of the need to revise the Constitution. In general, if there is agreement in terms of operational efficiency, invoking the Constitution is a way of inviting suggestion for its revision.
I take the Minister of State's point that the distinction between policy and execution cannot be drawn in black and white in many instances. That was probably too abstract a distinction as drawn originally in the Devlin report because they can feed on one another and influence one another. That said, I would seek a phraseology whereby if one were to amend a general policy one would be talking about general execution as distinct from anything else.
It is important in terms of good public management to convey that it is not the responsibility of a Minister to consider that he or she should be involved in possibly minute detail as a matter of course. Mindsets are important in such matters and the sooner Ministers acquire managerial mindsets the better — as distinct from the mindset that anything which arrives on the desk can be dealt with as a matter of course. It is important to instil that ethos into governmental concepts of decision making. While the Minister of State's invocation of the constitutional dimension adds a further layer which had not been in my mind when I drafted the amendment, from the point of view of management efficiency and the way in which Minister's conceive of their roles, the more that can be sharpened and tightened the better. My amendment goes in the right direction even if it cannot be accepted at present.
The point the Senator made about the Constitution is as relevant to this issue as to others he raised and I will pass on his points to the Minister. There is a specific reference to the giving of instructions in writing. From my limited experience I do not think Ministers would be disposed to giving written instructions to secretaries on minor issues. There is constant dialogue between Ministers and senior civil servants but a matter would have to be fairly serious before a Minister would put pen to paper to issue a direction in writing. The likelihood of it being abused over every minute detail is fairly remote. I do not want to harp on the point, but the constitutional imperative does not allow us to accept the amendment. However, the Senator's comments are well taken.
Amendment, by leave, withdrawn.
Section 7 agreed to.
Section 8 agreed to.
I move amendment No. 5:
In page 7,lines 34 to 36, to delete paragraphs (a) and (b) and substitute the following:
(a) provide policy advice in relation to the subject-matter of the assignment and related matters,
(b) achieve the outputs specified in the assignment,".
This may appear a somewhat precious amendment in that it proposes to rearrange subparagraphs (a) and (b) in the list in section 9 (1). However, it is important in terms of the ethos or mindest of the Bill. To my mind, the first responsibility of a senior civil servant — it is senior civil servants who are in question here although assignments are made — is to provide policy advice to the Minister and further up the line. People of the highest possible calibre are recruited to become senior civil servants on the basis of an assessment of their quality of mind and their capacity to give high quality, disinterested and informed advice. I consider that the top priority.
It may be indicated that the paragraphs (a) to (f) are not listed in a hierarchy of importance, but we need not linger over that. Paragraph (a) refers to achieving outputs specified and paragraph (b) to providing policy advice. I would like them reversed because it seems to me that policy comes before achievement of the outputs which result from policy decisions. I would like that mentality carried as far down as possible in departmental structures. It may seem a pedantic revision to alphabetical rankings but there is something more important involved.
I do not wish to engage in an argument about which of the two important priorities is the more important. If there is agreement in the House I am prepared to accept the amendment.
I thank the Minister of State.
Amendment agreed to.
I move amendment No. 6:
In page 8, between lines 12 and 13, to insert the following subsection:
"(3) Appeals Officers with independent authority to receive and investigate complaints from the public on any function or matter which has been assigned under this Act must be appointed in each Department or Agency where such officers do not already exist prior to the commencement of this Act".
I move this amendment on behalf of Senator Roche. I think the proposal makes sense and I would welcome the Minister of State's comments on it.
While some Departments or officers have appeals officers, their function is not so much to deal with complaints as to adjudicate on decisions made by others which are challenged. They tend to operate with regard to very specific categories of decisions rather than as a local complaints officers, which Senator Roche envisages.
The Bill envisages a more formal assignment and recording of assignment of responsibility than exists at present. Assignments begin from the Minister to the secretary-general and cascade downwards through the hierarchy of the Department or office. The range of matters to be formally assigned includes giving advice, ensuring service quality or value for money. Taken at face value, Senator Roche's amendment would provide for a person in each Department who would deal with complaints against the secretary, for example, in relation to value for money, quality of advice etc.
The Bill gives a formal statutory basis to certain arrangements which have come into being and operated on an informal, extra-statutory basis for many years. It does not give the various civil servants involved statutory powers which they exercise outside the purview of Ministers, the Oireachtas or its committees. The Bill is clear that everyone below the level of secretary-general in a Department to whom a function is assigned is accountable to the secretary-general, who is in turn accountable to the Minister. Therefore, accountability will not be a mere formality, particularly when it is combined — as the Minister, Deputy Quinn, indicated that it would — with a system of performance management.
Senator Roche has a professional expertise in this area and I do not have to indicate to him that there is an Ombudsman to deal with unresolved problems between Departments and their clients. In his report the Ombudsman spelled out what he sees as acceptable standards of administrative procedures. My Department is preparing a series of amendments to the Ombudsman's legislation and legislation on administrative procedures which it is intended to link in the near future.
Senator Roche is familiar from previous experience with how the Civil Service works in practice. He might hold the belief that each official in the chain of command is so committed to rallying around a subordinate against whom a complaint is made that nothing less than 30 or so independent complaints officers can ensure fair treatment in this respect. My experience, which is not as extensive, either as a public representative or in the three Departments in which I have held office, does not lead me to the same conclusion, although I understand the Senator's thinking. The issue could be more appropriately dealt with in the context of the Ombudsman legislation. Accordingly, I do not support the amendment.
Amendment, by leave, withdrawn.
Section 9, as amended, agreed to.
Government amendment No. 7:
In page 8, line 14, to delete "such" and substitute "any".
This is a minor drafting amendment. The section provides for secretaries general and heads to appear before Oireachtas committees in relation to the strategy statements of their Departments or offices. The intention is to make them more clearly accountable than they are at present for the practical management of their Departments and offices, which is a counterbalance to the increased responsibility they are given under the Bill.
