I welcome the Minister of State.
Houses of the Oireachtas (Appointments to Certain Offices) Bill 2014: Committee Stage
SECTION 1
I move amendment No. 1:
In page 4, lines 9 to 13, to delete all words from and including “each of” in line 9 down to and including “Seanad Éireann.” in line 13 and substitute the following:
“the office of the Clerk of Dáil Éireann.”.
When we debated the Bill last week, the Minister of State, Deputy Simon Harris, was in the House and today we have the Minister of State, Deputy Aodhán Ó Ríordáin. I outlined the rationale for this amendment. I believe the Houses of the Oireachtas (Appointments to Certain Offices) Bill was drafted by the Minister for Public Expenditure and Reform, Deputy Brendan Howlin, and his Department.
As I outlined on Second Stage the main concern is applying a specific term to three of the posts, the Clerk-Assistant of the Dáil, the Clerk of the Seanad and the Clerk-Assistant of the Seanad. I outlined the roles the Clerk of the Seanad in addition to the running of the House. That individual sits on SIPO, the referendum commission and the commission that reviews boundaries for general elections. It is a post that requires detailed experience, not just in the running of the House. When it comes to Seanad elections, that person is responsible for verification of Seanad nominations and whether someone is appropriate to a certain panel. That individual is also the returning officer for the Seanad elections, which, as I am sure the Minister of State is aware, are quite complex and require extensive knowledge.
While the appointment to the post of Clerk of the Dáil is made through TLAC, the others do not and will be appointed by the commission. An unintended consequence of the change the Government has introduced will be that effectively the Clerk of the Seanad will be appointed by and answerable to the commission and the term will be set by it. Subsection (3) states:
A person may be appointed to an office to which this section applies for a term specified by the Houses of the Oireachtas Commission to be a period of a number of years (or a number of years and months or days).
It puts it up to the commission to set that timeframe which is not done at present. If the commission decided to set it for the term of any given Seanad, that person's appointment would end before the following Seanad election took place. I am interested in hearing the Minister of State's views on this issue before I decide to proceed further.
My amendment reads:
In page 4, lines 9 to 13, to delete all words from and including “each of” in line 9 down to and including “Seanad Éireann.” in line 13 and substitute the following:
“the office of the Clerk of Dáil Éireann.”.
The other three posts would remain as they are and a term would not be set for them. My colleague, Senator Paschal Mooney, supports the amendment. I would like to hear the Minister of State's views on it. I made a detailed contribution on Second Stage on the rationale behind it.
I support the amendment.
I thank Senator Darragh O'Brien. Section 1(4) applies with equal force to all four Houses of the Oireachtas officer posts under consideration in the Bill. In taking this approach the Government has in mind that the Houses of the Oireachtas Commission, under the chairmanship of the Ceann Comhairle, would have the latitude in the future to take decisions on the tenure of the relevant postholders which would be in the best interests of an effective and efficient Oireachtas Service. It does not see any justification for making a distinction between the Clerk of the Dáil and the other three posts. It is very conscious that if the amendment were to be accepted, there would be an anomalous position, whereby the occupant of the Clerk of the Dáil post would have a seven-year tenure, while those appointed to the other three posts after the departure of the existing occupants would potentially have a much longer tenure, until they reached normal retirement age. The Government strongly believes this would lead to much inflexibility in the management of the staff resources of the Oireachtas. It would also be at odds with practice in the public service generally. The Government and its predecessor are on record as wishing to afford the Houses of the Oireachtas Commission the opportunity to operate an homogenised management structure in the service. Explicitly mentioning in legislation the authority of the commission to specify lengths of tenure for the four main officer of the Houses posts is a significant step in this direction.
The Government believes its proposals will amount to a significant transfer of power from the Executive to the Legislature, as in the Houses of the Oireachtas Commission. The Taoiseach is heavily involved in the process. The commission is representative of parliamentarians and will be fully attuned to their needs and demands. I draw Senators' attention to the fact that under the terms of the proposed legislation successful nominees for the posts of Clerk of the Seanad, Clerk Assistant of the Dáil and Clerk Assistant of the Seanad will be confined to serving members of the Oireachtas Service. This gives me very solid grounds for expecting that the successful candidates will have a wide experience of parliamentary and electoral procedure and the work of the various commissions such as the SIPO and the Referendum Commission, with which they are associated. The Government does not share the concerns expressed about adverse consequences for the work of these commissions or the conduct of elections. When the tenure of the holder of any of the three posts I have mentioned ends, the commission will be at liberty to decide whether to maintain the postholder in his or her posting or transfer him or her to a post in the Oireachtas. A significant number of posts in the service are of equivalent rank such as principal officer or assistant principal officer. In the light of the points I have made, the Government is not prepared to accept the amendment.
