Seanad debates
Tuesday, 6 July 2004
Public Service Management (Recruitment and Appointments) Bill 2003: Committee Stage.
7:00 pm
Fergal Browne (Fine Gael)
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I move amendment No. 1:
In page 8, subsection (1), line 10, after "appointment" to insert "or promotion".
My colleague, Deputy Richard Bruton, was concerned about the promotional prospects for those in the Civil Service and the public service. Almost 80% of promotion competitions result in internal candidates being promoted so this amendment will open up more opportunities.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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The amendment would regulate promotions in the same manner as recruitment. The Bill provides in section 6(1) for the possibility that the commission may regulate promotions at some point in the future in that it allows the Minister to make orders extending the remit of the commission to posts in the public service, including recruitment posts. The Minister will consider whether to make such an order in due course.
Acceptance of this amendment, however, would automatically bring promotions within the remit of the commission. The Minister for Finance agreed with the Minister for the Environment, Heritage and Local Government that the Bill would regulate only recruitment at the outset and any extensions would be the subject of further consultations between the two Ministers before orders are made under section 6(1).
The proposed amendment does not appreciate the structure of the Bill. Provisions for the functions of the new bodies and codes of practice, in so far as they relate to promotion, are contained in relevant parts of the Bill. The key substantive provision dealing with promotion is set out in section 57.
Fergal Browne (Fine Gael)
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I move amendment No. 2:
In page 11, line 42, after "concerned" to insert "which order shall be laid before each House of the Oireachtas and shall not take effect unless and until it is approved by a positive resolution of each House".
This is self-explanatory. The amendment is tabled in the interests of accountability and transparency. One of the successes since the foundation of the State has been the independent Civil Service and it is vital that nothing is done to harm it.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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Section 6 provides for the extension of the application of the Bill by order. Subsection (3) provides that every order made under section 6 must be laid before each House and each House then has the opportunity to pass a resolution annulling such an order within 21 sitting days of the order being laid. Subsection (3) is more efficient than the system proposed in the amendment because it provides that the Houses be notified of the extension of the Bill and allows the Houses to annul the extension rather than involve them in approving the extension. Such involvement is unnecessary and, accordingly, I will not accept the amendment.
Derek McDowell (Labour)
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Will the Minister of State indicate to which Departments he intends to extend it and the roll out procedure he has in mind? The Bill will apply in the first instance to a certain number of jobs over a period of time. This section gives the Minister the power to roll it out by order. How will that process work? Where will it start and what roll out procedure does the Minister have in mind?
Martin Mansergh (Fianna Fail)
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The rolling out of this legislation will be done at the request of Departments and agencies. The Department of Finance will not decide it. The Minister of State's reply was reasonable. Once a principle has been established in legislation and passed, every single application of that principle does not need to be debated. If something special arises, there is a procedure for annulling by a resolution.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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The section empowers the Minister for Finance to make an order to extend the application of the Bill and it would be intended to extend it to local authorities, health boards and vocational education committees. The Minister in that case may make an order after considering a report by the CPSA into the recruitment practices of the body concerned and after consulting with the relevant Ministers concerned — the Minister for the Environment, Heritage and Local Government for the local authorities, the Minister for Health and Children for the health boards and the Minister for Education and Science for the vocational education committees.
Derek McDowell (Labour)
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This is largely an empowering Bill that envisages that PAS will take over Civil Service Commission responsibilities on its first day and that some Departments will look for permission to do their own recruitment. What does the Minister see happening? Will the PAS act in effect as the Civil Service Commission upon enactment and for some time afterwards, with recruitment at arm's length the exception rather than the rule? Does the Minister perhaps expect it will work the other way round? Is it a big bang measure or it is incremental?
Tom Parlon (Laois-Offaly, Progressive Democrats)
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Initially I see the PAS doing something similar in terms of central recruitment; it is only where flexibility is needed. If a Department in Portlaoise needs to recruit 20 civil servants, be they specialist or otherwise, it would make more sense for it to do its own recruitment locally rather than finding 100 people who are scattered throughout the country and who do not want to go there. Central recruitment will continue where it is efficient but this Bill will offer the flexibility to recruit locally. The roll out to local authorities and to health boards will be an issue for the Minister. I expect that recruitment under the new Bill will be more efficient and equally fair in terms of probity and the merit of the applicants. The Ministers with relevant responsibility for the environment, health or education may choose this recruitment route rather than the old one.
Derek McDowell (Labour)
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The Minister of State does not envisage that the Department of Transport, for example, based in Dublin, might decide that it wants to recruit all its road engineers directly for Dublin-based jobs. Does he see it as something Departments with sections down the country will choose to do? Is that a fair summary of his views? On the face of it, there is nothing to prevent the Department of Health and Children deciding it will recruit everybody for a particular grade directly.
Maurice Cummins (Fine Gael)
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The Senator is drifting away from the amendment.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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The local authorities, health boards and VECs are spread throughout the country. Whether it is under a central recruitment agency or the PAS, that would seem to be an obvious option. While the Bill does not provide for any further roll out, the areas to which I referred would seem to be the most obvious ones to which it would be extended.
Maurice Cummins (Fine Gael)
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I ask Senators to deal with the amendment. The Senator can raise any other matter under the section.