Amendment agreed to.
Government amendment No. 8:
In page 8, line 15, after "designated", to insert "for the purpose of this section".
This amendment removes any possible ambiguity in the existing text by making it clear that designation is for the purpose of this section.
Amendment agreed to.
Question proposed: "That section 10, as amended, stand part of the Bill."
Under this legislation a wider range of public servants will appear before Oireachtas committees than has officially been the case hitherto. It is vitally important that a good working relationship exists between civil servants and such committees. There is a danger of a "them and us" syndrome emerging, if it has not emerged already. In terms of good government, the more both sides see each other as part of the same team as distinct from playing against each other, the better it will be. Inevitably there will be conflict from time to time, but the ethos of collectivity or co-ordination is most important in this respect. I hope both sides will remember they are playing for the same side.
I am glad the Senator made that point. Some public representatives have unnecessarily contributed to that tension. At times it might be a reflection of the frustration which backbenchers and Senators might feel at not being able to tackle the problems that when they get access to a civil servant who has perhaps made a mistake or an error of judgment, they wish to hammer him or her in public. That has created great fear among civil servants of coming before committees. It is necessary that both sides try to resolve that conflict without taking from the cut and thrust which is important to the public.
Question put and agreed to.
I move amendment No. 9:
In page 8, lines 48 to 50, to delete subsection (3) and substitute the following:
"(3) The terms and conditions of employment and the qualifications of a Special Adviser, shall be such as may be determined from time to time by the Minister for Finance, subject to the prior approval of both Houses of the Oireachtas."
I am not one of those who are so churlish and unsporting as to regard this section as that which is closest to the hearts of members of the Government. I put down this amendment to seek clarification. If one were to seek a criticism of the Bill from those who believe it is welcome legislation which is moving in the right direction, it is the danger that two parallel authorities existing within the same Department can lead to conflict, contradiction and confusion and that the authority of the secretary general within the Department is in danger of being undermined by this perceived parallel authority.
I have long advocated the introduction of some type of outside advice and perspective, although not necessarily the cabinet system with which we have become familiar in Brussels or Paris. The possibility of an outside perspective should be incorporated into how we approach these matters because many departments historically tended to become too introverted. I do not oppose the principle of the section but am simply looking at how it can be made most effective.
My amendment refers to terms and conditions of employment and to qualifications. There is no reference in the section to the qualifications required by a special adviser, aside from being nominated to be a special adviser. All civil servants must have specified qualifications for entry to the Civil Service. Special advisers are not civil servants in that sense. However, there is a danger of not just two parallel streams of advice or influence but of two parallel streams with potentially conflicting concepts and views. It would be unfortunate to make provisions in the legislation for the appointment of people to potentially influential positions with, possibly for the first time in legislation, no reference to the qualifications required. Even if one states that no specific qualifications are required and that somebody can be parachuted into a position, I would like to see the reason for it.
What will the qualifications be? We must look at the functions of a special adviser. Incidentally, the number of special advisers is open ended. In terms of good management practice, I presume there will be realistic number for particular circumstances even if one cannot predict what it ought to be. "One or more special advisers" is an elastic concept of what good management practice might require from time to time.
The functions of the special adviser is, first, to provide advice. The type of advice is not specified. What qualifications are required for somebody whose first functions is to provide advice to a Ministers? I do not presume to know and I would like an explanation of what is envisaged, knowing that much thought went into the conceptualisation of this requirement. The second function is monitoring, facilitating and securing the achievement of Government objectives that relate to the Department. That obviously requires people of high calibre and great sensitivity to policy formulation. I would be more confident if specification about the requirements of that person were included in the legislation. These people do not grow on trees and a case could be made for some type of qualification requirements being stitched into the legislation.
I have also included the terms and conditions of employment being subject to the approval of the Oireachtas for this reason: what are such people worth? If they are to be high level functionaries, as it appears from their responsibilities defined in this section, and they are to provide unlimited advise to the Minister, how does one put a reasonable value on their services?
I raise this from a broader perspective because I believe we do not sufficiently reward our best civil servants, by which I mean those giving good advice. They are worth far more than their remuneration acknowledges. They are not rewarded enough for the work they do or for being responsible for public funds. If a good public servants gives good advice, they can save or make the State substantial sums of money for which, in private employment, they would get bonus payments and performance recognition worth much more than anything they would get in the public sector. However, a bad public servant can correspondingly lose a substantial amount, but I like to think the bulk of our senior public servants are very good.
I wonder what the Government thinks would constitute a fair and equitable remuneration for a special adviser in the light of the seriousness of the responsibilities he or she would have to undertake.
I find the insertion of this section in the Bill amazing. I do not know what it has to do with the legislation and I cannot understand why it is there. However, if it is to be there, I support Senator Lee's amendment. It will be noted that Senator Roche and I have formally expressed our opposition to this section. There seems to be a proliferation of a special advisers. I am prepared to accept that Government Departments and Ministers should have people available to them from whatever area is the Department's responsibility and expert advice is welcome. While much of that can be given on a voluntary basis, there is a difference between it and with what this section is concerned, which is political advice. Section 11(2)(a)(i) deals with the special adviser who can assist the Minister by providing advice. If one examines the role of secretaries general contained in section 4——
That might be more appropriate to when we are dealing with the section.
I said I supported Senator Lee's amendment.
We must dispose of the amendment before we proceed to the section.
I think Senator Lee strayed into some of the areas in which I now involve myself. However, I accept the Chair's ruling and will wait to speak to the section.
I wish to speak specifically to Senator Lee's amendment. I oppose this section and will deal with it later. Senator Lee made some valid points in his amendment and contribution. There is a proliferation of advisers who are like nettles, growing everywhere, and they are eating into public funds. What are they doing?
The Chairman will have to let me contribute now.
