Section 1 deals with definitions and interpretation of this legislation which deals with a number of sensitive matters. It states that unless the context otherwise requires "civil servant" will have the meaning assigned to it by the Civil Service Regulation Act, 1956. How will the changes in this Bill affect the definition of "civil servant"? Civil servants can be dismissed only by the Government. They are free to serve the State and their positions are secure. Will this section change that? Will a decision of the Government be required to dismiss only those above assistant principal grade? The majority of civil servants are in lower grades. Although the section states "civil servant" will have the meaning assigned to it under the Civil Service Regulation Act, 1956, it will not have the meaning attributed to it in the past.
Private Members' Business. - Public Service Management (No. 2) Bill, 1997 [ Seanad ]: Committee and Remaining Stages.
There will be no change in the definition of "civil servant" under this Bill, particularly under the definition section to which the Deputy referred. Changes will be set in train only by amendments to the Civil Service Regulation Act which will follow the passage of this legislation. A parcel of legislative change is required to roll out the strategic management initiative and to give effect to the Government's programme for change as outlined in Delivering Better Government. On the point about changes in dismissal picked up by the Deputy, there will not be a change, even with the passage of this legislation, until the Civil Service Regulation Act is amended to give effect to it. That will happen in conjunction and in consultation with all the Civil Service unions and bodies.
The opening sentence in the Bill states its object is to create a new management structure for the Civil Service. While we welcome that, I question why the Department of Defence is included, its inclusion will have serious implications. For the purpose of this Bill there is no need to bring the military branches into the definition of the Department of Defence. There is an alarming potential for ambiguity and conflict between this Bill and the 1954 Defence Act, which is the basic code of military law of the Defence Forces. Section 17 of that Act provides a system for control over the military, which is the epitome of democratic control. That will be seriously undermined if we proceed on this basis.
I have spoken to a number of Army personnel who are concerned about this. They have raised their concerns with the Minister, but have not received a satisfactory response. It appears that the Secretary of the Department will be empowered to exercise command and authority over Defence Forces personnel and will be able to delegate duties to the chief of staff, promote officers and issue regulations, but this is not the way to do business. Will the Minister of State reconsider this position?
I thank the Deputy for raising that point. In relation to the latter part of it, we can discuss its specifics in more detail when we come to section 4 which deals with powers of dismissal and so on. The definition of the Department of Defence used in the Bill derives from a combination of the 1924 Act and the Defence Act of 1954 which provides for three military branches of that Department. This simply confirms the current position which is likely to be changed as a result of amendments to the Defence Acts currently being prepared by the Minister for Defence. The fact that the crucial provision of the Bill set out in section 4 is subject to any existing Acts ensures that the full provisions of the Defence Acts in relation to the powers of officers and the operational autonomy of the Defence Forces remain intact. I assure the Deputy his fears are not well grounded in this case and the point he made is well taken care of.
I take it the Minister of State is saying that the other Acts will remain supreme and the current position of the chain of command in the Army will continue.
Yes, unless legislation in that area is amended.
On the question of the Civil Service Regulations Act, I take it that will come before the House after a period of consultation and for that reason this Bill will not be implemented until consultation has taken place.
The section will not be implemented.
The Minister said the section will not be implemented, but this section deals with interpretation. It covers the interpretation of a civil servant. The Bill is about civil servants. Presumably the rest of the Bill will not come into operation either.
I am advised that the Civil Service Regulation Act, even when amended, will not change the definition of civil servant. It may not be the definition of civil servant with which the Deputy has a problem, it may be the responsibility and accountability that will be conferred on civil servants which might differ slightly from the status quo, but the definition of “civil servant” is likely to remain the same.
That clarifies the position on the interpretation question. It also clarifies the position on Deputy Power's point.
There is also the question of the definition of outputs. The Bill states outputs in relation to a Department or a scheduled office means the goods and services, including standards of services, that are a consequence of the activities of the Department or scheduled office. I take it such outputs include customers, their treatment and the delivery of services to them. That would include old age pensioners. Does outputs in that sense cover the delivery of services and practices in relation to services for, say, old age pensioners, widows or other groups?
Yes.
Will the Bill result in the delivery of a service to customers, who in the case of the Department of Social Welfare may be old age pensioners and others, being a matter — other than policy and strategy matters — on a day to day basis for the secretary general?
Yes.
One of the functions of this House is that Deputies who are dissatisfied with the service supplied to customers, like old age pensioners, can raise questions in the House with the Minister on day to day operations. Will it still be possible for Members to ask questions and receive full parliamentary replies to such questions from the Minister?
The Deputy has raised an interesting matter about parliamentary questions and what will or will not be in order when the changes outlined in this legislation are in place. The answer to the Deputy's question is yes. Any question deemed in order by the Ceann Comhairle can be put to a Minister during Question Time unless the House changes its rules. It would be disingenuous of me if I did not point out that when responsibility and accountability for operational matters are moved from a Minister to middle or senior management or the head of a team delivering a service, there may not be a subsequent change of rules on parliamentary questions because the Minister may not know the answer to a question about a matter that is being delivered with operational autonomy by a section within the service. As of now the answer to the Deputy's question is yes, but that may not be the case if the rules of the House are changed. I have no idea whether there are proposals to change the rules, nor has that been discussed with me, but it would seem to be logical that if operational autonomy and responsibility for operational day to day matters are moved from the Minister to the secretary general or another person in senior management in the Civil Service, that person should be answerable, probably through the committee system to Members of this House rather than the Minister being answerable directly to the House. However, I do not know the proposals for change.