Fergal Browne (Fine Gael)
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I move amendment No. 3:
In page 14, subsection (3), between lines 2 and 3, to insert the following paragraph:
"(c) if it is satisfied that such exclusion is in the public interest and provides for a recruitment process which is in accord with the principles of fair and transparent recruitment and promotion processes.".
We were afraid that the old system of patronage could occur from time to time in the case of some grades within the Civil Service and public service, such as porters. This was raised by my colleague, Deputy Bruton, in the Dáil. It is important that recruitment is fair and transparent.
Derek McDowell (Labour)
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The issue of advisers occasioned some debate in the other House. The central question is why the section is in the Bill. Why is it necessary to exclude certain appointments temporarily from the ambit of the Act? I will not go over the Dáil debate as we all know the merits and otherwise of it. It would be a waste of the time of the House. Suffice to say most of us are satisfied with the way the appointment of special advisers currently operates. It is done in an adequately accountable fashion with the full glare of publicity and it is right that should be so. Most of us would agree that the post of special adviser needs to be separated from permanent jobs within the Civil Service. There was a suspicion which has been vocalised elsewhere that this section could be used in certain circumstances to facilitate gliding seamlessly from one to the other and it would be preferable for that not to happen.
Martin Mansergh (Fianna Fail)
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I agree with everything Senator McDowell said. I do not think the special adviser system could be operated if there was some type of formal recruitment process. Special advisers are, generally speaking, personal choices of Ministers and all Governments. I fully accept that watertight safeguards are required. A certain danger exists in the system of patronage. I would not be averse to some legislative control of numbers, which is not dealt with in the Bill. It should not be extended infinitely.
A few years ago, I remember one Minister in a particular Government having a cabinet of five special advisers, and I am not referring to the Taoiseach of the time. It is something that needs to be watched. The amendment, if passed, would destroy the system at a stroke.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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This section of the Bill deals with exclusion orders which can be made in certain circumstances to allow recruitment to certain unestablished posts to take place in an expeditious fashion. In any event, section 13 requires the commission to establish standards of probity, merit, equity and fairness and these standards will necessarily underpin all the activities and judgments of the commission, including the decision of when, whether and to whom to grant an excluding order. Senators can be assured that the commission will act in the public interest at all times and also provide that any recruitment process is undertaken in accordance with the principles set out in the Bill. I cannot accept the amendment.
The Senator raised the issue of special advisers and mentioned the suspicion which is not uncommon among Opposition Members. That amendment was taken at an early stage in the Dáil to exclude, beyond any doubt any opportunity of a special adviser being recruited into the Civil Service unless they went back to base and applied in the same manner as anyone else. We heeded that suspicion. There are no circumstances, unless there is a change in this Bill and another Bill, that a special adviser hired in a temporary, unestablished capacity could become a permanent adviser. Those amendments were accepted in the Dáil. There should be no further suspicions or concerns.
Martin Mansergh (Fianna Fail)
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It can, of course, happen the other way around.
Derek McDowell (Labour)
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Will an exclusion order be necessary to employ a special adviser? Will the positions have to be explicitly excluded from the Act?
Tom Parlon (Laois-Offaly, Progressive Democrats)
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Yes, that is the case. The term of the special adviser will coincide with the term of the Minister involved. Immediately on that Minister departing office, the special adviser's contract will finish.
Derek McDowell (Labour)
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Coming at it from the other angle, is it therefore conceivable or possible, given that the discretion is vested in the commission, that it could decide not to allow the Minister to appoint a special adviser and not make an exclusion order?
Tom Parlon (Laois-Offaly, Progressive Democrats)
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Those criteria are laid down. Ministers have access to special advisers. Junior Ministers have access to personal assistants. A Government could change those criteria. Previous Governments had different criteria. Senator Mansergh referred to the Minister who had five special advisers. I am not too sure to which party or regime he belonged.
Martin Mansergh (Fianna Fail)
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It was a party that no longer exists.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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Those criteria are laid down by the Minister for Finance and they apply until they are amended.
Martin Mansergh (Fianna Fail)
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For the information of the House, it is normal at the formation of a Government, more or less at the first Government meeting or at a very early Government meeting, for a decision to be made about the general parameters for the appointment of special advisers and who they should be. I remember it at the beginning of the Fianna Fáil-Labour Government. Special advisers' contracts run out at the end of the term of office but they can be reappointed by a successor for which they require a new contract.
Derek McDowell (Labour)
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While I do not have a problem in principle with the section, was it included because somebody in the Department thought it was a good idea to empower the CPSA and PAS to charge fees or is it actually intended that they will do so?
Tom Parlon (Laois-Offaly, Progressive Democrats)
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We dealt with this issue previously. The charging of fees was provided for under the previous 1956 Act and the Department of Finance was anxious to maintain this flexibility. It was used for one year in the mid-1980s and it is not intended to use it in future. We have identified some areas, possibly the recruitment of technical experts, where the provision may be used because of the significant expense incurred. The provision is included to maintain the flexibility in this regard under the 1956 Act. A minimum fee was applied for a short period in the 1980s when applications for Civil Service positions were at a very high level but it was quickly dropped. While it is not intended to reintroduce charges, it was deemed important to carry over the flexibility into the new legislation.