This touches on the issue of the qualifications of advisers, with which I want to deal, as well as the salary levels and the terms and conditions of employment, which are specifically mentioned in Senator Lee's amendment. Some advisers are political hacks paid from the public purse. One adviser—I will not mention their name because they are not here—employed by a Minister of State wanders around every local authority housing estate, knocking on doors and asking if people have any problems because the Minister of State will deal with them. It is "gombeenmanism" of an unpardonable type.
Would this be happening in Wicklow, by any chance?
It would. Taxpayers are paying approximately £40,000 per year for that behaviour. I have no problem with cumann and branch secretaries doing this on a voluntary basis—and they do it all the time—but I and, I think, most taxpayers have a problem with it being paid for out of taxes.
Senator Lee is correct on the issue of qualifications. We are asked here to sign a blank cheque to provide for advisers ad infinitum. There is nothing to stop a Minister having 430 advisers in his or her Department and office. The proliferation of personnel in ministerial offices since 1981 should be examined as there has been an exponential explosion. It is costing taxpayers tens of millions of pounds every year. Ministerial offices now have four dozen personnel working in them where in 1981 there had only two or three. That is partly a reflection of the changing nature of political life. However, there are also dozens of advisers and constituency secretaries and Senator Lee is correct when he makes the point that the issue of their numbers is not dealt with in this section.
We will deal with the qualifications and not the numbers of advisers, Senator.
I will deal with numbers later on. Senator Lee is correct to ask what we are going to get out of paying someone £45,000 to £47,000 per year. We have no indication. Is a civil servant not providing advice? Are they not graded? Are there not special qualifications and competitions to enter the services? Senator Lee is correct when he says we are paying for any number of these personnel, a shadow civil service, without requesting any requirements of qualifications or experience. The only requirement is that they be politically affiliated.
I remember when advisers were first introduced because I thought it was a good innovation. At the time it could be seen why they were brought in because they added something to what was done in Government Departments. They provided Ministers with the kind of political advice and co-ordination which they do not get nor should they expect from civil servants. All we have now are political hacks doing the constituency work of Ministers. A way has been found around the limitation placed on the numbers of people in Minister's offices. That is reprehensible.
All political parties in power in the past ten years, including mine, bear responsibility for this. In the last Government, which comprised Fianna Fáil and the Labour Party, there were a number of advisers but all those employed by Ministers from my party, with one exception, were civil servants. The other party in Government employed people who were all clearly political and there has been a proliferation of them since. There is no qualification requirement for these advisers other than they be political. There is nothing to stop a Minister in the next Administration from appointing every secretary in their constituency as an adviser. One could logically argue that this would give the Minister an insight into the feeling on the ground. However, it would not be agreed to by the taxpayers.
This provision is deficient on several grounds. Senator Lee correctly pointed out that there are no requirements regarding qualifications. There is no mention of salaries — it is an open ended cheque. The top adviser is paid the same if not more than a senior civil servant.
The Senator can deal with that when he speaks to the relevant section.
I hope this section will not stand. If it does, a measure similar to Senator Lee's amendment is necessary. I will support the Senator's amendment as the second best option to removing the entire section.
I am an enthusiastic supporter of the objectives of this Bill as are most Members of this House. Senator Lee is attempting to steer the Bill in the right direction.
I am concerned about this amendment. Senator Roche made a strong case for the need for some control on special advisers. I have some experience of special advisers. I am not talking about the kind of advisers the Senator spoke about. These advisers have been very beneficial to the operations of Departments. A colleague of mine worked without pay in relation to purchasing by the Department of Health. His contribution was very beneficial to the Department.
If this House was to determine the qualifications needed by every adviser, we might not be improving the management systems in the public service. Senator Lee referred to best practice. It would not be best practice if the appointment of every adviser had to come before this House.
I have some difficulty with the use of the term "qualifications". Senator Lee's proposal would result in us having to be informed of, and discuss, the qualifications of every proposed adviser. That is not best management practice. However, I am supportive of what the Senator is trying to achieve. He is trying to introduce some control on the proliferation of advisers, who are costing huge amounts of money to the taxpayers. They are not necessarily being selected for business or management expertise but for political reasons. We need to hear the Government's response to this and the next amendment. I will wait until I hear those responses before deciding how to proceed.
This section should be deleted. If not, I favour the amendment. I wish to deal with the need for the prior approval of both Houses of the Oireachtas. The primary of Parliament is being continually eroded. Decisions are increasingly made by the Executive. These decisions are then rubber stamped by Parliament. The voting majority in the Houses supports the Government's decision. I have no difficulty with that, but there is a tendency for Governments of whatever complexion to ignore the view of Parliament. That is dangerous. For this reason it is appropriate that advisers should be subject to parliamentary scrutiny. The Oireachtas approves the formation of the Government and the Cabinet. We should also approve advisers if they are regarded as part of Government. In America, committees examine the suitability of candidates for senior Government positions. That is a good system which we should imitate.
Programme managers and special advisers have a specific function to ease the passage of legislation through Departments. This Government is very cohesive and the system of advisers has worked well over the past two years. If the previous Government had more or better advice it might still be in Government. The current advisers have performed their tasks well.
We will not mention the Department of Justice.
Programme managers and other advisers deal with complex matters such as the Intergovernmental Conference, ECOFIN, summits and the Council of Ministers. A Minister who employed a dud to deal with these matters would be foolish. Advisers are highly qualified and should not be referred to as political hacks. We can all talk about jobs for the boys. There are strict terms and conditions laid down for the appointment of these advisers.
The Minister will remember the Cork by-election in which he was elected. During that campaign one of the Minister's colleague parties in Government —Democratic Left — circulated a blue leaflet in the constituency with a picture of a Rolls Royce leaving Government Buildings. That leaflet referred to political hacks being employed as advisers. I did not coin the term. I have a copy of that leaflet which was used throughout the by-election. It makes interesting reading, particularly considering Democratic Left's actions on coming into Government. No one took to the Mercs and perks of office more than our socialist friends.
