Martin Mansergh (Tipperary South, Fianna Fail)

I am pleased to respond to the motion on behalf of the Government. I congratulate Senator Boyle and the Green Party Senators for tabling it and also every Senator who has contributed to the debate. Their contributions were excellent and highlighted some of the complexities and nuances of the issue.

The Civil Service code of standards and behaviour provides, inter alia, that civil servants who hold positions which are designated positions for the purposes of the Ethics Acts shall not, within 12 months of resigning or retiring from the service, accept an offer of appointment from an employer outside the Civil Service, or accept an engagement in a particular consultancy project where the nature of such appointment or engagement could lead to a conflict of interest, without first obtaining approval from the appropriate authority. In respect of staff below the grade of assistant secretary, the appropriate authority is the Secretary General or head of office and, in the case of staff at assistant secretary or above, the outside appointments board. The renewed programme for Government provides for the extension of the provisions of the code of conduct for civil servants to the wider public service.

In response to a written parliamentary question from Deputy Gilmore on 8 December 2009 the Minister for Finance indicated he was "taking steps to ensure the work on the extension of the Civil Service provisions is advanced in each sector" and that the work would include consultations with the appropriate stakeholders, as provided for in the enabling legislation.

Before responding to the motion proper, I will outline for the benefit of the Members of this House the significant progress that has been made in promulgating codes of standards and behaviour in recent years across the public sector. A code of standards and behaviour for the Civil Service, pursuant to section 10(3) of the Standards in Public Office Act 2001, was drawn up and promulgated by the Minister for Finance on 9 September 2004. A code of conduct for councillors was published by the Department of the Environment, Heritage and Local Government in June 2004 under the Local Government Act 2001. A code of conduct for local authority employees was published by the same Department in January 2007 under the Local Government Act of 2001. A code of standards and behaviour was published by the Health Service Executive in June 2009. A code of conduct for the guidance of Members of Dáil Éireann, other than officeholders, was adopted by Dáil Éireann on 28 February 2002. A code of conduct for Members of Seanad Éireann, other than officeholders, was adopted by Seanad Éireann on 18 April 2002. A code of conduct for the guidance of officeholders was published by the Standards in Public Office Commission in July 2003. A declaration of professional values and ethical standards is in place for the Garda Síochána which provides a professional framework for the guidance and direction of all staff. A statutory based code of ethics for the Garda Síochána is in the final stages of preparation.

In addition to these codes, the Department of Finance updated its long-standing code of practice for the governance of State bodies in July 2009. I am pleased to inform the House that work on the extension of a code of a similar standard to the code of standards and behaviour for civil servants to the remaining areas of the public sector is at an advanced stage. Preparations are being made to initiate a consultation process with the relevant staff interests on the draft code of standards and behaviour for public servants in the very near future. It is expected the draft code will be circulated to all Departments in the coming weeks.

The provisions of the proposed code of standards and behaviour for public servants in the wider public sector will broadly reflect those set out for the Civil Service, including the rules applicable to officers designated under the Ethics Acts relating to outside employment following resignation or retirement. The initial scope of the draft code will include all public entities and bodies not already covered by an existing code other than the commercial State-sponsored bodies which are subject to the code of practice for the governance of State bodies issued by the Department of Finance.

We are all aware that the potential for a conflict of interest arises for public servants who propose to accept positions or engage in consultancy projects outside the public service following resignation or retirement. With regard to the specifics of the motion before the House, the proposed new code will make it obligatory for all serving public servants to declare any potential conflicts of interest in order to avoid any suspicion that the advice and decisions of a serving public servant might be influenced by the expectation of future employment or consultancy projects with a particular firm or organisation. Furthermore, it will oblige all public bodies covered by the code to monitor the acceptance of outside appointments by public servants resigning or retiring from the particular public body.

The proposed new code will also provide that public servants who hold positions which are designated positions for purposes of the Ethics Acts shall not, within 12 months of resigning or retiring from the service, accept an offer of appointment from an employer outside the public service or accept an engagement in a particular consultancy project where the nature and terms of such appointment or engagement could lead to a conflict of interest without first obtaining approval from the appropriate authority. Furthermore, even where the 12 month moratorium has elapsed, or where for other reasons approval is not required before taking up outside employment, the code will make it obligatory for such public servants to continue to observe the restrictions imposed by the Official Secrets Act 1963, as amended.

