Tom Parlon (Laois-Offaly, Progressive Democrats)

I am pleased to introduce the Civil Service Regulation (Amendment) Bill 2004 to Seanad Éireann. The main purpose of the Bill is to devolve responsibility for the management of civil servants from the Government to Ministers and heads of office to reflect modern human resource practices.

The Civil Service Regulation Act 1956, which governs personnel management in the Civil Service, is now almost half a century old. The structures it established in the 1950s for managing the Civil Service were framed in a different era and now need to be updated to reflect modern management practices.

At the heart of the Bill lies the principle that it is no longer tenable to require a Government decision to dismiss an established civil servant or to involve Ministers directly in matters relating to the management of most civil servants. Senior managers in the Civil Service should be allowed to have responsibility for the management of their staff. This is the purpose of the Bill.

I will propose only one amendment on Committee Stage in the House. It relates to the Office of the Houses of the Oireachtas and I will elaborate on it when I describe the Bill in detail.

The history of the Bill can be traced to the ambitious programme of human resource management reform envisaged in the strategic management initiative and Delivering Better Government. Significant progress has been made on this agenda, as evidenced by the evaluation by PA Consulting in 2002 which concluded that while the Civil Service is a far more effective organisation than it was a decade ago, accelerated progress in human resource management was required. In particular, it drew attention to the need for legislation to underline the primary role of Departments and offices in managing their people. The Bill enables this issue to be addressed in that it enacts the management framework first identified in Delivering Better Government and set out in the Public Service Management Act in 1997.

I will explain how this is done. The Public Service Management Act 1997 introduced the broad framework for modern management practices in the Civil Service. It established a managerial framework within which staff up to the level of principal officer would be separated from the political system and authority would be given to Secretaries General to manage these staff. It also envisaged that Secretaries General might delegate most personnel functions, other than dismissal, to their senior civil servants. However, such new practices can only come into effect by amending the Civil Service Regulation Act 1956 and the Bill does this.

The main changes the Bill introduces are as follows: to remove the obstacles in the Civil Service Regulation Act 1956 which prevent Secretaries General performing all functions regarding matters pertaining to appointments, performance, discipline and dismissals of civil servants below principal officer level; to amend the 1956 Act to provide that grades at and above principal officer level may be dismissed by the Minister on the recommendation of the Secretary General of the Department or the head of office; to provide that civil servants, as office holders, other than those appointed by Government, have access to the Unfair Dismissals Acts and Minimum Notice and Terms of Employment Acts; and to provide that disciplinary measures can be taken in serious cases of under-performance and that the present range of disciplinary sanctions be broadened to include suspension without pay.

The present proposals complement the Public Service Management (Recruitment and Appointments) Act. Taken together, the two Bills provide a basis for the more effective management of the Civil Service. The legislative proposals strengthen the focus on performance and make civil servants more accountable to Ministers and heads of office.

Having outlined the aims and purpose of the Bill, I will now describe its provisions in detail. Section 1 contains provisions requiring that the Act be read as one with the previous Civil Service Regulation Acts. As the Unfair Dismissals Acts and the minimum notice Acts are also amended, similar provisions are made for those Acts.

Section 2 provides for the commencement of the Act. The provisions of the Act, other than Parts 8 and 10, will come into operation on a day appointed by order of the Minister for Finance. Part 8, which relates to the Office of the Director of Public Prosecutions, will come into operation on such day as the Taoiseach appoints by order. Part 10, which relates to pensions provisions, is deemed to have come into operation on 1 April 2004.

Sections 3 and 4 define terms which are used in the Bill. Section 5 provides for the appointment of a person as "head" of a scheduled office, who may exercise the human resource functions set out in the Bill where the office does not currently have a designated "principal officer".

Section 6 replaces section 2 of the Civil Service Regulation Act 1956 which sets out the "appropriate authority" for civil servants. The functions exercised by the appropriate authority include the management of performance and disciplinary matters. Currently, the Government is the appropriate authority for all officers appointed by the Government, while for all other officers the appropriate authority is the Minister with the power of appointing a successor to the person concerned.

