Has the Minister any further comments to make because nothing I have heard from Deputy Burton is-——
Public Service Management (Recruitment and Appointments) Bill 2003: Committee Stage (Resumed).
SECTION 2.
Debate resumed on amendment No 1:
In page 8, subsection (1), line 10, after "appointment" where it secondly occurs to insert "or promotion".
—(Deputy R. Bruton).
I have not concluded. The Minister does not know much about this issue — he has shown that previously. Neither do we know much about it. The Dáil is resuming a week early and that presents an opportunity for this committee to meet representatives of the public service unions on the Tuesday after Easter week.
In regard to Deputy Bruton's amendment, public service recruitment is being localised. The local Fianna Fáil and local PD auctioneer may well put up a shingle to recruit public servants. That is the reality of what may happen. We do not know what impact that will have on the recruitment process, particularly for promotions to higher jobs.
Apparently, recruitment to promotional points at the highest levels in the Civil Service was opened some time ago to wider competition. I note from replies to me from the Minister for Finance that the number of people appointed via that open system has been very low. I am not aware that a secretary general or a significant number of assistant secretaries general has been appointed from outside the Civil Service through the promotional process. I am also not aware that any ambassadors have been appointed, from other wings of the public service or from outside it, through the promotional process. These are important issues for the public service, but also in terms of public policy and efficiency about which we know little.
What the Minister is saying is not adequate because this committee has not informed itself on this issue. I certainly asked for such a meeting and the public service unions wrote requesting to brief this committee on this issue. An opportunity to meet their representatives is presented by the proposal to recall the Dáil a week early. We could meet them and, by doing so, we would be better informed when we would come to deal with Report Stage. The Bill proposes a major change to something that has existed with integrity — bar for the likes of George Redmond — since the foundation of this State. We need to be careful to ensure we are bending it in a particular way. All sorts of people will apply for local recruitment licences. Not only is Deputy Richard Bruton's amendment appropriate and worthy of detailed examination, but with decentralisation there is also the scenario that at this time it is not to the taste of many senior members of the public service as far as one can deduct from surveys conducted. Great emphasis will be placed on local promotion as the mechanism for driving the engine of decentralisation. In that context, it is particularly appropriate for this committee to have an opportunity to examine the value for money and efficiency of the profound changes proposed, the introduction of which the Minister is so proud.
I ask the Minister for his final comments on amendment No. 1. The matters to which Deputy Burton referred are matters for the joint committee and are not appropriate for discussion at the select committee dealing with committee business. These matters have been discussed at the joint committee. We said we would deal with decentralisation in a structured manner. We received representations from only one public service trade union. We said we would deal with that request in a structured manner. It will be dealt with by the joint committee, but not on Committee Stage of this legislation.
Now that this window of additional Dáil time has become available, it is open to the Chairman to set a time and date for the committee to meet. We have no other meetings scheduled between now and the recall of the Dáil. If the Dáil is sitting on Wednesday and Thursday of the week after Easter week, it is possible to invite representatives of the public service unions to appear before the committee on the Monday or Tuesday of that week. I think the Opposition would agree to that. Is it the case that the Chairman wants to postpone such discussion and the imparting of such information from the public service unions until the local elections are safely out of the way?
I will conclude the discussion on this matter by saying it is one of several items on our work agenda. Deputies have different priorities in terms of the joint committee's work. We will not pick one item out of a list of 20 and bring it forward without consulting all members of the joint committee, which is the appropriate group to agree the timing of the committee's work programme.
Chairman, we have only learned today——
We are clear on this and will not move in this regard.
No, this is important. We have only learned today that the Government proposes to recall the Dáil the week after Easter week, which opens a fresh window of opportunity in this regard. These are important issues that go to the heart of our State and Constitution. I am disappointed the Chairman will not take this window of opportunity to arrange a meeting of this committee on the Monday or Tuesday of the week after Easter week.
I propose that the Chairman should proceed with Committee Stage of this legislation, which is what we are here to deal with.
I am happy to have a meeting of the joint committee that week at which we can discuss the work programme and the matters members want prioritised, but they cannot be discussed now when we are dealing with Committee Stage of this Bill. I am happy to have a meeting of the joint committee if members can agree a date and time for it, at which we can discuss that issue, but it cannot be discussed now.
While I accept your ruling at one level, you and Deputy Finneran fail to note that the Bill has been introduced against a background where the Government's own policy group on delivering better Government considered the approach of decentralising recruitment and abandoning the central unitary system of recruitment to the public service and recommended against it. It said the priority lay in other areas. It believed that we needed to work hard on delegating functions, on putting systems in place to manage performance against objectives, on tracking these approaches and on tackling cumbersome promotion procedures, the subject of this amendment, and the closed nature of many promotions. That Government-appointed body of senior public servants said the approach being taken in this Bill was not the way forward.
If we add that to a separate proposal from the Government to decentralise and to create separate stacks of Departments throughout the country, we have a radical departure from traditional approaches to public service recruitment. We will now have not only devolved recruitment, but also decentralised recruitment. We are moving from a central coherent system where people could be promoted freely across different Departments to gain broader experience which would add to the expertise and quality of governance. However, without a White Paper or discussion of the issues, we are now faced with an overturned Government approach, which most of us bought into, and a politically driven decentralisation agenda. Deputy Burton's request that we should meet the unions is relevant.
A White Paper should have been published on such a fundamental policy which seeks to change the way we recruit to the public service. This is a dramatic departure. It is almost automatic in the Bill that once a decentralised body applies for the licence to recruit and conduct its activities locally, it cannot be denied it even if the commission is of the view that it is not in the public interest. There is no public interest provision in this Bill which allows the commission to state that it is not a good idea to recruit in a devolved way. Local managers will be able to ride a coach and four through traditional systems for appointing and recruiting to the public service. That is not a trivial issue, but an important one.
The Government has been flippant in its approach to this issue. There has not been a serious attempt to outline the advantages and disadvantages of all the changes. The committee must pause for thought instead of rushing to finish the Bill before the end of the day because that is what the Government wants. This is a serious matter and is a big change. I am surprised the Minister responsible is not here to take this debate. That is not a reflection on the Minister of State, who is admirable, but the senior Minister responsible for the public service. That is not an area of delegated responsibility. The senior Minister should be here to address fundamental issues of reform in public service recruitment. The Dáil does not seem to matter anymore. The attitude seems to be that if this issue can be worked out with the public service unions, that will be the end of it. You, Chairman, Deputy Finneran and the other members of the committee must reassert the primacy of Parliament by having a proper and informed debate on such important issues. We have allowed standards to slide out of all recognition since I was first elected to the House. We are participants in another form of that now. We are making important, profound decisions on the most flimsy analytical basis.
We will have a joint meeting of our committee on the week commencing 19 April.
That is only a partial response.
I apologise for raising this issue at this point. I know I am out of order in raising it, but I only learned today that we will come back the week after Easter. We have had a crowded schedule. There is an opportunity for this committee to meet on the Monday and Tuesday. With all due respect to the Minister of State, this is a fundamental issue for our democracy. I know the Minister regards it as a political stroke in that the bacon was brought home to Parlon county, but it is fundamental to the integrity of our democracy, such as it is. We are beset with a series of corruption problems which are unfolding week after week.
That is not relevant to the amendment. The Deputy is straying from the amendment under discussion.
It is relevant. When the CSO moved to Cork, only 30% of the senior staff were willing to accept a move. A considerable amount of the promotional recruitment was done locally. I was Minister of State at the Department of Social Welfare when part of that Department was successfully, if slowly, relocated to Donegal, Sligo and Longford. I recall a clear percentage of senior and older people who were not willing to move for family and other reasons. As a consequence, there were many promotional appointments on offer after the initial rush of people from the north-west. There was a significant number of vacancies. The additional vacancies were filled either by offering promotional recruitment to people who went on promotion to the north-west or by local recruitment. That was done over a seven to ten year period. The Government is proposing that the process be completed in three years. The Minister may feel his plans are fine, but Deputy Richard Bruton and I believe the Oireachtas scrutiny of what is happening is entirely inadequate. I apologise for raising this issue, but I only learned today that the Dáil will resume on the week of 19 April, and there is a window of opportunity to deal with this issue.
I still do not know and I would be interested if the Minister of State would give me the number of promotions above principal officer level which were recruited from outside the Department, which would be significant, and from outside the public service. I would also like to know the number of ambassadors or people recruited to ambassadorial posts from other sections of the public service and from outside the public service. Perhaps the Minister of State will give us some of those figures so we know what we are talking about.
I do not have a problem meeting the public service unions and other experts on the issue, including people from industry. In the UK and other countries people from industry have a strong input into policy formation in terms of the mechanisms for the higher echelons of the Civil Service. The public service unions wrote to us and that is why it is important to meet them. However, I do not object to meeting others who may have a legitimate interest in this area and listening to their views.
I am amazed at this discussion. We are here to discuss one item on the agenda, namely, Committee Stage of a Bill. The debate is not even a rerun of the Second Stage debate because it covers tribunals etc. It is inappropriate to raise the matter of what might happen at another meeting of the committee on the basis of our work programme which has been discussed on a number of occasions. I object to discussing something which is not on the agenda. I received a commitment from the Chairman and the committee that an issue which we have not discussed for almost two years would be given priority, namely, our investigation under the strategic management initiative. This committee has been almost two years in existence, yet we have not addressed that matter. Deputy Burton's proposal is totally inappropriate. We should deal with this matter. That proposal can be discussed at a meeting dealing with our work programme.
The position of the joint committee has been decided and we cannot second guess it. The joint committee has decided to consider it in a structured way as part of its work programme. We cannot revisit that. As regards the amendment, are there any final comments?
I am satisfied that the issue Deputy Richard Bruton raised, namely, that the commission will apply the same standards to promotions as apply to recruitment, is covered in the Bill. I am not prepared to accept the amendment. Deputy Burton repeatedly raises issues which are not on the agenda. I resent and reject her suggestion that the probity or integrity of these proposals will be impugned.
The Minister of State must prove that.
The Deputy has not proven her allegation.
The Minister of State has not given us figures, despite repeated requests. My concerns are legitimate.
Is the amendment being pressed?
I have served on a local authority where I have seen serious corruption at first hand.
I will not allow further discussion on that topic today.
It is an issue for elements of the public service.
The Deputy is out of order. She should cease discussing that matter because it is not relevant to the amendment. That matter should be discussed elsewhere. Is the amendment being pressed?
The amendment is being pressed. I specifically asked for a minimal undertaking from the Minister of State as regards a small change in the procedures which would at least guarantee that if the commission made a recommendation about promotion, it would be observed. The Minister of State is stonewalling. He will not address the issue and he is refusing to make any change. He is doing that through ignorance because he does not know what is included in the Bill, or he does not have authority to make changes without going back to his senior Minister, which makes the exercise a charade, or he does not believe the change should be made. He is letting down the committee and the Oireachtas.
The Minister of State is right that to make changes in recruitment does not mean he is corrupt or he is trying to corrupt the recruitment process. However, we are making changes which are flying against the recommendations made to the Government about recruitment. We are creating a lethal mix. The Government has not made an attempt to carry out a proper analysis of the combination of these changes and their impact on the probity and quality of governance in this country. I will press the amendment. I am sure there will be other amendments which will be pressed during the day because the Government is not willing to meet the Opposition half way in trying to create a sensible environment for recruitment and promotion in the public service.
This Bill was discussed with the Civil Service unions. It fulfils agreements under Sustaining Progress. I can read the relevant articles if members wish me to read them into the record.
Which articles?
The Minister of State is speaking.
We are seeing the arrogance of the Minister of State.
Allow the Minister of State to speak without interruption.
It is disgraceful.
The Bill is also supported by the implementation group of general secretaries.
The Minister of State did not bring Sustaining Progress to the floor of the Oireachtas and the people have not had an opportunity to express their views on it. Just because the Minister of State might be able to do a deal with some public service unions does not mean it is in the public interest. I take my hat off to public service unions because they are right to represent the interests of their members. However, that is not the same as saying that because the Minister of State has spoken to the public service unions everything is all right and the Oireachtas should nod it through. That is not what citizens expect from the Oireachtas or the standards which must be applied. The Minister of State is trying to operate on the basis that we should not oppose it because all the unions are on board. He is saying we are stepping out of line and breaking social partnership. That is nonsense. We are here to represent people, to ensure that we pursue the public good and that we get the highest quality public service and to create a framework for talented public servants to fulfil their talents. The Minister of State's response to the debate is inadequate.
Deputy Richard Bruton's points are more relevant to a general debate.
They are not.
They are. Most of the debate today relates to broader issues. While I appreciate the reason for the amendment, the debate has strayed beyond what is normally expected on Committee Stage. All types of issues are being dragged into the debate, including tribunals. What relevance does that have to Committee Stage of this Bill?
It is about integrity and reducing corruption, which we have had under Fianna Fáil for decades.
Amendment put.
The Committee divided: Tá, 4; Níl 7.
Tá
- Bruton, Richard.
- Burton, Joan.
- McGrath, Paul.
- Ó Caoláin, Caoimhghín.
Níl
- Dempsey, Tony.
- Finneran, Michael.
- Fleming, Seán.
- Lenihan, Conor.
- McEllistrim, Tom.
- McGuinness, John.
- Parlon, Tom.
Amendment declared lost.
Sitting suspended at 12.35 p.m. and resumed at 12.55 p.m.
Section 2 agreed to.
Section 3 to 6, inclusive, agreed to.
SECTION 7.
I move amendment No. 2:
In page 12, subsection (1), between lines 14 and 15, to insert the following:
"(e) is to a position of special adviser within the meaning of section 19 of the Ethics in Public Office Act 1995, or”.
What is the purpose of the amendment?
Under the Bill at present, a special advisor cannot be appointed to a permanent post unless the Ethics in Public Office Act 1995 is changed to allow an adviser to remain in office beyond the term of office of the relevant Minister and there is a Civil Service competition for the post following an order made by the Minister for Finance. This competition would have to be held under the new codes of practice set out in the Bill.
The amendment will move the subsection dealing with special advisers from section 7(2) to section 7(1). The effect of this is to remove the appointment of special advisers permanently from the scope of the Act. Section 7(2)(a) proposed that the appointment of special advisers would be excluded from the scope of the Act but that an order might be made by the Minister for Finance to bring them within the scope of the Act. The effect of this amendment is that a special adviser cannot be appointed to a permanent established position in the Civil Service unless there are further amendments to this Act and to the Ethics in Public Office Act, which requires that advisers lose office at the same time as the Ministers they serve.
I wish to make it clear that the Government had no intention of making these posts permanent, established posts. The amendment puts the matter beyond any such doubt.
Perhaps I am not clear on what the Minister is doing. It is stated that where the Act does not apply an order will be made where the appointment concerned is to a position of special adviser. In other words, the commission cannot apply to a Minister's appointment of a special adviser. I do not think anyone is worried about ministerial appointments of their special advisers. The concern is that in the event of a position being filled within the Act, there might be promotion into a position whereby a person who is in the Civil Service as a special adviser could obtain promotion to a position that was not fully compliant. I am not sure the change being made, which is removing the appointment of a special adviser from the scope of the Act, deals with the concern that people who had been political advisers could be parachuted into positions going forward. All the Minister of State is doing is confirming that the appointment of special advisers will not be done by the Civil Service Commission or anyone associated with it. I am not sure it meets our concern, or am I missing something?
This represents a climbdown by the Minister. When the Labour Party, on publication of the Bill, raised the issue of special advisers, the Minister for Finance, who at the time was taking an interest in the Bill which he did not sustain, said the Government is not empowering itself to appoint advisers to pensionable Civil Service posts. There is nothing unusual in what the legislation intends, therefore, there will continue to be a bar on appointments of special advisers to the permanent Civil Service.
The Minister has now tabled amendments to deal with what the Labour Party said should have been done. I want to take legal advice on the effect of these amendments. I am sure the Minister of State is aware that the most famous appointment of a special adviser by an outgoing Government to a permanent Civil Service post was the well known Mr. Frank Dunlop. While the Minister may not have heard of corruption or lack of integrity in the Civil Service, given my experience in the particular area of local government in which I served——
I would ask the Deputy to be careful when referring to people outside the House. She has linked——
As a matter of fact, he was one of the most famous appointees by an outgoing Government to a permanent Civil Service job.
The Deputy made a statement on another matter and linked it to that statement. I would ask her to be careful.
I will repeat again that given my experience in the particular local authorities in which I served, I perhaps have a more acute appreciation of the risk to the integrity of the public service. This appears to be the case on the surface but I have not had an opportunity to take legal advice on the matter because we have just seen the amendment. Nevertheless, I accept the Minister's acknowledgement of the Labour Party's point that the Bill did not copperfasten ethics legislation and, in fact, removed section 19 of the Ethics in Public Office Act from the scope of this Bill. I welcome the Minister's acknowledgement of the Labour Party's point, which I put forward on publication of the Bill and on Report Stage.
