PUTTING OUR HOUSE IN ORDER

DÁIL REFORM, PARLIAMENTARY OVERSIGHT AND GOVERNMENT ACCOUNTABILITY

PUBLISHED BY PAT RABBITTE TD ON BEHALF OF THE PARLIAMENTARY

OCTOBER 2003

PUTTING OUR HOUSE IN ORDER DÁIL REFORM, PARLIAMENTARY OVERSIGHT AND GOVERNMENT ACCOUNTABILITY

Contents

INTRODUCTION 1

THE FUNCTIONS OF AND THE 4

LEGISLATIVE CHANGES TO UNDERPIN ACCOUNTABILITY 6

STANDING ORDERS REFORM 7 The role of 7

SPECIFIC AND URGENT REFORMS 11 Sessions and sittings: 11 Order of Business 12 Private Members Time 12 Questions 13 Legislation 15 Televising the Dáil 16 Publication of Attorney General’s Advice 18 Committees – European and Secondary Legislation 18

PARLIAMENTARY INQUIRIES 21

A PROPOSED AMENDMENT TO THE CONSTITUTION 22

A COMMITTEE OF INVESTIGATIONS, OVERSIGHT AND PETITIONS 24

OFFICE OF PARLIAMENTARY INVESTIGATOR 25

THE ISSUE OF COSTS 28

MINISTERIAL AND CIVIL SERVICE ACCOUNTABILITY 30 Civil servants and the Oireachtas 30 The Carltona doctrine – how departments are run 31 Public service management reform 32 Devolution of responsibility and parliamentary oversight 33

PROPOSALS FOR PARLIAMENTARY OVERSIGHT AND ACCOUNTABILITY 35

SUMMARY OF MAIN PROPOSALS 37 Legislative and Administrative Proposals 37 Standing Orders Reforms 37 Specific and Urgent Reforms 38 Parliamentary Inquiries 39 Ministerial and Civil Service Accountability 39 INTRODUCTION

Politics is, and must remain, the most accountable of all professions. There is no other job where the occupants face a judgement on their performance every few years, sometimes with devastating personal consequences. Cruel as it might seem, that is how it should be in a democracy. Politics must remain the property of the people.

Fewer and fewer people, however, feel a sense of ownership of their politics. There are many reasons for that, but not the least of them is the behaviour of a small number of individuals, and the making and breaking of rash promises by some political parties.

The practice of politics is not easily measured. Apart from the legislative role, our form of representational politics demands, rightly, a high degree of accessibility. Routinely, politicians carry out many hours of “invisible” work, dealing with problems brought to them by their constituents, attending functions and meetings in their constituencies, attempting to represent all the people who elected them to the best of their ability.

In their parliamentary work too politicians, especially those representing their parties as spokespersons, spend hours researching their briefs, preparing for their time in the chamber, developing policy ideas, writing press releases, and responding to local and national media queries. For all these reasons being a TD is not a conventional nine-to- five job, nor can the Dáil be regarded simply as a legislation factory.

It is commonplace to say nowadays that “all politicians are the same”. They are not. There are huge differences in allegiance, in political ideology, in values. Neither in politics nor in any other profession, the behaviour of some ought not unfairly to tarnish the reputation of all.

Nevertheless, all politicians represent people. They owe people their loyalty, their diligence, and, in the words of Edmund Burke, their “mature judgement and enlightened conscience”. The vast majority of politicians, irrespective of party, strive to live up to this commitment.

Despite all that, the perception of politics has become devalued in recent years. For that reason, if no other, radical, fundamental reform of the Houses of the Oireachtas has become a democratic imperative. The trust that people used to place in politics must be restored.

There are deeper issues than perception. Reform cannot stop at the door of . The principles and practices underpinning governmental accountability need change. Legislation – and constitutional measures - that give primacy to the public interest need to be a priority. The national parliament needs to be a modern and open workplace, with procedures that fit the times.

We have already published a document on reform of the Seanad, and this paper deals in the main with necessary and urgent Dáil reforms. Later, we will publish a detailed set of proposals on reform of .

The need for accountability in Government and in public administration has never been greater, and at the same time the effectiveness of parliament in securing that accountability is in serious decline. The need and the ability to investigate issues of major public concern, many of them arising from maladministration, mismanagement or neglect, has been overshadowed by the frequent delays, and associated costs, involved in such necessary investigations.

-1- What is frequently lost in the process is the opportunity to achieve the sense that a fresh start is being made. One example is the Flood/. Its good work has led to the unveiling of acts of corruption, but the very duration of the Tribunal and the enormous legal fees arising have robbed the community of the cathartic effect that such clearly expressed revelations should have.

At the same time, the ending of the dual mandate means that more parliamentarians are in a position to function as full-time national representatives – and we would argue that this should be the norm.

The advent of television cameras in the chambers of the Oireachtas has enabled members of the public to see for themselves - even if on a very limited basis - what is going on. Internet transcripts of Dáil debates are now available within Leinster House in a matter of hours and the full proceedings are available to the public on the following day on the web (although the records of committee work are still frequently unavailable). In short, our national parliament has never been more readily accessible.

But what goes on in parliament, under the increasingly disillusioned gaze of the public, fails to inspire trust. The way the people’s business is done is a major part of the problem. The Oireachtas operates on a set of procedural rules that were drafted in the 1920s and modelled on those of the Westminster Parliament. While society has changed to such an extent that the Members of the post-independence Dáil would find it virtually unrecognisable, they would find little difficulty in adapting to the current Dáil Standing Orders. The emphasis in those Standing Orders is on rules, procedure and precedent, on restrictions on Members, on upholding decorum and the dignity of parliament.

The irony is that the restrictions placed on Members and particularly the frequent inability to raise matters of importance at short notice have led to repeated clashes between Deputies and the Chair which pose the greatest threat of all to the decorum and dignity of parliament.

The structure of our sitting days still dates from an era when most Deputies took long hours to travel to Dublin; the exceptionally long summer recess is a relic of the time when the Dáil was dominated by people who had businesses, farms and professional practices to run, and for whom the task of representing the people was a part-time one.

The consequence is that when accountability is demanded, increasingly the last place people look for it is in their own parliament. This must change. If it does not, the cynicism and disillusionment already evident will deepen to the point where it begins to corrode our basic democratic values.

It is a given in politics, and true of all parties, that vocal proponents of change in opposition often become the stoutest defenders of precedent and tradition in government. But at a time when the political process in general has never been held in such low standing among the public, it is in the interests of all parties that we put our House in order by addressing the erosion of confidence.

We cannot shy away from the fundamental reforms necessary. Procedural reform is vital, and so is legislative change. Later in this paper we make the point that radically improved accountability cannot be secured simply by improvements to parliamentary procedure. It also requires a deep understanding of the workings of government and the public administration, and particularly the relationship between government and parliament.

-2- If full parliamentary accountability is to be secured from Government, we need to understand how government goes about its business, how it presents itself to the public and the Oireachtas, how it is managed internally, and so on. Parliament itself must play a significant role in carrying out investigations, to a far greater extent than has happened in the past. That too will require legislative and even constitutional change, and we set out possible models in this document.

In short, there is more to a system of true oversight and public accountability than the adversarial battles fought on a daily basis – as necessary as they frequently are. Accountability demands fairness and thoroughness, just as much as it demands honesty.

If we are to be serious about it, we have to recognise too that a truly accountable system will often be reflected in a parliament that goes about its business in a professional way. Politics, by its nature, is adversarial, because it is a fundamental aspect of the role of opposition to criticise and to point out alternatives. But frequently, and especially in developing an investigative role, the need for a non-partisan approach must be recognised too.

-3- THE FUNCTIONS OF PARLIAMENT AND THE SEPARATION OF POWERS

In the Westminster system of government, which we operate in Ireland, the prime minister and most of his or her ministers are drawn from the lower, popularly elected house of parliament. The government must have and retain the support of the majority of members in that house and is “responsible”1 to it.

