Civil Service Regulation (Amendment) Bill 2004: Committee Stage.

This Bill was referred to the select committee by Dáil Éireann on 13 October 2004. I welcome the Minister of State at the Department of Finance, Deputy Parlon, and his officials to the meeting. Before we proceed, I propose that the committee sit until 8 p.m., if consideration of the Bill has not concluded earlier. Is that agreed? Agreed. The grouping schedule in respect of the amendments has been circulated. Are the Deputies agreed on it? Agreed.

SECTION 1.

Amendment No. 1 is in the name of Deputy Burton, who is not present. She has not informed me that she wants somebody to move it on her behalf.

I move amendment No. 1:

In page 5, subsection (4), line 34, to delete "and Terms of Employment".

I presume Deputy Burton will be present later.

The Minister of State is disappointed already.

I look forward to her arrival. The purpose of the amendment is to provide for a change in the name of the Minimum Notice and Terms of Employment Acts 1973 to 2001. We approached the Office of the Attorney General on this matter and it advised that the citation used in section 1(4) is correct. While it is the case that sections 9 and 10 of the Minimum Notice and Terms of Employment Act 1973 relating to terms of employment have been repealed by the Terms of Employment (Information) Act 1994, the title of the 1973 Act remains unchanged owing in part to the fact that there are a number of subsequent employment Acts containing provisions that directly relate back to the 1973 Act, certain sections of which are to be construed as part of that Act. In any event, the Title of an Act cannot be amended retrospectively. On that basis, the citation is correct and I therefore reject the Deputy's proposed amendment.

Amendment, by leave, withdrawn.
Section 1 agreed to.
Sections 2 and 3 agreed to.
NEW SECTION.

I move amendment No. 2:

In page 6, before section 4, to insert the following new section:

"4.—The Principal Act is amended by inserting the following new section after section 4:

‘4A.—The Minister for Finance shall on 31 March 2005 and annually thereafter, cause a report relating to modernisation and human resource management in the public service to be laid before each House of the Oireachtas detailing—

(a) the progress in delegating responsibility to local managers,

(b) the targets and accountability systems relating to delegated responsibility,

(c) the performance appraisal systems and associated procedures for promotion, reward, or tendering,

(d) the opening up of competition for posts,

(e) the human resource management effects of relocation, and

(f) progress made in the strategic management initiative.’.”.

This reasons for introducing this Bill represent the background to this amendment. The Bill was described on its introduction as a measure to implement changes that were consequent to the Public Service Management Act 1997. The changes arise from the public service modernisation programme that predated that legislation. What is alarming about the way in which public service modernisation is being handled is that it is not proceeding at anything like the pace that was expected. This is confirmed and I do not want to go into the details, but the evaluation of the strategic management initiative commissioned by the Taoiseach makes poor reading. None of the key changes that were to be made to improve the delegation of responsibility and the consequent performance appraisals, management accounting systems and targets has proceeded apace. Access to large numbers of posts in the Civil Service is highly restricted in terms of who can apply for them. We have introduced the decentralisation or relocation programme without any human resource management context being produced by Government. The strategic management initiative, which was supposed to drive performance in key areas, has not been proceeding at the pace at which its authors intended.

It would be very good if the Minister of State accepted this amendment which seeks a report to be presented to the Dáil annually on the progress regarding modernisation and human resources. This would enable us to examine these critical issues. The one group that seems to have no realistic say in what is happening in public service modernisation comprises people like us who are elected on behalf of the public to examine the relevant issues and create momentum for change. We are stakeholders and should have an annual report and the opportunity to put pressure on Government to make changes if progress is being delayed. If reform is being held up elsewhere in the system, we should equally have the opportunity to subject those responsible to public scrutiny and try to move the agenda forward.

This amendment would serve as a positive contribution to a modernisation agenda. It has no axe to grind but gives back to the Dáil a central role in this matter. In recent years, power has tended to drift away towards partnership groups and trade union groups. Although these have a legitimate role, there also needs to be a role for public representatives and the wider public. I hope the Minister of State will accept this amendment. It would be a useful addition to the material and approach that has been adopted thus far.

I fully support Deputy Bruton's amendment. Will he share with us why exactly he has focused on 31 March 2005? Is it a deadline by which an annual report of the previous calendar year should be presented.

The amendment is very sound in the context of human resource issues and it seeks to achieve greater accountability and transparency. I fully support that. The only small reservation I have is predicated on my concern that it could lead to unnecessary bureaucracy and an infinite paper trail. This is a concern because there is already an avalanche of paper in the system. I know this from having worked in it and I am sure colleagues here will confirm it. Given that it is not intended to add unnecessarily to the burden of work, I believe the amendment is a sane and sensible proposition and logical in the circumstances. I fully support it.

I apologise for being late. I support Deputy Richard Bruton's amendment. One feature of the Civil Service that people find difficult is its position on opening up competition for posts. Many young people, certainly those under 30, typically expect to work in a variety of different posts and, over a period, study many different disciplines. Given that this new work pattern is well established, it will be very difficult for such people to apply for posts within the Civil Service, including for promotional posts. People who have worked in various offices in the European Union, including the Commission, will find it very difficult to do so unless they have been on secondment.

I was interested in the Government's appointment of a former Deputy of the House, Mr. Chris Flood, as envoy to the region affected by the tsunami in South-East Asia. It is interesting to ask in the context of Committee Stage of this Bill whether that is in effect an ambassadorial position or a temporary non-established position. The Department of Foreign has certainly resisted for a long time the notion that non-diplomats would be appointed to diplomatic positions. I noted that a former US President, Bill Clinton, was appointed to a similar position as UN envoy for tsunami relief. In the case of the UN that is very definitely a position. Is the Minister of State aware of the changes in regard to the appointment? I do not have a problem with this because I am glad we are appointing an envoy. Although I appreciate he might not have the information available to him, I would be grateful if the Minister of State reverted to the committee about the detail of that appointment because it would be of significant interest.

I do not know the status of the envoy.

Will the Minister of State try to find out?

I will do so. It is not relevant to this Bill in any case as it does not deal with competitions for posts or promotions.

Deputy Bruton's amendment seeks to ensure that an effective system is in place to monitor progress in regard to the agenda for modernisation and particularly human resource management across the Civil Service. A comprehensive reporting structure is already in place for Departments and offices to track changing circumstances and report on organisational performance and progress made in respect of the modernisation programme.

First, the Public Service Management Act 1997 provides that the Secretary General or head of office must prepare and submit to the Minister a strategic statement in respect of the Department or scheduled office every three years or whenever a new Minister is appointed. Under the Act, progress reports must be submitted to the Minister on implementation of the strategy statement on an annual basis. This system, while providing a legislative framework for monitoring performance, also allows Departments to continually update and change priorities in response to specific demands.

Additionally, the performance verification groups established under Sustaining Progress have played a crucial role in monitoring progress in regard to modernisation commitments contained in the agreement. The performance verification groups, which have a number of independent customer and business representatives and an independent chair, meet regularly to assess progress which Departments and offices have made and have published their reports. This process allows organisations the flexibility to identify their own organisational priorities within the context of the service-wide priorities agreed in Sustaining Progress.

The Deputy has proposed an amendment which would actually restrict the flexibility which the Civil Service currently has in order to adapt to changing circumstances. By making organisations report on progress in specific areas which are stated in legislation, we would not be allowing them the flexibility to address their own priorities and to adapt them in response to changing priorities and demands.

Therefore, I do not accept this amendment on the basis that there is already in place an effective structure for monitoring performance and to put this amendment into the Civil Service Regulation (Amendment) Bill would put in place a structure that is too inflexible and restrictive. I agree with Deputy Ó Caoláin about the extra bureaucracy and paper trail it would involve.

The Houses and offices of Oireachtas Members are quite full of reports which I suspect do not receive much scrutiny and do not give a very clear picture of the position. The emphasis on the responsibility of Secretaries General and heads of Departments to improve their own efficiency is the way forward.

"Yes, Minister" may be off the air, but the "Sir Humphrey" background of the public service is alive and well in the Minister of State's reply. He comes before this committee as the Minister of State with responsibility for the public service but, having listened to what he read out, he appears to see no role for himself in that regard. He has decided that all of the broad cross-cutting issues in public service reform are now to be drilled down to individual Ministers and Secretaries General. In this regard, he is making up policy on the hoof because that is not my understanding of the Government's approach to public service modernisation.

His Department has a role in this, as has the Department of the Taoiseach. There is an obligation and an expectation that cross-cutting reporting would be undertaken on issues as fundamental as the extent to which responsibility is delegated within Departments and management information systems are being produced by Departments to meet the standards of the public accountability that we expect. To what extent are we delivering good results with the resources we are using and are we focusing those resources on targets published by Ministers?

The truth is that the strategic management reports, if the Minister of State cared to read any of them, have set out standards and targets, for example in the Department of Health and Children, but none of them is being delivered upon. The Minister for Justice, Equality and Law Reform has targets in regard to drug seizures and detection rates but performance trend is in the opposite direction. There is no regular reporting on the issues. We have a hopelessly centralised system of public administration.

The PA Consulting report, which I am sure the Minister of State has read, is highly critical of the lack of willingness within Departments to delegate responsibility in order to give people senior management responsibility and let them deliver results and hold them accountable for it. The Minister of State claims these reports add to bureaucracy and the paper trail but, given that I am sure such reports cost a considerable amount of money, surely we should expect that the Minister of State with responsibility for the public service should have some strategy as to how we are to deliver these over-arching targets of public service reform. He should not just hide behind the institutional structure which was put in place in 1997.

It cannot be stated that everything in the garden is rosy because we have flexibility. Ministers are doing what they like to do and any suggestion of interference on a cross-cutting base would, according to the Minister of State, be "restricting modernisation" because we would be forcing them to report on issues which they did not feel were priorities. However, Members of the Oireachtas have a say in setting our priorities. The State, including successive taoisigh, has stated that the issues to which I have referred are priorities on a cross-cutting basis. For the Minister of State to come before the committee to tell us everything is all right and that this is a nonsensical and bureaucratic amendment indicates that he is missing the boat. I wonder to what extent the Minister of State has prepared himself in advance of dealing with this Bill. The issue of public service modernisation is an important one.

I will not get drawn back into the issue of the verification groups because the Minister of State knows my views. Wheelbarrows full of activity were handed to the verification groups but they did not come to the core of delivery which Members of the Oireachtas want to see.

I thank Deputy Ó Caoláin for his support in principle. The insertion of 31 March 2005 was only to create a starting date — it can be put back as there is no absolute obligation to it. However, I am anxious to kick-start some of these reforms. I was shocked when the Minister of State came before the committee during the passage of the last Bill on the public service and reported on the extent to which there are still closed competitions in the public service and that the principle of promotion of merit is not absolutely endorsed. Some competitions are restricted and confined, which is not in accord with the objectives which were set out in the 1990s. We are proceeding at a snail's pace.

I acknowledge that industrial relations issues have to be negotiated, some of which have already been partially negotiated. However, there must be some momentum, which the Oireachtas can create if we take an interest in having reports like this furnished to us. We should not, as the Minister of State would like, be content to have 16 strategic statements, progress reports and verifications groups and such a wad of paper that no Deputy would be informed as to the extent of delivery on the high level targets across the public service.

I do not know whether the Minister of State has been delegated responsibility to accept an amendment like this but if is were accepted it would put him in a more powerful position to influence change and modernisation within the sector.

The Minister of State indicated that he concurred with me but everything he said prior to that statement and the reasons he gave demonstrated only that he does not agree with me. I wish to reiterate my support for the proposition. I cautioned against increasing bureaucracy and the burden of endless paper trails. However, I did so not because I suspected that was what was behind Deputy Bruton's proposition but rather that subsequently others would in effect translate it into that. I cautioned against that because it is clear from what Deputy Bruton said that it is not the intent. It makes sense and it increases accountability and transparency. For that reason it merits support and the Minister of State should re-evaluate his position.

