Ministers and Secretaries (Amendment) Bill 2011: Committee Stage (Resumed) and Remaining Stages

SECTION 9
Debate resumed on amendment No. 8a:
In page 15, subsection (1), between lines 2 and 3, to insert the following:
"(g) to develop policies in relation to combatting the high levels of salary and pensions of senior employees of public service bodies and of excluded bodies, and
(h) to maintain a published record of all purchase orders in respect of the procurement of goods and services by and on behalf of Departments of State and other public service bodies.”.
—(Senator Thomas Byrne).

I bring to the attention of the House a point of clarification on amendment No. 3. I should have announced there was a typographical error, as the words, "subsection (1)" were misplaced. The amendment should read, "In page 10, subsection (1), to delete lines 25 to 27 and substitute the following:". This has no effect on the amendment made.

I have little more to add to what I said about amendment No. 8ain my name. I was praising the Minister in his absence and specifying that some of the work he had done and some of the promises made in the programme for Government should be set out——

I like what the Minister is doing in implementing a Government commitment made in the budget, on which most of us are agreed. There is an impression given that certain politicians are siding with the wealthy, but we are not. I agree with the Minister that this is outrageous. There was a battle at our parliamentary party meeting before Christmas to secure some movement on high pay and salary levels. My party fully supports the Minister's policies. I suggest he do it right and legally. This argument that one should wait until they sue is not acceptable because the Minister does not want to go to court to lose a case. However, there are legal ways to tackle this issue in the case of existing staff. I compliment the Government in this regard. In my amendment I propose that this be one of the Minister's specific functions, while the second part of the amendment relates to a commitment given in the programme for Government. It is a very important commitment, and I remind the Minister that the Tory party in England has successfully done it, even though it has taken them one year to do so. It is a proposal in the interests of transparency and openness and also achieving value for money. If all purchase orders were available on-line for the public to see, it would allow anyone to suggest to the Department that a service could be procured at a lower rate or that there was an alternative product available.

I am pleased to be back in the House. I explained this morning that I would be unable to be present for some of the afternoon session as I had to attend with the Taoiseach a prearranged meeting of the implementation body for the Croke Park agreement and I am afraid I could not alter the Taoiseach's schedule at short notice. It was an important meeting, but I am glad to be back in the House.

I welcome Senator Thomas Byrne's amendments because they underscore two important issues, one being high pay in the public service generally. It was a decision of the Government at its first meeting on the first night to set a standard by reducing the salary of the Taoiseach to €200,000, which for most ordinary working people is an extraordinarily high salary but which for many in the private and public sectors is modest enough. It flowed from that decision that everybody else in the public service should be below that figure. However, a considerable number were not, including senior civil servants. We have examined the matter in great detail in recent months.

One can imagine the range of individuals across all elements of the public service, including doctors, judges, senior administrators, researchers and heads of commercial semi-State bodies, all of whom are on separate pay rates. It was determined that we would set a ceiling of €200,000 in the public sector. Very generously, all Secretaries General immediately accepted a pay reduction to that level which it should be noted was voluntary. I must confess that originally I had hoped to be able to reduce incumbents' pay to that level by means of legislation and that I accepted detailed advice from the Attorney General who advised that because of the small number involved, the Financial Measures in the Public Interest Act might not be robust enough to deal with the matter because it would not be arguable in court that the sum of money necessary in the public interest and included in the measure was too focused and it might be seen as oppressive legislation. I was very glad, therefore, when a voluntary decision was made by this cohort of public servants in a public-spirited way. These are individuals who had already been subject to a number of pay cuts previously. I want this level to apply right across all elements of the public service. There will obviously be difficulties in regard to the Judiciary. We have set out new pay scales, some of which can be confusing. We have set out a new pay scale for judges which applies the FEMPI proposals or cuts which could not be applied until now because of the constitutional prohibition on the reduction of pay rates to judges, plus 10% which is the reduction that will apply to all new incumbents from 1 January. That is the new pay rate which will apply to all newly appointed judges. If and when the people support the referendum to reduce pay, we will apply the FEMPI reductions that apply across the public service, including the pension levy, to the Judiciary which will reduce its pay. It will impact on it in exactly the same way as everyone else in the public service. I do not want to deal with judges differently to anyone else.

Incumbents who are promoted will be red circled. For example, if a High Court judge becomes a Supreme Court judge, he or she will not receive the new rate for a Supreme Court judge but will hold on to his or her incumbent rate as a High Court judge. It sounds complicated but it is fair and the same approach which applies right across the public service so that no public servant feels unduly disadvantaged.

I will refer briefly to commercial semi-State bodies. We set the ceiling at €250,000. I wanted to maintain differentials because as my colleague, the Minister, Deputy Rabbitte, put it — those in the greyhound fraternity might take exception to it — the chief executive of Bord na gCon should not be paid the same as the chief executive of the ESB. In 2007 the previous Government set up an analysis of the relative value of the chief executive officers of commercial semi-State companies in what was called the Hay process. It set the differentials. We have applied the same formula to the new rates, that is, the FEMPI rates plus 10%, to create a new starting rate of salaries for the chief executives of all semi-State companies. As we could not reduce the salaries of incumbents, I have asked people to take a reduction to the new rate or at least a 15% reduction. Only one individual will breach the €250,000 ceiling, the new chief executive of the ESB. These are very fair and balanced measures. One cannot ask people to pay a universal social charge from an income of €80 per week if one does not ask those at the very top to bear a proportionate part of the burden.