The Oireachtas – sometimes the Dáil alone – is expected to play at least the following roles:

• it identifies who should form the government of the day

• it seeks to ensure that that government is accountable to the people

• it makes new laws

• it provides a public platform for discussion (and investigation) of major issues

• it approves the raising of taxes, and the way in which the money is spent

• it provides a public forum in which opposition parties can show whether they could form a good alternative government

• it watches, appraises and criticises the activities of government and the public service

• it provides a forum for individuals to raise issues and grievances indirectly through its members.  These parliamentary functions are performed within a constitutional framework that includes the doctrine of the separation of powers. The general constitutional theory of the separation of powers is well known. In essence, the theory boils down to three propositions.

1. There are three main functions of government: legislative, and judicial.

2. There are (or there should be) three main organs of government in a state: the , the executive and the .

3. To concentrate more than one class of function in any one person or organ of government is a threat to individual liberty.

So, for example, the executive should not be allowed to make laws or to adjudicate upon alleged breaches of the law; it should be confined to the executive functions of making and applying policy and general administration.

In fact, in Ireland, as in the , there is no full separation of powers. Both countries have Cabinet government within parliament – a parliamentary executive – and the blending of the executive and legislature is a fundamental characteristic of both our systems of government. Hogan and Morgan, in their work, Administrative Law in Ireland, refer to our system of parliamentary government as a “fused executive-legislature”.

1 Article 28.4.1 of the Constitution.

-4- The danger with the separation of powers system of classification, useful and all as it is, is that it may lead to the lazy conclusion that, if the Oireachtas is “the legislature”, then legislation is all it does. It is important to bear in mind that it as “the National Parliament” that the Constitution refers to the Oireachtas – not simply “the Legislature”. It may be that lawyers have become used to thinking of the Oireachtas solely in the context of the three powers of government recited in Article 6 of the Constitution: legislative, executive and judicial. But the Oireachtas has far more to do with its time than simply passing legislation, as the Constitution itself recognises. A way of thinking that describes the Oireachtas as “the Legislature”, as if to mean that legislation is all it does – or, more drastically, all it is capable of doing – would be entirely inadequate, by reference both to political reality as well as constitutional theory.

In a Westminster system of government a parliament has at least three main constitutional functions. One is making laws, the legislative function, which is carried out by both Houses of the Oireachtas. A second function, exercised by the Dáil alone, is controlling national expenditure and taxation. A third class of function comprises criticism of national policy, scrutiny of public administration and, to some limited extent at least, procuring the redress of individual grievances. (The redress of individual grievance is, for example, attempted when TDs ventilate the grievances of individuals, localities and groups by way of parliamentary question or in the course of debate – particularly the daily debates on the adjournment – and in direct correspondence with, or other representations to, the Minister or public body concerned.)

As Mr Justice Hugh O’Flaherty put it, in Attorney General v Hamilton (No 2)2:

“So while, undoubtedly, the essential function of deputies in this modern democratic state is to legislate, it should be emphasised that it is not their only function. They are also the representatives of those who elect them. Deputies have an obligation to air the concerns of their constituents and to draw attention to anything that is a matter of public unease or concern, and they must be allowed to do so in freedom, but each not neglecting to bring his individual judgement to bear on the issue in debate.”

And, far from carrying any derogatory connotations, as may have been intended, the description of public representatives as “going around persecuting civil servants” is one that refers to an entirely valid and proper aspect of their role.

Our firm belief is that oversight of public administration is a distinct, legitimate and inherent area of parliamentary activity in a constitutional system like ours, where the government is both in parliament and also accountable to parliament. It is an essential parliamentary task to hold the government and other public bodies to account to it, and through it to the public, for their actions.

2 [1993] 3IR 227, at p. 295

-5- LEGISLATIVE CHANGES TO UNDERPIN ACCOUNTABILITY

Later in this document we propose a constitutional amendment which would, among other things, remove the total imposition of cabinet confidentiality. Accountability demands openness, and we believe several new pieces of legislation are necessary to secure such openness. While the legislation we have in mind is not directly related to parliamentary reform, it is included here because each piece contributes directly to greater accountability.

• We will legislate on the issue of cabinet confidentiality, to ensure that it cannot be used to cover up necessary investigations.

• We will legislate to restore the Freedom of Information Act to what it was before it was filleted by the present Government, and we will extend its remit to the Garda Siochána.

• We will extend FoI, and the Ombudsman Act, to ensure that all statutory bodies, and all bodies significantly funded from the public purse, are covered.

• We will introduce Whistleblowers legislation.

• We will legislate to introduce spending limits for local and Presidential elections, and to reduce the ceilings for European and general elections.

• Given that it is not constitutionally feasible to abolish outright donations to political organisations, we will legislate to restrict contributions to political parties and candidates to €2,500 and €1,000 respectively, and to require disclosure of all aggregate sums above €1,500 and €600 respectively.

• We will repeal the Official Secrets Act, while retaining a criminal sanction only for breaches which involve a serious threat to public policy (affecting the international relations of the State, the conduct of a fair trial, national security and the like). We will retain a public interest defence in such cases.

• We will amend the Cabinet Procedures Instructions to require the Heads of Bills to be published when they are approved by government, so they can be debated by relevant Dáil Committees before final decisions are taken.

• We will introduce a statutory register of lobbyists, and rules concerning the practice of lobbying.

• We will amend the rules to ensure that no senior public servant (including political appointees) can work in the private sector in any area involving a potential conflict with their former area of public employment, until at least two years have elapsed after they have left the public service.

-6- STANDING ORDERS REFORM

The role of Ceann Comhairle

Theoretically the role of the Ceann Comhairle is to act as chair during debates and to see that the rules laid down by the House for the carrying on of its business are fairly implemented.

On his election to office, he makes the following declaration: “I do solemnly declare that I will duly and faithfully and to the best of my knowledge and ability, execute the office of Ceann Comhairle of Dáil Éireann without fear or favour, apply the rules as laid down by this House in an impartial and fair manner, maintain order and uphold the rights and privileges of members in accordance with the Constitution and the Standing Orders of Dáil Éireann.”

The reference to “the rules as laid down by this House” may come as a surprise to observers, researchers and even members, who can find no reference in standing orders to many of the rules applied by the Ceann Comhairle. There is a simple but entirely unsatisfactory reason for this.

The English Houses of Parliament date in a recognisable form from the 13th century and their rules and procedures have developed, notwithstanding civil war and revolution, over many centuries. In the House of Commons, the has the role of a judge. His or her “common law”, or unwritten rules, derive from ancient custom and precedent, encapsulated in the rulings of previous speakers. This is in much the same way that a judge sitting in a court of law refers to previous judgments to find authoritative statements of the rules of common law.

To follow the analogy, the standing orders of the House of Commons are equivalent to statutes which, on a traditional view, are enacted only where the common law proves to be inadequate and needs to be updated. A statute replaces previous common law rules applicable to the same subject matter.

In Westminster, therefore, the standing orders of the Commons do not constitute a coherent or comprehensive code of rules applicable to that House. They are instead a series of incremental changes to a body of rules that remain unwritten, except in the form of previous rulings from the Chair.

It follows that someone who wanted to find out how the House of Commons was run would acquire a piecemeal and partial impression if he confined his studies to the standing orders of that House. In much the same way, a company director who wanted to find out what duties the law imposed on directors would be seriously misled if he concentrated only on the Companies Acts.

From an Irish point of view, that state of affairs at Westminster should be interesting, perhaps, but not very relevant. Article 15.10 of the Constitution requires each House of the Oireachtas to make its own rules and standing orders. One would imagine that they would have done so. Instead, an adapted and somewhat simplified version of the standing orders of the House of Commons was drawn up and adopted by the Dáil. These standing orders, as amended from time to time, suffer from precisely the same defect as the original they seek to imitate – they are incomplete. And, in the Irish context, they can be understood only by reference, not to the previous rulings of the chair of the Irish House, but by reference to the custom and practice of the House of Commons.

-7- It must be very doubtful whether the present situation amounts to an adequate performance of the constitutional obligation imposed on the Dáil to “make its own rules and standing orders”.

Some British traditions, if they don’t suit, are not followed. The Speaker of the House of Commons must be above party political controversy and must be seen to be completely impartial in all public matters. Accordingly, on election the Speaker resigns from his or her political party. We would argue that in normal circumstances there should be a preference for selecting a Ceann Comhairle from among longer-standing members of the opposition.

