Dr Eddie Molloy, Management Consultant
Introduction: So that never again:
In his introduction to the National Risk Assessment published in Jan 2014 Taoiseach Enda Kenny said: “One of the priorities for our country and people is to ensure that we learn from the mistakes of the past….Never again should dissenting voices be silenced when warning of risks up ahead…. We must work to ensure that Ireland’s terrible reversal of fortune never recurs”.
Here was a strong statement of intent to tighten up the systems of governance and accountability that had led to economic collapse, implosion of the banking system and the failure of vital state institutions across all sectors, with dire consequences for hundreds of thousands of citizens.
Now, in July 2017, as we look back, have we learned from the mistakes of the past? Have dissenting voices been heeded or silenced? Or is it a case of déjà vu, the same old story of failures of governance at all levels and across all sectors of Irish life?
Since January 2014, what have we seen?
The protection of children: Geoffrey Shannon’s report on Tusla’s handling of children taken into care was described as an “eye opener”, as if it was the first time in our history we had seen systemic failure to protect children.
Prosecuting white collar crime: the collapse of the trial of Sean Fitzpatrick, former Chief Executive and Chairman of Anglo Irish Bank, revealed a shameful level of incompetence in the Office of the Director of Corporate Enforcement. Evidence had been shredded, and witnesses coached.
An Garda Síochána: Events in An Garda Síochána, where as many as 17 enquiries are under way, continue to show that the culture in which corruption and all kinds of unlawful and otherwise unacceptable behaviour had festered for decades has not changed.
The health service: A stream of reports by the Health Information and Quality Authority (HIQA), including, for example, the several damning reports into infant deaths in Portlaoise hospital uncovered catastrophic failures in governance. Likewise, the report into the heart-rending story of “Grace”, the severely disabled girl who was brutally abused in fostercare for years in plain sight of the authorities.
Banking: No sooner had the banks been bailed out at an estimated final cost to the public of €39 billion, and with all the human misery and economic harm that followed directly from the implosion of the banking system, they were at it again. By secretly violating tracker mortgage contracts, homeowners were crippled with extra payments which saw many lose their homes.
Universities: Investigations by the Higher Education Authority and the Comptroller and Auditor General revealed scandalous misappropriation of public money in a number of institutions of higher learning.
Politics: The Fennelly investigation into the departure of the Garda Commissioner, Martin Callinan, concluded that although the Taoiseach pointed the gun and pulled the trigger, as it were, we had to accept that the Taoiseach didn’t intend fire the Commissioner.
Why do enquiries, tribunals and damning reports not work?
None of this catalogue of governance failures revealed during the three and a half years since the Taoiseach’s 2014 risk assessment is new, so we have to ask ‘why’?
The answer was provided by Dr Tracy Cooper who, as CEO of HIQA, set a new standard of rigour and moral leadership in investigating our health service. Her parting shot on leaving Ireland in May 2014 was: “The problem is we have never seen any personal consequences…. if there is repeated failure nothing really happens”.
There is a well-established psychological principle that says, ‘behaviour is a function of consequences’, which means that if there are no negative consequences for bad behaviour then the behaviour is likely to be repeated. And, of course, the delinquent behaviour is even more likely to be repeated and become accepted as a normal part of an institution’s culture when that behaviour is rewarded, as has happened in all of the institutions mentioned above.
Except for a handful of cases where three bankers went to jail, people who have been directly responsible for, or who have overseen, everything from avoidable deaths to financial corruption and obstruction of justice have been promoted or left the organisation with golden handshakes, topped up pensions and even their company car.
One way to understand this repetitive pattern of poor governance is to see it as a drama that is played out, year on year, across every sector of Irish life along familiar lines.
The title of the drama is borrowed from Tracy Cooper: NOTHING REALLY HAPPENS and the authors are Munitir na hÉireann.
NOTHING REALLY HAPPENS
Act 1, Dastardly Deeds Back-stage. The plot in Act 1 is about corruption, incompetence, cruelty and punishment of dissent behind closed doors.
Memorable lines: there are no memorable lines that the audience can hear because they are spoken in secret. Although some of the audience, for example those who have family working in these places or local suppliers, do have an idea of what goes on inside, but with a nod and a wink they conspire to keep these embarrassing things hidden. Like Muintir an Ghearmain in the community portrayed by Mary Fulbrook in her book, A Small Town Near Auschwitz, Muinitir na hEireann turned a blind eye.
…… and then Act 1 ends dramatically when RTÉ Investigates exposes the scandal or Mick Wallace and Clare Daly breach Dáil protocols and name names…
……..the curtains go up, the lights go on and the story moves on to the public stage.