I am very much in favour of what the Senator said. I acknowledge that the €250,000 threshold and a threshold of €200,000 for the public service generally were announced by the previous Government but I wanted to implement them. It is part of the solidarity we will need to do very difficult things in the future. This is not the end of the process, unfortunately. We have another €3.6 billion in adjustments to make for next year's budget, which brings me to the next point.

The second part of the Senator's amendment refers to the maintenance of a published record of all purchase orders. We intend to do that. I do not know whether the Minister who was in the House earlier mentioned the launch of the website. It is an extremely important new resource but I am very glad to have it in place. I intend to have all data on current public expenditure down to subhead level on the website,www.databank.per.gov, as soon as possible and to have retrospective analysis available. I understand it currently goes back to 1994, but we will go back further. People will be able to see not only the subhead and full head expenditure thresholds but also the comparators year on year and the implications in terms of personnel growth and diminution. There will be as much data as anyone could require and it will obviate the need for many parliamentary questions. I genuinely believe that the more transparent these processes are and the more dialogue we have about them, the more we will have an understanding of our economic circumstances and the more buy-in we will have to achieve our goals. While the spirit of the Senator’s amendment will be captured by the actions of this Government, I do not think it needs to be accepted.

My first point is well worn at this stage. It is interesting to see the Minister applying so vigorously what he affectionately calls the FEMPI legislation which he and his party so vigorously opposed in Parliament. We are where we are, as was said before.

On the commitment in the programme for Government to publish all purchase orders in excess of €20,000, will the Minister do that? It is well below subhead level. If a Department spends €25,000 on a project or advice——

It will be on it.

When will the purchase orders be available?

As soon as we can do it.

It took a year to do it in England.

We are working on it now. We will not do at all in four months. The Senator will forgive us.

I commend the Minister. I do not know him but I have always admired his competency. He has proven it today and with the measures that were taken in the first 100 days in Government, such as a reduction in the Taoiseach's salary to €200,000. He was right to acknowledge what the Secretaries General of Departments did because when good things are done, they are not often recognised.

I spoke on the Order of Business yesterday about the chief executive of the ESB, who earns €15,000 a week, and other organisations. We are an island nation with a population of 4 million. It is not acceptable in the current climate. The measures the Minister is taking and his response to the amendment tabled by Senator Byrne are very proactive and are what people expected and are getting. Let us hope a new frugality will prevail as we go forward.

Amendment, by leave, withdrawn.

Amendments Nos. 8b and 8c are related and may be discussed together. Is that agreed? Agreed.

Amendment No. 8b not moved.

I move amendment No. 8c:

In page 15, between lines 9 and 10, to insert the following subsection:

"(3) In carrying out his functions in relation to the processing tasks of public service bodies, the Minister shall not identify or propose self-contained areas of processing tasks that could be considered for outsourcing/transfer to the private sector.".

The Minister is probably aware that the amendment incorporates a quotation from a letter a Secretary General sent this week. It is important that the issue is raised in the Seanad on Committee Stage. If the Minister is talking about radical moves — he has to be radical in his job because €3.6 billion in savings are needed this year alone——

We thought we had to save €3 billion last year but it ended up being €6 billion. We lost our seats, partially as a result of that. I hope the same fate does not befall the Minister's party. The reality is that the bond markets turned against this country last year, not only for internal reasons. It is not always the fault of the people or the nation.

The people generally have a great love of their public services. They want to believe in and be served by them. When a letter was sent stating that certain aspects of the public sector would be outsourced, a certain fear was created. Outsourcing always has bad connotations. Recently a major mobile phone company outsourced jobs in the north east to India. It happened in England where departmental services were outsourced and government services moved abroad, not just to the private sector.

The amendment asks the Minister to notify the Oireachtas when he proposes this will happen in order that we will have a chance to think about it. It may require legislation. People would be concerned if their public services were being outsourced. The proposal will need a strong Department and Minister. There is agreement that the current Minister is strong. When Departments receive a letter asking them examine what services could be outsourced, the Minister will be prepared for some resistance. Will a Department write back saying "Yes, you could outsource half the work we do. Sure, we're totally surplus to requirements"? Are they really going to respond in that way, I wonder? Therefore, the Minister will have to be strong and not rely totally on what they have done. The Minister should look to other countries to see what way they do things. It is worrying when we hear the words "privatisation" and "outsourcing", so there should be some statutory check on that situation. If, for example, the Minister was to outsource social welfare processing, which was mentioned, there is no doubt that would require a statutory check. The same applies to the Passport Office. If these matters are being considered, therefore, they should be brought before the Oireachtas so we can debate them at an early stage.

The Minister needs bold powers and dramatic things will have to happen. However, if the Minister sticks to his commitment not to raise income tax or cut welfare, and sticks to the Croke Park agreement, I would not be too far wrong in saying that 20% of the State's services would have to be removed completely. The welfare budget is 40% so if one excludes welfare and pay, 20% of the rest would have to be removed. If that is what the Minister is thinking of, it will involve a huge amount of outsourcing. We should have a detailed debate beforehand because I do not know if the public is ready for that or even realises the scale of the task. It is a lot easier to cut welfare by X% because of the fact that it is 40% of the budget. Everybody understands that, although they might not like it. I am not sure, however, if they understand the consequences of having to remove entire parts of the public sector, which is now beginning to be spoken about. The Minister of State, Deputy Brian Hayes, has also mentioned it. That would be pretty dramatic so it is important that the Oireachtas should be informed of outsourcing matters when the Minister considers them.