Certain limited functions of the Ceann Comhairle derive directly from standing orders. He must preserve order in the House, and ensure that the rules of debate are observed3. He has the power to suspend the sitting in the case of grave general disorder4. In the case of wilful disobedience, the Ceann Comhairle can suspend a member from the House for a day5 or invite the House to approve expulsion for a longer period6. He is also given discretion on a number of matters. Examples include decisions as to whether an application for an emergency debate should be allowed and whether to allow an urgent question.

But the present arrangement has very uncertain foundations. In particular, there is no standing order or rule adopted by the Dáil spelling out the function and role of the Ceann Comhairle (other than that he is the judge of order and has authority to suppress disorder in the course of debate); giving precedent status to his rulings on questions of procedure; or providing a mechanism for those rulings to be set aside.

In other words, instead of the Dáil making its own rules and standing orders, as the Constitution requires, it acquiesces in a state of affairs where it is to a large extent governed by rules which it has never made, emanating from a source to which it has never given rule-making authority.

As an example, an experiment on Leaders’ Questions to the , as part of the Order of Business, was initiated and then discontinued by a previous Ceann Comhairle. Although the experiment was worthwhile and a revised version has recently been adopted by the Dáil, the fact remains that the experiment was entirely unauthorised: in fact it amounted to a breach of standing orders.

The absence of a codified set of rules for the Houses is the reason for much of the dissatisfaction expressed by their members – and much of the confusion facing members of the public who follow proceedings. For example, parliamentary questions ought to be tools that can be used by members to seek information or press for action. They should oblige ministers to explain and defend the work, policy decisions and actions of their departments.

But, again to revert to British parliamentary history, the question procedure predates standing orders7 and is not adequately dealt with by them. So, although standing orders

3 S.O. 59. 4 S.O. 62. 5 S.O. 60. 6 S.O.s 60 and 61. 7 It is generally thought that the first recorded Question was put in the . In 1721 Earl Cowper asked the Government whether there was any truth in the report that the Chief Cashier of the South Sea Company, Robert Knight, had fled the country and had been arrested in Brussels. A reply providing the facts of the case was given by the Earl of Sunderland, the Prime Minister of the day.

-8- include rules as to how to ask questions and set out certain stipulations – they must be relevant8 and must seek to elicit information upon, or to elucidate, matters of fact or of policy and must be as brief as possible9 – there are no rules as to how questions must be answered by ministers and the chair has consistently declared itself to be powerless in this regard.

In a parliamentary assembly where the ideas of public oversight and Government accountability were taken seriously, the rules would set out not only how to ask a question but also how it must be answered.

Again, the ministerial code of conduct provides that – “Office holders who are members of the Houses of the Oireachtas are accountable to the Houses of the Oireachtas in accordance with the arrangements set out in the Constitution or in the Standing Orders of the respective Houses. It is of paramount importance that office holders give accurate and truthful information to the Houses of the Oireachtas, correcting any inadvertent error at the earliest opportunity.”

But this code was drawn up for the purposes of the Standards in Public Office Act, is not policed by the Dáil and does not form part of its domestic architecture. The reference to ministers being accountable to the Houses “in accordance with the arrangements set out in … the Standing Orders of the respective Houses” remains meaningless so long as those standing orders contain no provision whatsoever imposing a duty of accountability on ministers.

What is needed, therefore, is not further incremental reform to standing orders but a fundamental redrafting. The re-drafters would, first, examine the various unwritten rules and practices, discard those that no longer serve a useful purpose and reduce the rest to writing. Second, and more importantly, they would consider those aspects of the parliamentary function – in particular the function of oversight – for which at present no adequate provision is made and they would draw up statements of principle defining the nature of the relationship between Government and the Oireachtas, and the obligations flowing from that, for inclusion within the codified rules.

Matters to be covered would include:

• The responsibility of the Ceann Comhairle in ensuring that the interests of members and the public interest are fully protected • The obligation on ministers to ensure that questions are answered properly and fully (including an obligation to provide redress or correction if the House is misled),10 and rules covering the standard of reply. • A real responsibility to allow space for discussion of genuinely urgent matters, especially those involving a wider public interest, when there would be a reasonable expectation that the matter would be publicly discussed • Rules covering the passage of legislation to ensure that all matters covered by bills are fully debated, including limits to the use of guillotine motions.

8 S.O. 33. 9 S.O. 34 (2). Other rules are applied which are not found in standing orders at all: for example, that questions seeking an opinion on a question of law are not in order. 10 Bizarrely, it is not a breach of any standing order to mislead either house, whether intentionally or otherwise.

-9- • Changes to the rules of debate, to allow far more interchange between members, and to make it obligatory on members, including ministers, to “yield” to reasonable interventions and questions from the floor.

A feature of the Dáil’s method of organising itself is that any attempt to change it, either in general terms or in relation to one particular matter, requires the tabling of a “substantive motion”. If a member objects to a particular item or ruling, he or she is told that it can of course be changed if the member tables a motion to that effect. But since the combined parties in opposition can debate and bring to a vote only one substantive motion each week, they are unlikely to “waste” that opportunity for debate on an item of procedural business.

Time should be routinely available for the tabling and debate of procedural and business motions without eating into either Government or Private Members’ Business, which should relate to the business of the nation rather than the internal running of the House.

-10- SPECIFIC AND URGENT REFORMS

In the context of an extensive revision of the Standing Orders of the Dáil (dealt with in the previous section), some specific areas demand priority and immediate attention.

Sessions and sittings:

Prior to the last summer recess, the Dáil sat for just 60 days. There are likely to be around another 33 sitting days before Christmas bringing the total for 2003 to 93. This is actually fewer than in the late eighties and early nineties when, largely as a result of Friday sittings, the annual average was around 100 days.

It must be emphasised again, of course, that much more business in now conducted through Committees which meet as required all year round (other than the month of August).

Having regard to the fact that many deputies, even in the absence of the dual mandate, face a considerable travel burden, we are proposing that Dáil Eireann should meet four days a week, every week when it is in session, and that the working hours of the Dáil on all sitting days should more closely resemble normal business hours. For instance, if the Dáil sat from 10.30am to 7.00pm on Tuesday to Thursday and 10.30am to 4.30pm on Friday, it would give a total of 30 sitting hours, an increase of almost one third over the existing level. This would also give adequate time for preparation for members speaking in the House.

Apart from sitting times, the houses of parliament should be open for business on a normal professional basis. There should be full access from 8 am Monday to Friday and on Saturdays.

Longer hours for plenary sessions and shorter recesses would not only increase the time available for government business, thus reducing the need for 'guillotines', but would also make extra time available for oral questions, for private members time, for adjournment debates, and for dealing with special issues.

The length of the recesses should be reduced, but this should be accompanied by a revamping of the way in which business is organised. The summer recess should be no longer than six weeks with significantly reduced breaks at Easter and Christmas. The practice of taking a full week at St Patrick’s Day and Halloween should be ended. The net effect of these changes would be to increase the number of plenary days by 50%.

The Labour Party is not opposed in principle to dedicating one week out of every four primarily to committee work. However, this should not result in or require the abandonment of all other Dáil business.

In particular it is essential that on a committee week the Dáil would still assemble in the normal way for the Order of Business, where the list of committee meetings would be read out by the Ceann Comhairle. Following that there should be Leaders Questions and/ or the revised 'matters of topical interest', The Dáil would then adjourn its plenary session and members would be free to concentrate on committee work for that week. The Dáil Chamber should be used for committee meetings during this week, as indeed it should be used when the Dáil is in recess.

Committees could still meet as required in plenary weeks, but the aim would be to concentrate as much business as possible in the committee week.

-11- Order of Business

Few items of Dáil business are more inappropriately named, featuring as it does far more disorder than order. The matters specified in Standing Orders 26 that can validly be raised under the Order of Business are extremely limited. Standing Order 26 says that questions are permitted ‘about the taking of business which has been promised, including legislation promised either within or outside the Dáil; about the making of secondary legislation; about arrangements for sittings; and as to when Bills or other documents on the Order Paper needed in the House will be circulated’.