This is a vital matter because the constitutional function of the House is about people. It is crucial that Members should be able to put questions to Ministers in certain Departments, particularly those involved in areas of caring such as the Departments of Health and Social Welfare. The Minister's reply was fair, forthright and honest but it is still alarming. Once operational responsibility moves from a Minister, how can he or she be expected to be responsible and to provide the answers?
If one is not responsible, one is not accountable.
Yes. The Minister said committees of the House may provide the solution but the legislation states that committees will only consider matters of strategy. That is why I am concerned about the Bill. I am in favour of what the Minister and Government are trying to do, but I am not sure it is being done in the right way. The implications of not doing it correctly are substantial and great changes may result. We will cover other aspects on later sections and amendments and I want to tease them out.
From what the Minister says, it is likely and logical that a change will be made to parliamentary questions in the relatively near future. This would be a great relief to Ministers as they would then have more time for broad matters of great national importance but it is the people who are of real importance, old age pensioners, widows, people with disabilities, etc. We must have individual and personal concern for them. Much of the detail has been removed and even more can be taken out by delivering better service but, by defining these outputs in the Bill, we are making it possible to change the position by doing away with the Minister's responsibility to the House without also making him or her responsible to a committee of the House. The more I consider this legislation, the more I want a separate Report Stage in which the Minister can consider the points and see whether solutions can be found. That will not be possible in the time today.
The debate is tending to stray into other sections and I am anxious that we stick to the section before us.
With respect, it would have been better to say that to Deputy Woods. I wish to give him the courtesy of a response to his points, if I may. I take the point but the Deputy has been allowed make his case.
Acting Chairman
I say it for the benefit of Members of the House.
I do not accept the point but that is a separate matter.
Acting Chairman
I wish to dispose of the question before us.
I accept that. This is an important issue and I was surprised it did not receive more attention on Second Stage because the impact this change may have on our system of parliamentary questions occurred to me at an early point. Change, if it happens, will evolve slowly in the Dáil. It is likely to meet the new realities of the legislation once passed. I do not envisage overnight a new set of rules for parliamentary questions being in order. The Freedom of Information Act will give individuals access to information which currently can only be received by way of parliamentary question.
As a former Minister for Social Welfare, the Deputy knows about pension and social welfare questions. People matter, they are of primary importance in delivering a public service, because it concerns delivering a quality service to the public, the people, the customer or however one likes to describe the recipient. The Deputy mentioned widows and pensioners who deal with the Department of Social Welfare, but he will be aware that an excellent TD inquiry system has been in place in that Department for some time. I compliment those involved in providing that customer service because they have responded effectively and efficiently within the same timescale in which Deputies would receive information through the parliamentary question system in response to queries about constituents. That was the pertinent point. The complaints redress system, supplemented and augmented by the TD inquiry system, which will continue, should mean an efficient and effective resolution of problems in the Department of Social Welfare and across the Civil Service.
In Dublin Castle tomorrow I shall launch a scheme entitled Quality Customer Service for Customers and Clients of the Civil Service. This code of practice will apply throughout the Civil Service for delivery of service to customers, including internal customers like TDs and members of the public who receive a service, be they social welfare recipients, taxpayers, farmers, etc. All of us in our day to day lives are customers of the Civil Service and public service in a multiplicity of ways. Such is the importance of a quality, well-delivered public service that we take much of it for granted. We are not aware of how it permeates our lives and the degree to which the public service is responsible for delivering our quality of life.
I take the Deputy's point. All sides of the House treasure the parliamentary questions system and he and I know that one of the few disadvantages of being a Minister is that one is denied the quick response of that system because one has back door or internal access to the Department to answer our questions. Parliamentary questions are efficient tools of democracy. While operational responsibility will be devolved to senior and middle management in the Civil Service and public service under this Bill, political responsibility and accountability will always remain with the Dáil as per the Constitution. I think the Deputy's fears are not well-grounded because a Minister will always answer a Deputy's question if it concerns political responsibility.
I would be less than honest if I did not say that when the Civil Service Regulation Act has been amended, the Freedom of Information Act is in operation and the package of legislation associated with the document Delivering Better Government is in force, our parliamentary question system will probably change to reflect the realities of the operational responsibility of the Civil Service visá-vis Ministers on day to day delivery of public service. That will be a matter for this House, not for me.
The way we define these matters is fundamental to what we will discuss subsequently and I have a duty to tease out what is involved. The position is reasonably clear and I would be uneasy about such a development in terms of parliamentary questions, the responsibility of the Minister to the House and the responsibility of the new Secretaries-General to committees of the House. We will come to that later. I know a great deal about the TD inquiry system because I was involved in a great deal of that. However, the fact that those services can be greatly improved and that delegation can take place is separate from the whole question of ultimate responsibility. The buck must still stop with the Minister.
It does under our Constitution, which is not being changed.
That is the point. We have clarified that matter as well as we can at this stage.
The section also states that "Secretary General" in relation to a Department "means the person appointed as the Secretary General of the Department". We know who that is to be. The Secretary General will be appointed on a seven year contract and will then do something else.
The section further states that the strategy statement "shall be construed in accordance with section 5". The problem is that the strategy statement is the only matter which a Dáil committee will be able to examine. In other words, the Secretary General will appear before a committee for the examination of the strategy statement, which is dealt with under section 5. Is that all we are talking about when we talk about the strategy statement?
That is all we are talking about.