Act 2: It’s all Fake News: The initial reaction to exposure of wrongdoing is to shoot the messenger and engage in outright denial, circling the wagons and whistle-blower reprisal.
Memorable lines: Some of the most memorable lines uttered in Act 2 have left an indelible mark on the public mind, for example, “the moaners should go and commit suicide”; “the man is not well in himself and his wife is not too well either”; and “frankly, I find it disgusting”. (When invited to identify the speakers in each case, the audience at the MacGill Summer School had no difficulty in identifying the speakers.)
An example of reprisal is the cuts in funding by the HSE to the small NGO which employed the person who courageously pursued the HSE and other agencies for their neglect of “Grace”. The treatment of whistle-blowers within An Garda Síochána, the body we rely on to uphold the law, is deeply disturbing
We will never know how many scandals were buried for good once the whistle blowers had been silenced. How many whistle-blowers simply gave up because the personal cost was too much. The Irish philosopher, Philip Pettit, has commented on the unequal battle that takes place when it is a contest between the State and an individual. The State, he says, has bottomless pockets, endless patience and anonymity for the officials involved.
Acts 3, 4, 5: The Cover-up(s): When denial and attempts to discredit the whistle-blower fails to bury the scandal there follows a series of investigations, each with successively greater degrees of independence and powers, for example the power to demand that witnesses attend and give sworn evidence.
First there is an internal investigation conducted by a member of staff, for example the initial enquiry into the squashing of penalty points by gardaí, which found only eight cases that might merit further investigation; subsequently, after the intervention of Maurice McCabe and other whistle-blowers, an external enquiry found tens of thousands of cases. Similarly the internal enquiry into the tragic death of Savita Halapanavar in University Hospital Galway was unable to allocate responsibility for her death, though a later external enquiry identified nine individuals who had missed 13 opportunities to intervene that may have saved her life.
A slightly more penetrating type of enquiry, or at least one that is represented to the public as being more impartial, is an ‘external’ enquiry by a ‘safe pair of hands’, such as a former employee who is now working as an ‘independent’ consultant.
Memorable lines: As with the script in Act 2, Muintir na hEireann are familiar with the outcome of these half-hearted investigations and they are not fooled by them. Commonly they conclude that “no individual was responsible, it was a systems failure”, forgetting to mention that one of the specific responsibilities of senior managers is to design, install and monitor compliance with systems, such as care pathways and clinical practices or the processes to interviewing a suspect in a crime and taking him to court.
Other memorable lines include, “these are legacy issues”; or “we have already begun to implement the findings of the report”, though subsequent double-checking may reveal this to be untrue.
Intermissions in NOTHING REALLY HAPPENS can last for years depending on the persistence of the complainant or the investigative journalist or court injunctions to block further disclosures. For example Louise O’Keeffe, who was abused by a schoolteacher has fought for over 40 years to seek justice from the State who were the employers of the abuser.
Next Act: The Truth at Long Last, Relief: Eventually, the political and administrative system or the large corporate bodies who are implicated, and which instinctively resist scrutiny and accountability for as long as they can, are forced by mounting public anger and outrage, to submit to some form of sworn judicial enquiry with powers of compellability and all the trappings of a real court. A serving or eminent retired high court judge is usually prevailed upon to chair these investigations. Journalists may give up to ten or more years of their lives to faithfully attend every session in order to keep the public informed of the proceedings. Every so often Muintir na hEireann is reminded that these enquiries are still going on by newspaper headlines about a particularly spicy revelation.
In these sworn enquiries selective amnesia and every other form of deceit, including perjury, is commonly employed to prevent the truth emerging. Crucial documents can no longer be found, mobile phones are missing and, because it has taken so long for the enquiry to begin, key witnesses may have died or may claim they are unable to testify on doctor’s advice.
Memorable lines: After months, or many years, the report appears and there is an initial sense of relief that at long last the truth is out and someone will be held accountable. The findings pull no punches, for example, “Donegal was not a statistical blip”, (Judge Morris); “the culture of An Garda Síochána favours loyalty to colleagues over truth” (Judge Smithwick); “All levels of management in Portlaoise were responsible” (HIQA); or “We need a complete change of culture in child protection” (Geoffrey Shannon).
Next Act: It’s Not as it Seems, Despair: After years of often deliberately ineffective efforts to get to the bottom of scandals and with the emergence, at long last, of at least a semblance of the truth, public expectations of genuine accountability and remedial action, to “ensure that we learn from the mistakes of the past”, are dashed.