I have listened for many years to the Government being criticised for being too involved in areas where it has responsibility. Time and again there have been suggestions that this should be handed over to an independent body, that the Minister should not be involved and that it should be a matter for the Civil Service.

Here is a Government proposal that the Secretary General of the Department will have responsibility for matters pertaining to appointments and the performance of civil servants. Who would know better than the people with hands on experience in these matters? Is this not an attempt by the Government to stand back from interfering in the Civil Service and relying on Ministers to the detriment of policy? This is the way forward and I am not sure that Deputy Bruton really feels that Ministers should act in a hands on manner in these matters. We should allow the Civil Service to perform to the best of its ability.

This only seeks to report of success.

It is an attempt to interfere with the structure whereby the Civil Service will have an independence of thought and performance and in meeting targets. I see nothing wrong with those goals. I was Whip for two years of the Oireachtas committee that dealt with the strategic management initiative and we regularly debated this issue. This is a logical step on the right road.

I agree with Deputy Finneran. The direction, particularly in this Bill, is towards delegating responsibility to Departments to introduce their own efficiencies. There are still opportunities for Oireachtas Members to question decisions. Yesterday, for instance, I replied to questions for the Department of Finance and the Office of Public Works and today foreign affairs are on the agenda. Those opportunities exist.

The PA Consulting Group evaluation concluded that while the Civil Service is more effective than it was a decade ago, implementation remained incomplete and that accelerated progress, particularly in human resource management, was required. That is ongoing. There is never a big bang that transforms the situation overnight.

The Deputy referred to the non-delivery of targets, particularly in the Departments of Health and Children and Justice, Equality and Law Reform. There has been a substantial reduction in crime and that is the primary responsibility of the Department of Justice, Equality and Law Reform. Statistics can be used to prove any point.

I am puzzled as to why the Minister of State is taking this view. It was not without reason that the Department of the Taoiseach and the Department of Finance sought to drive the strategic management initiative across Departments. There was a need for momentum and interest from the core of Government to drive it forward. The theme of Delivering Better Government was an effort across Departments to introduce new management approaches, responsibilities and systems of accountability because there was a sense that issues were falling between two stools. Children, for example, was a policy area where the Government was working in isolation and unable to focus on interdepartmental issues.

Modernisation was held back by traditional ways of doing things that had passed their sell-by date. I do not know why the Minister responsible for the public service or someone who has taken a key issue in strategic management would consider a request for a report intrusive. That is not what this is about. We are not telling the Secretary General of the Department of Communications, Marine and Natural Resources that he cannot restructure his organisation. We want to deal with the critique in the document that states momentum has been lost in these areas. It is our job to maintain momentum, we cannot get into the detail or read umpteen reports from different Departments, we do not have the capacity to do that. This is short and to the point and would be good in terms of interdepartmental issues. I am disappointed that a Minister of State with an interest in public service does not see value in what the amendment seeks to do.

I am disappointed by the Minister of State's tetchy response. Committee Stage exists to tease these issues out. The greater disaster besetting this Government, now in its eighth year, is its failure in terms of infrastructure. There is a 30% underspend in the Department of Education and Science.

The Deputy should speak to the amendment.

Departments do not know if they can even spend the money allocated to them. Departments are responsible for building infrastructure and saving us from the chaos that we endure in traffic jams and other areas of everyday life.

I can understand why the Minister of State is so defensive about the Government's performance after eight years when people hardly bother reporting crime because they are so depressed with the failure of the Garda to respond.

There are real problems. The political excuse used to be that we could not do anything about infrastructure because there was no money. This Government has the money and the Civil Service machine has broken down in part because it is unable to spend the money. Deputy Bruton's amendment suggests that there will be greater accountability and reporting in these areas. Except that the Minister of State is obliged to defend the Government in its eighth year, he would not make such comments.

Since the Minister of State's party entered Government in 1997, crime levels are up substantially. The spend is up, the detection rate is down and drug seizures are down. Pay costs and prison numbers are up but the public does not see results in as rosy a light as the Minster of State.

Amendment put and declared lost.
SECTION 4.

Amendment No. 3 is consequential on amendment No. 4 and they shall be discussed together by agreement.

I move amendment No. 3:

In page 7, paragraph (d), line 3, to delete “definition” and substitute “definitions”.

This is a technical amendment that reflects the insertion of a definition of "Secretary General" into section 4(d).

Amendment agreed to.

I move amendment No. 4:

In page 7, between lines 12 and 13, to insert the following:

"‘Secretary General' has the meaning assigned to it by the Public Service Management Act 1997;".

Amendment agreed to.
Section 4, as amended, agreed to.
Section 5 agreed to.
SECTION 6.

Amendments Nos. 5 and 6 are related and will be discussed together by agreement.

I move amendment No. 5:

In page 8, line 32, to delete "and".

This is a technical amendment.

Amendment agreed to.

I move amendment No. 6:

In page 8, between lines 36 and 37, to insert the following:

"(f) in relation to a civil servant who is of the grade of Principal or of an equivalent or superior grade to whom subsection (1)(a)(i) does not apply, who is serving in the Office of the Secretary General to the President, the Taoiseach, and

(g) in relation to a civil servant below the grade or rank of Principal or an equivalent grade, who is serving in the Office of the Secretary General to the President, the Secretary General to the President.”.

Amendment agreed to.
Section 6, as amended, agreed to.
SECTION 7.

I move amendment No. 7:

In page 10, between lines 4 and 5, to insert the following:

"(3) The Minister shall, by regulation, outline procedures which are to be applied where a person is being engaged on contract for a specified time or for the duration of a specified project, and these procedures shall,inter alia, provide for documentation of—

(a) the criteria for deciding whether to engage the person as a civil servant or as a consultant,

(b) the tender procedure chosen for selection and the reason for that choice,

(c) the method of oversight of the selection procedure and the subsequent recording of work done under contract and its quality.”.

This arose out of section 7 which empowers the Minister to employ people on contract. The report by Mr. Quigley on the appointment of an individual to advise on public relations in the Office of Public Works and the Department of Communications, Marine and Natural Resources made several recommendations to clarify the conditions under which people were appointed, including the contract terms and monitoring of the contract. Following those recommendations I drafted this amendment which proposes that clear criteria would be stated for deciding whether the person was engaged on contract as a civil servant, a consultant or a political adviser.

The second paragraph proposes that documentation be provided to explain why a particular tender procedure, in this case a single tender, was selected. Mr. Quigley reported that there was no documentation for many of the issues surrounding the events he examined. He also drew attention to the lack of documentation of the method of oversight, the selection procedure, the work done or the contract and its quality.

This amendment seeks to clarify that area without commenting on the political judgment of either the Minister or the individual and contract involved. It would at least respond to Mr. Quigley's comments by seeking legislative clarity of the expectations and outlining what needs to be documented when a contract is chosen instead of a consultant, for example, the nature of that contract, how it was tendered for and the oversight.

This was as close as I could get to reflecting the tenor of Mr. Quigley's proposals. I hope the Minister of State sees merit in this amendment because the Taoiseach has indicated that he accepts the direction recommended by Mr. Quigley. If the Minister of State needs more time to reflect on it and consult the parliamentary draftsman, I will wait and table the amendment again on Report Stage.

In supporting Deputy Bruton's amendment I understand that the Minister of State might want to consult the Attorney General's office because the Quigley report is recent and contains legal issues with which it is difficult for those in opposition to deal. Nonetheless, the report identified provision for employment of a category of persons entitled "advisers to Ministers", to whom the Bill refers.

According to the report, the Minister involved bypassed that mechanism and chose a tendering procedure whereby a person was paid €130,000 per year for three days' work a week. This was far in excess of comparable remuneration rates for a person properly appointed. There is ample provision for this and the Government has not been slow to appoint people. All parties agree that advisers are necessary but the appointments must be controlled on the basis of value for money.

I strongly commend Deputy Bruton's amendment. The Minister of State may have technical comments in which case he could agree to take it back to the Attorney General or the Department of the Taoiseach in the context of the Buckley report and to return to the issue on Report Stage.

I support Deputy Bruton's amendment. Far from exonerating anyone, the Quigley report levelled serious charges against the practices under scrutiny. It is appropriate that the Minister of State with responsibility for the Office of Public Works is present because the genesis of the Quigley report was a slight on the effectiveness of the communications unit in the Office of Public Works. It suggested that office would not be able to present and promote the works undertaken in Waterford or anywhere else. This is a matter of significant concern which requires action.

We need more clarity and accountability, not only for the Government's appointment of individuals or firms of consultants to carry out particular functions for a limited period but for its process of engaging them by contract. Short-term contracts inevitably are costly which is an adequate reason for oversight, proper evaluation and recording of work done. We have clear evidence that was not the practice in at least some recently publicised cases.

Oversight and recording is critically important. The insertion of this new subsection to section 7 would significantly improve this Bill and help to outline the changes that must be adopted in the light of the detail in the Quigley report.

The Quigley report cleared the Minister of any wrongdoing. This amendment might have to compete with a further inquiry such as the laptop inquiry or the private tribunal inquiry. There are several options available and this amendment may be somewhat premature.

I do not consider it necessary or appropriate to include a reference to procurement in the Bill for several reasons. The conduct of public procurement is governed by EU directives which set down the procedures to be followed by public sector bodies for contracts over the prescribed threshold of slightly more than €150,000 for supplies and services to Departments or Government offices. The directives are transposed into national law by means of statutory instrument. National guidelines also set out the procedures to be followed by public bodies when procuring goods and services, including consultancies below the EU thresholds.

Furthermore, if such procedures were to be put on a legislative basis, it would not be appropriate in respect of a Bill which is concerned with the management and regulation of civil servants. For those reasons I do not propose to accept the amendment. Furthermore, if such procedures were to be put on a legislative basis, it is not appropriate in respect of a Bill which is concerned with management and regulation by civil servants. For those reasons, I do not propose to accept the amendment.

The Taoiseach noted the findings of the Quigley report, namely, that the procurement of Mrs. Leech's services was broadly in line with the norms and practices for procurement as reflected in the operative guidelines, and stated he was satisfied there was nothing in the report to suggest that the Minister, Deputy Cullen, acted inappropriately. Furthermore, he has directed that arrangements be made to implement recommendations made by Mr. Quigley in the report. I recall that Deputy Rabbitte had an input into drawing up the terms of reference of the inquiry and on publication of the report he went on public record to state he fully accepted Mr. Quigley's findings.

I agree with the Deputy on the undersell of the OPW's achievements. There should be a much larger press office selling its achievements.

Maybe they could do the job better.

Maybe the Minister's constituency needs a boost also. I am mystified at the reply provided. It is clear we are dealing with a situation where Ministers are faced with the choice of either engaging a person on contract or engaging him or her as a consultant. If they were to take the contract route of hiring a standard political adviser, they would be bound by certain financial requirements, although in this case the decision was to breach those financial requirements. While I do not want to retry the issue, a justification was offered that this person was doing other work and would only be available at certain times, and, therefore, could not be a political adviser. However, Mr. Quigley clearly stated:

In all cases where a Minister suggests a person or takes an initiative in relation to a contract the matter should be documented, and the Accounting Officer should be advised if not involved up to this point. The need for a process auditor to oversee any subsequent procurement should be considered and the papers should be drawn to the attention of the internal audit unit/audit committee.

He also stated, "The Government contracts committee to review the guidelines for engagement of consultants to see what changes might be needed to promote best practice, especially as regards the use of single tendering on grounds of urgency". That occurred in this case. Mr. Quigley continued, "The Department of Finance should also consider giving further advice on monitoring and recording of work done under contracts and its quality," and that in addition to normal provisions on avoidance of conflicts of interest there should be provisions on the involvement of consultants in other activities during the contract period.

It is clear the issue raised by Mr. Quigley and in my amendment had nothing to do with procurement covered by EU directives. The only issue that touched on procurement rules under EU directives was that Mr. Quigley remarked on the fact it should have been advertised under EU directives because it had reached a threshold that required such advertising. However, it was not so advertised. While the Minister stated the amendment is unnecessary because we already abide by EU directives which have been transposed into Irish practice, they manifestly were not abided by in this instance in that the Minister and the Department did not observe them.