The functions referred to by Senator Calnan are carried out by the Civil Service. The Civil Service deals admirably with ECOFIN and the Intergovernmental Conference. Senator Burke made a valid point that advisers are there to pull together the diverse elements within the legislative programme. I understand that point. However, my concern is that the concept of adviser and programme manager has been debased by this Government. I can provide the Senator with evidence of an adviser being paid in excess of £40,000 a year from the taxpayers' budget. As we speak, he is visiting housing estates in Wicklow in a State car.
He is standing for election.
This gentleman is not standing for election. This person works for the other Minister of State. The Minister knows that the reality is that this grade has been debased. If this Bill is to stand, some form of parliamentary clearance — I take the point made by Senator Quinn that an adviser's job description cannot be written — is necessary. Currently, the only scrutiny and control for this proliferation of nettles are parliamentary questions, which one has to ask every six months. We would not be doing our job if we did not put a halt to this.
If we are to allow this section to stand, the essential elements of Senator Lee's amendment must be included. There is a series of controls on numbers, qualifications and the cost of civil servants, which is right and proper. Since 1981 there has been a progressive series of policies to reduce the number of civil servants. The first programme managers, or advisers as they were called, came in the mid-1970s and the number has increased several hundred per cent. There has never been so many advisers. Perhaps Senator Burke is correct in saying many hands have to be held in a multi-party coalition. The reality is that this section gives a blank cheque, not just to this but to every Administration from here to Tib's Eve, to do what it wants with the public purpose. This is not good legislation. I have no doubt that if the Minister was in Opposition and a Government of a different hue produced this legislation, he would make the points I am making.
There is a role for advisers provided they are controlled, qualified and make necessary inputs which cannot come from the full-time Civil Service. We are giving people a blank cheque. We will regret it if this section is agreed — perhaps not in this Administration but in those to come. There has been an exponential increase in the number of advisers over the last ten years. It is up to us as lawmakers to deal with this issue comprehensively. We are not doing that in this legislation.
I am not responsible for what Democratic Left does in a Cork by-election. To be honest, I think some of the material referred to by Senator Roche was brought out by my party.
Some hard things were said in those two by-elections about overspending and Ministers jetting around the world, some of them correctly.
I do not wish to sound high and mighty, but I have only one special adviser. He is a qualified chartered accountant with experience in business. He earns less than half of what the market could pay him, which he is happy to do. I do not feel I have to defend any abuse in my Department. Without him, I do not feel I would be as effective. He has never knocked on a door in my constituency nor will he.
He has been to Cork about four times, mainly to see his mother. That is the background I am coming from. I am also aware my party was a severe critic of this principle when it first emerged. It has now taken to it like a duck to water. I do not deny that. In principle, the system is quite effective.
The amendments proposed by Senator Lee broadly fall under two headings. The first is that the Minister for Finance should specify the qualifications of a special adviser. The fundamental thrust of the section as proposed in the Bill is that advisers have a relationship with the particular Minister or Minister of State which will differ in character from that of a permanent civil servant. The skills and attributes which are and will be required of them will be dictated by the problems and the agenda facing the particular Minister. What is demanded of them will be influenced by his or her perception of what is needed to ensure that part of the Government's programme for which he or she is responsible progresses with the minimum of difficulty and the maximum awareness of the Minister's priorities and agenda and the relevant importance to them of actions taken.
In some instances he or she may be selected to provide a Minister with skills which complement his or her own or to provide a counterbalance or devil's advocate element to advice of a technical nature coming from official sources. From my own experience the most important qualifications are those of trust, reliability and competence. I do not know how these can be packaged into a conventional specification of actual qualifications, a difficulty alluded to by Senator Quinn.
The second suggestion included in Senator Lee's amendment is that whatever qualifications are specified by the Minister for Finance should be subject to approval by the Houses of the Oireachtas. At present the Minister for Finance, and the full weight of the advice available to him in his Department, has to be invoked on remuneration. In my experience it takes a long time before that authentication is given. I am not sure what precise mechanism is envisaged in this amendment. Before anyone is employed is it envisaged that on the appointment of a new Government, each House should debate, Department by Department or office by office, the specific qualifications to be sought when advisers are recruited; or does the Senator envisage a general qualification laid down in advance and applicable to all future appointees? I do not think either of these is feasible or practical.
It has to be borne in mind that advisers, even more than politicians, are birds of passage and are not permanent appointees. The fact that each appointment under this Bill has to be made by Government rather than an individual Minister or Minister of State provides sufficient protection against abuse, as does the general accountability of Ministers through the Oireachtas.
Permanent civil servants being made advisers is a matter of choice between individual Governments and Ministers. Senator Roche is right in saying that most of the programme managers in the last Fianna Fáil administration were civil servants. There is no saving to the taxpayer in this. If a civil servant is removed from his or her normal departmental role, he or she has to be replaced. From the taxpayer's point of view, there is no difference between using a permanent civil servant or someone outside the Civil Service.
For these reasons, I do not intend to accept Senator Lee's amendments.
I accept these issues require teasing out. The contributions by Senator Dardis, Senator Quinn, Senator Roche, Senator Burke and Senator Calnan have illustrated some of the reasons I formulated my amendments along these lines.
I support the use of outside expertise which may not be available within the Department. It helps to broaden departmental perspectives if that expertise can be incorporated effectively into decision making. However, I am struck by what has been said by those with more experience of the political process. I accept that many existing and previous advisers, including the Minister's, have contributed far more than they will get back from the State in remunerative or other terms. They have made a significant contribution. It is important in particular to facilitate cross departmental activities for which the Civil Service by virtue of its structure is not well equipped to cope. Problems often transcend Departments.