Fergal Browne (Fine Gael)
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I move amendment No. 4:
In page 17, between lines 19 and 20, to insert the following subsection:
"(2) Where the Commission is of the opinion that there has been a failure to comply with the principles and policies of this Act, in particular if it forms the opinion that there has been a failure to apply codes of practice, it may investigate or cause to be investigated the matter on its behalf by a person appointed under section 15.".
Section 14 provides that if someone interferes with the recruitment process, the matter will be reported to the commission which will then take action. This is a one-sided approach which carries a danger that where an outsider who applies for a job fails to meet standards, the matter will be reported, whereas in circumstances in which those holding the competition also fail to comply with the highest standards, it may not be reported.
Where the commission is of the opinion that the principles of the Act have not been applied, it should have the power to investigate the competition in question under section 15. This is similar to what is envisaged if the commission were to discover that an applicant had transgressed by canvassing or copying. What is good for the goose is good for the gander. If the recruitment agency or licence holder fails to reach the standard, the section should apply to it in the same way as it would apply to those applicants who do not reach the standard.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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Section 52 allows the commission to revoke a recruitment licence where the licence holder fails to comply with the terms and conditions of the licence. It states that the commission may revoke a licence where it forms the opinion that:
(a) a licence holder has failed or is failing to meet the terms and conditions of the recruitment licence concerned granted by them,
(b) since the grant of the recruitment licence, the circumstances relevant to the grant have changed and are such that, if an application for a recruitment licence were made in the changed circumstances, it would be refused.
Compliance with codes of conduct issued by the commission is a condition of the licence. Section 43 states that the commission will grant a recruitment licence to an applicant only if it is satisfied that the applicant can and will observe the appropriate standards and codes of practice. Furthermore, it states that a licence holder is responsible to the commission for ensuring that the terms and conditions of the licence and relevant codes of practice are fully complied with. In addition, section 15 enables the commission to investigate the exercise of functions under the Act by a licence holder or listed recruitment agency. It does not imply there has been any wrongdoing on anyone's part.
The proposed amendment would substantially increase the powers of the commission to conduct inquiries for "failure to comply with the principles and policies of this Act". This wording is less precise than the term "exercise of functions". Furthermore, the amendment would result in the provision being addressed to any person, not necessarily in the context of a person exercising a function under the Act. Not only is there a vagueness in language in the concepts of "principles and policies", but a failure to comply with a request under section 15 in this context would render a person guilty of an offence. Accordingly, I cannot accept the amendment.
Martin Mansergh (Fianna Fail)
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I thank the Minister of State for his explanation. The perfectly valid point made in the amendment is more than adequately covered in several different places in the legislation.
Derek McDowell (Labour)
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I ask the Minister of State to clarify the section as I have a couple of concerns about it. I would be relieved if he gave us the benefit of his speaking note because it is the only section that indirectly creates a criminal offence.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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This section deals with interference with the recruitment process and outlines the duty of licence holders, persons who are entitled to apply for a licence and recruitment agencies, to inform the CPSA that interference may have occurred. Subsection (1) places on those involved in a recruitment process a duty to inform the CPSA and the relevant licence holder of any interference or attempted interference with the process. Subsection (2) provides that where the CPSA is of the opinion that interference with the recruitment process may have occurred, it may investigate the matter or cause it to be investigated by a person appointed under section 15.
Derek McDowell (Labour)
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Interestingly, the Minister referred to the word "interference" which is perfectly reasonable, whereas the section uses the term "interfered improperly" which implies that there is a measure of interference that is not improper. Perhaps I am being too legalistic but we need to be clear as to what is proper and improper interference with the process. If I have understood the general thinking in this regard, I would expect that any suggestion that a person would seek to interfere with the process would, by definition, be improper and subject to the sanctions set out in a later section. The use of the words "improper" and "recklessly" suggests there is a measure of low level interference which is regarded as being perfectly acceptable. If that is the case, I ask the Minister of State to spell out what he believes is and is not allowable.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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I used the word "interference" without qualification. The Act includes legal obligations and section 54 sets out the obligations on candidates in recruitment and selection. It provides that in respect of any recruitment, selection or promotion competition in the public service persons shall not:
(a) knowingly or recklessly make an application that is false or misleading in a material respect for the position,
(b) in purported compliance with a requirement for the position, knowingly or recklessly provide any information or documentation that is false or misleading in a material respect,
(c) canvass any person, with or without inducements, on his or her own behalf or on behalf of a candidate for the position,
(d) personate a candidate at any stage of the recruitment and selection process concerned,
(e) knowingly or maliciously obstruct a person engaged in the conduct of the competition or otherwise interfere with the general conduct of that competition,
(f) knowingly and without lawful authority take any action that could result in the compromising of any test material or of any evaluation of it,
(g) interfere improperly with the competition process or competition records so as to confer an advantage or a disadvantage on any candidate.
The Bill also lays down substantial penalties. The obligations under section 54 are very specific on what might constitute interference.
Derek McDowell (Labour)
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I thank the Minister of State for his helpful reply. For the sake of argument, let us take the example of a public representative who communicates with the PAS to inquire how a particular applicant's case stands, as public representatives sometimes do although perhaps not in the case of the Civil Service Commission. While he or she does not state that candidate X is a brilliant man or woman, in making the inquiry he or she clearly intends to indicate, without explicitly stating, a preference for a particular candidate. Does this form of inquiry, as opposed to advocacy, constitute interference?