This harps back to an amendment that was not accepted earlier, which sought a report of the Minister's activities before the legislation is enacted. I acknowledge the Minister is doing good work but, in fairness, we would like him to set out what he is doing in a report. This is a part of it because the Department's Secretary General sent out a letter which, presumably, was technically under the aegis of the Department of Finance.

We felt it was reasonable that the Minister would be accountable for his actions up to now. We know what he is doing, we see the media briefings and press conferences, but there should be some accountability for what he has done up to now. This amendment is part of that because it relates to a letter sent out on his instructions.

Senator Byrne has raised an important issue concerning the possibility of outsourcing. At this stage, we are in such dire straits that everything must be looked at. I am not sure that the general public are too worried about how a particular service is provided. If they get a good service and value for money, people will be prepared to consider the possibility that some services might be privatised or outsourced. In considering these matters, however, it will be important for the Minister to have a lot of dialogue, so there must be an opportunity to debate them. The Seanad is an appropriate place in which to discuss the possibly radical changes the Minister is likely to make to how services are provided.

Those of us who serve as public representatives see opportunities everywhere for doing things differently and better. In considering privatisation or outsourcing, the Minister will hopefully be creating employment for Irish business as part of the jobs strategy. At this stage, therefore, everything has to be on the table and open for discussion.

I welcome the Minister. In the few hours we have seen him in action there is little doubt that he is a man of immense ability. He has some wonderful ideas and I have no doubt that he will get the support of the Cabinet to carry through the many promised reforms that are badly needed. Hopefully, by the time the Government goes to the country again we will be in a much different and better position. I compliment the Minister on the work he has done to date.

I thank Senators for their remarks. These are important issues and I look forward to debating them with Senators over time when we crystallise some of our proposals. For a long time in advance of the election, I had been working on these ideas, so it is nice to have a chance to put them into action. I spent too long developing legislative ideas that went into the waste bin after spending a year preparing them. It is nice, therefore, that ideas can now hopefully be crystallised.

We are starting that process now.

It is an interesting process to be in. It is worse, however, when watered-down or inadequate versions of the same thing arise, so that it takes two or three goes to reach what one had argued for, as has happened.

I take the political point that Senator Byrne is entitled to make concerning the financial emergency measures in the public interest legislation. I do not embrace it with enthusiasm but do so out of necessity right now. As the Senator knows, the legislation itself requires an annual review which will be presented to the Houses. We will examine it, however, and I hope to tweak it at least in the context of next year's budget. I argued outside Government — and this is a matter primarily for my colleague the Minister for Finance — that if we can examine the impact it has on the lowest income earners and lessen or ameliorate the impact on them, it would be a good thing. That is something for the future, however. As I said, I do not rejoice in the legislation or embrace it, but I regard it as an important component of the financing of the State.

I want to deal specifically with the amendment before us because it is an important one which concerns outsourcing. I need to say something about the comprehensive review on expenditure that I have undertaken. It is fresh in my mind because I have just come from a meeting of the Croke Park agreement's implementation committee. There is a genuine engagement with both management and the union side in the public service. There is an understanding of the dreadful hole we are in and what needs to be done to break out of that. The whole idea of the comprehensive review of expenditure is not to think in the old-fashioned way. With all due respect to Senator Byrne, I am afraid he is reflecting old thinking here — that one must cut social welfare across the board. We need to do things differently. That is why the letter referred to by the Senator, and which appeared in the media this week, asked people to think fundamentally outside the box. All ideas should be put on the table and let us decide on them. I will not ideologically exclude anything from consideration.

Except welfare.

We have said that we will not reduce welfare rates but we will hopefully reduce the welfare budget, for example, by the elimination of fraud. Having spoken to social welfare officers, I know there is a significant amount of fraud. I want to unleash frontline people and that is why I introduced the website for ideas, although some people thought it was a publicity stunt. On the first day it was in operation, we had 50,000 hits.

We had 2,500 submissions from people on the frontline with really good ideas that I want to incorporate. When I was going into the Department yesterday, a man stopped me and said:

Minister, you're doing a good job. We're waiting for somebody to bring about reform. I've been 40 years in the public service.

So public servants do not have closed minds and they are all taxpayers. Most of them can see ways ahead. They are the ones whose euro are being wasted. They want decent services and to ensure that expenditure is not wasted. They see where it is being wasted and they want better value for money. We have superb people in the public service who are delivering really well and we want to unleash their potential fully.

Senators will see that we will go much further than the programme for Government. The restructuring of the public service will require a flattening of structures, as well as devolving responsibilities and budget lines so that people at the coalface can make decisions themselves. In that way we will not have this oversight layer of people with rank who must take numerous decisions to approve matters. People who know how to spend money will therefore be able to do so. I have spoken to my ministerial colleagues on the same basis so that they should unleash the deliverers of services, while understanding the pool of money available and properly evaluating its expenditure. New thinking is at the core of the spending review.

Once the spending review's proposals have been brought to Government, I intend to bring them before this House so that we can have a full debate on them.

There will be resistance to change, of that there is no doubt. Some people cannot seen things being done differently. I do not know if most Members do this but I always renew my car tax online. The payment of second home charge, introduced by the previous Government, can be done online. That system is a very effective tax collection system. It is a good idea and why can we not have more of that? We do not need to set up a bureaucracy to do everything.