I am concerned about the casual legislative approach to genuine, objective problems. There is casualness in the open-ended approach outlined in the Bill and the almost complete absence of information to the Houses of the Oireachtas about qualifications of advisers and what may happen as numbers proliferate. Senator Roche was emphatic about the proliferation of numbers. I had not realised they had expanded so rapidly since 1981. The provision of "one or more" is so open-ended that Ministers or Ministers of State could become used of the idea of an endless number of special advisers — and there are always political arguments revolving around Government, constituency, etc. as to why there should be more.
It is time to take a more considered view of the role of and controls over special advisers. We need a clearer idea of how we envisage special advisers contributing significantly to the effectiveness of Government. I do not think section 11 is sufficiently well conceptualised to get the best from the role of special advisers.
Senator Calnan referred to the high level tasks with which a number of special advisers are entrusted. I have no problem with this. Indeed, I do not see why they should be present if they are not involved in high level decision making. However, this is all the more reason for ensuring that their qualifications are commensurate with their responsibilities. This does not mean that every individual has to be cased in a detailed way by the Houses of the Oireachtas, although there is something to be said for Senator Dardis's idea about bringing in a degree of interrogation associated with the American system.
In his introductory speech the Minister said it was no exaggeration to say that this Bill is the most important legislative provision affecting the administration of central Government since the original Ministers and Secretaries Act, 1924. Section 11 deals in a very casual way with a significant component of public administration which may grow in importance and will certainly grow in numbers. We need to look very closely at its implications.
While I accept the principle of the section, I remain uneasy about its looseness. I will wait to hear what Senators Roche and Dardis have to say in support of opposing the section rather than amending it.
I was not aware of the proliferation of special advisers until today. This amendment has been useful in that it brought this proliferation to light. It needs some control, although I am not sure how best this can be achieved. I am concerned at the Minister's response as he has not relieved the concerns expressed. I understand the deep and clear concerns being voiced by others apart from those who have spoken today. There is concern about the proliferation of advisers among the public and if knowledge of that proliferation was widespread there would be more concern.
The Constitution controls the number of Cabinet members — at least we thought there was a control. The number now seems to be 15.5. Perhaps the Minister could suggest or take into account suggestions of how to overcome the problem of the dramatic increase in special advisers and the lack of control on them apart from that exercised by the Minister for Finance. The Minister for Finance has not been too successful in controlling numbers. If this is best management practice I would like to be convinced. I would like the Minister to say how he intends relieving the concerns expressed.
Senator Dardis referred to the American system. The American system is much less accountable in comparison to our own as there is no parliamentary accountability. Ministers are appointed by the President rather than elected.
But there is public scrutiny.
If there was a normal parliamentary system with the Minister coming before Parliament on a regular basis there would be much less need to bring advisers before Congress. The parallel with the system in the United States is not entirely valid.
Senator Roche spoke about proliferation. There are numerous advisers today in comparison with 1980 when there was none. However, the number is very strictly controlled. When I came into office I was given a memorandum outlining in precise terms that I could have three personnel by way of programme managers and special advisers as a Cabinet Minister and two as Minister of State. This is very clear cut. There is no question of bringing in all cumainn secretaries and appointing them as advisers. There are specific regulations from the Government allowing Cabinet members to have a programme manager and two advisers and Ministers of State to have two such personnel.
That is not provided for in the Bill.
I appreciate that, but I wish to kill the notion raised by Senator Quinn regarding the potential for proliferation of advisers and the possibility that a Government could facilitate that proliferation. The current numbers provided for is reasonable and I find the prospect of Governments embarking upon a proliferation of numbers incomprehensible. There may be an argument for a Government to decide that one adviser might be warranted for a particular Department. We did not feel the Bill should contain definite numbers.
The position is not being abused in my view. One could certainly say that, because there were no special advisers in 1980 whereas there are today, there has been a huge increase. I do not think there has been any significant increase per Minister between this Administration and the previous one. I do not have precise information on that but I think the system has evolved over the past ten years to the point where we have reached a plateau on numbers. In relation to the salary levels of special advisers, the public service element of the Department of Finance as well as the Minister are very involved with those to ensure that people are not out of line.
While I made the comment that I regarded my own special adviser as being capable of earning more money elsewhere, I am happy to say he is thrilled to be doing the job. He and I recognise that he will probably be more valuable when he returns to the workplace as a result of his experience. I am not making a case, nor is he, for paying him more. I am merely making the point that he is not overpaid and that, generally speaking, there is a rigid approach to the issue of special advisers and programme managers.
When I was Minister for the Marine, my programme manager there was an actuary who had come from Irish Life. He could clearly be earning more money elsewhere but is happy to do the job he is doing and is gaining a good deal of valuable experience. In that sense, the remunerations is fair because the experience of being close to Government is unique for somebody who will be returning to the private sector. The system works well, in my view, and I do not think there is any huge proliferation in numbers. I am sure Senators will want to comment on the potential for such proliferation when we discuss the section.
I accept the relative austerity of the Minister's views on the way in which these matters should operate. Perhaps that is the way which they are operating at present, I do not know the details.
The legislation states that one or more special advisers may be appointed. There is no reference made to upper limits, to orders of magnitude or to plateaux. A plateau could become a basis for continuing growth.
The Government is accountable to the Houses of the Oireachtas for its decisions.
It may be, but under this legislation——
The amendment does not refer to numbers. The Senator may speak only on the amendment.
The amendment refers to terms and conditions of employment which does involve numbers. The "one or more" seems to be an integral part of the concern being expressed about the potential for exponential growth and terms and conditions of employment and the qualifications of a special adviser are part of that. I have to express my continuing unease about the potential development there. Although I accept what the Minister says, my anxieties have not been allayed.
Have they been partly allayed?
They would be if the Minister was permanently in office.
I regard this issue as being extremely important and I would like to return to it on Report Stage. I will endeavour to use phraseology in which the Minister may see some merit at that stage.
Amendment, by leave, withdrawn.
Question proposed: "That section 11 stand part of the Bill."
We have not had an opportunity to speak on the opposition to the section.
The amendment has been withdrawn. We are proceeding to the section.