I have not had an opportunity to seek legal advice on this matter and it is a legalistic matter. However, I welcome the Minister's attempt to put things right. This should have been done at the beginning. Some sleight of hand was going on. Nevertheless, I am glad the difficulty has been acknowledged. The appointment referred to is the most famous one. The process of special advisers is helpful to all governments but they should not then transfer to the permanent Civil Service. That is rule we should all look to.
We cannot look at amendment No. 2 in isolation from amendment No. 4. The Minister is merely proposing to move the wording from subsection (2) to subsection (1). Amendment No. 4 seeks to delete the framing from paragraph (2)(a). Can the Minister explain the net effect of the change? As he will shortly propose to remove it from subsection (2), can he explain how moving it to subsection (1) gives it more critical effect?
Is the Deputy referring to amendment No. 4?
I am referring to amendment No. 4 which, while not grouped with amendment No. 2, is linked to it. I merely seek an explanation as to why this wording would be more effective in the earlier subsection than in the later one, where it currently appears.
I am happy to group amendments Nos. 2 to 6, inclusive, together for discussion. Amendment No. 2 is linked to amendment No. 4.
That is sensible.
What about amendmentNo. 23?
Amendments Nos. 2 to 6, inclusive, will be discussed together because they are connected. Other amendments will be discussed in order.
I have no difficulty with that. It will open a wider number of points for consideration, including the initial point regarding the terms "enforce" and "made".
Is the Minister of State happy to respond to these amendments?
The Minister of State will recall that the Labour Party also expressed concerns regarding subsection 26(6). The Labour Party opposed that subsection. Is it your intention, Chairman, to address this section?
Not at this stage. Amendments Nos. 23 to 26, inclusive, are to be discussed as a group.
I am talking about section 26. That section provides that a person appointed to an unestablished position within the Civil Service may, in circumstances specified in the code, be subsequently appointed to a specified established position within the Civil Service. That was a route by which people in unestablished positions, such as special advisers, could be appointed to established positions within the Civil Service. The Labour Party also had a concern about that.
We will discuss section 26 when we reach amendments Nos. 23 to 26, inclusive.
Could the Minister make a general statement about the Government's approach to this important issue?
Are you referring to section 26?
They are linked.
They are linked.
We will deal with section 26 when we come to it.Both sections deal with posts but section 7 deals with excluded positions while section 26 deals with codes of practice. We will not discuss codes of practice at this point.
We are discussing amendments Nos. 2 to 6, inclusive, together, by agreement.
Could the Minister of State answer my query before we address the amendments?
This Minister is not climbing down or putting things right. Concerns were raised by the Opposition during the debate on the earlier Stages of the Bill. The Minister has made a public statement on this matter. It was never intended that the Bill would allow civil servants to take up permanent positions. The amendment represents a belt and braces approach. Two Acts would have to be amended by the Oireachtas for such a thing to happen.
With regard to Deputy Ó Caoláin's query, the order of the sections will follow on. If this amendment is accepted the others will become irrelevant. As we deal with the other amendments this will become obvious.
The Minister of State should give me a little more credit than that. One can follow the logic of that. I am asking him to explain the net effect of moving wording from subsection (2) to subsection (1). How does that address the issue of the position of special advisers and their exclusion from the remit of this subsection?
The amendment is saying that all of these procedures will not apply to the appointment of a special adviser. However, the appointment of an adviser is not the concern. The issue is what happens when a special adviser competes for a promotion within the public service and how selection procedures will happen at that stage. No one is concerned about Ministers recruiting special advisers without going through a legislative process. I agree with Deputy Ó Caoláin that all we are doing here is saying the commission will not apply to the appointment of special advisers. That does not meet the concern raised.
The relevant Act states clearly that professional advisers must relinquish their posts when the Minister who appointed them departs.
Section 1 states clearly that no order shall be made to appoint a special adviser to a permanent position. Section 2 includes the wording "unless an order is made". It is clear that an adviser cannot be appointed to a permanent position.
My query does not refer to the appointment of special advisers or anyone else. The Minister of State referred to an appointment to the position of special adviser but not to an appointment where the person being appointed is a special adviser. The section does not provide what the Minister of State thinks it provides.
Section 2(1)(a) refers to the appointment to a position of special adviser within the meaning of section 19 of the Ethics in Public Office Act 1995. It specifically refers to a special adviser.
It is not a question of how special advisers are appointed but of some other position being filled and a special adviser being given some sort of an inside track advantage. All those potential promotions cannot be debarred from the scope of the Act. There must be a debarring of favourable treatment of special advisers in accessing such positions and that is not provided for in this Bill. I have no objections to what is being done but it is not achieving what the Minister of State thinks it is achieving.
Section 7(2)(a) proposes that the appointment of special advisers would be excluded from the scope of the Act but that an order might be made by the Minister for Finance to bring them within the scope of the Act. The effect of this amendment is that the special adviser cannot be appointed to a permanent established position in the Civil Service unless there are further amendments to this Act and to the Ethics in Public Office Act which requires that special advisers lose office at the same time as their Ministers. That means they cannot apply for promotion or apply to remain on as they lose office at the same time as their Minister. Unless the Ethics in Public Office Act is changed to allow them to stay on and likewise——
In practice it is not a new post. This is dealing with new posts. Is it not the case that they would be applying for a promotional position which already existed and not a new post?
A special adviser is totally different from an established Civil Service position. A special adviser cannot be promoted to a Civil Service position. The candidate would have to enter the Civil Service and go through the procedures first of all. Once the special adviser's Minister leaves his position there is nothing to stop the adviser applying to the Civil Service.
If it was the position of Government press secretary, for example.
That is a Government appointment.
On the very same basis as everybody else.
The reality is it hinges on the Ethics in Public Office Act, not on the change being made in this Bill.
This amendment makes it impossible for a special adviser to become part of the established Civil Service.
We are discussing amendments Nos. 2 to 6, inclusive. Are there are further questions on those related amendments?
The point of my amendment No. 3 is to delete "made" and substitute "in force". This is because an order could be made under section 6 but then could be repealed by section 6(2) and would no longer be in force. It is a technical amendment. Is the Minister of State willing to accept it?
It is a technical amendment and I am not prepared to accept it at this time but I will examine it to see if it can be accepted on Report Stage.
Are there any questions regarding amendment No. 4 in the name of the Minister?
Will the Minister of State provide us with a copy of his speaking notes on amendments Nos. 2 and 4 because they are very technical?
Are there further questions on amendment No. 5?
Amendment No. 5 is a technical amendment and does not affect the content of the subsection. The amendment will result in the clarification of current subsection 2(d) by adding “whether or not he or she is required to serve on trial under section 12 of the Civil Service Regulation Act 1956”. It also moves the current paragraph (g) to follow directly after (d). It is proposed in order to provide clarity in relation to the particular sections of the Superannuation Act 1959 and the Civil Service Regulation Act 1956 which apply to persons who have retired from the Civil Service on grounds of ill health but who subsequently are recalled to work in the Civil Service. It would also provide that two subparagraphs dealing with similar groups of civil servants arise consecutively making it easier to read the Bill. It is to do with people who retire due to sickness and who are recalled when they recover their health. They do not have to undergo the process of application.
Are there questions on amendment No. 6?
Will the Minister of State explain the proposal to delete subparagraph (g)?
The proposed amendment is consequential to the consecutive groupings of the current subparagraphs (d) and (g) of the section, both of which deal with the return to work of retirees due to ill health. The amendment deletes the subparagraph which has been replicated earlier in the section.
Amendment agreed to.
I move amendment No. 3:
In page 12, subsection (2), line 24, to delete "made" and substitute "in force".
Amendment put and declared lost.
I move amendment No. 4:
In page 12, subsection (2), lines 28 and 29, to delete paragraph (a).
Amendment agreed to.
I move amendment No. 5:
In page 12, subsection (2)(d), line 38, after “Service,” to insert the following:
"whether or not he or she is required to serve on trial under section 12 of the Civil Service Regulation Act 1956,
(e) is to a position in which such person is required to serve on trial under section 11 of the Civil Service Regulation Act 1956,”.
Amendment agreed to.
I move amendment No. 6:
In page 13, subsection (2), lines 1 to 3, to delete paragraph (g).
Amendment agreed to.
Sitting suspended at 1.20 p.m. and resumed at 2.30 p.m.
I move amendment No. 7:
In page 13, subsection (5), line 30, after "Dublin" to insert ", which Act may be cited as the National Gallery Establishment Act 1854".
This technical amendment addresses the absence from the 1854 Act of a Short Title by seeking to provide it with one. I assume the Minister will bring this matter to the attention of the draftsmen. If he cannot accept the amendment now, the matter should be dealt with on Report Stage.
We will examine it and see if we can accept it on Report Stage.
Amendment, by leave, withdrawn.
Section 7 agreed to.
SECTION 8.
I move amendment No. 8:
In page 14, subsection (6), line 16, to delete "subsection (3)” and substitute “subsection (3)(a)”.
Perhaps the Minister might clarify the amendment.
Section 8(2) provides that the commission for public service appointments may make an order to declare that a specified unestablished position shall be excluded from the scope of the Act for a specified period. That means it will not be necessary to have a competitive process governed by codes of practice to appoint persons to those unestablished positions. Section 8(3) provides that the commission for public service appointments shall not make an order except (a) at the request of the person authorised to appoint persons to the unestablished post concerned and (b) if that person is not the Minister for Finance, with the consent of the Minister for Finance. The purpose of that proposal is to ensure the Minister for Finance is involved only in the initial designation of a post as an excluded position. It is not deemed necessary for the Minister for Finance to be involved in any decisions to amend of revoke designations once made. That is to be achieved by specifying the reference in section 6 to subparagraph (a) of subsection (3) rather than the entire subsection.
Is the purpose of this section overall to retain for Ministers the right to appoint to certain unestablished positions? Is that what is being secured here? I know the existing practice is that certain positions in ministerial offices are deemed ministerial appointments. I am interested to know how satisfactory that is. It seems something of an archaic system at this stage that Ministers should effectively select people from lists for positions in the public service at the lower end. I wonder whether we should abandon that sort of procedure. It is not really in tune with a modern public service.
It is to allow temporary appointments in the Civil Service. It could be in the case of the national census or regarding the passport office at a time of peak activity when one would need temporary appointments. That consideration is for the Minister. It is not very widely used. I have examined some of the figures, and to date this year it has been used only ten times. It allows important flexibility in the Civil Service so that, when extra help is needed, that can be provided.
Can I clarify the position of porters, messengers and cleaners? There is a rake of staff positions in public offices where the procedure is that people must be recommended by FÁS. However, ultimately, it is ministerial selection. It is an old system of patronage that is past its sell-by date, and I seek clarification from the Minister on Government policy regarding such appointments. That system of appointments does not tally with the proper separation of duties between Ministers and Secretaries General, and those positions should be filled in a more transparent and manifestly fair way. This seems to be our opportunity to deal with that issue. In that context, this section sounds like a charter to retain that sort of procedure.
Section 8 does not deal with those posts to which the Deputy refers. Those are dealt with under section 7(3). It lists several scheduled occupations excluded from the Bill. They are set out in Schedule 1 on page 48 of the Bill.
Does the Minister of State agree this is a legacy of a much earlier era that we should now abandon? We are trying to produce modern legislation for a modern public service.
It certainly is a legacy. It has probably been there since the origin of the Civil Service. I am not sure, but it has been there for a long time. The Minister can make an order to deal with that if he deems fit.
I am asking the Minister of State, in his position as representative of the Minister, whether he deems it fit to make such an order and abandon that practice.
This Bill deals with recruitment to the Civil Service. The people concerned are service officers and attendants, night watchmen, cleaners and so on. They are not typical civil servants.
Why do they not have the right to probity and everything that is listed in section 25? Candidates must be selected on the basis of merit, fairness and equity. The process concerns best practice, good governance and protection of the public interest. Whether one is applying for the post of cleaner or Secretary General, one is entitled to expect that fair procedure will be followed. Manifestly, the system is designed to foster political patronage rather than fair procedure. We have a net choice here. One cannot say it is a matter that the Minister can change by order. The Minister of State is seeking to exclude those from the Bill. He must justify and set out his reasons for that if he seeks to continue their exclusion from fair procedure. It seems anachronistic in a modern country.
We are talking about a particular section of the Civil Service. It is a legacy, and I have no reason to believe that probity, fairness, equity and all the other factors to which we aspire are not involved.
Is the Minister of State living on a different planet? These positions are appointed by the Minister.
The Deputy need not tell me about that. I am getting a little fed up of being accused by Deputies Richard Bruton and Burton. They should tell me about some experience they have had.
What happens is that Ministers receive several constituents who make representations to them. They are presented with a list which would include their constituents, and by and large they will pick them from among a list of others who may be better qualified. That is what happens; that is how the system works. My point is that the Minister of State does not know about that——
I do not understand that to be the case.
That is the case. It has always been so. These positions are appointed by Ministers. They are not appointed through proper competition. Ministers can overrule rankings and so on without proper procedure. It is anachronistic. I am not pointing the finger to say it is corrupt, since it has been the system that people make appointments on those grounds. People are vetted to see that they are capable of doing the job, and obviously that is the case, but the process is not fair in the sense that others would understand the term, since ultimately the selection is arbitrary and made by an individual. We have an opportunity to pass judgment on that system. In 2004 we must make the judgment that that system is past its proper shelf life.
I understand there are certain areas of appointments where it is very much appropriate for the Minister to make decisions, particularly in security and defence. I would certainly not want to take that authority from the Minister. There are security considerations in some of the appointments, so we cannot make a blanket statement on it today.
Why would the Minister know better about security than people who are appointed to an interview panel? If the commission for public service appointments set up and ran a competition, it would bear in mind the security issues and ensure applicants had the proper Garda clearances etc., making appointments on the basis of that sort of fair process. One does not need the intervention of a Minister who probably knows nothing about security clearances.
I am sure there are very appropriate circumstances in which the Minister would have information available to him that would not be available to any interview panel.
The Minister can include these particular individuals by order if he so wishes. However, we have reflected on what is in the 1956 Act and have no reason to believe there is anything wrong with it. The system seems to be working fine and therefore we did not recommend any change.
We are all in this together. Do we, as a committee, believe this is the way to proceed? I do not. This is not just a question of dividing on party lines. Do we believe we still ought to have Ministers intervening to appoint people they know on predominantly political grounds? I seem to be in a minority but I do not believe we should be endorsing this approach. It hardly fits in with the thinking of the Progressive Democrats.
I am sure the Deputy will be able to articulate what that is because everybody else seems to have a very clear view of it.
The Minister of State cannot pretend this does not concern him and that he is just holding the ring. This makes the debate pointless.
Under section 8, with which we are dealing, we are talking about temporary unestablished positions. We are not talking about the particular positions alluded to by the Deputy.
That is a very profound observation.
We are talking about two very precise areas.
Yes, and I am talking about unestablished positions, which include cleaners and messengers. Is the Minister of State saying he will stand over a position where they are appointed in the way they are currently appointed? Does this fit in with the policy of the Progressive Democrats on openness, transparency, the free market, the requirement of a fair chance for everyone, the need for no insider trading and no favouritism and all the other policies for which the party has rightly received considerable credit for articulating?
With regard to the positions in question, as a member of the Progressive Democrats or as a Minister of State, I have no difficulty with the system that prevails. If the Minister sees fit, he may change it by order. Most, if not all, of the positions are applied for by way of a competition and people are chosen——
It is not a competition but a competence test.
I am really disappointed with the Minister of State's response. Sometimes when one first takes up office as a Minister and finds there are certain areas in which a Minister can have direct influence, it is very attractive to retain such influence. It would be far better if the recruitment process was completely removed from the political sphere, particularly regarding the jobs held by cleaners etc. It would be better for all the political parties.
That is a bit rich given the Labour Party established new positions left, right and centre, including programme managers and special advisors, in greater numbers than anybody else——
That is a red herring.
The Minister knows well that the current Government probably has more people working for it than the combined——
We have 600,000 more people working.
There are more people working in Ministers' offices than there were in those offices during the terms of all previous Governments put together. Having advisors and the people who staff the Tánaiste's office — I am not sure of their exact title——
The Deputy should speak to the amendment. That is not relevant.
The Minister of State raised this issue. The Progressive Democrats has kept the system and the reason it has done so is because having expert advice available when somebody takes on a senior governmental role is extremely useful. Sometimes this advice is provided by people from within the public service and sometimes from people outside it. I can only speak for my case and anybody I appointed to such a position was an independent expert and not a party member. Therefore the Minister of State should not pull strokes like this with me. His own record is not wonderful.
Before the Deputy makes a broad statement like that, perhaps she should outline her views to the committee.
The Minister of State is the person with flags saying to civil servants, "Welcome to Parlon country."
I would like the Deputy to outline——
The Minister of State is the person who welcomes people with banners stating, "Welcome to Parlon country", as if he owned a slice of the public service.