We discover that no findings of fact can be made against any individual; the evidence painfully collected, at a cost of many millions, cannot be used in any subsequent trial; reports are heavily redacted; the victims may receive financial compensation from the State that can never make up for the injustice and loss suffered; and most galling of all, the people responsible go free with a generous exit package or get promoted to higher office.
Muintir na hEireann despair of ever seeing justice done, with the responsible persons held accountable and victims adequately compensated and cared for, such as those who lost their home because of their bank illegally changing their tracker mortgage contract. Asked if the Gardaí had been called in to investigate this particular scandal, the governor of the Central Bank said , “yes the Gardaí have been contacted”. No one will be holding their breath to see if anyone goes to jail for inflicting such suffering on our fellow citizens.
Memorable lines: Among the lines that cause people to lose hope of ever seeing justice done are, “on the advice of the Attorney General, we cannot…”; “the solution would require constitutional change”; “Mr X has been appointed to the European Institute for… “; Ms. Y has moved to another post in the (named service)”; or “victims of the (named service), protesting outside Leinster House, say that the compensation provided by the State does not meet their basic needs”.
Final Act: The Empire Strikes Back, an Irish Solution to an Irish Problem: The plot: Faced with the latest damning report, the incumbent government, working hand in glove with senior public servants, follows a well-worn path. They research “best international practice” and then announce the establishment of a “world class” solution in the form of new legislation and governance structures so that the scandal never recurs.
However, instead of the real thing we get a flawed, watered down version of what their research revealed. Some of the clearest examples are the various oversight and accountability structures created to deal with an unending catalogue of scandals in An Garda Síochána. GSOC, which is meant to deal with complaints against individual gardaí, and which we were assured was modelled on the corresponding PSNI structure, has turned out to be nothing of the sort. The Policing Authority likewise.
The new legislation underpinning An Bord Pleanala leaves the way open for politicisation of planning decisions in spite of decades of politically motivated planning corruption right across the country.
The same mentality was evident when an international expert group was created to advise the government on the contentious matter of water charges. They concluded that “best practice” was a charging regime, based on usage, with a waiver for those who could not afford to pay. But then they overstepped their terms of reference, letting the government off the hook, by suggesting that this solution may not work in Ireland because of the political difficulty of introducing charges.
In the end “nothing really happens”. Whistle-blowers and reformers are left licking their wounds and the empire strikes back with the re-emergence of the dominant dysfunctional culture of banking, child protection, policing, planning or whatever and, underpinning this deep-seated national malaise, continuity of the culture of Irish politics.
Memorable lines: “We promise a new way of doing politics” rings hollow right up to the present day (September 20th, as I edit this paper for submission to the MacGill website), with the government seeking with straight faces to persuade us that the re-opening of Stepaside Garda station was based entirely on policing grounds.
“We now have a first class child protection agency, Tusla”; but then it transpires that Tusla does not have the resources to protect children who are at risk. At one point in 2016 there were thousands of such children who did not have an assigned social worker.
Setting up new institutions and then starving them of resources is commonplace. In addition to the under-resourcing of Tusla, GSOC is grossly understaffed and the ODCE had only one qualified accountant at a time when it was dealing with some of the biggest alleged white collar crimes ever committed in this country.
The End: But not really. When nothing really happens, then as sure as night follows day, there will be no learning from the “mistakes of the past”, “dissenting voices (will) be silenced when warning of risks up ahead” or exposing current abuse, incompetence and criminality, with the inevitable outcome that “terrible reversal of fortune” for individuals and the whole of society will recur.
So, We Ask One More Time: Why?
Why is it that in Ireland we have to endure this seemingly unending cycle of scandal; denial and whistle-blower reprisal; a bogus initial enquiry by an insider or a safe pair of hands; endless further toothless enquiries, followed by what looks like a genuine search for the truth but whose efficacy is blunted by every form of deceit including perjury, and whose findings may be redacted and un-implementable for legal reasons; implementation of half-hearted reforms that sometimes seem designed to fail, like the GSOC investigative processes; and all leading in the end to the ‘status quo ante’.
No Personal Consequences: Philip Pettit cited the anonymity of officials and executives as a major reason for poor governance. We are told that “the Department of Education” failed to provide information to the enquiry into institutional abuse of children; that Judge Mary Ellen Ring, Chairperson of GSOC had to threaten to summons “An Garda Síochána” in order to secure their cooperation with GSOC investigations; or that “Bank of Ireland” and “AIB” improperly refused to allow borrowers to revert to their tracker mortgages. But we never get to know who precisely was making these decisions; individuals are rarely held to account.