With due respect to the previous Administration, there has been a tendency to set up a new quango for everything and that had many consequences. It isolated the parent Department from responsibility. New systems were set up and all these bodies had chief executives, directors of publicity and whatever else. They were not accountable because Deputies could not ask a parliamentary question about most of them. I have tried to meet everyone concerned since I came to office in recent months. I met the chief executive officers of the non-commercial semi-State bodies. I told them that most of them were doing a great job but, unfortunately, we could not afford most of them, that in better times we might be able to come back to them but that now it is incumbent on them, in the first instance, to examine their consciences to see if they can amalgamate or return the function to the parent Department. The other side is that there are State agencies that are more efficient than the Civil Service. I do not want to throw the baby out with the bathwater but I want to have a proper analysis of the outputs from State agencies and so on.

I do not want the notion of outsourcing to be a bugbear. Many services are outsourced now. In my local authority area Wexford County Council has determined not to continue with refuse collection because it was in competition with the commercial sector and it was becoming unaffordable.

The same is the case in Galway.

In such circumstances, one would make a pragmatic decision that such a business is one in which one should be engaged. All of us need to be open to see how we can do things differently and more efficiently because we are all in this together. I said when speaking on the comprehensive spending review that I do not want any spectators. In terms of what the Government will do, everybody has a part to play in this and everybody has a good idea to contribute and I hope everybody will contribute.

For those reasons I do not propose to recommend the acceptance of the Senator's amendment. I am gratified that he wants me to do personal accounting of my activities up to the passing of this legislation. I would have thought in terms of all my activities to date that I have been more than well reported in the media. I am very happy to give a full accounting once I have the statutory authority of a Department. I have had the status of a Cabinet Minister from the date of my appointment. I have the title of Minister for public expenditure and reform in law already from the date of my appointment but I hope to have the statutory authority to function as such as soon as the laws are enacted to give effect to that, it carries the signature of the President and the commencement order has been signed.

I do not want to delay the debate on the Bill in dealing with this amendment. Is the debate to be guillotined at 8.30 p.m.?

I am conscious that Senator Barrett has a number of important amendments further down the list and that I have more or less hogged the debate but there are some issues I wish to raise. I will not talk for long on them. We have raised important issues. I agree with much of what the Minister said. I resent the implication that we will be bystanders.

What I meant is the notion that something should be done but that it is not up to me.

That is a natural human reaction one would find people have anywhere. The point being made in this amendment on outsourcing is that if the Minister is considering it he should let the Oireachtas know about it. The Minister said he has made himself available to the media. That is not acceptable. A Minister, first and foremost, is accountable to Dáil Éireann and he has not really been accountable in terms of his statutory functions in recent months. In proposing this amendment I am not denigrating what the Minister did but trying to give effect to what is already provided in the Constitution, namely, that Ministers are accountable to the Dáil. The Minister should make a report of what he did and it is important that he would list the details to Parliament, not to the media which only print certain details and in that way we would not know everything he has done. This is a reasonable proposal. Most people welcome what the Minister is doing but I am not sure that certain sectors of society understand fully what is contemplated by this. When welfare and public pay are taken out of the budget, 20% or 25% of the money is all that remains. If the Minister is to take the €3.6 billion from that figure, that will show the scale of the task this year. The Minister will find he has a good deal of support. Many services could be outsourced. I indicate that I will withdraw the following amendment which proposes that the Minister would be banned from talking about privatisation. That is not our policy but I suspect it is an amendment that many within the Minister's party will be happy to support. That is possibly why it was put forward.

Senator Byrne's amendment proposed that the Minister, within 20 days, would act as set out. Perhaps the Senator has a point, but, legislatively, it is not possible because it requires the Minister to do something in law which is retrospective. Anything we do in the House must at least have some nodding acquaintance with lawfulness. I take Senator Bryne's point that the Minister, in the spirit of what the Senator said, might make himself available to do that but, legislatively, I do not believe it is possible.

There used to be rules in terms of the straying of commentary about the House in this House.

There are no rules in this House as far as I see.

It says in Standing Orders that you can do what you want.

You can do what you like.

I believe the Government can.

I will be fully accountable to Dáil Éireann under the Constitution as soon as the legislation is enacted. Its Members can ask retrospectively about anything I have done from the moment I was appointed. They will not be time-barred from doing that. Therefore, I will be fully accountable. I am happy to be accountable already. It certainly took longer than I expected on the day I was appointed to have this enactment but, as I explained this morning, this is the first time that there has been a fundamental restructuring of the Department of Finance. It required the trawling of every statutory instrument back to 1924, which was a Herculean task. If I may again probably stray into unacceptable territory, I pay tribute to the people in my office and my Department who did that Herculean task in such quick time to provide to disaggregate functions that not only go back to the foundation of the State, but because many of the powers of the UK Administration were absorbed into the Department of Finance, go back to Victorian times. We discovered functions of the Minister for Finance that he did not know he had in the trawl that was presented and we have abolished some of them in amendments in the other House.

We now have robust legislation to do the twin jobs the Minister for Finance and I are required to do. One is on the macroeconomic side to ensure that the ship of State is guided well from a macroeconomic perspective, that there is proper interaction with the troika and that the Minister for Finance's focus is on those matters. The other job is to ensure that I am free to do the reform agenda — which, bluntly, would not be done by a Minister for Finance because it could not be done by a single Minister for Finance — and at the same time have control of the resources to ensure that reform is not resisted.

I appreciate what the Deputy is saying but he will find that my accountability will be full and complete both to this House and the other House.