The Minister's response gives cold comfort that everything in the garden is rosy and he did not respond to any of the other issues raised by the amendment. As Mr. Quigley stated, there should be greater clarity as to when it is appropriate to use single tendering on grounds of urgency, and this should be documented.

I could understand it if the Minister told the committee he needed more time to assess the Quigley report and decide on the appropriate mechanism, how much of this process should be undertaken by law or in other ways and who will be held accountable. We need to know this at the end of the process. While I cannot speak for all parties, there is a general feeling across the House that this is not how it should have been done. Technically, it may have stayed within rules but it creates a bad impression about the way politicians do business, and it needs to be dealt with. While I am trying to deal with it, the Minister, ostrich-like, seems willing to stick his head in the sand and state that procurement is great, we are model schoolboys and we should all go home happy and not bother him with these questions. That is not adequate.

Serious issues have been thrown up by the report. They reflect particularly on public confidence in the way politicians do business. Implicit in the acceptance of the report by the Taoiseach was, as I understood it, that he accepted the recommendations, which I am seeking to implement in this amendment. The Minister needs to reconsider his response. I will put the amendment forward again on Report Stage. I will expect him to be better briefed at that stage if he cannot brief himself on the matter today.

While the Quigley report is not the central focus in regard to the proposition before us, nevertheless it is very much swirling about it. The notion that it has absolved anyone is a misrepresentation because we would all recognise that Mr. Quigley balked at the last hurdle — that is the sum total of this matter. The reality is that we need to have crystal clear guidelines on the engagement of outside consultants to carry out specific functions in the public relations or any other field. This needs to be laid down in terms of the criteria, the procedure in regard to interviews, selection and oversight, as the amendment indicates, and work done. There should be a record of work done which, as Mr. Quigley indicates, was not available in this case. To imply it met the criteria on EU requirements was wrong — it did not. It exceeded the cost and should not have proceeded as it did. It should have been handled in a very different way.

That said, the amendment seeks to include a section which would in some way ensure better practice. The Minister stated he agreed with me — it is becoming a habit today — in regard to the communications unit of the OPW needing to work harder. However, while I am not personally aware of the extent of the resourcing of the unit, if it is deficient I have no hesitation in recording that I would rather see public money invested in strengthening the staff within the Civil Service in regard to their responsibilities, rather than having work contracted out to the private sector for particular timeframed engagements. Much work is available to the private sector without directing taxpayer's money into it.

We have unquestionably good and effective staff in the Civil Service in all Departments, and the OPW is no different. The works undertaken in this instance, and the promotion and building of public awareness, should have been left to the particular Department or section, the OPW. If the Minister indicates the section is in any way deficient, I will have no hesitation in supporting him in seeking to strengthen it. This would ensure it would be the first choice in all such situations and that only in the most exceptional circumstances would we see public money expended on such engagements of outside consultants, PR or anything else.

I can understand that the Minister would have a difficulty getting a briefing on the Quigley report because it has been so recently issued. One must remember that this Bill is primarily about streamlining the powers of Secretaries General of Departments. In essence, part of the dilemma at the heart of the Quigley report is the fact that this Minister, a strong Minister who has not been unknown, who is a bully, can take on the Secretary General of the Department and essentially get him either to agree or decide that he has no function with regard to a particular class of engagement of a consultant or adviser.

Let us talk of the economics of the matter. In a situation where a Minister and Governments and all political parties agree that there should be a capacity to appoint advisers, advisory roles are set out. They are governed for office-holders by reference to standards, ethics and so on. That is correct, because the appointments are very sensitive. People in all parties have had to deal with these. However, the problem thrown up by the Quigley report is that there is an extraordinary level of remuneration attaching to a person who has been a political associate of a Minister and who is identified publicly as carrying on the types of activity which are normally carried on by political advisers, for which there is a provision.

Instead of being a consultant, that person could very properly have been a political adviser to the Minister and paid at probably something like half the economic rate at which the person was supplied. It was open to the Secretary General of the Department to advise the Minister — as I think many Secretaries General of Departments would have so advised — that this appointment fell into the advisory rather than the consultative capacity.

We are not saying that the Minister of State should come here today with the final word on this, because it is a tricky area, but one of the things which Deputy Bruton's amendment would seek to do is have this issue clarified because it is in the interests of us all to defend proper procedures. The matters outlined in the Quigley report are what brings politics and politicians like ourselves into disrepute. They also relate to what this Bill is about, namely, the powers of the Secretary General of a Department.

Last April, the OPW, for which the Minister of State, Deputy Parlon, has responsibility, was the subject of a report on procurement procedures. Deputy Parlon responded quickly and on request eventually published the report on those procedures, running up towards the Presidential election.

Comments should be linked to the amendment before us.

I am making an important point. In the case of which I am speaking, the Minister of State responded and acknowledged a problem. As I understand it, the OPW has set in motion — as other Departments may have done — arrangements to ensure that the matters outlined in the report are attended to. That is well and good, and fair dues to the Minister of State. Last week however we got an important report which has a strong bearing on the matters covered in this Bill. We are not asking the Minister of State to give us a definitive answer now. We recognise it is probably impossible for him to do so but we want him to agree to address the issues by Report Stage. Those issues relate to people's fundamental confidence that politicians deal honestly and fairly with public money.

The appointment in question was one which was turned into a consultancy. A Secretary General could have addressed those issues but in this particular case perhaps did not do so. I do not know, but I think many Secretaries General would have done so. The onus is now on the Minister of State to give consideration to the implications of the Quigley report and return to the matter on Report Stage.

I ask all present to refrain from mentioning by name or identifying a person who is not a Member of the Oireachtas. On this committee we have parliamentary privilege.

I referred to a report.

I am making a general point and not relating it to what Deputy Burton said. I ask all committee members not to identify by name, in the course of our discussions here today, any person who is not a Member of the Oireachtas.

I am conscious of the point made by the Chairman and I do not intend to mention anyone. However, I am sure people are well able to read between the lines regarding appointments to positions in every Government, including those in the past and the ones applicable to Deputy Burton, to her party leader, to a former Labour Minister of Education and to others who directly appointed members of their own parties to senior positions. With regard to these matters, let people not appear today wearing a halo.

The Quigley report should not be on today's agenda as it is not relevant. That report was agreed at the behest of the Labour Party leader who suggested it in the Dáil. The Taoiseach agreed to conduct a report into allegations about procedures and how they were carried out. Quigley reported and found that the services were acquired broadly in line with norms and practices for procurement as reflected in the operative guidelines. Quigley also made certain recommendations which the Taoiseach said he plans to implement immediately in the Departments. He has also given guidelines regarding the appointment of PR people in the future, appointments which must be approved by his own Department before they are made.

What this Bill is about — what I thought we would be talking about today — is completing the reform of the Civil Service human resources legislation which started in the Public Service Management Act in 1997. It is about the rights of people to appoint, discipline, demote or dismiss civil servants. Those rights previously rested entirely with the Government and dealing with them was very unwieldy, which is why these amendments are being made. We should concentrate on this issue because the Bill will modernise the framework and management practices regarding the operation of the Civil Service. If there are people to be disciplined within it, the Bill puts in place the procedures. It would be very unwieldy for the Government to collectively decide to dismiss a civil servant, the sort of decision it had to make in the past, and the Bill puts the onus back on Secretaries General or Ministers.

Is the amendment being pressed?

This is not acceptable. We are dealing with a section of the Bill which relates to the appointment of civil servants for fixed-term contracts or specified projects. It goes on to say that it is introducing new provisions by which, notwithstanding any other provision of this Bill, a person may be appointed as a civil servant for a specified period of time for the duration of a particular project or requirement. The next section notes that if any question arises as to whether a particular project or requirement is concluded, the question may be determined by the appropriate authority.

We are dealing in this Bill with the appointment of public servants to fixed-term contracts and specified projects. It goes to the heart of the issues raised in Quigley. Secretaries General must eventually be accountable for these decisions. If, as has happened in this case, a Minister gives momentum to certain procedures, and Quigley says that the procedures put in train should have proper documentation, then surely the onus on us when dealing with sections related to the appointment of contracts for fixed terms or for specific projects is to take on board what Quigley recommends. He did not only recommend that the Taoiseach should take an in interest in PR promotions but made many other recommendations which the Minister of State, Deputy Parlon, should read.

I have them in front of me.

They are central to my amendments but the Minister of State is not addressing any of them. I will understand if he says that he needs time or needs to discuss the matter with the Taoiseach, the Attorney General or anyone else but I cannot accept that he should deflect the issue and say this Bill is not about it or about public procurement under EU rules. The Minister of State should either accept that these are good ideas which will be considered or say they are bad ideas and that the Taoiseach has much better ones, and tell us on Report Stage what the Taoiseach intends to do about the matter. The Minister of State is simply stonewalling. It is not acceptable that we come here and give hours at a time trying to discuss things only for him to shoot off down other culs-de-sac.

It is a bit rich of Deputy Bruton to suggest that I am shooting down culs-de-sac when he brings the Quigley report into this issue. I have previously been before this committee and in the House with the Public Service Management (Recruitment and Appointments) Act 2004, and there was an issue at that time regarding the appointment of special advisers to temporary, unestablished positions. Concerns were raised by the Opposition, including Deputy Bruton, about the situation and the question of whether a special adviser to a Minister could become a full civil servant.

The provisions in that Act made it abundantly clear that it could not happen. There was an absolute, belt and braces, cast-iron guarantee that the only way the position could change was by amending the Ethics in Public Office Act 1995 to allow special advisers to remain in posts beyond the term of office of the Minister or by holding a Civil Service competition where one would apply. There has been a suggestion regarding special advisers or PR advisers. It is important that the Civil Service allows the flexibility to enable ordinary administrative recruitment to general Civil Service grades to take up extra work, for example, in the Passport Office, which gets very busy in the summer months. One can therefore make provision without being obliged to keep people on as permanent civil servants.

Yes, but it is also important that, if we are discussing sections dealing with contracts and when people are taken on, we address recommendations that have been made to us and that are germane to the making of contracts in the public service. That is what I seek to do, but the Minister of State is pretending that I am doing something extraordinary and that it has nothing to do with the legislation. It has everything to do with it and with public policy concerns among the general public. It has to do with the Taoiseach saying that he will implement this. We have not yet heard from the Minister of State how he will do so. I could accept that the Minister of State might want better briefing and more time for it, but I cannot accept every red herring about political appointees or EU procurement thrown across the trail instead of addressing the issues honestly.

I apologise for being late, but I forgot about the meeting. I have listened intently to Deputy Bruton about the Quigley report, which has been noted by the Taoiseach. When that has been fully discussed, it may be necessary to introduce amending legislation. We should not confuse this Bill, which was circulated last September, with that issue. I do not want to suggest the Deputy is throwing in a red herring, but we should allow this Bill to pass smoothly.

This is the opportunity to make the changes.

There is no point in making a Second Stage speech to confuse the issue, which is what the Deputy is trying to do.

It is a bit rich for the Deputy to tell me what I should be doing.

I have apologised for not being here.

Yes, but he cannot accuse me of making Second Stage speeches when he has not been here.

How stands the amendment?

I would like to be able to withdraw the amendment because the Minister of State was proposing something else, but in the light of nothing coming from him, I propose that it be made.

Amendment put and declared lost.
Section 7 agreed to.
SECTION 8.

Amendment No. 8 in the name of Deputy Bruton has been ruled out of order, since it is outside the scope of this Bill. Amendment No. 9 is also in his name.

Before we move on, the Chairman may have offered an explanation to the member who tendered the amendment, but perhaps he might share the detail of that ruling with the rest of us, since I have certainly not heard it. We are talking about the Civil Service Regulation (Amendment) Bill 2004. How can that be outside the scope of this Bill?

