Friday, 4 December 2009
Houses of the Oireachtas Commission (Amendment) Bill 2009: Report and Final Stages
Before we commence I remind the House that a Senator may speak only once on Report State, except for the proposer of an amendment who may reply as part of the discussion. Each amendment must be seconded. Amendments Nos. 1 to 7, inclusive, are related and may be discussed by agreement. Is that agreed? Agreed?
I move amendment No. 1:
In page 7, line 6, after "Commission." to insert the following:
"The Secretary General and Head of Finance may attend meetings though not as members of the committee".
I welcome the Minister of State to the House. Yesterday, there was a long and convoluted discussion on matters related to the establishment of the audit committee of the Houses of the Oireachtas Commission. The Minister and I soldiered together as members of the commission. My concerns were very fair and I discussed them last night with members of the Committee of Public Accounts and with senior members of the commission. I was rather concerned and I took the view we were moving away from what I consider to be best practice. I have examined all the amendments under discussion and I welcome the response from the Minister. I recognise the Government has approached me on this matter and has conceded on at least two of the most significant points which concerned me and I will refer to these presently. However, in order to dispatch the business of the House it is my intention not to press the amendment.
In that case I will comment on all the amendments. I welcome very much the fact that the Government has listened to the various arguments I put forward yesterday. The most important element is that there should be direct access to the commission for the audit committee and that the audit committee should advise the commission on issues of corporate governance, which covers all relevant matters of concern. One reason for my concern was that the Bill, as drafted, is a reflection of what took place but should not have in FÁS, whereby the audit committee reported only to the chief executive. In fact, my comment is somewhat unfair. In the case of FÁS, the audit committee advised and reported only to the chief executive and the board never got to see it. There is a provision in the Bill that the audit committee should report to the board but only on an annual basis and this was a matter of concern for me.
I was also concerned that we were veering away from the documentation relevant to every State body, that is, the Code of Practice for the Governance of State Bodies, because of the absence of clearer lines of communication. Although I called for a provision such that the audit committee would advise the chairman, the reason for the provision in amendment No. 2 is that the duties of a chairman of a State body are very onerous. Such a chairman requires a significant element of support and the thinking behind the amendment was to ensure such support would be forthcoming. I note the Minister of State has not taken that point on board exactly. However, I am satisfied that in advising the commission, of which the chairman is a part, the legislation meets my requirements.
I had sought for the chairman and the commission to be considered as two separate entities, but this was done with a belt and braces approach in mind. I am satisfied to acknowledge that Government amendment No. 4 fulfils what I set out to do in amendments Nos. 2 and 6. It meets the needs and keeps a direct line of communication from the audit committee to the commission and its members.
There were recurring problems involving members of boards who appeared before the Committee of Public Accounts in 2000 and 2002 in respect of offshore matters. It was significant that they stated they did not know about certain matters. Members of boards of companies of banks and so on also stated they did not know about certain matters. I recall the then Tánaiste, Deputy Mary Harney, stating she never wanted that to be allowed as an excuse in future. This Bill will mean members of the commission must know what is taking place and that the audit committee can bring to the attention of the commission anything it considers to be important. It meets my requirements.
I held considerable concerns about this matter. It was valuable to have held such a lengthy debate yesterday and it was also valuable that we deferred Report Stage until today to allow people to reflect on the matter. I welcome the Minister of State's amendments. On that basis it is my intention not to press any of my amendments, namely amendments Nos. 1, 2 and 6. I will not put them to a vote because I recognise that the Government amendments meet everything I argued for yesterday. I am very grateful to the officials for taking these points on board as well. I accept it is difficult to write amendments at short notice, to collate all the parts and change the numbering. It is a good day's work for the Seanad.
We, in this House, have often criticised Ministers and the system. One of the most frequent criticisms is about when we rush legislation through without a gap between Committee Stage and Report Stage. I congratulate the Minister of State for accepting the basis of Senator O'Toole's concerns. His amendments have been adjusted, but in a manner that recognises exactly what he wished to achieve. The Senator has withdrawn the other amendments on that basis.
