Derek McDowell (Labour)

If we are to learn any lesson for the future, it must be that it was not only about an esoteric legal case, but that is an aside which keeps us entertained and awake into the evening time.

Before getting into the substance of the Bill, I mention comments the Minister of State made about whistleblowers because I was genuinely disappointed to hear what he had to say in that regard. He said he was satisfied that the current mechanisms in place were sufficient to protect whistleblowers. In a sense, that is to misunderstand what I believe is the problem. It is fair to say people will not be sanctioned if they blow the whistle on fraud, wrongdoing, maladministration or whatever, or it is unlikely they will be. However, more than that is needed. People who come across fraud, maladministration or improper behaviour in their work need to be actively encouraged to blow the whistle. At a very minimum, that requires legislation or a statement of principle from Government.

Neither I, nor anyone on this side, is saying that if someone discovers something on a Tuesday and if it has not been remedied by the Friday, he or she should be entitled to go to the press. However, what I am saying is that if during the course of his or her work, a junior or a senior official comes across maladministration, fraud or wrongdoing and, having used the internal procedures, it is not resolved, he or she should be actively given a mechanism whereby he or she can blow the whistle. Not only should he or she be given protection against sanction in those circumstances, we should actively tell him or she to do so. At a very minimum, that requires the endorsement and protection of legislation.

I was genuinely disappointed by what the Minister of State said. If I understood him correctly, he seemed to suggest the Department of Enterprise, Trade and Employment is still looking at this issue and I hope it will continue to do so. In light of the Morris report and the gardaí in Donegal, we cannot believe it is sufficient to say that if somebody blows the whistle, he or she will not be sacked. That could equally be true of other areas of the Civil Service given its pyramid-type structure. The bond of loyalty can lead to a vow of silence. Things happen, things go wrong and people know about them but if they do not do anything about them immediately, they become fixed with the consequences of their knowledge. In others words, they know about something, they should have done something about it sooner but they did not and, therefore, they all shut up.

I suspect we saw something similar to that happen in the Department of Health and Children where many people must have known there was a lingering issue in the cupboard somewhere but did nothing about it. The current Minister, the Minister of State's party leader, was able to do something about it because, in a sense, she was there only a few weeks and she had a free hand to deal with it. Others might well have chosen to do the same within weeks or months of becoming aware of it had they got the sanction and endorsement of legislative protection and, indeed, encouragement.

The issue before us today is about introducing different levels of disciplinary processes within the Civil Service. It is useful and proper that the range of mechanisms should be available, such as suspension without pay, suspension with pay, power to terminate that and so on. Senator Mansergh is right in what he said about looking at underperformance and what he calls "overperformance". We must deal with both because, in a sense, those who underperform cause trouble for those who overperform. We need to incentivise those who do a decent job and more than they are asked to do as much as we need to deal with those who underperform because underperforming civil servants lead to a loss in morale and discourage others, directly or indirectly, from doing their job properly. I agree with the mechanism being put in place. It is right people should be given a chance by way of training, development or whatever assistance can be provided to them. However, it is also right that the sanction is available to the head, whether the Secretary General or, ultimately, the Minister.

We need to find some mechanism to encourage people who do a decent job. I have spoken on this issue more times than I can count in this and in the other House and it is deeply frustrating because every time I do so, I go to the Department of Finance's website and look at another myriad of reports produced to deal with the issue. There are many such reports from the high level group, the group of Secretaries General of Departments or outside bodies which have looked at the strategic management initiative and have made various recommendations. It is difficult to avoid the conclusion that most of these reports are gathering dust and that nothing of any serious merit is happening.

Today, I looked at the second sectoral progress report of the Civil Service performance verification group which was basically Mr. Sullivan looking at the benchmarking process and what came out of it. Some of the issues he looked at are ones I indirectly dealt with in the context of this Bill. One issue is about the notion of open recruitment, for example, which was agreed in the context of Sustaining Progress. It was agreed open recruitment would take place in general service posts in the Civil Service to meet specific skills shortages. When this report was done, which is the best part of one year ago, Mr.Sullivan basically said this was in its infancy, talks were still ongoing and that a few advertisements had been put in place.

I would be interested to know how many people have been recruited by open recruitment, that is, by going outside Civil Service normal processes to get people with specific skills. Most of us have been saying for a long time that there is a need for greater involvement of the private sector, that we need to be able to take on people who are not under 24 years of age and who do not have whatever number of points in the leaving certificate, and that we need to be able to fill specific skills needs in the Civil Service quickly, efficiently and on contract, if needs be. That did not seem to be happening when this report was formulated in June of last year.

Mr. Sullivan also reported on the notion of merit-based promotion — another thorny issue which is proving very difficult for some Departments to deal with. This has been around for ten years since SMI became an issue. He points out, for example, that the scheme to replace, on the basis of merit, people who had retired from the Civil Service had in the previous year successfully managed to promote three people, two assistant principals and one higher executive officer. This document is a year old and could have been improved in the meantime. If we are serious about basing some positions on merit we need to be talking about an awful lot more than a few people every year. I hope this is outdated information and, if so, I would be delighted to hear it.

There is a need for more open recruitment and more promotion based on merit. This will not destroy the way the system works. Nobody thinks the way the system works will be totally replaced by all these newfangled notions but they are essential if some modern way of dealing with the Civil Service is to be introduced.

I was in favour of the benchmarking process but over time its purpose has become distorted. At the time I saw it as a way of dealing with leakage from the Civil Service of skilled personnel, in particular, who had to be retained within the Civil Service and, therefore, had to be remunerated in a way that was comparable with the private sector. I saw it also as a way of breaking the relativity scheme system, getting away from the position where if the prison officers got an increase the Garda, nurses and so on had to get it. As regards the latter, I am not sure whether we have successfully done that and, certainly, the recent indications that there will be another bout of benchmarking suggests we have not. I thought we had broken the relativity system once and for all so that we could deal with individual grades within the public service of people who had specialist skills. For example, I thought we could deal with prison officers, as prison officers, without dealing with them as a grade within the Civil Service linked to everybody else. I do not have faith that has happened. I get the sense that the Department sees a further bout of benchmarking as being another way of updating everybody in a way that will bite away at the relativity system.

One issue on which I agreed with the former Minister for Finance, Mr. McCreevy, was that benchmarking should be once off. Frankly, I am nervous of the precedent that will be set by having another bout of benchmarking if that is what we are going to do.

I read with some interest the debate in the other House in which the Minister referred to the statements of strategy and the mission statements of various Departments. I am one of the sad people who occasionally reads these statements. If the Minister seriously believes these are a guidance to Ministers he is making a serious mistake. These statements were introduced in 1997 and are meant to be updated every few years after a change of Government or Minister. For the sake of argument let us take his own Department. As the statements of strategy and the mission statements have been updated over the years there is very little difference between them. The number of civil servants or Ministers who have the remotest of idea of what is contained in these mission statements or statements of strategy is low.