Oireachtas Joint and Select Committees
Wednesday, 1 July 2015
Committee on Finance, Public Expenditure and Reform: Select Sub-Committee on Public Expenditure and Reform
Houses of the Oireachtas (Appointments to Certain Offices) Bill 2014: Committee Stage
I remind members to ensure their mobile phones are switched off. It is important as it causes serious broadcasting problems and problems for the editorial and sound staff. Apologies have been received from Deputy Liam Twomey. Deputy Ó Snodaigh is substituting for Deputy Mary Lou McDonald. I welcome the Minister for Public Expenditure and Reform, Deputy Howlin, and his officials. The purpose of this meeting is to consider Committee Stage of the Houses of the Oireachtas (Appointments to Certain Offices) Bill 2014. The Bill was referred to the select sub-committee by Dáil Éireann on 18 June 2015.
If amendment No. 1 is agreed to, then amendments Nos. 2 to 5, inclusive, cannot be moved. Amendments Nos. 1 to 6, inclusive, are related and amendments Nos. 2 to 5, inclusive, are physical and logical alternatives to amendment No. 1. Amendments Nos. 1 to 6, inclusive, will be discussed together.
I move amendment No. 1:
In page 3, to delete lines 10 to 34, and in page 4 to delete lines 1 to 5 and insert the following:“Amendment of the Staff of the Houses of the Oireachtas Act 1959 and the Houses of the Oireachtas Commission Act 20031. (1) In this section—“Act of 1959” means the Staff of the Houses of the Oireachtas Act 1959;(2) The Act of 1959 is hereby amended by the deletion of sections 5 and 6.
“Act of 2003” means the Houses of the Oireachtas Commission Act 2003;
“Act of 2009” means the Houses of the Oireachtas Commission (Amendment) Act 2009.
(3) The Act of 2003 is hereby amended by the deletion of section 15 (as amended by section 11 of the Act of 2009) and the substitution therefor of the following sections:“Appointment of the Secretary General
15. (1) The Secretary General of the Service (in this Act referred to as the ‘Secretary General’) is the chief executive of the Commission.(2) The Secretary General shall be the principal officer of the Service and the officer accountable for the accounts of the Commission for the purposes of the Comptroller and Auditor General Acts 1866 to 1998.Assignment of Clerk and Clerk-Assistant functions in each House
(3) Subject to subsection (4), the Secretary General shall be appointed by the Commission following consultation by the Chairman of Dáil Éireann with leaders or designated leaders of groups or parties in either House of the Oireachtas who are not represented on the membership of the Commission at that time.
(4) The selection of a candidate for appointment as Secretary General shall be by means of an open competition, by the committee known as the Top Level Appointments Committee, who shall recommend, in order of preference, not more than three persons for appointment to the Houses of the Oireachtas Commission provided if the Commission fail to agree to the recommendation of any of the persons for appointment, then a new competition for the vacancy shall be held and the provisions of this section shall apply accordingly.
(5) For the purposes of this section an open competition shall mean a competition whose terms with respect of the eligibility of persons to compete in it shall not be such as to limit such eligibility to persons who are civil servants.
15A. (1) The functions of the Clerk of Dáil Éireann may be assigned from time to time from among the staff of the Commission by the Chairman of Dáil Éireann in consultation with the leaders or designated leaders of the parties or groups in Dáil Éireann and the Commission.(2) The functions of Clerk of Seanad Éireann may be assigned from time to time from among the staff of the Commission by the Chairman of Seanad Éireann in consultation with the leaders of the groups in Seanad Éireann and the Commission.
(3) The functions of Clerk-Assistant of Dáil Éireann and the Clerk-Assistant of Seanad Éireann may be assigned from time to time from among the staff of the Commission by the Secretary General following consultation with the relevant Chairman of the House of the Oireachtas.”.”.
Amendment No. 1 is a long amendment but it boils down to one simple issue. The purpose of the Bill is to appoint a Secretary General for the Houses of the Oireachtas but I propose the inclusion of a section stating "the Secretary General shall be appointed by the Commission following consultation by the Chairman of Dáil Éireann with leaders or designated leaders of groups or parties in either House of the Oireachtas who are not represented on the membership of the Commission at that time." Essentially, the process involves the Top Level Appointments Committee and a recommendation being made to the Ceann Comhairle, who brings it to the Houses of the Oireachtas Commission. However, I propose to broaden the basis of that, to get a greater level of acceptability among all the political groupings and from people who are not in political groupings and who are not represented on the commission and to get a greater level of consent on the appointment of the Secretary General, rather than limiting it to members of the Houses of the Oireachtas Commission. That is the only addition I propose. I think the Minister can see the point I make which is to broaden that final step of the process. It should be non-controversial.
As Deputy Fleming rightly said, he has proposed a long new section on the appointment of the Secretary General. The first part is a replication of the status quo. The position is that the Clerk of the Dáil is the Secretary General and we outlined on Second Stage, in some detail, the array of functions that the Secretary General of the Houses of the Oireachtas Commission has.