However, it offers the only opportunity for Deputies to try to raise matters of current interest or controversy and provides the only real element of spontaneity in the Dáil day. Apart from Leader questions, it is the only business that attracts any significant media presence. Opposition Deputies invariably try to circumvent, bend or simply ignore the relevant Standing Order to raise matters of current interest. This leads to clashes as the Chair tries to enforce a strict interpretation of the Standing Order.

However, it is not just the opposition that tries to get around the Standing Order. The Government, through the Taoiseach will, on some occasions, wish to intervene to make its position clear or to respond to some point raised. In those cases the Chair will normally allow a statement from the Taoiseach and usually a response from the Opposition leaders. The reality therefore is that where the opposition ask a question or seek a statement if the government regards it to be in their interests they will respond, but if they do not wish to respond there is no mechanism to require them to do so.

This should be changed, to introduce a very strict interpretation of the Standing Order 26 with a specified time limit (not including any time for votes) for issues strictly on the Order of Business, but to also provide for a separate period of time (15/20 minutes), taken immediately after the Order of Business where Deputies could raise topical matters of interest with the Taoiseach or any Minister. Ministers would be expected to reply there and then, but it would have to be accepted that there might be occasions where a Minister would have to check details of a particular matter and in such a case he or she would have to reply in the House on the following day.

The Taoiseach, as leader of the government, should be present as a matter of course for the Order of Business. In the unavoidable absence of the Taoiseach on official business, the Tanaiste should be present.

Private Members Time

While there have been reforms in a number of areas of Dáil business over the last ten or 15 years, Private Members Time has remained unchanged for decades.

The present situation is not satisfactory in that opposition parties and groups do not have sufficient time to deal with all of the issues that they would wish to raise and, of course, government have no opportunity to promote Bills or motions at all. In addition, in regard to the initiation of legislation, there are severe restrictions on the type of that an opposition member may introduce. At the dissolution of the 28th Dáil, the Labour Party had more than 20 Private Members Bills on the Order Paper yet under the existing arrangements, there was never a prospect of having more than a handful of these debated.

In the 1920s when the total sitting hours were considerably shorter, there was actually more time (4 hours) allocated to Private Members Business than at present (3 hours), although Private Members time was not taken every week.

-12- If the sitting hours are to be extended, there is an unanswerable case for extending the time available for Private Members Time. One option would be to allow the remaining Private Members structure to remain in place, but to provide additional time that would be available to individual deputies – both government and opposition.

If a primary role of members of the Dáil is to legislate, why should so few members of the Dáil ever have the opportunity to initiate legislation and why should government backbenchers be totally excluded from the process? The right of individual members to initiate legislation is the norm in many , even if the prospect of seeing it through to final enactment is limited.

Indeed priority should be given in the additional private members time to legislation rather than motions. One Bill would be taken each week, with the time divided between opponents and proponents of a Bill (rather than on a strictly whipped party basis). If the Bill was opposed by the government, the vote could be deferred to a time when there would be greater numbers available to vote. If the government did not oppose a Bill, it would go to Committee in the normal way, but would have to take its place in the queue for time.

There would be a lottery (perhaps at the beginning of each session) which would determine the order in which Bills would be taken. Each Deputy could only have one item in the lottery at any particular time. The lottery would be open to all Deputies, government and opposition.

The proposal, if accepted, would provide new opportunities for Deputies of all parties to initiate and promote individual pieces of legislation they consider to be of importance. It would give backbenchers a new role without creating any undue problems for the government of the day.

It will be necessary in this case (and would be desirable in any case) to relax the present rules that drastically limit the ability of parties or members to present more than one bill without the consent of the Dáil.

The blanket rule which prohibits any private members bill (or amendments to Government bills) that impose a charge on the public purse should be replaced with a more reasonable provision, that allows minor charges, or a more significant charge subject to the consent of the Minister for Finance.

Questions

More oral questions than ever before are being tabled in Dáil Eireann, but the proportion being answered on the floor of the House continues to decrease. All questions to the Taoiseach ruled in order by the Ceann Comhairle are eventually replied to in the Chamber (in a fashion) because they remain on the Order Paper until they are disposed of. However, because of the priority question system and the rota, only a tiny proportion of oral questions are actually answered orally.

In a recent Dáil week, for instance, just 17 of 198 ordinary oral questions (8.5%) were replied to verbally by the relevant Minister. More than 90% of the questions tabled for oral reply, were not replied to orally. While written replies are provided in respect of oral questions not reached, these are generally of little value. Apart from Priority Questions which are restricted to the relevant spokespersons of , Labour and the Technical Group, most Deputies have little or no chance of having an oral question replied to on the floor of the House. Ironically it is easier to have an oral question replied to by the Taoiseach than any other Minister.

-13-

The total time allocated for Oral Questions each week is as follows: Taoiseach - 90 minutes: Priority Questions to Other Ministers - 90 minutes: Ordinary Questions to Other Ministers – 120. In principle, with six minutes allocated for each question, this should allow for 20 ordinary questions to be answered each week but, as can be seen from the figures above, this rarely happens. In addition, the time for ordinary questions can be reduced even further if a Private Notice Question is taken on Thursday.

Given the rota system, Ministers may have to answer questions orally only twice or three times per session, so key Ministers may end up having to take as few as ten ordinary oral questions in an entire Dáil session. This is clearly unsatisfactory and limits the ability of the Dáil to discharge its duty under Article 28.4. to hold the government accountable.

The priority question system gives pole position to the spokespersons for the main opposition parties and groups, but severely limits the capacity of other Deputies to play a meaningful role in .

When the priority question system was introduced in 1985, the theory was that the party spokespersons would be happy with the priority slot and the rest of the time could then be left to other Deputies on the lottery basis. In fact what happened was that spokespeople began to submit questions in the names of other Deputies and this practice was later formalised under the “questions nominated” procedure.

However, because the sequence of the questions is determined by lottery, there is an incentive to submit the maximum number of questions possible. The more questions you have in, the better chance you have of having some drawn high enough to ensure that they may be answered in the Chamber. The result is an excessive number of questions to which Departments prepare “Sir Humphrey” type answers, knowing that they are not going to be reached for oral reply. The Labour Party frequently submits up to 40 questions in this way. Fine Gael could, in theory, submit more than 60.

With the longer sitting hours proposed additional time should be made available for ordinary oral questions. There is also a strong case for seeking to reduce the number of oral questions going in to ensure that a higher proportion are properly replied to. While the priority question system should be left as it is, the number of ordinary oral questions which individual Deputies can table should be reduced from two to one. The practice of nominating questions should be ended. In addition to the priority questions, a spokesperson for a recognised group should be entitled to submit say 6 questions in their own name which would go into the lottery with the individual questions submitted by other Deputies. However, the spokesperson should be able to determine the order in which his or her six questions would be taken. In addition questions should only be replied to orally if the spokesperson or Deputy is present in the Chamber when they are reached.

The right to ask parliamentary questions is one of the significant powers still open to Dáil Deputies. Despite the flaws in the system, Question Time should remain a central part of business on each day the Dáil sits. There should be at least one and half hours set aside each sitting day for oral questions to individual members (other than the Taoiseach) of which 30 minutes should be allocated to priority questions and 60 minutes to ordinary orals.

There should also be provision for the tabling of written questions when the Dáil is not in session. This has been proposed on a number of occasions but has never actually been implemented. A longer period of time could be given for the reply and the replies could be published in a supplement to the Dáil Reports, every two weeks or so.

-14-

There is also a need for greater clarity as to the answerability of a Minister to the Dáil. There is a growing feeling that Ministers are now sheltering behind the rapidly increasing array of “quangos”, committees or councils. It is not satisfactory that the Taoiseach should be able to make speeches on public policy issues or to meet with bodies, but that Deputies are unable to question him about these matters. The most bizarre example of this in recent times is the transfer of questions to the Taoiseach about his meeting with the Irish League of Credit Unions during the lifetime of the last Dáil. The Minister for Finance had fallen out with the League and was refusing to meet them. Eventually the Taoiseach agreed to meet the League. However, when a question was subsequently tabled to the Taoiseach on his meeting with the League, it was transferred to be replied to by the Minister for Finance who was not present at the meeting!

Neither is it acceptable that a Minister should be able to say that he has no responsibility to the Dáil for policy commitments given in the Programme for Government on the grounds that these are the responsibility of the Irish Sports Council or some other such body.