The Deputy is involved in repetition and her comments are not related to the amendment.
The Minister of State started this.
The Deputy's comments are not related to the amendment.
Will the Chairman keep the Minister of State in order because he started this discussion?
The Deputy referred to my record on hiring people and I would like her to expand on it. If she knows something about it the committee should know about it also. I do not like a slur on my character.
I am referring to his advertisement in the media, directed at our public servants, in which they are welcomed by him and his party members to his county. I believed we had an independent Republic and the Chairman and I were not aware that any part of any county was owned exclusively. I and Deputy Richard Bruton have made reasonable comments about an area which, from time to time, gives rise to justified concern. The Minister of State may not have the political experience to be aware of this. I hold to the position that it would be better for all the political parties and the political process in the long run if the recruitment process was removed from direct political patronage.
The debate on the amendment has concluded.
Could I clarify a point? Are we proposing that, if the new devolved appointment system goes ahead, local managers will be making all the appointments to all sorts of positions at their own discretion without any reference to the codes of practice?
One can only apply for a licence if one abides by the code of practice.
I refer to those with positions outside the scope of all the codes of practice and all the terms of the Act, including cleaners and temporary staff. Are we agreeing that such positions will now be decided by the individual manager on the site?
No, they will be decided in the very same way as they were decided previously.
What way is that?
By the Minister.
By the Minister.
Will the Minister will be appointing cleaners, for example, in Killarney and all the decentralised offices?
As the Deputy knows, the Minister is ultimately responsible for everything that happens in his——
No. He is not responsible for appointing civil servants. Until now in our political history, this was done by an independent commission. The Minister of State should read the early history of this State.
The Deputy is answering my question for me. I was asked the question by Deputy Richard Bruton.
We will be here——
I suspect Deputy Finneran will vote on this amendment on predictable lines——
This issue has been under discussion for too long.
The Deputy did not want to interrupt.
Red herrings are being referred to left, right and centre.
This is not a red herring but the core of the Bill. We are excluding certain positions and about to devolve recruitment power down the line. Is the Minister of State saying he, as Minister of State with responsibility for the Office of Public Works, will personally appoint cleaners to the OPW in Edenderry or wherever the offices are to be located?
I have been responsible for the Office of Public Works for almost two years and I have no idea where the cleaners come from. I am sure they do not come from Laois-Offaly and I am sure that is the case in every other Department. It is taken care of by the management of Departments.
For God's sake, we are creating legislation here and not just providing a running commentary. We are creating the framework within which these people will be appointed. The question is——
I am referring to unestablished positions, which are temporary.
Yes, but why should the Minister of State appoint unestablished cleaners in OPW offices all over the country?
Unestablished positions often lead to permanent ones.
What is the point or merit of that?
That has been the established process down the years.
The purpose of this Bill is to change established practice.
It is about the Civil Service and the Deputy has been very particular in his comments stating that under no circumstances should unestablished special advisers be allowed to become established.
That is right.
I have no problem with that.
Absolutely. These are unestablished positions. They are service jobs which have to be filled and are very important jobs in every Department.
Why should they not be filled in a fair and open way, like every other job in the public service? Why is the Minister of State red-lining these and putting them aside to make them ministerial appointments?
It is because——
We are here to change what has been done. We are in the business of making new law not endorsing the past weaknesses of the system.
If the Deputy wants to talk about contradictions, I previously heard him state "if it ain't broke, don't fix it" — he did not want to change anything at all.
I did not say that.
Now all of a sudden he wants to include every temporary cleaner in the provisions.
Chairman, I would like to see from where the Minister of State quotes me as stating "if it ain't broke, don't fix it". I never said that. The Minister of State is creating changes which together might damage the public service, about which I am worried. On this specific issue, I see no reason the Minister of State should be appointing people as cleaners left, right and centre, in OPW offices all over the country and we should change the archaic system.
Section 8(3) states:
The Commission shall not make an order under this section except—
(a) at the request of the authority duly authorised to appoint a person to the un-established position concerned.
In this context, I assume the authority duly authorised is the senior Minister in change and that if the authority is not the Minister it is with his or her consent. That is the format and procedure laid down and I see no reason to change it because it works or appears to work.
So much for the principles of the Progressive Democrats.
In the context of the presentation of this Bill, we were given to understand that one of the advantages of a number of the changes is that modern legislation in respect of employment rights will now apply to the Civil Service, for example in respect of the powers to hire and fire and the interpretation given by the EU on temporary appointments. The net point is that under EU legislation, if someone works for a sufficient period of time on a temporary whole-time basis or on an unestablished basis in a particular job, he or she will accumulate more permanent employment rights.
I personally know of a number of cases in the OPW but I do not know if they are typical. However, although Ministers are not involved in such appointments, it has long been custom and practice, particularly in the health boards, that when someone has given satisfactory service in an unestablished position, it has been a powerful lead in to him or her getting an established position. Nonetheless, they still have to go through the recruitment and appointment process.
The Minister of State has referred to this legislation updating workers' rights in respect of EU legislation. However, I am concerned that, with the accumulation by workers of the rights conferred by EU interpretations of law in regard to temporary unestablished positions becoming whole-time jobs, we are not sure what the ultimate effect will be. Since this legislation is meant to last for quite a long period, I ask the Government to reconsider Ministers having such widespread powers to appoint people to unestablished positions from lists because they potentially lead to establishment rights. I have spoken to a number of people in the unions about this issue and they have confirmed that this is the case. We are not trying to be unreasonable but we feel the Minister of State ought to introduce a scheme whereby the fairness of appointments to unestablished positions is transparent.
I do not see why the Minister of State should feel threatened by doing this. In the cases of a great many Ministers in all Governments, there has never been any suggestion of any excessive or wrong operation of a patronage system. However, in the case of a number of politicians in the past 20 years, unfortunately, there have been suggestions that institutions have become widely identified with one particular political party because of the manner in which appointments were made to them.
When one goes back to its early days the State was under siege from people who had served the in the War of Independence trying to get themselves State sinecures. The Minister of State would be foolish, given his ethos as a Deputy, if he did not seek to make this area of ministerial activity transparent and understandable to people who are applying for jobs as cleaners and so on. In this way people will see it is not necessary to visit the Minister's constituency office or to telephone him or her to ask for a job as a cleaner in a Department. If we remove those sources of political patronage, it will put everyone on the same footing and would be better for politics in the long run.
Deputies Bruton and Burton are former Ministers of State and will realise that Ministers have a great deal of responsibility. One does not become a Minister overnight — one must earn one's stripes, be elected and appointed by the Government.
The Minister of State did not take long himself.
The overnight success might not be an accurate reflection of the number of stripes I have on my back. Ministers have substantial responsibilities and that of the selection of their cleaning staff is not one I would be overly concerned about.
The Minister of State need only look back on a few of his predecessors.
I heard Deputy Burton state that there is no evidence generally of Ministers' abuse of patronage.
There are a few notorious exceptions.
If the Minister so chooses, he or she may bring this issue within the scope of the legislation as provided for in this Bill. Custom and practice has dictated this and since Deputy Bruton wishes to highlight the major sins of some Minister in the excessive use of patronage, perhaps the Minister in question may be encouraged to make such an order.
Patronage should not be there. I am not saying it is being abused but that it is antiquated, outdated and has no place in a modern public service. It should just go.
The Minister of State did not answer my points about the changes in the legislation in regard to employment rights and the impact of EU decisions on unestablished workers accumulating more permanent-type employment rights as a consequence of unestablished service.
The legal advice is that any worker appointed under the fixed-term workers legislation and who is retained is entitled to a contract of indefinite duration. That is not a right to have an established job. That advice was very clear — the contract can be broken by either party if adequate notice is given.
Under current EU regulations, a person appointed to an unestablished position accumulates rights to retain that unestablished position indefinitely while the position remains. If the job is abolished, the person's right is abolished with it. If a job exists for a certain period, under EU law and the legislation being incorporated in this Bill, the person is effectively established. That is a significant change for certain grades of the public service. A Minister can appoint someone to an unestablished position and by virtue of that person serving two or more years, he then has the right to hold that position on a permanent basis even though it was a ministerial appointment. That should not be within the ministerial gift.
It is unfortunate that these cases are unclear because the legislation represents a fundamental change and offers an opportunity to put the system on a sound footing with transparent mechanisms. This is important because the Bill incorporates new rights from the EU into law. The patronage of the past should not become even more widespread now.
A permanent unestablished position is a contradiction in terms. There are substantial changes in EU law and the Department of Finance is looking at them. The legal advice we have received supports our position but we will keep it under review. If changes are imposed as a result of EU law, we will look at them but unestablished positions do not guarantee anyone a full-time job or position.
With the importation of employment law into the Civil Service, if a person serves an unestablished contract for more than a set period, he accumulates permanent rights. In the private sector, employers often break staff contracts for three or four months to prevent employees from acquiring rights. That does not happen in the public service and if a person performs satisfactorily in an unestablished position, his employment will be renewed. As a result of these changes Ministers will have a back door route to permanent employment in the public service without a transparent appointment process. That is not a healthy idea for our Civil Service.
The advice we have is that the contract can be broken by either party if adequate notice is given by either party.
Amendment agreed to.
Question: "That section 8, as amended, stand part of the Bill," put and declared carried.
Section 9 agreed to.
SECTION 10.
I move amendment No. 9:
In page 14, lines 35 and 36, to delete subsection (2).
I raised this section with the Taoiseach on the Order of Business yesterday. He stated there would be time to discuss the financial resolution moved yesterday, which gives effect to this Bill, to allow the commission for public service appointments and the public appointments service to charge licence holders and candidates fees for services.
The Bill states that a licence holder may charge fees, if any, to candidates for a competition to which this Act applies. While I appreciate the public service appointment structures would charge the agencies for which they are providing recruiting services, we are providing more explicitly than in the 1956 legislation that candidates for Civil Service jobs may be charged competition fees. It is an invidious notion which I invite the Minister of State to drop. I asked around in the public service if there are sections where candidates for positions are charged fees and could not find any. No Civil Service or public service body has ever charged fees.
With decentralisation to 56 different locations, licence holders will have individual powers to charge fees if we allow this subsection to remain in the Bill. What about applicants from a low income background, students and the unemployed? In the last seven years, this Government has introduced a range of stealth taxes and charges. The Minister of State should admit that the financial resolution passed by the Government yesterday will result in licence holders charging candidates fees for services. That is invidious and wrong, and I hope the Progressive Democrats will make its position on this clear. Letting down widows to the tune of €60 million in an economy where a great deal of money is being spent on projects such as the Punchestown race course development is bad but to suggest that we must now give the Government an unregulated right to charge candidates for public service appointments is wrong. If we could not trust the Minister of State in regard to widows why should we trust him with these powers over fees for job candidates? I object to this section and the purpose of the Labour Party amendment is to delete the section dealing with the fees to be collected from candidates.
I strongly support Deputy Burton's position. An unhealthy trend is creeping into the private sector whereby employers impose charges on candidates for recruitment on spurious grounds such as participation in a day's training or induction. It is a very retrograde approach. We should take a strong line on the point that every citizen, regardless of what he or she earns, has an equal opportunity to gain access to posts in the public service. We should not charge people who want to apply for public posts as advertised. The State must draw the line there. It cannot charge people for something as basic as applying for a job. That is unthinkable. Deputy Burton is right that it should be removed from the Act. It is not an enabling power that we want to retain even where there is no intention of implementing it.
This is not a matter of trust and scale because the Government is no longer trusted and the scale is irrelevant. The level of charge or fee applied is not important. This is a point of principle and it cannot be countenanced under any circumstances. That people would be charged a fee to seek employment runs contrary to the best practice one would expect in terms of job opportunity and recruitment to the public service. Where will this end? It permits other sectors to argue that if the public service can do this with Government blessing so too can they. Such is the competitive nature of recruitment in workplaces that once fees are introduced different levels will apply automatically and opportunities in some echelons will become the preserve of those who can most afford to seek them. That is unacceptable and once this door is opened, however little, it will lead to this possibility in the future.
The Government must accept this amendment and I have no doubt that Deputy Burton will press it. It must be reflected here exactly as it was in the Chamber yesterday. I urge the Minister of State to recognise that this will be absolutely unacceptable to most of those who vote for him and his party. He should make no mistake about that.
This is not a new notion that arrived last week or in the last two months.
It arrived yesterday.
It was in the 1956 Act which provides that licence holders may charge fees for a competition. Section 16(2)(e) of the Civil Service Commissioners Act 1956 provided that the commissioners could charge candidates. There is no intention to charge candidates but there is no reason not to retain an ability to do so in some circumstances in the future. The Minister has retained these provisions from the Civil Service Commissioners Act 1956 to provide flexibility. The provision has been little used and is in effect silent although it may have been used in the 1980s. It is not our job to remove flexibility and circumstances may arise in the future whereby for a specialist job one imposes a fee to prevent frivolous applications, or for whatever reason. It has been there since 1956 and the intention is to leave it there.
The Minister of State's response is very inadequate. On the Order of Business yesterday the Taoiseach promised that a full discussion would be possible on this issue but the Minister of State's four lines are far from a full discussion. This Bill is paralleled by the Civil Service decentralisation Bill.
Which Bill?
I apologise. I am referring to the Civil Service decentralisation process. In future a significant part of recruitment will be handed over to local private recruitment agencies. I do not know whether the Minister of State has much experience of such agencies. I have experience of them in my constituency. Many young people gain temporary employment through private recruitment agencies, as do many who work in IT services. Those agencies charge handsomely for their services through various devices. Applicants may do tests for which they, or sometimes their employers, pay. They may also have to complete special training for which sometimes the employer and sometimes the applicants pay. It also happens in Dublin that private employment agencies which recruit temporary secretaries effectively charge the successful candidates by means of the levy charged to the employer. The same applies to agency nurses, as anyone working in the health service knows. This is the type of agency which will in future be actively involved in public service recruitment at local level as is the purpose of this Bill, according to the Minister of State.
This is inappropriate. Decentralisation of the recruitment process is wrong but the Minister of State is also significantly privatising large parts of the process. Private recruitment agencies charge hefty sums which come back to the individual employee, either as a reduced hourly rate because the additional money is passed on to the agent who did the recruitment, or by a range of charges. In some cases recruitment agencies at management level for accountants and so on can charge a hefty fee. Previously recruitment was handled by the Civil Service Commission and I accept the Minister of State's point that in the past the commission did not charge fees but I do not accept the same point in any form when it concerns an undertaking in respect of private recruitment agencies to which this Bill assigns a significant role. I do not know if the Minister of State has a son or daughter who sought work through a recruitment agency, but some of them can be highly expensive to the individual. This proposal gives a green light for a candidate fee to be imposed on an open competition. The Minister of State should remember the complex tests and interviews for, say, the Garda or third secretary in the Department of Foreign Affairs. If these tests are handed out in whole, or in part, to private agencies, they will charge top dollar. I foresee that with the level of charges applied they will be passed on to the candidates. I propose to delete the power given in this section. This amendment concerns the integrity and fairness of public service recruitment with its underlying principle that recruitment should be open to all.
Did the Minister of State say "spurious" or "frivolous" applications for Civil Service jobs? That was the same line that was spun when the Freedom of Information Act was amended. The remit of the Act was significantly narrowed on the basis of one frivolous repeat application to one Department. It was the only example brought before this committee. Interestingly, the term "frivolous applications" re-emerges when this Bill is described as a deterrent to frivolous applications to the public service. In my long experience working in the public service before politics, and as a Minister of State, I have never come across frivolous applications for public service jobs. It brings to mind the language used when narrowing the right to freedom of information. Where are the examples of frivolous applications for public service jobs?
The Civil Service Commission never used this mechanism before. I have no objection to the privatisation of certain elements of recruitment. Allowing recruitment agencies with specialist skills to play a part in recruitment is a good idea. It prevents the commission having to have all ranges of expertise and allows it the opportunity to use resources where it sees fit. However, this proposal will combine the use of private agencies while the power of the right to charge will be vested in the licence holder, without any say so by the commission. The protection of the commission setting a view as to how public service appointments should be treated in respect of charging candidates will no longer exist. Instead, the process will be in the hands of hard-pressed county managers or health board officials using recruitment agencies. The agencies will inform the recruitment managers of their costs which will not be covered in the manager's budget which, in turn will force them to charge the candidates.
If the Minister of State wants to protect the general policy of the commission but leave a long-term discretion for rare cases, then it must be vested in the commission and not pushed down the line to the licence holder. The Bill should contain a public statement that charges are not expected to be levied in respect of general competitions but only in unusual circumstances with reference to ministerial approval. Though I would like no charge whatsoever, I could live with a provision that offered such protection. The combination of pushing this down the line with the right to charge fees will result in fees being charged either from day one or after a year's grace to give the illusion that there is continuity with the past. This proposal is wrong and should be re-examined.
