Martin Mansergh (Tipperary South, Fianna Fail)

I am pleased to have the opportunity to take part in this debate on appointments to public bodies and to hear the view of Senators. Oireachtas Members who go to the trouble of preparing Private Members' legislation are always to be commended. Even when, as is more often the case, the Bill is not accepted as it stands, it can help to inform subsequent Government legislation.

It is a little over six months since I took part in another debate in this House on the ongoing review of State agencies that is being carried out by the Government. That debate took place in the wake of one budget, and this one takes place as we prepare for another. Much has changed in the meantime. The McCarthy report has been published and, for a variety of reasons, both good and bad, State agencies find themselves the subject of much public debate and controversy. Just last month I spoke in the Dáil debate on a Fine Gael Private Members' Bill on public appointments that did not proceed further.

When we discussed State agencies in the House last April I challenged the negative caricature of them. The reform of State agencies is necessary but we should also recognise the important contribution those agencies have made to the country and our national life and acknowledge the hard and valuable work of those who have served on them. The State has benefited from extremely capable and well-qualified individuals who have given of their time, experience and expertise to serve on the boards of public bodies, some of which are shining examples. We can be proud of their historic achievements.

Appointments to State boards, task forces and international organisations are normally made by the Minister in the relevant sector or by the Government in the case of certain appointments to international bodies. In making appointments, Ministers seek to ensure the people appointed bring a diverse range of relevant skills and experiences to the body. The decisions are approached in a conscientious manner, following consultation, and usually take time. The ministerial freedom to make appointments is not unfettered. The arrangements for these appointments are usually prescribed in the relevant sectoral legislation. Ministers must take account of any specific requirements that exist, such as the need to appoint worker directors or representatives of nominating bodies, and of relevant Government policies, such as the policy on gender balance on State boards. Where appropriate, Ministers also consider representations from different strands of society such as the business community, consumers, trade unions or other stakeholders depending on the nature of the agency. Ministers can be questioned and held accountable to the Houses of the Oireachtas for their appointments.

I oppose the Bill on the basis that the solution it proposes is not in line with what is needed to carry forward the process of reform the Government has begun in the manner of making public appointments to the boards of State bodies. I am also concerned the Bill advances into a new area, namely, appointments to international organisations.

The Government's policy on appointments to public bodies is clearly set out in the renewed programme for Government which provides for the introduction on a legislative basis of a more open and transparent system for appointments. Legislation will outline a procedure for the publication of all vacancies likely to occur, for the invitation of applications from the public and for the creation from the responses received of a panel of suitable persons for consideration for appointment. The legislation will also specify the number of persons to be appointed by a Minister and will facilitate the appropriate Oireachtas committees to make nominations to the panel.

Already individual Ministers have sponsored changes in their sectoral areas of responsibility. In this regard, the House will be aware of the innovative measures for board appointments to public broadcasting corporations which were sponsored by the Minister for Communications, Energy and Natural Resources, Deputy Ryan, in the recently enacted Broadcasting Act.

While opposing this Bill in its particular form, I acknowledge that it recognises the potential of the State's existing recruitment services to play a professional and impartial role in handling nominations or recruitment to public bodies, although the role proposed in the Bill for the Commission on Public Service Appointments would probably be more appropriate for the Public Appointments Service, PAS. I note that the services of the PAS have been called into play by the Oireachtas Joint Committee on Communications, Energy and Natural Resources in soliciting expressions of interest from those who would wish to be nominated by the committee to the positions to which the provisions in the Broadcasting Act apply.

Under those new provisions, the joint committee will recommend four of the candidates for the nine member board of the new Broadcasting Authority of Ireland, BAI, and four of the 12 members of the board of RTE. Senators will recall that under the new arrangements the Minister for Communications, Energy and Natural Resources will inform the Oireachtas joint committee of proposed appointments to the boards, setting out the relevant experience and expertise of his other nominees. The Oireachtas joint committee will have 90 days to propose candidates for the relevant post or posts from the four posts covered by the new provisions, and will advise the Minister of its recommendations giving reasons such as relevant experience and expertise. The Minister shall have regard to the advice of the joint committee in making the appointments, that is to say, he or she may accept the recommendations as he or she sees fit or decide to nominate others.

In the course of the debate on amendments to the new provisions in the Broadcasting Act on board appointments, the Minister, Deputy Ryan, made clear his view that it was for the committee to propose its nominations to the Minister rather than the Minister's nominees requiring to be approved by the committee. That was the intention in the legislation as passed. It is for the Government, as Executive, to manage and take decisions within the statutory framework laid down by the Oireachtas and to answer for those decisions and actions. In present times, we need a strong, not a weak Executive, and its powers in regard to appointments should not be transferred virtually wholesale to the Legislature.

In contemplating the task before it under the new provisions of the Broadcasting Act, the Oireachtas joint committee saw merit in availing of the executive services of the Public Appointments Service - an independent and professional service - in assembling a pool of qualified candidates that could be considered for nomination by the committee to the positions on the boards of RTE and the BAI covered by the new provisions. I noted the advertisement in last Friday's newspapers in which the Public Appointments Service is seeking expressions of interest from suitable candidates on behalf of the Oireachtas joint committee. It is not expected that the Oireachtas joint committee will be in a position to make its recommendations in regard to the broadcasting authority and RTE boards for some months. However, we need to see how this system works in practice and the House also needs to form its view of it before we rush into another model which is also untested.