I will clarify for the Deputy why there will not be any debate on this amendment. Amendment No. 8 proposes to insert text into the Bill which would effectively require the Minister for Finance to undertake a process of public consultation to assess the feasibility and impact of the relocation of the Civil Service. As the issue of decentralisation is not inherently related to the broader issue of the management of Civil Service staff, the amendment is beyond the scope of the Bill and is therefore ruled out of order. I have taken advice from the Bills Office on this matter. That is the final and definitive ruling, and we will now move on.

It concerns decentralisation.

It is outside the scope of the Bill. We have not been shy when it comes to discussing that topic in this committee, and we can do it again.

We cannot do it at all at the moment.

Amendment No. 8 not moved.

I move amendment No. 9:

In page 10, to delete lines 12 to 15.

I tabled this amendment in order that I would not forget about it when we reached this section. I was puzzled by the meaning of section 8. It is going in as a new section 8A(2) and states, "A person who has attained the age of 65 years shall not be appointed to either an established or unestablished position in the Civil Service unless that person is a new entrant." Does that seek to provide that someone may not be retained beyond the age of 65? I was puzzled as to what exactly was being stated in that section, and that is why I suggested deleting it.

The Public Service Superannuation (Miscellaneous Provisions) Act 2004 raised the minimum pension age to 65 years for most new entrants to the Civil Service. It also removed the compulsory retirement age for new entrants to the Civil Service with effect from 1 April 2004, with the exception of new entrants to the Prison Service, who continue to have a retirement age of 60 for operational reasons.

The Public Service Superannuation (Miscellaneous Provisions) Act 2004 did not alter the terms and conditions of employment of staff who were employed on or before 31 March 2004. Their pension position remains unchanged, retaining a minimum pension age of 60 for established staff and 50 for certain staff in the Prison Service. The Government decided not to remove the compulsory retirement age for existing civil servants for several reasons. Such an amendment would be a significant change in the terms and conditions of existing civil servants and is not necessary. That is particularly the case in light of Ireland's favourable demographics which, since it has one of the youngest populations in Europe, allowed the increase in the minimum pension age to be confined to new entrants.

However, the Public Service Superannuation (Miscellaneous Provisions) Act 2004 provides a mechanism through which existing civil servants can avail of the opportunity to work beyond retirement age if they wish. While that was initially constrained by section 8 of the 1956 Act, the amendment to that section, as published in the Bill, will allow existing civil servants to be appointed as new entrants. In general, to be deemed as a new entrant, a period of at least 26 weeks must elapse between ceasing one public service employment and taking up another.

I am grateful for the explanation, but I am not sure that I accept the public policy argument that, because of our demographic situation, one should insist on people either retiring at 65 or having a 26-week gap if they wish to work beyond that age. I would have thought that the demographic situation of virtually all European countries was the same.

Elsewhere in this committee we have been told how important it is that we put aside money to provide for a period when pensions will be a big obligation on us. Surely we should be encouraging people if they wish to work beyond retirement age and their manager believes that they have a contribution to make and can continue to bear the responsibility. I know there are issues regarding promotions and so on, but we should not be seeking that they leave for six months before we can take them back. If it is a good idea, that is not a sensible public policy. I question this approach, since it flies in the face of the sorts of recommendations the pensions report was making to us.

As we look down the road, the notion of retiring at 65 when one is likely to live for 25 or 30 years afterwards is not sensible. Whatever the truth, we should not be imposing that policy. We cannot force people to work, but we should not be making them give up if they would like to continue. I do not think that the Minister of State's demographic argument holds any water. Our demographics are changing quite rapidly, and they will be very different by 2050. Perhaps the Minister of State is not able to change this policy on foot of an amendment, but I am not sure we should follow it.

On the issue of demographics, we certainly have no difficulty attracting new applications from suitable young people for the Civil Service. Many people still want to join the service. It is a positive step that from now the Civil Service will attract and encourage people over the age of 65 to apply. As a result of the arrangements in place, particularly with regard to the Public Service Superannuation (Miscellaneous Provisions) Act 2004, there are implications for people who choose to stay on. I believe these are very much in the minority, but they will have the facility to take six months out of the service and to re-apply.

Is the amendment being pressed?

I would like to press it, but it raises issues that may not be decided by an amendment here.

Amendment, by leave, withdrawn.
Section 8 agreed to.
NEW SECTION.

I move amendment No. 10:

In page 10, before section 9, to insert the following new section:

"9.—The Principal Act is amended by the substitution for section 14 of the following section:

‘14.—(1) Where a civil servant stands suspended under section 13, subject to subsections (2) and (3), the civil servant shall be paid ordinary remuneration.

(2) Nothing in subsection (1) shall entitle a civil servant standing suspended to be paid ordinary remuneration in circumstances where the civil servant would not, but for subsection (1), be entitled to be paid ordinary remuneration.

(3) Subsection (1) does not apply to a person suspended under section 15.'.".

At present civil servants may be suspended under section 13 of the 1956 Act which allows suspension in situations where allegations of grave misconduct or irregularity have been made or where it is considered necessary to the public interest to remove a civil servant from the workplace. In practice, suspension is generally imposed for the purpose of carrying out an investigation into potential disciplinary matters. Section 14 of the Civil Service Regulation Act 1956 provides that a civil servant who is suspended shall not be paid remuneration in respect of the period of suspension. That means that a civil servant suspended under section 13 of the 1956 Act, while a disciplinary investigation is being conducted, is not at present automatically entitled to payment of his or her normal wage during the period of suspension.

Section 14(4)(b) of the 1956 Act qualifies this position to the extent that the civil servant may apply to the appropriate authority to request payment of a proportion of his or her pay during the period of suspension on the grounds of undue hardship. This facility is availed of and granted in a majority of cases. Additionally, section 14(1) of the Act provides for a full restitution of normal pay in the event that the officer is found to be not guilty of the offence with which he or she is charged. The net effect of sections 13 and 14 of the 1956 Act is that any civil servant suspended for the purpose of an investigation into disciplinary matters is suspended without pay and must apply to the appropriate authority to have a proportion of his or her salary paid while on suspension. The Civil Service trade unions have suggested that the present system of suspension without pay as a default position constitutes the imposition of a penalty before being found guilty of any offence and therefore compromises the necessary presumption of innocence of a person under investigation, notwithstanding the ability of management to mitigate financial hardship or restore pay in the event of the officer being cleared.

We consulted the Attorney General's office and the advice was clear. Suspension without pay pending the conclusion of a disciplinary procedure does not reflect current employment practices. It is inconsistent with natural justice considerations and the presumption of innocence until proof of guilt is established. I have considered this matter and agree that no action taken in respect of a person accused of a disciplinary offence should prejudice or appear to prejudice his or her position during the course of an investigation. I accept the necessity of ensuring the presumption of innocence during the investigation and accordingly I propose to amend section 9 of the Bill to provide that any officer suspended pending the conclusion of a disciplinary investigation will be suspended on full pay.

Section 9 of the Bill as published amends section 14 of the 1956 Act to allow for the subsequent variation or cessation of hardship payments to be made to a person under section 14 where he or she has been suspended without pay pending a disciplinary investigation. This provision will no longer be appropriate in the context of the agreement to provide that all such suspensions should in future be on full pay. Therefore I propose to delete the current text of section 9 in its entirety and to replace it with the aforementioned alternative text, which reflects the new position. This means that section 14 of the 1956 Act will be replaced entirely by this proposed amendment.

Amendment agreed to.
Section 9 deleted.
SECTION 10.

I move amendment No. 11:

In page 10, line 32, after "been" to insert ", in relation to his official duties,".

This is another technical amendment.

Amendment agreed to.

Amendments Nos. 12 to 14, inclusive, are related and will be discussed together. Is that agreed? Agreed.

I move amendment No. 12:

In page 11, between lines 31 and 32, to insert the following:

"(2) No disciplinary measures may be taken under this Act against a civil servant who in good faith reports a suspicion of illegality or other wrong-doing to a body or person having a legal function in respect of such illegality or other wrong-doing.".

As regards amendment No. 12, a civil servant has an opportunity to make any representation he or she may wish. From a constitutional viewpoint this section allows a civil servant to make representations, but there is no obligation on the Minister or the Secretary General of a Department to have any regard to such representations. It seems there is a legal assumption that to allow representations is sufficient to satisfy the dictates of natural justice. I am informed that legally it is not correct to make such an assumption. The purpose of my amendment is to ensure no disciplinary measures may be taken under this Bill against a civil servant and regard shall be had to his or her right to fair procedures and to any representation made or evidence adduced.

Do I have the amendments in the wrong order? I believe I have.

The Deputy has moved amendment No. 12, but we have agreed to discuss amendments Nos. 12 to 14, inclusive. The Deputy may take all three amendments together.

As regards the issue of representations, there is no requirement that they be attended to and this constitutes an injustice. There is also the question of the whistleblower, somebody who sees the Minister, perhaps, appointing a consultant for three days a week at €130,000 per annum and believes this represents bad value for the taxpayer and that it should be drawn to the notice of a higher authority. The purpose of this section would be to protect that civil servant against disciplinary measures where, in good faith, he or she has reported a suspicion of illegality or other wrongdoing to a body or person having a legal function in respect of same. There is a whistleblower's charter or legislation in the UK. No such legislation has been enacted in Ireland for various reasons. Deputy Rabbitte, the leader of the Labour Party, tabled a Bill some years ago which I believe is in cold storage somewhere three floors below this committee room. However, it is important that people who report in good faith what they believe to be improprieties should have some protection, particularly within a hierarchical structure such as the Civil Service. I would welcome the Minister of State's response to that.

I support amendment No. 12. I leave it to Deputies Burton and Bruton to contest between amendments Nos. 13 and 14 as to the wording they believe most suitable as the addendum to line 41. Amendment No. 12 obviously seeks to protect whistleblowers. That is very important and we as members of this committee know well the vital role whistleblowers have played in the exposure of the abuse of customers and taxpayers by financial institutions. Several cases have been brought to our attention in recent years as a result of the courageous actions of people in those positions. It is very important that the need for legal protection in both the public and the private sector is provided. In the absence of the long committed whistleblowers Bill that has been demandedad infinitum in the Dáil, there is a critical need to ensure an amendment such as this. I record my support for amendment Nos. 13 and 14 and I will leave it to Deputies Burton and Bruton to decide which amendment contains the most appropriate wording. Let the contest proceed.

We were discussing amendment No. 14 and I should have called Deputy Bruton earlier. I apologise for that.

My amendment goes a little bit further than Deputy Burton's amendment. If this was in the private sector and someone had his or her pay cut due to misconduct, irregularity or neglect, that person would have recourse to a rights commissioner. The person could also construe it as constructive dismissal and go to the tribunal under the Unfair Dismissals Act, but under ordinary industrial relations legislation, they would certainly have recourse to a rights commissioner. We are trying to open up normal employment law to the public service and that is why I thought the absence of a reference to recourse to a rights commissioner seemed to be an oversight. That is the background to my amendment.

I am pleased with the approach that the presumption of innocence is to be enshrined in the legislation and that a person remains on the payroll until the matter is dealt with. I am overjoyed with the support for whistleblowers as they will now have protection. I am glad to see that there is broad party support for that.

I will respond to all three amendments. It appears from the text of the amendment dealing with whistleblowers that the inclusion is sought of a provision in the Bill to protect whistleblowers within the Civil Service. These are persons who wish to report wrongdoing within their organisation in the hope of preventing or stopping it. It must be remembered that protections are afforded to civil servants under both the Standards in Public Office Act 2001 and the Civil Service code of standards and behaviour, which was introduced last year in accordance with section 10(3) of the Act. Taken together, I am confident that these measures will adequately ensure the substance of the proposed amendment. I am, therefore, willing to accept the amendment.

Work continues on the development of specific legislation to deal with the issue of whistleblowers. For that reason, I feel that it would not be appropriate to address this matter in the context of the Civil Service Regulation Act 1956. The Standards in Public Office Commission supervises compliance with the ethics Act in so far as they apply to office holders, that is, Ministers, Ministers of State, the Attorney General, ministerial special advisers, senior civil servants and so on. The commission is empowered to investigate complaints involving acts or omission of these persons, where a complainant considers that such a person has acted in a manner which was inconsistent with the proper performance of the functions of their office, or where their behaviour is contrary to the maintenance of public confidence and the matter in question is of significant public importance.