The section states that a licence holder may charge fees which, make no mistake, is a green light to any licence holder. While the Minister of State claims this option has been on the Statute Book since 1956 but has rarely been employed, the private sector will avail of the opportunity as night follows day. It is highly objectionable as past situations are not the same as what will apply in the future. This raises the terrible vista of candidates having to pay for the right and opportunity to apply for a position within the public service. It runs contrary to what society considers fair and equitable.
Once it is introduced, there is no provision for control or regulation. Instead, it will be self-regulated by those in whom the authority has been vested and who will write their own ticket. It is not acceptable that some positions will now be outside the reach of ordinary people, particularly those from underprivileged backgrounds. The way to deal with it is not to curtail the level of fees that might apply but to remove the entire section from the Bill. The temptation to licence holders must be removed because they will find it impossible to resist. It is incumbent on the Government to recognise that this provision cannot be justified on the basis of its existence over the past five decades as we are now facing a different situation in recruitment. It astonishes me that the Government is introducing this provision given all that it knows lies ahead. The Opposition alone should not have to point this out. There should be sufficient wit and wisdom among the collective minds that have drawn up this legalisation to recognise this will create a large chasm into which many will fall. This proposal must be arrested now and removed. I support Deputy Burton's amendment.
This provision has been in legislation since 1956. Is it at the discretion of the Minister or the Civil Service Commission? The legislation states a fee can be imposed either on the employer or the employee. While I understand the reasons for it remaining in legislation, the one protection everyone wants is that an applicant, personally, would not incur an exorbitant fee. It is appropriate to introduce a level of competition among agencies, and perhaps expertise too, with regard to public service recruitment. Everyone would understand that. It would be more appropriate in some circumstances, especially where specialities are involved, for example. One area for which we would like to see protection is that of the applicant. There are circumstances where the usage would be inappropriate and perhaps a major imposition on people who have left school, for example, but we would be foolish to move away from using agencies, or from outside recruitment. I support such usage. We should have introduced it long ago.
Returning to my first question, was such usage always at the discretion of the Minister, or was it available to the commission as it stood? If we got an answer to that, the position might be determined.
I understand it was available to the Civil Service Commission. It was used for a short period in the late 1980s when there was a very high level of applications for Civil Service jobs. I understand the charge then was £10. The system was abandoned shortly afterwards, for reasons I do not know. We may or may not be more prone to temptation now than over the past 50 years or so, but the system is very little used.
It is not the same mode of selection as in the private sector.
Deputy Richard Bruton referred to a situation where a hard-pressed county manager might see this as a golden opportunity to sort out a budget by charging €1,000 to each job applicant in whatever area, such as truck-driving. To allay those fears, section 10(3) notes that fees collected and taken under that section by any other licence holder "shall be paid into, or disposed of, for the benefit of the Exchequer, in accordance with the directions of the relevant Minister, issued with the consent of the Minister." The suggestion that someone will collect such charges in order to solve his or her own problem——
That is not what I said. I said the danger is a recruitment agency could present a substantial bill to a county manager for the recruitment competition and the manager, not having a budget, might conclude that the easiest thing for him or her to do would be to charge the applicants so they would in effect pay the bill. I did not say a county manager might try to solve the county pothole problem, or any other problem, with such charges.
The agency does not retain the funds. They go to the Minister for Finance. There is no benefit for the agency.
The Minister for State should read the relevant section in his own Bill. It is very clear. Under that section, the funds "shall be paid into, or disposed of, for the benefit of the Exchequer, in accordance with the directions of the relevant Minister, issued with the consent of the Minister." If an agency or licence holder brings forward a scheme of recruitment and says it will charge each applicant perhaps €100 or €40, and if the Minister consents, the licence holder's fee will be covered in that way. That section of the Bill provides no assurance. It simply means the scheme put forward by the licence holder would make provision for a certain fee to be charged to each applicant, which would presumably match the fee charged by the recruitment agency for operating the scheme. The section offers me no reassurance.
If the Deputy thinks this is the solution to some Exchequer deficit problem, that we are going to charge for job applications, she should be more realistic. The scheme allows flexibility for use by the Government in any circumstances in which it may see fit in the future. It has been little used in the past 50 years. The temptation referred to by Deputy Ó Caoláin was not succumbed to. The scheme was used only for a very short period. The Government does not intend to apply it, or to remove the flexibility.
The difference now is that we will have a widespread, decentralised and partially privatised recruitment system. Currently, the Civil Service Commission successfully uses the services of many private recruitment agencies. These agencies are already involved in the recruitment process. Under the new legislation, such agencies will be licence holders. Section 10(2)(b) notes that a licence holder may charge fees to a candidate for a competition to which this Act applies. I do not know if the Minister has grown-up children, or any recent experience of recruitment agencies. I believe some of us here have. The recruitment agency business is legitimate, and there is nothing wrong with it, but some people’s experience of such agencies, particularly the experiences of those who are less advantaged——
I do not like to interrupt the Deputy, but she is confusing licence holders with recruitment agencies. It is the licence holder who will be paid, and the licence holder will be a Secretary General of a Department, a county manager or a chief executive of a health board.
That licence holder may use a recruitment agency. If one looks at the recruitment of gardaí, that is, quite correctly, a complex, drawn-out, expensive process. It involves aptitude tests, examinations, perusal of the person's qualifications, Leaving Certificate results and so on. A similar process applies to selection of Army officers. Recruitment in many areas of the public service is expensive. It is surely a fundamental principle that with regard to people applying to the public service, we should be able to take applications from every person in this State, regardless of religion, creed or financial background. If one is to introduce the charging of a fee to applicants, one must bear in mind that a Leaving Certificate student who might be going to college, or perhaps thinking of a job in the public service, might make ten such applications. The proposed scheme is, potentially, enormously expensive. As I said, a number of agencies already have structures. I see them operating in my own constituency. People have to take aptitude tests and so on.
The Deputy is confusing matters.
No, I am not. I have a lot of industrial experience. Would the Minister of State agree with the Department of Agriculture and Food being allowed to impose a unilateral fee of €100 to €500 on applicants for farm grants? He would be the first to say this would be unfair to farmers, and he would be right.
What I have been saying has nothing to do with anything like that.
There should be equality in dealings with the State, and when one introduces fees under the structures proposed, one is potentially introducing blatant inequalities. I am very surprised that some of the Fianna Fáil members of the committee do not appreciate that, but it clearly a long time since their supporters used to apply for Government jobs.
This provision has been in the legislation since 1956, which is 48 years ago. No change is proposed.
It has changed, because the licence holders were not there previously.
The provision was used only once in the last 50 years or so. There may have been a good reason for using it at the time. There is no reason why it should be exercised now, and if it is exercised by an agency or a licence holder, the money must go back to the Exchequer. I do not see why the debate is being broadened to cover whether there is some way someone could lean on candidates. I got the answer that I needed from the Minister, and that was fairly clear. Perhaps there is an attempt here to make out that the licence holder was someone other than an employee or a Secretary General of a Department, county manager or CEO of a health board. They would not get into collecting money to hand it over to the Exchequer on the basis of their recruitment, since that would only entail further administration for them. I do not accept the argument being put forward. The member mentioned that the party of which I happen to be a member was worried. I am quite certain that the same provision will apply now and in the future as has done in the past. There is a reason for our being there. I accept the Minister's bona fides on that.
Perhaps I might raise with the Minister the matter of this Government, as part of economic policy, slowly but surely moving towards the principle of full-cost charging for a range of services. The Minister for Finance has gone on record on several occasions. One need only look back over the last ten years at the evolution of full-cost charging, for example, in the planning process and the regulation of waste and waste collection. There is a series of examples where we have moved to charging for services. That charging structure has been exercised and in many cases become extremely expensive. With this Bill, in a scenario where we have a new structure of public service recruitment, the commission will no longer be there. It imposed charges for a limited time only in a period of financial crisis before withdrawing them, I presume because they were considered deeply inappropriate.
The Bill proposes a different, decentralised system. It may take a few years to come about, but as sure as night follows day, this is the green light for licence holders to impose charges, should they so wish. Whether the money, as with waste management, ultimately goes back into the State's coffers is a separate question. The point is that in many instances where we have privatised services on a full-cost basis, the cost for the consumer, in this case the applicant for the public service job, often ends up being rather high. Yesterday the Taoiseach promised me that we would have a full and detailed discussion on this. I am sorry but I do not think we are having that. The Minister says we are to accept his assurances given today and down the years. However, this Bill sets up a new structure very unlike the previous one, and it represents the green light for charges. I ask the Minister to remove it from the Bill.
Deputy Burton, in her concluding remarks, made the point very well that the issue is not of where the fee ultimately goes but that it is being charged in the first place.
It is not being charged. There is a provision to charge.
The option is there. The Bill provides for a charge to be made. It has been exercised in the period, as the Minister advises, and in the situation now to apply there will, in my mind at least, undoubtedly be a greater penchant for or disposition towards effecting that charge. In principle, we should oppose that provision full stop. It should not be there and on that basis alone it should be removed. I support Deputy Burton's amendment.
Amendment put.
The Committee divided: Tá, 3; Níl 7.
Tá
- Bruton, Richard.
- Burton, Joan.
- Ó Caoláin, Caoimhghín.
Níl
- Finneran, Michael.
- Fleming, Seán.
- Kelly, Peter.
- Mulcahy, Michael.
- McEllistrim, Tom.
- McGuinness, John.
- Parlon, Tom.
Amendment declared lost.
Section 10 agreed to.
SECTION 11.
Amendment No. 10 is in the name of Deputy Burton. As Amendment No. 57 is related, we will discuss them together. Is that agreed? Agreed.
I move amendment No. 10:
In page 15, subsection (1), line 10, after "as" to insert "an Choimisiúin um Cheapacháin Seirbhíse Poiblí or in the English language,".
This is a technical proposal, which I hope the Minister of State can accept, to insert the title in Irish, an Choimisiúin um Cheapacháin Seirbhíse Poiblí, and to have that included in the Bill. I know this form of amendment has been accepted in a previous Bill, so I hope it can be done again.
As we all know, there will be an Irish version of the Bill. However, I am not prepared to accept the amendment at this time, but I will certainly examine it with a view to looking at it on Report Stage.
On that basis, is the amendment being pressed?
Yes.
Amendment put and declared lost.
Section 11 agreed to.
SECTION 12.
Amendments Nos. 11 to 14, inclusive, are alternates. They will be discussed together. Is that agreed? Agreed.
I move amendment No. 11:
In page 15, subsection (1), lines 18 to 41, to delete all words from and including "and" in line 18 down to and including "public" in line 41 and in page 16, to delete lines 1 to 24 and substitute the following:
"(d) the chairperson of the Standards in Public Office Commission, and
(e) the Ombudsman,
who in this Act are referred to as ‘commissioners'.".
What is the purpose of this amendment?
This amendment is being proposed to put beyond doubt concerns expressed in the course of the debate, on Second Stage, about the risk of political or parochial interference in the work of the commission. The commission's role is to supervise the general operation of the system and to issue codes of practice governing the recruitment process as being carried out by licence holders. It is proposed in the Bill, as initiated, that the commission will have nine members. Of these three are ex officio. These are the Ceann Comhairle, the Secretaries General of the Department of the Taoiseach and the PSMD, Department of Finance. Up to six other members may be appointed by the Government. This amendment will provide that the chairperson of the standards in public office commission and the Ombudsman be ex officio members of the commission. The commission will therefore be composed of the Ceann Comhairle, the Secretary General to the Government, the Secretary General of public service management and development, Department of Finance, the chairperson of the standards in public office commission and the Ombudsman. The entire membership of the commission is now ex officio. This means there will be no appointments to the commission by the Government. The calibre and integrity of the ex officio members will safeguard the public interest and lay to rest any concern that the commission might be subject to political influence.
This is an interesting and worthwhile amendment. I was trying to get over this myself by introducing a requirement that the Minister should consult with this committee before making appointments. I recognised that we needed to see some expertise in the recruitment sector from outside the ex officio positions that the Minister of State has indicated. That is what I understood the Minister for Finance was pursuing in introducing these procedures. If it comes down to a balance of public interest, the Minister is right to ensure that these positions are absolutely above reproach. I believe that to be the case, in dealing with the issue of expertise from outside the public service, specifically. This is important in driving a best practice agenda in terms of recruitment, quality and systems within the public service. The Minister will have to envisage, perhaps, some sort of advisory council or vehicle for ensuring best practice. Alternatively, perhaps a legal obligation should be put on the commission to achieve and be up to best practice standards as regards recruitment issues.
Of those listed here, only one person, the Secretary General of public service management, would have any line knowledge of recruitment and management issues within the public service. The Minister is resolving one issue but has not satisfactorily handled another. What is his view on how to ensure this commission is driven by achieving best practice standards? The commission also needs to reform promotion. The downside of an exclusively internal public service system is that we lack that bit of yeast in the pie.
Deputy Bruton seems to have a monopoly on probity, but we have put the issue of the composition of the commission beyond any doubt.
The commission will be supported by an office and a director general. All personnel that were available to the two previous commissions will make up that office. Within that office, there will be sufficient expertise from which the commission can draw. Section 13(2)(b) states that in exercising its functions under this Act, the Commission shall be guided by the principles of good recruitment practice. It is therefore up to the commission to obtain whatever expertise it needs.
I accept that. The drive for best practice standards should be made a more dynamic obligation on the commission than that currently envisaged in the Bill, and the Minister should also consider this in other sections. The Bill is very static and just tidies up the old ways. The commission members need to be made aware that when they take up office, they will be expected to drive new high quality best practice standards within the public service. That may result in them having to push open doors others would prefer to keep closed. They need to feel they have an obligation to keep up to speed with world standards, both private and public. I do not sense that in the Bill. Those who drafted this Bill originally probably hoped that outsiders would introduce that yeast to the pie. While I accept the Minister's amendment, we need to create that dynamic at some later stage in the Bill.
Amendment agreed to.
Amendments Nos. 12 to 14, inclusive, not moved.
Section 12, as amended, agreed to.
SECTION 13.
I move amendment No. 15:
In page 16, subsection (1)(b)(ii), line 35, to delete “Part 4” and substitute “Part 6”.
Will the Minister indicate the purpose of this amendment?
It is a technical amendment. It rectifies an incorrect reference to Part 4 of the Bill, which had been the correct reference in earlier drafts of the Bill. The material to which the reference should be made is now contained in Part 6 of the Bill.
Amendment agreed to.
Amendment No. 16 not moved.
Section 13, as amended, agreed to.
SECTION 14.
I move amendment No. 17:
In page 18, between lines 10 and 11, to insert the following subsection:
"(2) Where the Commission is of the opinion that there has been a failure to comply with the principles and policies of this Act, in particular if it forms the opinion that there has been a failure to apply codes of practice, it may investigate or cause to be investigated the matter on its behalf by a person appointed under section 15.”.
Section 14 provides that if someone interferes with the recruitment process, it will be reported to the commission which will then take action. I feel this is one-sided. If an outsider applying for a job fails to meet standards, then it will be reported. However, a situation can arise where those holding the competition also fail to comply with the highest standards. That should also be reported. Where the commission is of the opinion that the principles of the Act have not been applied, it should have the power to investigate the competition under section 15. This is similar to what is envisaged if the commission discovers that some applicant has transgressed by canvassing or copying. What is good for the goose is good for the gander. If the recruitment agency or licence holder fail to reach the standard, the section should apply to them in the same way it will apply to those applicants who do not reach the standard.
Section 54 allows the commission to revoke a recruitment licence in a case where a licence holder has failed to comply with the terms and conditions of the licence. It states that where the commission forms the opinion that the licence holder has failed or is failing to meet the terms and conditions of the recruitment licence concerned, or that since the granting of the recruitment licence, the circumstances relevant to the granting of the licence have changed and are such that if an application for a recruitment licence were made in the changed circumstances it would be refused, then the commission may revoke the recruitment licence.
One condition of the licence is the compliance with codes of conduct issued by the commission. Section 45 of the Bill states that the commission for public service appointments will only grant a recruitment licence to an applicant if it is satisfied that the applicant can and will observe the appropriate standards and codes of practice. Furthermore, it states that a licence holder is responsible to the commission for public service appointments for ensuring that the terms and conditions of the licence and relevant codes of practice are fully provided. I am satisfied that this provision adequately addresses the substance of the Deputy's amendment.
The Minister is saying that he has the nuclear option of withdrawing the licence. I am saying that a licence holder, for example a county manager, could employ a local recruitment agency which apparently acts in good faith, but it then comes to someone's notice that the advertisement placed contained inaccuracies. Therefore, the standards have not been met. In this case, the commission does not need to revoke the licence, but it needs to investigate whether this compromises the competition that was held and, if so, to order that a new competition be held. I am aware that the commission can withdraw the licence, but I am not considering that nuclear option. I am more interested in protecting people from poorly conducted competitions.
