Special Committee Law Reform Commission Bill, 1975 díospóireacht -
Wednesday, 19 Feb 1975

SECTION 10.

Mr. O'Malley

I move amendment No. 7:

In page 5, lines 33 to 46, to delete subsections (4) and (5).

The reason we put down this amendment is that these two subsections do not seem to have any great bearing on the rest of the section. On their own their meaning is not at all clear. The rest of the section, to a great extent, is very similar to the English Act. Most of this Bill is a copy of the English Act. This bit seems to be brought in in addition to the analogous provisions in the English Act and it is hard to see exactly what is intended by it. One can speculate about it and see a number of possible meanings, but the two subsections seem to go together and do not mean a great deal. The word, " designation ", is not used anywhere else in the Bill and I can see and I am not quite clear what is meant by it, whether it is that a certain individual shall be designated by the Attorney General to take up a particular office or not.

Mr. Costello

No, the idea is to have this power so as to ask the commission to invite applications by means of advertisement or to, perhaps, ask the commission to fill posts by means of open competition. The commission will appoint its own staff and there can be no interference with that power. It is not intended that these subsections would interfere with it. What we are trying to envisage is the possibility that the commission might want to extend its staff and there could be a possible criticism of the commission if it did not advertise adequately.

For example, if the Commission wished to appoint its own staff from a certain institution it could do so. It was thought desirable, to protect the Commission against unfair criticism, to provide that the method of selection by advertisement, by holding interviews or examination, would be settled by the Attorney General. The Attorney General, if the commission wish to take on research staff, can say it is thought desirable to advertise, or hold an open competition of some sort. This would enable the commission to answer any criticism that could be made against it by pointing out that the method of selection had been settled as a result of discussion. That is all that is behind this. If it was not there and the commission as it expanded appointed additional staff there could be criticism of it.

Mr. O'Malley

Has the word " designation " some specific meaning in what I might call civil service law?

Mr. Costello

No.

Major de Valera

What does it mean?

Mr. Costello

Nos. 4 and 5 are linked together. The Attorney General may make a designation under this subsection in relation to any office under the Constitution. He will then have designated certain offices. He will say research staff on the commission will be designated. The commission will then be required to consult with the Attorney General who, if he thinks fit, as regards the making by the commission of an appointment to the office, require the commission to invite applications. What is envisaged is that if the commission is expanded, as we will hope it will, the Attorney General of the day might designate certain staff, for example research staff, but before the posts can be filled the commission have to consult the Attorney General.

Major de Valera

For approval?

Mr. Costello

No, not for approval. The staff would not be approved at all; that would be a matter for the commission. When the particular category of posts are designated then the commission could not fill them without going to the Attorney General.

Major de Valera

It is something like the old Department of Finance approval?

Mr. Costello

That is there anyway: we cannot take on staff without consulting the Department of Finance and getting approval. This section provides a mechanism to avoid criticism of the commission.

Major de Valera

This problem has arisen on other types of commissions, for example, the National Prices Commission. It is not only a question of the designation of the function but who is to fill it. For instance, this commission when it comes to practicalities can run into a problem as to who to designate as an expert consultant.

Mr. Costello

That is not quite what is meant. There are non-civil service posts, research officers, and if the commission started to fill these posts from one institution there could be criticism of it. In order to avoid any possible criticism we have included this section. The Commission, by reason of this section, can reply to any criticism by pointing out that they have advertised the posts or held an examination in accordance with the requirements laid down by the Attorney General in subsections (4) and (5). The Attorney General cannot put a word in in respect of the appointment of staff; all he can do is to tell the commission that if research staff are to be appointed certain procedures must be followed.

Major de Valera

I was opening the way for an argument on the use of the word " approve ". I have mentioned the question of the consultants who are hired by the commission. This is a commercial operation and it is desirable.

Mr. Costello

That would not be filling the offices; this would not apply to it.

Major de Valera

Maybe I am straying.

Chairman

It is in respect of non-civil service staff.

Major de Valera

It is non-civil service staff I am concerned with; they could be professional consultants, on a professional and commercial basis. It is desirable that when these are appointed by the commission, the Minister, or the Attorney General in this case, should have some responsibility and power of supervision over the appointments of consultants by the commission when there is remuneration involved.

Mr. O'Malley

My problem is that I understood the word " designation " to mean a particular thing in ordinary simple English but it appears it means something else altogether.

That is why I ask if it is a word in civil service law, by which I mean a word in the Civil Service Acts?

Mr. Costello

I think it would be a question of interpreting sections 4 and 5. The Attorney General would designate an office. He would say : " I hereby designate research officers of the commission as offices to which sections 4 and 5 apply." If that had not been done the commission could not fill those offices until he was consulted and when consulted he might say that it would be better to advertise the post or in certain circumstances to have open examinations. That is all that is involved.

Mr. O'Malley

Unfortunately, it says that the Attorney General " may, if he thinks fit, " require the commission to invite applications in a manner specified by him.

