Amendments Nos. 50, 51 and 52 are related and may be taken together. Agreed? Agreed.
SECTION 18.
I move amendment No. 50:
In page 21, subsection (1) (a), line 44, after "office holder" to insert "pesonally". These amendments clarify that the people to whom we are referring as special advisers in section 18 are people selected by the Minister or office holder concerned to work on their own business. It does not apply to people who might be retained after retirement age of a couple of months to do a particular job. This ensures that this applies to the political staff selected by Ministers.
Amendment agreed to.
I move amendment No. 51:
In page 22, subsection (1) (b), line 1, after "office holder" to insert "personally".
Amendment agreed to.
I move amendment No. 52:
In page 22, subsection (1), line 3, to delete "one of whose functions" and substitute "principal function".
Amendment agreed to.
I move amendment No. 53:
In page 22, subsection (3) (a), line 23, after "person in" to insert "or in relation to".
Amendment agreed to.
I move amendment No. 54:
In page 23, subsection (4) (a), line 10, to delete "concerned".
This is a technical amendment.
Amendment agreed to.
I move amendment No. 55:
In page 23, subsection (4) (b), line 12, before "any" to insert "a copy of". This is a minor technical amendment.
Amendment agreed to.
I move amendment No. 56:
In page 23, subsection (6), line 23, to delete "under" and substitute "on". This is a minor technical amendment.
Amendment agreed to.
Question proposed: "That section 18, as amended, stand part of the Bill".
Perhaps the Minister would give a broad outline of the purpose of the section. It covers the principles dealt with in previous sections. It refers to senior special advisers and those in lower category and I am curious as to the cut off point.
The purpose of the section is to provide for openness and transparency in the appointment of special advisers. Terms and conditions of their service and their relationship to the office holder will be a matter of public record and will be published. At present, such information is elicited by way of parliamentary question after a change of Government.
The provision also deals with people who act as senior special advisers or programme managers who would be at an analogous grade to the civil servants we have dealt with in the previous section. They are required to make a similar declaration of interests. The declarations in this case would be public because we are dealing with people in the grey area between being private citizens and political people. There will be no question of seeking declarations of interests from people employed as typists, drivers or secretaries.
Is it the intention that senior special advisers and programme managers would have to make declarations of interests but people such as one's constituency secretary would not be regarded as being at that level so they will not have to make such declarations?
That is correct.
This will be prescribed in regulations by the Minister at some time in the future?
The remuneration limit will be prescribed. It is envisaged that the limit will distinguish between senior people and junior people. Part of the section applies to somebody working in a senior capacity on a part-time basis. That person will be designated. If somebody is working at a Principal Officer grade but only working part-time, the remuneration level would fall below the limit. However, we have made allowance for that.
Will the prescribed amount be set by the Minister for Finance soon?
Yes.
Is section 18 being used to put on a statutory basis matters relating to the general employment of special advisers? As far as I can see, it is not just about the declaration of interests. It appears that somebody has taken the opportunity — some noble civil servant I am sure — to put the employment of special advisers, etc. on a statutory basis. Am I right?
I took that opportunity, not a civil servant. We have included a provision giving legislative effect to what has been the practice for many years, which is that special advisers, etc., appointed by Ministers leave office at the same time as the Minister and are not appointed to the Civil Service through a back door mechanism.
As far as I am aware that has not happened.
It has not happened for about 12 years but it has been a nagging concern of the Civil Service unions because it used to be the practice that certain people were appointed to jobs without going through Civil Service competitions. That has not been the practice for many years and we are taking the opportunity to put this on a statutory footing.
Section 18 (5) states:
Section 13 (3) of the Civil Service Commissioners Act, 1956 does not apply to the appointment to an established position (within the meaning of that Act) of a person who acts or has acted as special adviser.
Is that the subsection which covers this area?
It is. It concerns what I think are called appointments in the public interest, where people are appointed without reference to a competition. This will not apply in the case of someone employed on a consultancy basis to finish a job or a civil servant who is asked to stay on after retirement age, which is the normal instance in which public interest appointments are made.
Section 18 deals not alone with special advisers and the declaration of interests; it has been used to put on a statutory basis the terms applying to special advisers and personal assistants. That was not the purpose of the Ethics in Public Office Bill, 1994 and it was not mentioned previously. I do not remember it being discussed in the past either.