Tom Parlon (Laois-Offaly, Progressive Democrats)
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The combined effect of sections 54 and 55 is to allow for a more comprehensive response to nefarious behaviour on the part of any actor during the recruitment process. The provisions of this Bill underline the seriousness of contravention of the rules of recruitment and selection competitions and provide more punitive penalties than were available under the terms of the 1956 legislation. Dishonesty will not be tolerated at any stage. A simple inquiry by a public representative as to whether an individual has secured a position would be met with a clear reply that the individual concerned will be notified in due course. I doubt that a representation by a Senator, Deputy or Minister on an individual's behalf would produce any advance information regarding that individual's application.
Derek McDowell (Labour)
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Would such a representation be deemed to be improper interference?
Tom Parlon (Laois-Offaly, Progressive Democrats)
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We have discussed what would constitute nefarious or dishonest behaviour and I do not think such a representation falls into that category. I am sure that the public appointments service, PAS, will have information as to what constitutes a proper inquiry. The current advice is that such inquiries are inappropriate and that is where the matter would generally end.
Derek McDowell (Labour)
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Is it true that such an inquiry is not illegal and would not invite the sanction stipulated in this legislation?
Tom Parlon (Laois-Offaly, Progressive Democrats)
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It is not illegal but it would be a waste of time.
Derek McDowell (Labour)
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It would not be the first time that public representatives did something like that.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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In a scenario where only two people are contesting a vacancy, a person who wished to hinder the application of one party is prevented from making nefarious representations but could make positive representations on the other person's behalf. This could be deemed improper interference. The standards employed by the PAS dictate that an inquiry such as Senator McDowell has posited would be deemed inappropriate, the matter would end there and one could not infer any malicious intent.
Fergal Browne (Fine Gael)
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I move amendment No. 5:
In page 19, line 25, to delete "5(d)" and substitute "5".
Derek McDowell (Labour)
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I understand this amendment but I do not understand that restriction whereby the provision in section 17(1) applies only to section 5(d) rather than section 5 in its entirety.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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Section 17 relates to the making of assessments by the commission to determine whether a public service body should be regulated by it. Paragraph (d) of section 5 to which this amendment refers lists appointments in the local authorities, health boards and vocational education committees, VECs. The reason for this requirement is that these sectors contain large and complex public service bodies and I wish to ensure that regulation is rolled out in these sectors in a coherent and structured manner. Accordingly, the commission must undertake an examination of all bodies in these areas before making a recommendation regarding their regulation. The reference to section 5(d) in section 17(1) requires that the commission must undertake an assessment of recruitment practices in these bodies before making a recommendation to the Minister that they be regulated by the commission. That there is no reference to section 5(e) means that the commission can make a recommendation that any public service post other than those in the local authorities, health boards and VECs should be regulated by the commission without the need to conduct a prior assessment. This is an important element of flexibility which means that the commission can bring these bodies under its remit on a case by case basis without the need for bureaucratic exercise and investigation. I do not accept this amendment.
Derek McDowell (Labour)
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What sort of assessment does the Minister of State have in mind?
Tom Parlon (Laois-Offaly, Progressive Democrats)
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We are dealing with large and complex public service bodies and such assessment is important in terms of rolling out regulation in a structured way. I am not sure what exactly such assessments would involve.
Derek McDowell (Labour)
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Is the Minister of State referring to an assessment of such bodies' existing capacity or an assessment of whether they need to be included within the provisions of this Bill? Are there criteria for this assessment or does it simply constitute a report in response to a request?
Tom Parlon (Laois-Offaly, Progressive Democrats)
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It is a question of whether the criteria that currently pertain to recruitment in the public service sector are compatible with those that will apply under the new legislation.
Fergal Browne (Fine Gael)
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I move amendment No. 6:
In page 20, before section 18, to insert the following new section:
18.—(1) The Commission shall promote best practice in recruitment.
(2) The Commission shall, at regular intervals, conduct both random and systematic assessments of recruitment practices being implemented pursuant to this Act in order to determine whether best practice is being adhered to.".
The purpose of this amendment is to impose an obligation of best practice on the commission so that it will begin its work under no illusion that it merely represents a continuation of the situation since 1956. It must begin with a new mandate and a new sense of direction and such a sense is absent from the Bill. In addition, the commission should continually conduct both random and systematic assessments of recruitment practices. The amendment also allows for systems of reward that recognise high performance.
Martin Mansergh (Fianna Fail)
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This amendment is akin to teaching one's grandmother to suck eggs. It is self-evident that a commission of this type and indeed any agency will promote best practice. It is not necessary to spell this principle out in legislation and the commission is taking over the work of a body which has a fine record of achievement. It is unnecessary to state what is blindingly obvious.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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Section 17 relates to the making of assessments by the commission to determine whether a public service body should be regulated by it. These assessments are set out in a report to the Minister which will contain the commission's recommendations. The commission will assess recruitment practice and make recommendations in line with the standards of probity, merit, equity and fairness required of the commission under the provisions of section 13. Section 17 provides that the report must be laid before each House of the Oireachtas if that recommendation is not acted upon in the manner and time provided for in subsection (3). This is required in order to ensure that Ministers take seriously the recommendations made by the commission. Accordingly, section 17 serves a distinct purpose and it would be inappropriate to tack on the new section proposed in this amendment. The commission is required under section 43(5) to examine and evaluate licence holders to ensure compliance with conditions set out in section 45 on recruitment licences. Both of these provisions adequately address the objectives of amendment No. 6.