I agree with quite an amount of what Senator Darragh O'Brien said. I would like to delve into the final sentences of the Minister of State's reply. If an appointment is made for seven years, why is it not mentioned that the person concerned could serve for a further seven years, five years or whatever the case may be? It is the case where county managers are concerned. Why is it not spelled out that after seven years, for example, the person can apply for and be employed in the position for a further seven years? It should be spelled out now rather than leaving it for the commission to decide whether the person can apply again at the end of the initial period. There is need for clarification on this matter and I hope the Minister of State will throw further light on it.
I cannot believe we are still going down this route. What if we were to legislate to allow a person to serve only once in their life as a Minister? How would that sit with us? It would not sit too well. We are talking about people. Look at the officials who support the Oireachtas. They work here all the hours God gives. They are here for as long as we are here; they are available to provide advice any time we need it and they are here to keep the system on the rails. How dare anyone suggest we should set a term for which they can serve?
For as long as the State has existed people have been appointed to senior Civil Service posts and have retained these posts until they retired. There is no reason for this in the legislation, other than to have some hold over the holder of what should be an independent office. That is the only possible reason I can see for section 3. I ask the Minister to reflect on it. It is clear from what the Leader said that he is not very happy about it. One often hears people say they have full confidence in football managers just before they fire them. Are we going to hear someone say a few years hence that they have full confidence in the Clerk of the Dáil or the Clerk of the Seanad before they end their term of office? It is repugnant to the post to have a time limit set on it.
I thank the Minister of STate for his response to my initial queries. It sheds a little more light on the response we received on Second Stage. Reference to a seven-year renewable term would make a great deal more sense. The problem is the way in which the legislation is written. It refers to a number of years, months and-or days. That leaves it up to the commission. As the legislation is not prescriptive, the commission could decide to give a term of five years. Section 6A states: "A person may be appointed to an office to which this section applies for a term specified by the Houses of the Oireachtas Commission to be a period of a number of years (or a number of years and months or days)." It does not state anywhere in the legislation - the Minister of State can correct me if I am wrong - that it goes back to the commission for renewal.
The Minister of State's response confirms one of the fears I expressed last week and which relates not just to this Government but to any future Government or future Ceann Comhairle. The Seanad is an independent House of Parliament, but the Clerk of the Seanad position would be decided, effectively, by the Ceann Comhairle as head of the commission. The Ceann Comhairle is the Ceann Comhairle of the Dáil and the Cathaoirleach is the Cathaoirleach of the Seanad, but the Cathaoirleach is not mentioned anywhere in the Bill. The Ceann Comhairle is the head of the commission but we are making a change here. There is no other equivalent principal officer or higher principal officer role of which I am aware - the Minister of State's officials can correct me on this - where we have set a term limit to it in the service. The difference with the Clerk of the Dáil is that it is the highest rank in that office to which people could aspire to reach.
Clerk-Assistant of the Seanad is at principal officer level and Clerk of the Seanad is at higher principal officer level. Let us take the example of where one sets a term for them of five or seven years and the commission decides not to renew, for whatever reason. Let us say the relations of a future Clerk of the Seanad with a Ceann Comhairle or a commission were difficult, as happened a couple of years ago. Things do happen whereby a clerk must stand up for the independence of the office and the running of the House. The commission could decide that it did not like the way that individual dealt with a matter and decide not to reappoint that individual. It might appoint someone more pliable in that role. This legislation makes it possible to do this. I am not saying it will be done, but it certainly leaves it open to be done.
The Dáil and the Seanad have been at loggerheads in the past such as at the time of the referendum and at the time of nominations for Seanad by-elections. I do not wish to go over old ground but conflict between them does happen. If the Ceann Comhairle or the Government which will have a majority on the commission decided it did not like an individual or the way in which an individual had carried out his or her duties, the commission with its majority of Government members could decide not to reappoint him or her.