There was a long discussion on this point on Second Stage.
If section 18 (5) is accepted, does that mean anyone who has ever been a special adviser — it says nothing about personal assistants — cannot be appointed to the Civil Service?
No, a person who has been a special adviser or a personal assistant on the political staff of a Minister may compete in the normal way for an ordinary Civil Service job and is enitled to be appointed if he or she is successful in the competition. Section 18 (5) precludes such a person's appointment to the established Civil Service without going through a normal competition.
Why does the Minister feel it is necessary now to amend the 1956 Act in this way? This is a major change to an Act which has existed for 40 years.
It is important that we separate political appointments — where people are carrying out a political role, working with a Minister — from the mainstream Civil Service, where people are recruited through open competition and carry out an impartial job, irrespective of party affiliation. It is healthy for both parts of the mechanism of Government that a clear distinction is drawn between the Civil Service and the political side. It is helpful in that context to use legislation to copperfasten what has been established practice for many years — although it was not always the practice — that when Ministers left office, their political staff left with them and were not given jobs in the Civil Service without going through a competition.
This should not cause anyone any difficulty although there is a nagging worry among Civil Service unions that this practice, which has been discontinued for the last 15 to 20 years, might at some stage re-emerge. That is why we are making this provision.
The concern of Civil Service unions would bear on everyone but it should not be the sole reason for changing the law. If that was the case there would be strange laws in this country and most other democracies. I see the Minister's point but it is bad to put such a fundamental change into a Bill because in the future a good reason may arise or a Minister may feel it necessary that a person who has acted as a special adviser should be appointed.
We are now removing the option for anyone who has acted as a special adviser, as a personal assistant or on the political staff. It may not have happened for the last 20 years but there may be cases in the future where it may be necessary or in everyone's interest to do that. The Minister should consider this because the concern of the Civil Service unions is neither here nor there.
It has not been practice for a long time because the odium which attached to the party or politician who made the appointment would be too hard to bear. However, it may happen that it will be necessary to so do and I caution the Minister about proceeding with this provision. Ruling this out totally is not common sense; there was a good reason for putting it in the 1956 Act and it should continue.
The provision in the 1956 Act refers to a general power to appoint people in the public interest.
Yes, I know that.
It is not there specifically to allow political staff to be put into the mainstream Civil Service. I feel strongly about this as an ex-civil servant who has made the transition in the other direction, into the political system. It is important to keep the Civil Service non-party political and that it be seen to be such. We have done so and it has been an important strength of the public service.
I have one final point. This amendment of section 13 (3) only precludes the appointment of the category of special adviser or special assistant to the Minister. It does not preclude a Minister leaving office from appointing to the Civil Service a person who has not acted in that capacity. Is that right?
That is so, if it is in the public interest.
Why therefore single out someone — who may be from any party or on the staff of any politician in power — and say he or she is deserving of appointment in the public interest? The fact that the Minister has been a civil servant and perhaps has the ear of the unions should not prevent her from taking the broader view in this matter.
I feel strongly that we should not politicise the Civil Service or in any way be seen to be doing so. There are good reasons why the practice of occasionally placing political appointees in the mainstream Civil Service has been discontinued for the past number of years. I am anxious to keep it that way and would not like to see the issue reopened.
It has not been done for 15 years but the Minister is hardly saying that the few appointments that were made politicised the Civil Service.
I think they caused disquiet.
Among the unions?
Among the public service.
I do not think so.
Ministers will be required to make annual lists of their senior special advisers. What does the Minister of State mean by that? The Bill also states the advisers will not have to list the interests of their spouses or children. Is my interpretation of that correct?
The interest of a spouse or child will be confidential and the interests of the person will be public and will be laid before the House.
But they will not have to disclose the interests of the spouse or child?
They will be subject to the same disclosure requirement as the other people in the public service. They will have to disclose the relevant interests of a spouse or child of which they are aware and which could materially influence them in the performance of their duties.
The explanatory memorandum states that, pursuant to section 18, "Ministers will be required to lay the annual statements of the senior special advisers (except for any interests of a spouse or child). . ." That means they do not have to disclose them.
That refers to the laying of the statements before the House and that is correct.