In this case, the licence holders are the secretary generals, the county managers, or the chief executives of health boards. They are in senior positions of responsibility. There are two provisions to deal with the situation but the commission can undertake its own investigation if it becomes aware of some circumstances. There are sanctions within the Bill that can be imposed at that stage.
My concern is not about sanctions. If a county manager is recruiting and hires a private recruitment agency which bungles the recruitment process, that does not mean that the manager should have his or her licence withdrawn. However, someone from the commission should, giving due consideration to the opinions of the manager, have the power to order a new competition, using a different recruitment agency. We need to have that power and I do not see that in the Bill.
In a further amendment, the role of the private recruitment agencies will become clear, and it will specify that the final selection of candidates will be the responsibility of the licence holder. Licence holders will not be given a carte blanche. They will have to keep a close eye on the selection process and the appointments made.
I have a particular case under consideration at present and, although I will not identify it, it is felt that the rules of the competition were not fairly applied in this instance. It was stated that those who passed an aptitude test would be called for interview. However, the person conducting the competition decided, in his or her wisdom, that too many passed the aptitude test and, therefore, instead of calling those who passed the test for interview, graded them and only accepted approximately the top 20% for interview. That constituted a change to what had been advertised. The licence holder stuck to his or her guns and said he or she was entitled to do that. If some outside body such as the commission had considered this, it would have decided that if the licence holder wished to act in this way, he or she should have included this information in the initial advertisement. If he or she had not done so, he or she should live with the consequences of this.
This is not a question of an individual appeal if one was to feel one was hard done by, but a class issue whereby it is alleged a certain competition is not being properly conducted. I know this happened in this case and am sure it could happen again, even with county managers paying heed to the situation.
In this case, the competition will be held under a very strict code of practice. I am sure that would cover changes to the rules.
The competition to which I referred was held under a very strict code of practice.
Obviously it was not strict enough.
That is my view but not that of the recruiters.
Is the amendment being pressed?
Yes. It would improve the Bill to include something like this and I am not satisfied with the Minister's response.
Amendment put and declared lost.
Section 14 agreed to.
Sections 15 and 16 agreed to.
SECTION 17.
I move amendment No. 18:
In page 20, subsection (1), to delete line 15 and substitute the following:
"17.—(1) The Commission shall promote best practice in recruitment.
(2) The Commission shall, at regular intervals, conduct both random and systematic assessments of recruitment practices being implemented pursuant to this Act in order to determine whether best practice is being adhered to.
(3) The Commission may carry out such assessment as it con-".
We need to give the commission an obligation to promote best practice. When the commission begins this work, it cannot think it is simply a continuation of what it has been doing since 1956 but must begin with the sense that it has a new mandate and direction. Such a sense is absent from the Bill and needs to be inserted. In addition, the commission should continually evaluate and conduct both random and systematic assessments of recruitment practices. If it sets out best practice criteria and finds that some recruitment is fine in a technical sense but needs to be more dynamic, particularly in regard to promotions in situations where very little outside talent is coming in, it should be in a position to comment and to make changes.
The new commission should, to use a hackneyed phrase, benchmark itself against world best practice. It should drive our public service to achieve the best standards in either the public or private sectors, hunt for the systems and approaches to achieve those standards and promote them within the public service. While it should have that sense of mission, this is not evident anywhere in the Bill. I am not saying I have secured it through this amendment but those who take up these offices, who by and large have held similar offices before, should be imbued with a new sense of urgency, particularly in terms of bringing in new talent, opening up the system of recruitment, managing by performance, rewarding for effort and introducing systems of reward that recognise high performance. This is very important in regard to recruitment and promotion and the creation of a dynamic public service, and the commission will have a crucial role in that. It is said to represent the public service but, if it is to do so, it must ensure the public service is up to the highest international standards.
If we were to criticise the past Civil Service and Local Appointments Commission, which was excellent in terms of its probity, many were very frustrated with the speed with which its decisions were made and with which it could recruit and fill posts. Vacancies remained unfilled, which was not best practice. It is not enough to say that local recruitment would be allowed and to pretend that this is best practice, which is simply to sweep the problem down the line and hope on a wing and a prayer that matters will work out better because somebody has moved them on from his or her area of responsibility. We need a different mission for the new commission and I would like this expressed in legal terms as well as in the mandate given to the new members.
Section 13(2)(b) requires the commission to be guided by the principles of good recruitment practice in exercising its functions. Therefore, I deem subsection (1) of the amendment unnecessary. We could get into semantics about whether “good” or “best” is the preferred term. While I recognise that “best practice” is a buzz term which we all now use, whether this is better than “good” or whether “best” can be identified is not clear. I am not sure we would wish to get into a debate on definitions.
Section 13(1)(c) requires the commission to meet on a regular basis, agree on established procedures which it deems appropriate and permits it to decide and carry out its functions effectively, including in the context of systems to monitor, audit and evaluate the recruitment and selection process. Section 15 allows the commission to conduct investigations of licence holders as it sees fit.
Taken together, these provisions adequately address the objectives of the amendment. If the commission believes it necessary to audit licence holders on a regular basis, it may do so, but it is not appropriate to require it to do so by statute. The commission must have the discretion to regulate licence holders without prescriptive and administratively expensive requirements in legislation. Accordingly, I am not willing to accept subsection (2) of the amendment.
Does the Minister think the existing Civil Service Commission is doing a good job and applying good practice? If not, where does the Minister see weaknesses and does he believe they have been resolved through this new legislative framework?
The current Civil Service Commission is doing a good job but I have no doubt it, like every agency, could be improved. The commission has the scope to carry out its role going forward under the new Bill, especially in terms of the calibre of its members. It is a question of motivation and I do not see what else we can bring to the Bill in this regard. It will be up to the five commissioners to drive this, assisted by the executive expertise of their office.
While I am no expert, my impression when considering my Second Stage contribution was that there were serious difficulties in this area and that the commission was not sufficiently responsive, reactive or up to best practice standards. What is needed is more than just a restatement of law but a new sense of the need to achieve standards which are not currently being achieved, particularly in the area of management performance, results and recruitment and promotion on merit. A breeze of fresh thinking needs to be blown through the whole system in this regard. The Minister of State appears to take a static view of things and is piecing together bits and bobs but other than that, the same kind of people will sit around the table doing the same type of things as they always did. Where do we kick start the new agenda if there is not a statutory demand to do so?
I agree with the Deputy in terms of the need to motivate civil servants. In terms of the four areas laid out — probity, merit, equity and fairness — it is important to match the best and the brightest, which to a large extent is the case, with the fairness and equity of the system. It is important to get the balance right. While there is scope to improve the whole procedure, it depends on the Commission, its initiatives and its best use of the executive, once the Bill is enacted.
I am not happy with this. Once the Bill is passed we will not know whether things have changed or if there is a more dynamic system. Perhaps we need to have performance indicators and to have these bodies more regularly accountable to the House. That is one way of doing it, though we are not experts in the field. I am not saying this is perfect. While I am sure good practice prevails at present, it is not best practice. The spirit of what I am trying to achieve is one we should seek to inject into the Bill. This is as good as any faute de mieux from the Minister.
Amendment put and declared lost.
Section 17 agreed to.
Sections 18 to 20, inclusive, agreed to.
SECTION 21.
Amendments Nos. 19 and 20 are related and may be discussed together by agreement.
I move amendment No. 19:
In page 22, subsection (1), line 5, to delete "Minister" where it firstly occurs and substitute "Standards in Public Office Commission".
This concerns declarations of interests by commissioners. The Bill provides that the declaration is made through the Minister. I propose that these declarations be made to the Standards in Public Office Commission which appears to be taking on that role and taking it out of the political arena. That appears to be best practice. The Minister's proposal to put the chairperson of the Standards in Public Office Commission on the commission may be a problem. When I drafted the amendment that was not the intention. Given other legislative provisions, it may mean the Minister acting as guardian of the public good.
The Ethics in Public Office Act and the Standards in Public Office Act require office holders to furnish their declarations of interests as a general safeguard of probity in public office. The purpose of section 21 is to require the members of the commission to inform the Minister of any interest which would affect their membership of the commission. These may be matters that would not figure in a general declaration relating to the substantive posts which qualify them for ex officio membership of the commission but which might be relevant to their membership of the commission. An example might be a relative who runs a private sector recruitment agency which applies to the commission for listing as an approved agency. The relevance of the fact would be immediately apparent to the Minister who would raise it with the member concerned if declared, while it might be lost on the Standards in Public Office Commission.
The ex officio membership of the commission are persons of the highest calibre. One of these is the chairperson of the Standards in Public Office Commission. In this case it is considered more relevant that it be vested in the Minister.
I accept the position has changed following the proposed make-up of personnel on the commission.
Amendment, by leave, withdrawn.
I move amendment No. 20:
In page 22, lines 10 and 12, to delete subsection (3).
Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22.
I move amendment No. 21:
In page 23, lines 16 to 20, to delete subsection (6).
Perhaps the Minister of State will explain the reason for the deletion of subsection (6).
This subsection was appropriate to the original constitution of the Commission for Public Service Appointments under the Bill as published, as the Government was to have the power to appoint commissioners under section 12. Section 12 is to be amended in order to provide that the commission be composed entirely of ex officio members. It will be appropriate to continue to provide that commissioners declare all pecuniary or other beneficial interests which are relevant to their positions as commissioners.
As in section 21(3), it is envisaged that any failure to comply with the requirement to declare interests will be dealt with by reference to the substantive office a person holds which qualifies them for membership of the commission. This subsection is, therefore, inappropriate and unnecessary and will be deleted.
Amendment agreed to.
Section 22, as amended, agreed to.
SECTION 23.
Question proposed: "That section 23 be deleted."
I presume the logic is that if a person is being removed from the Civil Service Commission, he or she would already have been removed from his or her position as Secretary General of any of the Departments. One cannot envisage a situation where such a person would want to or be fit to serve. Whatever caused the person to leave one, would force him or her to leave the other also.
Since they are ex officio members difficulties will arise in their substantive office before they arise in their membership of the commission.
Question put and agreed to.
Question, "That section 24 be deleted," put and agreed to.
SECTION 25.
I move amendment No. 22:
In page 24, subsection (2)(a)(v), line 25, to delete “and appeals”.
What right of appeal is being removed?
This amendment is proposed in order to correct a drafting error, stemming from an earlier version of the Bill. It is being made in response to a proposal from the Civil Service trade unions, who considered that the word "review" was sufficient to describe the systems to be adopted in respect of grievances and complaints brought forward by candidates. They also proposed that the additional words "and appeal" might cause confusion as to the availability of additional avenues of appeal open to candidates who were not happy with an element of the recruitment or selection process. In view of this there is no need for the words "review" and "appeals" in the one sentence. The use of either word is sufficient.
Amendment agreed to.
Question proposed: "That section 25, as amended, stand part of the Bill."
On the section, the Minister of State is saying that recruitment licence shall not be granted by the commission unless there has been a duly published code of practice. It strikes me that we need more assurance about the correctness of local recruitment procedures other than that they have simply complied with a code of practice. The report on better governance in the public service dealt with this issue quite well and recognised the real benefits in the unified system, as it is called it. It saw merit in a public service in which people could move freely among different parts of the service which created a type of corporate identity within the public service, and collect experience from a range of offices they might hold. The report indicated that this was a significant plus in the system. Presumably, since that report the Minister has come up with instances where local recruitment could be beneficial and that he might break with this tradition in order to meet particular needs. What he has created in this Bill, however, is not a system where the commission would use its discretion and agree to particular needs to be served but one where once a code of practice is published, almost any post can be devolved to local recruitment systems in the agency, health board or county councils.
I am not happy with that. A serious report on better management of the Government examined this issue. It concluded that, on balance, this was not the right way to proceed and that many other measures need to be taken in the public service. It also indicated that this was not a priority and that there was merit in retaining the old system. The Minister of State now proposes, in the absence of any parallel White Paper or evaluation of the issues, to go in the opposite direction and abandon the unified model.
I realise the Minister of State does not want to be drawn into the decentralisation debate but decentralisation is adding a new dimension to this because not only are we having a devolved recruitment, we are also dislocating in place. We will have a number of stacks throughout the country which are fairly separate. The old system of a unified recruitment and promotion system is being demolished. The Minister of State is now creating a physically devolved structure within the public service and in terms of systems of recruitment and promotion.
This is a significant change in the model we use and I would like to be persuaded that there are many advantages in going down this road. I am all for devolved political power and responsibility but that is not what we are seeing. Increasingly, we are seeing centralisation of power and councils with less authority. Devolving administrative procedures without devolving power is not creating better governance. There is no accountability with it.
There is a need in the public service to devolve power. Power should rest in the local school, Garda station and hospital to a greater extent, but with such devolved responsibility they have to be accountable, strengthen their performance evaluation systems and reward success. That is the future. It is all about devolving power but we appear to be doing the opposite here. Instead of devolved power, better performance and better accountability we are opting for fracturing the system in the hope that it will perform better.
I would have preferred a serious evaluation paper on this dramatic change in the way we run the public service. The Minister said some Secretaries General have agreed with this measure. I do not know who they are but they also agreed with the dismantling of the Freedom of Information Act, something with which all sides in this committee were unhappy. The Government went along with it but there was an excellent debate in this committee where some of the thinking of those involved was exposed as being not as robust as we would have liked.
Although it may be argued this matter was agreed in Sustaining Progress, which was never put to the Dáil, or with some Secretary General or public service union, it does not mean it is a good measure. This is the Oireachtas. We represent the citizens and we need to be convinced. I do not know whether Deputy Finneran is convinced. This measure represents a dramatic change of policy yet no cogent argument has been made to explain the reason for it. We deserve that sort of debate. It did not happen on Second Stage and I do not believe it will happen here.
I realise all the attention of the public service unions has been channelled into the decentralisation debate, about which there is a good deal of unhappiness, but this measure is also important. The corporate system we set up for a unified public service has served us extraordinarily well. We have talked about corruption but we have a remarkably uncorrupt public service. Generally speaking, those involved have served the public interest in the best way possible and part of that has arisen as a result of the common esprit de corps that has been created by those unified systems. I want to see this reformed and improved but we may be dismantling something we may live to regret.
There has been no public interest test in any aspect of this measure. Once a county manager decides he has got his code of practice right he can proceed. That is the end of any notion of having central systems. If a Secretary General in Killarney decides to proceed in a certain way that will be the end of the matter. No one will say they see merit in the old system and ask the Secretary General to justify the proposed course of action. An assurance that this measure is in the public interest is neither in the Act nor was it provided during the debate on Second Stage.
I am uneasy with this measure. Many senior politicians, who have been here even longer than myself, who spoke on Second Stage also expressed their unhappiness with the Bill. It behoves us to give serious consideration before signing off on this matter simply because some group of Secretaries General have found it is convenient or expedient to do so.
The public appointments service, which will be the central recruitment service, will continue to be the major recruiting agency for the different Departments. The issue of cost was raised. There will be no budgetary provision for recruitment. If an agency decides to hire a private recruitment agency, it will be at a cost and if the public appointments service is available free of charge, as a Government service, I have no doubt that provided it is on top of its job and can provide the service quickly, that is the direction in which we will go.
When the Bill is enacted I see a major role for the public appointments service. There will be some pressure because of competition from private recruitment services. As we know, competition is good in terms of bringing people up to speed, and I see the PAS continuing to have an important and prominent role in terms of overall recruitment.
In terms of flexibility — I believe this was referred to on Second Stage — if the Department of Social and Family Affairs in Sligo or Donegal wanted to recruit ten or 15 people from the central system, 12 of those may choose not to go to Donegal under any circumstances because they may be from Munster or whatever. From a practical viewpoint, it is important that the local recruitment body will recruit locally. We should give Secretaries General, county managers or chief executives of health boards such flexibility in regard recruitment.
In essence, the Minister of State is saying that the justification for this is the decentralisation programme and it would not be proceeded with in the absence of decentralisation. The public interest merit of the measure is solely to ensure a decentralised public service. The location of a Department can be moved from here to Donegal and it can recruit, say, engineers from only Donegal or those who are willing to work there. This is not sufficient justification to completely upturn and scuttle the existing system. When recruiting for a position in Donegal, the relevant Department can advise the Civil Service Commission it is recruiting an engineer for Donegal. The commission would advertise the position as such and those who apply for it would be under no illusion other than that they would have to serve several years in Donegal as part of their terms of employment, although they could move on elsewhere. This would be convenient for a manager who could, as people say, ramp-up quicker because of individual recruitment, but would it mean we would have better people in the public service than if they had been recruited through the commission? Would the model become narrow and inward looking in that Departments would not consider people with good talent living in Dublin who could add great value to the provision of services? Would it narrow and blinker the range of choices?