As it stands, the legislation is deficient because it does not discuss a person's reappointment. It refers to setting a term. As far as I can see, it does not say anywhere that when that term is committed, the person would go before the commission for re-evaluation and reappointment should the commission so decide. It is a short Bill and perhaps it is there, but I cannot see it. There are genuine concerns. It does not relate to the Government. It is about any future government or any future Ceann Comhairle. We could have a serious problem.
If the Minister of State can respond to these questions, we will see where we go from there. The response he has given today is slightly different from that given on Second Stage which did not mention reappointment. The Minister of State probably just used the example of seven years. That would probably be a sensible term if it were provided for, but that must be specified and it must state "for renewal after seven years" in order that it would not clash with a Seanad election. A commission could come in and state it was just doing it for five years and then there would be a new Clerk or Acting Clerk of the Seanad, as we have had in the Dáil for the past four and a half years. Legislation had to be brought forward because of various issues, of which we are all aware. I would be interested to hear the Minister of State's response to these further queries.
I thank Senators for their contributions. I appreciate where people are coming from in respect of this issue.
Senator Darragh O'Brien mentioned the Ceann Comhairle. The Ceann Comhairle is the chairman of the Houses of the Oireachtas Commission, not just the Dáil, and the commission is representative of parliamentarians. This Government and the previous one are anxious to give the commission maximum flexibility. That is the motivation behind the Bill. As in every other facet of the public service, flexibility is required, and we are trying to ensure we can maximise the potential for flexibility. In terms of the points being made about fixed terms - I did give the example of seven years - Secretaries General of Departments are also appointed for fixed terms; therefore, there is a precedent for this within the public service.
I thank the Minister of State for his response. He mentioned Secretaries General. I have asked whether there is any other grade of principal officer or higher where we have set a fixed term. I am aware of fixed terms for Secretaries General. That is the specific one, because that is the equivalent role. That is the job. What other such positions in the service have a fixed term? I am not aware of any.
I would be much happier if a seven-year term were specified. The Minister of State has mentioned a seven-year term and that could be sensible, but it would be better if he specified it in the legislation and if he specified that after seven years it goes back to the commission and someone could have their contract renewed. However, it is still preferable not to set those term limits. It does not give any additional flexibility. It effectively gives any future commission a stick that has not been there before. It is saying, "I don't like what you've done here, so I'm not renewing your contract".
The Minister of State says they could go into another role in the Oireachtas, but into what other role could they go? The only other role I can see for someone with that level of experience would be the Clerk of Dáil Éireann. However, that is one post. If it is already filled, where does the person go? If a threshold like that has been set, why in God's name would anyone want to get into this role? Why would the people with the levels of experience required to carry out this job apply for it when there is a set term limit and someone else is the Clerk of the Dáil and they cannot go any further? There would be nowhere for them to go on their career path. We could end up with people who did not have the requisite experience, knowledge or ability. I have seen in my relatively short period in the Seanad that these are complicated roles. They oversee the running of the House, functions in the House, our constitutional details and legislative functions. We cannot just have anyone coming in from the outside and deciding how this would be done. On Second Stage, it was stated these three posts were open not just to those within the service but also to people from outside, from the private sector.
I think that is wholly inappropriate for these particular roles. I am not happy with how it sits. Perhaps the Minister of State might give us some answers in that regard. Have term limits been imposed on any other equivalent principal officer or higher principal officer grades?
I am concerned about what will happen in the case of someone who has been serving as a Clerk-Assistant of the Seanad or the Dáil but whose contract is not renewed at the end of the time period that is being imposed in this legislation for some reason or other. Will that person's career be over? Where will he or she be going in the public service? Where is his or her future? Such a person will have been constructively dismissed, in effect, by being refused access to the next post up the ranks. From that point of view, I still think everything about this is wrong. The Government promised reform, but this proposal is not reform. It involves picking on a couple of specific posts within the Oireachtas and subjecting them to an appraisal of their performance after a set number of years. From my perspective and that of most reasonable people, this is a proposal to remove a degree of the independence the office requires. As it is an independent office, I do not believe a time period should be imposed on it. I accept what Senator Darragh O'Brien has said and what Senator Maurice Cummins said earlier about setting the period at seven years and making it subject to renewal, all other things being equal at the end of that period. I would see nothing wrong with this. It would not be ideal, as it is not what people expect when they give their lives to the State, but it would be a damn sight better than what is provided for.