They do not have to give it. Does that not contradict the earlier section where the poor unfortunate Member of the Hosue has to disclose everything? I have a strong view on this. I have known Members of this House, across the political divide, over many years. In my opinion, they have all been very honourable people. I do not want it said that any Member of this House was shady in any way but that could be the perception. Under the other section with which we were dealing——
We are dealing with section 18 now. We have disposed of section 16.
They are linked.
I know you are using it as an example although we have disposed of it.
I am using it as an example. There is special treatment for these special advisers.
No. I think Deputy Connolly misunderstands the distinctions. They have to make exactly the same declarations as people covered by sections 16 and 17, that is, designated directors, senior executives of State companies and senior civil servants. However, only their personal declarations have to be laid before the House. In the interest of privacy, any declarations about spouses or children are private and not published.
Before whom are they laid?
They are laid before the commission. The complete declaration goes to the commission but the declaration of the political staff, in respect of their personal business interests, goes before the House.
My view is that it should also have referred to the Members about whom we were speaking on an earlier section.
I do not think it would be necessary to bring them before the House. However, we will listen to what the Minister has to say.
Deputy McCreevy asked whether special advisers are made permanent civil servants at the end of the their spell. Would that only apply to the Civil Service or would it also apply to semi-State bodies? As a former employee of a semi-State body, I know that the day is long gone when all promotions went to people who came in through exams. There are special people coming in at all levels. I think there was a fuss about an adviser from a Minister's office going into a semi-State body or a health board. Does this Bill only apply to the Civil Service or can people be transferred to a semi-State body? Is there any bar on that happening?
Some special advisers come in for a very short time. They breeze in and out. They seem to be very influential people and are dealing with the most sensitive of issues. They make many contacts. If I worked in a private firm or if I was a director, in many cases when my spell was over I would be barred from certain employment. I note in the explanatory memorandum that they cannot engage in other employment while they are special advisers. Has the Minister given any thought to barring them from certain activities for six or 12 months after their spell as a special adviser ends? Would it not be advisable to bar them from certain activities for 12 months?
The provision relates to paid special advisers. We should think back to January and the Select Committee on Legislation and Security and ask if the Bill should also apply to voluntary advisers. In January we saw that, in many cases, the voluntary advisers were more influential than the hired help and certainly more influential than the paid civil servants. Can we get at those people in any way because, in some cases, they seem to have more power than anybody else? Should a Minister have at least to make a declaration as to who they are? Whether we can get them to state what they have in the bank or had for dinner is another matter. Did the Minister consider those people when she was working on the Bill?
With regard to Deputy Ahern's first point, the Bill covers situations where somebody would be fixed up with a job in the mainstream Civil Service. The recruitment policies of semi-State bodies are, generally speaking, not covered by statute and this does not apply to them. The recruitment policy of any State company would be for that company's board and its personnel management.
The Deputy asked if anybody would be barred from taking up work at the end of a period of employment. This reasonably live issue is being discussed by the Nolan committee in Britain. However, they have found that there would be constitutional difficulties unless it was written into the terms of employment of a Minister or other person that they could not work for somebody else for a certain period. There might be a conflict with a person's constitutional right to earn a living.
Would this not be an opportunity since the Minister is, more or less, laying down the contract of employment?
There are a number of groups where the same considerations could be considered to apply. At the end of the day, there is a judgment to be made between inserting a provision like this into legislation or in contracts of employment. We must also have regard to the constitutional situation. There would be constitutional difficulties with what the Deputy is suggesting.
We all have voluntary advisers of one form or another. Legislation should be reasonably clear. We are talking about the hired help here.
I compliment the Minister on inserting this provision. We all appear to have short memories. Much criticism has been heaped on successive Governments in recent times over the appointment of special advisers. It is meritorious that the Minister is ensuring everything is up front with regard to special advisers and the laying of a statement or a copy of the contract before the commission, including details of relations and so on. That is all very meaningful and desirable and fits in with accountability and transparency. I respect the fact that the Minister has included this on her own initiative.