The Act provides in section 5(1) that where a person makes a complaint to the commission in good faith, no cause of action shall lie against such a person and no disciplinary action shall be taken against the person as a result of reporting the person's concerns to the commission. Section 5(4) provides that the person who takes disciplinary action against a complainant in this context will be guilty of an offence and liable to a substantial fine. In addition, section 5(3) of the Act provides that if a person is dismissed by his or her employer as a disciplinary measure because the person reported a complaint to the commission, that dismissal will be considered as an unfair dismissal for the purposes of the unfair dismissals legislation. This avenue of redress provides an additional protection for civil servants, in light of the extension of the unfair dismissals legislation to civil servants.

In addition, Civil Service code of standards and behaviour applies to all staff within the Civil Service. It sets out a clear framework within which civil servants must operate. The code draws particular attention to the necessity of impartiality and the maintenance of independence within the Civil Service, both of which are fundamental in protecting the integrity of officers in the Civil Service. The code underlines the fact that any breaches of its provisions by a civil servant will constitute a breach of the terms and conditions of his employment in the Civil Service and may render him liable to disciplinary action. It states that no civil servant must ever act in any way which he knows or suspects to be illegal, improper or unethical.

Civil servants who have doubts about the legality of a particular action which they are required to take in the course of their official duties should refer the matter to their superiors, whose responsibility it is to issue a direction on the matter. Those superiors are bound by the same duties to act within the law as the officer who reports to them. They are subject to the same sanctions should they breach the instructions set out in the code.

Paragraph 13 of the code provides that a civil servant is not allowed to use his official position to benefit himself or others with whom he has personal family, business or other ties, or to attempt to use political influence to effect decisions concerning his official position. A breach of this provision would render the civil servant concerned liable to disciplinary action.

Deputy Burton mentioned the need for legislative protection for whistleblowers in the Civil Service. The Whistleblowers Protection Bill was introduced in the Dáil as a Private Members' Bill by Deputy Rabbitte in June 1999. Following its introduction, the Government agreed to progress the Bill. A memorandum for Government on the Bill was circulated to Departments by the Department of Enterprise, Trade and Employment in November 2000. Observations from Departments were received in November of that year. In 2001, extensive amendments to the Bill were prepared. These amendments were approved by the Government in July 2001. The amendments approved by Governments raised a number of detailed and complex issues, which require substantial redrafting of the Bill by the Office of the Parliamentary Counsel. Work on the Bill is continuing and it remains on the Government's legislative programme.

With regard to amendment No. 13, legislative provision for the imposition of disciplinary action on civil servants is currently governed by section 15 of the Civil Service Regulation Act 1956. It was expanded upon in the Department of Finance circular No.1 of 1992, which sets out the current Civil Service disciplinary code. There is a disciplinary code in place in the Civil Service based on fair procedure which ensures that an accused officer gets a fair hearing, adequate representation and a chance to have any disciplinary proceeding reviewed by an independent appeals board.

As the Bill will amend section 15 of the 1956 Act, it will be necessary to take account of the changes to section 15 in the Civil Service disciplinary code. Consequently, a new code is being drafted in consultation with the Civil Service unions. I am fully confident that the new code will replicate the strong emphasis currently placed on the protection of the rights of the individual officer, particularly in respect of access to fair procedures. For that reason, I consider that the reference in the text to this amendment to a civil servant's right to fair procedures is not required. I am, therefore, unwilling to accept amendment No. 13.

I will finally deal with amendment No. 14. This Bill represents a significant step forward in the way in which staff are managed in the Civil Service. The Bill deals with disciplinary issues in a more comprehensive manner than was previously the case. The Deputy suggests the amendment relates to the arrangements in place under the disciplinary and grievance procedures in the Civil Service. The Bill does not and should not deal with detailed arrangements and procedures entailed in the disciplinary procedures. Accordingly, I do not accept the amendment put forward by the Deputy.

I am glad to hear that the Minister of State, with reference to the Minister for Justice, Equality and Law Reform, is determined to ensure the law is a profitable profession for people such as barristers. The section gives the power to a civil servant to make representations but there is no requirement on anyone to make any response or take any interest in the representations. A proposal was recently made by the Minister's colleague for a PD prison in north Dublin. It is interesting, and a matter which will ultimately come before the courts, that in the legislation we have the power to make representations and consultations but there is no requirement to show that the representations are attended to. My legal advice is that this is contrary to fundamental rules in regard to constitutionality.

The Minister read out four pages of Sir Humphrey-speak which was basically a four page "No". Unless he wants to keep the four goldmines going at an ever profitable rate for people like his colleague, the Minister for Justice, Equality and Law Reform, he should listen when the Opposition makes the fair point that proposed legislation does not meet reasonable constitutional tests. It is a pity the Minister is not prepared to listen because the ultimate cost of the ensuing law cases will be borne by the poor taxpayer who will have to pay for the unwillingness of the Minister to listen in any serious way to the debate. I do not want another four pages read out.

Is the Deputy referring to amendment No. 12?

Yes. The Bill states on page 11: "the civil servant concerned shall be afforded an opportunity of making to the appropriate authority any representations that the civil servant may wish to offer." There is a problem in that one can make representations but there is no requirement to attend to the representations.

On my amendment No. 14, the Minister referred to a Civil Service Act in the fairly remote past and a circular of 1992 incorporating a disciplinary code. He stated there was a review to an independent body. It is strange that while we are here providing primary legislation to allow for disciplinary procedures, the Minister is relying on secondary legislation to give people the right of fair procedure. What is good for the goose is good for the gander. If we are giving Secretaries General new authority in primary legislation, we should balance this with a provision in primary legislation for the right to this independent review. I accept the rights commissioner may not be the correct official for this and that somebody else might be. However, I do not know why the Minister went on to state we should not specify this in law. Fair procedure would suggest we should specify in law both what Deputy Burton has proposed in amendment No. 13, as well as the procedural review which is the subject of my amendment.

On amendment No. 12, the Minister seemed to be saying that most of this is to be found in various documents, including secondary but not primary legislation and codes of practice. I do not see anything wrong with dealing with this in primary legislation, if the Minister has confidence that all these issues are already provided for elsewhere. Not having the codes in front of me, I found it hard to take in whether the Bill satisfactorily fulfilled the objective of amendment No. 12. However, we can consider the matter before Report Stage.

Did the Minister indicate he would accept amendment No. 12?

It was the longest "No" we have heard at this committee for some time.

The Deputy has been saying "No" for a long time himself.

I am an advocate of "Yes" in most cases. It is a pity Deputy Finneran is not present. It is a great disservice to staff of the Civil Service who would have information in regard to illegality or wrongdoing within the Civil Service that the Deputy should draw any equivalence in regard to the term "informer" in recent or longer-term history. It is a discouragement and I wish to be an encourager of the staff of the Civil Service to recognise there is full support for them. The inference which may have appeared clever to the Deputy at the time does a disservice to the proposition.

With regard to amendment No. 12, we seek the inclusion of a section that clearly indicates that the action would be taken "in good faith". The wording of the amendment is important. People may be found to have acted rightly or wrongly after investigation but it is important that where he or she acts in good faith, no disciplinary measures may be taken under this Bill against a civil servant. This is essential in terms of giving the necessary supports and the sense of sufficient courage to take what is undoubtedly in most, if not all, cases a difficult course of action. It is imperative this is reflected in the overall context of the Bill.

I support amendment No. 12 and whichever formula is preferred in regard to amendments Nos. 13 and 14. I hope the Minister will accede and surprise us all.

I am sorry that my answer was so long. The Deputy is also not known in the House for the brevity of his exchanges. The reply was important because it outlined the substantial codes and standards of behaviour and the impact of the ethics Act through the Standards in Public Office Commission.

They do not have legislative force. The Minister stated the Government has the Whistleblowers Protection Bill.

Let the Minister speak without interruption.

The Minister just spewed out any old stuff.

I refrained from interrupting the Deputy.

The Deputy should let the Minister conclude.

Sorry, Chairman. Normally, Ministers who introduce legislation have some interest in it and listen to what the Opposition says.

The Minister was in possession

The Minister has hardly read the legislation and has no interest in it.

There have been few interruptions so far. The Deputy should let the Minister conclude.

The Minister has lost possession.

I will make every attempt to avoid being tetchy, the word mentioned by Deputy Burton at the outset. She threw in a side comment about the PD prison in north County Dublin. I presume she feels that Mountjoy Prison and the Central Mental Hospital are entirely suitable.

The women's unit and the training unit are suitable, if the Minister wishes to get into a debate on the matter. The two units have only had about €50 million of public money spent on them.

Is the Deputy suggesting that the Dickensian conditions in which prisoners slop out their cells daily are appropriate?

Has the Minister visited the prison to see that it is a state of the art modern prison? The Government and the Minister for Justice, Equality and Law Reform propose to destroy it.

I applaud the Minister for taking the brave step to provide a new facility.

They are knocking down the women's prison. The Minister does not know what he is talking about, yet again. He would be surprised if he visited the women's prison.

Amendment put and declared lost.

I move amendment No 13:

In page 11, line 41, after "offer" to insert the following:

", and regard shall be had to the civil servant's right to fair procedures and to any representation made or evidence adduced by the civil servant".

Amendment put and declared lost.

I move amendment No. 14:

In page 11, line 41, after "offer" to insert the following:

"and if the person is dissatisfied with the decision reached, that person may pursue the issue with a Rights Commissioner of the Labour Relations Commission".

In the crossfire, the Minister did not answer my question as to why this right of appeal was not figuring in primary legislation.

We went on to discuss prisons. I thought members were finished with the matter at hand. I will allow the Minister of State to clarify that.

The disciplinary code and the systems for internal appeal are agreed with the Civil Service unions under the Civil Service conciliation and arbitration scheme. It would be inappropriate to put a code which may require review from time to time into legislation.

One could include a general reference to a system of review without tying down for all time the substance of the code. It seems a reasonable provision to include in primary legislation. However, we shall discuss it further on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 15:

In page 11, lines 50 to 55, to delete all words from and including "development—" in line 50 down to and including "or" in line 55 and in page 12, to delete lines 1 to 4 and substitute the following:

"development would be insufficient to deal with the misconduct, irregularity, neglect, unsatisfactory behaviour or underperformance.".

This amendment relates to the other side of the coin. The Minister is providing that where a Secretary General finds there is misconduct, neglect, irregularity, unsatisfactory behaviour or underperformance, he or she can trigger disciplinary procedures. However, section 10(4) also provides that the Secretary General shall not commence the process leading to discipline unless the appropriate authority is satisfied that measures aimed at improving the performance of the civil servant through training or development have either been introduced and applied and have failed to result in specified improvements or have no reasonable prospect of resulting in an improvement in performance.

This means that before disciplinary action of any nature can be taken, the Secretary General must sign off on the opinion that training has no reasonable prospect of resulting in an improvement in the civil servant's performance. The disciplinary issue could relate to irregularity, neglect, unsatisfactory behaviour and so on. A Secretary General should not be bound to consider whether training can have no impact on a civil servant before disciplinary action is taken in regard to an act of misdemeanour as set out in the Bill.

I am in favour of fair process and rights of appeal but it seems extraordinary to tie down the disciplinary process into such strong requirements on the Secretary General regarding satisfaction as to the impossibility that training could overcome a misdemeanour or improve a civil servant's performance. The latter is a much lower threshold than dealing with the alleged misdemeanour. I am puzzled by this. It seems to create an extraordinary obstacle to implementing disciplinary procedures in practice.

The proposed amendment suggests that we should change section 10(4) to provide that the appropriate authority cannot commence to process a disciplinary action unless satisfied that training and development aimed at improving the performance of civil servants will not help to deal with cases of misconduct, irregularity, neglect, unsatisfactory behaviour and underperformance. This Bill is concerned with the management of performance within the Civil Service and this section seeks to put in place a balanced approach to addressing underperformance.