Deferring Report Stage until today was the correct thing to do. We should never have Committee Stage and Report Stage one after the other. I thank the Minister of State for that. I thank Senator O'Toole in particular for his work. He spoke to me previously about his concerns on the matter. It is clear that if the legislation had gone through unchanged it would not have solved the problems that arose in the past. I congratulate the Minister of State for accepting the gist of what Senator O'Toole wished to achieve and I thank him for so doing.
I thank the Minister of State, Deputy Mansergh, for his presence and for being willing to accept the principle presented yesterday by Senator O'Toole. It will help to ensure the Houses of the Oireachtas Commission does its work in the most professional and appropriate fashion. I hope it will also help in terms of the standards expected and conduct demanded of appointees to other State boards and agencies.
A reasonable amount of time was provided for Second Stage and Committee Stage. It was useful that Senator O'Toole highlighted the possible omissions that existed and provided a remedy to rectify the situation. I am thankful that the Minister of State appears willing to accept the principle enunciated yesterday by Senator O'Toole, as it will result in better legislation.
I thank Senators for the broad support for the Government response to the arguments and the amendments. As Senator O'Toole pointed out, he and I had an interesting experience when we soldiered together between 2002 and 2007 on the Houses of the Oireachtas Commission. We were both on the audit committee together. I left it and perhaps he did too when some things were up in the air, but subsequent events also underlined the importance of the relationship between the audit committee, the Clerk of the Dáil or the Secretary General, and the commission. While I am only taking Report Stage of the Bill I appreciate the importance of the argument. I am pleased that we have been able to address concerns expressed in well reasoned debate.
I appreciate that some of the amendments are not being pressed but I will outline briefly some of the points and arguments in regard to them. All the amendments were grouped together for discussion purposes. It would not be appropriate to grant the Secretary General and the head of finance an automatic right to attend audit committee meetings. That has to do with the independence of function of the committee. By excluding an automatic right of attendance by officials the committee can engage in its own internal discussions in a manner that is free, or more importantly, seen to be free, of any official interference.
As pointed out by the Minister of State, Deputy Peter Power, on Committee Stage yesterday, subsection (13) provides that the audit committee may invite a person who has responsibility for internal audit or financial matters within the staff of the service. In practice, that means that the committee invites attendance by the head of finance frequently but the Government would prefer to leave that as it stands so that the committee remains in control of the persons who may attend its meetings. For that reason I do not propose to accept the amendment.
Senator O'Toole has accepted that point in the case of amendment No. 2. His amendment did draw a distinction between advising the commission and advising the commission chair. The Government does not consider it necessary to draw that distinction within the legislation.
On amendments Nos. 3, 4, 5, and 7, that is effectively the response to Senator O'Toole's well-made points regarding the giving of advice by the audit committee to the commission. It is not just the case that I consider that these amendments take his concerns into account, but he agrees with that.
The Minister for Finance noted with interest last night the views and proposals of Senators on the role and functions of the audit committee, as reported to him. Following a review of the general principles underlying section 10 and its relationship with the rest of the legislation, he considered it appropriate to propose an amendment, the effect of which is to provide scope for the audit committee to advise the Houses of the Oireachtas Commission in regard to corporate governance matters relevant to its functions. That phraseology can cover a multitude of sins.
In the case of the Houses of the Oireachtas Commission it must be acknowledged that its situation is somewhat different from that of a Department. On the one hand it exercises a number of functions normally associated with Ministers, such as the making of regulations for particular purposes, but it also exercises a number of oversight and policy-setting functions in providing for the running of the Houses and acting as governing body of the service.
The Bill provides for greater accountability to the Houses in respect of the carrying out of its functions. I understand that there was some lively speculation yesterday as to how that might work in practice. Some of the responsibilities of the commission are matters which may be of legitimate interest in the workings of the audit committee, or may become so in the future. It is appropriate that the audit committee would be able to advise the commission in respect of its exercise of those responsibilities.
