Ms Patricia Coleman:

The committee has invited the Department of Public Expenditure and Reform to discuss matters arising out of the investigation by An Coimisinéir Teanga on the awarding of bonus marks for proficiency in Irish in internal competitions in the Department of Social Protection. We thank the committee for the opportunity to clarify the policy position on the awarding of bonus marks for proficiency in the Irish language and will focus our comments on chapter 3 of both investigations.

In conformity with instructions from the secretariat and on foot of discussions with the committee clerk, we will not be commenting on those aspects of the investigations that cover issues currently under appeal to the Supreme Court.

It is useful to set out the responsibilities of the Minister for Public Expenditure and Reform in relation to the issues raised by An Coimisinéir Teanga. The Minister for Public Expenditure and Reform has overall responsibility for the regulation of the Civil Service under section 17 of the Civil Service Regulation Act 1956. This includes specific responsibility for recruitment and promotion. The section is as follows:

17(1) The Minister shall be responsible for the following matters:(a) the regulation and control of the Civil Service,
(b) the classification, re-classification, numbers and remuneration of civil servants,
(c) the fixing of

(i) the terms and conditions of service of civil servants, and
(ii) the conditions governing the promotion of civil servants.

(2) The Minister may, for the purpose of subsection (1) of this section, make such arrangements as he thinks fit and may cancel or vary those arrangements.

Under section 17(1), the Minister is responsible for, inter alia, the fixing of the conditions governing the promotion of civil servants. Crucially, under section 17(2), the Minister may, for the purpose of subsection (1), make such arrangements as he thinks fit and may cancel or vary those arrangements.

In relation to Irish language proficiency in the Civil Service, the Minister has, notably, exercised those powers under section 17(1)(c)(ii) on three occasions since 1975, by way of circulars and circular letters. The Government decided in 1974 that, inter alia, knowledge of Irish would no longer be obligatory for entry to Civil Service positions and would not be obligatory for eligibility for promotion. In November 1975, the then Department of the Public Service issued circular 43/75, setting out changes consequential on that decision. The circular provided that in promotion competitions credit would be available at a rate of 10%, subject to candidates having satisfied Irish qualification requirements. Circular 43/75, Irish Requirements in the Civil Service, provides that proficiency in Irish and English will be given equal credit in recruitment and establishment competitions and candidates can present in Irish or English or both. Those shown to be proficient in both languages were to get credit for this in determining the order of merit. In respect of promotion competitions, knowledge of Irish was to be one of the factors assessed in selecting staff for promotion.

In 1990, the Department of Finance issued circular 30/90, Credit for Proficiency in Both Irish and English in Confined Promotional Competitions. This varied the conditions applying to the language proficiency scheme. The circular provided that candidates would get a reduced credit for Irish at promotion competitions and that in order to get the credit they would have to re-sit the Irish qualification test from time to time.

Candidates were to receive a reduced 6% credit, as distinct from the former 10%, if they had undergone an appropriate test in the preceding five years but only 3% if they had taken the test between five and ten years previously.

In November 2005, a letter to personnel officers issued from the Department of Finance, which clarified conditionality in the application of the arrangements of the Irish language proficiency scheme. The clarification confirmed that Departments have discretion in the application of circulars 43/75 and 30/90 for the purposes of internal competitions only.

An Coimisinéir Teanga's investigation is constructed around two key questions. First, are bonus marks an option for the Department in internal competitions and, second, at what stage of the promotion process are bonus marks awarded? An Coimisinéir Teanga, in his investigation, contends that "Government Departments have no choice but to award bonus marks appropriately under the provisions of the circular in internal competitions". He contends that it is a statutory requirement for Government Departments, including the Department of Social Protection, to award bonus marks for language competence in internal competitions, as set out in circulars 43/75 and 30/90. In reaching this conclusion An Coimisinéir Teanga relied on the Laffoy judgment in the case of de Búrca v. an t-Aire Iompair agus Eile. The judgment ruled that Irish bonus marks should be applied to internal competitions. As this judgment is the subject of an appeal to the Supreme Court, "in finding that the provisions of circular 43/75 and 30/90 apply to internal competitions for promotion" I do not intend to comment further or in any way that could prejudice those proceedings.

With regard to the second question about the point in the selection process where bonus marks for Irish language proficiency are applied, An Coimisinéir Teanga concluded that the relevant circulars "do not permit the awarding of bonus marks to be limited to those who obtain places on a panel following interview and that they should not be awarded simply to determine the final order of merit of candidates".

Paragraph 1(d) of circular 43/75 provides that a knowledge of Irish will be one of factors that will be assessed in selecting staff for promotion. While the circulars are not prescriptive on the point in the selection processes at which the marks are to be applied, the custom and practice for the last 37 years is to apply the marks at the order of merit stage in the process. We have found no single case of a deviation from this practice in our searches to date on this issue. Having consulted with the Public Appointments Service, PAS, it has been confirmed that this approach has been followed in past competitions and by the Civil Service Commission before 2004, when the PAS was established, and it has always been the case that credit for proficiency in Irish is applied at the final stage of the competition, at the formulation of the final order of merit.

Recruitment policy has always sought to identify the best people for the job. Candidates who demonstrate the required skills and competencies for the post and meet all the essential requirements, as set out in the job description, are placed in an order of merit assessed by an interview board in line with recruitment best practice. Bonus marks for Irish proficiency are then applied to determine the final order of merit for the panel. Any moves to apply bonus marks at an earlier stage would have been resisted by the Department of Public Expenditure and Reform as it would run the risk of the appointment of candidates who do not have the essential competencies or criteria for the post.

We have worked closely with the PAS and the office of the Civil Service and Local Appointments Commission over the years in pursuit of excellence in the selection and appointments process. We are satisfied that awarding additional marks for candidates with Irish proficiency at the final panel placement stage is both consistent with effective recruitment policy and meets the requirements of paragraph 1(d) of circular 43/75. Where Irish is required to perform the duties of a post, Irish proficiency is assessed as a core competency in the relevant competition.

Policy determination in this area has always sought to balance Irish language requirements with the need to ensure that the Civil Service has the right people with the requisite skills and competencies in place. This is the guiding principle underpinning promotion policy expressed in circulars and letters issued by this Department.

I hope the foregoing clarifies the position in respect of the issues we have been permitted to address today, and I thank the members of the committee for their attention.