Tuesday, 21 June 2005
Civil Service Regulation (Amendment) Bill 2004: Second Stage.
I am pleased to introduce the Civil Service Regulation (Amendment) Bill 2004 to Seanad Éireann. The main purpose of the Bill is to devolve responsibility for the management of civil servants from the Government to Ministers and heads of office to reflect modern human resource practices.
The Civil Service Regulation Act 1956, which governs personnel management in the Civil Service, is now almost half a century old. The structures it established in the 1950s for managing the Civil Service were framed in a different era and now need to be updated to reflect modern management practices.
At the heart of the Bill lies the principle that it is no longer tenable to require a Government decision to dismiss an established civil servant or to involve Ministers directly in matters relating to the management of most civil servants. Senior managers in the Civil Service should be allowed to have responsibility for the management of their staff. This is the purpose of the Bill.
I will propose only one amendment on Committee Stage in the House. It relates to the Office of the Houses of the Oireachtas and I will elaborate on it when I describe the Bill in detail.
The history of the Bill can be traced to the ambitious programme of human resource management reform envisaged in the strategic management initiative and Delivering Better Government. Significant progress has been made on this agenda, as evidenced by the evaluation by PA Consulting in 2002 which concluded that while the Civil Service is a far more effective organisation than it was a decade ago, accelerated progress in human resource management was required. In particular, it drew attention to the need for legislation to underline the primary role of Departments and offices in managing their people. The Bill enables this issue to be addressed in that it enacts the management framework first identified in Delivering Better Government and set out in the Public Service Management Act in 1997.
I will explain how this is done. The Public Service Management Act 1997 introduced the broad framework for modern management practices in the Civil Service. It established a managerial framework within which staff up to the level of principal officer would be separated from the political system and authority would be given to Secretaries General to manage these staff. It also envisaged that Secretaries General might delegate most personnel functions, other than dismissal, to their senior civil servants. However, such new practices can only come into effect by amending the Civil Service Regulation Act 1956 and the Bill does this.
The main changes the Bill introduces are as follows: to remove the obstacles in the Civil Service Regulation Act 1956 which prevent Secretaries General performing all functions regarding matters pertaining to appointments, performance, discipline and dismissals of civil servants below principal officer level; to amend the 1956 Act to provide that grades at and above principal officer level may be dismissed by the Minister on the recommendation of the Secretary General of the Department or the head of office; to provide that civil servants, as office holders, other than those appointed by Government, have access to the Unfair Dismissals Acts and Minimum Notice and Terms of Employment Acts; and to provide that disciplinary measures can be taken in serious cases of under-performance and that the present range of disciplinary sanctions be broadened to include suspension without pay.
The present proposals complement the Public Service Management (Recruitment and Appointments) Act. Taken together, the two Bills provide a basis for the more effective management of the Civil Service. The legislative proposals strengthen the focus on performance and make civil servants more accountable to Ministers and heads of office.
Having outlined the aims and purpose of the Bill, I will now describe its provisions in detail. Section 1 contains provisions requiring that the Act be read as one with the previous Civil Service Regulation Acts. As the Unfair Dismissals Acts and the minimum notice Acts are also amended, similar provisions are made for those Acts.
Section 2 provides for the commencement of the Act. The provisions of the Act, other than Parts 8 and 10, will come into operation on a day appointed by order of the Minister for Finance. Part 8, which relates to the Office of the Director of Public Prosecutions, will come into operation on such day as the Taoiseach appoints by order. Part 10, which relates to pensions provisions, is deemed to have come into operation on 1 April 2004.
Sections 3 and 4 define terms which are used in the Bill. Section 5 provides for the appointment of a person as "head" of a scheduled office, who may exercise the human resource functions set out in the Bill where the office does not currently have a designated "principal officer".
Section 6 replaces section 2 of the Civil Service Regulation Act 1956 which sets out the "appropriate authority" for civil servants. The functions exercised by the appropriate authority include the management of performance and disciplinary matters. Currently, the Government is the appropriate authority for all officers appointed by the Government, while for all other officers the appropriate authority is the Minister with the power of appointing a successor to the person concerned.
As I stated, the Public Service Management Act 1997 established a framework within which, subject to the Civil Service Regulation Act 1956, managerial responsibility, including powers of dismissal, for staff below the level of principal officer would be given to Secretaries General. The Bill will remove the constraint on the implementation of the Public Service Management Act framework by making each Secretary General the "appropriate authority" for civil servants below principal officer level. This means that he or she will be responsible for managing all matters relating to the appointment, performance management, discipline and dismissal of the civil servants in question. The Minister in charge of the Department will continue to be the appropriate authority for civil servants at and above principal level.
Two important exceptions to this general rule are set out in the Bill. Officers who are appointed by the Government will continue to have the Government as their appropriate authority. In addition, the personal staff of Ministers, regardless of their grade, will be subject to the authority of the Minister they serve. This is the case because these assistants and advisers are personally appointed by Ministers. This section provides that Ministers of State will also be the appropriate authority for their staff.
Section 7 replaces section 5 of the Civil Service Regulation Act 1956 and sets out the provisions relating to the dismissal of civil servants. The section reflects the fact that all established officers hold office at the will and pleasure of the Government. It also provides that the Government may delegate that authority to the Minister in charge of a Department in the case of a civil servant at or above the rank of principal officer or to the Secretary General of a Department or head of office in the case of a civil servant below the rank of principal officer.
The section also provides that the dismissal of an officer at principal level or above may only be initiated upon receipt by the Minister concerned of a written recommendation to dismiss from the relevant Secretary General or head of office. There are a number of exclusions from this provision. First, heads of scheduled offices and the Revenue Commissioners will be dismissible by Government. A second exception is the chief executive of the Courts Service who will be subject to dismissal by the board of the Courts Service. This approach reflects the separation of Executive and judicial powers by ensuring that the dismissal of the chief executive of the Courts Service is not a matter for decision by either the Minister for Justice, Equality and Law Reform or the Government.
Section 7 also inserts a new subsection into section 5 of the 1956 Act to provide clarification on the position with regard to the initial appointment of persons as civil servants. Currently, when officers such as executive and administrative officers enter the Civil Service they are employed in an unestablished capacity on a probationary contract for the first year of service. Following satisfactory completion of a probationary period, these officers may be appointed on an established basis. It was proposed that this position should be changed so that, instead of being unestablished for a year and then being made established, such officers could be appointed as established while on contract for the probationary period.
The Attorney General's office has advised, however, that under the 1956 Act, it is not possible to employ an established officer on a contractual basis. As they are being appointed on a probationary contract, they can only be appointed in an unestablished capacity which can lead to establishment following satisfactory completion of probation. To clarify the position and reduce the administrative burden associated with this practice, it is necessary to amend section 5 of the 1956 Act. The new section will provide that officers can be appointed as established where they are entering the Civil Service on the basis of a probationary contract.
Section 8 allows for the appointment of persons aged over 65 years to the Civil Service as new entrants. This section is being amended to take account of the removal by the Public Service Superannuation (Miscellaneous Provisions) Act 2004 of age as a ground for compulsory retirement for new entrants appointed to the Civil Service after 1 April 2004, with the exception of staff in the Prison Service who remain subject to a mandatory retirement age of 60 years.