I agree in principle with the proposal made in the Bill to take this issue away from the Executive and give it to the Houses of the Oireachtas Commission. We should all be in favour of transferring power from the Executive to the Parliament. Can the Minister of State tell me whether I am right to say this will not affect the people who are in these positions? I believe we are talking about what will happen when these positions come up in the future. If that is the situation and I presume it is, I would see no problem with a fixed term at that stage. However, it is not specified in the Bill. There should be a specified period. We have all mentioned the seven-year period that applies to county managers and so on. They have seven years and an option to apply again for a further term or part of a term. What is sauce for the goose is sauce for the gander. The same should apply to these senior posts also. I cannot see why it should be any different in this case from the cases of others within the public service.
I would like to respond to the reasonable questions asked about the office of the Clerk of the Seanad. Under the Bill, there are positions in the Oireachtas to which the Clerk of the Seanad could be transferred. While I appreciate that the Opposition amendment is intended to be constructive, its effect would be to leave officers in office for life without that mobility. It would leave the Clerk of the Seanad, for example, in office for life. I do not think that is necessarily the intention of the amendment, but it would be its effect.
I thank the Minister of State. We are not trying to be difficult. We are trying to tease out this issue. I know that the Minister of State has been asked a number of questions, but I asked whether there was any equivalent-----
It is my understanding, based on the advice we have been given, that it is not unusual for principal officers in the public service to have fixed terms.
When I spoke abjout this matter on Second Stage, I said I felt the legislation was sloppy. I still believe that is the case. I do not believe there is any justification for being so vague about these exceptionally important positions in both Houses. It has been pointed out repeatedly that we are not just dealing with higher civil servants; we are dealing with people who are operating at a constitutional level and whose job is not just about administering the Houses.
There are also external positions involved, which has wider implications for the entire political system. Considering the calibre of person expected to be appointed, it would not be attractive to someone outside the Houses who considers the possibility of applying for one of these positions if an abstract approach is taken to time periods. While I accept that provision is made for the Houses of the Oireachtas Commission to specify a period, I do not understand the reason a specific period is not specified in the Bill, given the importance of the positions.
The Minister of State indicated that, on the expiry of the term of office of the individuals in question, they may be transferred within the public service. The Bill does not make any such explicit reference. This raises the issue, to which previous speakers alluded, of what will happen at the end of the term of office. I ask the Minister of State to elaborate on how this process will work.
I reiterate that it is the intention to fill the posts from within the Oireachtas. The main reason I do not propose to accept the amendment is that the proposal, if implemented, would leave officers in situ for life.
There is no way the amendment would set someone up as an officer for life. If that were the case, it would be necessary to introduce term limits for all principal officers and higher executive officers. I have outlined the issue, namely, the failure to specify a term. As Senator Maurice Cummins also noted, if the Minister had proposed a term of seven years to be followed by a review or renewal, I would have accepted the proposal. However, this is not stated in the Bill and, as such, the text is open to interpretation. Could the Houses of the Oireachtas Commission decide to set a term of two years or specify another arbitrary period under this legislation? Could it also specify a term which either does or does not coincide with an electoral cycle?
Given that the Minister of State will not accept the amendment, I suggest this is a case of "Never the twain shall meet."
Tá brón orm. These are well thought-out amendments and we are trying to tease out the issue, as we are required to do. I am not trying to be difficult and I accept that the Minister of State is doing his best to answer the questions we have put to him. However, I am not happy with this provision because it could cause a problem further down the line. I am pursuing the matter for this reason, not in an effort to be difficult.
I am not making light of the amendment or the Senator's comments, but either the Minister of State is running out of road or the Senator is not accepting his answer. If the Minister of State has nothing more to say, I will put the question.
The Senator and I will not agree on this issue. To be constructive, I will repeat the advice available to me. The current arrangement under the 1959 Act is left in place, which means that the Clerk of the Seanad can remain until the age of 65 years.
The Minister of State has responded. We cannot expect him to repeat the same point indefinitely.
The Leas-Chathaoirleach made a very useful point when he indicated that the Minister of State had run out of road on this issue. The question Senators have asked has still not been answered. To introduce legislation that has a cloud hanging over it and could have repercussions throughout the public service would be a very serious mistake to make for the Houses. This legislation could destabilise every Department, as the jobs of all Secretaries General, assistant Secretaries General and principal officers would not be safe. While this is a small Bill, it has serious implications. We must be careful about what we are doing.
