Martin Mansergh (Fianna Fail)

I welcome the Minister of State. The legislation under discussion is a significant piece of Civil Service reform.

The existing system of dismissal is cumbersome. I recall seeing bulky memoranda for Government for dismissing a prison officer, for example, or for chronic absenteeism. A memorandum might run to 100 or 200 pages. Are Ministers expected to read through all this documentation before deciding the issue? Whatever about the merits of this system when the Civil Service was small, around the time of the foundation of the State, it is clearly inappropriate today and responsibility should be delegated.

I was in the public service off and on, established and unestablished, for nearly 30 years. In my experience, a few people in every office or Department may underperform, but the vast majority work to the best of their ability. The disciplinary code agreed with the public service unions enables a nuanced approach to problems. Dismissal may then be left for extreme cases or if malpractice is involved.

This Bill essentially institutionalises the regime for advisers. Their contracts have long stated that advisers are there at the will of the relevant Minister or Minister of State. Their contracts terminate with the end of the period of office but can be ended at short notice on either side also.

I query one phrase in the legislation. Section 7(1) states: "Every established civil servant shall hold office at the will and pleasure of the government." This type of phrasing goes back ten years, 50 years, or even longer. This phraseology is not republican, but monarchical — car tel est notre plaisir. This section of the legislation should be re-examined. The pleasure of the Government is like the pleasure of the monarch. I appreciate that the phrase comes from previous legislation. However, the term "pleasure of the Government" is inappropriate for established civil servants, who in most cases will spend their employment life in the public service. The drafting is inappropriate. This language has come from centuries ago when totally different systems of government from those under which people now live were evident. I ask the Minister of State to consider this point before Committee Stage.

There is also a point to be made about established civil servants. A practice exists, especially in local government, where civil servants are established at one level and then asked to do work at a higher level, at which they are unestablished. This is either because the post does not exist or because a "temporary" permanent promotion is awarded. However, these workers are paid at the lower level, although they would have an allowance. This is not a desirable practice. It may save money but it imposes on public servants.

In practice, many senior civil servants have performed on a contract basis public service-type functions or missions at the request of the Government. The Minister of State recognised that these people have experience which is of value at a time of increased labour market pressures and I approve of the greater flexibility provided for in this area.

I mostly concur with what the Minister of State said about whistleblowers. It would be dangerous for a senior public servant or a Minister to sanction a genuine whistleblower, a bona fide whistleblower being someone who is not looking to cause trouble and embarrassment without adequate foundation. One can think of horrible examples from the EU Commission of people who missed out because of so-called disloyalty. At a meeting of the Joint Committee on Finance and the Public Service I mentioned the case of an accountant who, at the beginning of the DIRT controversies in AIB, drew attention to the problem and was summarily pensioned off by the people at the top. However, I like to think this type of response, certainly at national level, will be increasingly difficult.

As a member of the Houses of the Oireachtas Commission, I will comment on some sections. I apologise to the Clerk Assistant of the Seanad that we are discussing theoretical systems whereby someone holding her office — not her — might be dismissed. The appropriate system has been adopted, which is that senior office holders in this House can only be dismissed by the Taoiseach himself after consultation and on the basis of clear recommendations both from the Chairs of the two Houses and the Houses of the Oireachtas Commission. I cannot imagine that any Taoiseach would wish to take that step unless there was a clear consensus across party lines that it was appropriate.

The Bill leaves senior civil servants, who can be dismissed by the Government, with recourse to the courts. It is unlikely that this would be for absenteeism, fraud or a similar matter, but perhaps for some major misjudgment. In practice — we have seen some examples over the past ten years — it is potentially extremely expensive to get rid of a senior civil servant without the most compelling cause, which is the way it should be. Ministers should not be able to get rid of senior civil servants arbitrarily simply because they do not like them or because they want them to shoulder the blame for something serious that has gone wrong.

I do not propose to use my speaking time to address either benchmarking or decentralisation, which formed part of the debate in the other House, except to note that in 2003, international agencies like the OECD and the IMF commented favourably on the benchmarking exercise. One must always compare it with what went before, which was a system of differentials with a semi-automatic status. That was not a good way of determining public service pay. However, I have no doubt the system is capable of further refinement.

This legislation raises the issue of what, in our modern, complex system of Government, are the appropriate tasks and responsibilities of Ministers and senior civil servants, respectively. Yesterday, I read with interest the comments made by Kevin Murphy at the presentation of the TASC report. I agree with the comments made on the Order of Business. I had some considerable dealings with Kevin Murphy as a public servant and he has my highest regard. Nonetheless, he has now commented as an ex-civil servant and ex-public servant and has contributed to public debate as a citizen with much knowledge and experience. The issues he raises are not simple. Yes, people from the past might turn in their graves. However, 50 or 60 years ago, society was much less complex and far fewer decisions came before the Government. It was tenable to have a system whereby the Minister was responsible for nearly everything that happened in a relatively small office. Members should remember that at the foundation of the State, the public service occupied what is now Government Buildings, minus the college of science at its centre. It all fitted into a premises of limited size.

There are not any simple, immediate, "top of the head" answers to the problem. There are many clear cases in which a civil servant is primarily to blame for a situation that has arisen. It could be a relatively junior civil servant although it could be someone of any level of seniority. Equally, there are fairly clear-cut situations in which political decisions have been made and where the politician is responsible. However, there is a grey area in between and the legal area is a particular minefield. I worked for a Taoiseach who lost office because allegedly he failed to understand and should have understood the implications of some esoteric precedent. On later examination, it was argued that it was not actually a precedent at all. It was made out to be something of tremendous moral gravity. Only someone from the Law Library with typical portentousness could take such an attitude.