While civil servants who are not new entrants appointed after 1 April 2004 continue to have a mandatory retirement age of 65 years, this provision allows them to re-apply to the Civil Service as new entrants following retirement and commence employment under new terms and conditions, which include having no mandatory retirement age. The exception is that they may not be appointed to positions in the Prison Service, which will remain subject to a mandatory retirement age of 60 years. The section will also allow any other person aged 65 years or over to apply for employment in the Civil Service.
The removal of restrictions on the employment of persons because of their age alone is an important reform which will generate opportunities for people over the age of 65 years and increase the pool of experience at a time of increased labour market pressures.
Section 9 amends section 14 of the 1956 Act to provide that all officers who are suspended for the purposes of conducting an investigation into an alleged disciplinary offence will, in future, be suspended on full pay. This provision improves the current position. whereby officers must be suspended without pay but may make an application to the appropriate authority to receive hardship payments during the period of suspension. Section 10 amends section 15 of the 1956 Act to expand the range of disciplinary measures available to management and the circumstances under which disciplinary action can be taken.
Section 15 of the 1956 Act did not allow specifically for the imposition of sanctions for underperformance. In future, disciplinary action may be taken against staff who underperform, provided that coaching, training and other developmental tools have failed to achieve a sufficient improvement in the officer's performance. The intention here is to provide a set of measures which can be used once managers have fully discharged their obligation to support and encourage staff in working to the best of their ability.
At present, disciplinary sanctions under the 1956 Act are limited to the demotion of an officer or a reduction in pay, each of which may be mitigated or terminated at the discretion of the appropriate authority. This amendment to section 15 will allow suspension without pay as a penalty and provide that additional, less serious penalties may be agreed with the Civil Service unions and specified in a revised Civil Service disciplinary code.
The civil servant upon whom it is proposed to impose a penalty will continue to have a statutory right to make representations to the appropriate authority before any penalty is imposed and a revised disciplinary code will continue to offer access to an independent appeals board which may consider and issue opinions on any cases referred to it.
Section 10 provides a new safeguard for civil servants who have been subject to a disciplinary sanction that has financial implications by protecting the superannuation benefits they have accrued before the imposition of the sanction. At present, if a civil servant is demoted or his or her salary is reduced, and he or she is not restored to his or her original rank or rate of pay before resignation or retirement, pension entitlements are based on the lower rank or rate of pay. It is unfair to deprive officers of entitlements they have earned prior to behaviour or performance which has merited sanction. Accordingly, this new subsection will ensure that any benefits and entitlements earned up to the date of the sanction are preserved.
There was some debate around this section on Report Stage of the Bill and it was asked whether a provision should be included in the Bill which states the right of the officer to fair procedures. I have carefully considered this and it is important to emphasise that the procedures which underpin this legislation will be set out in the disciplinary code. These arrangements are agreed with the Civil Service unions under the Civil Service conciliation and arbitration scheme.
The code, which is currently being revised to reflect changes in the legislation, is based on principles of fair procedure and natural justice. This, rather than primary legislation, is the most appropriate mechanism to deal with detailed and practical provisions for managing these issues. Furthermore, any change to the code as a result of the Bill will require agreement with the Civil Service unions.
During the debate on this section there was also some discussion about the inclusion of a provision to protect whistleblowers. I have reflected on this and I am satisfied there are sufficient measures in place in the Civil Service, which include the protections offered by the standards commission and the Civil Service code of standards and behaviours, which applies to all civil servants. Also, the Department of Enterprise, Trade and Employment has examined the proposal for the introduction of whistleblowers legislation and it became clear during the drafting of that legislation that complex and serious issues were raised. It is not, therefore, appropriate to deal with this issue in the context of this legislation.
Section 11 amends section 16 of the 1956 Act, which currently provides that an officer "shall not be paid remuneration in respect of any period of unauthorised absence from duty". A new subsection will provide that the appropriate authority has discretion to decide whether a refusal by an officer to carry out the duties of the grade shall amount to an unauthorised absence.
The need to amend this section arose following a case involving staff of the Department of Agriculture and Food. The High Court found that a refusal to perform certain duties in the context of an industrial dispute did not constitute an "unauthorised absence from duty" within the terms of section 16 as long as the staff concerned were physically present in the workplace, even though they were not carrying out all their duties.
The court also decided that management could not use the current section 16 of the 1956 Act to remove from the payroll officers who refuse to perform core duties appropriate to their grade. The High Court ruling was upheld following an appeal to the Supreme Court. In light of this, the Act will be amended in order to allow removal from the payroll of officers who refuse to perform the full range of duties of their grade.
There was some debate on this issue in the Dáil and I think it is important to clarify a number of points on this amendment. The amendment does not change the existing provisions for situations where there is a physical absence from the workplace — a civil servant is not paid for a period where there is an unauthorised absence from work. The amendment is designed to deal with a situation where a person is physically present in the workplace but refuses to perform his or her duties as part of a campaign of industrial action.
Some concern was expressed about the penalties which are provided for under the amendment. It provides only for temporary removal from the payroll for the period of the refusal to carry out the duties of the grade. It does not provide for any other penalties. This is important because the High Court judgment in the Department of Agriculture and Food case indicated that action should have been taken under section 15 of the Act. If such a situation were to arise again and section 16 remained as currently drafted, management would be required to impose the penalties provided for under section 15, for example, suspension without pay.
Section 12 replaces the current section 19 of the Civil Service Regulation Act 1956 to confer upon the Attorney General the power of appointing staff to the office of the Attorney General. This power had previously rested with the Taoiseach.
Section 13 is a technical provision that inserts a Schedule into the Civil Service Regulation Act to provide for the operation of the amended Act in the Courts Service and in the Houses of the Oireachtas. The effect of inserting the Schedule is to treat the Houses of the Oireachtas Commission and the board of the Courts Service as Ministers of the Government for the purposes of the Act. They will be the appropriate authority for civil servants at and above principal officer level.
Section 14 currently amends section 20 of the Staff of the Houses of the Oireachtas Act 1959. As drafted, this section provides that the dismissing authority for all officers at principal officer level and above in the Office of the Houses of the Oireachtas will be the Houses of the Oireachtas Commission, and for all officers below principal level it will be the Secretary General of that office. This is in line with the general principles of the Bill.
Currently, section 14 does not amend the provisions in section 20 of the 1959 Act relating to the dismissal of the Clerk of the Dáil, the Clerk Assistant of the Dáil, the Clerk of the Seanad, the Clerk Assistant of the Seanad, the Superintendent or the Captain of the Guard. In these cases the dismissing authority is still the Government following a process of consultation.
This position is not fully in line with the central principles in the Bill. Furthermore, in light of the unique constitutional position of the Houses, which was given legislative expression recently in the Houses of the Oireachtas Commission Act 2003, it is no longer appropriate that the Government would be the dismissing authority for these officers. Following discussions with the Office of the Houses of the Oireachtas, and on the advice of the Office of the Attorney General, I will propose on Committee Stage that there should be a new Part 3 to the Bill which addresses this matter and brings together a number of amendments which relate directly to the Houses of the Oireachtas and to the commission.
The changes will not result in any significant change to the current policy under the Bill but will retain certain protections set out in these Acts relating to the dismissal of the Clerk of the Dáil, the Clerk Assistant of the Dáil, the Clerk of the Seanad, the Clerk Assistant of the Seanad, the Superintendent and the Captain of the Guard.