We will introduce a written parliamentary question procedure applying to statutory bodies performing functions under the direct aegis of Government Departments, including CIE, the ESB, the VHI, and so on. The chief executive of such a body would be required to submit a written reply to a question within a specified time limit and the reply would be published in the normal way. In addition, CEOs would be required to attend before the relevant Oireachtas committee, in order to answer oral questions.

As long as there are rules and Standing Orders, there will always be questions which will be ruled out of order. However, the balance is now tilted unfairly towards government and against Deputies trying to pursue matters of legitimate interest. There must be a more rational basis for determining which questions are allowed and which are not. One simple reform that should be introduced is that questions disallowed by the Ceann Comhairle should be listed in an appendix to the Order Paper.

Legislation

The legislative process is the most important function the Dáil undertakes, yet it is the most frustrating aspect of Dáil business for many Deputies. To properly perform their function as legislators, all Deputies, but especially front-bench spokespersons, need far more research, advice and back-up than is generally available. The imposition of guillotines and deadlines, especially in respect of important items of legislation, mean that entire sections of Bills are frequently not subjected to detailed scrutiny.

Indeed, the increasingly prevalent use of the guillotine, which can mean that important items become the law of the land without ever being debated, discussed, or voted on, is becoming an abuse of the democratic process. The Standing Orders of the Dáil should make it clear that guillotines can only be used in rare and exceptional circumstances, and with the consent of the Ceann Comhairle.

Some progress has been made in regard to setting out a programme of legislative work for each session, but in general Deputies don't know until Thursday, when the schedule becomes available, what business will be taken during the following week. It is not unusual for pieces of legislation to sit on the Order Paper for months without the Second Stage even being started, while on other occasions Bills are produced and taken within days, with little or no time for analysis or preparation.

-15- The government should be required at the end of each recess to set out its legislative programme for the coming session. Other than in emergency situations (which would require a motion of the House), there should be a lapse of at least two weeks between the publication of legislation and the commencement of debate to allow for proper research and preparation.

While there is a range of views about the adequacy of the time allocated for speaking slots, some greater degree of flexibility is required. On occasion, extra time will be allocated for the opening speakers on major pieces of legislation (e.g. the Finance Bill, the Planning Bill) but in general the same time is allocated to speakers (30 minutes for opening speakers, 20 minutes for others) regardless of whether it is a simple, non- controversial, single section Bill, or a lengthy piece of legislation running to more than a hundred sections with major implications across society.

Much serious legislative work is undertaken at Committee stages of legislation, often without ever being noticed. Deputies who are not members of particular committees can be excluded from playing an active part in the Committee Stage of a Bill, even though they may have a particular interest or expertise in the subject matter of a particular piece of legislation. There is also dissatisfaction about the restrictions on the scope of amendments that may be tabled.

There are a number of simple reforms that could be made that would make the legislative work of the Committees more effective and accessible. In particular we propose the following:

- Any Deputy should be entitled to circulate an amendment to a Bill in select committee, even if they are not a member of the committee.

- The rule that an amendment is out of order on the grounds of being 'outside the scope of the Bill' should be relaxed and replaced with a provision that the amendment must relate to the general subject of the Bill.

- A select committee should be permitted to make any amendment to a Bill, including its title, and the requirement for an instruction to committee should be removed.

- It should be possible for any amendment defeated in a Committee of the whole House to be moved again at Report Stage on a restricted speaker only (e.g. only the proposer and the Minister).

Televising the Dáil

In common with the situation in most countries most Irish people understandably have but the most limited capacity to attend and witness live the proceedings of parliament, whether the plenary proceedings of either chamber or the proceedings of the very many committees of either or both houses. In contrast with the situation in many countries Irish people have equally limited capacity to see or listen to parliamentary proceedings on the broadcast media.

In some countries the broadcasting of parliamentary proceedings is long established. In New Zealand for example, radio broadcasts of parliamentary proceedings commenced in 1936 while in , radio broadcasts from the Federal parliament commenced in 1946. In 1988, Australia established a radio service devoted exclusively to the broadcasting of Federal parliamentary proceedings. This has since been absorbed into a 24-hour news radio service, ABC NewsRadio. Televising of the Australian began in 1990 with broadcasting of the House of Representatives following in 1991.

-16- Since 1991 in Canada commercial cable companies operating as a consortium provide their subscribers with dedicated coverage of the national parliament – prior to 1991 this service was operated by CBC, which that year had to suspend its service because of financial cut-backs. More than a million Canadians a day tune in to cable television networks to watch House of Commons and parliamentary committee meetings.

Since 1979 Americans have had access to a dedicated service, C-SPAN, providing “gavel-to-gavel” coverage of both the Senate and the House of Representatives, initially on television but now also on radio. The C-SPAN network also broadcasts parliamentary committees as well as providing general public and current affairs coverage including educational programming. An estimated 85m US homes receive C-SPAN, which like the Canadian service is provided by a consortium of cable operators. It is a not-for-profit service, receiving no public funding, provided in the public interest.

Ireland clearly lags far behind in all of this. Ireland comes from a different tradition – one similar to that of the UK and one of resistance on the part of parliamentarians to the idea of broadcasting of their proceedings, and also slowness on the part of public broadcasters to take on board their responsibilities in this area. Recorded coverage, whether on radio or television is poor and live coverage is virtually unknown with, to the extent that it has developed, the way being led by TG4, formerly Teilifis na Gaeilge. This organisation’s televising daily, live of the proceedings of the DIRT Inquiry was a major milestone in the history of parliamentary broadcasting, not since repeated by any of the other broadcasters on anything like the same scale.

Today, the internet, broadband and digital broadcasting offer new possibilities that are being exploited in many countries including the UK, but not in Ireland. The UK has used the development of the internet, broadband and digital broadcasting to vastly expand parliamentary coverage. We in Ireland can, through the internet, watch or listen live to parliamentary proceedings from Canada, the US, New Zealand and Australia, Westminster and many other parliaments. Yet our access to our own extensive parliamentary proceedings – plenary and committee – are virtually inaccessible. In parliament, elected public representatives make decisions and debate issues that directly affect the lives of citizens.

In very many countries the ability to watch and listen as legislation is debated and policies argued over has been dramatically extended from the relative handful of people who can sit in public galleries to virtually the entire nation through the media of radio, television and now the Internet. People today are therefore better able to assess for themselves the performance of their elected parliamentarians and governments – but not in Ireland. Greater involvement is essential for the advancement of the democratic process and for the development of a society that both understands and cherishes the rights that democracy preserves.

The proceedings of the Houses of the Oireachtas should be broadcast (on radio and television) in a much more comprehensive way than at present. It ought to be possible for the public to make their own judgements as to the merits of any row that occurs, and it ought to be possible for (for example) interviews to be conducted within the precincts of the building.

There is a pressing need for more extensive coverage of the committees of the Houses.

A dedicated Oireachtas channel ought to be considered, but it should not be constrained to broadcasting only sessions of parliament or committee meetings. There should be room for much more explanation and interpretation of the work going on, as is the case with C-SPAN, and better access by journalists to the services of the channel.

-17- This government’s professed commitment to so-called e-government is hollow indeed in the absence of any initiative on its part to fund the development of an internet radio service providing comprehensive coverage of parliamentary life as well as video streaming of the chambers and the committee rooms. The basic resources are already in place, much of the investment has been made. The Oireachtas has a broadcasting service, the Oireachtas Broadcasting Unit and Leinster House TV (LHTV). Professional staff are employed to operate these facilities. The proceedings of the DIRT Inquiry were streamed live on the internet as have some recent budget day speeches.

Publication of Attorney General’s Advice

Like any other client, the Government and its members have a privileged lawyer/client relationship with its lawyer, the Attorney General. In most circumstances connected with litigation, this is understandable and necessary, and we would not advocate departure from the practice in normal circumstances.

But the Attorney does a lot more than advice on litigation. In particular, he is very much involved in advising on matters that are or will become items of parliamentary business, particularly legislation.

In these cases it is unsatisfactory that the Government will announce a particular approach to an issue, state that it is grounded on legal advice and then refuse to produce that advice or even a précis of it.