As I stated, the Public Service Management Act 1997 established a framework within which, subject to the Civil Service Regulation Act 1956, managerial responsibility, including powers of dismissal, for staff below the level of principal officer would be given to Secretaries General. The Bill will remove the constraint on the implementation of the Public Service Management Act framework by making each Secretary General the "appropriate authority" for civil servants below principal officer level. This means that he or she will be responsible for managing all matters relating to the appointment, performance management, discipline and dismissal of the civil servants in question. The Minister in charge of the Department will continue to be the appropriate authority for civil servants at and above principal level.

Two important exceptions to this general rule are set out in the Bill. Officers who are appointed by the Government will continue to have the Government as their appropriate authority. In addition, the personal staff of Ministers, regardless of their grade, will be subject to the authority of the Minister they serve. This is the case because these assistants and advisers are personally appointed by Ministers. This section provides that Ministers of State will also be the appropriate authority for their staff.

Section 7 replaces section 5 of the Civil Service Regulation Act 1956 and sets out the provisions relating to the dismissal of civil servants. The section reflects the fact that all established officers hold office at the will and pleasure of the Government. It also provides that the Government may delegate that authority to the Minister in charge of a Department in the case of a civil servant at or above the rank of principal officer or to the Secretary General of a Department or head of office in the case of a civil servant below the rank of principal officer.

The section also provides that the dismissal of an officer at principal level or above may only be initiated upon receipt by the Minister concerned of a written recommendation to dismiss from the relevant Secretary General or head of office. There are a number of exclusions from this provision. First, heads of scheduled offices and the Revenue Commissioners will be dismissible by Government. A second exception is the chief executive of the Courts Service who will be subject to dismissal by the board of the Courts Service. This approach reflects the separation of Executive and judicial powers by ensuring that the dismissal of the chief executive of the Courts Service is not a matter for decision by either the Minister for Justice, Equality and Law Reform or the Government.

Section 7 also inserts a new subsection into section 5 of the 1956 Act to provide clarification on the position with regard to the initial appointment of persons as civil servants. Currently, when officers such as executive and administrative officers enter the Civil Service they are employed in an unestablished capacity on a probationary contract for the first year of service. Following satisfactory completion of a probationary period, these officers may be appointed on an established basis. It was proposed that this position should be changed so that, instead of being unestablished for a year and then being made established, such officers could be appointed as established while on contract for the probationary period.

The Attorney General's office has advised, however, that under the 1956 Act, it is not possible to employ an established officer on a contractual basis. As they are being appointed on a probationary contract, they can only be appointed in an unestablished capacity which can lead to establishment following satisfactory completion of probation. To clarify the position and reduce the administrative burden associated with this practice, it is necessary to amend section 5 of the 1956 Act. The new section will provide that officers can be appointed as established where they are entering the Civil Service on the basis of a probationary contract.

Section 8 allows for the appointment of persons aged over 65 years to the Civil Service as new entrants. This section is being amended to take account of the removal by the Public Service Superannuation (Miscellaneous Provisions) Act 2004 of age as a ground for compulsory retirement for new entrants appointed to the Civil Service after 1 April 2004, with the exception of staff in the Prison Service who remain subject to a mandatory retirement age of 60 years.

While civil servants who are not new entrants appointed after 1 April 2004 continue to have a mandatory retirement age of 65 years, this provision allows them to re-apply to the Civil Service as new entrants following retirement and commence employment under new terms and conditions, which include having no mandatory retirement age. The exception is that they may not be appointed to positions in the Prison Service, which will remain subject to a mandatory retirement age of 60 years. The section will also allow any other person aged 65 years or over to apply for employment in the Civil Service.

The removal of restrictions on the employment of persons because of their age alone is an important reform which will generate opportunities for people over the age of 65 years and increase the pool of experience at a time of increased labour market pressures.

Section 9 amends section 14 of the 1956 Act to provide that all officers who are suspended for the purposes of conducting an investigation into an alleged disciplinary offence will, in future, be suspended on full pay. This provision improves the current position. whereby officers must be suspended without pay but may make an application to the appropriate authority to receive hardship payments during the period of suspension. Section 10 amends section 15 of the 1956 Act to expand the range of disciplinary measures available to management and the circumstances under which disciplinary action can be taken.

Section 15 of the 1956 Act did not allow specifically for the imposition of sanctions for underperformance. In future, disciplinary action may be taken against staff who underperform, provided that coaching, training and other developmental tools have failed to achieve a sufficient improvement in the officer's performance. The intention here is to provide a set of measures which can be used once managers have fully discharged their obligation to support and encourage staff in working to the best of their ability.

