TOWARDS AN EFFECTIVE SYSTEM OF PUBLIC ACCOUNTABILITY
Dr Eddie Molloy, Director, Advance Organisation
“Without statutory reform the system of accountability
we pretend to operate in this country is grounded in a lie.”
Pat Rabbitte TD, Burren Law School, 2010
The current system of accountability is grounded in a lie:
In 2002, a group of senior civil servants and two external members, including myself, under the chairmanship of Paddy Mullarkey, former secretary-general of the Department of Finance, produced a set of recommendations on the ‘accountability of accounting officers and secretaries-general’.
While the exercise led to a number of improvements, for example the strengthening of departmental risk management and audit disciplines, the core issue of the respective responsibilities and accountabilities of ministers and secretaries-general was fudged. An unspoken conclusion was that ‘you couldn’t really hold secretaries accountable because if their performance was poor it would reflect badly on the minister’.
In a scholarly analysis of the legislation and practice surrounding accountability, delivered to the Burren Law School in May 2010, Pat Rabbitte remarked that the current system is “grounded in a lie”, adding that it enables civil servants to “hide behind the skirts of ministers” and for ministers to “avoid responsibility”. He observed: “If questions are asked as to who actually decided what, when and why, the corporate veil descends upon the entire department”.
In recent months, we saw this kind of obfuscation surrounding the events that led to the resignation (or firing) of the Minister and Secretary-General of the Department of Justice and the Garda Commissioner, and in the public row about the withdrawal of medical cards.
We will pin down accountability for results:
Pat Rabbitte’s impassioned plea for a re-definition of the relationship between ministers and their officials found its way into the Programme for Government agreed by the Fine Gael-Labour coalition in 2011. Citing the “huge accountability gap”, the following commitments were given:
“We will pin down accountability for results at every level – from Ministers down –with clear consequences for success or failure. Ministers should be responsible for policy and public service managers for delivery”
“We will legislate for a reformed code of laws, replacing both the Ministers and Secretaries Acts and the Public Service Management Act”.
“Restrictions on the nature and extent of evidence by civil servants to the Oireachtas will be scrapped and replaced with new guidelines for civil servants that reflect the reality of the authority delegated to them and their personal accountability for the way in which it is exercised”. (Italics are my emphasis)
Soon after the formation of the government and in particular the creation of a new Department of Public Expenditure and Reform (DPER), a small team of senior officials began work on the implementation of this electoral promise, and in January 2014 they published “Strengthening Civil Service Accountability” and placed it in the hands of an ‘Independent Expert Panel’ to be taken through a 6-month process of public consultation, on foot of which the Panel would make recommendations to DPER Minister, Mr Howlin. The minister would in turn present his advice to Government sometime before the end of 2014.
The January 2014 discussion paper is an excellent crystalisation of all the key questions to be addressed if there is to be genuine reform.
Accountability an icon for good governance:
The paper defines accountability as follows: “The original and long-standing meaning of accountability and its conventional usage in Ireland (and other Westminster-type parliamentary democracies) is the formal obligation to submit to a mechanism designed to achieve external scrutiny in explaining and justifying past conduct or actions, with the possibility of facing consequences arising”.
The significance and purpose of public accountability are set out: “Accountability is seen as an icon for good governance… public accountability provides a democratic mechanism to, for example: monitor, oversee and control government and administrative conduct, ensure popular sovereignty and prevent corruption and abuse of power. Furthermore, ”Following an avoidable disaster or tragedy, accountability can also provide the opportunity for public catharsis. Accountability discharges a pivotal role in bolstering the legitimacy of Government authority and public confidence in the effectiveness of public administration”.
The authors add that: “Accountability is equated with a set of standards for the evaluation of the behaviour of Public Agents… Being accountable is a positive quality or virtue.”
The Independent Expert Panel engaged in extensive public consultation and examined international ‘best practice’ and issued their findings in June 2014. During the same MacGill session in which this commentary was presented, the Panel Chairman, Prof. Kevin Rafter and DPER Secretary General, Robert Watt, set out their recommendations for reform. In this critique of the PaneI’s advice to Minister Howlin, I seek to address five key aspects of the system of accountability that necessitated reform.