This section states:
A Minister of the Government having charge of a Department shall, in accordance with the Ministers and Secretaries Acts, 1924 to 1995, be responsible for the performance of functions that are assigned to the Department pursuant to any of those Acts.
The section is headed "Responsibilities of Minister of the Government having charge of Department". My problem with this section is that the Minister will have responsibility without power.
If the Deputy is just filibustering until Deputy McDowell arrives he should tell me.
I am not.
Is the Deputy sure?
I am genuinely concerned about how this is being done, rather than what is being done. I want to see more delegation and a correspondence between authority and responsibility. My fear is that this legislation is excluding the Minister to such an extent that it is not leaving the Minister in a position of ultimate responsibility.
It is.
If it is, the design must be somewhat different. The Minister must be ultimately responsible——
That is how it is.
——because the Constitution states that is the case. However, a Minister cannot be responsible unless he or she is answerable. Therefore, the Minister will have to be answerable. We have already agreed under section 1 that it is likely the Minister will not be answerable during Question Time in the House for these outputs and routine operational matters, as the Minister of State called them.
That will be a matter for the House.
It is particularly important for people in difficult circumstances and in cases of considerable sensitivity to have that level of access. It has been one of the elements of our democracy that the smallest person in the land, perhaps an old age pensioner or a widow, has had access to the highest chamber in the land, which is this Chamber. I am concerned that is not sufficiently protected in the Bill.
The Bill does not propose to change that. We have been through this already. It will be up to the House to interpret this and decide.
That might mean the Bill would have to be amended.
That is not what it means; it means democracy in action.
I would be very happy if that level of democracy was clear in the Bill. I am afraid that with Ministers thinking they are more important than day to day matters and that other ministerial activities, such as dreaming up policies, are more important than caring about people whom——
The Deputy is trying to put a political spin on a Bill which has been agreed by both sides of the House.
Acting Chairman
We cannot allow the debate to degenerate into an election campaign.
Either that, or he is waiting for Deputy McDowell to arrive and move his amendment. I cannot decide which it is.
I am trying to tease this out on Committee Stage, which is what this Stage is for. I know the level of debate on Committee Stage has slipped to a fair extent recently because everything has become sound bites. However, Committee Stage is very valuable because Ministers can recognise concerns and fears at that Stage and can seek to meet those concerns on Report Stage. I am expressing genuine concerns about this legislation.
To which I have already responded under section 1.
There are more sections than that in the Bill. This section states that the Minister is "responsible for the performance of functions that are assigned to the Department". However, in other sections the Minister is being excluded from various matters with which he or she will not have the power to deal on a day to day basis.
The Minister of State said on Second Stage that the Minister will continue to have legal responsibility. However, administrative responsibility is just as important as legal responsibility. It is more important in day to day practices because those are the matters which concern people. If an issue becomes a legal matter a person can go to the Ombudsman or other office and begin that process. However, we have a much more efficient system because, due to the responsibility of Ministers, there is a great urgency about getting to the bottom of issues.
This section is in conflict with much of what we are saying. It states that the Minister is responsible, and if that is the case, the Minister is answerable everywhere for that responsibility. It also means that the Minister is responsible for what the Secretary General is doing, which means that the Minister cannot be excluded from the Secretary General's actions.
The Deputy misinterprets the Bill.
This can be addressed when section 4 is considered.
I move amendment No. 1:
In page 5, subsection (1), line 11, after "to the" to insert "authority of the Government or a Minister of the Government in the exercise of the executive powers of the State".
This amendment is designed to get to the core of the problem. A constitutional question hangs over the legislation. When considering section 3 we discussed the responsibility of the Minister. The Minister has an overall responsibility, which must be reflected in any new arrangements, and a duty to the public to exercise that responsibility and be accountable for it.
The other officers referred to here are unelected officers of the State. They are appointed civil servants who are then selected on contract to do a specific job. The Constitution provides that the Minister represents the people. While there should be more delegation and more correspondence in the delegation between responsibility and authority, the Minister should not become merely a rubber stamp.
I am concerned that the Secretary General may not be responsible to the Minister or the Dáil for day to day operations. While I am in favour of delegation, I would not support the removal of the Minister from this area. If the amendment is accepted, the relevant part of section 4(1) would read:
Except as otherwise directed by the Government or provided by or under any other Act, the Secretary General of a Department or Head of a Scheduled Office, as the case may be, shall, subject to the authority of the Government or a Minister of the Government in the exercise of the executive powers of the State...
This clearly includes the constitutional authority of a Minister. At present the wording states that the Secretary General—
...shall, subject to the determination of matters of policy by the Minister of the Government having charge of the Department ... have the authority, responsibility and accountability for carrying out the following duties...
The section makes clear that, subject to the determination of matters of policy by the Minister, the Secretary General shall perform all other functions, which will mean the exclusion of the Minster from them. I do not want to see legislation to this effect. The amendment would correct this by providing that the Secretary General would act subject to the "authority of the Government or a Minister of the Government in the exercise of the executive powers of the State...".
This provision must be included because to pretend otherwise in legislation is misleading and constitutionally unsafe. Article 28.1 of the Constitution states:
The Government shall consist of not less than seven and not more than fifteen members who shall be appointed by the President in accordance with the provisions of this Constitution.
Article 28.2 states:
The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.
Article 28.4.1º states:
The Government shall be responsible to Dáil Éireann.
Article 28.4.2º states:
The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government.
Article 28.12 states:
The following matters shall be regulated in accordance with law, namely, the organization of, and distribution of business amongst, Departments of State, the designation of members of the Government to be in charge of the said Departments, the discharge of the functions of the office of a member of the Government during his temporary absence or incapacity, and the remuneration of the members of the Government.