At present, disciplinary sanctions under the 1956 Act are limited to the demotion of an officer or a reduction in pay, each of which may be mitigated or terminated at the discretion of the appropriate authority. This amendment to section 15 will allow suspension without pay as a penalty and provide that additional, less serious penalties may be agreed with the Civil Service unions and specified in a revised Civil Service disciplinary code.

The civil servant upon whom it is proposed to impose a penalty will continue to have a statutory right to make representations to the appropriate authority before any penalty is imposed and a revised disciplinary code will continue to offer access to an independent appeals board which may consider and issue opinions on any cases referred to it.

Section 10 provides a new safeguard for civil servants who have been subject to a disciplinary sanction that has financial implications by protecting the superannuation benefits they have accrued before the imposition of the sanction. At present, if a civil servant is demoted or his or her salary is reduced, and he or she is not restored to his or her original rank or rate of pay before resignation or retirement, pension entitlements are based on the lower rank or rate of pay. It is unfair to deprive officers of entitlements they have earned prior to behaviour or performance which has merited sanction. Accordingly, this new subsection will ensure that any benefits and entitlements earned up to the date of the sanction are preserved.

There was some debate around this section on Report Stage of the Bill and it was asked whether a provision should be included in the Bill which states the right of the officer to fair procedures. I have carefully considered this and it is important to emphasise that the procedures which underpin this legislation will be set out in the disciplinary code. These arrangements are agreed with the Civil Service unions under the Civil Service conciliation and arbitration scheme.

The code, which is currently being revised to reflect changes in the legislation, is based on principles of fair procedure and natural justice. This, rather than primary legislation, is the most appropriate mechanism to deal with detailed and practical provisions for managing these issues. Furthermore, any change to the code as a result of the Bill will require agreement with the Civil Service unions.

During the debate on this section there was also some discussion about the inclusion of a provision to protect whistleblowers. I have reflected on this and I am satisfied there are sufficient measures in place in the Civil Service, which include the protections offered by the standards commission and the Civil Service code of standards and behaviours, which applies to all civil servants. Also, the Department of Enterprise, Trade and Employment has examined the proposal for the introduction of whistleblowers legislation and it became clear during the drafting of that legislation that complex and serious issues were raised. It is not, therefore, appropriate to deal with this issue in the context of this legislation.

Section 11 amends section 16 of the 1956 Act, which currently provides that an officer "shall not be paid remuneration in respect of any period of unauthorised absence from duty". A new subsection will provide that the appropriate authority has discretion to decide whether a refusal by an officer to carry out the duties of the grade shall amount to an unauthorised absence.

The need to amend this section arose following a case involving staff of the Department of Agriculture and Food. The High Court found that a refusal to perform certain duties in the context of an industrial dispute did not constitute an "unauthorised absence from duty" within the terms of section 16 as long as the staff concerned were physically present in the workplace, even though they were not carrying out all their duties.

The court also decided that management could not use the current section 16 of the 1956 Act to remove from the payroll officers who refuse to perform core duties appropriate to their grade. The High Court ruling was upheld following an appeal to the Supreme Court. In light of this, the Act will be amended in order to allow removal from the payroll of officers who refuse to perform the full range of duties of their grade.

There was some debate on this issue in the Dáil and I think it is important to clarify a number of points on this amendment. The amendment does not change the existing provisions for situations where there is a physical absence from the workplace — a civil servant is not paid for a period where there is an unauthorised absence from work. The amendment is designed to deal with a situation where a person is physically present in the workplace but refuses to perform his or her duties as part of a campaign of industrial action.

Some concern was expressed about the penalties which are provided for under the amendment. It provides only for temporary removal from the payroll for the period of the refusal to carry out the duties of the grade. It does not provide for any other penalties. This is important because the High Court judgment in the Department of Agriculture and Food case indicated that action should have been taken under section 15 of the Act. If such a situation were to arise again and section 16 remained as currently drafted, management would be required to impose the penalties provided for under section 15, for example, suspension without pay.

Section 12 replaces the current section 19 of the Civil Service Regulation Act 1956 to confer upon the Attorney General the power of appointing staff to the office of the Attorney General. This power had previously rested with the Taoiseach.