I also compliment the Minister on inserting this into the Bill. Some of Deputy Ahern's points would not stand up in law and would be open to challenge. I do not believe one can restrain future participation. There is a doctrine called restraint of trade. There are set parameters within which that would apply and it certainly would not be applicable in this instance. Some people would come in on short term contracts and the nature of the contract generally is that it is not for a determined period. Obviously, it lasts as long as the Government is in office. They do not have a fixed term contract. It is facile in the extreme to tell somebody who has an indeterminate contract that they could not be involved, for example, in a semi-State board or contact somebody else following the termination of that contract. I strongly oppose it and as a lawyer, I could not stand over it in any circumstances. We all have advisers in local pubs who tell us, for example, that the price of cigarettes should not go up.
Sometimes they give us a price we do not want.
It is put into the drum and one ultimately emerges with advice determined on the basis of experience and the contributions of others. This happens every day and we all meet people who advise us. We must listen to this advice at all times because it brings their experience, as it pertains to them, to bear. They pass on their advice and, hopefully, it is reflected at parliamentary level. This is normal democratic participation and there are advisers in all parties from every part of the country. This would bring about a conclusion which is not warranted in the circumstances.
The expression "excluded position" is used on a number of occasions in the section. What is an excluded position?
To what part of the section is the Deputy referring?
It is used in subsection (1) (a) and also is subsection (6).
When political staff are put on the payroll, they are appointed to an excluded position. This is the mechanism under the 1956 Act; they are appointed as temporary civil servants.
What does excluded position mean?
It means excluded from competition.
Section 18 (1) gives a definition of special adviser as a person who occupies or occupied an excluded position, having been selected for appointment to that position by an office holder otherwise that by means of a competitive procedure. Some Ministers and Ministers of State have set up competitive procedures by placing advertisements in their local papers for particular positions, which perhaps could be classified as special advisers. If an office holder had such a competitive procedure, is the appointee a special adviser?
The Deputy has raised a fair drafting point. We will look at it again. We are trying to define the type of animal we are dealing with in terms of political appointees and in adopting the previous amendments, we have attempted to get it right. I will check the position and come back to it on Report Stage if necessary. I am not sure whether this competitive procedure means competitive under the Civil Service Commissioners Act, 1956.
It probably does.
It could be that the Deputy's point applies. For example, if somebody holds a competition for a driver, would they be out of the loop on this? I will check it out and if necessary introduce an amendment on Report Stage.
I imagine it is the same as the position regarding the Civil Service Commissioners Act. I have another point regarding applying by means of competitive procedure. A Minister may occasionally need specialist advice, for example, a Minister's remit might include the merger of a company or the third banking force, the Trustees Saving Bank. Usually, a Minister would appoint consultants to examine that matter. However, a Minister might occasionally wish to appoint a specialist to advise him or her for two months while a particular matter is ongoing.
Specialist advisers were not used up to now and this whole area has been pilloried in recent times. I gave my views in that regard in another forum. The mixture between the two is good. Those people may come in on short contracts, but are they covered by the definition of "special adviser"? The person who is an expert on a particular matter may work in a certain banking institution in Dublin and a Minister may hire him for three months on a certain wage. Would he be a special adviser as defined by section 18 (1) (a) and (b), although he would not be contracted by competitive procedure, regardless of whether that procedure is set up by a Minister or is the Civil Service procedure? He may be a specialist in a particular area and be employed for a short period of time.
I hope the amendments adopted today deal with the point made by the Deputy. The committee considered the position of somebody being personally selected, rather than from a list of experts available to the Secretary of the Department. We amended subsection (1) to state "whose principal function is to provide advice and other assistance to or for the office holder". I hope this will make a distinction between departmental advice. We will have another look at it as it is not envisaged to catch specialists hired by a Department. We are clear that this does not arise.
The Deputy raised a grey area in terms of specialists personally selected by a Minister as somebody they know is the expert in a particular area. We will examine if there are any drafting means to distinguish the two for Report Stage. I accept the general point being made by the Deputy, but I will not be certain until I consult the legal eagles. I am not sure whether the position has already been covered by the change in the definition.
I appreciate the point made by the Minister and I know she does not intend to catch the people I mentioned. However, the position should be covered in the best way possible by stating that such people will not be caught.
Perhaps the Minister will consider one further point for Report Stage. Without wishing to engage Deputy Penrose in an argument, there are ways to avoid getting caught by this special advisers definition. For example, many people set themselves up as management consultants or companies.