Amendment, by leave, withdrawn.
Section 9 agreed to.
NEW SECTION

I move amendment No. 9:

In page 15, before section 11, to insert the following new section:

"10.—The Minister shall where the Minister for Finance proposes a measure to grant tax relief in order to achieve a specific policy objective in relation to the provision of a service or activity which is also funded through public expenditure prepare a statement of how this relief relates to public expenditure policy relating to the relevant service or activity.".

I will withdraw this amendment, but I hope the Minister seriously takes on board the point we make. We are not necessarily opposed to guillotining the debate on legislation. We did it in government and it can be effective at times. The way the scheduling of business was done this week — and I have made this point to the other Minister — was not very fair to anyone, including perhaps even to the Minister.

Members have tabled amendments and they deal with serious issues despite what has been said on the other side. They are generally good amendments. We should have time to talk though them without filibustering.

I will respond briefly to that point. I fully appreciate what the Deputy is saying.

I would have liked to have had more time to debate this legislation. However, it is scheduled to pass by 5 July and I do not wish it to go beyond that date as I have technical matters to address at that stage. This is largely a technical Bill. With due regard to the Bill's Office, this amendment is not germane to this Bill. It is a policy issue.

We can debate that.

It relates to administration between the two Departments.

It is not. We will be able to debate policy issues like that in other enactments as we progress.

Amendment, by leave, withdrawn.

I would like to put on the record that I will withdraw amendment No. 9a owing to time constraints.

Amendment No. 9a not moved.
Section 10 agreed to.
NEW SECTION
Government amendment No. 10:
In page 15, before section 11, to insert the following new section:
"Where, immediately before the appointed day, any legal proceedings are pending to which the Minister for Finance is a party and the proceedings have reference to functions transferred by this Act, the name of the Minister shall, to the extent that they have much reference, be substituted for the Minister for Finance in those proceedings and the proceedings shall not abate by reason of such substitution.".

This is a technical amendment which is being made on the advice of the Parliamentary Counsel.

Amendment agreed to.
Section 11 deleted.
Sections 12 to 14, inclusive, agreed to.
SECTION 15
Government amendment No. 11:
In page 16, subsection (4)(a), line 25, to delete “public body” and substitute “public service body”.

Amendment No. 11 is a technical amendment. It allows for "public body" to be substituted for "public service body" to provide consistency of this term throughout the Bill and to ensure that the reference in section 16 is in line with the definition of a public service body outlined in section 3.

Amendment agreed to.
Government amendment No. 12:
In page 16, subsection (4)(c)(iii), line 44, to delete “, 7C, 7E or 7G”.

Amendment No. 12 provides for the deletion of reference to section 7C, 7E or 7G of the Act of 1976 which for the information of the House is the Gas Act. This allows for consistency in the sections listed under the relevant enactments listed in section 15.

Amendment agreed to.
Section 15, as amended, agreed to.
SECTION 16
Amendment No. 10a not moved.

Again, owing to time constraints and to facilitate Senator Barrett who wishes to raise important issues I will withdraw amendment No. 13.

Amendment No. 13 not moved.
Section 16 agreed to.
SECTION 17

Amendments Nos. 14 and 30 are related and will be discussed together by agreement.

Government amendment No. 14:
In page 18, lines 20 to 37, to delete subsections (3) and (4) and substitute the following:
"(3) The Minister for Finance shall not, without the approval of the Minister, perform a function consisting of the payment of moneys out of the Central Fund—
(a) under a provision specified in Schedule 3, or
(b) that is performable in accordance with, or for the purposes of, such a provision.
(4) The Minister for Finance shall not, without the approval of the Minister, perform a function consisting of the payment of moneys out of the Central Fund for the purposes of, or in connection with, the superannuation or remuneration (including emoluments and allowances) of any person to which the Presidential Establishment Acts 1938 to 1991 apply.".

These are technical amendments and are consequent on the deletion of Part 2 of Schedule 3. Part 2 of Schedule 3 lists a number of enactments which govern payment of pensions and remunerations from the Central Fund.

Amendment agreed to.
Section 17, as amended, agreed to.
SECTION 18
Government amendment No. 15:
In page 19, subsection (1), line 2, to delete "in addition to" and substitute "as well as".
Amendment agreed to.
Section 18, as amended, agreed to.
Section 19 agreed to.
SECTION 20

I move amendment No. 16:

In page 19, subsection (2), line 29, to delete paragraph (i).

I raise this matter in the presence of two distinguished graduates of the Trinity College law schools, Senators Byrne and Bacik. The Minister answers to the Comptroller and Auditor General, who is protected under the Constitution. Is the Comptroller and Auditor General equivalent in law to judges with whom the Minister must deal with separately? That is the nature of my query to the Minister and our lawyer colleagues present.

I thank Senator Barrett for his kind words in regard to myself and Senator Byrne, both of whom are graduates of Trinity College law school.

I only got a 2:1.

That is not relevant to the amendment.

Public confession comes under the whistleblowers legislation.

That is correct. I am interested in the point raised by Senator Barrett. I do not think the Comptroller and Auditor General is equivalent to a judge. I thought the amendment was directed at a different issue, namely, that the Senator believed the Office of Comptroller and Auditor General should not be subject to the same provisions because the Comptroller and Auditor General has a function of oversight. I am interested in the amendment in terms of the constitutionality issue. However, I do not think an issue arises in terms of judicial remuneration.