If the advice of the Attorney General is publicly relied upon as justifying or necessitating a particular course of action adopted by the Government or by a minister, privilege should not preclude the publication of a summary of the arguments as they relate to –

● the development of a legislative proposal by the government, a minister of the government or a minister of state, or by any other member of the Dáil or Seanad,

● the introduction of a Bill or resolution in either House of the Oireachtas or the passage, defeat or amendment of a Bill or resolution in either House,

● the making, revocation or amendment of a statutory instrument, or

● the development or amendment of a policy or programme of a public body, unless the advice is given in the course of litigation or in relation to pending or contemplated litigation. Appropriate provision would be taken for the protection of commercially sensitive information and information to do with private individuals, national security, the detection and prosecution of crime, and so on.

Oireachtas Committees – European and Secondary Legislation

Reports of committees are rarely considered by the Houses, nor is their progress monitored. To take an extreme example, the Labour Party’s Whistleblower Protection Bill was introduced into the Dáil on the 24th March, 1999. The Government accepted the Bill “in principle” and it passed its second stage in the Dáil and was referred to the Select Committee on Enterprise and Small Business on the 6th June of that year. Since then, although it has survived a Dáil dissolution – it was the only item of non-Government business restored to the Dáil’s Order Paper after the general election – there has been no movement whatsoever. For more than three years, the Bill has existed simply as a committee agenda item that is never reached.

-18- And it is impossible in the Dáil to raise the Bill or the Government’s intentions in relation to it, because one is told that the matter is with a committee.

The parliamentary timetable is at present divided between government business and private members’ business, which is allocated between opposition parties according to rota. There should in addition be a separate time routinely allocated to committee business, during which committee reports are debated and the course of action proposed in the reports considered and, if appropriate, amended. The response of the Minister to the committee report would be heard in the course of debate. The debate would conclude with a vote – in other words, it would not be simply a matter of reading pre-prepared statements, requiring no action.

The debate and vote on each committee’s annual report would provide the opportunity for considering the workload of each committee and the nature and extent of their exertions.

Following the passing, on foot of a Labour Party initiative, of the European Union (Scrutiny) Act, there is potential for a far greater degree of Oireachtas scrutiny of proposals for European law while they are still at the preparatory stage. This is important work that goes some way towards curing the “democratic deficit” within the EU that has been identified by politicians and commentators of all political persuasions.

The European Affairs Committee acts as a clearing house for this work, sending particular proposed legislation to the relevant sectoral committee of the Oireachtas. While the new system has not been running for a sufficiently long time to enable a detailed critique, it is clear that the amount and complexity of this work will require additional research and advisory services for the committees.

A sign that the committee is working properly and has had an effect on Government thinking will be if it successfully insists that major items of EU law are incorporated into domestic Irish law by way of primary legislation – Acts of the Oireachtas debated, amended and voted on in public – rather than by way of Ministerial order, as has so regularly been the case up to now.

A connected issue is the failure of the Oireachtas adequately to monitor the great mass of legislation that is made by way of “statutory instrument”, the orders, regulations, rules, schemes and bye-laws made by Ministers in the exercise of powers conferred by statute. In 1998, the Oireachtas passed 54 Acts. In the same year, Ministers made 573 statutory instruments. A very small number of those S.I.s require Oireachtas approval before they can be made. A larger number can be annulled by resolution of either House within 21 sittings days from the date they were made. The remainder are not subject to Oireachtas scrutiny or supervision at all.

This raises a constitutional issue about the propriety of the Oireachtas delegating its law- making powers. The courts have held that S.I.s must be concerned merely with matters of detail and that governing statements of principle and policy must be found in the parent legislation. Part of the Aliens Act, 1935, was struck down in the Laurentieu case because that Act conferred enormous discretionary powers on the Minister for Justice, to control the immigration and residence of non-citizens by way of statutory instrument, without any statement of principle or policy at all.

We would overhaul the legislative provisions empowering ministers to make regulations so as to ensure that in any case where regulations would have a significant effect on the rights of individuals, such regulations would require to be approved in draft by the Dáil before being made.

-19- Arrangements would be put in place to ensure that such approval could not be given without debate. In addition, all ministerial regulations should be published and the exemptions to that rule set out in the Statutory Instruments Act will be repealed.

One could not argue that every S.I. requires debate in the Dáil. Many of them deal with detailed matters of mechanics and procedure. But others deal with issues of considerable importance and public interest. For the last 80 years, for example, the Revenue Commissioners have been operating without any parent legislation. They owe their existence to a statutory instrument, the Revenue Commissioners Order, 1923 (S.I. No. 2 of 1923), made under the Adaptation of Enactments Act, 1922. That order had to be laid before both Houses but did not have to be approved by either of them.

There was previously a single Oireachtas committee to consider all secondary legislation. Nowadays the review of S.I.s falls within the remit of each relevant sectoral committee. But committee members do not get to hear of S.I.s being made any sooner than a member of the public. We propose a legal requirement that the appropriate committee be notified of the making of a statutory instrument immediately on its publication and be given an explanatory memorandum by the parent Department. Further, the decision of a committee to consider a particular statutory instrument would stop the 21 day time limit from running until it has concluded its considerations and reported to the Houses.

-20- PARLIAMENTARY INQUIRIES

At the heart of the DIRT scandal was an example of a failure of accountability in the system of government, including the role of parliament. The inquiry of the Public Accounts Committee into DIRT evasion and the various tribunals established by the Houses of the Oireachtas in recent years, as well as other inquiries such as those instituted by the Ombudsman, arise from such breakdowns becoming apparent.

These various types of inquiry are exercises in establishing precise facts in particular circumstances with a view to undertaking reforms that reduce the prospect of repetition and generally improve the performance of government.

In our system of parliamentary democracy and government we can think of parliament, the executive, the system of administration (what is widely referred to as “the permanent government”), the judiciary and the courts as constituting various “departments of politics”. These departments constitute an interactive system of institutions, rules, procedures, laws and norms that function as “checks and balances” based on principles of separation of powers.

This system is intended to work to ensure accountability and scrutiny; checks on the abuse of power, mismanagement and misconduct; secure ethical behaviour, integrity of action and rights of redress – “good government” in the broad sense.

The history of the last century, in terms of public administration, has been one of massive expansion in the role of the State, through its executive, through the raft of public bodies that operate under the general aegis of the executive and through other bodies which operate entirely independent of the executive. It has been both natural and right that the courts have developed an expanded role in reaction to this phenomenon, primarily, and particularly since the 1970s, though the process of .

It is a vital safeguard for the rights of ordinary citizens, when faced with the overwhelming powers and resources of the State, that the courts are in a position to intervene in order to confine public bodies to acting within their jurisdiction and to restrain the performance of unlawful actions.

But, inevitably, the growth in executive competence and action, coupled with the increased vigilance of the courts in policing the lawfulness of public administration, has led to a generally perceived decline in the relevance of the third branch of government, the national parliament. Apart from retaining a formal role in electing the government and in assenting to government proposals for legislation, the two Houses of the Oireachtas are in genuine danger of being relegated to the status of a reasonably well paid and well staffed talking shop, whose members sound off on various of the issues of the day, without any real input into either the formulation of public policy or the scrutiny of its execution.

We have already stated our belief that it should be a function of the National Parliament to engage in oversight of public administration, both in general terms and, through its committees, by way of detailed scrutiny. As a result of recent Supreme Court judgements arising from the Abbeylara case, and the knock-on effects of those judgements for the mini-CTC inquiry, it is clear that if parliamentary inquiries are to be effective, constitutional change is probably necessary. The Law Reform Commission, in its discussion paper on Public Inquiries, effectively supports this view.

-21- A PROPOSED AMENDMENT TO THE CONSTITUTION

Article 28.4 of our Constitution reads as follows.

1° The Government shall be responsible to Dáil Éireann.

2° The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government.

3° The confidentiality of discussions at meetings of the Government shall be respected in all circumstances save only where the determines that disclosure should be made in respect of a particular matter –

i in the interests of the administration of justice by a Court, or

ii by virtue of an overriding public interest, pursuant to an application in that behalf by a tribunal appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public importance.