If we leave aside the more important matter of the powerlessness of the Dáil to hold the government to account – a topic taken up by other speakers at MacGill – the need to uncouple the respective roles and responsibilities of ministers and their senior officials is arguably the single most crucial reform of the many reforms promised by the government.
People manage others as they are managed, so if there is no personal accountability, in the sense set out in the January discussion paper, at the apex of the civil service then efforts to create a ‘culture of accountability’ are doomed from the start. It is no surprise that repeated efforts to install an effective performance management system in the civil service have failed. As I finalise this paper for inclusion on the MacGill web site (in mid October 2014) DPER has publicised the fact that fewer than 1% in total of civil servants were adjudged to be performing at the two lowest level, i.e. 1 and 2 on the performance review rating scales. A rating of 3 or higher merits an automatic salary increment. There will be no change in this attitude to accountability down through the chain of command until such time as there is an authentic, effective system of accountability, with personal consequences, at the very highest levels.
In this context, the Expert Panel fails to grasp the core issue here, concluding: “The panel is confident that the (existing) legislative framework does not provide obstacles to strengthening accountability”. Of course, accountability could be strengthened in various ways within the existing framework but crucially the Panel fails to deal with the crux of the matter, which is the need to fundamentally re-define the respective responsibilities of ministers and secretaries-general. They fail to meet the standard set out by Pat Rabbitte in his address to the Burren Law School, namely to re-define the relationship between ministers and their departments such that:
– “If a 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”
– When ministers are to blame, the system should identify that, rather than shielding them and the same for officials”.
According to the Expert Panel, “The Public Service Management Act 1997 provides a statutory framework for the assignment of specific functions from secretaries-general to officials within departments.” This is true but it is beside the point. The problem is not the relationship between secretaries-general and their reporting staff. The Panel’s recommendations fail to deal with the more critical issue of the conflation of the responsibilities of ministers and senior civil servants.
Recall how forceful the commitment in the Programme of Government was to scrap and replace with new guidelines the restrictions on the nature and extent of evidence that officials would be permitted to give.
The Expert Panel is silent on this important element of political and administrative governance, other than to say that the new Houses of the Oireachtas Act 2013 deals with the matter. Well, the 2013 Act doesn’t deal with it. There are so many clauses that empower the Minister of the day to redact and otherwise restrict what officials can say that the net effect is that they will have no more freedom to speak up than heretofore.
Integral to the definition of accountability is that the accountable person “submit… to external scrutiny “. External scrutiny implies independence on the part of the supervisory body or person.
The Expert Panel’s recommendation on this element of the system of accountability falls far short of anything that could be construed as being “external” or “independent”.
They recommend that the “Accountability Board for the Civil Service” should comprise: the Taoiseach, the Tanaiste and the Minister for Public Expenditure and Reform as well as four secretaries-general – those of the Departments of the Taoiseach and DPER, one other, the Head of the Civil Service and four independent external members.
This imbalance of seven internal to four external members contrasts for example with the membership of the Top Level Appointments Commission (TLAC) which has a majority of external members.
Put bluntly, this arrangement cannot be considered as a credible oversight body.
The programme for Government has declared, “We will pin down accountability for results…. there will be consequences for success and failure”.
The Independent Panel reported that during their extensive consultations within and outside the civil service “underperformance and non-performance were raised regularly”.
This is a matter of concern to the majority of civil servants who work hard and perform well.
In a single stroke, the Panel dismisses the possibility of the ultimate sanction of being fired for poor performance with the statement: “The private sector appears more willing to dismiss for poor performance…because the private sector is not always subject to the strict financial constraints of civil servants… the private sector has more options to deal with poor performance “. It is hard to understand the basis for this argument.
The panel then goes on to recommend “…stronger, more robust supports for managers dealing with non-performance and underperformance”, saying “this would assist underperformers through identification of development measures in raising performance”.
This particular recommendation would be insufficient to tackle the deficiencies of the existing largely discredited Performance Management and Development System (PMDS), whereby the consequences for successive ratings of poor performance were yet another development programme. This regime enabled consistently poor performers to settle in to a mediocre performance until they reached pension age.