The Minister of State has answered the questions put to him. The issue on which we are at loggerheads is the specific term.
If it was specified as seven years, with an option to reapply, I think we would have unanimity in the House or close enough to it.
From that point of view, I suggest we proceed and pass Committee Stage, regardless of whether Senator Darragh O'Brien wants to proceed with the amendment, and give the Minister of State a chance to come back on Report Stage to deal with the specific matter of the term and number of years to be specified. That is the point at which we are falling down and for which we do not have a specific answer. I am prepared to amend the Order of Business in order that we deal with Committee Stage only and come back to Report Stage at a later stage and at which time we can have this matter specified.
I thank the Leader for that proposal, which I second. It is a sensible approach. We should take Committee Stage now. I will withdraw the amendment with a view to perhaps retabling it on Report Stage as it would give the Department an opportunity to consider it. The Leader's suggestion is a sensible one, which I support.
Is the amendment being withdrawn?
It is on condition Report Stage will not immediately follow Committee Stage.
Amendment, by leave, withdrawn.
Section 1 agreed to.
Section 2 agreed to.
SECTION 3
I move amendment No. 2:
In page 5, between lines 11 and 12, to insert the following:
“(5) Assigning responsibility for the management of all accommodation functions, including office accommodation for Members elected to the Houses of the Oireachtas, will be within the power of the Secretary General and the assignee will report to the Houses of the Oireachtas Commission who will oversee and direct the management of this function as appropriate.”.”.
Rather than making a speech as to why I want to include this in the legislation, I ask the Minister of State if he could provide me with some justification as to why the fundamental matter of office accommodation for elected Members of the Oireachtas, Dáil and Seanad Members elected on an equal basis by the people or through the various panels, should not be the responsibility of the Ceann Comhairle or the Houses of the Oireachtas Commission? As the Minister of State may know, the current arrangement is that office accommodation is the responsibility of the Government Chief Whip. There is no need to replay some of the difficulties which have arisen in the past few years. Will the Minister of State indicate why the Houses of the Oireachtas Commission, chaired by the Ceann Comhairle, should not be in charge of office accommodation thus ensuring each Member of the Oireachtas will be treated in an equal and fair fashion? They are elected in that fashion under the laws of the land.
I thank Senator Darragh O'Brien and the Leader of the House for coming to an accommodation on the previous amendment. I remind Senators that it is always a benefit to everyone if the hyperbole is kept to a minimum. To suggest this will rock the very foundations of the entire public service is stretching it seeing as the legislation only affects the Oireachtas.
On the matter raised by Senator Paul Bradford, it was discussed when the Bill was proceeding through the Dáil. The Government was not prepared to accept the amendment proposed in that Chamber and is not prepared to do so now. It is because it is not believed there is any justification for transferring responsibility for this matter to the Secretary General. The Houses of the Oireachtas Commission has a statutory function in preparing guidelines for Members in the use of accommodation following dissolutions. The office of the superintendent supports the commission in carrying out its statutory function. Following on from this, the matter of accommodation is for the Chief Whip and the other Whips. In the event of difficulties, the matter is decided upon by the Ceann Comhairle in his capacity as chairperson of the Houses of the Oireachtas Commission. The Ceann Comhairle's decision is final. The proposed amendment will reduce the powers of the Ceann Comhairle and the commission and the Government would be unwilling to become involved in the matter which is for the Legislature to deal with. In addition, implementation of the proposal would lead to the Secretary General and Clerk of the Dáil being caught up in a political matter.
My colleague, the Minister for Public Expenditure and Reform, Deputy Brendan Howlin, stated in the Dáil:
[T]he proposed amendment would, in my judgment, ultimately reduce the powers of the independently elected Chair of Dáil Éireann to make decisions in the event of disagreements or disputes. My honest view of what is right is this is a better way than giving it to any administrator who would be caught in a political controversy ... and this is not a fair or reasonable place to put any administrator in the House.
This remains the Government view and, accordingly, I am not prepared to accept the amendment.
Amendment put and declared lost.
Section 3 agreed to.
Section 4 agreed to.
Title agreed to.
Bill reported without amendment.
When is it proposed to take Report Stage?
On 23 September 2015.
Is that agreed? Agreed.
Report Stage ordered for Wednesday, 23 September 2015.