Amendment Nos. 60 and 61 are related and may be discussed together. Is that agreed? Agreed.
SECTION 9.
I move amendment No. 60:
In page 10, subsection (1)(a)(i), line 18, to delete "preceedings" and substitute "terms of reference".
There is a spelling mistake in amendment No. 60. The word "preceedings" should read "proceedings". The word "proceedings" is referred to in earlier sections. The parliamentary draftsman decided to change it when he went to change the spelling. However, for the sake of consistency we have decided to use the word "proceedings", which is used throughout the Bill. I move that in section 9(1)(a)(i), line 18, the word "preceedings" should read "proceedings".
Amendment No. 60, as amended, should read:
In page 10, subsection (1)(a)(i), line 18, to delete "preceedings" and substitute "proceedings".
Is that agreed? Agreed.
Amendment, as amended, agreed to.
Amendment No. 61 not moved.
Amendments Nos. 63 and 71 are related to amendment No. 62 and all may be discussed together. Is that agreed? Agreed.
I move amendment No.62:
In page 10, subsection (1)(b), line 23, to delete "in charge" and substitute "the principal officer".
This subsection provides for directions from a committee to a witness who is not an individual to go the secretary or equivalent in the case of civil servants and the chief officer for other bodies. The committee's direction is to specify what information is required and the witness will be allowed no more than ten days for this. It also provides that the employer in the Civil Service context is the principal officer of the Department or office, that is, the Secretary or equivalent.
These Government amendments are drafting changes to remove any possible ambiguity that it is the Minister who is legally and constitutionally in charge of a Department, whereas the Secretary or equivalent is the principal officer, that is, the day to day manager. I will withdraw amendment No. 71 when we consider section 14.
Normally the term "Principal Officer" normally specifically means an officer ranked next in line to an Assistant Secretary. Is there a danger in using that terminology here?
Under the 1924 Act, the term "principal officer" is a statutory term and it covers the head of a Department.
Amendment agreed to.
I move amendment No. 63:
In page 10, subsection (2)(a), lines 30 and 31, to delete "in charge" and substitute "the principal officer".
Amendment agreed to.
Question proposed: "That section 9, as amended, stand part of the Bill."
Public servants must get ten days notice, which does not apply to others. Why? It can be added to the 30 day period, referred to by Deputy O'Malley. There is a period during which the principal officer can appear before the committee to make submissions on evidence which is proposed to be heard. If I want to call a specific person in a Department who dealt with, say, a specific FEOGA grant, the committee should not necessarily have to hear the Secretary of the Department on submissions on the same issue. The purpose here is to intervene so that a departmental line can be laid down in advance of the civil servant appearing to do his best to tell the truth.
I am sceptical about this. Why should the departmental head have the right to make submissions to the committee? I do not know what the submissions will be about, relevant to its proceedings. If I asked to see a particular civil servant, the Secretary will appear with a written submission. It is self protective. Is it necessary to have it as part of the law? Surely it could be a rule of procedure.
Is there a reason for the section?
Apparently it does not just involve civil servants; it applies to all corporate bodies.
If we want a finance officer to appear, why should the managing director of a corporate body have the right to appear to make the submission? If we summon the finance officer of a specific company, we should be entitled to have him here without having the managing director in to plough or obscure the ground before him.
Before the rotation.
It does not just apply to civil servants. Why is it necessary?
It is to protect employers from maverick employees in the private and public sectors.
It is a question of compellability. The committee will have selected the finance officer. It is not that the finance officer volunteered to appear before the committee.
It is implied.
A Deputy
It is the same for public and private employees.
That is right and we accept that.
I stated that. Why is it there for any of them?
Why are the self-employed not given the right to send in somebody?
It is basically to ensure than an employer is not unrepresented. It is to protect the interests of the employer.
The phrase is that the employer can come in, give evidence and produce documents. A committee may not want to hear the employer's evidence or see his documents. It may just want the employee to appear.
The employer might want to protect his or her interest also.
It is a complex issue in terms of the liability of an employer regarding the evidence which might be given by an employee. It is not as simple as the committee demanding that an employee appear before it. The employer may have to protect himself or herself with regard to the evidence. He or she may have to be aware of it. Is that covered in the Bill?
If the committee issues a direction to a civil servant, for example, a HEO in the Department of Tourism and Trade, to appear before it, who decides whether that direction is issued to him in a personal capacity or as a HEO? Who decides whether the direction is given to him in his capacity as an employee or as a representative of the Department? Are we not confusing the issue? A principal officer will be entitled to appear. Does the provision mean every direction to a civil servant will be met by a delay, followed by an appearance of a principal officer?
I think so.
It would be up to the committee to decide whether they should appear.
It states the committee shall. The committee is required——
It is required to notify but the person may appear before it.
They may appear and say they propose to give evidence. A civil servant from one Department may be asked to appear and the head of the Department could appear and demand to give evidence. Another point is that it could be transferred from one Department to another.
If an issue related to a company and a bookkeeper received a summons from a committee, surely the employer is entitled to know about it if the employee says something which is at variance with the knowledge of the employer or somebody else in the company, they must have an opportunity to come before the committee. That is the purpose of the section.