On a point of order, when I spoke earlier I was asked not to continue as I was not speaking on the amendment. I was informed that I would have an opportunity to speak on the section, and register my opposition to it at a later stage. That is what we want to do now.
We were exercising a great deal of restraint. It is very difficult to speak on an amendment without straying into the issue of numbers. My grave concern with section 11 is that we are giving an open-ended and unlimited remit to every Administration from this day forward to introduce as many advisers as they wish. That is bad law. On the basis of what the Minister has said, the number of advisers has gone from three or four in the mid-eighties to a minimum of 75 today. That is proliferation by any standard.
I think the words "relative austerity" are appropriate in the Minister's case. I could not conceive of a case were the Minister would instruct his adviser to start knocking on doors in council estates in Cork asking people if they had any problem with their drains. Unfortunately, not all the Minister's colleagues are exercising the same degree of constraint. There is a well documented case in Wicklow where an adviser employed in the office of a Minister of State is doing precisely that. Anybody could do that; it is not necessary for an adviser, who is being paid £45,000 per annum by the taxpayer, to do that. That is wrong and it is an abuse which should not be tolerated.
The Minister of State has responsibility for housing.
Her responsibility is for housing at national level; it is not her responsibility to have a gofer going from one housing state to another. Senator Burke is well aware of that. This is an abuse and it should be stopped.
To return to Senator Lee's point, the problem is that there is no remit, terms of reference or job specifications for this task. The task of adviser is an important one and I have always accepted the principle that it is important that Ministers should be able to call on fresh advice from time to time. Where there are a number of parties in government together, it is important that a Minister should have somebody close to them to assist them to co-ordinate activities. That is a role which has a political element attached to it and which could not be fulfilled by the traditional Civil Services.
Will the Minister look at the cost of running Ministers' offices — including the cost of advisers, programme managers, special constituency assistants and so on — today and compare it with that which prevailed ten years ago? There has been an absolute explosion in costs which is unnecessary.
Under section 11 we are giving a legislative basis to the concept of adviser but we are doing so without putting any form of qualification on numbers, quality, capacity or the kind of people who would be seeking the job. We are not providing for any proper scrutiny of advisers. I am not a fan of the American system of scrutiny but a similar system here would give us the benefit of bringing advisers before a committee of both Houses and asking them how they feel they will increase the efficiency or the effectiveness of the operations of public administration. In many cases special advisers achieve that but in others they do not.
The draft legislation currently before us does not provide any restriction whatsoever on the number of special advisers who may be appointed. If we have 75 special advisers operating in Departments at the moment, there is no reason to believe we will not have 750 in ten years time. We have actually gone from having seven or eight special advisers ten years ago to 75 today. I do not know what the total cost of these advisers is but I would like to know and to compare it with the cost ten years ago. I know there has been a series of parliamentary questions on this issue over the years. We have come to associate integrity and honesty with this Minister but he mentioned the criticisms his own party levelled at the issue of advisers when they were in Opposition not too long ago. Some of that criticism I felt was over the top but much of it was valid. Incidentally, it is not valid to say that it is the same thing if civil servants do this job as people from outside the Civil Service. The net additional costs are significant from bringing in advisers.
My greatest concern relates to what exactly advisers do. If we can show objectively that advisers, programme managers and the special assistants who have been brought in in recent years are engaged in the process of public administration and if they serve the public rather than individual narrow political interests I would have no problem with that. However, in a number of cases advisers are clearly an abuse of the system. There was a well documented case in the past years and a half of an adviser who had difficulties with the Department of Social Welfare. The case was well documented at the time because it was carried in The Examiner. I do not know the outcome of the case but it brings us back to the point made by Senator Lee that it is bad if we do not have control.
It would be fine if the Minister said there would be a limit of one or two advisers per Minister, but it will be one or more. At some stage in the future my hypothesis that one could engage everyone involved in one's political operations at constituency level in some advisory capacity is not nonsense because that is being provided for in this Bill. Looking at the junior partner or the third party in this Government, it is extraordinary that having been hysterical about the issue of advisers and programme managers in a by-election, it managed to bring virtually everyone who worked for it at national level on to the public pay roll. Not all of those people are engaged in improving the lot of "Ireland Incorporated", but are clearly pursuing a political agenda with significant pay.
The issue of advisers is highlighted in this section and we need terms of reference for advisers and some control. If the House allows this measure through without a challenge, we are doing ourselves, politics and public administration in the future a disservice. In the full knowledge that everything is not as it should be, we are endorsing something we know is wrong. There are abuses at present, but I accept many advisers are fine people. I am not suggesting for a moment that they are all wrong because that would be a grotesque injustice. Many are fine people and are working for salaries below those which they could properly command outside the public administration system.
We need control, otherwise we will regret it and will have given carte blanche and have written into law a potential rogue's charter, something in which we should not take pride. I am not suggesting for a moment that is the Minister's intention. This is good legislation which, in its generally, has my support. However, this legislation looks at core issues relating to public administration and addresses the concept of ministerial responsibility.
Originally, I proposed that the section be deleted and not opposed. It is a mistake to incorporated this section in the Bill because it addresses something other than the issue of advisers, which would have been better dealt with in separate legislation dealing with Civil Service regulations, amendments or something of that order. The Minister would probably see validity in that point. We can only speak about what is before us, which contains a danger of future abuse. That is the reason I oppose this section and not to make a cheap political point, which is not my style and why I am interested in politics. I am here to try to do something, particularly in the area of public administration in which I am interested. It is time somebody rang the alarm bells about this section.
I also oppose this section, which should be deleted. I do not understand the reason for the inclusion of this section. Senator Roche rightly said this matter could have been dealt with in separate legislation. I recall that when an additional Minister of State was required above the specified number, the matter was dealt with in legislation. It would be easy to do the same in this regard. What is at issue is not whether there should be advisers but the nature of their job— whether it is to provide technical support and to advise the Minister of the legislative areas in his Department and so on or a political support. Senator Calnan said one of their functions was to deal with their constituencies. It is inappropriate for a special adviser to telephone the county manager in a county council to do some constituency work on behalf of the Minister. We must draw a distinction.