Turning to the provisions of the Bill, I see difficulties in a number of areas. First, the Bill establishes yet another Oireachtas committee at a time when we are trying to curtail the costs of administration. There are ample Oireachtas committees already in place in the various sectors to oversee any role that may be accorded to the Oireachtas in a reform of the system of public appointments.

The role envisaged for this committee would be truly enormous. Its remit would extend not just to State agencies as widely understood, but to all executive bodies, advisory bodies and task forces under the remit of a Department. Under section 10 the committee would be tasked with carrying out a review of all the procedures in place for the appointment of chairpersons and board members of the wide range of bodies that are in existence. That would involve a detailed examination of the arrangements for appointments to boards set out in a myriad of sectoral legislation and the identification of the arrangements for various appointments to international bodies. The committee would then have to establish the list of vacancies that would fall under the new arrangements proposed in the Bill.

It strikes me that this approach places an enormous administrative burden on the Oireachtas that is far more appropriate to Ministers and their Departments. It would be an unnecessary burden for the Oireachtas and would not be germane to Oireachtas scrutiny as elaborated in recent years. We can achieve transparency in public appointments without overturning the relationship between the Oireachtas and the Government.

In section 12, the role envisaged for the committee in approving plans for appointments to public bodies is, again, a matter for Government, not the Oireachtas. Another feature of the Bill that concerns me is the conflicting roles assigned to Ministers and the joint committee. Section 5 clearly states that the Minister shall remain ultimately responsible and accountable for appointments to public bodies. Under section 13(5), however, the appointment of the chair and board composition would be subject to ratification by the joint committee, which would also have the ultimate power under section 18 to dismiss a chairperson or board member upon recommendation of the relevant Minister. The ultimate powers and responsibilities of these sections appear to be in conflict.

Section 19 requires public appointments to international bodies currently at the discretion of the Government to be subject to a vote of approval by the Dáil. In general, however, the procedure for making such appointments is unique to the individual post and is not amenable to a standardised approach or scrutiny. The Government or ministerial nominee may have to be agreed within a nominating college or constituency or with the body in question or may be circumscribed by requirements for particular qualifications, experience or links to or standing with the national Government or Administration. It is neither appropriate nor in the best interests of making effective appointments to adopt this procedure.

In another departure at section 15, the Bill provides that the appointments process shall be subject to audit by the Oireachtas committee. That provision, in addition to placing a further burden on the Oireachtas, ignores the role of the Comptroller and Auditor General as the independent constitutional officer who audits on behalf of the State and who carries out special reports on the economy and efficiency with which State bodies acquire, use and dispose of resources, and on the systems, procedures and practices they employ for evaluation of the effectiveness of their operations. It appears also to be predicated on the assumption that the Executive cannot be trusted, even if an impartial selection system under the Public Appointments Service were established.

The Bill takes no account of the normal provisions for accountability that can apply under law to the chief executives and chairpersons of various public bodies. The formula for their accountability is usually based on the original provisions for the accountability of Accounting Officers of Departments to the Oireachtas as set out in section 19 of the Comptroller and Auditor General (Amendment) Act 1993. That is a well-tested formula.

The Bill also does not acknowledge the arrangement for corporate governance in the recently updated code of practice for the governance of State bodies. This provides a framework for the application of best practice in corporate governance by both commercial and non-commercial State bodies. All State bodies and their subsidiaries are required to confirm to the relevant Minister that they comply with the up-to-date requirements of the code. The code of practice concerns both the internal practices of the bodies and their external relations with the Government, the relevant Minister under whose aegis they fall, the Minister for Finance, and their respective Departments. The code also refers to the ethical and standards in public office obligations that apply to all designated directors and designated office holders.

The code of practice provides, inter alia, that the chairperson must include a statement that all appropriate procedures have been followed by the organisation, including those regarding Government pay policy and procedures for financial reporting, internal audit, travel, procurement and asset disposal. The chairperson must furnish a statement on the system of financial control in the body in a prescribed format to the relevant Minister and Department. Some of the recent publicity regarding certain public bodies would seem to indicate a lack of awareness of these requirements in the past.

Turning to performance matters, irrespective of the manner of appointment of its members, the board ultimately reports to the relevant Minister and to his or her Department. This is an issue that was examined by the OECD as part of its review of the Irish public service, which was published last year. The OECD review, Towards an Integrated Public Service, was a whole of public service review. What the Government wanted the OECD to do was to examine how its priorities and decisions are translated into services and outcomes for our citizens and how these processes can be improved. The review was not an external audit by the OECD. Instead, the Government initiated the process. This innovative approach was new not only for Ireland but for the OECD which is now moving to replicate this whole of public service approach in other countries. It puts Ireland at the forefront of public service modernisation and creates a model that is being copied elsewhere.

The OECD found that agencies had given the Irish public service additional capacity and flexibility to deliver services during a time of major growth in public spending and increased citizen expectations. Agencies had allowed Governments to involve more stakeholders in participative management and to bring needed skills into the public service. However, the OECD believed that, when compared internationally, agencification in Ireland may have set out to achieve too much.