One defect of the present wording is that, although it provides for the doctrine of collective Government responsibility, it is, as will be dealt with later, silent on the equally if not more important doctrine of individual ministerial responsibility to the Dáil.

A second defect is its provisions in relation to Cabinet confidentiality, an unhappy attempt to enshrine in the Constitution an exception to a rule that is not itself found in the Constitution – a rule with which, in any event, a majority of the present Supreme Court might well not agree.

The third defect is that the present text makes no provision for exercise of powers of inquiry by the Houses of the Oireachtas through their committees in discharge of their function of oversight and the securing of Government accountability.

Even if the judgments in the Abbeylara case leave enough “wriggle room” to enable inquiries to be restored by ordinary legislation, we are convinced that a statement of principle along the lines we propose is of sufficient importance to justify its inclusion within the text of the Constitution. As the Supreme Court stated in In re Article 26 and the Criminal Law (Jurisdiction) Bill, 197511:

“It is true that the Constitution is a legal document, but it is a fundamental one which establishes the State and it expresses not only legal norms but basic doctrines of political and social theory … The Constitution contains more than legal rules: it reflects, in part, aspirations and aims and expresses the political theories on which the people acted when they enacted the Constitution.”

11 [1977] IR 129.

-22- We would, therefore, put to the people for their approval an amendment to Article 28.4 along the following lines.

1° The Government, its members and their officers and all others with responsibility for administering the public services of the State are trustees and servants of the People and shall be at all times accountable to their representatives.

2° The Government shall meet and act as a collective authority and shall be collectively responsible to Dáil Éireann. In addition, each member of the Government who has charge of a Department of State shall be individually responsible to Dáil Éireann for the administration by that member of that Department.

3° Provision shall be made by law enabling Dáil Éireann, in any matter stated by it to be of public importance, to inquire into and report upon an exercise of the executive power of the State or in relation to the administration of any of its public services.

4° The confidentiality of discussions at meetings of the Government shall be regulated in accordance with law.

-23- A COMMITTEE OF INVESTIGATIONS, OVERSIGHT AND PETITIONS

There is considerable and understandable public disquiet at the duration of a good many public tribunals of inquiry. Notwithstanding that, issues of urgent public importance have arise from time to time which demand detailed and thorough investigation, of the sort that normally only a tribunal can satisfactorily deal with. The model we set out below will greatly assist in the speedy and cost-effective investigation of urgent matters of public importance, and can also greatly assist in reducing the cost and timescales of tribunals when they are considered necessary.

We propose an Investigations, Oversight and Petitions Committee of the Oireachtas. It would be a powerful committee, constructed on the lines of the Public Accounts Committee, always bi-partisan in structure and chaired by a senior member of the opposition.

The Committee would have the following functions. First, it would constitute the formalised structure of consultation and collaboration between the Oireachtas and the Ombudsman, responsible for receiving and debating her annual and special reports and for ensuring that her criticisms and recommendations are acted upon. For that purpose, she would attend as a regular witness before the committee.

Second, the Investigations, Oversight and Petitions Committee would receive parliamentary petitions from interested groups in the community seeking the redress of grievances connected with the public services of the State and with the public administration generally. To some extent its functions in this regard would be to act as a "clearing house", directing complaints to those bodies most competent to act on them - the Ombudsman, the Data Protection Commissioner, the Local Government Auditor, the Oireachtas committee that has oversight of the relevant Department, and so on.

Where, in the view of the Committee, particular petitions warranted detailed investigation, it would be empowered to order such investigations through an Office of Parliamentary Investigator.

-24- OFFICE OF PARLIAMENTARY INVESTIGATOR

The present Government formally decided to introduce legislation allowing for the appointment of a parliamentary inspector to the Houses of the Oireachtas from time to time as occasion requires. The inspector would have powers similar to a court appointed inspector to investigate matters of public interest on behalf of the Houses.

The Secretary General of the Department of Finance gave evidence to the DIRT subcommittee that, following consultation with all relevant parties, preliminary draft heads of legislation had been prepared. These were based primarily on precedents provided from the Companies Act, 1990 and the Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act, 1998. The Draft Bill was to have been put before the Dáil by Summer 2001.

Subsequently, however, the Minister for Finance Mr. Charlie McCreevy announced his decision to abandon work on legislation to provide for the appointment of parliamentary inspectors. This is nothing less than yet another broken promise and also evidence of this Government’s fear of real parliamentary reform.

It was envisaged that a parliamentary inspector could be appointed to inquire privately into matters of public concern as a preliminary to a possible Oireachtas inquiry – this was the role of the Comptroller and Auditor General in the DIRT Inquiry. On foot of the inspector’s report it would then be for the Oireachtas to decide whether to proceed with its own public inquiry or to establish an independent tribunal of inquiry.

Apart from the fact that it was a blow to those seeking genuine parliamentary reform, one of the inevitable outcomes of Mr. McCreevy’s decision would be that tribunals of inquiry will continue to dominate. Whereas valuable work has been and continues to be done by tribunals, it is unthinkable that every time the public interest requires a matter to be inquired into, the only option is a tribunal. The DIRT inquiry showed the circumstances where a parliamentary inquiry can do a competent, speedy and more economical job.

We believe this idea needs to be reactivated, and that the public interest, and the public purse, would both derive considerable benefit from the creation of an Office of Parliamentary Investigator. Persons would be appointed from time to time to this office, on the basis of specific contracts, to carry out specific investigations.

The Investigations, Oversight and Petitions Committee would direct and prioritise the activities and resources of the parliamentary investigator and would remit matters of serious public concern to the investigator for investigation by him or her. The Committee would have overall responsibility for the terms of reference of any investigation, including the power to propose amendments to the Dáil if necessary.

The function of the investigator would be to provide a mechanism for the timely and cost- effective investigation of issues giving rise to significant public concern. The investigator could be assisted by experts in the relevant area.

The parliamentary investigator would perform functions similar to those carried out by the Comptroller and Auditor General on behalf of the DIRT committee or by a High Court company inspector. Powers available would include giving directions to attend, to answer questions, to disclose and produce documents, to enter and search premises, to seize documents, to make determinations where privilege is claimed over information or documents. It would be an offence to obstruct the investigator or to fail to comply with directions or to give false evidence.

-25- An investigator could refer certain matters to the High Court for its directions and failure by a witness to comply would give rise to contempt of court.

Generally speaking, evidence would be taken in private, without legal and other representation by other parties. Because such an investigation, whether initiated by the Government, a parliamentary committee or a court, would not involve examination and cross-examination of witnesses in the presence of all other interested parties, it would of course be a great deal speedier in its proceedings.

On the other hand, such an inspection could not arrive at conclusions on disputed issues of fact. As the Minister for Justice has provided in his related Bill (dealing with the establishment of statutory, ad hoc commissions of inspection), on the conclusion of an investigation, the investigator would prepare a written report, based on the evidence received, setting out the facts established in relation to the matters referred for investigation.

But, if for any reason (including insufficient, conflicting or inconsistent evidence) the investigator considered that the facts relating to a particular issue had not been established, he or she would in the report identify the issue and could indicate an opinion as to the quality and weight of any evidence relating to the issue.

In other words, the function of an investigator would be to undertake the preliminary investigation and, so far as possible, establish the factual position. In many circumstances, that would be sufficient. Where the investigator was unable to establish clear facts, however, the report of a parliamentary investigator would if necessary be followed by either a formal parliamentary inquiry or a tribunal of inquiry, as appropriate. In those situations, the evidence collected by the investigator would be available to the committee or tribunal, thereby reducing time and cost. The inquiry would "hit the ground running".

The consideration of reports of the parliamentary investigator, the making of recommendations as to whether a further inquiry was required, and as to the choice between Oireachtas or judicial inquiry, the drawing up of terms of reference for such inquiries, the maintenance of liaison with the inquiry as it proceeded - including receiving and considering reports from the inquiry as to its progress, co-operation given and any delays encountered - would all be functions of the Investigations, Oversight and Petitions Committee.

Counsel for a tribunal are often placed in the anomalous position of making applications to the inquiry, at the inquiry's own behest, which are then ruled upon by the body that directed the application be made in the first place. We would replace counsel for the inquiry with counsel for the investigator, who would drive the inquiry and present evidence to a fully impartial body. Counsel for the investigator could also be enabled by legislation to represent the interests of aggrieved persons.

