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Reform of political system not simply a matter of changing electoral system

Issued : Tuesday 20 July, 2010

Speaking at the MacGill Summer School, Glenties, Co. Donegal

The implication behind the title of this session is that the political system is to blame for the mess we are in. It is not. Responsibility for the depth of the crisis we are in rests squarely with traceable decisions of the governments that preceded the crash. It is necessary to say that because blaming “the political system” has become the new version of “sure, ye are all the same”.

The “sure, ye are all the same” movement are exclusively supporters of the dominant party and they may be correct that we are all the same. But we can’t know that because they have elected the same party to lead government since 1987. The Rainbow Government of ‘94-‘97 was an accident and it tended to show that we are not all the same. One party has established a hegemony over every level of society. In the process it has even drawn into question the traditional independence of the public service. Why didn’t the dog bark before the crash?

Whether our political system can provide effective governance is a question that has become elevated from the barstool to the forefront of public debate because of the sudden and calamitous change in our national economic fortunes. The worst recession in living memory, the waste of public money, the collapse of the banks and a decade of tribunals have all combined to undermine public confidence, not alone in the present government, but also in the institutions of government.

Unfortunately the debate about the effectiveness of our political system has become narrowed to the suitability of the electoral system. I will argue that whether our political system can provide effective governance is determined by factors that go beyond our electoral system. And I believe that much of the debate on the electoral system is not well informed and is somewhat superficial.

I believe that considered institutional reform is necessary and urgent. I fully understand the impulse to lash out at the political system when so many of our people have been deprived of their livelihoods; when some face the loss of their homes and when a new generation face the challenge of forced emigration. There is no denying that homegrown decision-making has contributed enormously to the crisis. Therefore our political system has not provided the protection that could reasonably be expected by our citizens. And the question is why?

In acknowledging that our political system bears a share of responsibility for the crisis, I want to make the simple unchallengeable point that dereliction of duty by government is separate from weaknesses in the political system. Wrong decisions and a propensity to avoid decisions for reasons of self serving cronyism in the years preceeding the crash have made our crisis so much worse. Wrong decisions by government should not be conveniently filed away under defects in the political system.

Proponents of change in the electoral system argue that if only we could change the electoral system and halve the number of TDs the quality of governance would automatically improve. Some argue that the new electoral system should facilitate the fast tracking of high achievers directly into cabinet without these outstanding individuals being overly put upon by the electorate.

For these advocates of change the question seems to be how can an electoral system be devised that would transfer Michael O’Leary, Bill Cullen, Peter Sutherland and Dr Ed Walsh directly into Government? Throw in a star journalist and we will never have another poor day. It is not as simple as that.

The proposition is that, in our system of proportional representation in multi-seat constituencies, members of Dail Eireann are so oppressed by the clientelist culture that the business of governance suffers. Perhaps it does, and if it does, we should consider how best to change it but it is my own conviction that the explanation for the failures of our political system goes far beyond the electoral system. Later this week the committee on the constitution will publish its report on this important issue. There is also something of the urban myth about the widespread belief that Ministers are prevented from attending to their portfolios because of the daily demands of constituents. Ministers have between six and nine civil servants devoted full time to ensuring that constituents are not allowed distract the Minister from affairs of state.

According to article 28 of the constitution “the Government shall be responsible to Dail Eireann”. In practice, power within our political system is centralised to Government. The independent existence of Parliament and thus its capacity to hold government to account has become gradually more eroded in the last 20 years. More than ever before Government proposes and Parliament disposes. Dail reform is only part of the solution. Oppositions are in favour of Dail reform but when oppositions become governments the reforming zeal abates. The potential of the committee system is enormous but not with constrained powers. Government has established too many committees in order to reward government backbenchers and so as to maintain control. A small parliament of 166 members cannot service 23 committees, twenty of them chaired by government deputies. During the boom opposition spokespersons were often supplanted in the media by some of these chairpersons articulating opposition-style concerns and counselling this minister or that to change direction. It is all part of the almost total domination by government.

For example, I believe that a parliamentary power of inquiry is necessary and intrinsic to the proper functioning of a representative, responsible parliamentary democracy. I believe that the state is the poorer – and has functioned more poorly – in the absence of a system where those who exercise authority in the State can be called to account for their performance in office.

More than 10 years ago the DIRT Inquiry demonstrated the capacity of parliamentary inquiry when it speedily, economically and effectively investigated allegations of tax evasion and recouped more than a billion euro for the public purse. People who exercised authority in the state system and in our banks were held to account and they didn’t like it. Consequently when the subsequent inquiry into the shooting at Abbeylara was struck down the word was put abroad that it was the end of inquiry by parliamentary committee. I believe that the Abbeylara Inquiry ought never have been embarked upon because Parliamentarians should not put themselves into a position where they might be expected to adjudicate on an unlawful killing. However it was not, I believe, the intention of the Supreme Court to kill off inquiry by parliamentary committee. I published the Committees of the Houses of the Oireachtas (Powers of Inquiry) Bill, 2010 on February 16th in order to restore the power of inquiry by parliamentary committee and to bring the law into compliance with the Supreme Court Judgement. Dr Gerard Hogan SC told “The Irish Times” that “Abbeylara, while causing difficulties did not slam the door shut as many believe”. He highlighted the distinction where the Supreme Court held that “it was unconstitutional for the committee to make a finding that a named person committed an act of homicide” and an inquiry, for example, into the banking crisis. The Government voted down the Bill a decision that would have met with the approval of senior civil servants who don’t want to see the revival of DIRT style inquiry by parliamentary committee.