No. Section 20 lists those bodies which remain under the aegis of the Minister for Finance. This list includes the Office of the Comptroller and Auditor General. Section 20 provides that in relation to a limited number of public service type functions the Minister for Finance will consult with the Minister for public expenditure and reform. The powers of the Minister for Finance in relation to the Comptroller and Auditor General under the 1993 Act are not transferring to the Minister for public expenditure and reform. The functions of the Comptroller and Auditor General are set out in that Act. These recitals determine what bodies come within the aegis of the Department of public expenditure and reform and which will remain under the aegis of the Minister for Finance.

In general terms, staff remuneration matters might well require my input because overall policy in regard to staff and pay will come within my remit.

Can we take it that the ability of the Comptroller and Auditor General to audit the Department of public expenditure and reform is not infringed by the section?

The Senator can be certain of that.

Amendment, by leave, withdrawn.
Section 20 agreed to.
SECTION 21
Question proposed: "That section 21 stand part of the Bill."

Sections 21, 22 and 23 are part of one package. It would be opportune if the Minister could explain in general terms how this provision will work. The Minister may correct me if I am wrong but in my view, under section 22 — I am aware we are dealing with section 21 — statutory powers not listed in the Bill which relate to the functions of the Minister and certain sections of this Bill and functions listed therein are being transferred by reason of this Bill. If there is a row between Ministers or confusion in the mind of a citizen as to which Minister performs a function, a Minister can perform a function if he or she believes he or she has the power. In fact, it will be a defence in a criminal matter to say one had the power. Please God, it will never arise that the Minister might need to claim he believed he was doing the right thing, but if it does, I hope that will be a good defence.

Section 23 also relates in that the Taoiseach has a determination and I know the Minister will quote the previous 1939 statute. While I know it is not the one we are addressing, if that section relates to the Taoiseach deciding which statute applies to which Minister or interpreting a statute, that would be constitutionally questionable. However, if it merely concerns the allocation of functions and responsibilities — who washes the dishes tonight or, more likely, who is going to cut the public sector pay bill — the Taoiseach should be allowed to do this. There might be a question of statutory interpretation.

I can allay the Senator's fears: there is no such intention and will be no such impact. As I explained this morning, this is a belt and braces set of sections. This is clearly a complicated structure to disaggregate functionalities. We have trawled comprehensively through every enactment; almost 200 statutes were reviewed dating back to Victorian times. We have set out clearly the functions which are being transferred to me and my Department. There is no ambiguity or doubt about this. From the day this enactment is commenced, those functions will be legally mine to carry out, nobody else's. The functions that will not be transferred will remain legally those of the Minister for Finance and there will be no doubt about them.

In the event that a function had not been noticed, there is a legal safety net to ensure its legality cannot be undone if I acted in a bona fide manner andvice versa. This might happen, for example, if I make an order regarding a function that in all probability should be mine, but it is interpreted by a court to be properly the responsibility of the Minister for Finance. The role of the Taoiseach simply relates to where there is a lack of clarity as to which Minister should rightly exercise a function. This is done to have a clear determinant structure and eliminate vagueness — it would not be my opinion against that of the Minister for Finance. I am virtually certain that will never arise. Its citation was, as the Senator rightly stated, in the 1939 Act, where it was left to the Taoiseach to determine functionality if there was vagueness about it. This is a clear-cut set of safeguards that it is right, proper and prudent to make. As regards the role of the Taoiseach, they will almost certainly never be utilised.

I presume that after three months of careful trawling, we have touched on everything, but if something emerges, it will be assigned by way of a transfer of function order to the appropriate Minister. This is to deal with the possibility that one of the two Ministers affected directly will act in a bone fide manner and exercise a function determined not to be his. One could imagine there could be very severe financial consequences for the State if there was any doubt about the matter. As the role of the two Ministries and the two Ministers is or could potentially be of such importance to the State, there is a requirement to put these matters beyond doubt. That is the import of the three sections.

I hope the Minister is right and that this issue will not arise. The Minister for Finance has so many functions that there could well be a citizen who has a particular bone to pick with the Department of Finance and does not know whose function it is. This matter would resolve itself if our earlier amendment — discussed when the Minister was not in the House — had been accepted. It sought a report to the Oireachtas listing the functions of the Minister for Public Expenditure and Reform and his delegated powers. He has promised a further explanatory memorandum. That should have been provided on Monday once the Bill had completed Committee Stage in the Dáil. There is provision that, if a Bill is amended substantially on Committee Stage, the explanatory memorandum can be reviewed. It would certainly be of assistance to us now. Has the provision in the 1939 Act ever been exercised by a Taoiseach?

I have just checked with the officials and, to our knowledge, it has not.

I hope it never will be. I understand it deals with a matter of statutory interpretation in which the Taoiseach would have no role, nor could he overrule a court in its interpretation as to who had a particular function. That is not what is envisaged. Even if it were to be exercised, it is not a judicial interpretation of law. It is a matter of which of the two Ministers has responsibility if there is a dispute.

The Minister appears to be future-proofing himself against any landmines that might be uncovered. We know that most likely there will not be any, but if there were to be a change of Administration and there were two new Ministers in the future who possibly end up giving directions and interfering in each other's work, the provision ensures there will be a final adjudicator. While I might be reading it incorrectly, that is my perception.

Question put and agreed to.
SECTION 22

Amendments Nos. 17 to 19, inclusive, are related and may be discussed together.

Government amendment No. 17:
In page 20, subsection (1), lines 15 and 16, to delete all words from and including "had" in line 15 down to and including "Act" in line 16 and substitute "vested in the Minister for Finance".