I am worried. I understand the point about a company in that regard. However, there is no analogy between the principle of a Department and a civil servant and employer and an employee. An employer has a commercial interest. A committee might decide it wants to hear what a clerical assistant in an office has to say about a particular matter. In addition, there are blanket exemptions for the officers of the Director of Public Prosecutions and the Attorney General, even relating to matters which might have occurred before they were officers. I am deeply suspicious of a departmental Secretary having the right to pre-empt anybody by appearing and laying down the departmental line.
With respect to the Deputy, they cannot pre-empt them provided the committee is in a position to dictate who appears before it and in what sequence.
Why not state "may make submissions"? It should be up to the committee to decide whether he should then be called.
Perhaps it could state "and if necessary appear at the request of the committee".
He could make submissions in writing to the committee and it could then decide whether it is important to call him.
My concern is timing and the possible frustration of the work of the committee. How much time would have to be given to a HEO in the Department of Tourism and Trade if the committee also had to give notice to the principal officer in advance so the principal officer could appear and make submissions?
Ten days, according to the last paragraph.
Will the Minister answer that query?
If the committee wants the HEO to appear and gives notice to him or her to appear in ten days, how much notice is given to the principal officer? When is the time set aside for hearing the submission of the principal officer? How will it work in practice? I understand Deputy Ahern's point that employers need protection.
They should be able to make submissions and the committee should then decide whether it is necessary for them to appear.
This matter should be covered by guidelines. We could hamstring ourselves by including too much in the Bill.
My concern is that there will be a statutory obligation on a committee to do certain things. If the committee wants a HEO in a Department to appear, somebody could say the proceedings of the committee are contrary to the Act under which it is operating because it did not comply with section 9, did not give relevant notice in advance to the principal officer of the HEO or give the principal officer the opportunity to make a submission. I understand Deputy Ahern's point that we must take cognisance of the position of employers in case it could be undermined by the evidence of an employee. However, my concern is that, because of the inclusion of a mandatory provision, we may give another weapon to those who might try to frustrate the legislation by taking a court case to declare the entire proceedings null and void.
I am not here to protect employers but if an employee commits a tort, the employer is responsible. Employees' actions could have serious effects on their employers or other employees in the company.
In a company, yes, but a principal officer in a Department is not the employer and would not be subject to tort.
Studying this section, which is not easy to understand, it amazes me that it should be here at all. In 9(1)(a), if an employee is summoned to a committee he must get at least ten days notice, and the committee shall notify the employer concerned, and the employer or another employee of the employer, authorised in that behalf by the employer, can appear before the committee.
A representative.
The committee might tell the employer it wants to see Mr. A but under this subsection, the employer can say he will not send Mr. A but he will send Mr. B.
No. Mr. A has to come as well.
He is a representative of the employer.
Mr. B can say why Mr. A cannot come.
One might have an Assistant Secretary in his place but not in the place of an employer.
Mr. A must come anyway but the employer may have a substitute tell his side of the story.
In my experience sometimes a breakthrough in the investigation of fraud and malpractice is made only when an employee comes forward. The purpose of this is to put the employer in the driving seat to prevent an employee from blowing the whistle.
It is worse and more sinister than this. In this arrangement one does not get privilege unless a direction is given to one to attend. Therefore, if one is coming before a committee under this arrangement, one must have a direction. If a junior civil servant in the Department of Justice indicates that he wants to come before the Select Committee on Legislation and Security to give evidence about what has transpired in his Department, he will not get privilege unless he is directed to come. If he is directed to come, the Secretary must be notified. A whole structure of moral blackmail then comes into being. The civil servant who wants a direction given privately to him is told he is in the Civil Service and will have to notify his superior.
He is told he will remain an executive officer for the rest of his life.
That will happen. Nobody would dare to do it. The Secretary is entitled to make submissions why the civil servant should not be called.
A good way to improve this Bill would be to withdraw many of the sections and replace them with guidelines. If those guidelines are found to be faulty subsequently they can be mended quickly, whereas the legislation is cast in stone.
I would be much happier with that.
That may be the best way given the complexities of the issues raised.
I am also mindful of the whistleblower's rights.
I accept that but we are not dealing with a company.
I object to this section. It should be deleted.
I object also.
I will vote for this section if I have to but I would like it to be examined. I do not see the necessity for it.
Nobody's position is any different.
Since we are unanimous, could it not be deleted? This is a farce. Who is making the decision? The nine elected by the people of Ireland or a handful who were never elected by anybody? This is a fundamental problem to which Parliament had better face up.
The points made here should be seriously considered for Report Stage. In the meantime, those who can should use their influence.
We should not have to.
You know the reality.
If this committee is unanimously of the view, as it is, that this section and various others should be deleted, the committee should prevail. If the committee does not prevail in those circumstances, the constitutional position of the Oireachtas is undermined.
With respect to Deputy O'Malley, his approach is unreasonable. He knows the reality and ignores the progress made in getting through the Bill as a result of expressed views, not least those of Government members expressed publicly and privately. I have expressed my views in robust fashion and hope more substantial changes will be made. Is that not the purpose of a Committee Stage approach? Let us be realistic.
We have had a lot of discussion on section 9.
Question put.
The committee divided: Tá, 5; Níl, 4.
Tá
- Byrne, Eric
- Penrose, William.
- Mitchell, Jim.
- Doyle, Avril.
- O’Keeffe, Jim.
Níl
- Ahern, Dermot
- McDowell, Michael.
- Ahern, Noel.
- O’Malley, Desmond.
Section 10 agreed to.