These rules will apply also to public servants in grades below the pay level of designated officers who, although not serving in a designated post at the time of their retirement-resignation, have served in such a post at any stage during the six months prior to their retirement or resignation. In such cases the 12 month period in which these rules apply will be reckoned from the officer's last day in the designated post.

The proposed new code will provide that any public servants who intend to be engaged in or connected with any outside business or hold designated positions under the Ethics Acts must make their applications in the following ways. Officers below grades analogous to assistant secretary level in the Civil Service must apply to the head of the public body in which they are serving or last served before retirement or resignation. Officers at and above grades analogous to assistant secretary level in the Civil Service will be brought within the ambit of provisions identical to those applied by the outside appointments board. I emphasise that it is not the intention to place an unnecessary burden on public servants in moving to the private sector. A mutual transfer of know-how, expertise, competence and experience between the public and private spheres is highly desirable, but protection of the pubic interest is a legitimate and, for the Government, an overriding concern. It is also expected the provisions in this area will not affect the generality of former public servants joining outside employment.

I will briefly comment on the role of the outside appointments board. The board was established under the Civil Service code of standards and behaviour as drawn up and promulgated by the Minister for Finance on 9 September 2004 pursuant to section 10(3)of the Standards in Public Office Act 2001 and published by the Standards in Public Office Commission in December 2004 pursuant to section 10(11) of the Standards in Public Office Act 2001. The board consists of the Secretary General, public service management and development, Department of Finance; the Secretary General to the Government and three other members who are not civil servants, one of whom acts as chairperson of the board. The board is mandated to maintain public trust in the Civil Service by independent scrutiny of post-employment appointments that senior civil servants propose to take up within one year of resigning or retiring from the Civil Service.

The objective of the board is to provide an open and transparent system of oversight of such proposed appointments that will protect the public interest without placing undue barriers in the way of movement of people with experience and expertise between the public and private sectors. The code directs the board to reach decisions on applications before it on the basis of whether there is a clear conflict of interests. The board may approve the application or apply conditions to its approval. It is responsible for approving applications from civil servants who, upon resigning or retiring from the Civil Service, propose to accept an offer of appointment from an employer outside the Civil Service or an engagement in a particular consultancy project "where the nature and terms of such appointment or engagement could lead to a conflict of interest". The small number of cases processed by the outside appointments board since its establishment illustrates that the numbers of retiring civil servants moving to a job in the private sector which has similar attributes to the public sector job they are leaving is very small. For the future, all officers employed in the non-commercial State sector will be brought within the ambit of provisions identical to those applied by the outside appointments board.

Senators will readily appreciate and many have acknowledged that the public service plays an important and often critical role in virtually every facet of life in Ireland. The provision of public services and the conduct and behaviour of all public servants are critical and it is important that their actions and decisions are informed at all times by the principles of integrity, impartiality, effectiveness, equity and accountability. The proposed code will give statutory effect to these fundamental guiding principles for public servants. It will be promulgated pursuant to section 10(3) of the Standards in Public Office Act 2001.

The proposed code is designed to extend provisions of a similar standard to those contained in the Civil Service code of standards and behaviour to those parts of the wider public service not already covered by statutory codes. It will also complement similar codes already in place in the local government, health and other sectors. The introduction of this code will bring the public service within a systematic comprehensive, consistent and complementary code of standards and behaviour for the first time. The code sets out a transparent framework within which public servants must work and in a single document, it sets out the principles which govern the behaviour of public servants and the values which the public service espouses.

The code builds on the principles set out in The Ombudsman's Guide to Standards of Best Practice for Public Servants and mirrors the main elements of the model code of behaviour adopted by the Group of States against Corruption, GRECO. It also makes it clear that it is primarily a matter of individual responsibility, which was strongly stressed by Senator White in his contribution, for each public servant to ensure his or her actions, in the performance of duties, meet the highest standards of ethics and probity set out in the code.