These are technical amendments. Amendment No. 17 ties up the wording of the section and refers to the Minister's belief the function performed is vested in him. Amendment No. 18 removes the word "or" from the end of the line, as an additional line is included in the following amendment. Amendment No. 19 excludes from section 22 functions transferred from the Minister for Finance to the Minister for Public Expenditure and Reform by order under section 6(1) of the Ministers and Secretaries Act 1939.

Amendment agreed to.
Government amendment No. 18:
In page 20, subsection (3)(a), line 25, to delete “section 8, or” and substitute “section 8,”.
Amendment agreed to.
Government amendment No. 19:
In page 20, subsection (3)(b), line 27, to delete “applies.” and substitute the following:
"applies, or
(c) a function transferred to the Minister by order under section 6(1) of the Act of 1939.”.
Amendment agreed to.
Section 22, as amended, agreed to.
NEW SECTION

I move amendment No. 20:

In page 20, before section 23, but in Part 3, to insert the following new section:

"23.—(1) If any doubt, question, or dispute arises between any Minister of the Government as to the Minister of the Government in whom any particular function is vested by virtue of this Act, such doubt, question, or dispute shall be determined by the Taoiseach.

(2) Where the Taoiseach makes a determination under this section he shall within 20 days lay a report of same before the Houses of the Oireachtas.".

I have moved the amendment, as we have doubts about the provision. The Minister has said the previous provision has not been exercised and he is assuring us that it does not involve statutory interpretation. He is assuring us also that there will not be problems. We have concerns, but it is not the greatest issue facing the Department. I hope no potential litigant has discovered something and will take the Government to the cleaners. I do not propose to discuss the amendment further.

I trust the advice of the Attorney General.

Amendment put and declared lost.
Section 23 agreed to.
NEW SECTIONS

Amendments Nos. 21 to 24, inclusive, are related and may be discussed together.

I move amendment No. 21:

In page 20, before section 24, but in Part 3, to insert the following new section:

"PART 4

APPOINTMENT AND DUTIES OF THE SECRETARY GENERAL OF THE DEPARTMENT OF PUBLIC EXPENDITURE AND REFORM

24.—There shall be a Secretary General of the Department of Public Expenditure.".

We face unprecedented difficulties in all these matters, which is why the Minister is here. In his absence earlier the Ministers, Deputies Brendan Howlin and Michael Noonan, and the Minister of State, Deputy Brian Hayes, were called the Celtic troika who were attempting to lead us out——

It sounds like a dance troupe.

The copyright belongs to Senator Susan O'Keeffe who named them thus. Governance rather than government is the issue. The change of government has taken place, but the governance problems remain. My amendments seek parliamentary scrutiny on the appointment of the Secretary General of the Department and parliamentary scrutiny of performance.

I am speaking in the context of the Government having decided there should be parliamentary oversight of the appointment of chairmen of State bodies, which I recall having read. This should apply also to the board members. If we are to change to a new model of governance and bring Parliament into the process, which we sincerely want to do, the reform agenda should include a more active parliamentary role.

The problems we are addressing now include a lack of oversight, as noted in the Wright report, and the whole problem developed a momentum of its own which lead to financial collapse, without the direct involvement of the Parliament. In the spirit that is already recognised in regard to the appointment of chairmen of State boards, and which I believe should extend to the other board members, the Minister and his Cabinet colleagues might wish to consider some role for Seanad Éireann in the appointment of the Secretaries General of Departments, as in the United States Senate. Parliament needs to restrain the power of the Executive and of the Civil Service, which is one of the lessons I take from our need to be rescued by the IMF.

I propose that the section would state that the officer in question should report back to Parliament on all the matters we have included. This must succeed and Parliament must be involved because, as the Minister said, the problems are so grave.

I am encouraged by the Minister's earlier address to Transparency International. Were he to accept these amendments, he might get life membership of Transparency International. The purpose is to assist and reform, which is vital, and I ask for the amendments to be considered in that light. The House and certainly the Independent Senators will assist the Minister in every way to accomplish his goals, which are of huge importance for everybody in the country. As this could be helpful to him in that regard, I propose it in that spirit.

Senator Byrne referred to people being taken to the cleaners. Unfortunately, this Department is being established because the country has been taken to the cleaners. The amendment proposed by Senator Barrett envisages the sort of scrutiny of public appointments that was put forward as a suggestion for Seanad reform in the O'Rourke report, which we have already debated in the House. It is a very interesting idea, although some of the provisions in the amendments are unduly prescriptive to be placed in legislation. The Minister, Deputy Howlin, has already referred to the website, which will contain much fuller information and economic data than we have had to date from Government, which is an important point. However, this should not be placed in legislation.

I am somewhat troubled by the provision in amendment No. 24 that "The Secretary General shall appear before the Oireachtas at quarterly hearings". This might undermine the role of the Minister and the vital principle that the Minister is the person accountable to the Oireachtas for the Department's work. The Minister has appointed an excellent Secretary General to the Department in the person of Mr. Robert Watt, so some of what has been said in regard to these amendments is clearly not appropriate. It is an interesting and welcome idea, nonetheless.

I compliment Senator Barrett on the amendments, in particular amendment No. 24. The reality is that if accurate work had been done in regard to what is set out in amendment No. 24 in the past ten to 20 years, we might not have some of the problems we face today. On that basis, it is very important to set out this type of prescriptive requirement in the legislation, requiring the Department and the Secretary General to do this. As was pointed out, the functions of the Minister as set out in section 9 are all very laudable but are not very specific. It refers to ideas such as "promote value for money". As Senator Walsh said, it should be to "get value for money", and I am sorry he did not put that down as an amendment. Senator Barrett is being specific, as I believe we should be in legislation——

Would it be an offence not to get value for money?