That is also covered. People who are hired in a special adviser capacity on a contract are covered. There have been cases where people were hired as companies or contracts and they are also covered by these provisions.
Where is that stated? I am not being difficult but is it in another section?
Section 18 (1) (b) deals with somebody employed as a special adviser or under a contract for services. This would cover a company. It states: "... is or was employed under a contract for services by an office holder."
Yes, but Deputy Penrose's point is that a company would employ the person.
In other words, it is the vehicle.
I am not suggesting any new ideas but devices can be used.
It should be extended.
We will examine it because we asked the parliamentary draftsman to come up with something to cover situations, for example, where people employed a consultancy service, which was effectively employing somebody by the back door. It is intended to cover this case and we will have another look at it to ensure it is watertight.
I was not suggesting that special advisers should be on the dole for six to 12 months after their term ends. I merely asked the Minister a question and I am happy with her reply in relation to whether she had considered that they should have to give a declaration or undertaking not to engage in a particular type of work which might be seen as incompatible with their job.
What is the purpose in section 18 (3) (a) (iii) where it says "and the person shall undertake not to engage in any trade, profession . . ."? That last paragraph has no connection at all with paragraphs (i) and (ii). It would normally be in the contract of service which the special adviser would draw with the Department. That it is thrown in here makes no sense. It could be a separate paragraph on its own, maybe under section 18 (5). Could the Minister explain to me?
To some extent I accept the order in which the parliamentary draftsperson puts all these things on the page when we have worked out the principles. The principle here is, and it can be relevant if somebody is working either on a contract or a company basis, where somebody hires a consultancy which happens to be an individual, or where somebody is working part-time as a special adviser, to ensure that they are not engaging in incompatible activities in the rest of their working time.
That may be a good principle in regard to special advisers but I do not see why it ended up in this particular subsection. It does not make sense.
We can look at the ordering on the page. We want to have it in and we can look at where exactly it should best be inserted.
The final point I wish to make relates to using the section to draw up rules about appointments and terms and conditions of contracts for special advisers and assistants; and the exclusion of those who have acted as special advisers and personal assistants from appointment to special positions. The Minister and I come from two opposing ends of the spectrum in regard to that matter, but that does not mean I do not respect and understand her position. That being the case, the ultimate logic of her position is that this section of this Bill should also be used to regulate the position of people who have served in the Civil Service. To be specific, the secretaries of Government Departments are now appointed for a seven year term and, irrespective of their age, they can be entitled to leave the Civil Service on certain conditions after the seven year term. They may leave at a very young age. If we are to exclude the appointment of people who have acted in a political position to Ministers, surely the ultimate logic of the Minister's position is that those people, having been established civil servants at the highest level and knowing all the intricacies of various Acts and Government Departments cannot act in a commercial company for a period of years after leaving the Civil Service, bringing the expertise that they have garnered. That is the logic of what the Minister is applying one way. If the Minister extends it the other way, it should be covered in a separate section.
I certainly have sympathy with the point of view that people who work as senior civil servants, perhaps supervising a semi-State body, should not immediately become directors of a body they were previously supervising. We looked at the options in relation to that and there are constitutional difficulties in regard to barring somebody who is no longer a civil servant and about making rules as to how they may earn their living subsequently. The same kind of obstacles would apply to anybody who tried to bar Ministers from earning a living in a different way after they had ceased to be Ministers. The same kind of issues arise.
If we want to pursue this issue in relation to civil servants then it is better pursued by putting a clause into the basic contract which is often applied in companies. If somebody is employed in company A there is often a clause in their contract that they cannot jump ship and move to rival company B within so many years of leaving the company. If we want to pursue that line it is better done by way of contract. There are constitutional obstacles to doing it by way of legislation.
I am not saying that I agree with doing that. I am saying that the logic of excluding one section of one category of persons from being appointed under section 18 (5) extends in that way. Much of this section has been driven, I suggest, not alone by the Minister's own views — all of our Civil Service or former Civil Service colleagues would agree with her, as well as the unions. The ultimate logic is to follow through and do it the other way as well. If I could see consistency in the Minister's approach I would have less difficulty with accepting what is being done.
Question put and agreed to.
Sitting suspended at 1.56 p.m. and resumed at 4.30 p.m.