Two different issues arise from this amendment. One is that leaders or designated leaders of groups or parties in either House of the Oireachtas who are not represented on the membership of the commission at that time be consulted. I would not have an objection to that but I am trying to tease out how that would work. What we are doing is providing for a formal appointment system whereby the job would be advertised in an open way, people would apply for it and the Top Level Appointments Committee, TLAC, which, as Members know, now consists of a majority of external members, would do the interviews, do the short-listing and make the recommendation. I wonder where the consultation would come in. The Ceann Comhairle would make a recommendation to the commission and it would make the decision. It would be better if the groups the Deputy mentioned were formally represented on the commission as opposed to having some sort of undefined consultative role. What would that consultation mean other than telling them about it? There would be no real role for them other than that.
As I explained in some detail, because I greatly respect the independence of Parliament from the Executive, I do not believe I should be prescriptive, as a member of the Executive, about the exact composition of the commission but I am supportive of broadening the membership of it. I know there is a further amendment on this but I do not think I should be the one to make that determination; that should be part of the debate within the Houses of the Oireachtas. It probably will not impact on the current Dáil but it should on the next Dáil in terms of the composition of the commission.
I do not believe that this fairly nebulous consultation role is fit for purpose and it would be confusing in terms of a legal appointment process. What I am trying to do is to have a process which mirrors the process by which a Secretary General of a Department is appointed where there is an open competition, a TLAC interviewing process, a short-list, a recommendation to a Minister and the Minister bringing his or her recommended person's name to Cabinet. That is the way it is done.
Has a vote been called in the Dáil?
Deputy Billy Timmins is an independent voice. The other point in Deputy Fleming's amendment, which he did not reference, was the prioritising of candidates. That is not done by TLAC in the normal course. TLAC normally gives a Minister three names and simply deems them all to be qualified, so there is some flexibility for the Minister to make a discernment and I would like to give that same capability, in first instance, to the Ceann Comhairle and, in the second instance, to the commission to make a choice without stating an order of merit. That would be a better way to go about it.
I wish comment on a point the Minister made. He said he was a supporter of the independence of Parliament from the Executive. I want to signal my intention to table an amendment on Report Stage to provide a new section 2 to support that concept by giving powers to the Ceann Comhairle or the Houses of the Oireachtas Commission - one or the other - which are currently held by the Government Chief Whip.
I move amendment No. 2:
In page 3, line 15, after "Clerk" to insert "and Clerk-Assistant".
A new procedure is being provided for and I have not heard anybody complain about it to much. It is a welcome move to clarify how the Clerk of the Dáil would be appointed. We should use this provision to appoint the Clerk Assistant of the Dáil in a similar manner, given the additional responsibilities a person at that level holds, as it is a very high level job. In the event of the Clerk of the Dáil being sick or retiring, the Clerk Assistant steps into the Clerk's role and, therefore, the Clerk Assistant's position carries that onus. We saw what happened in recent times since the retirement of Kieran Coughlan. There are occasions when a person is in an acting role and has all the duties and responsibilities that the former holder of that position had. This proposal would allow a smooth transition in such a case but the person would have the same backing from Top Level Appointments Committee, the Houses of the Oireachtas Commission and from the Chairman of the Dáil, the Ceann Comhairle. It would be appropriate to provide for the appointment in this way of those two important positions.
The effect of the amendments would be to delete the section dealing with the Clerk Assistant of the Dáil and in section 5(1) after the word "Clerk" to insert "and Clerk-Assistant". The later text would be changed in that after "person" the words "for either of the positions" would be inserted and the word "competition" would be deleted and substituted with the word "competitions".These amendments in a sense provide that we would appoint a team when the Clerk of the Dáil is being appointed as we would have two people who, hopefully, would work hand in glove in those positions because of the importance of those roles they play in terms of the running of the House and the key role they play in the Houses of the Oireachtas Commission. Sin é.
I have certainly given careful consideration to this proposal. The reason for putting the formal TLAC process in place for the Clerk of the Dáil position is that it is a Secretary General level position. With respect to the three positions being proposed by Deputy Ó Snodaigh to be encompassed in the TLAC proposal, none of them has a current status higher than principal officer, which would not be normally a category determined by TLAC. I am also anxious that there would be flexibility in the Houses of the Oireachtas. The Houses of Oireachtas are specialist and the power of the commission under the stewardship of the Ceann Comhairle - it would be under the stewardship of the Cathaoirleach of the Seanad in the case of the Clerk of the Seanad - to make those recommendations is the appropriate process on balance rather than to take it to a TLAC level, which it is not currently. It is something a future Oireachtas might determine to do but we will make this significant change first and leave the other three categories to be appointed in the way I have suggested, which is that the appointment in regard to officers of the Dáil would be determined by the commission on the nomination of the Ceann Comhairle from the existing cadre of staff, and in regard to the Seanad, on the nomination of the Cathaoirleach from the existing cadre of staff there.