The deficiency is that everybody, except the special adviser, is defined in the Bill. We define "head", "Minister of the Government", "Minister of State" and "Secretary General" and not special adviser, which should be defined because there is a considerable degree of confusion about what these people do. If they are to be included —I do not believe they should be — they should defined. If one follows the logic of including special advisers in the Bill, one should also include consultants, of which there is a proliferation. There is a saying that if one has the knowledge but not the equipment, one should set up as a consultant. Departments and county councils must be a godsend to consultants.
People who are good at their job and who are in a position to give expert advice, like the person whom the Minister described, are worth money and it is appropriate that they should be available to Government. Much voluntary expertise is available to members of the Government if they seek it. It brings us back to their function. Do they perform a purely political task? There are a couple of cases where the technical connection between these people and the activity of the Department is extremely tenuous. This leads us to the conclusion that they are fulfilling a political function at the taxpayers' expense, which is in appropriate. There is nothing wrong with drawing these people from within the Civil Service. I wonder what departmental Secretaries think of special advisers and the degree to which they believe they must report to them.
I refer to the powers conferred on special advisers. Section 4(1)(d) relating to secretaries general states: "providing advice to the Minister of the Government". It then delimits the advice by stating: "in respect to any matter within, affecting or connected with, the responsibility of the Minister or the Department or Scheduled Office giving rise to material expenditure chargeable to its appropriation account;". There is no such delimitation on advice given by the special adviser. Section 11 (2)(a)(ii) states: “monitoring, facilitating and securing the achievement of Government objectives that relate to the Department”. That is a considerable power. Section 11(2)(a)(iii) states: “performing such other functions as may be directed by the Minister”, which is appropriate.
It would be inappropriate if the direction was to canvass. It is appropriate that the Minister should give directions to advisers who must be under their control. The powers conferred on advisers in the Bill are so broad that they are totally inappropriate. Senator Lee made the point about the quality of people in the permanent Civil Service and the degree to which they are rewarded. It is certainly the case that some of our most senior civil servants would get significantly more money in the private sector. It is a credit to them that they take their service to the State responsibly and accept service as being something important and that they continue to work within the public service. Take the example of Mr. Michael Dowling, who is retiring as Secretary of the Department of Agriculture, Food and Forestry. It is appropriate that we should be able to mention his name. I am quite certain that Mr. Dowling's remuneration would have increased had he gone into the private sector, but he stayed in the public sector up to retirement. I suspect that had he left a few years ago — and he might have been tempted to do so on a few occasions — he would have been an extremely marketable commodity.
The Senator could say the same about himself. I am sure he would command much more money outside the political arena.
I have to say I am absolutely content with the rewards I get from the public purse.
The Senator is speaking for himself on that.
The congratulations are flying.
Some people are being paid considerable sums of money from the public purse. Special advisers are within the public service and there should not be a political connection, which is quite evident. It is totally inappropriate, to quote Senator Roche's case, and it is nothing more or less than a misuse of the system. There was an implicit acceptance by the Minister that there is abuse when he pointed to his own situation. He is able to defend the advice he is given, and I accept that defence, but he almost implicitly accepted that there were abuses in other areas.
I did not say anything about any other areas.
I said "implicitly". I cannot understand why we have this section in the Bill. I do not know what it has to do with the legislation that is before us. It is copperfastening a system. It gives people wide powers and does not even specify who those people are.
I would like to concentrate on one aspect of this. When I read the Bill first I welcomed the definition of special adviser. I am a believer in getting the best advice and trying to use it. I do not have a problem with that. In management terms it has been a useful addition to government. The Civil Service has benefited from the extra help of special advisers. On some occasions the Civil Service may have rejected the thought of this happening and, therefore, it is better to have it defined in writing. Therefore, I welcome it.
I accept entirely the point Senator Dardis has made. I am not sure whether this is the right place for it to be written down. I am concerned, however, about the lack of control over the number of advisers. If the only way to solve this is to have a debate — as Senators Dardis, Roche and Lee have done — to oppose the Bill, then this is the right place to have it.
If I understood the Minister of State correctly, he said Cabinet members have three special advisers or programme managers between them. I reckon that is a total of 45. The 17 Ministers of State have another 34 advisers. So, we suddenly have a maximum of 79 special advisers or programme managers. I think, however, that figure will become the minimum because each Minister is told they may have three advisers while each Minister of State may have two. Suddenly, without any control by this House or by the State, other than through the Minister for Finance, we now find a situation where there are — permanently, I suggest —79. There is nothing to stop that number suddenly jumping upwards because some other Government, perhaps a coalition Government, could give Ministers four advisers instead of three, and Ministers of State three advisers instead of two.
I welcome the debate on this section. I want to hear the Minister of State's response. We talked about proliferation earlier and there is concern about the lack of control over numbers. I would welcome a solution to this. Rather than totally removing the section from the Bill, there may be a better solution. It is a healthy sign to have the position of special advisers recognised in legislation, but I would like to be able to control it.
I welcome this section of the Bill because it clearly lays out the position regarding special advisers. In negotiating a programme for Government after the 1992 election, the two parties involved agreed to, and availed of, programme managers and advisers. It does not make a difference whether they came from outside or inside the Civil Service because it was the choice of the parties to pick their own programme managers and advisers. People who came from the Civil Service to work as programme managers or advisers went outside the Civil Service in such posts. Therefore, they were not acting as civil servants, although some people may have given that impression.
If we exclude this section from the Bill we will go back to the status quo. A question is being raised here concerning the qualifications and integrity of many people who have been programme managers and special advisers for the four parties that have been in Government at various times since the last election. They did a fine job in synchronising what was being done between Ministers. We should not try to belittle them over some small incidents that may have occurred.