The effect of the amendment will be to retain the current safeguards set out in the 1959 and 2003 Acts which provide that dismissal of these officers can only take place after a process of consultation, while at the same time linking the principle of devolved authority, which is one of the central provisions of the amendment Bill. In line with the provisions of the Bill, the responsibility for the dismissal will be devolved to the Minister responsible for appointing a successor, who in the case of these officers is the Taoiseach.
The practical effect of the amendment will be that the Government can assign the authority to dismiss the Clerk and Clerk Assistant of the Seanad and of the Dáil to the Taoiseach, who may act on the recommendation of the Cathaoirleach or the Ceann Comhairle, as the case may be, following consultation by him with the Houses of the Oireachtas Commission. In the cases of the Superintendent and the Captain of the Guard, the dismissing authority will again be the Taoiseach, after consultation with the chairmen of the Dáil and the Seanad, and consultation with the commission.
The rationale for assigning the responsibility to the Taoiseach comes from the fact that the Taoiseach, following a similar process of consultation, is also the appointing authority for each of these officers. This is consistent with the provision in section 7 where the Government can assign the dismissing authority to the Minister who has the power of appointing a successor to that civil servant.
There is no change proposed for other officers within the Oireachtas other than that the arrangements for them will reflect the new devolved management structures elsewhere in the Civil Service. This means that officers at principal officer level and above will be dismissible by the Houses of the Oireachtas Commission — the relevant "Minister" for the purposes of the Act — on receipt of a recommendation from the Secretary General of the Office of the Houses of the Oireachtas, while officers below that level will be dismissible by the Secretary General of the Office of the Houses of the Oireachtas.
Sections 15 and 16 delete provisions in the Houses of the Oireachtas Commission Act 2003 which empower the commission to recommend the dismissal of established civil servants and, also, provide that the Secretary General of the office is responsible for staff at and above the grade of principal officer. These provisions in the 2003 Act must be deleted to bring the tenure provisions for the staff in the Office of the Houses of the Oireachtas in line with the standardised management structure in the Public Service Management Act. The amendment which I will propose on Committee Stage in this House will move these sections to a new Part in the Bill which will deal specifically with the Office of the Houses of the Oireachtas Commission.
Section 17 revokes all provisions in other legislation which currently provide for the delegation of the powers exercisable by a Minister under the Civil Service Regulation Acts. Section 18 introduces transitional arrangements to provide for the continuation of any proceedings, procedures or measures already commenced under sections 5 to 9, inclusive, and 13 to 16, inclusive, of the Civil Service Regulation Act 1956. These sections relate to dismissing, reverting, retiring, suspending, disciplining and withholding remuneration from civil servants. This provision will ensure any proceedings in train at the time of commencement will continue, as if the Act had not been commenced.
Section 19 provides for the amendment of the Comptroller and Auditor General Act 1923, which provides that the Minister for Finance appoints the staff of the Office of the Comptroller and Auditor General. In recognition of the treatment of the comptroller as a Minister for the purposes of human resource functions within his or her office under the Public Service Management Act 1997 and under the Bill, this amendment will allow the Comptroller and Auditor General to appoint the staff within his or her office, subject to the consent of the Minister for Finance where changes to either staffing numbers or the terms and conditions of staff are concerned. Similarly, section 20 provides for the amendment of the Ombudsman Act 1980, allowing the Ombudsman to appoint the staff of his or her office, subject to the consent of the Minister for Finance where changes to staffing numbers or the terms and conditions of staff are proposed.
Sections 21 and 22 provide for the extension of the Unfair Dismissals Acts to the majority of civil servants. This will give civil servants the right to appeal a dismissal to a rights commissioner or the Employment Appeals Tribunal, on the same basis as employees in the private sector. The provisions of the unfair dismissals legislation will not, however, apply to civil servants dismissed by Government. They are excluded from the appeals procedures under the Unfair Dismissals Acts because it is inappropriate to subject the decisions of Government to review by a tribunal which is equivalent to a lower court. However, this does not mean that those civil servants dismissed by Government will not have an avenue of appeal. Officers will retain the right to seek a judicial review in the High Court of any administrative decision which affects them. The same is true of civil servants who are dismissed by a Minister, Secretary General or head of office.
Sections 23 to 26, inclusive, apply the Minimum Notice and Terms of Employment Act to civil servants. This means that a civil servant will have to be given between one to eight weeks' notice of dismissal by his or her employer. Conversely, if a civil servant decides to leave his or her post, at least one week's notice must be given to his or her employer.
Section 27 provides for the changing of the title of the "Secretary to the President" to "Secretary General to the President". Sections 28 to 31, inclusive, have been amended to give effect to the recommendations in the Nally report which proposed several changes in the organisation of the Office of the Chief State Solicitor. Section 28 amends section 6 of the Ministers and Secretaries Act 1924 to provide for the transfer of responsibility for local State solicitors from the Attorney General to the Director of Public Prosecutions, to reflect practical managerial responsibility, in that the State solicitors actually work under the aegis of the Director of Public Prosecutions rather than the Attorney General.
Section 29 amends section 3 of the Prosecution of Offences Act 1974 to give effect to the transfer of responsibility for state Solicitors achieved in section 28. Section 30 provides the Director of Public Prosecutions with the power to direct local State solicitors to perform, on his or her behalf, any particular function of the director in any particular case. Section 31 provides the Director of Public Prosecutions with the power to appoint his or her staff.
Section 32 provides for the amendment of section 15(11) of the Public Service Management (Recruitment and Appointments) Act 2004. This subsection provides that a person found guilty on summary conviction of an offence committed under the Act will be subject to a fine, or to imprisonment for a term not exceeding two years, or to both. However, the High Court recently ruled that the maximum term of imprisonment for an offence on summary conviction should be 12 months. In order to comply with this ruling, the Office of the Attorney General advised that the Bill be amended to provide for a maximum term of imprisonment of six months.
Section 33 is a technical provision to amend the Public Service Superannuation (Miscellaneous Provisions) Act 2004 to clarify the original wording of one of its provisions. The section also inserts Eirgrid into the bodies listed in Schedule 1 to that Act as a body to which the definition of public service body does not apply.
This Bill is important as a key driver of change in human resource management in the Civil Service. It brings into being the management framework envisaged in the Public Service Management Act. Through enabling the full application of the Public Service Management Act 1997, it will help strengthen the levels of accountability, increase the focus on performance and enable the devolution of responsibility to line managers across the Civil Service. I am confident its measures will bring practice in the Civil Service into line with good human resource methods in the private sector. I recommend the Bill as another important public service modernisation measure. I commend it to the House.
I welcome the Minister of State at the Department of Finance, Deputy Parlon, to the House. I also welcome the Civil Service Regulation (Amendment) Bill and noted the Minister of State highlighted its importance. However, one wonders why it took eight years since the passing of the Public Service Management Act for the Government to introduce the Bill. I am not blaming the Minister of State personally, as he has only been in office for three years but it is particularly disappointing when in the last eight years several golden opportunities to initiate a process of significant reform of the public service were passed up by the Government. It would have been appropriate if the Bill was in place before those opportunities arose. There could have been real substantive improvement in the different processes of the public service.