In reflecting on these reform proposals, the Minister might usefully consider the remarks made by Dr. Tracy Cooper on stepping down from her role as CEO of the Health Information and Quality Authority (HIQA). Dr. Cooper, who brought a new degree of rigour to the oversight on health service organisations, such as nursing homes and hospitals, said of the culture of accountability in our health service: “The problem is we have never had any consequences….if there is repeated system failure, nothing really happens….if you are not able to do the job something should happen – you shouldn’t stay in it”. She summed up the situation in words that could apply to many parts of the civil and public service; “We have not yet cracked accountability.”
Among the 20 questions posed in the January paper there is one that unflinchingly goes right to the heart of the matter, the existential question that each individual civil servant faces: “How far should public servants rely on their professionalism and sense of personal morality and how far should they simply follow instruction from their political masters”?
A hard lesson learned in recent times in Ireland is that the very best laws, structures and stipulated procedures can be rendered ineffective by the prevailing culture of an organisation. Laws are not sufficient unless you have the norms, as Machievelli put it.
An institution’s culture represents the shared values or norms of its members. For example, Judge Smithwick remarked in his report into the murder of RUC officers that the culture of the Garda Siochana was one that placed loyalty to colleagues before the truth.
Just how challenging this question is for any civil servant was borne out recently by the treatment meted out to the two Garda whistle-blowers, Maurice McCabe and John Wilson.
Following publication of their report, a submission that had been made to the Panel by “Heads of Audit” in Government Departments was leaked to the media. In their submission they said, “Some of the inaction by the senior civil servants was as a result of their roles being too politicised, relationships too close and a culture of lack of constructive criticism, even behind closed doors”. The “primary failure”, they said, was “an unwillingness to defend against poor policy….and exaggerated political manifestos from government and the commercial world”. This submission was not available on request from DPER.
There are many civil servants who would dispute this characterisation of the prevailing culture but in so far as this culture is hostile to officials who ‘speak truth to power’, relying on their professionalism and sense of personal morality, then there was an onus on the Expert Panel to address this vexed question. In the event, their report is silent on the matter.
Summary and conclusions:
Two other presentations to MacGill, by Prof Kevin Rafter, Chairman of the Expert Panel and Robert Watt, Secretary-General of DPER set out the Panel’s full list of recommendations. While the January 2014 discussion document and the work of the Panel represent a serious effort to reform the inherited system of accountability and have yielded some significant reform recommendations, such as the appointment of a Head of the Civil Service, the outcome so far is very disappointing.
This paper argues that the Panel’s recommendations in regard to five crucial elements of the system of accountability fall far short of the expectations raised in the Programme for Government and in the January 2014 discussion document. Were a new system to be based on the advice of the Panel it would be built on sand because:
– Ministers and officials could still hide behind each other’s skirts;
– Civil servants would still be severely restricted in the evidence they could give to Oireachtas Committees;
– There would be no independent, external scrutiny:
– There would be no effective sanctions for poor performance or major failures
– There has been no clear advice on how civil servants should manage the tension between their conscience and following instructions from their political masters whenever the two are in conflict.
It is worth asking ‘why such a disappointing outcome?’ Pat Rabbitte suggested an answer to this question in his Burren Law School paper: “Those who have most to lose from being held accountable will resist most”?
Politicians have most to lose from a proper system because they would be held accountable for their ”inflated political manifestos” and bad policies. Civil servants, and ultimately citizens, have little to lose and much to gain from a transparent accountability system, one that is grounded in the truth rather than a lie.
Consequently, any prospect of such fundamental reform rests with the emergence of a small number of senior civil servants who will provide the necessary leadership. This is one of the valuable messages that emerge from the recently published biography of Ken Whitaker entitled: T.K.Whitaker: Portrait of a Patriot. A truly iconic figure in the history of the civil service, the story he told to the author Anne Chambers was of a small group of like-minded, idealistic colleagues who wrought the changes that today we admire and treasure.
The people of Ireland have paid a terrible price for failures in our systems of governance and accountability. Reforming these systems, particularly those that govern the relationship between government ministers and their officials, represents a challenge to currently serving senior civil servants, comparable to that which Whitaker and his colleagues faced and dealt with.