Mr. Costello

You want to do away with the section altogether. Then he would not be able to do it at all.

Major de Valera

Designation is a vague word. Could we say " may give directions as he thinks fit?" I know it is a very wide power to give to the Attorney General but in this case I think it is desirable. I think something like " may give such directions as he deems fit under this subsection in relation to any office " would meet the case instead of " designation ". That is what I think designation means.

Mr. Costello

It is a bit strong.

Major de Valera

Either the Attorney General wants to do it or he does not. If he wants to do it, he had better be strong enough to do it and have the strength of restraint. If he does not want to do it, why the window dressing?

Mr. Esmonde

It might be a matter of length of time.

Major de Valera

He may give such directions as he deems fit—that is permissive but it certainly gives him a wide discretion and wide power and it appears to be what the word " designation " means in direct language.

Chairman

The Attorney General may not wish to use the word " direct ".

Major de Valera

It is limited to the subsection.

Mr. Costello

The sections say " require the commission ". " Require " and " direct " are pretty close.

Major de Valera

Yes, but it is a much more limited application under subsection (5) than under subsection (4).

Mr. Costello

I think there should be discretion. I do not think the Attorney General should be required always——

Major de Valera

I agree, that is why I say " may ". He may make a direction. There should be no quibble about what he may do. When you are giving discretion you are giving the power.

Mr. O'Malley

What exactly does the word " designation " mean? I understood it to mean : " I designate you to a particular thing ".

Mr. Costello

No, you designate an office, and it is proposed that the Attorney General designates certain offices and the offices would cover the research officers of the commission.

Major de Valera

Well why not say: " may designate any office . . . " and take out the circumlocation?

Mr. Costello

It says in subsection (a) " may make a designation under this subsection in relation to any office ".

Major de Valera

I am suggesting that you make the meaning clear and say " may, under this section, designate any office."

Mr. Esmonde

Would it not be better to take " designation " out of it altogether?

Mr. Costello

He may designate it all the same.

Chairman

I think we could meet the point there.

Major de Valera

It is unusual for this side to press the Minister in charge to take power but I urge the Attorney General to take control in this matter.

Mr. Costello

I think we could put it this way, that the Attorney General may for the purposes of subsection (5) of this section designate any office under the commission. That would meet Deputy de Valera's point.

Amendment No. (7), by leave, wthdrawn.

Mr. Costello

I move amendment No. 7a:

In subsection (4), page 5, lines 33 and 34, to delete " make a designation under this subsection in relation to " and substitute " for the purposes of subsection (5) of this section designate ".

Amendment agreed to.

Question proposed : " That section 10, as amended, stand part of the Bill."

Mr. O'Malley

It appears that as regards the clerical staff of the commission the Civil Service Commissioners Act will apply but it does not apply to what I would call the officers of the commission.

Mr. Costello

The professional officers will not be civil servants. This is a mechanism which we thought was necessary.

Chairman

It does not broaden the concept of professional staff involved in the commission.

Mr. Costello

You may have a person coming in for a year or two.

Mr. O'Malley

Have the officers any security of tenure?

Mr. Costello

No, they will be in on an ad hoc basis or on contract. They will not be civil servants.

Mr. O'Malley

But if an officer spends 20 years there will he be able to get a pension?

Mr. Costello

Yes, that is provided for later on.

Mr. O'Malley

It is stated in lines 15 and 16 that every member of the clerical staff of the commission and every servant of the commission shall be a civil servant in the civil service of the State. Is that as opposed to the civil service of the Government? Is that as opposed to the civil servants of the Government?

Mr. Costello

Yes.

Mr. O'Malley

In other words, they are the same as the Oireachtas civil servants?

Mr. Costello

Yes.

Chairman

And they will come under the Civil Service Commission.

Mr. H. P. Dockrell

Is there any difficulty here in that the office staff will be civil servants and the senior mmbers of the staff will not be civil servants?

Mr. Costello

I do not think so. I would imagine the professional staff will be fluctuating.

Chairman

It will be comparable to the National Prices Commission.

Mr. Costello

I do not know how that operates but I would imagine that some young student or graduate of a university might come in for a couple of years or something like that.

Mr. O'Malley

What is the distinction between the clerical staff of the commission and servants of the commission?

Mr. Costello

A doorman.

Mr. O'Malley

I would have thought that in this enlightened age and under this enlightened administration such an anachronistic word as " servant " would not appear in legislation.

Mr. Costello

It is there.

Mr. O'Malley

I know it is there. I am commenting on it.

Mr. Costello

I mean it is in other legislation.

Mr. O'Malley

Is it defined somewhere?

Mr. Costello

It is recognised.

Mr. O'Malley

I do not understand anything about the Civil Service Commissioners Acts but I presume all the provisions about it here are all right.

Mr. Costello

Yes.

Question put and agreed to.