In most cases, underperformance can be addressed through appropriate training supports. However, this will not be sufficient in a number of cases and it is important to ensure that appropriate steps are taken in those cases. That is the intent behind the section. It also ensures fair procedures. In view of the powers being extended to the appropriate authority in respect of underperformance, it is appropriate to set out in the Bill what should be done to address underperformance before any disciplinary measures can be taken.

Further procedures are being developed as part of our discussions with the unions on a range of new procedures which are needed to give effect to the Bill. The effect of this provision is that people will be given a genuine opportunity and are assisted in trying to improve their performance. If that does not work, the appropriate authority can take steps, as set out on section 10(1). I reject the amendment on the basis that it would reduce the clarity around what needs to be done in cases of underperformance.

I may have misunderstood the context of the provision. I thought it represented an overall qualification but the Minister of State is saying it is only underperformance that will be qualified by this training test. If the offence is irregularity, neglect, misconduct or unsatisfactory behaviour, will this provision not come into play?

That is correct.

Amendment, by leave, withdrawn.

I move amendment No. 16:

In page 12, line 14, after "measures" to insert the following:

"and the Minister shall make the necessary changes in the pension provisions governing the relationship of pension to pay at time of retirement to implement this provision".

This subsection provides that a civil servant whose pay is cut as part of a disciplinary procedure should not suffer in terms of pension entitlement. However, much pension entitlement within the Civil Service is set by reference to pay at retirement. If a person's pension entitlement is not to be damaged by the circumstance of his or her pay being cut by 20% three years before retirement, for example, there must be a change in the calculation of the pension entitlement in order that only three years are calculated at 80% and the remainder at 100%. Section 10(5)(a) does not make this provision but implies that the civil servant in this example would have his or her pension calculated at the 80% pay level for all years of service.

In line with my policy so far, I cannot accept this amendment. In the case of established civil servants, as Deputy Bruton has observed——

The Minister of State has come to the committee with a policy of not accepting any amendments. It is a terrible reflection on his attitude to the committee and an insult to the Chairman.

It is in reference to the quality of the amendments.

What are we doing here?

The Minister of State's attitude is an insult to the Oireachtas.

I hope Deputy Burton does not take personal offence.

I do. I am elected by people so that I must listen to people like the Minister of State, which is sometimes difficult. When he says he has a policy of not addressing what committee members have to say, it is particularly insulting.

The Minister of State should be allowed to continue.

In the case of established civil servants, the provision governing the relationship of pension to pay at time of retirement is laid down in primary legislation in section 12 of the Superannuation and Pensions Act 1976. If the proposed amendment were passed, a further amendment to primary legislation may be required to give effect to the amendment. Section 10 of the Bill will be sufficient to give effect to the necessary changes without further amendment to primary legislation. The Bill changes the rule with regard to how pensions are calculated.

Does this means pensions will be calculated on apro rata basis in order that that the civil servant in my example will have his or her entitlement calculated at 100% for some proportion of service and 100% less the disciplinary penalty for the remainder?

Yes, that is the effect of the provision.

It was not clear that this is the case.

Amendment, by leave, withdrawn.
Section 10, as amended, agreed to.
NEW SECTIONS.

Amendment No. 17 in the name of the Minister proposes a new section. Amendments Nos. 21 and 27 are related and amendment No. 30 is consequential on amendment No. 21. Amendments Nos. 17, 21, 27 and 30 may be discussed together. Is that agreed? Agreed.

I move amendment No. 17:

In page 12, before section 11, to insert the following new section:

"11.—The Principal Act is amended by substituting for section 19 the following section:

‘19.—(1) Subject to subsection (2), the power of appointing a person to be an officer or servant of the Attorney General shall be vested in the Attorney General.

(2) The power of appointing a person to be an officer of the Attorney General of the grade of Secretary General or of an equivalent grade shall be vested in the Taoiseach.

(3) The Minister for Finance shall from time to time determine the number of officers and servants appointed to the Office of the Attorney General and all such officers and servants shall hold office on such terms and conditions as the Minister for Finance shall determine.

(4) A reference in this section to "the grade of Secretary General or of an equivalent grade" shall be construed as a reference to the general service grade of Secretary General or a position or office in respect of which the salary is not less than the salary of a general service grade Secretary General.'.".

Section 19 of the Civil Service Regulation Act 1956 confers upon the Taoiseach the power of appointing staff to the Office of the Attorney General. Following consultations with the Office of the Attorney General and the Taoiseach and in recognition of the treatment of the Attorney General as a Minister for the purpose of human relations functions within his or her office under the Public Service Management Act 1997 and under section 4(c) of the Bill, it has been agreed that the Attorney General rather than the Taoiseach should be given the power to appoint the staff within his or her office, subject to the consent of the Minister for Finance where changes to either staffing numbers or the terms of conditions of staff employment are proposed.

The amendment to section 19 of the 1956 Act as set out in this proposed new section mirrors the proposed treatment of the Director of Public Prosecutions, the Comptroller and Auditor General and the Ombudsman. These persons are treated as Ministers for the purposes of the 1997 Act in recognition of the independent nature of the offices of which they are in charge. It is generally the case that Ministers are the appointing authority in respect of the staff working in their organisations. It is, therefore, considered appropriate that each of these persons is given the power to appoint the staff within their organisation, subject to gaining the approval of the Minister for Finance on matters relating to the numbers and the terms and conditions of those staff.

I take it that one of these sections implies any changes to requirements in regard to qualification or advertisement for positions in these sections or Departments and to procedures such as TLAC.

No. There is no change.

Amendment agreed to.

I move amendment No. 18:

In page 12, before section 11, to insert the following new section:

"11.—Section 16 of the Principal Act is amended by substituting the following subsections for subsection (2):

‘(2) A period when a civil servant refuses to carry out the duties of his grade shall as respects the civil servant concerned be considered to be a period of unauthorised absence from duty.

(3) If any question arises in relation to the application of subsection (1) or (2) as to whether—

(a) a particular period of absence from duty of a civil servant is a period of unauthorised absence from duty, or

(b) a particular action taken by a civil servant constitutes a refusal to carry out the duties of his grade, or

(c) a refusal by a civil servant to perform a particular duty constitutes a refusal to carry out the duties of his grade,

the question shall be determined by the appropriate authority.'.".

I wish to ask a number of questions on this amendment. I may be proven wrong.

Allow the Minister first.

Section 16 of the Civil Service Regulation Act provided that an officer shall not be paid remuneration in respect of any period of unauthorised absence from duty. The High Court ruled on 8 July 2003 in a case involving staff of the Department of Agriculture and Food that the refusal to perform certain duties in the context of an industrial dispute did not constitute an unauthorised absence from duty, within the terms of section 16, as long as the staff concerned were physically present in the workplace, even though they were not carrying out all of their duties. The court also decided that the management could not use this section of the 1956 Act, as currently drafted, to remove from the payroll officers who refuse to perform core duties appropriate to their grade. This ruling was appealed to the Supreme Court by the Minister for Agriculture and Food and the Minister for Finance. The appeal was heard on 21 April 2004 and it was expected that a decision would have been made on the matter by this time. However, the Supreme Court has not yet issued its judgment.

In light of this delay, and bearing in mind that the Government has already approved the substance of this amendment to the 1956 Act in agreeing the heads of the Bill in January 2004, I consider it is appropriate and necessary for the purposes of clarity to amend the Bill at this juncture in order to provide in the 1956 Act the power to remove from the payroll officers who refuse to perform the full range of duties of their grade. This power will be available to management only from the date of enactment of the Bill and in respect only of cases arising after the date and will, therefore, have no bearing on the case currently under consideration by the Supreme Court. Accordingly I propose that section 16 of the Civil Service Regulation Act 1956 be amended to make specific provision for the removal of an officer from the payroll where he or she refuses to perform duties appropriate to his or to her grade.

Is there any equivalent section in existing legislation or in the regulations pertaining to the employment of civil servants? This is a major amendment, the potential outworking of which could present real difficulties for many in the Civil Service. Have the respective trade unions representing civil servants been consulted on this amendment and, if so, have they offered their support for it as constructed, and, if not, will the Minister of State share with us the nature of their objections? What exactly is the phrase "the duties of his grade" expected or intended to represent, leaving aside the reference only in the male?

At the time of entering the Civil Service, following the process of application, interview and success, which is a great moment, nobody considers possible situations arising, but situations can arise. I see nothing in this amendment that allows for appeal. The amendment states that the question shall be determined by the appropriate authority. Are there valid reasons a civil servant might not carry out "the duties of his grade"? Can we not envisage that there might well be situations in the future, unforeseen at the time of taking up employment and signing off in terms of the conditions of employment, that might be in the realm of conscientious objection?

Let us take, for example, an employee in air traffic control or an employee dealing with the processing of flights through Shannon Airport — this is off the top of my head, I cannot be absolute precise. If, for the sake of argument, a civil servant was a conscientious objector on the issue of Shannon Airport being used as a facility for the transport of US or other armed forces to some global conflict and objected strongly, is there any consideration for that civil servant who might be carrying out all of his or her duties in every other respect to the letter and commendably so? This is a harsh construction. It does not take into account conflict situations. I am sure others, with a little thought, could throw some light from experience in the Civil Service in the past on what might present in the future. Most of us cannot foresee what might arise. One would never have thought that a situation in regard to the use of Shannon might arise and whether civil servants are directly affected I cannot say. I am merely using it as an example.

My concern is that the amendment is so definite — the question shall be determined by the appropriate authority. That there is no provision for appeal is a significant deficiency for a civil servant who is giving excellent service in every respect and who may, for whatever good reason, refuse to carry out the duties of his or her grade. It would be a rare case where a civil servant would refuse to carry out the duties of his grade. I wonder whether we should accept the amendment irrespective of the reason for that civil servant taking that position. They would only take up a position to refuse with good reason and with good cause. That is my understanding of people in the Civil Service. If there is good reason and good cause I do not believe that what is prescribed in the amendment is acceptable. It is certainly not acceptable without the inclusion of a clearly defined process of appeal. That is very important. It would be altogether too easy to accept this amendment without examining the potential consequences. I believe it would have serious consequences in some cases for civil servants into the future and it would be remiss of us not to challenge it now.

Has this section been the subject of consultation through the partnership process with the trade union representatives of civil servants and, if so, has agreement been reached on this amendment to the Bill? I would be grateful if the Minister of State could circulate to members of the select committee his note on this section. While it seems straightforward, I agree with Deputy Ó Caoláin that, potentially, it has many implications.

A number of situations, historical and otherwise, come to mind. The first in recent times was the Garda "blue flu" where gardaí took the opportunity to express their dissatisfaction with their conditions by not being present for duty on the day and instead staging a large demonstration outside the Houses of the Oireachtas. It was not clarified whether this was a mass sickness or a limited form of industrial protest because they were not permitted to strike. This legislation appears to provide a higher level of power than was previously the case.

Second, and this is important, there is no definition of an unauthorised absence from duty in the Bill. There should be some definition of that in the Bill. Everybody here understands the meaning of an unauthorised absence from duty but the Civil Service is subject to much regulation and is very hierarchical. As there is no definition in the Bill, I wonder what precisely the Minister means.

Discussions have taken place continuously over the years, of which I am sure the Minister is aware, in a number of bodies representing hospital staff on the chaos in accident and emergency services since the Minister for Health and Children took office and in the seven or eight years her predecessor was in office. From time to time, and Deputy Ó Caoláin might have more detailed knowledge of this in terms of the Monaghan and Cavan hospital situation, accident and emergency staff have threatened to walk out because of dissatisfaction with their conditions. That is a complex issue. It appears this is a new and draconian power to cover that type of situation which, unfortunately, is prevalent in about 30 accident and emergency units and other hospital units throughout the country. Will the Minister give us an indication of the way this measure relates to that type of situation?