There is reference to "good practice" in the Bill. The Office of the Parliamentary Counsel was consulted regarding the use of and the meaning of the term "best practice". That office advised that words and phrases which have recently come into circulation or which are imprecise should be used extremely carefully if their meaning is not fully understood and is still developing. Phrases such as "best practice" should therefore be avoided. For clarity's sake, the Office of the Parliamentary Counsel has advised that it is standard practice to avoid the use of vogue words or phrases.
Fergal Browne (Fine Gael)
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I move amendment No. 7:
In page 21, subsection (1), line 12, to delete "Minister" where it firstly occurs and substitute "Standards in Public Office Commission".
This concerns declarations of interest by commissioners. The Bill provides that the declaration should be made through the Minister and our amendment proposes that they should be made to the Standards in Public Office Commission, which is taking on that role currently and, therefore, taking it out of the political arena. That would be best practice.
Martin Mansergh (Fianna Fail)
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I disagree. When a declaration of interest is made, the Minister must decide whether those interests interfere with the wisdom of making the appointment. The commission does not have the powers to decide whether somebody should be appointed. If a Minister is responsible for important appointments, there is a case for making a declaration to him or her. For example, the special adviser to the Taoiseach is required to submit a declaration to the Taoiseach as well as to the commission.
Derek McDowell (Labour)
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I am interested in the reprimand from the Parliamentary Counsel about the code of practice. The Bill does not define "declaration of interest". The phrase is allowed stand but it is also a vogue term in terms of recent——
Derek McDowell (Labour)
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It may be defined in the Standards in Public Office Act 2000 but it is not defined in this legislation. The amendment is sensible. It is appropriate that, since these individuals will be holding public offices, their declarations of interest should be made to the commission and, on that basis, I support the amendment.
When the Ethics in Public Office Act 1995 was going through the Oireachtas, there was a good deal of debate about the level of declaration that would be required of different office holders. As Senator Mansergh will be well aware, the declaration required differs between special advisers, Ministers, Deputies, Senators, other office holders and so on. The section provides the Minister rather than the commission with total discretion to decide the declaration of interest required, which is inappropriate, given that no definition is provided. Assuming the Minister of State will not change his mind on this matter, what level of declaration will be required? For example, there is a requirement on Ministers to declare property or interests of their spouses. Will this be extended to commissioners? What will commissioners be required to declare?
Martin Mansergh (Fianna Fail)
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My objection to the amendment is the deletion of the word "Minister". That is wrong. There would be less objection to inserting "Minister and the Standards in Public Office Commission". Many office holders must make the declaration to both their political heads and to the commission.
Fergal Browne (Fine Gael)
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Senator Mansergh's point is good. The Minister for Education and Science landed himself in difficulty by making an error of judgment regarding the dissemination of information prior to the local elections. He will pass judgment on others even though it has been proved that he lacked judgment previously. An amendment could be made on Report Stage.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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The Ethics in Public Office Act 1995 and the Standards in Public Office Act 2000 require office holders to furnish declarations of interest as a general safeguard of probity in public office. The purpose of the section is to require the members of the commission to inform the Minister of interests that would affect their membership of the commission. These may be matters that would not figure in a general declaration relating to the substantive posts which qualify them for ex officio membership of the commission but which might be relevant to their membership of the commission.
For example, a relative of a commissioner might run a private sector recruitment agency which applies to the commission for listing as an approved agency. The relevance of the fact would be immediately apparent to the Minister who would raise it with the member concerned, if declared, whereas it might be lost on the Standards in Public Office Commission. In addition, the ex officio members of the commission are persons of the highest calibre. One of these is the chairperson of the Standards in Public Office Commission. Accordingly, it is considered more relevant that the Minister should be informed of such interests. That provides double cover.
Derek McDowell (Labour)
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The section sets out standards of disclosure in regard to particular decisions by the commissioners. Are the consequences of failure to disclose set out elsewhere in the legislation? Is there a penalty? Could a decision be rendered invalid? What are the consequences if a commissioner does not disclose an interest in a decision?
Tom Parlon (Laois-Offaly, Progressive Democrats)
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The section provides that where disclosure is made by a commissioner of beneficial or financial interest or there is a question as to whether a proposed course of conduct would be in breach of his or her duty to reveal such interests, particulars of the matter and a determination by the CPSA as to the correct action to take shall be recorded in the minutes of the meeting concerned. The disclosure is taken on board.
Derek McDowell (Labour)
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If a commissioner fails to disclose an interest in property or in a company, does the Bill set out the consequences of such a failure? Is it a prosecutable offence? Would it invalidate the decisions taken?