This does not include the kind of matter mentioned in section 4, which gives to the Secretary General or the head of an office defined functions as set out in the subsections. The only restraint on the exercise by a secretary general or head of office of these functions is set out in subsection (1), which makes their exercise subject to the determination of a Minister in matters of policy. Otherwise, the Secretary General or head of office would appear to be given a virtually unfettered discretion with regard to the discharge of these functions. The authority of the relevant Minister or Government is at least circumscribed, if not stopped.
Section 6 makes a Secretary General or head of office accountable to a Minister on a specific direction from the Government in respect of the functions set out in section 4. Section 10 makes the Secretary General or head of office answerable to a committee of Dáil Éireann, but only in respect of the strategy statement under section 5(2).
By giving to a Secretary General or head of office functions which are undoubtedly within the remit of the executive of the State and withdrawing those functions from the control of a Minister or the Government, section 4 appears to offend Article 28.2 and Article 28.4.2º of the Constitution. In addition, the matters set out in the subsections to section 4 are not any of the four matters which Article 28.12 permits to be regulated by law. Therefore, Article 28.12 could not be invoked to justify section 4.
Section 6, which makes a Secretary General or head of office accountable to a Minister, makes no provision for the revoking or amending of an act done by a Secretary General or head of office under section 4. I have tabled an amendment to that. The executive nature of the act remains solely with the secretary general or the head of the Office. The provision in the section for accounting merely envisages reporting with no possibility of further action by the Minister or the Government.
The absence of accountability by a secretary general or head of an Office in respect of the totality of the functions transferred under section 4 to the committee of Dáil Éireann under section 10, combined with the absence of a provision in section 6 or elsewhere of a power for the Minister or the Government to interfere with, revoke or amend an act done by a secretary general or head of an Office under section 4, causes a problem. It places a question mark over the constitutional aspects.
I tabled the amendment because I am concerned about this matter. In practice the responsibilities of the secretary general under the Bill will include a range of issues. Section 4 separates the role of the Minister and states that he or she will be concerned with the determination of matters of policy. However, all the other matters will be determined by the secretary general. The Bill states elsewhere that the Minister may give directions in writing to a secretary general about any matter. However, that is inadequate. It is too rigid and belated. It would not be good in the context of the management of a Department as envisaged under the Constitution.
Section 4 covers issues such as the management of the Department, the monitoring of Government policies and the delivery of outputs determined with the Minister in charge of the Department. The secretary general will then have almost complete responsibility for those matters. He or she will also have responsibility for preparing and submitting to the Minister a strategy statement, providing progress reports to the Minister on the implementation of the strategy and preparing an outline of how specific elements of responsibilities should be assigned. He or she will also provide advice to the Minister and the Government, ensure that the appropriate arrangements are put in place to facilitate an effective response, ensure that the resources of the Department or Office are used in a manner in accordance with the Comptroller and Auditor General Act and examine and develop means that will improve the cost effectiveness of the service.
Section 4(1)(h) is particularly important. It states that the secretary general will be responsible for managing all matters pertaining to appointments, performance, discipline and dismissals of staff below the grade of principal officer or its equivalent in the Department or Office. Subsection (1)(i) states that the secretary general will assign responsibility for performance of the functions for which he or she is responsible to other officers. Deputy McDowell is concerned about this matter because he suggests in amendment No. 2——
Acting Chairman
Amendment No. 2 will be discussed when we reach it.
The amendment may or may not be moved.
Deputy McDowell would be here by now if he was planning to attend. The Four Courts has a sos for lunch. However, Deputy Woods is doing a good job holding up the debate for him.
It would not be difficult to hold up the House for that reason if I wanted to do so. However, I am not interested in doing that. I am interested in the issues I mentioned.
It is obvious that Deputy McDowell and the Progressive Democrats are concerned about removing the management of all matters pertaining to appointments, performance and discipline from the Minister. This is in line with my concern about this area which is addressed in amendment No. 1.
Consideration of amendment No. 1 involves the consideration of much of section 4. The amendment covers the authority, responsibility and function of the Minister irrespective of the matters which are delegated. The difficulty is that the Government is trying to remove these elements from the Minister and relieve him or her of the pressure and responsibility in that regard. This would leave the Minister free to do other things. However, that cannot and should not be done. Delegation can be effective but the Minister must remain constitutionally responsible for these matters.
That is not in question and the Deputy knows that is the case.
It is in question when one reads the Bill. Good management practice is that the Minister delegates matters and is not involved in most areas on a day to day basis. The Minister deals with exceptional issues which arise but he or she must remain sufficiently familiar with what is happening in the Department. However, under the Bill all staff other than principal officers and assistant secretaries will be directly responsible to the secretary general of the Department. A Minister must be involved in consultations and know what is happening in the Department because that ultimately is his or her responsibility. Will the Minister of State give the House the benefit of her wisdom on these matters? They are fundamental issues in terms of how the Bill is drafted but perhaps the Minister of State can reassure me that my concerns are unwarranted.
Acting Chairman
Members are tending to engage in Second Stage contributions. I remind the House that there is a time limit on the debate.
I do not accept that. I have to explain how the issues addressed by my amendment relate to section 4. My points are relevant and the Minister of State must provide answers because this is a core aspect of the legislation.
We should remember that the debate is due to conclude at 2.15 p.m.
I would prefer more time for the debate.