Decentralisation is one issue, and I am critical of the way the Government is introducing it. It should have been introduced more slowly and on the basis of operational units that could be effective in areas. I am not happy with the way the Government is moving away from the capital being the heart of a certain level of government to ensure coherence in government. We are being asked to accept too much in abandoning the uniform system of public service recruitment to serve a fairly short-term goal of recruiting 10,000 persons outside Dublin in a three year span. That is the goal and I can see how the Bill will make it easier to achieve it. We must think beyond those three years and question whether we will have a better system or whether we will end up with staff units that are inward looking, think only of their own system which has been recruited and maintained locally, and where those involved do not want to look further afield. We will lose something of the dynamic and culture of our public service. There are risks involved. There is a political momentum for this programme and the Government is under pressure to produce it in three years. The Bill is a good measure to help it deliver that. However, I would like the Minister of State to argue more than merely being defensive about decentralisation.
I welcome these provisions and the manner in which they will address recruitment in respect of which, by and large, there will not be any major change. One area about which I have a concern and which I have expressed for a number of years concerns a practice in health boards and local authorities that has developed in recent years. It is practically impossible for a person outside such bodies to enter them at a grade other than the lowest grade available, that of clerical officer. One is not short-listed for a position unless one has two or three years' experience in a health board or a local authority. What chance has a person applying for a position to those bodies? This is not a matter for this debate but the delivery of better local government through the recruitment of staff to the health services at administration level should be examined at another time.
I am pleased with these proposals. I do not see the difficulties to which Deputy Burton has referred, although perhaps I am missing the point. I believe these proposals will be positive. This measure is innovative and it is time we had a broader system other than the existing set system, which has many good points. We are delving into a new situation and the needs in this area must be addressed in another way. The way this system is being put in place will be beneficial and will provide opportunities for people to get employment in their local areas and, if necessary, will ensure movement in employment because it is important to recognise that not everybody must live in Dublin and not every service must be based there or elsewhere on the east coast. There are other suitable locations where people have as great a desire to serve the State in the Civil Service. At present, it is impossible and off-putting for young people from many rural areas to apply for a job in this city because, first and foremost, they cannot afford to live here. That is a practical barrier to them taking up employment in the public sector, particularly in the Civil Service.
I hope that Deputy Bruton is not suggesting that by recruiting people in Donegal one would get blinkered inward looking people because that would be a major insult to the people of Donegal. I do not believe that will be the case where there is local recruitment. In regard to recruiting locally, in the provinces or from around the area to which a Department will be decentralised, the decentralisation report has gone to Government and it is proposing a CAO type system whereby people who choose to decentralise can opt for particular locations to which they want to move and work. The restrictions on numbers employed in the Civil Service will mean that for a long time the amount of recruitment will depend on natural wastage. I am sure people in Donegal, Kerry or in Laois or Offaly would welcome a situation where there is natural wastage in a large local government department which would give them at least an equal opportunity to apply for such jobs. I do not envisage that would have a negative impact in terms of the dynamic within the Civil Service. Rather, I envisage the opposite happening in terms of people being able to live within a reasonable distance of their employment and being able to commute to and from it without that having a major impact on their lives compared to the current position where people spend hours commuting to and from work and on getting home find they are of little use to their family or community because they are worn out by their job and the commuting. I envisage decentralisation having a positive impact from that point of view. This Bill is running in tandem with this change, but it has not been introduced because of decentralisation, although it makes a great deal of sense now that decentralisation is a live issue and will happen. The basis of the Bill is in the Sustaining Progress document that was agreed with the social partners, although I am not fully sure if decentralisation was a Government policy issue at that time.
I am not a member of an organisation comprising the social partners. I do not believe any of the people there have been elected to public office. That this policy was agreed in that forum does not reassure me it is the right thing to do. I am not suggesting that Donegal people are inward looking. If policy dictated that only people from County Kerry could be recruited to tourism bodies, that recruitment to posts in environmental protection was to be confined to people from County Wexford or that only those involved in equality issues based in Roscrea should be recruited to the Equality Office Equality Authority, it would represent a dramatic shift in thinking regarding the recruitment of expertise to the public service. However, that scenario will not arise. People can develop their skills in other areas and move into different posts. The broad based skills they acquire in different areas can be used to leaven the mix, as it were, by having such an open, uniform system. As was correctly pointed out, we will end up with managers from Donegal, Wexford or Roscrea, for example, recruiting people predominantly from a local base to fill these posts.
The question is whether that is the best option or whether we should retain a system whereby, even though the Departments might be based in Wexford, Donegal or Roscrea, they have a much broader canvas available to them and try to use a system with a broader view of the public service. That system sees what is happening in other areas and where other talent might be emerging in Departments. People can then bring that talent to bear on, for example, the equality issue in Roscrea or the environmental issue in Wexford but I am not convinced that will happen. The danger is that they will not look at that wider picture.
The crucial issue of devolution is not decentralisation but power being devolved closer to the people. That is the issue we ought to address. It is the issue of bringing power to people, not bringing self-contained agencies to different locations with rights to conduct their own recruitment. That is a different and untested system which we are being asked to accept on faith is the better one. The social partners are negotiators; they cut deals. They are not advisers on what is best for the common good. That is not their job and they would not see it as such. Some of them, obviously, are inspired by a belief in the common good but that is not their job. They are in the business of cutting deals.
These are fundamental changes but the Minister and the Secretaries General of the Departments have not produced an interesting and considered position paper on the type of public service recruitment and promotion envisaged and how we should proceed with this system in the long term. This is being driven by short-term agendas that need to be met within the partnership or decentralisation model or wherever they originate. The Minister is underselling the House by not providing a broader White Paper on the future of the public service in the 21st century. That is what is missing.
Question put and agreed to.
SECTION 26.
Amendments Nos. 24 to 26, inclusive, are related to amendment No. 23. They may all be discussed together.
I move amendment No. 23:
In page 25, subsection (1), between lines 39 and 40, to insert the following:
"(a) the observance of the appropriate independence between appointment to the public service and political appointments,”.
It is necessary to observe the appropriate independence between appointments to the public service and political appointments. The commission should set codes of practice which would ensure that where people were appointed politically to be advisers and so forth, there would be proper observation of the appropriate independence of that system from the appointment of permanent public servants. The amendment we discussed earlier which sought to provide that political appointees would not be part of this system would not deal with this.
The issue of concern is what happens when political appointees move on. If there is a vacancy for Secretary General, for example, and a political appointee applies for it, what is to happen in that case? The commission must set out a code of practice for dealing with people who have come through the political route. If they are talented, can they remain in the public service if they can meet certain standards? If they are not very talented or are being pushed by powerful political interests, can we ensure they do not get into the public service? A code of practice is required to ensure this is dealt with in a proper manner. Some who come into the service as political advisers might turn out to be of great value to the public service and should have the opportunity to apply for positions. However, a system is required which the commission is the most appropriate body to put in place.
A political appointee is free to apply to join the Civil Service in the usual way, by going through the application process, being accepted for appointment and serving the period of probation. There is no fast-track way, in this Bill or otherwise, for a political appointee or special adviser to get into the Civil Service.
Does the Minister of State not see a need for a code of practice to deal with the matter?
Section 13 requires the commission to establish standards of probity, merit, equity and fairness to be followed in the public interest in the recruitment and selection of persons for positions in the public service. These principles must be reflected in codes of practice which dictate how recruitment must be conducted by licence holders. In this way, the licence holder must adhere to the guiding principles of probity at all times. These measures adequately ensure the substance of the amendment.
Is the amendment being pressed?
I will reconsider this issue. I will have to refer back to the ethics legislation which I did not consult. It seems to imply that they are sacked at the end of their service and must start again from square one. That might deal with the problem.
Amendment, by leave, withdrawn.
I move amendment No. 24:
In page 26, lines 40 to 45 and in page 27, lines 1 and 2, to delete subsection (6).
Perhaps the Minister of State will respond to this amendment.
This is a technical issue. The subsection reflects the existing deferred establishment provided for by section 13(4) of the Civil Service Commissioners Act 1956, which provision is used to recruit certain grades on contract during their initial year of probation, for example, the grades of administrative officer, third secretary and executive officer. While on contract the officers are unestablished. Legal advice suggests that temporary civil servants cannot be appointed to established positions. At the end of the one year contract the officers are either appointed to established positions or not retained. The officers would not be retained where it was clear that they were not suitable for retention in the Civil Service. It is important to mirror the 1956 Act's provision in the Bill.
With regard to the cessation of this subsection by ministerial order, it is intended that the Civil Service Regulation Act 1956 will be amended to allow people to be recruited to established positions on contract. Once the Act is amended — the drafting of the amending Bill is at an advanced stage — there will be no need to retain this provision. Until then, however, this provision is essential to continue with the present practice of employing people on contract. Paragraph 22.10 of Sustaining Progress provides for the extension of one year contracts to all new recruits to the Civil Service. This means that those new recruits will be recruited to unestablished positions for their first year in the Civil Service. At the end of the one year contract the officers will either be appointed to established positions or not retained.
Amendment, by leave, withdrawn.
I move amendment No. 25:
In page 27, subsection (7)(a), line 6, to delete “subsection (1)” and substitute “subsection (2)”.
Amendment agreed to.
I move amendment No. 26:
In page 27, between lines 16 and 17, to insert the following subsection:
"(10) Where the licence holder fails to fully comply with the conditions of its licence and has failed to apply the code of practice, it shall be deemed not to have been entitled to make or confirm appointments.".
This refers to the point I made earlier. It provides that if the licence holder fails to observe the proper procedures in a particular competition, the competition would be null and void. It does not provide that the licence holder would lose the licence. This type of provision ought to be included. If there is not to be active intervention by the commission, the competition should be deemed null and void and the licence holder must start afresh.
This amendment would require the disqualification of a candidate because the licence holder had not complied with the code of practice. In effect, the candidate would be punished for the failure of a public service licence holder. I do not believe it is tenable to deprive someone of a job for which they are qualified in good faith, because a third party has failed to follow procedure. However, I would point out that in cases where the candidate is a party to improper interference in a competition, section 58 permits the removal of that candidate from the position obtained as a result of the improper interference. In cases where the licence holder is solely responsible for a tainted competition, the commission has the ability to amend or revoke the licence and a criminal offence may also have been committed. The commission has the power to investigate any procedure to determine what went wrong and to issue revised codes of practice to remove any weaknesses in procedures for future competitions.
Let us suppose the way in which the third party acted meant that candidate A got the post, whereas candidate B would have got it if the procedure had been properly observed. The Minister of State is saying that candidate A will hold that post regardless of the injustice done to candidate B. I do not think that is robust. One has to envisage some situations where the failure to observe procedure resulted in the wrong selection, but when this comes to the commission's notice it seems to be too bad for candidate B who has been wronged. In some way, candidate B's rights have to be honoured and respected.
In terms both of fairness and merit, if that were the case, there would be scope for the commission to investigate the recommendation. There would be obvious scope for whatever action was taken to remove the position from whoever got it, if it was in an unfair situation.
Where is that power? I did not see it in the Bill, whereby the commission can order a fresh competition to be held.
The commission has the power to investigate.
With a view to removing the licence, not with a view to ordering a fresh competition.
If they find something as blatant as the scenario the Deputy has suggested, I am not too sure where it is in the Bill, but it is something that would have to be acted upon.
They have to have the power somewhere in the Bill or else they cannot act upon it.
They can make a report to the appropriate authority that appointed the individual.
That would suggest that if the agency or recruiter stands their ground and the commission has taken a contrary view, party B — the wronged party — will have to go to court to vindicate their rights. Even though the commission recognises this was done wrongly, it cannot give instructions for a fresh competition be held. We are saying that the aggrieved party must go to court to vindicate their position. That is not satisfactory. It may be used rarely, if ever, but the commission requires the power to halt a competition where it discovers that something is not correct.
The commission can make a report and it is a matter for the appropriate authority to declare the course of action that was followed in the recruitment case to be null and void. If the Department of Social and Family Affairs appoints somebody and it transpires through an investigation by the commission that something was wrong, they will make a report to the Department which has the authority to declare the position null and void.
Is that acceptable? The Department has wronged someone, yet the Minister of State is leaving to it the discretion to decide whether it will do anything about it. I am not a lawyer but perhaps the Minister of State could look at this for Report Stage.
I will do so, yes.
Amendment, by leave, withdrawn.
Section 26, as amended, agreed to.
SECTION 27.
I move amendment No. 27:
In page 28, subsection (5)(a), line 23, after “to” to insert “paragraph (b) and to”.
What is the amendment seeking to do?
Is this a technical or substantive amendment?
The amendment relates directly to two other amendments in this section, which were proposed in response to discussions about the role of private sector recruitment agencies. The amendment inserts a reference to a new paragraph (b) which will ensure that a licence-holder will remain solely responsible for the final selection of candidates for appointment or placement on a panel for appointment. The effect of the amendment is to require that the licence holder cannot delegate the task of final selection to a private sector recruitment agency.
Amendment agreed to.
Amendments Nos. 28 and 58 are related and may be discussed together by agreement.
I move amendment No. 28:
In page 28, subsection (5)(a), lines 25 and 26, to delete “or all”.
Does this follow on from the previous one?
Yes.
Amendment agreed to.
I move amendment No. 29:
In page 28, subsection (5), between lines 27 and 28, to insert the following:
"(b) Notwithstanding paragraph (a), the licence holder concerned shall have sole responsibility for the final selection of candidates for appointment or for placing candidates on a panel for appointment.”.
This amendment follows from the previous one and concerns the Long Title of the Bill.
Amendment agreed to.
Section 27, as amended, agreed to.
Sections 28 to 30, inclusive, agreed to.
SECTION 31.
Amendments Nos. 30 and 36 are cognate and may be discussed together by agreement.
I move amendment No. 30:
In page 29, lines 44 to 46, to delete all words from and including "Exchequer" in line 44 down to and including "1993" in line 46 and substitute "Comptroller and Auditor General Acts 1866 to 1998".
This is another technical amendment. I am not prepared to accept it at this time but I will examine it to see if I can accept it on Report Stage. Likewise, I am not prepared to accept amendment No. 36 at this time, but I will examine it to see if I can accept it on Report Stage.
Amendment, by leave, withdrawn.
Section 31 agreed to.
Section 32 agreed to.
SECTION 33.
I move amendment No. 31:
In page 30, subsection (1), line 20, to delete "subsections (2) and (3)” and substitute “subsection (2)”.
This amendment proposes to correct a drafting error stemming from an earlier version of the Bill in which this section contained a subsection (3). Subsection (3) was deleted in the drafting process and the reference is therefore redundant.
Amendment agreed to.
Section 33, as amended, agreed to.
Sections 34 and 35 agreed to.
SECTION 36.
I move amendment No. 32:
In page 32, subsection (1), lines 17 to 23, to delete paragraphs (i) and (j) and substitute the following:
"(i) to inform itself of best practice in relation to all recruitment, assessment and selection matters, and, on the basis of this information, to provide advice to the Civil Service and public service bodies;
(j) subject to the public interest, to make its expertise in recruitment and selection services otherwise available on such terms and conditions as it deems appropriate.”.
I see that, having dismissed the notion of best practice, the Minister of State has suddenly discovered that this was not such a bad idea.
All comes to those who wait.
I know, but it begs the question why the Minister of State would have the public appointments service informing itself of best practice, although he was happy to leave the triumvirate or sextet not having to inform themselves of best practice earlier on in the Bill.
This is something we can look at. There is a bit of semantics about it but, on the other hand, the inconsistency of having "good" in one area and "best" in another does not make much sense.
It is more than semantics. This is placing a legislative obligation on them to be aware of what is best practice and to pursue it. We are placing no such obligation on the commission. It is not semantics. It may be only a form of words but it means that the commission has obligations. One would expect that if the commission was called before us, it would be able to benchmark itself against best practice elsewhere. If it said that it had not done so, one could cite the Act that it was supposed to do it because it was part of the commission's mandate and one could ask why it had not been done. This is not semantics; it is real. The Minister of State should consider inserting a similar requirement for the other commission on Report Stage.
I will do so.
The matter will be reconsidered.
Amendment agreed to.
Section 36, as amended, agreed to.
Section 37 agreed to.
SECTION 38.
Amendments Nos. 33 and 34 are related and may be discussed together by agreement.
I move amendment No. 33:
In page 33, subsection (3), between lines 19 and 20, to insert the following:
"(d) to formulate proposals for submission to Government on the development of a system of reward mechanisms to enhance the performance of those in the public service;”.
This section sets out some of the functions of the Board of Public Appointments Service. An issue that needs to be looked at is a system of reward mechanisms to enhance the performance of the public service. This idea has been discussed but there has been little progress in the area of introducing performance mechanisms. Some of these can be personal performance mechanisms or agency performance mechanisms, where the success of the agency is recognised by reward.
This whole area has been a hot potato. Ministers have backed away from it and have not come up with any great development ideas. When the public service was looked at, one of the problems was a lack of a good traditional evaluation monitoring system and reward for performance. Given that we are setting out the legal framework for, perhaps, the next 50 years, we should put the obligation on this board to formulate proposals for Government in this area. It will be informed of best practice in respect of recruitment, assessment and selection and it should apply best response by having a legal responsibility to bring forward proposals in this area.