Martin Mansergh (Fianna Fail)
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It would be a resigning matter. If a material and important interest is not disclosed in decision making, that may make the person's position untenable. It is not a question of prosecutable offences in such cases as they are very often resigning matters.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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With regard to the jobs held by people before they become commissioners, there are strict criteria under which such declarations must be made and if it was found they had not made declarations, that would render their original ex officio positions invalid. As Senator Mansergh said, resignation would be one outcome.
Derek McDowell (Labour)
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No explicit sanction is provided. There would not be an invalidation of a decision to which the individual was party. For example, if somebody was awarded a contract in circumstances where there was a failure to disclose an interest, the contract would still be valid and, theoretically, the commissioner could remain in the post. He or she would be under pressure to resign but the decision would still be valid and the failure to declare an interest would not be an offence.
If somebody fails to disclose an interest under the Ethics in Public Office Act 1995, it is a prosecutable offence but the fines are relatively small. I accept the shame that would be brought on somebody by the disclosure that he or he had failed to declare his or her interests would be the more important sanction. Nonetheless, that Act provides for a fine and imprisonment.
Martin Mansergh (Fianna Fail)
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The political reality is if a contract was awarded improperly because of a failure to disclose interests, there would be significant pressure to have it annulled. That would involve a major scandal and, in those circumstances, it would not be easy. If a contract had been improperly obtained through a misunderstanding or false pretences, it would be difficult for the beneficiary to retain the contract.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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This would be a rare scenario. Failure to make a disclosure is not illegal under the legislation but it would be illegal under the criteria applied to ex officio members. They would breach their terms of contract.
Clearly it would lead to an investigation into the appointment. While inferring immediately that the person appointed would not be entitled to his job would certainly lead to an investigation into the appointment, declaring the job null and void would be very unfair to the applicant, who might not have had any connection with the withholding of information.
Derek McDowell (Labour)
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I do not intend to labour the issue but our companies legislation, for example, is full of lists of proper procedure, things which must be done, but we fail to provide sanctions if those things are not done. There is a certain lack of clarity as to the consequences of failure to comply. While I accept that this is unlikely to happen very often, and ideally it would not happen at all, it is still best practice when one says something needs to be done to provide a sanction if it is not and possibly that should have been done. I accept that on the second last week before the end of term, the Minister is unlikely to accede to that so I will not push it.
Fergal Browne (Fine Gael)
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I move amendment No. 8:
In page 23, subsection (1), between lines 42 and 43, to insert the following paragraph:
"(a) the observance of the appropriate independence between appointment to the public service and political appointments,".
This is self-explanatory.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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The Bill requires that the commission establish standards of probity, merit, equity and fairness to be followed in the public interest in the recruitment and selection of persons for positions in the public service. These principles must be reflected in codes of practice which dictate how recruitment must be conducted by licence holders. In this way the licence holder must adhere to the guiding principles of probity at all times. These measures adequately ensure the substance of the amendment and therefore I am unwilling to accept the amendment.
Martin Mansergh (Fianna Fail)
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The problem with this amendment is that it calls into question something all of us take for granted and which has been part of the practice of the State virtually since its foundation. It is a pity to insert provisions which suggest a lack of integrity on the part of a body which has a very fine record. It is totally redundant and unnecessary.
Derek McDowell (Labour)
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Does this give carte blanche to the commission to set criteria for particular appointments to the Civil Service or are they already covered in regulations? I assume existing regulations covering the membership of political parties among civil servants carry over and that the commission is not being invested with discretion to change those regulations. Is that right? It seems to give wide discretion.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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Subsection (1) provides that every code of practice shall include requirements relating to "knowledge and ability to discharge the duties of the post concerned, suitability on the grounds of character and suitability for the post concerned in all other respects".
Derek McDowell (Labour)
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Different regulations govern the way the Civil Service behaves. One regulation requires civil servants beyond a certain level not to be members of political parties and some, I understand, are required to submit to the Official Secrets Act. Is the commission being invested with powers here to change those regulations and the conditions of employment of civil servants? Can it do that by virtue of the way it draws up its code of practice?
Tom Parlon (Laois-Offaly, Progressive Democrats)
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The regulations to which the Senator refers are attributed to the Minister for Finance, who laid them down. They are not included in the Bill, which will not have any bearing upon them.
Derek McDowell (Labour)
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Are they being incorporated into the codes of practice?
Fergal Browne (Fine Gael)
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I move amendment No. 10:
In page 31, subsection (3), between lines 31 and 32, to insert the following paragraph:
"(d) to formulate proposals for submission to Government on the development of a system of reward mechanisms to enhance the performance of those in public service;".
The general perception is that there is very little reward for extra productivity in the Civil Service and it is important to reward those who show extra initiative or productivity. I know that is changing a great deal and that teaching, for example, has changed greatly in the last ten years. That could be extended across the entire public service.
Derek McDowell (Labour)
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This is an interesting amendment. I have taken an interest in this subject over the years and wonder whether the Minister of State can update us as to where we are. I know where the long-standing talks with the trade union representing trade unions stand and to what extent we have moved towards performance management within the Civil Service, as higher civil servants have had a system in place for quite some time. Is there any real prospect of it extending through the middle ranks of the Civil Service in the near future? The Minister of State is familiar with the argument that if we choose not to remove non-performing or under-performing civil servants, and we cannot sufficiently reward those who are performing above average or particularly well, then we have stasis within the service, which is not healthy. People are not incentivised to perform well. I know that many people within the Civil Service unions have doubts about this, feeling that it would vest undue discretion in managers at various points in the service and that if one is doing a certain job one should get a certain level of pay. However, most neutral observers looking at the service would say that there has to be some mechanism other than promotion, which we know is pretty rigid, where we can reward those who are performing in a particularly good way or in a way which adds value to what is being done in a Department.