Looking back on history, in the Six Counties there was the occasion of the Ulster workers' strike which brought down the executive. There was widespread absence from duty by civil servants of different grades in Northern Ireland, some of it due to intimidation but in other cases it was the wish of the civil servants concerned.

We would like to tease out this section. Given our trade union history many workers in different parts of the Civil Service — the Minister and his party may deplore this but it is a fact — might have great difficulty in passing a picket. In recent years we had trade union disputes involving teachers' unions, for example, and in other areas of public service employment where lawful pickets were erected by one trade union and the members of other trade unions who may not have been in dispute found it impossible, for various reasons, to pass those pickets and were unwilling to do so. That is part of a wider trade union industrial relations issue.

This is a potentially draconian section on which I would like the Minister to make available to the committee a copy of his detailed notes. In addition, perhaps he could reflect on the examples I have given and those raised by Deputy Ó Caoláin between now and Report Stage. I do not expect the Minister to have the answers for us now, although he said he came in here to oppose everything. The questions we are putting forward are valid and if the Minister needs time to consider them, I do not have a problem with that. These are genuine issues.

I am a little surprised this measure is being raised by way of a Committee Stage amendment on which we had no advance notification or opportunity to brief ourselves. Everyone accepts that managers have a right to manage. If people are refusing to do their duties managers have to be in a position to take action to ensure that service is delivered, particularly if they are vital services upon which the public depends.

What is unclear in the section, however, is the follow on and the sanctions that are being opened up by this new definition of "unauthorised absence". Is it just an issue of losing pay for a day when one is absent or will it open up the possibility of other disciplinary sanctions, which would have considerable knock-on implications in terms of industrial relations and so on? Like other speakers, I am a little bemused as to exactly what is going on and I would like to see the proposed change in the context of section 16 of the principal Act, which I do not have with me, in order that I could assess whether it is a balanced measure or a potentially unfair and unbalanced one. On my reading of it, it is difficult to disentangle which is which.

The unions were consulted and they did not object to this particular amendment. They are aware of it. As Deputy Bruton said, this is about giving superiors the right to manage but in this case we have the experience of a situation where people refused to carry out their particular duties. The matter went to court and the court ruled in their favour, and the matter is now the subject of an appeal.

Section 16 states that a civil servant shall not be paid remuneration in respect of any period of unauthorised absence from duty. This is an attempt to clarify how a decision is taken with regard to what constitutes unauthorised absence from duty. It is to ensure there will not be confusion in terms of the way this section is interpreted.

Deputy Ó Caoláin highlighted a number of cases where somebody would have a conscientious objection to the particular job he or she was doing. There are procedures in place where one can transfer one's duty rather than refuse to do it. I do not see that being a major problem. There was a case involving members of the Department of Agriculture and Food who attended their place of work but refused to carry out any duties. We will give the details to the Deputies. This provision will show clearly that if people refuse to carry out their duties, even though they are in their place of work, that constitutes a period of unauthorised absence. It is a thin line between, on the one hand, putting undue pressure on someone and, on the other, being fair to him or her. The issue about leave to appeal and so on is something to which we will give consideration. We will come back to the issue on Report Stage having reflected on it.

I remain very concerned about the out-working of this amendment. Is the genesis of it the particular case the Minister of State mentioned which is currently under appeal?

I am not privy to the detail of it — perhaps I read about it or whatever but I cannot think of it as we speak — but no single measure will apply in all situations. That is the point I tried to make at the outset. The implications of this section could reasonably arise from a situation where somebody is in attendance and carrying out his or her duties across the board except where a single situation may apply. It could be a simple form-filling exercise for some specific instance, but because that duty was not carried out — even though all other duties on the same day were being carried out — does that imply or constitute, as the amendment suggests, unauthorised absence from duty? For what particular period of time is that to be adjudged or determined? Will it be for the whole day or part of it — one minute, for example? With respect to the Minister of State, I am trying to clarify the situation.

Deputy Burton raised a reasonable example of trade union members on the picket line. A number of situations could arise where people conscientiously adopt specific positions and cannot do otherwise. This is a dangerous amendment, which was clearly not intended as part of the initial draft of the Bill, yet this substantive amendment is now being moved on behalf of the Minister for Finance. Deputies' views have not been reflected in considering this amendment heretofore. The Minister of State has come here with a briefing note, without even having heard the views of the three Opposition Deputies present. There has been no consideration of our views. The Minister of State is working from a briefing note that was prepared prior to any of the arguments we have presented and, therefore, it does not reflect our concerns and the case we are making.

The amendment is of such importance — not least, the failure to include provision for an appeals procedure — that there should be further consultation about it between the Minister of State, the Minister for Finance and the parliamentary draftsman. The amendment is deficient and dangerous, and has the potential to be used against civil servants and other workers in an injurious manner in future. For those reasons, I must object to it. Rather than simply opposing it, I am appealing to the Minister of State, given the serious concerns that have been expressed, to undertake further consideration and consultations as required. He should then return to this committee with a proper and considered response to our concerns. He has not done that in the reply he has given.

Deputy Ó Caoláin referred to an instance, which is bringing the argument to a ridiculous stage, whereby if somebody decided not to perform a duty for a minute he or she would be castigated. This question will be determined by the appropriate authority which, in most cases, will be the Secretary General of the Department. The Secretary General is hardly going to be called down to make a judgment on somebody who refused to perform a duty for one, five or ten minutes. It is about somebody who shows up for work — that is a very specific part of the amendment — and refuses to carry out his or her duties. If the person has a conscientious objection, there are many ways of addressing that which are already in place. Conscientious objectors have provisions to change jobs within the Civil Service if they have a particular difficulty with some of their duties. We can blow this out of all proportion but I will certainly consider it on Report Stage. However, to suggest that the amendment is over the top is not the case; it is intended to deal with a specific incident that has arisen, has gone to court and is currently the subject of an appeal.

The Minister of State said the amendment is designed to deal with a specific situation which issub judice as an appeal is taking place, but that is not the case. It may be a reaction to the particular case in question but it is putting in place, in perpetuity, a set of circumstances that we have demonstrated is open to interpretation. One might very well have a situation where a less than perfect relationship exists between a senior and junior member of staff over an interpretation of duties of the grade. Thus, a refusal to carry out such duties could be misused and abused to the detriment of the employee’s interests. This is an important matter, although the Minister of State seeks to dismiss it as something that does not warrant further consideration. I believe it does warrant such consideration for all the reasons I have stated.

The Minister of State has not addressed the issue upon which I have laid emphasis in each of my earlier contributions on this amendment, which is the need for provision for an appeal. That is not included in the amendment. I see no relationship between it and any of the other sections where such provision is made. The Minister of State has not indicated that the terms of this amendment are reflected in any other legislation or Civil Service regulations. Is this the first amendment of its kind? Clearly, it must be because it is a fall-out from a particular case that is still current.

The amendment covers new ground and because of that it requires careful evaluation as we consider how it might present difficulties in future. In the first instance, it might present difficulties for civil servants themselves. I am a little concerned that the trade unions have voiced no concern about this, and have assented to it. At least, that is the information the Minister of State has shared with us today. I wonder what level of consultation has taken place, including engagements, and with whom. Can the Minister of State share that information with us?

This amendment has only recently been tabled so it astonishes me that consultations have taken place concerning it. When did these consultations take place because this amendment did not exist before Christmas? Will the Minister of State share the details of that consultation with us? Will he advise who the trade union representatives were who assented to this amendment without question? I cannot believe that could be the case. I find it incredible. If I were a civil servant or other employee and a member of a trade union, and my interests were not being properly pressed in terms of a real and serious evaluation of this amendment and its potential out-working, I would be a very disgruntled member of that trade union.

Clearly the Minister of State is redefining the term "unauthorised absence". I can understand that if someone sits there and refuses to do his or her work, something must be done. Equally, however, it is a substantial reopening of a definition and it seems to require some system of independent review or appeal if it is to go ahead.

The Minister of State indicated that he would consider the possibility of an appeals mechanism on Report Stage. I would urge that such a mechanism should be provided on Report Stage so that we could, at least, have some reassurance that this provision would be used in a balanced way and could not be used as an unfair instrument to put pressure on individuals, quite unrelated to their refusal to carry out work. Some protection needs to be inserted in the amendment.

Lest people run away with the notion that somebody will be jailed over this offence, as I said, section 16 states: "A civil servant shall not be paid remuneration in respect of any period of unauthorised absence from duty". The sanction is loss of pay for the day or the period involved. We have listened to what the Deputies have said. The Civil Service unions were consulted and had no objection to this amendment. As I said, we will consider the points raised and will reflect on the views expressed before Report Stage.

The Minister of State suggests that the loss of pay for one day, or for a number of days, might be a small matter. In the teaching profession, I know what a break in service amounts to in terms of loss of pay and unauthorised leave. It is a very serious matter in regard to pension entitlements. Unauthorised leave and the loss of pay is actually a break in service. That is something which needs to be factored in. What are the real consequences? Is it just the punitive loss of one day's pay as if that was not a big enough problem for people these days? Are there other consequences?

Without having the opportunity to explore it further, I believe there are potential other consequences for people in terms of break in service, pension entitlements, complications, etc. It is not as simple as the Minister of State suggests. I expect it probably varies in regard to the area of employment — from teachers, who are public servants, right through to each of the other areas of employment in the public service. I share that additional comment only to add a little more to the substance of my concerns.

In the new definitions, a period when a civil servant refuses to carry out the duties of his or her grade shall be considered to be a period of unauthorised absence from duty. A particular period of absence from duty is a period of absence from duty or a particular action taken by a civil servant which constitutes a refusal to carry out the duties of his or her grade or a refusal by a civil servant to perform a particular duty constitutes a refusal to carry out the duties of his or her grade. These all roll into unauthorised absences from duty.

In the disciplinary mechanisms in section 10, the Minister of State defines a range of misconduct and a range of sanctions. Misconduct, irregularity, neglect, unsatisfactory behaviour or underperformance are subject to sanctions. Unauthorised absence in the old Act carried the right to deduct pay. However, the problem is the Minister of State is redefining unauthorised absence as falling within the range of misconducts and, therefore, being subject to all the sanctions.

The ultimate purpose of this Bill is to give a Secretary General, as opposed to the Government, the power to hire and fire. We need some clarification because this section is potentially far wider. From time to time, there are valid reasons, which I have outlined, where people are absent from duty. I will give another example to which I assume compassionate grounds would attach. Departments are large organisations employing hundreds and sometimes thousands of people. Every so often, unfortunately, a percentage of civil servants may, for instance, have a mental illness or an addiction of one kind or other, whether to alcohol or to some other substance. People in that type of scenario may end up being absent and very often they are not their own best defenders because they may not recognise their condition.

By not having an appeals procedure or a wider definition, it has the potential to be very unfair. It will probably be very junior people who will be subject to the rigours of this and not senior people. That is what concerns me. The paper keeper and the person on the lowest rung of the Civil Service ladder, who would not have the information to deal with a wide-ranging power as is contained here, will not have the power to contest what happens. What happens may not be entirely within their control.

We ask the Minister of State to look at this again. If appropriate, a better definition plus an appeals procedure should be included so it is not entirely at the whim of the Secretary General of the Department.

I forgot to respond to the point about the Progressive Democrats perhaps deploring people who might pass a picket. For the Deputy's information, I was happy to share a platform twice in the past eight days with trade union representatives defending the workers in Carlow and farmers losing their beet contracts. I was very upset to discover afterwards that the Labour Party, for some inexplicable reason, abstained from supporting the Carlow workers in a debate in the Seanad.

Did the Minister of State ask the Minister for Agriculture and Food about her position on that issue? Deputy Nolan might not have been entirely happy with the Minister of State's grandstanding around Carlow.

Am I being interrupted again, Chairman?

I am sure a lot of people in the sugar industry are of the opinion the Minister of State is shedding crocodile tears.

I will allow a final comment.

I was just responding.

It is not far from the Chairman's constituency either.

The inference was made that we did not regard this as a serious matter and that Deputy Ó Caoláin had some monopoly on it. We regard it as a serious matter and that is why we included it in the Bill.