Justice will not be done to the 12 amendments which have been tabled if the Deputy takes 25 minutes to explain the first one. I am bound by the Chair but it is strange that a Deputy could take 25 minutes to make a case for an amendment on Committee Stage.
The intention of the amendment appears to be to put a stricter qualification on the scope of functions which will be formally assigned to secretaries general. It appears the objective of the amendment is to ensure the executive powers of the State can only be exercised subject to the authority of the Government or a Minister. The Constitution reserves to the Government the executive power of the State under Article 28.2. Section 4 as it stands conforms to the Constitution in this respect. What constitutes the executive power of the State has not yet been defined by the courts. However, one such power relates to the function of managing the national debt. The National Treasury Management Agency, to whom this power has been delegated, exercises it on the authority of the Government. That is a precedent.
However, a Minister and his or her Department carry out many functions which are not part of the executive power of the State. Under Article 28.4.1º of the Constitution the Government is collectively responsible for the Departments administered by its members. The courts have recognised that Ministers exercise functions over and above those constituting the executive power of the State. Thus, in Murphy v. Dublin Corporation [1972] IR 215, the court held that the function of the Minister for Local Government as adjudicating authority under the 1966 Housing Act was not a function which was part of the “executive power of the State”.
If the words proposed in amendment No. 1 were added to this section they could have the effect of subjecting the Secretary General to the authority of the Government and/or the Minister only when the function involved was part of the executive power of the State. This could leave open the interpretation that, when the function was not of that kind, the Secretary General was free of ministerial control — if the Government or other statute had not otherwise directed — with regard to those functions referred to in section 4(1) which do not expressly require ministerial agreement.
While the presumption of constitutionality could well negate such an interpretation, the very inclusion of the reference to the Secretary General acting subject to the Government's authority in the exercise of the "executive power of the State" and the absence of any mention of other form of ministerial control over the remaining functions might be considered too specific to allow the presumption of constitutionality to apply.
Before this Bill was prepared the method of implementing and delivering better Government was considered by a committee with a legal member. Each section, and the Bill as a whole, was vetted diligently by the Attorney General's office. Throughout the Bill there are reservations and protections to ensure that Ministers and the Government call the shots.
Deputy Woods's fears are unfounded. The intention of the Bill is to provide for greater efficiency and effectiveness in respect of the assignment of authority and responsibility and, accordingly, in relation to accountability. In so providing the Bill does not interfere with the constitutional requirement that the Government be responsible to Dáil Éireann. We all know that no Minister can possibly have in-depth knowledge of every detail of the day to day operations of his or her Department. That fact has been brought to the attention of the House on more than one occasion. This Bill reflects reality and deals with the relevant issues constructively.
I do not think any of us entered politics to be rubber stamps and none of us should or will be. Secretaries General are not and will not be autonomous under the provisions of this Bill. They will be accountable to the Minister under section 6 which we may reach, but not if this progress continues.
I remain very worried about this section. The main concern of the general public is that Ministers be able to run their respective Departments; effectively, they expect them to be the chief executive of their respective Departments. I do not know any chief executive who must operate under the type of regulations about which the Minister of State speaks. She should recognise that policy decisions by Ministers, in pure policy terms, are the exception rather than the rule, that the day to day operations of a Department take an enormous amount of time.
I will give a simple example in answer to which the Minister might explain the possible consequences. Suppose a Minister considers that some form or other within his or her Department is causing people considerable difficulties. Will that Minister have to issue a formal, written instruction to the Secretary General to have it changed, or can he just issue an instruction?
He does not have to give a written instruction.
Would the Minister of State consider that a matter of policy?
No.
Under section 4, surely that is a matter for the Secretary General. It makes section 4 very ambiguous and perhaps the Minister should consider clarifying its meaning. This specific reference to policy appears to imply a difference between policy and other matters. If not, why is policy specifically mentioned?
The Minister spoke about constitutionality. This Government certainly has established a record in the number of Bills already referred by the President to the Supreme Court, and I understand there is another today. Assurances given in this House about the constitutionality of provisions rings rather hollow.
The Minister said its constitutionality had been examined by the Attorney General's office.
It has been.
Deputy Ó Cuív mentioned that that office has not been 100 per cent accurate in recent times. There always will be different interpretations of such provisions.
I am concerned to avoid creating too much rigidity and legality. Flexible management, delegation of responsibilities and accountability are what we seek. As Deputy Ó Cuív said, my objective in tabling this amendment was to make it absolutely clear that a Minister has a right to all information, to pose any question, to issue any verbal direction he or she may want to give to any departmental official.
That is so.
We do not want to envisage circumstances in which a Minister is isolated in one room, while the Secretary General and other top officials take important policy decisions. I have seen it happen.
Is the Deputy serious about this?
I am quite serious and the matter is a very serious one.
It is.
I do not want to see that type of circumstance arise. No matter what a Minister's party affiliations, he or she holds that office as a representative of the people. In sensitive cases a Minister must be free to give unwritten directions rather than find himself or herself in a rigid, legalistic corner.
That is the case. The Deputy's fears are unfounded.
Then there is no purpose in section 4.
As Deputy Ó Cuív says, section 4 lays down many such provisions. In debating this amendment we are simultaneously discussing section 4 since both effect these issues, so we do not have to repeat our arguments.
Since Deputy Michael McDowell has not arrived. I did not come down in the last shower.
That has nothing whatever to do with the matter. I take a much more fundamental approach to this issue, about which I am very concerned.
I know the Deputy is concerned but he should not have to repeat it some 15 times.