The priorities for public service reform are clear to those who observe it in action. Strong performance appraisal systems must be introduced. Performance-related awards for public servants who act above and beyond the call of duty and who are excellent in their spheres are needed. Real targets must be set out and published within the public service. With that in mind, I compliment the Tánaiste and Minister for Health and Children, Deputy Harney, for her proposal to publish a hospital cleanliness table to be drawn up by her Department. Such a scheme could be introduced usefully across several different aspects of the public service. The delegation of responsibility within the public service to local managers, which has not been done, must be ensured.
While the Minister of State referred to the PA Consulting Group report on the Strategic Management Initiative, he did not refer to all matters raised in it. For example, he did not refer to the 65% of respondents, a significant number of people, who believed that underperformance is still left unchallenged within the public service. The report also stated:
. . . senior managers with whom we spoke consistently expressed most frustration and disappointment around what they perceive to be the slow pace of change in the HRM agenda. Two of the most frequently articulated concerns were managing performance and recruitment. In relation to recruitment, areas of perceived inflexibility included securing sanction for posts and atypical recruitment, particularly in relation to specialist [potential] staff . . .
We observed little evidence of progress on devolving responsibility for HRM to line managers, and indeed little evidence on the part of line managers of an eagerness or capacity to absorb such a role. . . . manpower planning is virtually non-existent as a matter of routine practice.
The Minister of State did not refer to these damning paragraphs in his speech. It is hard to appeal and insist credibly on better value for money from public servants if the Government continues to show glaring examples of where Ministers do not seek it. I am not levelling this charge at the Minister of State but at other Ministers. Examples include the so-called "Bertie bowl" and the Punchestown Equestrian Centre project, in which every known procedure and routine was thrown out the window to ensure it was completed. There was also the case of the marina in County Kerry in which planning permission was not obtained and it had to be removed.
It is difficult for the Government to insist that value for money is a top priority but the Minister of State is in a better position than most of his colleagues to ensure it goes to the top of the agenda. The golden opportunity I referred to earlier is benchmarking. Much hot air has been evident in the Seanad and the Dáil, and in other venues, about this issue.
I am convinced that the idea behind benchmarking is good, as is the idea of decentralisation. The Minister of State is involved in that. The implementation of both of these ideas, however, has been an unmitigated disaster. A strong case can be made for a new round of benchmarking or a new mechanism for a real reform agenda for public services. The problem with benchmarking was a lack of initiation of such a reform agenda. That golden opportunity was missed by the Government, but another opportunity may arise in the near future to start this reform agenda. My main charge is that the Government failed to introduce any reform package when benchmarking was implemented.
New thinking needs to come about on how public services are delivered. A more competitive and enterprising drive needs to be included. Innovation must be embraced and those who achieve excellence should be rewarded. That is crucial. Many people believe, rightly or wrongly, that initiative within the public services is not sufficiently rewarded. I hold this view. The Minister of State and the Government must ensure that excellence in practice be significantly rewarded to facilitate delivery of better public services to the consumer. No taxpayer would have any qualms about significantly rewarding people who are doing a good job. That perception did not exist in the case of benchmarking. I would welcome any steps taken by the Government to ensure that people doing a good job in the public services are well paid. A formal structure should be put in place for this.
I welcome the Minister of State. The legislation under discussion is a significant piece of Civil Service reform.
The existing system of dismissal is cumbersome. I recall seeing bulky memoranda for Government for dismissing a prison officer, for example, or for chronic absenteeism. A memorandum might run to 100 or 200 pages. Are Ministers expected to read through all this documentation before deciding the issue? Whatever about the merits of this system when the Civil Service was small, around the time of the foundation of the State, it is clearly inappropriate today and responsibility should be delegated.
I was in the public service off and on, established and unestablished, for nearly 30 years. In my experience, a few people in every office or Department may underperform, but the vast majority work to the best of their ability. The disciplinary code agreed with the public service unions enables a nuanced approach to problems. Dismissal may then be left for extreme cases or if malpractice is involved.
This Bill essentially institutionalises the regime for advisers. Their contracts have long stated that advisers are there at the will of the relevant Minister or Minister of State. Their contracts terminate with the end of the period of office but can be ended at short notice on either side also.
I query one phrase in the legislation. Section 7(1) states: "Every established civil servant shall hold office at the will and pleasure of the government." This type of phrasing goes back ten years, 50 years, or even longer. This phraseology is not republican, but monarchical — car tel est notre plaisir. This section of the legislation should be re-examined. The pleasure of the Government is like the pleasure of the monarch. I appreciate that the phrase comes from previous legislation. However, the term "pleasure of the Government" is inappropriate for established civil servants, who in most cases will spend their employment life in the public service. The drafting is inappropriate. This language has come from centuries ago when totally different systems of government from those under which people now live were evident. I ask the Minister of State to consider this point before Committee Stage.
There is also a point to be made about established civil servants. A practice exists, especially in local government, where civil servants are established at one level and then asked to do work at a higher level, at which they are unestablished. This is either because the post does not exist or because a "temporary" permanent promotion is awarded. However, these workers are paid at the lower level, although they would have an allowance. This is not a desirable practice. It may save money but it imposes on public servants.
In practice, many senior civil servants have performed on a contract basis public service-type functions or missions at the request of the Government. The Minister of State recognised that these people have experience which is of value at a time of increased labour market pressures and I approve of the greater flexibility provided for in this area.
I mostly concur with what the Minister of State said about whistleblowers. It would be dangerous for a senior public servant or a Minister to sanction a genuine whistleblower, a bona fide whistleblower being someone who is not looking to cause trouble and embarrassment without adequate foundation. One can think of horrible examples from the EU Commission of people who missed out because of so-called disloyalty. At a meeting of the Joint Committee on Finance and the Public Service I mentioned the case of an accountant who, at the beginning of the DIRT controversies in AIB, drew attention to the problem and was summarily pensioned off by the people at the top. However, I like to think this type of response, certainly at national level, will be increasingly difficult.
As a member of the Houses of the Oireachtas Commission, I will comment on some sections. I apologise to the Clerk Assistant of the Seanad that we are discussing theoretical systems whereby someone holding her office — not her — might be dismissed. The appropriate system has been adopted, which is that senior office holders in this House can only be dismissed by the Taoiseach himself after consultation and on the basis of clear recommendations both from the Chairs of the two Houses and the Houses of the Oireachtas Commission. I cannot imagine that any Taoiseach would wish to take that step unless there was a clear consensus across party lines that it was appropriate.
The Bill leaves senior civil servants, who can be dismissed by the Government, with recourse to the courts. It is unlikely that this would be for absenteeism, fraud or a similar matter, but perhaps for some major misjudgment. In practice — we have seen some examples over the past ten years — it is potentially extremely expensive to get rid of a senior civil servant without the most compelling cause, which is the way it should be. Ministers should not be able to get rid of senior civil servants arbitrarily simply because they do not like them or because they want them to shoulder the blame for something serious that has gone wrong.
I do not propose to use my speaking time to address either benchmarking or decentralisation, which formed part of the debate in the other House, except to note that in 2003, international agencies like the OECD and the IMF commented favourably on the benchmarking exercise. One must always compare it with what went before, which was a system of differentials with a semi-automatic status. That was not a good way of determining public service pay. However, I have no doubt the system is capable of further refinement.