Section 13 is a technical provision that inserts a Schedule into the Civil Service Regulation Act to provide for the operation of the amended Act in the Courts Service and in the Houses of the Oireachtas. The effect of inserting the Schedule is to treat the Houses of the Oireachtas Commission and the board of the Courts Service as Ministers of the Government for the purposes of the Act. They will be the appropriate authority for civil servants at and above principal officer level.

Section 14 currently amends section 20 of the Staff of the Houses of the Oireachtas Act 1959. As drafted, this section provides that the dismissing authority for all officers at principal officer level and above in the Office of the Houses of the Oireachtas will be the Houses of the Oireachtas Commission, and for all officers below principal level it will be the Secretary General of that office. This is in line with the general principles of the Bill.

Currently, section 14 does not amend the provisions in section 20 of the 1959 Act relating to the dismissal of the Clerk of the Dáil, the Clerk Assistant of the Dáil, the Clerk of the Seanad, the Clerk Assistant of the Seanad, the Superintendent or the Captain of the Guard. In these cases the dismissing authority is still the Government following a process of consultation.

This position is not fully in line with the central principles in the Bill. Furthermore, in light of the unique constitutional position of the Houses, which was given legislative expression recently in the Houses of the Oireachtas Commission Act 2003, it is no longer appropriate that the Government would be the dismissing authority for these officers. Following discussions with the Office of the Houses of the Oireachtas, and on the advice of the Office of the Attorney General, I will propose on Committee Stage that there should be a new Part 3 to the Bill which addresses this matter and brings together a number of amendments which relate directly to the Houses of the Oireachtas and to the commission.

The changes will not result in any significant change to the current policy under the Bill but will retain certain protections set out in these Acts relating to the dismissal of the Clerk of the Dáil, the Clerk Assistant of the Dáil, the Clerk of the Seanad, the Clerk Assistant of the Seanad, the Superintendent and the Captain of the Guard.

The effect of the amendment will be to retain the current safeguards set out in the 1959 and 2003 Acts which provide that dismissal of these officers can only take place after a process of consultation, while at the same time linking the principle of devolved authority, which is one of the central provisions of the amendment Bill. In line with the provisions of the Bill, the responsibility for the dismissal will be devolved to the Minister responsible for appointing a successor, who in the case of these officers is the Taoiseach.

The practical effect of the amendment will be that the Government can assign the authority to dismiss the Clerk and Clerk Assistant of the Seanad and of the Dáil to the Taoiseach, who may act on the recommendation of the Cathaoirleach or the Ceann Comhairle, as the case may be, following consultation by him with the Houses of the Oireachtas Commission. In the cases of the Superintendent and the Captain of the Guard, the dismissing authority will again be the Taoiseach, after consultation with the chairmen of the Dáil and the Seanad, and consultation with the commission.

The rationale for assigning the responsibility to the Taoiseach comes from the fact that the Taoiseach, following a similar process of consultation, is also the appointing authority for each of these officers. This is consistent with the provision in section 7 where the Government can assign the dismissing authority to the Minister who has the power of appointing a successor to that civil servant.

There is no change proposed for other officers within the Oireachtas other than that the arrangements for them will reflect the new devolved management structures elsewhere in the Civil Service. This means that officers at principal officer level and above will be dismissible by the Houses of the Oireachtas Commission — the relevant "Minister" for the purposes of the Act — on receipt of a recommendation from the Secretary General of the Office of the Houses of the Oireachtas, while officers below that level will be dismissible by the Secretary General of the Office of the Houses of the Oireachtas.

Sections 15 and 16 delete provisions in the Houses of the Oireachtas Commission Act 2003 which empower the commission to recommend the dismissal of established civil servants and, also, provide that the Secretary General of the office is responsible for staff at and above the grade of principal officer. These provisions in the 2003 Act must be deleted to bring the tenure provisions for the staff in the Office of the Houses of the Oireachtas in line with the standardised management structure in the Public Service Management Act. The amendment which I will propose on Committee Stage in this House will move these sections to a new Part in the Bill which will deal specifically with the Office of the Houses of the Oireachtas Commission.