I have argued elsewhere at some length for the revision of the 1924 Ministers and Secretaries Act to clarify the respective roles of the Minister and the Secretary General. The 1997 Public Service Management Act seems to have only added to the confusion – a confusion that both Sir Humphrey and the Minister are very happy with. The Ministerial/Departmental pact involves an abnegation of public personality on the part of civil servants and an excessive fascination with the role of the Minister. In return for defending his department as if its actions were all his own, the Minister is guaranteed that he will never walk alone and never be short of something to say in his own defence.

In 2010 nobody seriously believes that Ministers should be accountable for every letter that goes missing, for every deportation order misfiled or for every lapse when an official is out sick.

And yet 19th Century notions of personal Ministerial responsibility coupled with legal ministerial responsibility for all official departmental acts and the legal competence of civil servants to perform such acts without any necessary recourse to the Minister, all lead to a situation where accountability to the Oireachtas is demanded on an entirely fictitious basis. Both sides of the House know this to be so, yet that does not prevent both sides acting out their adversarial roles.

During the last decade or so, the issues of civil service reform, strategic management initiatives and so on has meant that constitutional accountability, as delivered through the convention of Ministerial responsibility has become confused with, and by, Managerial accountability.

Legislation should be enacted to permit the delegation by the Minister of specific Ministerial powers to specific officers who would, to the extent of the authority delegated to them be accountable both within the department and also directly to the Oireachtas for the exercise of those powers. Delegation Orders should spell out the function of the Minister in relation to supervision of the exercise of the delegated power.

When a cock-up occurs Ministers and civil servants circle the wagons and engage in collective self-defence. The Minister’s impenetrable corporate shroud envelops them all and protects them from individuals examination and accountability. We need increased accountability from officials but this must be in addition to, rather than in substitution for, Ministerial accountability. We need a more appropriate distinction between the functions of Ministers and their officials.

Not knowing that something has happened is not an appropriate excuse when a Minister should have known; neither is failing to intervene, when the Minister should have done so; or failing to ensure that they are kept informed of potential, as well as actual, problems. Ministers are accountable for what happened on their watch but not because of an arcane legal fiction that, whatever went wrong, they did it themselves.

When it comes to accountability, the main issues are first, whether the Minister has been negligent or incompetent in the overall supervision of the department. Second, whether the Minister responds adequately when things go wrong. Ministers cannot escape their supervisory role. If they are called to resign, such calls should be solidly grounded in the reality of that role, rather than fixing them with knowledge of the actions of others.

We need to re-define the relationship between Ministers and their departments. I have three proposals to amend the law:

If the Minister takes a decision personally, he or she should say so and account for it
If the decision is taken by the department, under a delegated power, then the relevant, named official should say so and account for it
The Minister would then have to account for the degree of supervision he or she exercised over the department in relation to the exercise within it of delegated powers

Senior Civil Servants are major players within our political system and they should get credit for their achievements and they should take the blame when their decisions turn out badly. Civil Service rules that were designed to give effect to the principle that ministerial responsibility protects officials from public accountability, are now outdated.

One further reform refers to our system of public expenditure decision-making and the need for parliamentary oversight. At present the estimates are considered by the relevant select committee half way through the financial year. The Public Accounts Committee does its job effectively and well but it is an audit committee and examines for value for money after the event. There has been developed a generally accepted set of “principles of taxation”, rules and norms by which tax systems and taxation proposals may be measured and examined. Only more recently have we come to turn the spotlight on “principles of public expenditure”.

In a report I prepared for the Public Accounts Committee in 2005 amongst other things I recommended that the estimates formation cycle, the “campaign” including the bilateral negotiations between line departments and the Department of Finance, commence much earlier, in perhaps January and end by the summer (as happens in the Netherlands and Germany). The idea was that there would be what might be termed a whole budgetary cycle, the ex ante phase of the estimates as such followed by Budget Day and the Finance Act and concluding with the ex post aspect, principally the audit work of the C&AG and the consideration of his work by the public accounts committee.

Departments would be examined division by division and spending programme by spending programme, so as to work out what was intended; what was done to achieve that intention; what if any, delays were encountered; what if any, money was wasted; when was the last time this subject matter was thoroughly reviewed and so on.

Accountability, quality of advice, a system of parliamentary inquiry, reform of the Ministers and Secretaries Act, reform of the estimates and budgetary cycle and reform of the Dail’s own procedures – all of these I believe would better enhance the capacity of our political system to deliver effective governance than simply testing the mood of the people on changing the electoral system to accommodate a more remote elite that may or may not do a better job.