This legislation raises the issue of what, in our modern, complex system of Government, are the appropriate tasks and responsibilities of Ministers and senior civil servants, respectively. Yesterday, I read with interest the comments made by Kevin Murphy at the presentation of the TASC report. I agree with the comments made on the Order of Business. I had some considerable dealings with Kevin Murphy as a public servant and he has my highest regard. Nonetheless, he has now commented as an ex-civil servant and ex-public servant and has contributed to public debate as a citizen with much knowledge and experience. The issues he raises are not simple. Yes, people from the past might turn in their graves. However, 50 or 60 years ago, society was much less complex and far fewer decisions came before the Government. It was tenable to have a system whereby the Minister was responsible for nearly everything that happened in a relatively small office. Members should remember that at the foundation of the State, the public service occupied what is now Government Buildings, minus the college of science at its centre. It all fitted into a premises of limited size.
There are not any simple, immediate, "top of the head" answers to the problem. There are many clear cases in which a civil servant is primarily to blame for a situation that has arisen. It could be a relatively junior civil servant although it could be someone of any level of seniority. Equally, there are fairly clear-cut situations in which political decisions have been made and where the politician is responsible. However, there is a grey area in between and the legal area is a particular minefield. I worked for a Taoiseach who lost office because allegedly he failed to understand and should have understood the implications of some esoteric precedent. On later examination, it was argued that it was not actually a precedent at all. It was made out to be something of tremendous moral gravity. Only someone from the Law Library with typical portentousness could take such an attitude.
The problem with the law — and the law was involved in the case discussed by Mr. Murphy — is that it is possible to argue that practically any position can be questioned legally or constitutionally in a court of law. Is the Government to be reduced to a state of total paralysis by fear that this or that might not be legal or constitutional?
Yes, there was a failure and I do not propose to go over the debate again. It was a relatively technical matter and there was an obligation on civil servants not merely to bring it to the attention of Ministers but to ensure that Ministers took note. This assumes that the civil servants themselves fully understood the implications. The possible €2 billion compensation arises from a decision of the Supreme Court. In my understanding, the view was taken that given the country's healthy financial state, it could afford the arrears. This implies that if the Supreme Court had been obliged to judge the matter in, for example, 1987, it might have taken a different view regarding arrears.
I will conclude with two or three minor points. Performance-related awards have many superficial attractions. The problem is how to guarantee fairness. I am afraid I come from the old school in the Civil Service whereby if one did one's job and did it well, one won the esteem of one's peers and did not look for some reward. I do not really go along with the idea that everything needs incentives.
We talked about underperformance but I suspect there are many instances of overperformance in every Department, that is, people who perform way beyond the strict demands of what they do, particularly in terms of the hours they put in, because they are dedicated to their job and want to do a good job.
On the issue of value for money, I compliment the Minister of State on his performance on "Morning Ireland" this morning. I thought he gave a very credible account. It is easy if one is chairman of an Oireachtas committee to apply a bit of the populist touch in respect of overruns without thinking about whether the original estimate had any serious foundation to it. In the case of immigration facilities, one must accept Governments face potential crisis situations and must provide for them. However, the crisis may pass, to a certain extent, and the facilities may not be used. These factors must be taken into account.
I have no difficulty with the contents of the Bill which my party endorses. The only surprise is that we need this Bill at all because I was under the impression most of these provisions were long since in place and it came as something of a surprise to find they were not.
Before Senator Mansergh leaves, I should respond to his idle provocation about the Labour Party-Fianna Fáil Government of 13 years ago. I should say something on which we should have long since agreed, namely, that that Government came apart not because of any esoteric, legal pretentiousness but because trust between Senator Mansergh's then party leader and mine had effectively broken down and the parties were no longer working together as a Government.
It also came apart because many on the Labour Party backbenches — I was then a Labour Party backbencher in a Fianna Fáil-led Government — had formed the view that language in the mouth of the then Taoiseach no longer meant a great deal because he was quite capable of going into the Dáil day after day and saying whatever was required to keep that Government together. Frankly, the words did not mean what most people with a knowledge of the English language believed they should mean.
If we are to learn any lesson for the future, it must be that it was not only about an esoteric legal case, but that is an aside which keeps us entertained and awake into the evening time.
Before getting into the substance of the Bill, I mention comments the Minister of State made about whistleblowers because I was genuinely disappointed to hear what he had to say in that regard. He said he was satisfied that the current mechanisms in place were sufficient to protect whistleblowers. In a sense, that is to misunderstand what I believe is the problem. It is fair to say people will not be sanctioned if they blow the whistle on fraud, wrongdoing, maladministration or whatever, or it is unlikely they will be. However, more than that is needed. People who come across fraud, maladministration or improper behaviour in their work need to be actively encouraged to blow the whistle. At a very minimum, that requires legislation or a statement of principle from Government.
Neither I, nor anyone on this side, is saying that if someone discovers something on a Tuesday and if it has not been remedied by the Friday, he or she should be entitled to go to the press. However, what I am saying is that if during the course of his or her work, a junior or a senior official comes across maladministration, fraud or wrongdoing and, having used the internal procedures, it is not resolved, he or she should be actively given a mechanism whereby he or she can blow the whistle. Not only should he or she be given protection against sanction in those circumstances, we should actively tell him or she to do so. At a very minimum, that requires the endorsement and protection of legislation.
I was genuinely disappointed by what the Minister of State said. If I understood him correctly, he seemed to suggest the Department of Enterprise, Trade and Employment is still looking at this issue and I hope it will continue to do so. In light of the Morris report and the gardaí in Donegal, we cannot believe it is sufficient to say that if somebody blows the whistle, he or she will not be sacked. That could equally be true of other areas of the Civil Service given its pyramid-type structure. The bond of loyalty can lead to a vow of silence. Things happen, things go wrong and people know about them but if they do not do anything about them immediately, they become fixed with the consequences of their knowledge. In others words, they know about something, they should have done something about it sooner but they did not and, therefore, they all shut up.
I suspect we saw something similar to that happen in the Department of Health and Children where many people must have known there was a lingering issue in the cupboard somewhere but did nothing about it. The current Minister, the Minister of State's party leader, was able to do something about it because, in a sense, she was there only a few weeks and she had a free hand to deal with it. Others might well have chosen to do the same within weeks or months of becoming aware of it had they got the sanction and endorsement of legislative protection and, indeed, encouragement.
The issue before us today is about introducing different levels of disciplinary processes within the Civil Service. It is useful and proper that the range of mechanisms should be available, such as suspension without pay, suspension with pay, power to terminate that and so on. Senator Mansergh is right in what he said about looking at underperformance and what he calls "overperformance". We must deal with both because, in a sense, those who underperform cause trouble for those who overperform. We need to incentivise those who do a decent job and more than they are asked to do as much as we need to deal with those who underperform because underperforming civil servants lead to a loss in morale and discourage others, directly or indirectly, from doing their job properly. I agree with the mechanism being put in place. It is right people should be given a chance by way of training, development or whatever assistance can be provided to them. However, it is also right that the sanction is available to the head, whether the Secretary General or, ultimately, the Minister.
We need to find some mechanism to encourage people who do a decent job. I have spoken on this issue more times than I can count in this and in the other House and it is deeply frustrating because every time I do so, I go to the Department of Finance's website and look at another myriad of reports produced to deal with the issue. There are many such reports from the high level group, the group of Secretaries General of Departments or outside bodies which have looked at the strategic management initiative and have made various recommendations. It is difficult to avoid the conclusion that most of these reports are gathering dust and that nothing of any serious merit is happening.