That is the direction in which we should be going. However, the amendment seeks performance related pay in the public service and this matter is entirely outside the remit of this section, which deals with the Board of Public Appointments Service, and the Bill, which deals with recruitment to the public service. It is not appropriate to the Bill and for that reason I am unwilling to accept the amendment.
How can the Minister of State say we should regard this as an agency which should be informing itself of best practice in the area of recruitment, assessment and selection? Assessment is about looking at performance and assessing to what extent it is being achieved. The other side of a good assessment system is that those who are successful get advancement either through recruitment or financially, or their section or team is rewarded. The assessment part of an HR operation cannot be disentangled from the reward part. I do not know how the Minister of State can say this is raising matters that are not germane. These are central to the matter in hand but may not have been the tradition. I do not say performance pay is applicable at all times and in all cases but what I have suggested is reward mechanisms, which have much greater relevance. People can be rewarded in ways other than in their pay cheque and have recognition for and reward for their success. If in certain instances pay is not the best reward mechanism we need to think of other innovative ways and this agency, which will be scouring for best practice, will quickly come across things that are being done elsewhere. It is central to what this board ought to be about.
Deputy Richard Bruton has done enough undermining of the standing of the Civil Service along with the statement of his leader last year. We should allow the existing system continue. There was a question about benchmarking in 2003 and whether civil servants were entitled to it. That debate is over and we should not resurrect it. There are agreed structures in place.
I know the Chairman is anxious that we continue the business briskly but I cannot allow that pass. We will come to benchmarking on the next amendment. Benchmarking is an internationally recognised system in place in many jurisdictions. It is about agencies and public bodies looking at world best practice. It involves looking at what is the best system for running an airport, a railway station, a school and set about finding out how much of that best practice can be applied in our arena. Having identified that, a reform agenda is put in place to deliver to that best practice standard. Public servants are then rewarded because they have gone the extra mile and have introduced mechanisms and procedures that will mean they are aspiring continually to achieve better standards.
This is a well-worn system and there are good models for doing this. The reason we took a view — it was not against public servants — against the Government and senior officials within the public service was that they failed to recognise the importance of benchmarking. The potential they had in their hand was agreed by unions and was a marvellous opportunity to start to drive the public service to be the best in the world and to make it a place where people would be scrambling to get in, because it would be ambitious to reform. Benchmarking would then have recognised that, as a country, we were willing to pay them for doing it. That was the vision and the opportunity but it was not delivered in all the action plans that were churned out. They were like word processing documents. There was no concept of what was happening in Singapore, the UK or France and how we could reach their standards and shake off the shackles on some of what is happening in our public service. They never addressed that issue. They went back to the office and got out all the old action plans and all the rubbish they could find and said that wonderful things were being done. It was a betrayal of what had rightly been put in place.
Those who put benchmarking in place had negotiated something that was worthwhile but it was thrown over. I do not pin responsibility for that on the public service or its representatives. The public service and its representatives did what they were paid to do. They tried to represent the interests of their members. However, benchmarking was in the common interest and was a marvellous opportunity. It was shunned and ignored and not one union was pushed beyond any of its established positions on any issue. There were approximately 110 pages of action plans for about 100 different bodies and not one union said, hang on, that is going too far. There was no agenda for reform. Nobody was being pushed to do something new.
That was the reason we took a stand on benchmarking and the reason amendment No. 34 has been tabled. We must have that ambition for our public service. If we sell it short in the Oireachtas and if the 15 members of the Cabinet sell our public service short in that way we will not continue to attract the best people into it. We will not have the best teachers in our schools because their professional training will not be challenged. I feel strongly about this matter. I am pleased Deputy Finneran raised it because it is an issue the Oireachtas should take on. There will be resistance in the social partnership because this is pushing the social partnership model outside the traditional area of cutting deals. It goes beneath those high level national representatives to local areas. For example, in the case of the teaching of the disadvantaged in schools, it suggests that we learn a better way of doing this and apply better thinking and that the Government provide help in this regard. That kind of opportunity arose in this process. We were not trying to garner votes because if anything it lost us votes. It was based on a strongly held belief. In view of this, it puzzles me that the Minister of State, coming from his party, is not embracing these amendments as something worthwhile.
I do not want to be misquoted but the reality is that not alone were we not attracting people to the Civil Service, we were losing people. Benchmarking and the structures which were put in place were above board in the way the Civil Service operated them. The proof of the pudding is that in many parts of Europe through 2003 and 2004 there has been disruption of the public service because Governments have not responded to the difficulties public services face. That is not in the case with the public service here and if we are to attract and keep people who can play an important role in the public service then we must make it an attractive profession in which they want to stay. The only way they will stay in the service at times of greater expectations is to offer them a proper salary. That has to be done for the public service under the benchmarking process. Not alone was there an entitlement there, it was appropriate and in the best interests of the public service and the Civil Service into the future.
That is not what the benchmarking commission concluded.
I have no disagreement with the process by which it decided.
The benchmarking commission——
Obviously Deputy Bruton does.
——concluded that there were relativity problems and it recommended changes. It did not say that this was an automatic entitlement, quite the contrary. It stated that 75% of the award was conditional on a reform agenda being developed. That never happened. If I am asked why we cannot attract speech therapists, orthodontists or nurses to the public service, it is because they are being asked to work in environments which are not up to world best practice. They are being brought into systems which are creaking at the hinges and which do not have a proper vision of what they are trying to achieve. That is why these people are frustrated.
It is not just about pay. Reducing it to pay demeans the issues. Many of the systems which are creaking in Ireland need serious reform. That reform will not come for free, either in payment to the people involved or with the backup material that has to accompany the reform. It is going to be a more expensive process but at the end of the day we will deliver speech therapy and orthodontic services instead of having the ludicrous situation we have today. We are managing people who are waiting six to ten years on a list, pretending we have a service and that we are up to high delivery standards, frustrating those who are trying to work in that service. There is a rapid turnover of speech therapists — they are no sooner in the door when they are gone again — and we cannot fill orthodontist positions. That is because we are not addressing these issues. This is not a narrow case of the nurses not being entitled to 8% or whatever it was.
The reason behind benchmarking is the driving of reform and it is fundamentally important that we do not operate under the notion of entitlements being available without changing the system to deliver a higher quality system. Better pay is the reward for that. It has to be a two-sided coin. I am not entitled to benchmarking increases unless I deliver better service in the Oireachtas and I would have loved to see the Oireachtas embrace reform. Many backbenchers — and those on the middle benches — are frustrated by the way in which we do our business and we could have embraced reform and earned our benchmarking. That is the potential——
The SMI says it is being done under the Civil Service.
Deputy Finneran should identify the strategic management improvement in the way we do our business. I do not see it.
I will bring this matter to a conclusion. We can return to it as part of a joint committee work programme discussion.
Amendment put and declared lost.
Amendment No. 34 was discussed with amendment No. 33.
I move amendment No. 34:
In page 33, subsection (3), between lines 24 and 25, to insert the following:
"(e) to develop a system under which the public service would benchmark their operations against international best practice;".
I do not think the Chairman indicated these amendments would be discussed together. I cannot understand what the Progressive Democrats are doing in rolling over on all these issues. These are at the core of what I thought the Progressive Democrats were about.
We are concerned here with a specific Bill on recruitment. While I fully agree with the Deputy's views on benchmarking, the private service and international best practice, this is not the appropriate Bill for that discussion. In terms of best practice we are concerned with attracting the best people to the different areas of the Civil Service, which is very important. There is not much point in trying to benchmark them afterwards if we cannot attract the best people and give them the best opportunities under all the different criteria we have laid down. We have spoken about advertising in the appropriate media to get people, and there can be a lot of waste involved. This work involves identifying the process for shortlisting applicants, conducting appropriate tests when taking equal opportunity issues into account, selecting, on the basis of agreed methods and criteria, the necessary inquiries, medical or otherwise, while eventually getting feedback during the probation period from different Departments and agencies. It is a specific technical area and it would be inappropriate to bring in the wider issue mentioned by the Deputy, though we agree it should be implemented.
That is a heap of — I will not use the appropriate term as it is probably not parliamentary language. Here is the party which said one had to be radical or redundant. It is going to be radical, but not quite yet. In another ten years or in its fifth term in Government it will wake up to the need to be radical and to reform. It is pathetic——
The Minister for Justice, Equality and Law Reform has introduced more legislation in the House than anyone and has a record on that.
If the Minister of State wants me to start on that, he is talking about the Minister who told us we would have 2,000 extra gardaí and a traffic corps. Miraculously, the great legal brain who has been lecturing everyone on the legal probity of issues discovers he cannot do the things he promised. I am going to resist the temptation to go down the road——
The Deputy will leave that to his party's justice spokesperson.
No, we are talking about the man who climbed up a pole and said he would be watching the Government and would keep Fianna Fáil straight. He is now leading Fianna Fáil into strange culs-de-sac and unfortunately the are lambs to the slaughter, following him into lanes and by-ways.
We are not two years through the lifetime of the Government.
The Deputy's party has certainly lost any of its reforming zeal.
Amendment put and declared lost.
Section 38 agreed to.
SECTION 39.
I move amendment No. 35:
In page 34, subsection (2), lines 10 and 11, to delete paragraph (c) and substitute the following:
"(c) shall ensure that not less than 40 per cent of the Board are men and not less than 40 per cent are women.”.
We are committed to this policy, which is in the programme for Government. It is not appropriate to specify in legislation that the membership of every State body will conform to a target. Section 39(2)(c) adequately provides for the Government’s commitment to the principle of gender equality while allowing the Government to develop its policy over time without having to amend all such legislation every time the policy changes. Accordingly, I cannot accept the amendment.
I will withdraw the amendment and reserve the right to reintroduce it on Report Stage.
Amendment, by leave, withdrawn.
Section 39 agreed to.
Sections 40 and 41 agreed to.
Amendment No. 36 not moved.
Section 42 agreed to.
SECTION 43.
I move amendment No. 37:
In page 36, subsection (1), line 34, to delete "subsections (2) and (3)” and substitute “subsection (2)”.
This is a technical amendment designed to correct a drafting error.
Amendment agreed to.
Section 43, as amended, agreed to.
Section 44 agreed to.
SECTION 45.
I move amendment No. 38:
In page 36, subsection (2), between lines 19 and 20, to insert the following:
"(a) such delegated recruitment is in the public interest,”.
This is the core issue. If we are going to take the route of devolved recruitment, such recruitment should be seen to be in the public interest. The commission, which will be comprised of people with immense experience in the public service, should have a role in deciding that people will only be recruited where the proposal for such recruitment from the county manager or secretary general of a health board is in the public interest.
It is important that this provision should be included in the Bill. I accept that political needs arise from time to time. There is currently a need to deliver on decentralisation. The Minister has stated that his colleagues' hides are on the line and that they will have no political future if they do not deliver on this. Decentralisation has become the political test of the Government's ability to deliver. However, we need to have someone in place who will state that the Government will only be in power for three or four years at most but that the public interest goes on forever. It is important that the Oireachtas put in place a system of this nature.
Where there is delegated recruitment, a group of senior and worthy individuals which commands the height of respect — as is the case with the group in question — should agree that a request from a county manager, a health board, a secretary general or whoever constitutes the best interests of the country. The Minister of State should accept this amendment. If Ministers have the best interests of the country at heart, they will have no difficulty persuading the group that this is the case. However, it is important that a line be drawn between the political requirements and those of a county manager seeking to do something which he or she believes to be in his or her short-term interests. There should be an obligation on him or her to convince the commission that he or she is advocating the correct course of action and that it will not be regretted in a number of years. We must not end up with a large number of square pegs in round holes or with people whose skills became redundant because a manager had a short-term need which he was trying to meet. A manager may not anticipate something which the members of the commission, with their much broader experience, would be able to foresee. If there was only one amendment which the Minister of State was to accept out of all those I have tabled, this would be it.
The central thrust of the Bill is to provide Departments with the facility to undertake their own recruitment if they so desire. As stated earlier, the PAS will be in place to recruit centrally. However, the Bill provides Departments with the flexibility and opportunity to carry out their own recruitment.
There is no justification for making a requirement of the type contained in the amendment a condition for obtaining a licence to recruit. Section 13 requires that the commission establish standards of probity, merit, equity and fairness to be followed in the public interest in the recruitment and selection of persons for positions in the public service. These principles must be reflected in codes of practice which dictate how recruitment must be conducted by licence holders. Section 45 requires the CPSA to take account of the applicant's ability to meet the commission's standards when assessing applications for licences. If the granting of a licence was not in the public interest, the commission would not grant it. For that reason, I cannot accept the amendment.
The Minister of State has jumped to a conclusion. He stated that a licence would not be issued if it was not in the public interest to do so. Is he in a position to indicate where in the section the commission is given the right to refuse to grant a licence where it believes to do so would not be in the public interest?
I cannot imagine a situation where the Secretary General of a Department would apply for a licence if it were not in the public interest, particularly in cases where he or she wished to recruit personnel for which that Department has a need.
Is the Minister of State saying that something could be against the public interest but that he has not imagined such a situation arising and, therefore, we must accept on faith that anything which is outside his imagination cannot happen? Is that the kind of framework within which we must operate?
The standards will be laid down by the commission for the agency. Adherence to the established standards of probity, merit, equality and fairness, would be very much in the public interest in terms of how people will be recruited. Will the Deputy indicate the circumstances in which the Secretary General of a Department who is recruiting civil servants for that Department and who takes on board those criteria will not be operating in the public interest?
I can envisage situations where it will be decided to recruit certain types of people to fulfil urgent needs. Those people will be recruited locally and, subsequently, as needs change, they will no longer be appropriate. The unified public service model has served us well and there is a need for someone other than a Secretary General or a county manager under pressure to deliver something specific to make that decision. The Minister of State has indicated that once a county manager thinks it is right, it must be in the public interest. I do not accept that. Why would we put in place the commission to set standards, vet what is happening and inform itself of the way things ought to be done and then when it comes to the crucial decision of whether recruitment should be central not give it a role? The Minister of State's argument does not stand up to scrutiny.
As we move on from a model which has served us very well, it is important that we should have some assurance that said moves will be done with proper foresight. There have been public projects which commanded huge sums of investment money and which overran on a massive scale. I do not doubt that Ministers would have stated that applications in respect of such projects were in the public interest and were the best on offer. Had someone been in place to ask whether benefits that would never be realised were being anticipated, whether some of the costs were incorrectly estimated and whether the conditions on the ground were properly considered, we might have been on time and on budget in terms of the delivery of some of these projects. I do not believe that all wisdom resides with the head of a Department at any given stage. A change as important as that before us ought to contain a public interest test.
With regard to the criteria under which the agency will operate, the functions of the commission will be to establish the standards of probity, merit, equity and fairness and other principles it considers appropriate to be followed up in the public interest in the recruitment and selection of persons. Furthermore, it must meet on a regular basis and agree and establish procedures it deems appropriate and which will permit it to make decisions and carry out its functions effectively. Included in this must be systems to monitor, audit and evaluate the recruitment and selection process. The commission will have a wide-ranging brief in terms of what it will be obliged to do. If it deems that a particular agency is not operating in the public interest, it will be in a position to deal with that issue.
Suppose a county manager based in a region with a lot of chemical industries wants to recruit someone to exercise environmental standards and oversee these companies. The commission may be of the view that recruitment should be done on an international basis but the county manager may decide he or she will recruit locally in, say, Cork. He or she may say: "You may think otherwise but that is too bad. The legislation says I am entitled to my licence so I will apply the rules of probity. I will not do what you think is right. I will not go international and consider people with an international experience. I will keep it a parochial issue." Who will say the public interest requires the vacancy to be filled by means of an international competition?
The county manager must apply to the Department.
He or she will be given the right to recruit locally.
Unless it is an existing position, he or she must get clearance from the Department.
He or she can get clearance for the salary, but under this proposal he or she has a right to recruit.
Is that not the current practice?
No. The county manager has no right to recruit.
Is the Deputy saying it should apply to every competition? This is about a licence to operate. One might have a problem with a particular competition.
The Minister of State asked for an example where the public interest was not served by the county manager making the call on this. There are many such examples.
That is not the granting of the licence.
In that scenario, under section 51, where the commission considers it appropriate in any circumstance, it may, from time to time issue advices to licence holders in respect of the exercise of functions by office holders under this Act. Advices under this section may be issued to one or more licence holders. That covers a scenario where it may become apparent to the commission that the licence holder in this case was not working.
Would it not be far better if, when a licence is granted, the commission was to say it will not grant a licence for all positions as it recognises that for certain types of positions this discretion ought not to be exercised and that, accordingly, it will ringfence certain types of positions thereby preventing the county manager from proceeding? This is how the public interest tests can be exercised. The Minister of State is trying to ensure that they are not exercised.