If an adviser is free, he or she should be able to go canvassing in their own spare time. Very often in the past too many people were straight-jacketed in situations where they could not go canvassing.
We definitely need cloning.
That might be helpful for some people.
It would throw some water on the situation. I welcome this section which gives special advisers a definite footing in legislation.
After Senator Calnan's contribution there may be some misunderstanding, so I want to make it quite clear that I welcome the idea of special advisers. In fact, I was being castigated 15 years ago or more for recommending the idea of special advisers in the public service. I am on record to that effect. The question is not whether there should be special advisers or not, but how to most effectively relate the special adviser to Government. As this is the first time they appear in legislation, it is important to get it as right as possible because this will determine the basis of their role in Government for a long time to come.
There is a concern that we all share, whether in a party or not, about how they can be most effectively used, how the office can be used rather than abused, and there is potential for abuse there. Nobody, as far as I know, used the word "integrity" in the entire course of this debate or queried the integrity of special advisers as such. Reference was made to qualifications, but that is an entirely different matter from integrity. I am not raising any questions about integrity. On balance, the contribution of special advisers has been a positive one, irrespective of which parties we are talking about.
The concern is, however, that for the first time we are talking about unqualified and unregulated numbers. That means a potential expansion of responsibilities without any question of qualifications involved. I do not know where the numbers of three advisers for Ministers and two for Ministers of State came from, when the convention came about or whether it was like that from the beginning and will grow a bit more, which was the point that Senator Quinn made.
It would be irresponsible of us not to have raised the issues we are raising about the incorporation of this section in this Bill. The case has been made that it is peripheral to the content of the Bill. There is no reference in this section to anything else in the Civil Service or the public service. The relationship is between the Minister and special adviser only. There are legitimate concerns about the relationship of special adviser to the permanent Civil Service. Senator Dardis highlighted it well when he mentioned the remit of providing advice in section 11, the remit of the special adviser and his qualified remit in section 4(d) as regards the advice to be proffered by the secretary general, which seems to be more confining on the secretary general of a Department than on the special adviser. That may create unnecessary tensions. We are striving to include the best possible section or, if that is not possible, to have separate legislation on special advisers.
I welcome the debate on this section which has brought many things into the open. I welcome the inclusion of this section in the Bill because it proves there is a need for control. The section also covers special advisers and programme managers appointed under the Ethics in Public Office Act, 1995. It would not help to delete this section as that would maintain the status quo. This section covers many aspects of these people's employment. The Government should be congratulated for including this section in the Bill.
This has been an interesting discussion and I accept the sincerity with which the contributions were made. I will review what has been said and come back on Report Stage. I would prefer to leave this section in the Bill so that this matter is covered by legislation.
Concern was expressed about the numbers in Departments. I have given Senators the best information I have on the numbers, although there is no guarantee they will not increase. I take this opportunity to knock the idea that there is wild proliferation in Departments. I will try to respond to the points made on Report Stage. The Minister of State at the Department of Finance, Deputy Doyle, who was dealing with this Bill, is dealing with legislation in the other House, so she could not be in two places at the one time.
Unlike the Minister for Agriculture, Food and Forestry, Deputy Yates.
He has wider powers. I am not making excuses because I have been briefed and I understand the Bill well enough to discuss it. The public is concerned about this issue, so I will consider it on Report Stage.
I thank the Minister for his positive response and I hope we will make progress on Report Stage. Perhaps he could also consider the definitions at the start of the Bill. We have defined Minister of State, secretary general and Minister of the Government, but we have not included special advisers. Few people know the definition of a special adviser, so perhaps it would be appropriate to include them.
The Minister accepts our point about the appropriateness of including this section in the Bill. It belongs to legislation amending Civil Service regulations, but I accept this is the only place the Minister will have an opportunity to do this.
I welcome the fact the Minister recognises that our concern about numbers is not just to score political points. There is a lacuna in the Bill which must be addressed. We need to write a formula into the Bill. As a taxpayer and ex-public servant, I am concerned about the generality of proliferation. It is time the extraordinary growth in ministerial offices over the past ten to 15 years was controlled. It would probably be unfair to say there are 79 special advisers and programme managers because that is not true, but the number is significantly more than it was. It would cost an additional £3.5 million per year to employ 70 advisers and programme managers. Senator Calnan said no savings are made if a civil servant becomes an adviser, but a civil servant will not be taken off the payroll if someone from outside the Civil Service becomes one. There is a significant net additional cost in wages, but that is not the issue. The issue is how to control it. I am sure the Minister will address this matter on Report Stage.
Question put and agreed to.
Sections 12 to 14, inclusive, agreed to.
I move amendment No. 10:
In page 10, line 17, Column (2), after "Ceann Comhairle" to insert "and the Cathaoirleach of Seanad Éireann".
On Second Stage Senator O'Toole drew our attention to the fact there is no reference to the Cathaoirleach in Part I of the Schedule where the Ceann Comhairle is the sole officer holder designated to the Houses of the Oireachtas. It is self-evident why Members of the Seanad would wish to include the Cathaoirleach as well as the Ceann Comhairle in that list.
I accept the Cathaoirleach should be included. I will come back on Report Stage because it might be better if the amendment stated: "the Ceann Comhairle after consultation with the Cathaoirleach of Seanad Éireann". We will include the Cathaoirleach in the Schedule but the wording might be slightly different to that in the Senator's amendment.
I welcome the Minister's reply and I await the ministerial amendment on Report Stage. However, I would not be happy with the use of the word "consultation". I would be happier if a phrase other than "after consultation with" was used to establish parity of esteem of the two office holders.
I will accept the Senator's amendment because consultation would lead to a debate.
Amendment agreed to.
Schedule, as amended, agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for Wednesday, 23 April 1997.
Sitting suspended at 1.45 and resumed at 3.30 p.m.