Today, I looked at the second sectoral progress report of the Civil Service performance verification group which was basically Mr. Sullivan looking at the benchmarking process and what came out of it. Some of the issues he looked at are ones I indirectly dealt with in the context of this Bill. One issue is about the notion of open recruitment, for example, which was agreed in the context of Sustaining Progress. It was agreed open recruitment would take place in general service posts in the Civil Service to meet specific skills shortages. When this report was done, which is the best part of one year ago, Mr.Sullivan basically said this was in its infancy, talks were still ongoing and that a few advertisements had been put in place.
I would be interested to know how many people have been recruited by open recruitment, that is, by going outside Civil Service normal processes to get people with specific skills. Most of us have been saying for a long time that there is a need for greater involvement of the private sector, that we need to be able to take on people who are not under 24 years of age and who do not have whatever number of points in the leaving certificate, and that we need to be able to fill specific skills needs in the Civil Service quickly, efficiently and on contract, if needs be. That did not seem to be happening when this report was formulated in June of last year.
Mr. Sullivan also reported on the notion of merit-based promotion — another thorny issue which is proving very difficult for some Departments to deal with. This has been around for ten years since SMI became an issue. He points out, for example, that the scheme to replace, on the basis of merit, people who had retired from the Civil Service had in the previous year successfully managed to promote three people, two assistant principals and one higher executive officer. This document is a year old and could have been improved in the meantime. If we are serious about basing some positions on merit we need to be talking about an awful lot more than a few people every year. I hope this is outdated information and, if so, I would be delighted to hear it.
There is a need for more open recruitment and more promotion based on merit. This will not destroy the way the system works. Nobody thinks the way the system works will be totally replaced by all these newfangled notions but they are essential if some modern way of dealing with the Civil Service is to be introduced.
I was in favour of the benchmarking process but over time its purpose has become distorted. At the time I saw it as a way of dealing with leakage from the Civil Service of skilled personnel, in particular, who had to be retained within the Civil Service and, therefore, had to be remunerated in a way that was comparable with the private sector. I saw it also as a way of breaking the relativity scheme system, getting away from the position where if the prison officers got an increase the Garda, nurses and so on had to get it. As regards the latter, I am not sure whether we have successfully done that and, certainly, the recent indications that there will be another bout of benchmarking suggests we have not. I thought we had broken the relativity system once and for all so that we could deal with individual grades within the public service of people who had specialist skills. For example, I thought we could deal with prison officers, as prison officers, without dealing with them as a grade within the Civil Service linked to everybody else. I do not have faith that has happened. I get the sense that the Department sees a further bout of benchmarking as being another way of updating everybody in a way that will bite away at the relativity system.
One issue on which I agreed with the former Minister for Finance, Mr. McCreevy, was that benchmarking should be once off. Frankly, I am nervous of the precedent that will be set by having another bout of benchmarking if that is what we are going to do.
I read with some interest the debate in the other House in which the Minister referred to the statements of strategy and the mission statements of various Departments. I am one of the sad people who occasionally reads these statements. If the Minister seriously believes these are a guidance to Ministers he is making a serious mistake. These statements were introduced in 1997 and are meant to be updated every few years after a change of Government or Minister. For the sake of argument let us take his own Department. As the statements of strategy and the mission statements have been updated over the years there is very little difference between them. The number of civil servants or Ministers who have the remotest of idea of what is contained in these mission statements or statements of strategy is low.
If they did know what was contained in them I am not sure it would help very much. The strategic priorities of the Department of Finance, for example, are price stability, debt reduction, management and effectiveness of public expenditure and tax reform. How does that help? The Minister says poe-faced, reading from a script that has been written for him, that these statements of strategy are a guideline, they inform what the Department does on a day to day basis, help it in setting priorities and in allocating resources and staff to various areas. They do nothing of the sort. They are words on paper, with which nobody could possibly agree, which do not change in any significant measure from Government to Government. Either these statements are made meaningful, which means a Minister must take control and put some political priority of meaning into them or we can forget about them. I appreciate they are meant to be proposed by the Secretary General. We should not maintain the pretence that they are a meaningful statement of mission or of the strategic priorities of a particular Department because, regrettably, they are far from that.
I wish to refer briefly to the issue of cost controls because we are all exercised about the issue of value for money within the Civil Service. It is fair to say that in recent years the Department of Finance has introduced a series of regulations and guidelines which it pushes out to other Departments. It is true also that Secretaries General have produced a lengthy and detailed report on their responsibilities as Accounting Officers and so on. Yet, I have no sense that anything real is happening. Maybe the guidelines are being adhered to and maybe they are not. It is clear in those instances where they are not and there are plenty of them — Senator Phelan referred to some — that there is no sanction and that nothing happens. It is clear that in the event that cost controls are not properly implemented, there is no sanction and no comeback and nothing happens on foot of this.
We do not seem to learn the lessons. I know there are guidelines in place but we must take them seriously. In essence, the whole SMI process is a fascinating one but it is ivory tower material. I have no real sense, and this view is shared by many civil servants, that it is making a real difference in terms of improving the quality of service provided to customers or improving the way people work within what is still an extremely hierarchical Civil Service.
I spent 19 years in the public sector so I can speak with some authority. This legislation is bringing into line the industrial relations procedures of the Civil Service and private companies. However, I do not believe it will happen in the way it would in a private company. I sense fear in this building. I sense the fear of dealing with industrial relations matters. It is not part of the management systems. It is difficult to reprimand and demote people. In a private company one cannot afford to do this because one would go out of business. I admire those in the Civil Service and their integrity and patriotism. We do not want a Civil Service that operates like the dead hand of bureaucracy. The reason I stand here today is to say that I never again want to see a personnel problem in the Civil Service being investigated by a former public servant. I will not mention the case in question. An outside consultant has no allegiance to any group. If or when the Minister of State, Deputy Parlon, becomes Minister, I ask him to ensure it never happens again that a public servant adjudicates on a colleague. The matter should be investigated by an outside independent consultant.
I also welcome the legislation although I appreciate reservations have been expressed by colleagues in different places. I have always felt that the cumbersome method of dealing with dismissals of civil servants might have been acceptable in an emerging state in the 1920s and 1930s but it has no place in modern work practices. It is a tidying up exercise that will eventually allow the system to work better. I agree with Senator McDowell in that I do not see it making any major change to the way the system will work.
One of the difficulties is the level of authority and discretion allowed to civil servants. The main problem is that decisions taken 25 years ago at assistant principal level are now being taken at Secretary General level. I could give many examples. Some 25 years ago assistant principals in consultation with a principal officer decided on the entitlement of schools for teachers or the appointment of teachers to schools. Now such matters are probably decided in the Minister's office with four telephone calls to Deputies before making an announcement, which will not help matters or make things more efficient. We should give people responsibility and discretion as would happen in other parts of the economy. As with anybody who deals with them at senior level, I have seen the absolute frustration of civil servants at not being allowed to get on with the work they are well able to do. They are being constrained at all levels.
On the Order of Business, I asked about the failure in recent years to spend the total budget allocations in the Departments of Education and Science, and Health and Children, as outlined in the newspapers. This is a management problem. Money that was available was not drawn down. I would like to be able to track the decisions as this problem goes back to the decision-making process. Decisions that take twice as long are not twice as good.