Brendan Howlin, as a TD and when he was Minister for Public Expenditure and Reform has consistently said that it should never reach a point that civil servants have to be fired. If this principle is enshrined in the civil service then it creates what amounts to a culture of impunity.
His former Labour party colleague Pat Rabbitte was more challenging on this matter, when he told his audience at the Burren Law School, “The system of accountability we pretend to have is founded on a lie. It enables ministers to hide behind the skirts of civil servants and ministers to avoid taking responsibility”.
Perjury is not Treated as a Crime: As Tracy Cooper said, the reason why nothing happens is because there are no consequences. Susan O’Keeffe, who was a journalist at the time and the only person convicted of an offence over the infamous ‘beef tribunal’ scandal, once said, “If perjury is not a crime then we are a craven nation”. Well, perjury is not treated as a crime in Ireland, if one is to judge by the number of prosecutions on foot of clearly false testimony to various sworn enquiries.
Inadequate Protection for Whistle-Blowers: While improvements have been made to protect whistle-blowers, Catherine Connolly TD remarked during a 2017 PAC hearing into An Garda Síochána, “whistle-blower legislation is an illusion. Whistle-blowers suffer terribly”.
Politicised Regulation: In her book Irish Governance in Crisis, Niamh Hardiman of UCD and her co-authors, set out in detail the way in which legislation and institutions established to regulate planning, waste management, the police, broadcasting and other areas of Irish life invariably fall short of the requirements of good regulation. The essential requirements were once expressed by Matthew Elderfield, who came here to clean up the regulation of banking regulation after their implosion, as “invasive scrutiny and effective sanctions”. Hardiman would add “and protection from political interference”.
A Two-Tier System of Justice: Class matters in Ireland. We have a two-tier system of justice (as well as a two-tier health system and other manifestations of structural inequality). This means that if you have money and connections to the golden circles of influence you are more likely to succeed in avoiding the consequences of your failings. This means that the ‘average’ citizen is at a disadvantage in taking on the State or large private organisations when seeking justice. The net effect of this unequal access to justice means that countless cases of criminality and misbehaviour or unfair treatment of citizens are not pursued.
The Root Cause: Us, Muintir na hÉireann: In searching for the root cause of this enduring malaise in Irish public life, focussing on the ‘bad guys’, as in the play, does not provide the full answer, because it is we, the voters who elect the TDs who form our government, whose action and inaction in turn are responsible for the recurrence, year in year out, of the corruption, cruelty, unfairness and other failings mentioned in the play. We get the government we deserve.
In the past 12 months we have witnessed how the electorate in other countries had committed what can only be described as acts of self-harm. Writing about this issue in the New York Review of Books, Elizabeth Drew said, “Trump’s success has been made possible by a large portion of the electorate swallowing his simplistic statements about the problems facing the country and his impossible promises to solve them. Quite frankly it is the ignorance of the electorate that is most troubling.”
Closer to home in Britain a similar act of self-harm was committed by the electorate when they swallowed the extreme right-wing rhetoric of Nigel Farage and lies about £350 million per week being available to the NHS and voted for Brexit.
Does all of this ring a bell for us in Ireland? We would be blind not to see the parallels. Professor Diarmuid Ferriter, the eminent historian, writing in the Irish Times, remarked that the influence of local culture on Irish political style results in “public connivance in cute hoorism casting a long shadow over Irish life”.
Peter Mair, who made a memorable presentation to MacGill shortly before his untimely death in 2011, also spoke of the “culture of cute hoorism and strokes” that prevails in Ireland. He said “we have an electoral system governed by amoral localism”. All of which makes Muintir na hÉireann just as prone to acts of self-harm as Muintir Meiricea or Muintir an Bhreatain.
The Answer to the Question Posed: The answer to the question posed for this session at MacGill is that more reports and enquiries are not the answer. The next banking enquiry, GSOC investigation or HIQA report will never deliver on “one of the priorities for our country and people…. to ensure that we learn from the mistakes of the past”, as summed up by then Taoiseach Kenny in his introduction to the National Risk Assessment, 2014.
Ultimately the answer lies in the maturation of the Irish electorate, transcending the lure of amoral localism, refusing to swallow simplistic statements about the problems we face and impossible promises to solve them. We have no one to blame but ourselves unless we demand more of our politicians than the continuing politicisation of vital national institutions, legislation that protects individual wrong-doers and incompetents from “invasive scrutiny and effective sanctions”, the under-resourcing of regulatory bodies that are supposed to protect the public and the persistence of a two-tier system of justice.
Muintir na hÉireann are not merely the audience at this play. They are the principal actors.