I do not know in which shower the Minister of State came down. Probably the whole coalition Government will come down in the next one.
There is no need for the Deputy to repeat his concern 15 times to allow Deputy Michael McDowell come from the courts. We know what the game is.
Has the Minister of State anything further to say at this stage?
Out of courtesy perhaps I should give a brief reply but I really do not need to hear the same question 15 times over.
If anything gives rise to a problem within a Department the Secretary General will be expected to sort it out and he or she will be fully accountable to the Minister. The Minister can request answers to any difficulties or problems that may arise. The Minister may well insist that the strategy statement deal in detail with the delivery of services, the quality of advice——
Let us be clear that we are talking about a strategy statement.
——and is perfectly entitled to draw to the attention of the Secretary General what he or she considers to be deficiencies in the provision of any service. The Minister can draw to the attention of any Secretary General any deficiency——
The Minister can draw it to the attention of the Secretary General but can he give a direction?
Yes.
An Leas-Cheann Comhairle
Is Deputy Woods pressing his amendment?
Yes.
An Leas-Cheann Comhairle
Amendment No. 2 is in the name of Deputy Michael McDowell who does not appear to be present.
I move amendment No. 3:
In page 6, subsection (1), between lines 36 and 37, to insert the following:
"(j) ensuring that all civil servants or civilian employees of the Department of Defence will be provided with a right of appeal to the Minister with overall responsibility for that Department in respect of matters arising under paragraph (h) of this section.".
This amendment proposes the insertion of an additional paragraph (j). All staff up to and including assistant principal may be dismissed by the secretary general. Previously the Government decided on dismissals. There must be some appropriate appeals mechanism and I propose that the appeal of a decision by a secretary general for dismissal should be made to the Minister.
This amendment provides that staff of the Department of Defence would have a right of appeal to the Minister for Defence in respect of the enabling powers given to secretaries general on matters affecting the appointment, performance, discipline or dismissal of staff. As these powers will only be exercised following amendment to existing legislation in that area which will involve consultation with staff interests. Questions such as right of appeal will be dealt with in that context. I appreciate the Deputy's concerns but it would not be appropriate to provide for a formal right of appeal in the primary legislation; that is not the way to proceed.
The wording of the amendment would limit any such right of appeal to staff of the Department of Defence, which would mean that Department would be treated differently. For those reasons I am not in a position to accept the amendment. In response to Deputy Woods's point that there should be an appeals mechanism, I would prefer if the appeals mechanism involved an independent person rather than a politician. When legislation dealing with defence matters is being discussed and possibly amended I would prefer that the question of an appeals mechanism be included at that stage and that the appeal would be to an independent person rather than a politician.
I am not concerned about an independent appeals mechanism, but there must be some appeals mechanism. The Government is excluded as an appeals body and now we are excluding the Minister. Why is the Minister excluded? The Minister represents the people. If the Minister proposes that the appeal should be made to an independent person, that matter may be discussed subsequently, but I do not see the reason for excluding the Minister — in this case we are excluding the Minister and the Government.
The Minister referred to matters of strategy, and that is what Deputy Ó Cuív and I are concerned about. We are talking about the normal operation of the Minister relating to matters of policy and strategy, not day to day involvement in the running of the Department on a good administrative basis. Most of what we are talking about here was done in the Department of Social Welfare, and I do not disagree with that, but I see a problem with the exclusion of the Minister. The Minister agrees there should be an appeals mechanism. I intended the amendment to apply to Departments generally — I made a mistake in including only the Department of Defence. I spoke earlier about the various Departments and it was my intention to include all of them. There must be an appeals system. I do not wish to labour the point, but I do not see why the appeal should not be made to the Minister since the Minister is directly in control of the secretary general. On the other hand, if a satisfactory appeals system is provided for, I will accept that.
I move amendment No. 4:
In page 7, between lines 10 and 11, to insert the following subsection:
"(2) Without prejudice to the generality of subsection (1), the strategy statement of each Department of State and Scheduled Office shall contain details of how the Department of State or Scheduled Office concerned intends to ensure the effective delivery of its services through the medium of Irish to residents of the Gaeltacht and to Irish speakers who live outside the Gaeltacht.".
This amendment is self-explanatory and I hope the Minister accepts it. There is a need for it because, despite the guidelines laid down by the Minister for Arts, Culture and the Gaeltacht, Gaeltacht people find great difficulty in getting services through the medium of Irish. Independent reports have been carried out by Bord na Gaeilge and so on, which show that the delivery of services in the Irish language, which is the first constitutional language, to those who require them is not provided by Government Departments. I ask the Minister to include this necessary subsection to protect the rights of the linguistic minority.
Efforts have been made but there are consistent complaints about the availability of Irish speaking civil servants.
I have sympathy for the case made and do not disagree with the sentiments of the Deputies. The amendment would oblige Departments to include in their strategy statements specific measures on the delivery of services through the medium of Irish to Irish speakers in and outside the Gaeltacht. Strategy statements are intended to be the blueprints under which Departments will operate in the future. It is implicit therefore that due regard will be paid to all obligations, whether arising from statute or from stated Government policies, over a wide range of matters when these statements are being drawn up. These would include topics as diverse as environmental policy, fiscal policy, EU directives, discrimination against, for example, women, minorities and the travelling community, and a variety of other important issues including matters affecting people with disabilities, which will be the subject of the next amendment.