The commission can grant a licence for certain posts.
It can refuse to licence them.
On the appropriateness of an international or local candidate, there are obligations in this regard. It depends on the expertise required. While there will be local recruitment, an agency will not be in a position to insist that the applicants are local. I can recall an instance where one of the best known Dublin footballers ended up as the principal of a technical school in Donegal for a number of years. Obviously the system was sufficient to cater for his choice to work there. Regardless of whether an agency decides to recruit locally, one cannot ignore applicants from outside. If the code of practice in terms of merit and fairness is followed, whether one is an international, Dublin or Donegal applicant, there is no reason why the proper candidate should not be selected for a position in Cork or wherever.
Is the Minister of State saying that, by and large, the recruitment licence will look at the slate of posts and only licence certain posts?
Section 45(3)(a) provides that a recruitment licence granted by the commission shall be capable of identifying the class or classes of employees or the position or positions to which it relates.
Is that a factual statement of what the licence applicant should seek or is it a judgment statement as to what the licence should contain?
It is a judgment by the commission.
Perhaps it could be strengthened. It appears as if the manager might only apply for three or four things and that is what he will get. Perhaps there ought to be some reference to the issues it would consider when deciding which posts ought to allow for local recruitment. Perhaps the Bill could be amended to provide that in considering the granting of the licence and the posts it should cover, the commission will have regard to whether local-based recruitment is the most appropriate for the posts under consideration. If that was provided it would go a good distance towards meeting my concerns.
The criteria are very wide. Section 45(3)(a)(iii) provides that the commission can include such other terms and conditions, including any restrictions, as it considers appropriate in the circumstances. There is sufficient scope there.
That relates only to probity. The provisions here need to be strengthened.
Section 45(3)(a) provides that a recruitment licence granted by the commission shall, first, be capable of identifying the class or classes of employees or the position or positions to which it relates and, second, include the terms and conditions set out in section 6(2)(b) and, third, include such other terms and conditions, including any restrictions, as is considered appropriate in the circumstances.
It is very wide-ranging and covers every circumstance.
I will consider it and reserve my position for Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 39:
In page 37, subsection (2)(a), line 21, to delete “subsection (5)(a)” and substitute “section 47(1)”.
Amendment agreed to.
I move amendment No. 40:
In page 38, between lines 6 and 7, to insert the following subsection:
"(5) The Commission shall, from time to time as it considers appropriate, examine and evaluate, or cause to be examined and evaluated, every licence holder for the purpose of finding out whether or not each of them has complied with the conditions of this section.".
The Minister is currently providing that the licence can be withdrawn if there is some gross misdemeanour. The amendment seeks to provide that the licence holders will be examined on a more regular basis as standard practice to ascertain if the recruitment procedures meet the required standards. It does not seek an investigation with a view to threatening to withdraw the licence but a best practice audit which would become a regular feature.
I am glad the Deputy is present and relaxed because I accept this amendment. It makes sense.
It is lucky I did not go for tea. I would have said the Minister of State had had a few glasses of wine. That is excellent. My benchmarking award is justified.
You have earned your money today, Deputy Bruton.
Amendment agreed to.
Section 45, as amended, agreed to.
SECTION 46.
I move amendment No. 41:
In page 38, between lines 24 and 25, to insert the following subsection:
"(2) The Commission shall ensure that the manner in which recruitment is carried out by a licence holder is transparent and impartial and is such as to afford equality of opportunity to candidates.".
This amendment is unnecessary and redundant. Section 13 requires that the commission establish standards of probity, merit, equity, fairness and other principles as it considers them appropriate to be followed in the public interest in the recruitment and selection of persons for positions in the Civil Service and other public service bodies. Section 25(2) requires that these principles be implicit in the codes of practice which constrain the recruitment activity of licence holders while section 45(2)(b) requires that the commission be sure that applicants for a licence will uphold these principles before they are granted a licence to recruit. Consequently, these guiding principles will be vindicated in any recruitment operation. If they are not, the CPSA is empowered to investigate and to take a range of appropriate corrective actions, including amendment and withdrawal of licences. Accordingly there is no need to state this explicitly in the section.
As for transparency, the bodies established under the Bill will be subject to the Freedom of Information Act and there is a requirement to report regularly on their activities. Taken together, these measures more than adequately address the objective of the amendment. Accordingly, I will not accept it.
Amendment, by leave, withdrawn.
Section 46 agreed to.
Sections 47 to 55, inclusive, agreed to.
SECTION 56.
I move amendment No. 42:
In page 42, between lines 18 and 19, to insert the following subsection:
"(2)(a) If an office holder becomes of opinion that a communication has been received by him or her that breaches subsection (1)(c), it is the duty of that office holder not to entertain the communication further.
(b) An office holder who contravenes paragraph (a) is guilty of an offence and is liable on conviction to the penalties provided for in section 57.
(c) In this subsection an office holder means a person appointed to an office under the Constitution or otherwise within the meaning given to office holder by section 2 of the Ethics in Public Office Act 1995, for the purposes of that Act.”.
This amendment seeks to impose a set of obligations on holders of political office. Its definition of office holder is different from the definition set out in the Bill, which relates to holders of posts as chief executives of public service bodies. Given that the persons who will hold licences under the Bill are the chief executives of public service bodies, we have provided for obligations on these office holders because they are the people who will perform the recruitment functions. Accordingly, section 14 requires that an office holder inform the commission of any attempts to interfere in the recruitment process.
While the amendment would do no damage to the scheme of the Bill, in that it imposes an obligation on holders of political office to disregard attempts to have them interfere with the recruitment operations and makes it a criminal offence for them to entertain such attempts, there would be little practical benefit. As section 14 requires chief executives of public service bodies to report attempts at interference to the commission the holder of a political office would be reported as soon as he or she raised the matter with a licence holder. Therefore, as the objective of the amendment is adequately addressed by the Bill and I will not accept it.
Amendment, by leave, withdrawn.
Section 56 agreed to.
Section 57 agreed to.
SECTION 58.
I move amendment No. 43:
In page 43, subsection (3), lines 2 to 4, to delete all words from and including ", including" in line 2 down to and including "section 13(1)(g)” in line 4 and substitute the following:
"including, as a consequence of the application of the procedures referred to in section 13(1)(g), disqualification or forfeiture.”.
This is a technical amendment. It moves the clause "disqualification or forfeiture" to the end of the section. This provides clarity and avoids ambiguity as to the effect of section 58 in general.
Amendment agreed to.
Section 58, as amended, agreed to.
Section 59 agreed to.
NEW SECTION.
I move amendment No. 44:
In page 44, before section 60, but in Part 6, to insert the following new section:
"60.—(1) The Commission may make a Report under section 17 into the promotion practices of—
(a) any public service body, or
(b) any class of public service bodies.
(2) Where—
(a) a report made to the Minister under subsection (1) contains a recommendation that an order be made under section 6(1) in respect of promotion to a specific position or a class of positions, and
(b) no such order has been made within 2 years of the Minister receiving the report,
then the Minister shall lay a report on the matter before each House of the Oireachtas within the next 10 days on which the House concerned has sat after the end of that period of 2 years.".
This issue was discussed earlier and this is a more specific request regarding promotion. The amendment provides that the commission can arrange to make a report in respect of recruitment in bodies which are not yet included, for example the health boards. It provides for the commission to make a recommendation that the health boards, for example, be included under its terms. If the commission so reports, the Minister will be obliged to make a decision on the report within two years. In failing to do so the Minister must lay a report on the matter before the Oireachtas within ten days of the end of the two year period. The commission will look at promotion practices in the public service and where it is of the view that a change in such practices is justified the Minister will, by order, bring such practices within the remit of the commission, as requested by it. If the Minister fails to do so he or she will be obliged to report to the Oireachtas.
It is important to put some momentum behind reform of the promotion system. This is the lowest form of momentum required. The amendment requests the commission to make a report, allows the Minister the discretion to act on it, but obliges him or her to inform the House that he or she does not intend to act on the recommendation and explain why not. This is a low level request but it would have a beneficial effect in progressing the agenda in the area of promotion.
We have already discussed this matter. Section 17 provides that the commission may inquire only into recruitment practices of public service bodies prior to making a report on whether or not certain posts should be subject to the remit of the commission.There is no impediment on the Minister making an order under section 6 to bring a promotion post in the public service into the remit of the commission. This amendment would impose the unnecessary precondition of an investigation before the making of any such order.
As to subsection (2) of the amendment, any report made by the commissioners pursuant to section 17 is already subject to the procedure whereby the Minister must make a statement if he does not propose to accept the commission's recommendations. Consequently I do not propose to accept the amendment.
Can the Minister of State explain how my amendment prevents the Minister making an order without a report by the commission?
The commission may inquire only into the recruitment practices of public service bodies prior to making a report on whether certain posts should be subject to the remit of the commission.
Under section 17, the commission may make a report on the promotion practices of any public body. My amendment proposes that where a report made to the Minister contains a recommendation that an order be made and no such order has been made within two years, the Minister will lay a report before each House of the Oireachtas on the matter. That would not preclude the Minister from proceeding with an order to bring promotion within the remit of the commission. However, where the commission takes the view that a particular system should be within the remit of the commission and the Minister refuses to do that, the amendment would oblige him or her to justify that refusal. The Minister may act unilaterally but if he or she fails to act on a commission recommendation he or she must report to the Oireachtas. That is all the amendment would do.
Section 17 states that the commission may carry out an assessment into recruitment practices but not into promotion practices.
I could delete the reference to section 17 from the amendment. The effect of the amendment would not change.
It would be preferable to submit the amendment on Report Stage.
If the Minister accepts in principle the amendment without reference to "under section 17" I am happy to withdraw it and resubmit it on Report Stage. For the purpose of this debate I am happy to deal with it without reference to section 17.
I can accept that.
We will consider the matter for Report Stage.
Amendment, by leave, withdrawn.
Sections 60 and 61 agreed to.
SECTION 62.
Amendments Nos. 45 and 46 are related and may be discussed together by agreement.
I move amendment No. 45:
In page 46, subsection (6)(a), line 5, to delete “stand transferred” and substitute “by”.
This is a purely technical amendment to correct a drafting error.
Amendment agreed to.
I move amendment No. 46:
In page 46, subsection (6)(b), line 6, to delete “stand transferred” and substitute “by”.
Amendment agreed to.
Section 62, as amended, agreed to.
SECTION 63.
Amendments Nos. 47 to 50, inclusive, are related and may be discussed together by agreement.
I move amendment No. 47:
In page 46, subsection (1), line 7, to delete "columns 1 and 2" and substitute "the first and second columns".
Amendment agreed to.
I move amendment No. 48:
In page 46, subsection (1), lines 8 and 9, to delete "column 3" and substitute "the third column".
Amendment agreed to.
I move amendment No. 49:
In page 46, subsection (2)(a), line 10, to delete “column 2” and substitute “the first column”.
Amendment agreed to.
I move amendment No. 50:
In page 46, subsection (2)(a), line 12, to delete “column 2” and substitute “the second column”.
Amendment agreed to.
Section 63, as amended, agreed to.
SECTION 64.
I move amendment No. 51:
In page 46, subsection (1), line 19, after "section 16" to insert "or 29".
This section deal with regulations and rules regarding competitions made under the Civil Service Commissioners Act 1956 and analogous legislation which are in force on the establishment day referred to in section 3. The amendment proposes to protect any regulations made by the Civil Service Commissioners under sections 16 or 29 of the Civil Service Commissioners Act 1956, both of which relate to the conduct of competitions. The amendment will ensure that competitions in train at the time of the establishment of the CPSA and the PES are not adversely affected by the repeal of the Civil Service Commissioners Act 1956.
Amendment agreed to.
Section 64, as amended, agreed to.
NEW SECTION.
I move amendment No. 52:
In page 47, before section 65, to insert the following new section:
"65.—(1) Where in any enactment there is a reference, however expressed, to either or both of the dissolved bodies, then the reference shall, where appropriate and subject to the other provisions of this Act, be read:
(a) in so far as it relates only to the conduct of competitions, as a reference to the Public Appointments Service, and
(b) in every other case, as a reference to the Commission.
(2) Nothing in this section shall be read as restricting any power duly exercisable to amend or otherwise affect an enactment made under any Act.".
Will the Minister of State explain the import of this amendment?
This amendment takes account of the Supreme Court judgment in the recent Carrickmines case concerning Michael Mulcreevy v. Minister for the Environment, Heritage and Local Government and Dún Laoghaire-Rathdown County Council and will replace section 65 with the text of the section as set out in the amendment. The Supreme Court held in its judgment in that case that it is not constitutional to amend the law by statutory instrument or ministerial order. The current section 65 proposes that the law may be amended in this way. To take account of the Supreme Court decision, the section is being withdrawn. It is proposed that section 65 will be replaced by this section which will require that references in statute law to the Civil Service Commissioners and the Local Appointments Commissioners should be read as reference to the Public Appointments Service in the case of reference to the conduct of competitions and to the Commission for Public Service Appointments in all other cases. This amendment is proposed to copperfasten the orderly transfer of the functions of the dissolved bodies to the bodies established under the Act. This transfer is provided for in specific terms in the amendment set out in Schedule 2 where it is thought prudent to include a universal measure in case the drafters have missed a specific reference.
Amendment agreed to.
Section 65 deleted.
Section 66 agreed to.
SCHEDULE 1.
Question proposed: "That Schedule 1 be Schedule 1 to the Bill."
Subsection (1) should be removed from Schedule 1.
I am opposed to that suggestion.
Question put and agreed to.
SCHEDULE 2.
I move amendment No. 53:
In page 49, in the third column, line 10, after "Local Appointments" to insert "Commissioners".
Amendment agreed to.
I move amendment No. 54:
In page 49, between lines 12 and 13, to insert the following:
"No. 28 of 2003 Houses of the Oireachtas Commission Act 2003 Section 16: In subsection (1)(g), to delete ‘Civil Service Commissioners Act 1956’ and substitute ‘Public Service Management (Recruitment and Appointments) Act, 2004’. ”.
Amendment agreed to.
Amendment No. 56 is an alternative to amendment No. 55 and both may be discussed together by agreement.
I move amendment No. 55:
In page 55, to delete lines 58 and 59 and substitute the following:
"No. 22 of 1995 Ethics in Public Office Act 1995 Section 19: In subsection (1)(a), to delete ‘an excluded position (within the meaning of the Civil Service Commissioners Act, 1956)’ and substitute ‘a position to which section 7(1)(e) of the Public Service Management (Recruitment and Appointments) Act 2004 relates’. To delete subsection (5). ”.
What is the purpose of the amendment?
The amendment is consequential to the proposal to provide that special advisers will now be dealt with at section 7(1)(e) of the Bill rather than section 2, thereby excluding the appointment of such staff from the ambit of the Bill. The amendment is purely technical in nature and does not affect the substantive content of the amendment of the 1995 Act.
Amendment agreed to.
Amendment No. 56 not moved.
Schedule 2, as amended, agreed to.
TITLE.
I move amendment No. 57:
In page 7, line 13, after "ESTABLISH" to insert "A BODY KNOWN AS AN CHOIMISIÚIN UM CHEAPACHÁIN SEIRBHÍSE POIBLÍ OR IN THE ENGLISH LANGUAGE,".
The Minister of State indicated earlier that he would reconsider this amendment for Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 58:
In page 7, line 32, to delete "OR ALL".
What is the purpose of the amendment?
The amendment relates directly to the proposed amendment of section 27 which will ensure that a licence holder has to perform at least some of a recruitment process even in cases where a private sector recruitment agency has been engaged to assist. The amendment inserts a new subparagraph (b) which will ensure that a licence holder will remain solely responsible for the final selection of candidates for appointment or placement on a panel of appointment. The effect of the amendment is to require that the licence holder cannot delegate the task of final selection to a private sector recruitment agency. Taken together, these amendments mean the public sector licence holder retains responsibility for compliance with the terms and conditions of the recruitment licence and nothing in the section shall relieve the licence holder of his or her obligations under the Act.
Arising from our earlier debate, is it not the case that the recruitment processes that can be delegated to these bodies would be only those processes for which it obtained a licence?
That is correct. The amendment states that it prevents the private recruitment agency from doing all the recruitment and it retains responsibility for the final decision with the licence holder.
It gives the impression that the licence holder is free to delegate its recruitment processes. However, it is only free to delegate recruitment processes for which it has been licensed. Does the fact that it can only delegate a subset of its recruitment processes, namely the ones it has been licensed to run, mean there has been an omission?
It will only receive a licence for particular processes.
There should be a reference to "the recruitment processes as licensed". The difficulty is only technical but it seems necessary.
It is inferred in the Long Title that it can only delegate what it is entitled to do.
It is only an inference, but if the Minister of State is happy with that, so am I.
Amendment agreed to.
Title, as amended, agreed to.
Bill Reported with amendments.
I thank the Minister of State and his officials for their attendance and the members of the committee on the completion of Committee Stage.