Another matter, covered on the Order of Business today, is not addressed in the Bill. Earlier today I attended a committee meeting and missed Senator Mansergh's contribution on the Bill. I do not know how the Ministers and Secretaries Act 1924 relates to the modern world. The Minister is the head of the Department and takes responsibility while the Secretary General is the Accounting Officer. Tomes have been written on the importance of the provisions of the Act over the decades but I still do not understand how the decision making process works. I do not know who takes responsibility and who gives accountability in all situations. Without getting into the current row about the nursing homes involving the former Minister for Health and Children, Deputy Martin, and his then Secretary General other than to use it as an illustration, how is such a matter decided? If we had all the information and agreed on that information, is there a point at which without bias and on that basis we can determine that the Accounting Officer must be accountable and pay with his head or that the person with political responsibility for the Department must pay with his head? We have not done this, which is an issue in how we move forward with the strategic management initiative.
I do not know the answer and I do not know how we will find the answer. It is extraordinary that all these years into the life of the State a joint committee of these Houses should recommend allocating more time to understand what level of accountability and responsibility is required from people at senior levels in the Departments. Every time we have a row, the Opposition will point out that the Minister is blaming the civil servants, the Government parties will back the Minister and those of us who are disinterested would be unable to take a position. I see Senator Brian Hayes smiling. By "disinterested" I mean without having a party political interest. I am not suggesting we would be disinterested in any other way. Leaving the people out of it, how can we come to a conclusion?
We are concerned here with the process of dismissal. One of today's newspapers referred to an "honourable resignation". I would like to see that term defined. What does it mean? Does it mean that if the person in the back office is found to be doing something nasty on the watch of a particular Minister, that Minister is both responsible and accountable and must pay the ultimate price? While I am sure it does not mean that, why not? How do we make the judgment call? What are the ethics involved? What is the morality, with a small "m"? How do we come to that conclusion?
The SMI will never really work until we understand the processes involved. As an illustration, last week Senator Brian Hayes and I differed on the issue of the gardaí in Donegal, who are public servants. No doubt for the best of reasons, he said that those gardaí should have been suspended. That I took a different view does not mean that I am right and he is wrong or vice versa. I would like to know how we reach a judgment on such matters. Due process will need to take its course and codes of discipline will need to be worked through, which are never easy.
These are issues we have not addressed. The Minister of State stated that a person on suspension continues to draw a salary. The point I was making last week was that in his judgment the Commissioner did not want people on suspension drawing salary, going on holidays and doing the gardening and felt that something different was required while the matter was worked through the disciplinary code and the various other procedures, including the involvement of the Director of Public Prosecutions. We need a clear understanding on these issues and should not depend on political intervention.
What is the relationship at issue here? It boils down to this. If the political head of a Department has a different view to his or her Accounting Officer, at what stage do they part company? If a Minister wants money spent in a particular area and the Accounting Officer says he or she cannot agree, in the ultimate how is it determined? For instance, in the ultimate can the Government overrule an Accounting Officer? It could take the decision to give the Accounting Officer the required money, which would address the matter. However, at what point is the Accounting Officer supreme? At what level does he or she have the discretion to make a decision? None of these matters is clear and this lack of clarity filters down through the system. People down the line will not take a decision that will cause a problem up the line and in their career. A number of Departments have given individual sections a budget to work to and take control of. However, how is that done?
The Minister of State said he tabled some amendments to address the issue of superannuation. He should read a book prepared for the public service pensions commission, in which the Department of Finance outlined the different arrangements for superannuation in the Civil Service and public service. The number of different combinations is mind-boggling. Officials at the Department of Finance often talk about creating precedent. They have used every pension arrangement that can be imagined in some form, way or shape at some time. The Minister of State knows how the Department of Finance works. If the officials want a new post they just give it a new title. They have titles that do not exist in any other Department. Unlike any other Department, the Department of Finance has three Secretaries General. The Minister of State knows the way officials there do things. I do not say this in criticism. It works very effectively and efficiently, and we want that kind of creativity from our public and civil servants. On many occasions I have suggested such solutions to problems.
Most people in these Houses do not realise that the Department of Finance has a Secretary General with responsibility for public service management and development. While some people on the Government side believe we eliminated the Department of the Public Service 18 years ago, it is still alive and well and functioning with a Secretary General in Merion Street. How do those kinds of arrangements take place? Who is in charge in those cases? Is there an Accounting Officer for the area administered by a Secretary General with responsibility for public service management and development and, if so, how does that Accounting Officer relate to the Secretary General in the Department of Finance? I believe I know the answer in that he is referred to as second secretary or some similar title. However, is the Secretary General in the Department of Finance with responsibility for public service management and development an Accounting Officer? Is he an Accounting Officer in a form different from that in other Departments? As I mentioned on the Order of Business, we need to differentiate between responsibility and accountability. We need to indicate where they overlap and when the responsible person is also the accounting person, the person who must pay the account for matters that go wrong.
It is useful for Secretaries General to have the authority given to them in the Bill. I am certain they will have to be advised and I do not have any worries about that at all. I know that the Civil Service unions would ensure that the code of discipline and the process are worked through pretty well. They will have the protections of legislation, which they did not have previously. Many people were excluded in the Industrial Relations Act 1946, when distinctions were made between servants and masters, civil servants and public servants and other such Jesuitical changes, many of which have been improved. There are more improvements here today.
The Bill is a worthwhile movement forward, but where will it all end? It is significant that one of those involved in this at an early stage was Mr. Kevin Murphy, who later became the Ombudsman and, incidentally, made a fine speech yesterday. I have known him for many years and I hold him in high regard. I was one of the few who welcomed his appointment. At the time, many Senators wondered how we could trust a civil servant to take on the Government and be critical of it. In light of his single mindlessness over the years, such concerns were unfounded. I never heard him discuss the issue of accountability and responsibility. In his speech yesterday, he spoke about how easy it is to blame the civil servant and he is right. That should not be easy to do, but neither should it be out of bounds. If that is what needs to done, then so be it. However, if it only happens that way and the political leadership never takes responsibility, something is completely wrong. How do we get it right?
Senator Hayes asked for a debate on this today and that could be very useful. Can we develop a clear code in order to reach a conclusion on such issues? I do not know the answer but I do not see this happening any time soon.
When discussing this Bill, it would be no harm to remind ourselves of the highest standards that prevail within the Civil Service. We must give credit to those civil servants for the great growth in our economy and the developments that have taken place here. The Civil Service has played a major role in ensuring that Ireland has become a fairer, more equitable and better place in which to live. It is important to introduce Bills that bring the current best practice up to date. The highest standards in the country prevail among the civil servants who work in this House. I cannot imagine that a better standard exists in other parliaments.
When the then Minister for Finance, Mr. McCreevy, published the Civil Service Regulation (Amendment) Bill 2004, he described it as a further significant step in the reform and modernisation of the Civil Service. He stated that the Bill was the third recent initiative, following the introduction of the Civil Service code of standards and behaviour and further reforms in the area of public service pensions. These initiatives all serve to modernise the Civil Service. The Bill, which will amend the Civil Service Regulation Act 1956, will facilitate a more flexible management structure, in which decisions relating to staff are taken at the appropriate administrative level in a modern civil service. As a consequence, heads of Departments and offices will have the management powers, including the power to dismiss staff below principal officer level, as originally envisaged in the Public Service Management Act 1997.