Tomorrow I will announce an initiative under the strategic management initiative on the principles of quality customer service which will be directed towards the dealings of public and Civil Service with their customers and clients. One of the elements of this relates to customer choice. In the document — which will be launched tomorrow — customer choice in terms of customers of the civil and public service specifically includes a reference to those who wish to do business through the Irish language. I will deal specifically with that tomorrow. The document, which has been signed by all Civil Service offices and agencies of the State, states that in their dealings with the public, Civil Service Departments and offices will, under the heading Choice, provide choice where feasible in service delivery, including payment methods, location of contact points, opening hours and delivery times and provide services for those who wish to do business through Irish. I will be dealing with the point raised by the Deputy, with which I empathise, tomorrow rather than through this amendment.
The Minister's reply is unsatisfactory and typical of the way the Irish language is treated. We have plenty of goodwill but no legislative protection. We have not relied on goodwill for protection of the rights of women, the environment and so on, on which there is a huge volume of primary legislation. It is well recognised that goodwill alone does not ensure compliance. Unfortunately, while the Constitution states the Irish language is one of the official languages, it is up to the State in either case to prescribe the use of either language. There is no language legislation. The Minister for Arts, Culture and the Gaeltacht, Deputy Higgins, has singularly failed to provide any legislative protection for Irish speaking people, myself included. Given the absence of alternative legislation to ensure these rights I simply ask the Minister to include a provision in this Bill which would at least ensure that Government Departments, when drawing up their strategy statements, would be legally obliged to address this issue. They are already legally obliged to address issues concerning the environment, women's rights, travellers' rights and so on because there is other primary legislation. I press the Minister strongly to recognise there is a huge deficiency. The Minister recognised in the Dáil recently that his voluntary guideline had failed to deliver the services required. I ask the Minister to take this simple and minor amendment on board. If what the Minister says is true it will not cause any problem because all Departments will include it in their statements.
If I did not realise the Deputy's genuine love of the Irish language and matters Irish I would have said his contribution would make great copy in the local newspaper in coming weeks, particularly as the Minister for Arts, Culture and the Gaeltacht, happens to be a colleague, but I understand the Deputy is genuinely motivated. I will not be able, in an amendment to this legislation, to satisfy his quest for language legislation. I am not in a position to accept this amendment for three reasons, not because I do not agree with much of what the Deputy has said. I am satisfied that implicit adherence to proper principles — which will be laid out tomorrow and published and signed up to by all Government Departments — is adequate and that there is, therefore, no need to provide specifically for the categories proposed by the Deputies as opposed to the other categories I mentioned. In my substantive reply I listed many other categories and minorities, the disabled and others, all of whom are not covered by this legislation explicitly, but implicitly they are all covered.
There is legislation covering them, that is the difference.
The Deputy will accept the question of delivery of services to Irish speakers cuts across more than one Department of State or office, for example, the Department of Education and the Department of Arts, Culture and the Gaeltacht. Section 4 (1) (e) provides specifically "that appropriate arrangements are put into place that will facilitate an effective response" to such cross-cutting matters. Section 5 (1) (b) states that strategy statements must be prepared "in a formal manner in accordance with any directions issued from time to time by the Government". It was intended, in drafting this subsection, that matters such as those raised by the Deputy will be comprehended by any directions or guidelines issued by the Government and complemented by the launch tomorrow of the quality customer service for customers and clients of the Civil Service, which will lay down that in their dealings with the public, Civil Service Departments and offices will provide services for those who wish to do their business through Irish.
I move amendment No. 5:
In page 7, between lines 10 and 11, to insert the following subsection:
"(2) Without prejudice to the generality of subsection (1), the strategy statement of each Department of State and Scheduled Office shall contain details of how the Department of State or Scheduled Office concerned intends to ensure the effective delivery of its services to people with disabilities.".
I have in mind particularly those who are blind, deaf and with other disabilities. I was involved in initiating work in relation to blind people which was much appreciated. For those who are deaf the microcom teleprinter on the phone was sponsored by a number of Departments and semi-State bodies. I think I know what was wrong with amendment No. 3. There should have been a comma after the words "all civil servants". This amendment deals with a similar point but it is in relation to people with disabilities.
The point of this amendment is to oblige Departments to include specific measures in their strategy statements on the delivery of services to people with disabilities. I fully agree with the case made by the Deputy. The Commission on the Status of People with Disabilities issued its report last week. I welcome this report and I believe it provides a sound analysis of the key issues affecting people with disabilities. Among the conclusions of that report were recommendations on the introduction of further legislation to promote equality for people with disabilities in relation to, inter alia, services provided by public bodies. In tandem with the decision to publish the commission's report, the Government approved the establishment of an interdepartmental task force to draw up a plan of action on the rights of people with disabilities based on the report. This task force has been operating since January 1997 and is due to complete the plan of action very shortly. The Government has also authorised the establishment of a monitoring committee to oversee the implementation of the Commission's recommendations comprising former members of the Commission on the Status of People with Disabilities, representatives of the social partners, a nominee from the National Rehabilitation Board, the South Eastern Health Board, the Disability Federation of Ireland, Government Departments and the newly established Irish Council of People with Disabilities.
In addition to the £100,000 provided for in the 1997 Estimates, for the Irish Council of People with Disabilities, a further £200,000 was allocated in this year's budget. This will help to ensure that the council is set up on a proper professional basis which will help advance the interests of people with disabilities at all levels. Moreover, when the equal status legislation comes into effect, for the first time in the history of the State there will be statutory protection against discrimination on grounds of disability.
While I appreciate and share the Deputy's concerns, given the above initiatives I do not consider it necessary or appropriate to take this further step in this Bill. My preference is to deal with the full institutional response to matters impinging on people with disabilities in a specific and detailed purpose-built statute rather than provide a token gesture in a Bill designed for specific purposes. We have learned from past experience that the inclusion in legal instruments, including the Constitution, of essentially aspirational statements has facilitated the avoidance of hard decisions with practical effect.
A key element of the principles of quality customer service which I mentioned earlier is access to services, that is, the importance of securing clean, accessible public offices which ensure privacy, comply with occupational safety standards and specifically facilitate access for people with disabilities.
In addition, the three reservations I expressed about the previous amendment apply in this case. It would be impractical and unwieldy to specifically provide for all matters, such as those relating to people with disabilities, in this item of primary legislation. It would create an imbalance in the Bill if some but not others were included. Second, matters which cut across more than one Department or office are dealt with in section 4(1)(e) which provides that "... appropriate arrangements are put into place that will facilitate an effective response ... "to such cross cutting matters. Third, section 5(1)(b) states that strategy statements must be prepared " ... in a form and manner in accordance with any directions issued from time to time by the Government". Matters affecting people with disabilities as raised by the Deputy will be comprehended by any directions or guidelines issued by the Government.
I wondered if the Minister of State was trying to keep going until Deputy Michael McDowell arrived.
I can do so if it helps.
I move amendment No. 5a:
In page 7, between lines 33 and 34, to insert the following subsection:
"(2) Where a Secretary General or Head of Office pursuant to section 6(1) accounts to a Minister in respect of any matter as provided for, the Minister shall have the power to amend, revoke or vary as he shall see fit any act done by the Secretary General or Head of Office in relation to the said matter.”.
To a large extent this matter has already been discussed under section 4. The intention of the amendment is to make it clear that the Minister is in overall and complete charge. Section 6 states that, subject to section 12, which deals with cross departmental issues: "... the Secretary General of a Department ... shall, in accordance with directions issued from time to time by the Government, be accountable to the Minister of the Government having charge of the Department or Scheduled Office in carrying out the duties or functions referred to in section 4". The Minister of State understands my concerns on this issue. A Minister should have the power provided for in this amendment.
A careful reading of section 7 on directions given by a Minister of the Government will show that the matter is already dealt with in the Bill. Section 7 empowers a Minister to give directions in writing to a Secretary General or head of an office on any of the functions performed by the Secretary General or head of office. This would include any function already performed by the Secretary General. The purpose of the section is to ensure the provisions of the Bill do not restrict Ministers in the directions they may give Secretaries General in the management of Departments or offices. This encompasses the concerns of the Deputy. The amendment is unnecessary as the matter is dealt with in the Bill.
An Leas-Cheann Comhairle
Amendment No. 7 is related to amendment No. 6 and they may be taken together. Is that agreed? Agreed.
I move amendment No. 6:
In page 7, line 36, to delete "in writing.".
The rigidity of section 7 bothers me. It states: "Subject to any other Act but notwithstanding anything in this Act, the Minister of the Government having charge of a Department ... may, in writing, give directions to the Secretary General of the Department ... in connection with the obligations of the Secretary under sections 4 to 6, other than section 4(1)(h)".
Section 4(1)(h) deals with " ... matters pertaining to appointments, performance, discipline and dismissals of staff below the grade of Principal ...". In my experience such matters were dealt with by the Secretary and the Assistant Secretaries and approved by a Minister. I take it this Bill means that will no longer be the case.
That is correct.
I am concerned about this change as the public interest element as represented by the Minister is being removed in the normal operation of the public service. I am not referring to those currently on contract at assistant secretary level who are top class. Notwithstanding this, in future a Secretary General or an assistant secretary might have his or her own agenda and there will be no checks and balances in the system. Amendment No. 7 seeks to delete the words "other than section 4 (1) (h)" from the Bill.
I am not aware of any case where a Minister has interfered. I accept the Minister of State wants to ensure Secretaries General will have latitude but this is a fundamental change about which I am concerned. Staff will work almost exclusively to the Secretary General in these matters. This means in effect that they will serve the Secretary General, not the Minister. Civil servants have always seen themselves as serving the State and the Minister. From their point of view, the Minister acted as a balance and they were assured that he or she would be on the same wavelength. Ministers are being divested of this power. Their position is, therefore, being weakened and undermined.
I wish I had more time to deal with some of the more interesting and amusing amendments in my name. They seek to make special provision in section 11 for the Minister for Social Welfare, Deputy De Rossa, and the Minister of State, Deputy Rabbitte — one could describe it as the Pat Rabbitte provision. It is suggested that a Minister of State who regularly attends meetings of Government should have two special advisers. The Minister for Social Welfare, Deputy De Rossa, can have as many as he likes to enhance his status and position as leader of a political party.
I am sorry I do not have time to discuss these issues but I have highlighted the areas about which I am genuinely concerned. I would like to see delegation in the public service. I am concerned that the position of Ministers is being undermined in this legislation.
An Leas-Cheann Comhairle
As it is now 2.15 p.m., I am required to put the following question in accordance with the order of the Dáil of this day: "That the sections undisposed of, the Schedule and the Title are hereby agreed to in Committee; the Bill is accordingly reported to the House without amendment; Fourth Stage is hereby completed and the Bill is hereby passed."
Although I have expressed reservations and concerns, I am very much in favour of the overall objectives of the Bill.
I thank the Deputy for his co-operation and all the officials involved in preparing this difficult legislation in the Department and both Houses.