Section 17 revokes all provisions in other legislation which currently provide for the delegation of the powers exercisable by a Minister under the Civil Service Regulation Acts. Section 18 introduces transitional arrangements to provide for the continuation of any proceedings, procedures or measures already commenced under sections 5 to 9, inclusive, and 13 to 16, inclusive, of the Civil Service Regulation Act 1956. These sections relate to dismissing, reverting, retiring, suspending, disciplining and withholding remuneration from civil servants. This provision will ensure any proceedings in train at the time of commencement will continue, as if the Act had not been commenced.

Section 19 provides for the amendment of the Comptroller and Auditor General Act 1923, which provides that the Minister for Finance appoints the staff of the Office of the Comptroller and Auditor General. In recognition of the treatment of the comptroller as a Minister for the purposes of human resource functions within his or her office under the Public Service Management Act 1997 and under the Bill, this amendment will allow the Comptroller and Auditor General to appoint the staff within his or her office, subject to the consent of the Minister for Finance where changes to either staffing numbers or the terms and conditions of staff are concerned. Similarly, section 20 provides for the amendment of the Ombudsman Act 1980, allowing the Ombudsman to appoint the staff of his or her office, subject to the consent of the Minister for Finance where changes to staffing numbers or the terms and conditions of staff are proposed.

Sections 21 and 22 provide for the extension of the Unfair Dismissals Acts to the majority of civil servants. This will give civil servants the right to appeal a dismissal to a rights commissioner or the Employment Appeals Tribunal, on the same basis as employees in the private sector. The provisions of the unfair dismissals legislation will not, however, apply to civil servants dismissed by Government. They are excluded from the appeals procedures under the Unfair Dismissals Acts because it is inappropriate to subject the decisions of Government to review by a tribunal which is equivalent to a lower court. However, this does not mean that those civil servants dismissed by Government will not have an avenue of appeal. Officers will retain the right to seek a judicial review in the High Court of any administrative decision which affects them. The same is true of civil servants who are dismissed by a Minister, Secretary General or head of office.

Sections 23 to 26, inclusive, apply the Minimum Notice and Terms of Employment Act to civil servants. This means that a civil servant will have to be given between one to eight weeks' notice of dismissal by his or her employer. Conversely, if a civil servant decides to leave his or her post, at least one week's notice must be given to his or her employer.

Section 27 provides for the changing of the title of the "Secretary to the President" to "Secretary General to the President". Sections 28 to 31, inclusive, have been amended to give effect to the recommendations in the Nally report which proposed several changes in the organisation of the Office of the Chief State Solicitor. Section 28 amends section 6 of the Ministers and Secretaries Act 1924 to provide for the transfer of responsibility for local State solicitors from the Attorney General to the Director of Public Prosecutions, to reflect practical managerial responsibility, in that the State solicitors actually work under the aegis of the Director of Public Prosecutions rather than the Attorney General.

Section 29 amends section 3 of the Prosecution of Offences Act 1974 to give effect to the transfer of responsibility for state Solicitors achieved in section 28. Section 30 provides the Director of Public Prosecutions with the power to direct local State solicitors to perform, on his or her behalf, any particular function of the director in any particular case. Section 31 provides the Director of Public Prosecutions with the power to appoint his or her staff.

Section 32 provides for the amendment of section 15(11) of the Public Service Management (Recruitment and Appointments) Act 2004. This subsection provides that a person found guilty on summary conviction of an offence committed under the Act will be subject to a fine, or to imprisonment for a term not exceeding two years, or to both. However, the High Court recently ruled that the maximum term of imprisonment for an offence on summary conviction should be 12 months. In order to comply with this ruling, the Office of the Attorney General advised that the Bill be amended to provide for a maximum term of imprisonment of six months.

Section 33 is a technical provision to amend the Public Service Superannuation (Miscellaneous Provisions) Act 2004 to clarify the original wording of one of its provisions. The section also inserts Eirgrid into the bodies listed in Schedule 1 to that Act as a body to which the definition of public service body does not apply.

This Bill is important as a key driver of change in human resource management in the Civil Service. It brings into being the management framework envisaged in the Public Service Management Act. Through enabling the full application of the Public Service Management Act 1997, it will help strengthen the levels of accountability, increase the focus on performance and enable the devolution of responsibility to line managers across the Civil Service. I am confident its measures will bring practice in the Civil Service into line with good human resource methods in the private sector. I recommend the Bill as another important public service modernisation measure. I commend it to the House.