I am asking the Minister of State to give us an update on whether there are continuing talks with the issue and where they stand. I do not expect him to accept the amendment.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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The amendment proposes arrangements for performance-related pay in the public service, something with which I agree wholeheartedly. As I said on Committee Stage, this subject matter is entirely outside the remit of the section, which deals with the board of the PES. It is also outside the remit of a Bill dealing with recruitment in the public service. Perhaps the Senator should take this up with the Minister for Finance when he is next in the House, as he is more au fait with the position.
9:00 pm
Martin Mansergh (Fianna Fail)
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I am afraid I am a little in sympathy with some of the trade unions to which Senator McDowell referred. There are ways, other than promotion, of rewarding people, for example, by giving them interesting and worthwhile jobs. Most matters in the public service involve teamwork. While there are important individual contributions and there may be occasions on which particular individuals can be picked out, much of the time it might be difficult and invidious to do so. In addition, there is pressure to extend it to everyone, which defeats the purpose.
There is some reward in a good job done and one does not necessarily need special monetary recognition for doing one's job well. In certain situations, such monetary recognition also lends itself to a certain degree of favouritism for particular individuals and I wonder if it is more trouble than it is worth. Some moves have been made along those lines, but I do not have the details and I do not know if the Minister of State has them either. I do not like the notion in the private commercial sector that one must have lots of money to be incentivised. As Gene Kerrigan would say, "To get out of bed in the morning, you need dollops of bonuses and incentives".
Derek McDowell (Labour)
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The Progressive Democrats got that one right.
Martin Mansergh (Fianna Fail)
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Generally speaking, bonuses would not apply to public servants. What reward did most of the civil servants get who took part in the recent EU Presidency other than warm thanks and congratulations from the Taoiseach, his Ministers and the rest of us? I do not accept that special monetary bonuses should be used to pick out particular people. When I was in public service I did not like the fact that the occasional person would start comparing himself or herself to a chief executive in a private company. They were generally very senior people who claimed that they were not paid enough. If people want to be paid dollops of money, they should not enter the public service. It has its own ethic and ethos and I do not have a problem with it.
Derek McDowell (Labour)
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I accept what the Minister of State said, that this is not within the scope of the Bill. I am not suggesting that huge bonuses should be paid at the end of any given year, but Senator Mansergh picked a good example in the EU Presidency. There would be nothing wrong with some tangible reward — nobody is talking about anything outlandish — being given to those who performed roles of particular importance and usefulness to the State. At a certain point in the system, perhaps at principal officer level, individual personnel managers should be vested with the power to give that extra reward to individuals in particular circumstances. To that extent I am with the Progressive Democrats on that point.
Martin Mansergh (Fianna Fail)
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I would be a socialist on this one.
Fergal Browne (Fine Gael)
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I move amendment No. 11:
In page 31 subsection (3), between lines 36 and 37, to insert the following paragraph:
"(e) to develop a system under which the public service would benchmark their operations against international best practice;".
It has to be said that we have one of the best public services in the world but it does no harm to go beyond our own thinking and compare ourselves to other international Civil Service systems. One of the few benefits of having been under English rule for so many years is that the Civil Service we inherited has worked effectively since the foundation of the State. We should be encouraged to go beyond our borders to investigate international best practice, although it is possible that we may not find any better one than our own.
Martin Mansergh (Fianna Fail)
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I have often watched the television programme "Yes, Minister" and, on the whole, I think we may have avoided some of the worst practices of the self-styled establishment in the British Civil Service. We have looked abroad, however. The strategic management initiative came from the New Zealand experience some years ago. I am not sure whether it is necessary to state it explicitly because staff exchanges and conferences take place. The Civil Service is pretty well alive. When one attends international meetings abroad, people are constantly comparing notes, whether they are politicians or civil servants.
Fergal Browne (Fine Gael)
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I wish to inform the House that the "Yes, Minister" and "Yes, Prime Minister" series are available on DVD. I recently bought them and they certainly give a fascinating insight into the mindset of the British Civil Service. I do not think it is as bad as it is made out to be in the programmes, but it is certainly very interesting.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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I thank the Senator very much for that information.
Rory Kiely (Fianna Fail)
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I do not think it is relevant to the Bill.
Fergal Browne (Fine Gael)
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It would be a good Christmas present.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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I thought the Senator was going to say that he now stocks the series in his new DVD shop in Carlow, but he did not go that far.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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The amendment proposes arrangements for benchmarking of management operations in the public service. This subject matter is entirely outside the remit of this section, which deals with the board of the PAS. It is also outside the remit of a Bill dealing with recruitment in the public service. I will not repeat the advice of the Office of the Parliamentary Counsel about wording and best practice.