My intention was not, and I do not think it is in the amendments, to have the Clerk or Clerk Assistant of the Seanad appointed in that way. There is a difference between them and the Clerk of the Dáil. Even though the Clerk does not have the Secretary General position, he or she has the roles and responsibilities of the Secretary General of a Department and the roles and responsibilities of the head of the Houses of the Oireachtas Commission. I am not trying to create additional work for the Top Level Appointments Committee; I am trying to ensure that when a Clerk is appointed, given the huge additional tasks, an assistant is also appointed. The Minister listed the tasks during the Second Stage and I was concerned that some of the jobs belonged to others. The Clerk of the Dáil now has overall responsibility - as the Secretary General, via the Houses of the Oireachtas Commission - for every aspect of what happens in the functioning and security of the Dáil. If somebody is indisposed, ill or incapacitated and out of that role, someone could step in, in an acting position, during the bureaucratic three- to six-month process of advertising the Secretary General position, from job advertisement to the recommendation from TLAC to the Houses of the Oireachtas Commission, which then makes a recommendation to the Ceann Comhairle, who then gets the Dáil to sign off on it. This acting Clerk will already have been working hand in glove with the Clerk as a deputy secretary general.
The Seanad is different in many ways because its Clerks do not have the role of being in charge of the Houses of the Oireachtas Commission. I am on record as saying I have a problem with the way the Houses of the Oireachtas Commission is formatted, and I tabled amendments to that effect, but they were ruled out of order. I will not go through them. I will not divide the committee on this issue. I thought it was a practical approach to something that might be a problem in the future. The committee has gone through the last number of months with an acting Clerk of the Dáil. I have not heard any complaint, but it is not ideal. The proposal is to address an issue so that somebody can enjoy the full power and responsibility without having to go through some of the rigmarole that that might otherwise entail.
I fully understand the issues raised by Deputy Ó Snodaigh. I apologise; I did not mean to imply that he wanted to do the same with the Clerk of the Seanad. At the moment there is an esteem due to the Seanad as a standalone House, even more so since the approval by the people's vote to retain the House. It would seem odd if the Dáil alone had the status of a TLAC-appointed Clerk and Clerk Assistant and the Seanad had not. The Deputy made reference to the acting Clerk of the Dáil. There is a person of equal status running the administrative side of the Dáil, so suddenly one of the two equal officers would be appointed by TLAC while the other would not. That would be confusing.
There was a bit of uncertainty around the process of acting up when a Clerk retires and a vacancy arises. This is dealt with in the new section 3 of the Bill, which states:
Without prejudice to the power of the Secretary General to assign responsibility for performance of the functions for which he or she is responsible to members of the staff of the Commission, the functions of the Secretary General may be performed—(a) during any period of absence on the part of the Secretary General, by such member or members of the staff of the Commission as may have been authorised for that purpose by a direction given by the Secretary General or, in the absence of such a direction, by such member or members of the staff of the Commission as the Commission may authorise for that purpose, or
(b) during any period in which the office of Secretary General is vacant, by such member or members of the staff of the Commission as the Commission may authorise for that purpose.
So there is a direct capacity given to the Commission to appoint a person to the acting official role of Clerk of the Dáil. I caution against dislodging the balance that exists between the senior officers of the Seanad and the Dáil. We should take it step by step, and I suggest we do it first, in terms of the TLAC process, for the Clerk of the Dáil alone.
I will withdraw the amendment, but I may introduce it again on Report Stage. I want to look at the role of the Clerk of the Seanad and whether another mechanism is required to appoint the Clerk of the Seanad, the Deputy Clerk and the Clerk Assistant, so there is some certainty that the person in the position has continuity with the endorsed powers that come with those important positions.
I move amendment No. 6:
In page 4, line 19, after “specified” to insert “by the Houses of the Oireachtas Commission”.
A technical issue has been identified concerning the terms of the Bill as published. Section 14 of the Bill would insert a new section 6A into the staff of the Houses of the Oireachtas Act of 1959 so as to allow limits to be placed on the tenure of an appointment of a person to any of the four posts discussed at this committee. It was felt that a time limit was important but I do not believe it is explicit enough as to who should actually determine that time limit. Parliamentary Counsel advises that it is implicit, but I prefer it to be explicit. For this reason I suggest that it is explicit that the Commission will make the decision on those time limits.
This is a technical amendment, of which I gave advance notice on Second Stage. Section 4 of this Bill, by repealing section 7(1) of the Public Service Management (Recruitment and Appointments) Act, would bring the appointment of the Clerk of the Dáil within the scope of that Act. That Act deals with normal appointments of senior civil servants, which is done on the basis of merit. I believe the appointments we are discussing today should be made on the same basis as TLAC, which uses a shortlist of approved candidates.
Could the Minister explain what would happen in a situation in which a Secretary General's term of office is completed towards the end of a Dáil session and a general election is called with no Houses of the Oireachtas Commission in situ? Who is to reconvene the next Dáil? If we try to fill the gap when a Secretary General is gone, what happens during the interregnum? Is there no Houses of the Oireachtas Commission? I presume the Dáil comes back and forms a Government, but I do not know how long it takes for the Dáil to put the Commission in place.