Issues were raised in respect of the procedures. There are procedures to deal with people who have medical problems, who are ill and who have drug abuse problems. We listened to some of the issues raised and will consider them before Report Stage, in particular the issue of the thin line and the need for an appeals mechanism.

We are left in an invidious position because I do not want to be recorded as agreeing to this. How can I agree to it after all we have said?

Amendment put and declared carried.

I move amendment No. 19:

In page 12, before section 11, to insert the following new section:

"11.—The Minister shall take measures to ensure that a civil service-wide code of practice to combat bullying and harassment is enforced in respect of all civil servants to whom this Act applies, and kept under regular review; and non-compliance with such a code shall be deemed to be misconduct for the purposes of the Principal Act or for the purposes of any proposal to dismiss a civil servant.".

When he entered the room, the Minister of State said he came here unwilling to agree to any amendment put forward by the Opposition and I said that was a pity. The purpose of this amendment is self-evident. There is a Civil Service code of practice in regard to bullying and I referred to this on Second Stage. The Labour Party is trying to place it on a statutory footing. This is an issue on which various members of the Government over the past seven or eight years have made speeches at different venues. People seem inclined to address the issue of bullying, which is an important human resources and industrial relations issue. It is also, however, a difficult issue. The Labour Party's amendment simply obliges the Minister to take measures to put in place a Civil Service code of practice in order to combat bullying and harassment and to keep this code under regular review. The amendment would also have bullying and harassment deemed to be misconduct within the terms of the Bill. In respect of an earlier section, the Minister of State indicated how he defines unauthorised absences as misconduct. Surely bullying and harassment should also count as misconduct. I ask him to give the amendment his sympathetic consideration.

The Civil Service has operated, since May 2000, a comprehensive policy entitled A Positive Working Environment on harassment, sexual harassment and bullying. This policy emphasises the right of every employee to carry out their duties free from any form of harassment, sexual harassment or bullying and commits the Civil Service to the development and maintenance of a working environment where all employees are treated with respect and dignity. The detailed policy document emphasises the responsibilities of managers in respect of ensuring that all staff are made aware of and comply with the policy and outlines the appropriate courses of action to be taken where a complaint of bullying and/or harassment is made by an officer.

The policy provides for the investigation of complaints by a person unconnected with the parties to the complaint and for the right to apply for a review of the outcome of that investigation by a third party who is chosen on the agreement of the unions and the personnel officer where either party to a complaint is not satisfied with the conduct or outcome of that investigation. The policy makes clear that where a complaint is upheld, the personnel office responsible for the person against whom the complaint has been made must consider whether, in view of the nature of the complaint and the contents of the report of the investigating officer, he or she should be subjected to a disciplinary action. Where this is the case, the full rigours of the disciplinary code apply.

The Bill provides the framework within which conduct and performance issues will be dealt with in the Civil Service and makes provision for the imposition of a range of disciplinary actions where allegations of misconduct have been upheld. It is normal practice in employment law, and in line with codes of practice issued by the Labour Relations Commission in respect of grievance and discipline and bullying and harassment, to develop internal procedures and policies in negotiations with staff unions and to give practical effect to legislative provisions. Internal policies provide the detailed procedures which ensure that management maintains satisfactory standards of conduct and performance and that staff are provided with access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed. These procedures are kept under review in partnership with the staff unions to ensure compliance with the code of practice under the Health, Safety and Welfare at Work Act 1989, the Industrial Relations Act 1990 and the Employment Equality Acts 1998 and 2004. In light of this, I am not prepared to accept the amendment.

Amendment put and declared lost.
SECTION 11.

I move amendment No. 20:

In page 12, between lines 37 and 38, to insert the following subsection:

"(2) The Minister for Finance shall, on 31 March 2005 and annually thereafter, publish a statement in respect of bodies which are, and are not scheduled, detailing the grounds for any changes which have occurred in the previous 12 months.".

This amendment refers to the notion of scheduled and non-scheduled bodies, which seems to be the trigger in the legislation in terms of who has the right of dismissal. What is the distinction between scheduled and non-scheduled? We ought to have a statement indicating what are scheduled and non-scheduled bodies, the changes being made from year to year and the reasons for such changes in order that we would have the opportunity to review changes in respect of who makes personnel decisions as they arise.

There are two parts to this proposal. The first involves publishing an annual statement on the bodies listed in the Schedule. Two bodies — the Office of the Houses of the Oireachtas Commission and the Courts Service — are included in the Schedule. The effect of the inclusion of the two organisations in a new Schedule 2 to the Civil Service Regulation Act 1956 is to treat these two offices on the same basis as those organisations referred to in Schedule 1 of the Public Service Management Act 1997. In other words, the board and the commission, by virtue of their inclusion in column 2 of the Schedule, are to be treated as Ministers for the purpose of the HRM powers set out in the 1997 Act. The practical effect of this scheduling of the two offices as regards the board and the commission is that they will be the appropriate authority for civil servants at and above principal level in their respective organisations. Similarly, the head of office in each organisation will become the appropriate authority for officers below principal level in their respective organisations. In view of the reason for this Schedule, it is unlikely, therefore, that it will be amended frequently.

As regards the second part of the amendment, which seeks the publication of a statement of what bodies are not scheduled, new bodies are not regularly established in the Civil Service. Where they are established, the onus is on the relevant Minister to ensure that the legislation is prepared in a manner which will also address the matters raised in the Bill. This is a normal part of the drafting process. Any amendments to the Schedule will be identified as part of the drafting process. In most instances there will be no effect on the Schedule as the appropriate authority will be identified under section 6 of the Bill. For that reason, I propose to reject the amendment.

Amendment, by leave, withdrawn.
Section 11 agreed to.
Sections 12 to 16, inclusive, agreed to.
NEW SECTIONS.

I move amendment No. 21:

In page 13, before section 17, to insert the following new section:

"PART 3

AMENDMENT OF COMPTROLLER AND AUDITOR-GENERAL ACT 1923.

17.—The Comptroller and Auditor-General Act 1923 is amended by the substitution of the following for section 4:

4.—(1) The power of appointing a person to be an officer or servant of the Comptroller and Auditor-General shall be vested in the Comptroller and Auditor-General.

(2) The Minister for Finance shall from time to time determine the number of officers and servants appointed to the Office of the Comptroller and Auditor-General and all such officers and servants shall hold office on such terms and conditions as the Minister for Finance shall determine.'.".

Amendment agreed to.

Amendment No. 31 is consequential on amendments Nos. 22 and 29 and we will discuss amendments Nos. 22, 29 and 31 together.

I move amendment No. 22:

In page 13, before section 17, to insert the following new section:

"PART 3

AMENDMENT OF OMBUDSMAN ACT 1980

17.—Section 10 of the Ombudsman Act 1980 is amended by substituting the following for subsection (1):

‘(1) (a) The power of appointing a person to be an officer or servant of the Ombudsman shall be vested in the Ombudsman.

(b) The Minister for Finance shall from time to time determine the number of officers and servants appointed to the Office of the Ombudsman and all such officers and servants shall hold office on such terms and conditions as the Minister for Finance shall determine.’.”.

What powers do these amendments bestow upon the Ombudsman?

The power to appoint staff.

It is the same power as that held by the Director of Public Prosecutions, the Comptroller and Auditor General and the Attorney General.

Amendment agreed to.
Section 17 agreed to.
SECTION 18.

I move amendment No. 23:

In page 14, between lines 52 and 53, to insert the following:

"(6) Nothing in this section shall be construed as affecting the status of a civil servant as an officer.".

Amendment agreed to.

I move amendment No. 24:

In page 14, lines 53 and 54, to delete subsection (2).

Amendment agreed to.
Section 18, as amended, agreed to.
Sections 19 and 20 agreed to.
SECTION 21.

I move amendment No. 25:

In page 15, subsection (1), to delete line 40 and substitute the following:

"(4) Nothing in this section shall be construed as affecting the status of a civil servant as an officer.

(5) For the purposes of this section and the".

This is a technical amendment.

Amendment agreed to.

I move amendment No. 26:

In page 16, lines 9 and 10, to delete subsection (2)

Amendment agreed to.
Section 21, as amended, agreed to.
Sections 22 to 26, inclusive, agreed to.
SECTION 27.

I move amendment No. 27:

In page 17, lines 31 and 32, to delete paragraph (a) and substitute the following:

"(a) by substituting the following for subsection (10):

‘(10) The Minister for Finance shall from time to time determine the number of officers and servants appointed to the Office of the Director and all such officers and servants shall hold office on such terms and conditions as the Minister for Finance shall determine.',

and".

Amendment agreed to.
Section 27, as amended, agreed to.
NEW SECTIONS.

: Amendment No. 32 is related to amendment No. 28 and both may be discussed together.

I move amendment No. 28:

In page 17, before section 28, to insert the following new section:

"PART 7

AMENDMENT OF PUBLIC SERVICE MANAGEMENT (RECRUITMENT AND APPOINTMENTS) ACT 2004

28.—The Public Service Management (Recruitment and Appointments) Act 2004 is amended in section 15(11) by substituting ‘6 months' for ‘2 years'.".

The amendment was requested by the Office of the Attorney General. Section 15(11) of the Public Service Management (Recruitment and Appointments) Act 2004 provides that a person found guilty on summary conviction of an offence under that section of the Act will be subject to a fine or imprisonment for a term not exceeding two years or both. However, the High Court recently ruled that the maximum term of imprisonment for an offence on summary conviction should be 12 months. The Office of the Attorney General advised that the Act should be amended to comply with the ruling to provide for a maximum term of imprisonment of six months. This term is consistent with the maximum term for persons sanctioned under section 55(3)(a) of the Public Service Management (Recruitment and Appointments) Act 2004 who have committed an offence set out under section 54 of that Act.

Amendment agreed to.

I move amendment No. 29:

In page 17, before section 28, to insert the following new section:

"PART 7

PUBLIC SERVICE SUPERANNUATION

28.—(1) The Superannuation (Prison Officers) Act 1919 is amended in section 1(1)(a) by substituting ‘as the age on retirement at which’ for ‘as the age of retirement which’.

(2) The Public Service Superannuation (Miscellaneous Provisions) Act 2004 is amended—

(a) in section 10 by substituting for subsection (6) the following:

‘(6) Nothing in this section shall affect any provision by or under any enactment or public service pension scheme which provides for the award of superannuation benefits at an age earlier than that specified in this section or in the amendments provided for by Part 2 of Schedule 2—

(a) on grounds of ill health, or

(b) where it is provided for by the provisions of a public service pension scheme, on 31 March 2004, in the case of compulsory cesser of office or position before 65 years of age, or

(c) for any other specified purpose under any enactment or public service pension scheme that applies to a new entrant and is approved by the relevant Minister and the Minister after 31 March 2004.’,

and

(b) in Schedule 1—

(i) by inserting after paragraph 9 the following:

‘9A. EirGrid.',

(ii) in paragraph 20 by substituting for 'relates, including a subsidiary of any subsidiary.' the following:

‘relates.'.".

Amendment agreed to.
Section 28 deleted.
Schedule agreed to.
TITLE.

I move amendment No. 30:

In page 5, line 11, after "SERVANTS," to insert the following:

"TO PROVIDE FOR THE AMENDMENT OF THE COMPTROLLER AND AUDITOR-GENERAL ACT 1923,".

Amendment agreed to.

I move amendment No. 31:

In page 5, line 14, after "1974," to insert the following:

"TO PROVIDE FOR THE AMENDMENT OF THE OMBUDSMAN ACT 1980, TO PROVIDE FOR THE AMENDMENT OF THE SUPERANNUATION (PRISON OFFICERS) ACT 1919,".

Amendment agreed to.

I move amendment No. 32:

In page 5, line 17, after "2004," to insert the following:

"TO PROVIDE FOR THE AMENDMENT OF THE PUBLIC SERVICE MANAGEMENT (RECRUITMENT AND APPOINTMENTS) ACT 2004,".

Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments.