Seanad Éireann díospóireacht -
Thursday, 26 Feb 2004

Vol. 175 No. 15

Public Service Superannuation (Miscellaneous Provisions) Bill 2004: Committee Stage (Resumed).

SECTION 2.

Mr. O’Toole

I move amendment No. 6:

In page 9, between lines 42 and 43, to insert the following new subsection:

"(6) Where before 1 April 2004 a person had been employed in the public service for a period of not less than 15 years, then that person shall not be treated as a new entrant if he or she resumes his or her office or position, or takes up another office or position within the public service on or after 1 April 2004.".

This is a simple proposal. It is important to create a sense of flexibility and movement within the public service. If we are to introduce this legislation, on which I am not too keen, at least we should not make it less likely that people will take time out to do something else such as becoming involved in the private sector, in the economy, pursuing a business idea and so on. I have argued this before and will not therefore go into great detail. The Minister seems to have set his mind against the idea. All I am saying is that what I am proposing is completely in line with Government policy and with the often stated position of Ministers and others on the importance of people from the public sector gaining experience in the private sector. They should be able to do that without being disadvantaged in terms of their current circumstances. It is an open and shut case. I presume it will be kicked out, like all the other good ideas I have had this morning.

Mr. McDowell

This is a very important amendment. What is being done in the Bill contrasts with Government and ministerial policy as stated over a number of years. Under the strategic management initiative, the Government has always said that it liked the idea of people taking a few years out to go into the private sector and coming back to the public sector. I can think of a whole range of professional jobs within the public sector where people get a certain experience and want to go away, sometimes to make money, sometimes to gain greater experience which will ultimately be of benefit to the public service if they choose to come back. We should be actively creating opportunities and encouraging people to take five or six years out because it is of benefit not just to the individual but to the public service.

I wonder how a provision such as this, which is a clear disincentive to people to take a few years out, sits with all the rhetoric we have heard from the Minister for Finance over the years about cross-stream mobility and the sharing of experience and so on. I do not see that the two sit together.

Dr. Mansergh

I agree. There is much sense in this amendment. If there is any flaw it is perhaps that it refers to an almost unlimited break, which raises the question of whether that is desirable. If the break is a relatively short one of a year or up to four years, there is much prima facie sense in the amendment. I look forward to the Minister of State’s reply.

Minister of State at the Department of Education and Science (Mr. B. Lenihan)

This is a discussion about the chasm between a defined right, entitlement or status as a member of the public service, whether on paid or unpaid leave, and a mere expectation that having relinquished and resigned from that position, one should have a special recognised legislative right to be treated unlike anybody else by virtue simply of the fact that one had served 15 years in the public service. There are lateral mobility schemes within the public service and various arrangements to encourage the many desirable personnel schemes which the Minister extols.

This amendment provides that a former public servant who has had at least 15 years service should not be treated as a new entrant upon rejoining the Civil Service. The whole purpose of the legislation in providing for a new entrant is to provide for a revised pension arrangement for public servants in the light of the Pensions Commission report.

A person who has at least 15 years service in the public service already has accrued to himself or herself a preserved pension and that is not affected by this legislation in any way. By virtue of his or her departure from the public service, they re-enter the public service in that contingency as a new entrant and acquire a pension in that context. There is a fundamental distinction between the status of a person who has a continued employment relationship and a person who has severed the employment relationship.

The amendment proposed by the Senator would have the effect that any former public servant who had at least 15 years prior service could rejoin the public service at any time after 31 March 2004 without being treated as a new entrant, regardless of the length of time between the ending of their former service and commencement of their new period of service. For those reasons I cannot accept the amendment.

Mr. O’Toole

What would be wrong with that arrangement? My proposal supports Government policy, yet all I hear from the Department of Finance is talk of a chasm. It is not a chasm. A chasm brings it down to some kind of Hell. I will not waste the time of the House. I have made my case, I am proudly on the record of the House. The answer given by the Department of Finance is the reason why that Department always seems to come in the way of any kind of creative approach to the economy, policy and so on. I rest my case and withdraw the amendment.

Dr. Mansergh

That is a bit hard.

Mr. Fitzgerald

There is far more logic in supporting this case than there was in previous cases. I urge the Minister of State to examine the matter for Report Stage.

Amendment, by leave, withdrawn.

Sitting suspended at 1.05 p.m. and resumed at 2 p.m.

Question proposed: "That section 2 stand part of the Bill."

Mr. McDowell

There are a number of technical matters in section 2 that should be clarified by the Minister of State. Section 2(4)(II), discussed earlier, deals with people returning to the public service after a break. It states: "where paragraph (a) applies, the terms of the offer of appointment would be contravened if subsection (1) were to apply.” This suggests that a specific contract which sets out the terms of employment needs to be in place. I am not sure to what extent that is normally the case within the Civil Service or the public service. I am also not sure that employees are told their pension arrangements in black and white terms. There seems to be a requirement that there should be such an expectation and those terms should be clear from the start if someone is to benefit from that.

Subsection (6) concerns a public employee who returns to the public service after a break. The Bill proposes that if someone leaves the Civil Service after 1 April 2004, yet returns later, they are deemed to be a new entrant. It is not clear how this relates to subsection (5), which deals with Oireachtas Members. I understand the Minister's intention is that Oireachtas Members elected before 1 April 2004 are not caught by this. Oireachtas Members not re-elected at the next election but elected at a subsequent one would still be saved by virtue of the fact they were here before 1 April 2004, thereby qualifying for early payment of pension. From the way subsection (6) is phrased, it is not clear that Oireachtas Members are excluded from it. Subsection (6) sets out the general provision that if one departs from the Civil Service and returns, then one is deemed a new entrant.

What does the Minister of State understand the word "seconded" to mean? The Bill provides for where a person on 31 March 2004 stands seconded from the public service to a body. Does that require a specific agreement in writing and that the secondment be clearly set out? There is no definition of "seconded" in the Bill and the argument could arise of what is meant by a secondment as distinct from, say, a career break. Does it require that all the terms of departure from one body and the terms of employment in another should be agreed in advance, including the return date to the original body? Are more flexible arrangements also covered by it?

Mr. B. Lenihan

Subsection (5) deals with the Members of the Houses of the Oireachtas or the European Parliament and holders of qualifying office. A person is not deemed a new entrant once the person was a Member of either House or the European Parliament or the holder of a qualifying office before 1 April 2004. Even if they lose their seat or are appointed a Minister subsequently, they are not captured by the general provision of the Bill, which is reflected in subsection (6) and does not affect the specific terms of subsection (5).

Mr. McDowell

That is not clear from the way the subsections are drafted. I appreciate that is the intention but subsection (6) deals with public servants and the public service includes Oireachtas Members.

Mr. B. Lenihan

The category of a public servant is much wider in the legislation than the category of Members of the Houses of the Oireachtas, the European Parliament or holders of qualifying office. The very specific reference to them creates the break that allows them to continue to function as not new entrants for future purposes. That is my understanding of these sections.

The Senator also mentioned the secondment arrangements. Current and former Oireachtas Members if re-elected will not be new entrants. For example, in the unlikely event that Senator O'Toole were to lose his seat in the National University of Ireland panel as a result of the reform of the Seanad he could still then contest the following general election and become a Deputy.

Mr. O’Toole

Let us hope that we are not driven by self-interest. Let us look at the people who are disadvantaged by it.

Mr. B. Lenihan

Precisely. Secondment usually means that one's employer continues to pay one but there exists also the concept of unpaid secondment or leave. It usually relates to continuity of payment by the main employer and usually there is a written agreement between the bodies when there is a secondment. Sometimes it can be used to cover unpaid leave where, for administrative reasons, a person moves to the payroll of another party. That is the understanding. It is a matter of custom and practice within employment. It is not necessarily a designated form like a legal deed. It can be gleaned from correspondence exchanged between the parties and from statements made.

Mr. McDowell

I am happy to accept that. The Minister of State did not deal with my first point, probably because I did not put it very clearly. I have had an opportunity to look at it again.

Mr. B. Lenihan

Section 2(4)(II) refers to the definition of a new entrant. The transitional provisions are referred to in section 2(4). Section 2(4)(b) refers to a person serving in a public service body. It states:

[Where] a person was serving in a public body or a body to which Schedule I relates prior to 31 March 2004 and left such an office or position and took up appointment as a public servant on or after 1 April 2004——

(i) under the same contract of employment, or

(ii) no later than 26 weeks following the last day of service prior to 31 March 2004.

That is the primary provision. I apologise, I am discussing the wrong paragraph.

Mr. McDowell

I did not express myself clearly. Perhaps I could try again. The relevant parts are set out in section 2(4)(a). It states: “[Where] a person duly receives a written offer of appointment as a public servant before 1 April and takes up that offer after that date,”. Section 2(4)(II), which can be read in conjunction with this, states: “where paragraph (a) applies, the terms of the offer of appointment would be contravened if subsection (1) were to apply,”. It requires that the terms of the offer would be contravened before the saver was to apply. I am not clear what is meant by “the terms of the offer of appointment”.

Mr. B. Lenihan

This is to clarify that the offer of appointment is a binding offer.

Mr. O’Toole

Section 2(6)(a) refers to the “same contract of employment”. What exactly does the word “same” mean here? Does it mean similar?

Mr. B. Lenihan

The purpose of this is to provide for seasonal workers who are called back each year, for example, temporary clerical staff who are employed seasonally at the passport office. While they may receive a new contract each year their rights and entitlements accrue from year to year so it is, in effect, the same contract of employment. It is to ensure there is no break in this provision.

Mr. O’Toole

Does this apply to part-time workers who work for a certain number of months each year? When they come back into employment after being away for a year they are employed under the same terms of contract. It is not the same contract.

Mr. B. Lenihan

They are not new entrants.

Mr. O’Toole

I know what the Minister of State is saying. It is much more complex than that. We are talking about a contract whereby somebody takes up employment in the Passport Office for example, for three months and returns the following year. Does that person's initial contract identify, relate to and cover the fact that he or she will be employed for three months each year?

Mr. B. Lenihan

Those people are on panels.

Mr. O’Toole

This is a flaw in the Bill. I have no objection to this but I am trying to establish how it might relate to other factors.

Mr. McDowell

It does not get any easier.

Mr. O’Toole

The Minister of State is well down the chasm and he is swaying in the breeze on this aspect. This is a good idea but I assume the Minister of State recognises that it will have wider application, that the people who have come back into the identical terms and contract of employment they held when they left would also be covered by that section.

Mr. McDowell

If not why not?

Mr. O’Toole

Exactly.

Mr. B. Lenihan

In the public service there are many instances of persons who are on panels for relief work and so forth, or work in the passport office. They have accrued employment rights, must be given first refusal each year, are entitled to incremental credit and seniority claims and they are pensionable. There is a category of staff within the branches of the public service of this type and references are made to this concept of the same contract of employment, not only in the section to which the Senator referred but also in the earlier provision in section 2(4)(b)(i). The purpose of it is to protect that particular group. It is a distinct category.

Mr. O’Toole

I accept that and have no argument with it. I know what the Minister of State has in mind but I want to know what it means. I am clear that it has a much wider application than he has just outlined. I am sure what he said is right and I have no objection to it. However, the term "the same contract of employment" is used twice in the Bill. The public service regularly has a contract of employment, a pro forma contract for any employees in whatever the job happens to be. That is the basis on which they are employed. People might leave and return under precisely the same contract as they had when they left. That is fair enough. The Minister of State can tell me whether I am wrong. I am reading the phrase and giving an explanation of it to establish the fact.

The Minister of State has in mind people in seasonal employment but what if someone decided that he or she had first refusal, in the Minister of State's words? If, for example, I work in the passport office for three months of this year and I have first refusal for the next three years but do not take it up for the first two years, I can return in the third year under the same conditions of employment and am still covered. That is fair enough. The Minister of State must recognise this has application and implications well beyond that. There are analogous cases in many different places. I presume that those who leave employment with the intention of coming back, who are not seconded and not on career breaks, and who return would be protected under the terms of this section and would not be regarded as new entrants.

Mr. B. Lenihan

This does not apply to a person who has resigned from the service. It applies to a circumstance where there is an established custom and practice concerning the person who happens not to be at work on the operative date, but has a right to take up employment there. Someone who resigns from the public service does not have a right to return to the service.

Mr. O’Toole

Where are the details in writing about an established custom or practice?

Mr. B. Lenihan

They are not employed under a contract. We are back to our chasm.

Mr. O’Toole

The Minister is in the chasm. Is this a flaw in the Bill or a very good part of it?

Mr. B. Lenihan

Unfortunately it is neither. Someone who resigns from the public service does not have a right to return to the public service.

Mr. O’Toole

Absolutely.

Mr. B. Lenihan

There was legislation providing for such rights for those who were disadvantaged by the marriage bar.

Mr. O’Toole

As the Minister said, we do not mention rights here, as we do not want to get stuck in the chasm between rights, duties and responsibilities. However, people will return.

Mr. B. Lenihan

I admire the Senator's industry in constructing this Trojan horse. However, I can assure him that when a person resigns from the public service, a resignation has occurred. This section does not apply to resigned civil servants.

Dr. Mansergh

At this point, it may be time to hear from somebody who resigned from the public service about 23 years ago.

Mr. McDowell

Was the Senator not a public servant all along?

Dr. Mansergh

In one sense it was final. Having entered by way of competition, I could not re-enter in the same way. However, some months later I was appointed as a political adviser, which was somewhat different. I am not sure whether that is constituted as a new entrant under the terms of the legislation. Another case bothers me somewhat. People, who did not resign voluntarily but were forced to resign under the marriage bar, which I believe was only lifted in 1974, are still returning to the public service. There is a special scheme for those women to return to the public service. Do they come back as new entrants?

Mr. McDowell

When I broached the issue of nurses earlier in the debate, the Acting Chairman felt I was out of order. It could be usefully explored in this context. It is common practice, particularly outside Dublin, for nurses who no longer work full time to be on a panel, which makes them available for work whenever a hospital or health institution requires them. I am not clear whether these people are deemed to have resigned and foregone all rights or whether they would be covered by the Bill and treated in the same way as workers in the Passport Office. These nurses seem to be in regular work for the State as health workers and presumably are recipients of benefits from the State when they are working.

Mr. O’Toole

I apologise for cutting across the Senator's point. If people who were in the Passport Office for three months during the peak period last summer were to return this year, would they not be considered to be new entrants?

Mr. B. Lenihan

If they are on the panel.

Mr. J. Walsh

This is the most interesting section in the Bill. In the recent past we have heard much about the benefits of benchmarking, particularly from the Senators present. I subscribe fully to the notion that those in the public service who do good work should not be disadvantaged when compared to the private sector. However, benchmarking must be applied to all aspects of the terms and conditions of employment and not just to salary, which may be what some people had in mind. A person leaving employment in the private sector whose employment is broken loses all benefits subsequently.

Mr. O’Toole

If the Senator were in the Chair, he would rule himself out of order.

Mr. J. Walsh

Senator O'Toole is trying to dominate this debate and he is coming from a particular viewpoint because of his previous employment. In this instance the commencement date in respect of any new benefits for those who return after having left the public service or private sector employment is the date of re-employment. There should be no beneficial arrangements attaching to the public service as against the private sector. Ultimately those in the private sector pay all the wages and salaries of those of us in the public service. Having accepted the principle of benchmarking, this must apply across the board, including in this instance to those who sever their employment. Earlier in the debate the Minister made it clear that those on leave of absence who return subsequently do not lose the benefits accrued. We need a clear distinction between these people and those who leave the employment of the public service.

Those who start a career and pursue a particular path by way of education should not find the rules have changed from the time they started. The composition of the Houses of the Oireachtas is such that there are significant advocates for particular professions here. However, this should not confer any benefits on those pursuing such professions. There is an onus on us to ensure impartiality so that nurses, teachers, cadets and trainee gardaí are treated no differently. I have strong reservations about the legislation making exceptions: it should not do that. It would be far more equitable to look at the starting date. People with an expectation at this stage could be accommodated by changing the starting date from 1 April 2004. This would be a much fairer approach than singling out specific professions and excluding others simply because there are stronger advocates here for those professions than for other professions.

Mr. McDowell

I cannot allow that comment to go without some sort of rebuttal. The State has a dual role. We must consider this matter from the point of view of the employers. This proposal would unilaterally change the terms of employment for future employees. As the employer of civil servants, the State must ensure that the Civil Service continues to provide the best possible service and that those employed, sometimes for 30 or 40 years, have terms of service over which we are willing to stand.

Under the terms of the Strategic Management Initiative, there has been much discussion in recent years about lifetime balance. I believe there are advertisements on the radio as we speak about lifetime balance, which is clearly geared at introducing greater flexibility by allowing people to take career breaks, for example to look after their children for ten years and then return. The argument being made from this side is that all of that would be set at nought if we introduce a serious disincentive for people to leave the service and subsequently return. This would be the result of insisting they would have to remain at work for five or ten years after they would have chosen to leave.

It is not unreasonable for us to point out a clear inconsistency in Government policy. Benchmarking was originally proposed to find a way to prevent the leakage from the Civil Service we have seen in recent years. It was acknowledged that public servants had fallen behind in terms of their remuneration and conditions of employment. There was a recognition that we needed to re-balance. That is what benchmarking was all about. However, we are now throwing into the mix a disincentive for people who want more flexible working arrangements. It is reasonable for those on this side of the House to make the point that the disincentive should not be there.

Mr. B. Lenihan

Senator O'Toole made a point about contracts. A person does not have the same contract if he or she resigns. The same contract applies to a person in seasonal or part-time employment who still has a continuity of entitlement within the public service. That is what these subsections are trying to protect. The chasm to which I referred is that between a person with this entitlement and a person who has resigned or intends to enter the public service. That person is the one with the expectation. The whole Bill is pivoted on that distinction.

Senator Mansergh raised the interesting question of the marriage bar which operated until 1973. At the time of the removal of the bar, legislation was enacted to give priority to people who had been disadvantaged as a result of the bar in regaining access to the Civil Service. That was worthy legislation, but unfortunately the European Commission took a different view and required Ireland to repeal it on the basis that it amounted to discrimination in our entrance requirements for the public service. From time to time the Civil Service commissioners have conducted special examinations for that group on an informal basis, but the formal statutory basis has disappeared since 1996. It therefore follows that after the enactment of this legislation, a person who decides to return to the public service having served and been disqualified by the marriage bar — there will be fewer such people in the future — will be considered a new entrant for the purpose of this legislation. If the person spent a long enough time in the Civil Service before her marriage, which is unfortunately not often the case, she might have preserved a pension right.

Senator McDowell raised the question of nursing. Again, this is a matter of basic labour employment law contracts. The health boards engage nurses on various terms and conditions. If the nurse is in service and remains in service in respect of when he or she is called, he or she has a legal entitlement to be considered by the health board. That is clearly a relationship of continuing employment. If he or she has resigned — if a termination of the relationship is clear upon analysis of the relevant documents — the nurse in question becomes a new entrant on returning to work at that hospital. Senator Walsh made an interesting case about the date of commencement of the whole operation. The Minister has fixed on 1 April as the commencement date, as announced in his budget speech. That is his stated position.

Mr. O’Toole

The Minister has not given a clear answer on certain matters. Let us once again use the example of the staff employed seasonally in the Passport Office. Despite what was said by Senator Walsh, I have no objection to these people being looked after. It is quite right that they should be. I am simply trying to understand the implications. It was the Minister who mentioned them as an example. I have no problem with that; it is a good idea. The Minister did not answer my question about those who were there last summer. Is it the case that they are not new entrants?

Mr. B. Lenihan

They are not new entrants if they have an entitlement to be considered as part of a panel. Panels are constituted in a certain way: a person on the panel has a right to be sent for prior to the engagement of a person not on the panel.

Mr. O’Toole

Are they currently under contract if they are not in the office at the moment?

Mr. B. Lenihan

The Senator uses the phrase "under contract" but, as he must be aware from his extensive experience in industrial relations, not every employment relationship has a definite deed in a box with a label saying "Contract." These matters are often dealt with via circulars or correspondence. There is not always a binding document with a signature at the bottom. I am not aware of the particulars of the situation in the Passport Office. As a matter of law, the personnel side of the Department of Finance takes the view that there are rights, and there is an employment relationship, within the category of those employed in the Passport Office. There are people on panels who have a right to pre-empt——

Mr. O’Toole

I have no problem whatever with that.

Mr. B. Lenihan

Once that relationship is not terminated, the person cannot be a new entrant. If someone wrote to the Department of Foreign Affairs saying he no longer wished to be on the panel for employment in the Passport Office, the relationship would be terminated. The person would have terminated his entitlements.

Mr. O’Toole

I understand all that.

Mr. B. Lenihan

Were that person then to re-seek employment in the Passport Office he would be a new entrant.

Mr. O’Toole

All those things are quite in order; that is not the issue. The Minister said not five minutes ago that a person re-entering the public service would not have the same contract. This prompted me to ask whether the person returning to employment would have a different contract. If it is the same contract, is the person still under contract? I do not know what goes on in the Passport Office either; I referred to it because it is the example the Minister gave. The Minister said that because these people were employed in the Passport Office last year they will not be considered new entrants if they come back. Are they under contract at the moment or will they return under a new contract? To use the Minister's own words, he has been dealing with the law long enough to know there does not have to be a piece of paper in a box marked "Contracts." The contract need not even be signed, or even implied. It can be a real contract without being written or signed. Is there a contract?

Mr. B. Lenihan

This is a very technical point. Of course there may be a new contract dealing with the actual payment of wages and the implied terms of the relationship, but there is a wider relationship, with legal consequences, which is acknowledged by the Department in that context. It is a labour law contract relationship. The employment relationship which entitles a person to be considered for return is sufficient in the view of the Department to constitute a legal obligation and therefore an ongoing employment relationship for the purposes of the operation of this section. That is the key. Once a person resigns, as I said a few moments ago——

Mr. McDowell

The Minister of State is wasted in this job.

Mr. O’Toole

I do not believe what the Minister is saying. He is making it up as he goes along. It makes no sense at all. I do not think he is deliberately deceiving, simply trying to make the best of it. However, if this applies to the people the Minister is talking about, with all his lovely phrases such as continuation of expectation — he is a credit to his father — why does it come into effect on 1 April 2004? We are talking about people, by the Minister's own example, who were employed last year but will not be employed on 1 April 2004. We have not seen them since. They will come back in six months. The Minister is telling us they are covered. There are two things wrong with this. First, they are not coming back to the same employment. Second, they were not public servants on or after 1 April 2004. It is all over the place.

Dr. Mansergh

The Minister's reply on the matter of the marriage bar raises an interesting, if largely theoretical, question. A person who comes back into the public service through a special scheme and resumes employment after 30 years will, unlike his or her contemporaries, have the right to go on serving past the age of 65. We might have a small early crop, not in 40 years but in five or ten years, of people able to continue working beyond the age of 65 simply because they have come back into the Civil Service as new entrants. There is nothing wrong with that because if they have been out for 30 years, many of them will wish to catch up on lost time and there is nothing inequitable about them being able to serve a little longer. People who come back into the workforce in that fashion are in no hurry to retire from active employment again.

Another aspect of this intrigues me. There is a special category of public service employee, not always highly regarded, called special advisers. There is a large number of them and they are reasonably well institutionalised at this stage. The Governments they serve go into Opposition from time to time and an adviser can have a contract of employment which is, for all practical purposes, identical after a period of, for example, two and a half years, such as between 1994 and 1997. My clear impression is that the pension contributions in the periods when one is a special adviser are accumulated to calculate the pension. Obviously, the Civil Service equivalent rank one ends up with is relevant, as well as the number of years one serves. The different periods are accumulated even though there might be a discontinuity of service. If an adviser has been serving for five or ten years and this is followed by a gap of two years, I do not know if he or she is a new entrant on their return. It is a point for consideration.

Mr. B. Lenihan

A famous jurist once pointed out that most confusions about law derive from the confusion of the physical and the legal. Legal concepts are distinct from physical concepts and they are crystal clear. Senator O'Toole should not fasten his mind on the physical body in the Passport Office.

Mr. O’Toole

I hope nobody is listening to this.

Mr. B. Lenihan

He should focus on the employment relationship. If he focuses on the terms of the legislation we are considering, he will notice that the phrase "under the same contract of employment" in both contexts is linked with the concept of "last day of service" in the next sentence. If there is a day of service and a person happened not to be in the building during a defined period of time, there is a difficulty. It was to address that difficulty that the concept of the same contract of employment was introduced by the Parliamentary Counsel. Those who are in the custom and practice of working for a regular period each year in a defined branch of the public service have their rights protected and are not deemed to be new entrants.

Senator Mansergh posed a question about political advisers. They are civil servants of the Government attached to Departments in unestablished positions. They have somewhat different pension arrangements but there is nothing in the Bill to detract from the rule that henceforth they will be new entrants. That is clear. No special provision has been made for that category. Once again, the political class appears to be paying homage to the necessity for the enactment of this legislation.

Mr. O’Toole

We have established there is a chasm on this and we cannot take it any further. We are left with the words "under the same contract of employment" so we will have to go to another place, which is not in this building, to sort out what is meant. Undoubtedly, somebody in the Minister of State's profession will make a great deal of money from that.

Question put and agreed to.

SECTION 3.

Question proposed: "That section 3 stand part of the Bill."

Mr. McDowell

I wish to raise a point which is a little less arcane than some of the points we discussed earlier. This section gives a facility to people to remain at work beyond the age of 65 years if they choose to do so. It is not clear that this is exactly the case but that is how I read it. However, it then restricts that facility to new entrants. It does not apply to anybody who is currently in the Civil Service.

We accept the principle that one does not unilaterally change people's terms of employment to their disadvantage. However, this facility is being offered to new entrants and it seems reasonable that it should be offered to existing workers in the public service, many of whom might like to continue working beyond the age of 65 years. There is no logic in saying that people who are currently working in the public service and Civil Service who wish to stay working beyond the age of 65 may not do so simply because of the date on which they were first employed but that people employed after 1 April next can do so. I urge the Minister to give serious thought to extending this facility to existing public servants.

Dr. Mansergh

That could be something for the next social partnership negotiations.

Mr. O’Toole

I support the Senator's point. These are the issues which show the weaknesses in the recommendations of the Commission on Public Service Pensions. It refused to take a creative approach to creating a stage between full-time employment and full-time retirement. The issue raised by Senator McDowell is another issue that should be dealt with. There is no reason that people should not have certain options. However, it raises new problems. At some stage somebody will have to tell an employee who wishes to remain working that he or she is not up to the job for some physical reason. Nevertheless, these problems can be dealt with. We should be seeking flexibility. The reason I first raised this issue 20 years ago was to try to create a grey area between full-time work and full-time retirement. That would save more money than the €300 million in today's terms which this legislation is expected to save.

Mr. J. Walsh

I agree with the views expressed by Senator McDowell and Senator O'Toole. There is no good reason for discriminating between current and new civil servants in this regard. As Senator O'Toole correctly pointed out, the capacity of the individual to continue to do the job effectively should be the criterion applied, perhaps on an annual basis, beyond the age of 65 years.

However, I recall a time when the country's economic fortunes were not as good as they have been in the past decade and we were encouraging people to retire early to generate job opportunities for young people. Hopefully, the economy will continue as it is but if that problem were to emerge in the future, it would be a sensible mechanism to use. I concur with what has been said subject to the caveat that if economic circumstances in the future indicate that it would be a more pragmatic and beneficial policy to implement a compulsory retirement age of 65, the Government would have the discretion to reintroduce it.

Mr. B. Lenihan

Senator Walsh used the word "discrimination". The Bill is, in a sense, an act of discrimination because it discriminates or distinguishes between the present and future corps of public servants. This variation of status with regard to extension of service, which is voluntary, is seen as part of the overall set of measures which applies to new entrants. The option has not been created for existing employees. Of course, the Minister is open to examining the creation of that facility for existing public servants and there have been some tentative discussions with the unions about it. However, if we were to take that road there would be problems such as blocked promotional opportunities. It is possible to state a clear rule in this legislation for the future Civil Service and public service. I accept that it devalues somewhat the immediate practical import of this provision because it will not come into operation for a substantial period. However, the Minister is receptive in another context to an approach in this regard.

Mr. O’Toole

He could try it with decentralisation and tell people who go to Roscrea that they can work until they are 70 years old.

Dr. Mansergh

That is a good idea.

Mr. Browne

The Minister referred to current public and civil servants. There are also retired public servants who are willing to return to their profession. The Minister for Transport spoke in the Seanad about creating a dedicated Garda traffic corps composed of retired gardaí. How would they be affected? I am aware retired people may earn a certain amount of income without an effect on their pension. Has the Department any thoughts on that issue? When the Bill is passed, how will previous public servants be treated if they wish to return to work in the public service?

Mr. B. Lenihan

In the case of a retired member of the Garda, he or she would be a new entrant on taking up a new position after retirement. That would be a new position and not an extension of an existing position.

Mr. Browne

There is a huge shortage of teachers in the teaching profession and many unqualified teachers have positions in schools. Some teachers who retire on age grounds would love to return to the profession and continue teaching, although this might be the exception rather than the rule. When this Bill is passed, how in light of the shortage would a teacher who retired at 60 or 65, who now wanted to return to teaching, be affected?

Mr. B. Lenihan

They are not affected by the legislation in any sense. If a teacher wishes to stay on, that can be arranged but the teacher does not draw a pension. However, if a different public sector position is sought and obtained, then the teacher could draw the pension and engage in the other position. I do not quite see how this matter arises on this Bill.

Mr. Browne

I am wondering and thinking of the context when the Bill is passed. Take for example a teacher who retired last month because he or she was 65 years of age. When the Bill is passed, it will remove the cap on the maximum age for retirement. If that teacher decides next September that he or she wants to return to teaching, he or she is still entitled to the pension because of having worked the required number of years. It would be somewhat unusual if the person returned to the profession as a new entrant.

Dr. Mansergh

We must be clear in passing this legislation that we are adopting, in some instances, a highly artificial definition of a new entrant into the public service. I will give a specific example and feel the person concerned would not mind because it is objective fact. This person served in the Department of the Environment for 30 or 40 years and became Secretary General of that Department. The person retired and a year or two later and became director of the National Library. To refer to that sort of person as a new entrant in the public service stretches language. I accept this language is purely for the purposes of this Act. However, not a soul on the streets would regard such a person as a new entrant to the public service.

Mr. B. Lenihan

Serving public servants who were obliged to retire at 65 years of age could compete again for public service posts provided they wait for 26 weeks after retirement. Then they would be new entrants under the Bill and would have no retirement age. That is the practical answer to the queries posed.

Dr. Mansergh

It is an artificial definition.

Mr. B. Lenihan

It is but it is the practical answer.

Question put and agreed to.

SECTION 4.

Question proposed: "That section 4 stand part of the Bill."

Mr. McDowell

I would like clarification on a point which relates to drafting as much as to anything else. Can the Minister of State clarify whether, subject to what is in the section, it is the option of the individual garda whether he or she chooses to retire at 55 years of age or stay on for a continued period? It appears from the way it is drafted that it would be open to the commissioner, superintendent or local employer to require a particular garda to stay on, subject to the person being able to work, until he or she was 60 years of age. I assume the intention is to give the choice to the individual garda as to whether to stay working.

Mr. B. Lenihan

The intention is to allow the garda to make an election at the age of 55. The important proviso is that although the garda can elect to continue working up to the age of 60, this is subject to the powers of the commissioner. The commissioner must be satisfied that the member is fully competent, available and capable of undertaking the relevant duties.

Mr. McDowell

The legislation does not make it crystal clear that a garda may choose to leave at 55 years of age. As written, the legislation would allow the commissioner to require the member to continue until he or she was 60.

Mr. B. Lenihan

That is not our understanding.

Mr. McDowell

It is not clear that the option is the garda's and not the commissioner's.

Dr. Mansergh

This is not a question of amending the Bill but a matter of justice. I have some reservations. Some extremely fit and capable middle ranking and senior gardaí must retire at the age of 60. In the interest of the public they should not necessarily have to do so. The question of fitness is a priority and an important criterion. However, I question the assumption that if one is a garda, one is not fit to do the job after the age of 60. While many gardaí are happy to retire at that stage, others would be fit and capable to work on if they chose and would give great public service. The point of the Bill in general is that 60 years is much too early a retirement age for most people, subject to the fitness criterion.

Question put and agreed to.

SECTION 5.

An Cathaoirleach

Amendments Nos. 7 and 8 are related and will be taken together by agreement. Is that agreed? Agreed.

Government amendment No. 7:

In page 11, to delete lines 1 to 5 and substitute the following:

"(i) is covered by—

(I) the report of Departmental Council, Department of Justice, known as the Agreed Report No. 8/1983 which was signed on behalf of the Staff Side on 21 September 1983 and on behalf of the Official Side on 3 October 1983, or

(II) the report known as the Civil Service Conciliation and Arbitration (Higher) Scheme Conciliation Council Report 1/88 which was adopted on behalf of the Staff Side and on behalf of the Official Side on 16 February 1988,

and".

Mr. B. Lenihan

This relates to the arrangements for prison officers. The pension arrangements for prison governors were the subject of a separate agreement under the conciliation and arbitration scheme. The amendments proposed are to make specific reference to that agreement and to formally designate prison governors for the purposes of the 1919 Act. These amendments are to ensure that the pension position of current serving governors is safeguarded.

Dr. Mansergh

This reinforces the point I made. It confirms a provision that prison officers can serve until the age of 65. It appears the requirements in fitness terms for a prison officer are roughly the same as those for a garda. I am not sure why the retirement age for prison officers is 65 and for gardaí is 60. This is a justice matter rather than a matter for this Bill.

Mr. B. Lenihan

Notwithstanding the drafting of a particular section, the relevant age is 60 for prison officers and governors.

Dr. Mansergh

Is that despite the 65 years mentioned in the Bill?

Mr. B. Lenihan

Yes, 60 shall be substituted for 65.

Amendment agreed to.

Government amendment No. 8:

In page 11, between lines 17 and 18, to insert the following new subsection:

"(2) The Superannuation Acts 1834 to 1963 shall have effect in respect of the class of officers who are prison governors, subject to the Superannuation (Prison Officers) Act 1919 as if, with effect from 16 February 1988, that class of officers had been prescribed under and for the purposes of section 1(1) (as adapted by the Superannuation (Prison Officers) Act 1919, Adaptation Order 1933 (S.R. & O. No. 71 of 1933)) of the Superannuation (Prison Officer) Act "1919.".

Amendment agreed to.

Section 5, as amended, agreed to.

SECTION 6.

Question proposed: "That section 6 stand part of the Bill."

Mr. O’Toole

With regard to people working in the fire service there is reference in the recommendations of the Public Service Pensions Commission to a specified fire brigade employee who is a new entrant. This recommendation was age specific because parts of that work were more physically demanding than others. Certain jobs in the management area were not considered the same. There was a list of those jobs but I cannot recall where I saw it. Should it not be attached somewhere to this Bill as a schedule?

Mr. B. Lenihan

It is the legislative intention to reflect that distinction. I understand it is defined in the interpretation section of the Bill.

Question put and agreed to.

Section 7 agreed to.

SECTION 8.

Question proposed: "That section 8 stand part of the Bill."

Mr. McDowell

Where do we stand with this section? In effect this is an enabling section in so far as it enables the Minister for Defence to produce a scheme for the PDF. I am not sure that this has already been published or agreed with the representative bodies within the PDF. Despite this, will the Minister give us the benefit of his notes and let us know the situation?

Mr. B. Lenihan

It is still under discussion. This Bill will have a big impact on military pension arrangements. For example, the current retirement age is 40 but this is being raised under this legislation. The purpose of this section is to enable the Minister for Defence, with the agreement of the Minister for Finance, to make a scheme for the purpose of granting superannuation benefits to new entrant members and todetermine their pension terms from 1 April 2004.

This is a standard enabling provision. The pensions commission recommended a minimum age of 50 for Permanent Defence Force personnel in the design of a new pension scheme for new entrants. Existing pension arrangements relate to length of service rather than age and they do not include the concept of a minimum pension age, so there will be changes, but, again, the scheme has yet to be finalised by the Minister. He is drawing on the recommendations of the pensions commission in his discussions with the representative bodies.

Question put and agreed to.

Section 9 agreed to.

SECTION 10.

Mr. O’Toole

To facilitate the House I am happy for amendments Nos. 9 and 10 to be discussed together. They are two sides of the same coin and it will perhaps lead to a wider debate.

Acting Chairman (Dr. Henry)

Is that agreed? Agreed.

Mr. O’Toole

I move amendment No. 9:

In page 12, between lines 31 and 32, to insert the following new subsection:

"(6) Subject to subsection (7) when a teacher is a new entrant, no superannuation benefits shall be paid before he/she reaches age 60, other than the death benefits.”.

The two groups that are most disadvantaged by the legislation are teachers and politicians. We have been through a number of special arrangements for gardaí, members of the Defence Forces and fire officers. Nobody disagrees with those arrangements being made. In raising the compulsory retirement age to 65 for all public servants with all the bells and whistles we talked about earlier taken into consideration, the minimum age at which a politician can retire at present is 50. It is 55 for teachers and 60 for civil servants.

It is important to remember that this did not happen by accident. I can go back to 1895 on the pensions arrangement. I can go back to the foundation of the State to the time when politicians were paid an allowance as opposed to a salary, which in fact, is still in the Act. Certain things developed from all of that. Teachers had their own pension scheme until a Fianna Fáil Government, I am sorry to say, grabbed it when things were bad and said it would supply pensions on a pay as you go arrangement. This was despite the fact that teachers, being prudent people with a broader view of the world, were making a saving in order to look after their future. We should never have agreed to that. I was not around at that time in the 1930s and would never have agreed to it.

At the time there was a pension fund. I tried to find the exact basis on which the Government of the day dealt with that and what kind of commitment was given. All manner of hoops have been jumped through until we arrived at the situation where in 1992 when I was involved in the negotiations, a minimum age was introduced for the first time for politicians, so that no matter what their situation they could not draw a pension earlier than the age of 50. There was no objection to that in either House. People thought it was a reasonable thing to do. As part of a national negotiation and agreement in 1996, early retirement for teachers on a reduced pension at age 55 was extended to second level teachers. I repeat, "extended". The matter was examined by the Department of Education and Science, the school management authorities, the Department of Finance and the Department of the Taoiseach. It was done on the basis of consistency. I failed to convince the Commission on Public Service Pensions of the importance of that. There is at least one person in this room who was there when I made that argument on a number of occasions. To my immense frustration, I failed to convince them.

I will use examples for both teachers and politicians. We are now saying that every teacher should work until 65 years of age. We are all agreed that teachers be allowed to work beyond a certain time, if they feel healthy and energetic enough to continue. That is the positive side. The down side is that every 64 year old teacher, irrespective of how they feel about it, should be well able to cope with a classroom of 35 mischievous, energetic four year old junior infants or a challenging group of 17 or 18 year old students. It does not make any sense that we should have that same arrangement. Over a period of 100 years we came to recognise that some people would not be physically able to continue teaching. Apart from the intellectual demands, teaching is a physically demanding job. The concept was that they could leave on a reduced pension at an earlier stage. It is important to note that a small number of people took up that option.

I have no interest in this matter because, as the Minister of State is aware, this does not affect me in any way in terms of my personal pension, nor does the position in regard to teachers' pensions. I am interested in the professions of teaching and politics. I have a responsibility, as we all do, to protect the profession of politics. I previously used the example of the Tánaiste, Deputy Harney, who I know will not mind me using it in an objective fashion. She left college in her early 20s and went straight into a life in politics, which is a very demanding life. She went on to become party leader and Tánaiste. I do not agree with many of her political views, but I admire her work and commitment as a public servant, as we all do, irrespective of our opinion on her views. I am aware that what we propose will not affect her. When the new system we are discussing is in place somebody in that situation would now be in his or her early 50s after giving 35 five years to politics. He or she would not have any source of income if the electorate were to decide to elect somebody else, which it has a perfect right to do. It is appalling that politicians in that position would not have any source of income for the following ten years. This is, effectively, handing politics over to people with their own source of income.

Most people enter politics in their late 30s or early 40s, although many people start at an earlier age, as evidenced by the two young men on the benches in front of me. It is also the age at which people might well be looking at their teenage sons and daughters looking forward to going to college or there may be other commitments. It is a hard enough decision in terms of the work-life balance to decide to enter a life of politics and work seven days a week with the impact that has on families, besides also going into one that may be insecure in terms of continuation of income.

The Minister of State cannot disagree with me on these points. I accept that he cannot publicly agree with me because he has been given a clear Government line to follow. If we have to raise the age at which people get a pension, I accept the arguments for that and I always have, instead of pushing everybody up to 65 which disadvantages politicians by 15 years, teachers by ten years and everybody else by only five, surely we can show some level of equity and raise everybody by five. This is a fair and honest compromise attempting to meet the Government's needs and also to address the needs of the political and teaching professions.

Somebody said to me earlier that the House has strong advocates, which I know was a reference to me in regard to teachers. I will fight for teachers. I know the profession well, but I promise I will also fight for any other group. There is no great media support in putting forward a proposal that tends to look after politicians. If any journalist is still awake one can imagine the great press I will get on this one; "They are lining their own pockets again" even though this has no bearing on my income or pension. We have a duty and responsibility to debate these matters honestly. We should bear in mind future Members of the Seanad and Dáil and we should be trying to attract people into politics and presenting it as a career. Just because we are protected by this Bill, which will not come into operation for a couple of decades, does not mean we should ignore the issue. What has made this country poor is the fact that people say they are all right without bearing in mind the next generation. This is to the detriment of politics and education and is not a good idea. I am putting forward a fair proposal and I ask the Minister of State, having listened to the arguments, to accept it and take on the Minister for Finance, Deputy McCreevy.

Mr. J. Phelan

I support Senator O'Toole. He has spoken very eloquently about these two amendments. They go to the nub of the Bill, which is obviously about increasing the age at which one is entitled to a pension. The Bill reflects the attitude that one size fits all. Having been a teacher for a while, I note that this approach will not work in all circumstances. Senator O'Toole has outlined how exceptions can arise in respect of teachers and politicians, in this House and elsewhere.

There is an attitude in the Bill that smacks of, "I'm all right, Jack. We will forget about the guys who are going to come after us." I look forward to being in the House for as long as possible, but we all know there is no certainty regarding how long any politician will be involved in politics. It is not acceptable for those currently involved in politics to close the door behind them.

I have grave difficulty with the part of the Bill under discussion. It has not been thought out correctly and it certainly does not demonstrate forward planning. It deals a great blow to the effort to get people involved in politics or teaching. I support Senator O'Toole's amendments.

Mr. McDowell

I endorse what others said. Those of us trying to make this argument are in some difficulty. The case is incontrovertible that there are special circumstances affecting teachers and politicians. These circumstances were identified through experience over the years and were dealt with by negotiation with the trade union movement, particularly in respect of teachers. Former members of the teaching profession in this House have spelt out their own experiences and have stated there are teachers who would like to retire or who should not be teaching any more. This is why the facility was introduced.

Our difficulty is that the Minister has decided that one size fits all without engaging with or trying to defeat this argument. The particular arguments that relate to teachers and politicians are not being contradicted in any way or dealt with — we are simply being told that the Minister has made a decision in principle that there is to be a general rule and that he will not engage with the exceptions. Perhaps I am misreading the matter and perhaps the Minister does intend to deal with the exceptions Senators have alluded to today. It seems wrong to ignore the experience which brought about the special arrangements in the first place and all the more wrong to do so without giving any justification. This, I suspect, is what the Minister for Finance, Deputy McCreevy, is doing.

Ms Ormonde

I spoke at length on this issue on Second Stage. I agree with many of the points being made regarding those who will enter politics. As I said some nights ago, politicians will be affected unless they have plenty of money or a business to which they can return. If they enter politics at the age of 25 and find themselves no longer in politics at 35 — perhaps they never had a career before entering politics and had hoped it would be their career — they will have to wait until they are 65 to get a pension. I have difficulty with this proposal.

A working group was set up to try to iron out these problems in so far as they affect teachers and politicians and it seems no agreement was possible. A special agreement was reached with the primary teachers in 1934 and in 1996 there was an OPW agreement on a special arrangement that those reaching the peak of their careers at the age of 50 plus could be facilitated. Some formula should be introduced so teachers who find themselves in such circumstances and feel they cannot carry on teaching until they are 65 could be given less responsibility or the chance to wind down. However, according to this Bill, if they leave the profession before the age of 65, they will lose pension benefits.

It would be great if teachers could retire at the age of 55 plus to allow them a little leeway. Not only are they teaching their subjects, but they are also dealing with many other factors in the classroom. In light of this, some mechanism or formula should be introduced to accommodate them. I would like to hear the views of the Minister of State on this issue.

Mr. Browne

It is worth noting that the average length of the career of a politician at national level is only 11 years. I know the Minister of State comes from a very distinguished family. His grandfather, father, brother and aunt have all been in the Dáil. His father had the unique distinction of having been in the Dáil before his grandfather. This family is an exception to the rule. The days of political dynasties are definitely coming to an end.

If I am not mistaken, there was a turnover in the last general election of almost one third among Deputies, which is fairly frightening. Given that the dual mandate has been abolished since that election, we will see a huge turnover in the Seanad as well. This remains to be seen. Everybody acknowledges that Fine Gael did very badly in the last general election, but Fianna Fáil lost ten seats. In the case of Fianna Fáil, party colleagues took the seats, but it is worth bearing these points in mind to demonstrate the volatility of politics. There is much more pressure on politicians nowadays because of all the media scrutiny and other political developments. In the early 1980s, very few seats swung and one could almost guarantee how many seats a party would get, with the exception of one or two, and this was the difference between forming a Government and not forming one. It is worth noting that if this were the 1980s, we would have fought three general elections and three Seanad elections in the period between now and the last general election. This is fairly terrifying for somebody like me.

The Bill as it stands will alter the age profile in politics in years to come such that politicians will be much older because it will be very hard to entice young people or even middle-aged people into politics who will have to wait until they are 65 to draw a pension. Senator O'Toole's point about the Tánaiste, Deputy Harney, spending of 30 years in politics is frightening. This will be very unlikely in the future. However, one could spend 30 years in politics, having entered at the age of 25, and not be entitled to a pension for a further ten years. The Minister of State might revisit this area.

Dr. Mansergh

We lost a Deputy and gained a Leader. On my observation, political families are still flourishing. Long may that——

Mr. O’Toole

On a point of information, I remind the House that the Minister of State's great grandfather was INTO branch secretary in north Clare and stood firmly against difficult Governments and management at the time. He comes from both sides.

Acting Chairman

Senator Mansergh without interruption.

Dr. Mansergh

I cannot support either of these amendments in the precise form in which they are drafted. However, the amendments do contain points of substance. I am not quite sure why the age of 60 is included in the amendment. I do not know at what age people entered the teaching profession 40 years ago. I admire teaching and think it is an exceptionally demanding occupation — 40 years would probably be enough for most people to spend in it. Some teachers are in full flight at 65 and are happy to continue teaching while others have contributed all they can by the age of 50 or 55. There must be a detailed early retirement rate so that those no longer in a position to contribute can retire and be reasonably looked after financially, although not on terms as advantageous as those who work until 65. This has probably been negotiated and may require further negotiation. I doubt whether this provision in all its baldness will survive until new entrants reach the age of retirement.

I now turn to the issue of politicians, of whom there are different categories. I take two examples from the Opposition benches, namely, retired Deputies who have made large sums of money by running a successful string of night-clubs and bookmakers. I also think of former Members from all parties that take up directorships. The public does not understand that well-off people in occupations that pay better than politics can nonetheless collect a pension.

Equally, there are people who face a complete loss of income if they lose their seat. I met a prominent former member of the Northern Assembly who made a big contribution to politics there. He is effectively without income and survives on what his wife earns. Fortunately for him his family is reared. I think of someone who was appointed to this House some years back because having lost a Dáil seat, this person would have been destitute. That is not right. However, we must be aware that when the public reads the list of recipients of political pensions, it sees comfortably well-off people adding to their incomes and getting pensions long before they are entitled to them. Members see individual cases where former Members, having given good service, are hard up. As I suggested on Second Stage, pensions should be paid to people who have reached the age of, for example, 55 and do not have other means of support or income. This is a little like the cnuas in Aosdána. If one is earning money from artistic and literary activity and does not need the income, then one does not collect it. There should be a safety net for those caught in difficult circumstances and do not have readily available means of employment after losing a seat in politics. I do not see any case where those who have a successful career in politics and go on to have even more successful career in business, should receive a pension at such an age. To this extent, I support what is contained in the legislation.

Mr. U. Burke

I wholeheartedly support these amendments. In recent years we have found that the Minister responsible for certain areas has effectively lost control over his Department owing to everything being subject to the Department of Finance.

Mr. B. Lenihan

This has always been the case.

Mr. U. Burke

When we hear the word "review" or any of the other references the Minister of State has made, we immediately understand it to mean cutbacks, or the withdrawal of supports that had been available. There is obviously a complete misunderstanding about the case of teachers. Teachers' unions at all levels have earned recognition from the Department that people must be treated humanely and individual circumstances must be recognised. If we are to introduce a blanket scheme as is proposed, we will do away with this for new entrants.

A number of changes have occurred in the teaching profession, and many other professions, over the past ten years. Senator O'Toole spoke about the physical demands that currently exist and this is in addition to social and other pressures. There is no realisation of these demands in a proposal such as this. While I do not foresee this being acceptable to the Department of Finance, it would be useful if provision were built into the proposal that teachers could opt out for short periods of regeneration at intervals during their professional career.

The Minister of State should look at the number of teachers who have tried to leave the teaching profession in recent years. He should also look at the scourge this has led to, namely, circumstances where many untrained teachers are working, particularly within the primary sector. The number of untrained teachers is decreasing and this is to be welcomed. Untrained teachers are used to fill positions because teachers are forced out by the tension, pressure and demands made of them. If we continue with this course of action, we will compound a recognised difficulty that currently exists at primary level.

It is unacceptable to put in place any scheme that cannot be deviated from. This issue requires simple thinking and understanding. The changes in curriculum have made demands of people. Look at the circumstances many teachers have had to operate under for years. The funding that has been promised may bring this to an end and we will welcome it if it happens. Negotiations have taken place over many years that give small entitlements in recognition of service. If this is to be set at nought for new entrants, it will force people into resistance and unrest. I do not think this can be allowed to happen. Through his diktats and demands, the Minister for Education and Science has caused much stress within the profession. This cannot be allowed to continue.

Mr. B. Lenihan

In a sense, we are revisiting Second Stage, although the matter arises on Committee Stage. While the current Minister for Education and Science is a determined man, I am not sure he will be a significant feature on the political landscape when these provisions bite in 2044. This is a fundamental point with regard to the Bill.

Mr. U. Burke

The Government cannot renege on the issue.

Mr. B. Lenihan

We are not reneging on anything. It was suggested that the Minister was not engaged. The Minister and the Government engaged with the report of the Commission on Public Service Pensions and acted on its recommendation, albeit not a unanimous one, that 65 years should be the retirement age for teachers. A group of persons who examined this issue decided it was a reasonable proposal.

I emphasise that there are and must be provisions to deal with teachers who suffer from incapacity or burn-out, to use the current rather unpleasant noun. Arrangements have always been made in such circumstances and nothing in the Bill affects them. The legislation is concerned with the pensionable age for teachers, on which the Government and the Minister accepted the commission's recommendation of 65 years. Where ill health is involved, the added years are taken into account, and where a person suffers from burn-out, it is a matter for negotiation between the Department and the staff side as to how much leeway can be given. All these matters will continue to operate after the enactment of the legislation. Where the Bill introduces change for the teaching profession, and I accept this is the case for new entrants, is that the basic, primary pensionable provision will now be 65 years, in line with the commission's recommendation.

As regards politicians and those in public life, just as members of the teaching profession are concerned about the future of their profession, which I understand, similar concerns are expressed about the future of public life. Originally politicians were not salaried. Later, as Senator O'Toole pointed out, allowances were introduced, often at the behest of socialist and republican parties in western Europe who wanted representation of the people, by the people, for the people, but found it difficult to participate in parliaments which operated as exclusive clubs for wealthy individuals. When one considers all those who laboured on behalf of this country, whom we often criticise, one group of men who travelled across the Irish Sea for a long time to represent our country in Westminster often had to live in deplorable conditions in London because no payment was made to parliamentary representatives at the time. As a result, Parnell, his party and their successors in the Home Rule movement had to represent the country and the nationalist interest virtually without subsidy for a substantial period. This has changed dramatically. Notwithstanding the views and reservations expressed about the Minister for Finance's proposal in this area, it is undeniable that he, more than any of his predecessors, has recognised the need to provide a good basic salary and a good basic system of expenses for those elected to political office.

Reservations, which I can understand, have been expressed about the impact and effect on the vocation of politics of not providing for pensions before the age of 65. Senator Mansergh made a fair point that not everyone under this age is impecunious. There are those who can repair to the Law Library, commercial life or other forms of activity, and others whose reputation in public life is so great that, notwithstanding their rejection by the electorate, they are willingly embraced by others. Many of those who pass through this establishment have a happy passage elsewhere, while others, as Senator Mansergh stated, can fall on hard times. Provisions for severance payments for former Ministers and Members are in place and can extend for up to two years after leaving office or the Houses. As these will also be available for new entrants, there is no change in this respect.

We are exposed to considerable public criticism concerning the early pension arrangements, which stem from a different age. I am not sure they are as great an incentive to persons entering public life as is represented and we do not do ourselves any injustice by removing them. I appreciate the concern expressed by Senators but the Minister has decided to adopt this initiative. While I am sure many Senators would not accept the proposition that one should close one's eyes and trust the Minister for Finance on any public question, on this matter he has done a good job in advancing the entitlements of Members and the status of Ministers, and in ensuring that those who find themselves on the benches of either House are properly remunerated for what is, as one Member pointed out, a seven-day per week job, which continues without cesser. He is entitled to some consideration on the view that if we are asking other public servants to accept a pensionable age of 65, it is only just that we apply the rule to ourselves.

Mr. O’Toole

The Minister of State has a great and admirable facility for soaring off into issues that are barely relevant. His response, notably his little history lesson, was interesting but an example of an old trick, which is ingrained in him, of saying 95 things with which we all agree and ignoring the five things with which we fundamentally disagree.

I will briefly explain the difference between the two amendments. In the case of the amendment on teaching, as I informed the Minister of State, the marginally earlier retirement for teachers developed over many years and following lengthy consideration. The matter was, as the Minister of State pointed out, considered by the Commission on Public Service Pensions. He failed to state, however, that the representative of education on the commission was utterly opposed to the position it adopted on teachers, or that this position received no support from education management, education practitioners or parents' groups. Moreover, no agreement could be reached during consultations with the teaching unions afterwards.

The sequence of events, therefore, was that considerable discussion took place, including the deliberations of the Commission on Public Service Pensions, a body on which I recently expressed my view that while they are decent individuals, as a group they are by no means pro-teacher. The recommendation was then inserted in the legislation without any movement being achieved in the consultations, negotiations and discussions, which brings us to the current position, with which I utterly disagree.

Public representatives and politicians are an altogether different matter. There is no doubt that the best Minister ever to deal with the career prospects, conditions of service and pension entitlements of politicians is the current Minister for Finance and I would defend him on that issue anywhere. Incidentally, the second best Minister in this regard was the late John Boland, who was also prepared to take a strong and unpopular stand on public representatives. We can now leave this issue to one side.

Did the Minister of State read what the report of the Commission on Public Service Pensions stated on politicians?

Mr. B. Lenihan

Will the Senator refresh my memory?

Mr. O’Toole

At least the Minister of State has the sense not to wing it. The report does not contain anything about politicians because the commission was not allowed to deal with them. Although it offered no view on politicians, the individuals on the commission were more negative about politicians than teachers.

Mr. B. Lenihan

The Minister made his own decisions on that issue.

Mr. O’Toole

I am pursuing a similar line to that taken by the Minister of State regarding teachers and the role of the commission and consultation. Now that we have established that the commission did not address the issue of politicians, we can address the issue of consultations with Members on the proposed changes in pensions. Can anyone in the House indicate what consultation process we were involved in with the Minister for Finance and his Department in this era of partnership?

Having spoken to the Minister ten times on this issue, he has developed a sore ear from listening to me. In many ways, he is a great man and I am fond of him, but he is completely wrong in this regard. The commission did not express a view on the matter, no consultation took place with Members and the proposed changes have been simply dumped on us. The most attractive aspect of this is that one can do anything with politicians and they will never fight back. If the matter in hand relates to politicians at a personal level, they will put up with anything thrown at them. Even when his party colleagues question the reason he has taken this approach, the Minister of Finance tells them he has taken a decision, which is final, and gets away with it.

It is unbelievable that it is coming down the line at us like this with no consultation. No other group of workers would put up with it. It is not that he disagreed with or rejected representations. It was as if we did not exist. He has told us what the story will be, that we will find it in the post on Tuesday week and that we should read it and get on with it and that is that. That is wrong. I am sorry to have taken up so much time. I believe that my most reasonable and visionary amendments will be at least helpful in moving this forward. I recommend them to the House and ask Members on the other side to reject party affiliation for a short while in the interests of the future.

Acting Chairman

I ask Senator Norris to be brief as this Bill must be completed by 4 p.m.

Mr. Norris

I will be as brief as my nature allows. It was a pleasure to hear the Minister. He has been instructive in a number of ways. First, what he said was beautifully crafted English. Second, he was able to depart from notes, something Members of this House could profit from because far too many speeches are read from prepared scripts. It was a pleasure to listen to him. However, I will be supporting my colleague, Senator O'Toole, because I found his arguments more convincing. I did not shed any tears for Charles Stewart Parnell. I understand he gave extremely lavish shooting parties at Avondale in his day so he was not exactly put to the pin of his collar when he was in London.

Mr. B. Lenihan

Most of his backbenchers were.

Mr. Norris

I believe he had a fairly good time. He also enjoyed female company from time to time. Senator O'Toole made very effective use of the fact that there was an absence of consultation with Members. That is a pity. It is a drawback as is the lack of any view from the commission. More important, it would be terribly hypocritical of us to expect a new generation of people to enter politics under conditions less advantageous than those we enjoy. I believe early retirement with pension entitlement is an extremely good thing from which I have benefited. I retired from teaching at the age of 50 and it did me an enormous amount of good. Other people should be encouraged to do the same and make room for younger people.

Dr. Mansergh

I have two observations on what has been said. Social conditions change and, therefore, terms of employment change. While Senator O'Toole has been most eloquent, he is speaking more as a trade union leader for politicians than as a politician.

Amendment put.

The Seanad divided: Tá, 12; Níl, 28.

Tá

• Bannon, James.
• Browne, Fergal.
• Burke, Ulick.
• Coonan, Noel.
• Finucane, Michael.
• Henry, Mary.
• McDowell, Derek.
• Norris, David.
• O’Toole, Joe.
• Phelan, John.
• Quinn, Feargal.
• Tuffy, Joanna.

Níl

• Bohan, Eddie.
• Brady, Cyprian.
• Brennan, Michael.
• Cox, Margaret.
• Dardis, John.
• Dooley, Timmy.
• Feeney, Geraldine.
• Fitzgerald, Liam.
• Glynn, Camillus.
• Hanafin, John.
• Leyden, Terry.
• Lydon, Donal J.
• MacSharry, Marc.
• Mansergh, Martin.
• Minihan, John.
• Mooney, Paschal C.
• Morrissey, Tom.
• Moylan, Pat.
• O’Brien, Francis.
• Ó Murchú, Labhrás.
• O’Rourke, Mary.
• Ormonde, Ann.
• Phelan, Kieran.
• Ross, Shane.
• Scanlon, Éamon.
• Walsh, Jim.
• White, Mary M.
• Wilson, Diarmuid.

Tellers: Tá, Senators Norris and O’Toole; Níl, Senators Minihan and Moylan.

Amendment declared lost.

Mr. O’ Toole

I move amendment No. 10:

In page 12, between lines 31 and 32, to insert the following new subsection:

"(6) Subject to subsection (7) when a member of the Oireachtas is a new entrant, no superannuation benefits shall be paid before he/she reaches age 55 other than the death benefits.”.

Amendment put.

The Committee divided: Tá, 12; Níl, 27.

Tá

• Bannon, James.
• Browne, Fergal.
• Burke, Ulick.
• Coonan, Noel.
• Finucane, Michael.
• Henry, Mary.
• McDowell, Derek.
• Norris, David.
• O’Toole, Joe.
• Phelan, John.
• Quinn, Feargal.
• Tuffy, Joanna.

Níl

• Bohan, Eddie.
• Brady, Cyprian.
• Brennan, Michael.
• Cox, Margaret.
• Dardis, John.
• Dooley, Timmy.
• Feeney, Geraldine.
• Fitzgerald, Liam.
• Glynn, Camillus.
• Hanafin, John.
• Leyden, Terry.
• Lydon, Donal J.
• MacSharry, Marc.
• Mansergh, Martin.
• Minihan, John.
• Mooney, Paschal C.
• Morrissey, Tom.
• Moylan, Pat.
• O’Brien, Francis.
• Ó Murchú, Labhrás.
• O’Rourke, Mary.
• Ormonde, Ann.
• Phelan, Kieran.
• Scanlon, Eamon.
• Walsh, Jim.
• White, Mary M.
• Wilson, Diarmuid.

Tellers: Tá, Senators Browne and O’Toole; Níl, Senators Minihan and Moylan.

Amendment declared lost.

An Cathaoirleach

I wish to inform the House that arising from an inadvertent casting of a vote by a Senator, the result of the division as shown on the display board has been amended with the agreement of the tellers from both sides of the House. The amended results will appear in the Journal of the Proceedings.

Mr. Bannon

On a point of order——

An Cathaoirleach

There can be no points of order.

Mr. Bannon

The monitor shows the result as "Tá, 13, Níl, 27".

An Cathaoirleach

The issue is decided.

Mr. Bannon

Will this happen on 11 June?

An Cathaoirleach

I ask the Senator to resume his seat.

Progress reported; Committee to sit again.