The purpose of the amendment, therefore, is to enable the audit committee to advise the commission on matters relevant to its corporate governance functions, while respecting the fact that the commission itself is not primarily responsible for the financial accounting or financial control functions which are vested in the Secretary General, in other words the Clerk of the Dáil. The Minister is satisfied that the amendment reflects the appropriate balance of statutory responsibilities in respect of governance, accounting and accountability in the legislation governing the commission's operations.
Under the amendment the audit committee's advice in the area of the more detailed financial and control matters would still be primarily targeted at the person who is accountable and responsible for those matters. At the same time it can provide the best available support and advice to the commission in its areas of responsibility. The audit committee is also required anyhow to report to the commission at least once a year on its activities. The point has been accepted that that might not be enough.
While the commission is somewhat of an exception to the departmental model in that it exercises board and policy-level oversight in a manner that does not apply in Departments, the essential role and responsibility of the chief civil servant and Accounting Officer remains vested in the Secretary General. It is appropriate that the audit committee continues to advise the Secretary General or Clerk of the Dáil in regard to those functions in the first instance.
If the audit committee were to advise the commission on the carrying out of particular accounting functions the commission, and particularly its chairman, would have to assume significantly greater responsibilities and accountability at the level of individual financial transactions than it does at present, and in respect of which it would not have statutory cover. That might be a bridge too far in the context of the other roles of and offices held by some members of the commission.
I am very pleased with the way the Minister of State has dealt with this matter and he has answered all of my points. I accept the argument on the first amendment that the people in question can be invited. I recognise that one could compromise one's independence by giving people such a right.
The Minister of State made an interesting point, perhaps one not to be debated now. I listened very closely with the regard to the interchange of the words "accountable" and "responsible", an issue on which we need a longer debate. We know what accountability means. Very often it comes into play in political life when people talk about resignations and the difference between somebody being held accountable and responsible. The board has a responsibility to ensure the Accounting Officer is held accountable, or it has a responsibility to have in place all the necessary arrangements to ensure the Accounting Officer is held accountable. I do not want to engage in tautology but I like to distinguish between these two words. For instance, in a Department the Accounting Officer is the Secretary General but the responsible person is generally the Minister who has political responsibility. They are different roles and it is important that the distinction is maintained. I am satisfied the distinctions the Minister of State made are correct, or they mirror my view that one must ensure one does not confuse the responsibility of the board with that of the Secretary General or, in this case, the chief executive officer or whatever he or she is to be called.
Yesterday we had a debate on the section of the Bill which states a person transferring from the Civil Service to the commission will become a civil servant of the State. I said that was the kind of problem which was creating a need for the transformation of the public sector. It is a dearly held view of mine that whether one is a teacher, a nurse, a civil servant, a person working in the Houses of the Oireachtas Commission, etc., one should simply be described as a "public servant", that there should be an integrated public service and that staff should be capable of being redeployed from one area to another as required by the State. That happens in France at a departmental level. I have strayed from the agenda but the Minister of State and I have discussed aspects of this issue at various times.
The distinction between accountability and responsibility is crucial. Those who work in the Houses are civil servants of the State but I want to ensure that, as we move towards a transformation of the public sector, the distinctions vanish.
Senator O'Toole made two interesting points. Undoubtedly, accountability should be a narrower concept than responsibility which is broad ranging. Accountability, particularly in a financial context, is precise. I deprecate the growing practice, particularly in journalism, whereby accountability equates with "he or she ought to resign." It is effectively used as a euphemism, which is regrettable. One should not equate accountability with that simpliciter.
I regard myself as a public servant of 35 years standing and hope I will be able to get as far as 40 years service, not for pension-related reasons I hasten to add. That is the average or full length of a public servant's career, although sometimes people go on for slightly longer than this.
I agree with Senator O'Toole that there should not be much of a distinction. Obviously, the roles of a civil servant and an elected politician are different but "public servant" covers the matter more broadly. The fact that salaries are now linked to Civil service Grades, in a sense, underlines the point. As somebody who has occupied many roles from civil servant, to an adviser, to a Senator, to a Deputy and to a Minister of State, I see far more in common with these roles than a distinction that one is serving the State in different roles. What one learns in each of these roles may well be of assistance as one moves to another role.