The code is not intended to be an exhaustive list of guidelines for all possible eventualities. It therefore permits individual public bodies to provide additional guidance, as appropriate, for their own staff relevant to their own circumstances. It is proposed that the provisions of the code will apply on a mandatory basis to public servants other than those falling within the ambit of a sectoral code published in accordance with the provisions of a specific legislative requirement. In the case of any agency where the publication of a code is subject to a statutory requirement, the provisions of the proposed code shall apply until such time as publication occurs in accordance with the relevant legislation.

The draft code will be divided into three main parts. Part one covers the standards underpinning public service, part two obliges public servants to observe appropriate behaviour at work, and part three requires each public servant to maintain the highest standards of probity. The provisions concerning standards underpinning public service will, inter alia, require public servants to operate within the framework of the law and, in the performance of their official duties, to serve the public conscientiously, honestly and impartially; advise on and implement policy impartially; and avoid bias in their dealings with the public. It reiterates the rules governing public servants and politics, disclosure of information and the provisions which apply in the event of a public servant being convicted of a criminal offence.

Not only are the highest standards required in observing the law and dealing with the public but public servants will also be obliged under part two of the code to observe the highest standards in their behaviour at work. Specific requirements are laid down in regard to attendance at work, the use and care of public money and resources, relations with colleagues and personal dealings with the public body in which they serve. Part three of the proposed code covers each of the elements necessary to ensure the highest standards of integrity are maintained by public servants. It includes detailed provisions concerning a wide range of interrelated topics such as the use of influence, conflicts of interest, disclosure of conflicts of interest, rules governing gifts and hospitality, contracts and purchases from other public entities, compliance issues and the review and operation of the code.

Part three will also include the provisions outlined earlier in regard to the acceptance of outside appointments, the acceptance of consultancy engagements following resignation or retirement and the role of the outside appointments board. As indicated, the Government is committed to fully implementing the provisions applicable to civil servants on the acceptance by public servants of outside appointments, the acceptance by them of consultancy engagements following resignation or retirement, and the provisions covering the role of the outside appointments board.

The code of standards and behaviour for public servants will be modelled on and follow the layout and appearance of the Civil Service code of standards and behaviour. The code will reflect the differences in the operational environment between the Civil and public service, incorporate up-to-date relevant provisions included in other more recent codes, especially the local authority and HSE codes of standards and behaviours, and reflect the different regime applicable to public servants with regard to politics

Codes of corporate governance of the highest standard are in the course of being implemented across the commercial and non-commercial State sector. On 15 June 2009 the Department of Finance published a revised and updated version of the code of practice for the governance of State bodies. This code sets out the governance framework agreed by Government for the internal management and the internal and external reporting relationships of commercial and non-commercial State bodies. The code of practice provides a framework for the application of best practice in corporate governance. 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 of practice in their governance practices and procedures. The requirements of the code of practice are to be applied in all trading subsidiaries and, as appropriate, in joint ventures of the State bodies. Appropriate confirmation should be provided to the relevant Minister. The code of practice consists of a number of comprehensive sections dealing with the board and directors; the remuneration of senior management and director's fees; risk management, accountability, internal control and internal audit; relations with the Oireachtas and the Minister; and specific procedures to be followed by State bodies on matters such as the establishment of subsidiaries, acquisitions, procurement, capital investment appraisal, travel, disposal of assets, tax compliance and the handling of legal disputes.

I assure the House that, prior to promulgating the code of standards and behaviour for public servants, the Minister for Finance will ensure the necessary consultations take place with the Standards in Public Office Commission, the relevant Departments and the staff representatives of the employees in the public bodies concerned. I am delighted to report the strong and consistent progress being made by this Government in advancing significantly the adoption of the highest standards of behaviour, probity and corporate governance across the entire Civil and public service. Once the consultation process on the proposed code of standards and behaviour for public servants is complete, the Minister for Finance will formally seek the approval of the Government for its promulgation to the wider public service.