I am not sure we could go that far.

Many people would be in hazard on that one. Who would be the judge?

If one is promoting value for money, one can do that in a local supermarket. Getting value for money is a different thing. This is why it is important to actually state what we are looking for. Senator Barrett is looking for "independently audited assessments of the current, capital, present and future expenditure". It would be fantastic if this were to happen because it never happened when spending, which the public generally agreed with, was way too high, as we found out later.

Amendment No. 23 calls for the State to "conduct a fiscal plan reflecting the impact of proposed policies on a 2, 5, 10 and 20 year projection cycle". This would be very important given we are talking about a new way of operating. To bring in the Secretary General would be very useful and could be done separate to the normal accountability of the Minister, given that Secretaries General contribute to committees on occasion.

I am totally in agreement with the sentiment and motivation of Senator Barrett's amendments and, although I will not accept them, I will explain why. There is statutory provision for the appointment of a Secretary General under the Ministers and Secretaries Act 1924. It prescribes that every Department should have a chief executive, which is now defined as a Secretary General, and the question is how those Secretaries General are appointed. Until now, they have been appointed by what is know as TLAC — the Top Level Appointments Commission. One of the first things I did in the Department was to reform TLAC, whereby there will now be a majority of external members and the chair will be an external member — that is, from outside the Civil Service. The membership of TLAC has been increased to nine, of which there are five external members. All final interviews will be conducted by a sub-panel of the committee, each comprising two civil servants and three external members, and chaired by one of the external members, so the external members will have the determining majority. In addition, the people whom I have nominated to Government and intend to appoint — I hope the decision will be signed off on this week, probably in the next day or two — all have great experience in human resource management externally in the business community.

This is a better approach than bluntly asking people to present before a committee of the House. We need expertise and, bluntly, in the determination I made, I needed a new Secretary General fairly sharply to begin the work. It was a lonely first day in the Department when trying to create a new Department.

On the specifics, amendment No. 22 refers to two officers, the Secretary General of the department of public expenditure and reform and the Second Secretary General of the public service management division. This second title existed in the old Department of Finance and will not exist in my Department. Therefore, I cannot accept the amendment because that role is being abolished entirely. Nonetheless, there will be a Secretary General in my Department. In a subsequent debate, perhaps an Adjournment Debate or in committee, we can go through the new structure of the Department, as I envisage it, with a reformed unit and external people running reform. The intention of the Senator's amendments will be mirrored in the reality of the structure I intend to put into place. I hope there will be considerable interaction between me and this House in explaining what we are doing and how we will do it.

With regard to the nationality of appointees, posts in the Irish Civil Service are open to all European Economic Area nationals, as the House knows. We will see who applies for posts into the future. The Senator might be aware that several Secretary General posts across all Departments will be becoming vacant in a relatively short period. It will be interesting to see how the new TLAC will operate to select those.

I thank the Minister. What I was trying to get to was the findings in the Wright report that so few of the staff are qualified. Of 542 staff, only 39 are economists trained to masters level or higher compared with 60% in Canada and 40% in the Netherlands. I wanted to cast the net was widely as possible and I welcome the Minister's announcement about reform of the Top Level Appointments Committee, TLAC.

I refer to the other criticisms about the lack of parliamentary oversight when the Department of Finance was getting into trouble and so on. Nyberg and Wright and, I believe, Regling and Watson indicate the need for some parliamentary involvement. My fear is that the Minister's enthusiasm might depend on one person. If he was transferred somewhere else or became head of the IMF or was appointed to one of these arduous tasks, would we have just another Civil Service Department? If I was working on the Ministers and Secretaries (Amendment) Act, I would reduce the number of Departments to the constitutional minimum of seven. I can think of more Departments I would like to abolish than create. It is very important the Department we create in this legislation meets the needs of the country and its finances at this fairly appalling time.

I am worried also that the adjustment suggested in the stability pact programme update of April is heavily based on extra taxation with no analysis of the expenditure side. It seems the others got there before the Minister. That document provides for €10 billion extra in taxation and no adjustment on the expenditure side.

It is a matter of some concern that matters are so rushed today and will be again tomorrow. I dislike Article 25.2.2° of the Constitution being used. The President should have time to consider all of these matters as well. I will accede to the Minister and withdraw the amendments in light of his encouragement to continue to think along these lines, which we will do.

Amendment, by leave, withdrawn.

As it is now 8.30 p.m., I am required to put the following question——

On a point of order——

The Minister was appointed in March. Four months on, this legislation is being rushed through in a matter of days. The Minister is responsible for billions of euro and yet we have spent little time discussing the matter. This is not a new way of doing things. It is the old way and a bad way to do things.

I started to put the question.

It is a flip-flop on the Government's commitments in the programme for Government. I want to make that point. While we will not oppose the legislation——

As it is now 8 p.m., I am required to put the following question in accordance with the order of the Seanad of this day: "That amendment No. 21 is hereby negatived, that the Government amendments undisposed of are hereby made to the Bill, in respect of each of the sections undisposed of, the section or, as appropriate, the section, as amended, and each Schedule or, as appropriate, each Schedule, as amended, and the Title are hereby agreed to in committee, that the Bill, as amended, is hereby reported to the House, that the Bill is hereby received for final consideration and that the Bill is hereby passed."

Question put and agreed to.

When is it proposed to sit again?

It is proposed to sit at 10.30 a.m. tomorrow.