Derek McDowell (Labour)
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Unless I have missed something and although I can anticipate the Minister of State's response, it is regrettable that there is no minimum gender requirement included in the Bill. For a number of years it was the practice to do so, although I know it is not in vogue with the current Minister for Finance. It is regrettable, however, that there is no requirement for gender balance.
Tom Parlon (Laois-Offaly, Progressive Democrats)
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I have dealt with this matter before. In this case we depend on the actual gender of the ex offico members. In practice, it works out at 40:20, which, in effect, is two to one. We are not in a position to dictate what the gender of the ex officio members would be. As the Senator knows, the current Ombudsman is a woman and things may change as regards the other ex officio members. In the case of ex officio members who relate to other bodies, it is inappropriate to dictate what the gender balance might be.
Fergal Browne (Fine Gael)
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I move amendment No. 13:
In page 42, before section 58 but in Part 6 of the Bill to insert the following new section:
58.—(1) The Commission may make a report under section 17 into the promotion practices of—
(i) any public service body, or
(ii) any class of public service bodies.
(2) Where—
(a) a report made to the Minister under subsection (1) contains a recommendation that an order be made under section 6 (1) in respect of promotion to a specific position or a class of positions, and
(b) no such order has been made within 2 years of the Minister receiving the report, then the Minister shall lay a report on the matter before each House of the Oireachtas within the next 10 days on which the House concerned has sat after the end of that period of 2 years.".
This amendment provides that the commission can arrange to make a report in respect of recruitment in bodies which are not included, such as the bodies which will replace the health boards in due course. It provides for the commission to make a recommendation that health boards or regional boards, for example, be included under its terms and if the commission so reports, the Minister will be obliged to make a decision on the report within two years. If he or she fails to do so, the Minister must lay a report on the matter before the Oireachtas within ten days of the end of the two year period.
The commission will look at promotion practices in the public service and, where it is of the view that a change in such practices is justified, the Minister will by order bring such practices within the remit of the commission as requested by it. If the Minister fails to do so, he or she will be obliged to report to the Oireachtas.
Martin Mansergh (Fianna Fail)
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It is normal that, once one has entered a Department, the Civil Service Commission does not normally become involved in promotions. It is an internal departmental matter until one reaches the level of the Top Level Appointments Commission. This amendment would extend the remit of the commission way beyond where it is at present. The matter is much more efficiently dealt with within the management of the public service, through Departments. I have no doubt that the Department of Finance will lay down any general guidelines.
Derek McDowell (Labour)
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What role will the commission have in respect of promotion procedures? Section 58 states that the promotion competitions will be carried out in accordance with the codes of practice. Does this in some way confer a power on the commission to change the way in which promotion competitions are carried out? For example, a certain number of posts are generally held over for internal competition and a certain number for cross-departmental competition. Will it be possible for the commission to decide that some posts are to be filled from within particular Departments or within particular geographic areas? Will it be able to decide that a job in Loughrea, for example, should be filled in Loughrea or within a particular Department? Could decisions which, as Senator Mansergh stated, are currently made by the management of the Civil Service be transferred by virtue of this section to the PAS?
Tom Parlon (Laois-Offaly, Progressive Democrats)
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Section 17 provides that the commission may inquire only into the recruitment practices of public service bodies prior to making a report on whether certain posts should be subject to the remit of the commission. There is no impediment on the Minister making an order under section 6 to bring any professional post in the public service within the remit of the commission. Amendment No. 13 would create the unnecessary precondition of an investigation before the making of any such order. In respect of subsection (2) of the proposed new section, any report made by the commission, pursuant to section 17, is already subject to the procedure whereby the Minister must make a statement if he or she does not propose to accept the commission's recommendations. Consequently, I cannot accept the amendment.
In regard to Senator McDowell's question, the intention is that it will start out as a normal inter-departmental competition recruitment process.
Derek McDowell (Labour)
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Will the power to decide what proportion should be recruited internally as against across Departments still lie with the management of Civil Service, as is the case currently, rather than with the commission or the PAS?
Tom Parlon (Laois-Offaly, Progressive Democrats)
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That is correct.
Derek McDowell (Labour)
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Can that power at some point be exercised by the PAS?
Tom Parlon (Laois-Offaly, Progressive Democrats)
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The Secretary General of each Department will be the recruitment agency and will choose. It is the case that it will be the normal interdepartmental competition.
Derek McDowell (Labour)
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That means that the role of the PAS is purely to carry out the competition according to rules set by others, but within their own codes of practice.
Rory Kiely (Fianna Fail)
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When is it proposed to take Report Stage?
Rory Kiely (Fianna Fail)
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The Senator must state that it will be taken tomorrow. Report Stage need not necessarily be taken tomorrow but we must name a date. When is it proposed to take Report Stage?
Fergal Browne (Fine Gael)
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No. When are we taking the next Stage?
Rory Kiely (Fianna Fail)
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We must name a date for the next Stage. It can be ordered for a particular date and cannot be taken beforehand, but it need not be taken on that date. Does the Senator understand?
Rory Kiely (Fianna Fail)
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It means it cannot be taken before tomorrow morning, which I doubt it will be. It is ordered for tomorrow but it need not be taken then. If the Senator wishes he may object on the Order of Business to it being taken. Is the date agreed? Agreed.
Report Stage ordered for Wednesday, 7 July 2004.