The Bill is a delivery of a commitment made in paragraph 22.6 of Sustaining Progress. The Civil Service unions, which agreed to the Bill during the benchmarking discussions, will be consulted about the detailed implementation of its provisions. The Bill's main provisions are as follows: Officers at and above principal officer level may be dismissed by the Minister in charge of the Department or scheduled office on the written recommendation of the Secretary General of the Department or the head of the scheduled office. Civil servants, as office holders other than those who fail to be dismissed by the Government, such as Secretaries General, will have access to the Unfair Dismissals Act 1997, which is being provided in order to assure civil servants that fair procedure will be observed and to provide a means of redress if they are dismissed unfairly. The sanctions of reduction in pay, reduction in rank and suspension without pay will be available to managers of those who underperform after attempts have failed to address the problem through training or coaching. Superannuation benefits accrued before a reduction in salary or rank will be protected. The present range of disciplinary sanctions will be broadened to include suspension without pay and hardship payments made to civil servants who are suspended without pay may be varied or halted.
Established civil servants may be engaged in temporary or fixed term contracts of employment, so that managers will have the flexibility to hire people for a finite term project. People aged over 65 years of age may be engaged as new entrants so that management will have the flexibility to engage people regardless of their age. I welcome this in light of the current debate in the Department of Social and Family Affairs and I commend the Minister, Deputy Brennan, on his work in this regard. I welcome the transfer of responsibility for local State solicitors from the Attorney General to the Director of Public Prosecutions, as well as the delegation of functions from the DPP to the local State solicitors. This Bill is timely and necessary.
That kind of thing does not bode well for the future. I will leave that to the experts here in the Chamber.
I welcome the opportunity to discuss this issue with the Minister of State. On the Order of Business this morning, I raised the remarks made yesterday by Mr. Kevin Murphy. He put his head on the block with his views on political responsibility. This arose from the publication of the Travers report and the decision to move Mr. Kelly from the Department of Health and Children to the Higher Education Authority. That decision has profound implications for the entire public service. The idea that one civil servant can be made a scapegoat will reverberate around senior management within our entire public service. In a sense, it has politicised the historic role of the Civil Service in Ireland. That one decision taken by the Government to scapegoat Mr. Kelly for the collective problems in the Department of Health and Children will have far-reaching and dangerous consequences for the Civil Service.
Senator O'Toole asked what the difference was between political responsibility and political accountability. I think there is a difference. The Government, under the Constitution, is collectively responsible for the administration of the various Departments and each Minister is responsible to the other House. Ministers are not responsible for the individual decisions taken by civil servants, but they are collectively responsible in the same way that Enron was responsible for the way in which financial impropriety took root in that corporation. Decisions had to be taken at board level on who was responsible as it was not the individual employees of the company. Under our Constitution, the Government is like the board of directors in this case. That is why the decision regarding Mr. Kelly has such wide-ranging consequences. There is much sourness in the relationship between senior civil servants and this Government because of that scapegoating. In time, it will mark a very sad chapter in the failure by the Government to take political responsibility. The Public Service Management Act 1997 is quite clear on the issue of political responsibility to the Houses of the Oireachtas. The Cabinet is responsible and that certainly did not happen in this case.
It was the great achievement of WT Cosgrave and the first two Governments in the first decade of the State's existence to establish a Civil Service following the bitterness and division of the Civil War, which was not only for those who were victorious. One of the abiding, far-reaching and fundamental successes of the service has been the Civil Service Commission, which has ensured there has been no politicisation of appointments. When one looks at the impact of very senior civil servants like Dr. TK Whitaker, especially since the 1970s in the context of Europe, one realises that dramatic change in Ireland did not just occur because of political support for, among other things, the EU project, but also due to the kind of management existing at a high level within the Civil Service. We must remind ourselves that since the establishment of the State, there has been virtually no politicisation of the service due to an independent recruitment network and the overperformance to which Senator Mansergh referred by various people who have had a significant influence on the transformation of Ireland over time.
While I had the privilege to be appointed Vice-Chairman of the Joint Committee on the Strategic Management Initiative, I have as much knowledge of SMI now as I had ten years ago. People within the political community do not know what benefits have accrued from the initiative, largely because of the rather worthless, meaningless reports which have been produced. Senator McDowell referred earlier, for example, to the annual strategic plans from each Department. Unless we begin to translate the strategic management initiative process into tangible and real benefits for ordinary citizens and the Civil Service, we will not make the improvements envisaged when it was first established.
Previous speakers have referred to the need for much greater flexibility within the Civil Service. I cannot for the life of me understand why we cannot recruit people well into their 30s and 40s who have expert knowledge and the skill sets required in the service at given times. While the recruitment of people at a certain age during a certain part of their life cycles, while investing in their training and education, is very useful, we must allow people to move from the Civil Service to the private sector for a number of years and vice versa. It is not impossible to so provide and it is done in other jurisdictions. We should be conscious that the service itself would gain significantly from an open recruitment process.
My party is not against the benchmarking process but objects to the way in which it has been delivered. I take up the point made earlier by Senator McDowell who quoted former Minister, Mr. Charlie McCreevy, who said the process would not be recreated every three years or so. It was a valid point as the original objective of benchmarking was to deliver tangible benefits to customers and those who use services to make visible the added value at the end of the chain. I asked in my local authority area of South Dublin County Council what was being delivered in return for benchmarking and the manager was able to tell me about a new customer service unit which is open one hour per day, five days per week. It is a tangible benefit to which one can refer to explain to people what they have paid for. I am not as certain of the benefits which have accrued from the process in other Departments and agencies. If we are to have another round of benchmarking, it must be open, accountable and transparent, which was not the case the last time when there was no public perusal of the negotiations and agreements between the review group and Departments.
While I welcome the technical changes in the Bill, I point out that politicians cannot scapegoat civil servants but must take responsibility. In the rainbow Administration, three separate Ministers resigned, two over very minor matters and the other, clearly, for not such a minor reason. The culture has not been imbued in the current Government which blames others for its problems rather than itself.
I thank the House for the Second Stage debate on the Civil Service Regulation (Amendment) Bill 2004. The legislation represents a significant step forward in the process of completing the comprehensive and ambitious reform programme envisaged in Delivering Better Government and the strategic management initiative, with which some have minor difficulties. The Bill also completes another element of Sustaining Progress.
Delivering Better Government envisages a public service which makes a substantial contribution to national development and is effective and efficient in delivering high-quality services to the public. To fulfil this role effectively requires the putting in place of modern management practices. Improvements in service delivery are to be underpinned within Departments by organisational improvements in a number of areas including financial and human resources management. Delivering Better Government recognised the need to give Secretaries General the authority to exercise responsibility in critical areas of human resources management, especially the appointment, performance, discipline and dismissal of staff.
The framework for the better management of staff was set out in the Public Service Management Act 1997. As the Bill gives effect to the framework, it is an important element in the continuing improvement and modernisation of the Civil Service. The Bill will help to strengthen the levels of accountability within the Civil Service, increase its focus on performance and facilitate the important devolution of responsibility to line managers across the service by giving effect to the 1997 Act. The House has had a useful debate on matters arising in the Bill and I will certainly consider the points made by Senators O'Toole, McDowell and Brian Hayes.
I thank Senators Mansergh and Hanafin for their supportive comments and Senator White who broadly welcomed the Bill. We will bring forward an amendment on Committee Stage dealing with the Houses of the Oireachtas. I look forward to our continued discussion of the issues which have arisen.