The original motion deals with public servants retiring or resigning and taking up employment in the private sector. The amendment, irrespective of its contents, makes the enormous leap to recruitment embargoes, capacity building and organisational and business development in the Department of Finance. Senator O'Toole made a very ingenious defence of the linkage between the amendment and the motion but there is a case for regarding them separately, although they may be connected.

The concerns of Senators will be brought to the attention of the Minister and considered in the light of the Department's ongoing examination of needs with regard to deficits, skills, capabilities and competencies identified by the Secretary General of the Department of Finance. The Minister for Finance is fully conscious of the need to reskill and upgrade the Department's capabilities to address current and future challenges and I assure the House that the Minister, Deputy Brian Lenihan, will not be found wanting.

I will take a couple of minutes to reply to one or two specific points made in the debate. Economists have been attached to Departments for a long time. Dr. Garrett FitzGerald may have introduced the practice as he had an economist attached to the Department of Foreign Affairs and several economists, although not at the same time, including the present Governor of the Central Bank, when he was Taoiseach. Both the present Taoiseach and Minister for Finance have economists as advisers.

As was pointed out in the course of the debate, there are specialist agencies such as the National Treasury Management Agency which have a particular bank of expertise. I attended the IMF on behalf of the country in October 2008 at the height of the international banking crisis. There are many economists attached to the Central Bank which is one of primary bodies dealing with the subject.

I wonder if Senator O'Toole was speaking on behalf of public service unions when he suggested open competition for all promotions in the public service. I doubt it. Without having a closed mind on the topic, there has been a considerable opening of the process in the past 20 or 30 years. I would prefer the question of whether it would be wrong to get rid of the esprit de corps of the public service in that fashion to at least be debated before I could agree with the proposition.

Senator Ross asked about when knowledge goes out of date. I could not help but think that not every part of Government moves like greased lightning. As a civil servant in the late 1970s, I dealt with some issues that are still around or are only now being resolved. I share the Senator's scepticism. Often, knowledge is about how things work and techniques. We should not be too negative in this regard. As I stated, many people accept as a good idea the notion of private sector people entering the public sector for a while and acquiring some of the expertise of public servants. This could be dangerous in a few instances and a firewall would be necessary, but the code is not a blanket ban on moving into the private sector within one year. Rather, it is about a Secretary General or the outside appointments body addressing any serious questions.

Politicians were referred to, but this code only applies to a relatively small group, namely, current Ministers who move into the private sector. The same issues do not arise for backbenchers and Opposition politicians because everything they do and say is, broadly speaking, on the public record.

A Senator referred to a predecessor of mine but one in the Office of Public Works. To the best of my recollection, I have had no approaches of any kind in respect of a project or work in which the Department would be involved. There may be issues relating to the papers or personal records of all ex-Ministers who are in touch with private offices. I have attended one dinner hosted by the Construction Industry Federation, CIF, and I am sure other Ministers have attended from time to time, but I assure the House that I am unaware of any conflict of interest arising in practice. There was a gap between the president of the CIF leaving his ministerial job and taking up his current office.

A point was made about councillors, companies and conferences. Many conferences would not survive without councillor input, so my view is positive. On the other hand, I have never liked the practice of one or two councillors, to put it diplomatically, arriving, signing on, departing after five minutes, collecting travel expenses and not being seen again. A tightening up is required.

Reference was made to disgraceful changes to the Freedom of Information Act. A matter that rarely enters public debate is the fact that some freedom of information requests, mostly from the media, require several civil servants to spend a considerable amount of time trawling through documentation, often for the benefit of a commercial organisation like a newspaper. They might send reams of documents but nothing gets printed thereafter. People ought to be aware there are costs.

A number of ex-planners are recruited for An Bord Pleanála because they have expertise. Many planners, especially in the boom years, left the public service because they could earn more money in the private sector. Obviously, they brought with them their techniques and expertise, but the majority did not bring inside knowledge of particular projects. In other words, they were not gamekeepers turned poachers.

We must consider the positives. We can be defensive and perhaps there are reasons and controversies that require us to be cautious and to insert precautions. I am supportive of the programme for Government and this motion, but one must also consider the positive cross-fertilisation between the public and private sectors. In the majority of instances, this can be to the benefit of everyone.