Such an inquiry would be governed by stipulations as to cost set out in advance. The inquiry would have power to penalise uncooperative behaviour, whether active or passive, by appropriate awards as to costs. Those found to have obstructed or delayed the work of a commission could be held liable for any additional costs the commission or other witnesses have incurred as a result.

Finally, there is no necessary conflict between the role proposed for the parliamentary investigator and that of the ad hoc Commissions of Inspection proposed by the Minister for Justice, Equality and Law Reform in his Bill earlier this year.

-26- The essential - but crucial - difference is that the Minister envisages an inquiry process initiated by the Government, with terms of reference drafted by the Government and whose work would be controlled and funded by the Government, subject always to Department of Finance approval.

There is no reason why Government Ministers should not have a power to appoint inquiries in respect of matters falling under their responsibility. Neither, however, is it realistic to expect that inquires under such a degree of ministerial control, whose work is to be conducted almost entirely in private, would of themselves be adequate to meet serious public concerns relating to public administration.

-27- THE ISSUE OF COSTS

This issue of costs is a difficulty that arises in the context of every form of inquiry – non- statutory, parliamentary or a full blown tribunal of inquiry. In the re Haughey12 case the Chief Justice outlined the requirements that, in the circumstances before the court, must be met if the procedures adopted by an inquiry were to be adjudged as in conformity with constitutional and natural justice. They are: a) that the person should be furnished with a copy of the evidence which reflected on his good name; b) that he should be allowed to cross examine by counsel, his accuser or accusers; c) that he should be allowed to give rebutting evidence; and d) that he should be permitted to address, again by counsel, the committee in his own defence.

One difficulty is that it is not always possible at the start of inquisitorial proceedings to know where the inquiry might ultimately lead. It may be that the unfolding of facts of itself gives rise to a case to answer on the part of some individual. But that difficulty is one which a parliamentary inquiry would share with any other form of inquiry.

It is this danger that a witness becomes an accused – and crucially in other than a court of law – that has caused concern about tribunals. These reservations extend to parliamentary inquiries – as In re Haughey indicates. The report of the Salmon Commission was very clear on the issue:

“The exceptional inquisitorial powers conferred upon a tribunal of inquiry under the Act of 1921 necessarily exposes the ordinary citizen to the risk of having aspects of his private life uncovered which would otherwise remain private, and to the risk of having baseless allegations made against him. This may cause distress and injury to reputation. For these reasons, we are strongly of the opinion that the inquisitorial machinery set up under the Act of 1921 should never be used for matters of local or minor public importance but always be confined to matters of vital public importance concerning which there is something in the nature of a nation-wide crisis of confidence. In such cases we consider that no other method of investigation would be adequate.”13

The essential point is that once one grants “party” rather than “witness” status to certain of the persons appearing before an inquiry, then they are entitled to legal representation and to all the cost, formality and delay such representation entails. Subject to compliance with the Re Haughey stipulation – that a person against whom a charge is being made is entitled to legal assistance in self-defence – then legal representation can properly be refused to those against whom no allegations of wrongdoing have been made in the first place. This appears to have been the attitude adopted by Mr Justice Morris in assessing whether to grant representation to persons appearing before the Donegal Gardaí tribunal.

Notwithstanding mounting public concern about the costs of tribunals, it must be doubted whether the public would be satisfied with a rule that confined the right to legal representation to those with a case to answer. Would the surviving victims of the Stardust disaster and the families of the deceased have been happy with such a rule? The victims of the blood bank? Or of childhood residential institutions?

12 [1971] IR 217 13 Royal Commission on Tribunals of Inquiry (The Salmon Commission), 1966, para. 27

-28- If the Constitution makes it necessary to permit an “accused” legal assistance in his or her defence, then the public’s sense of fair play would seem to require that those whose ill treatment gives rise to inquiry in the first place should enjoy an equality of arms.

Perhaps the best one can hope for in such cases is to control legal costs by far greater use of the power to refuse costs or to award costs against parties whose behaviour gives rise to needless delay and expense.

On foot of a Labour Party initiative, the legal position has been strengthened to some extent14. Those responsible for additional expense and delay due to tactics of deliberate non-cooperation now know that they can be held liable for the additional costs thereby incurred by others.

To spend time on one’s feet before an inquiry, judicial or parliamentary, is to spend a relatively scarce and expensive, publicly owned resource. A dilatory, lackadaisical or careless approach – or the belief that we have all the time in the world because someone else is paying – is the hallmark of the party with the deepest pocket, pending the anticipated public handout at the end of the proceedings.

In this regard, the proposals to control legal costs before the (former) Laffoy Commission, by punishing “unreasonable” behaviour, are awaited with interest. We would argue that, at a minimum, to power to penalise a party in costs should be exercised by reference to the following criteria (the first four of which are already to be found in the 1997 Act) –

the findings of fact, the terms of the resolution or other instrument establishing the inquiry, giving false or misleading information, whether deliberately, recklessly or negligently, failure reasonably to co-operate with and provide assistance, including compliance with pre-hearing procedures, any issue raised before the inquiry, whether by way of allegation, counter-allegation or defence to an allegation, which is unfounded or irrelevant or is abandoned or not pursued by the party which raised the issue, and any conduct in relation to the proceedings or in the course of appearance or representation before it that is unreasonably prolix, dilatory or evasive or which otherwise results in the proceedings being needlessly prolonged or in unnecessary costs being incurred.

And we would propose that the law establishing both tribunals of inquiry and all future parliamentary inquiries should require, to the maximum possible extent, that all public hearings be televised, so that all parties appearing would be aware of the extent to which their behaviour is being watched by the public at large.

14 Tribunals of Inquiry (Evidence) (Amendment) Act, 1997.

-29- MINISTERIAL AND CIVIL SERVICE ACCOUNTABILITY

As a matter of constitutional law, the Government and its members are “collectively responsible”. What that means (apart from a Supreme Court-imposed ban on revealing discussions at Government meetings) is entirely uncertain. The framers of the Constitution, perhaps wisely, did not attempt to define what exactly collective responsibility means. It is as much a political as a legal doctrine and its outlines are vague and indeterminate.

In relation to the doctrine of individual ministerial responsibility – in terms of day to day accountability far more important – the Constitution is absolutely silent. However, it has long been accepted across the political spectrum that the rule exists as a political convention and, as such, it shapes the nature of the relationship of ministers to the Dáil.

The high water mark statement of the rule is that, “if a minister commits certain types of error, then there is an obligation on him, and on him alone, to resign. In appropriate circumstances, so the theory runs, a minister is supposed to resign of his own accord; but if he fails to do this, he must certainly resign if a vote of no confidence in him is passed by the Dáil.”15

Whatever about acts of political indiscretion at ministerial level, there have been few if any resignations for breach of the doctrine because acts of maladministration within a minister’s department.

Among the reasons one could offer (apart from the absence of a culture of resignation) are: the lack of a non-partisan agency to decide when a minister should resign; the extreme nature of the sole sanction available; and the reality that a particular error may be wholly the fault of a civil servant. If the minister is not personally involved, is it fair or realistic to expect him to shoulder the blame?

Civil servants and the Oireachtas

The traditional view is that ministers remain accountable for everything that happens in their department and that civil servants act and speak only on behalf of the minister. So, “a civil servant who appears before, or provides information to, an Oireachtas Committee does so on behalf of his Minister who ... is legally responsible for the official acts of his civil servants”16. A civil servant appearing before a committee does so in order to represent the government’s views, to assist the committee in answering whatever it needs to know from the executive.

In particular –

“The formulation of policy is the responsibility of Government. It is, accordingly, for the responsible Minister to decide how much information a committee should be given on policy matters. In general, civil servants can factually explain existing policies as outlined by Ministers/Government. However, they should not discuss the merits of particular policies or policy alternatives (including their administrative and financial feasibility) or allow themselves to be drawn into debating the merits of particular policy decisions, including expenditure decisions. If criticism is levelled at witnesses by members of committees in regard to policy

15 Hogan and Gwynn Morgan, Administrative Law in Ireland, 1998, p. 59 16 Department of Finance circular letter 1/84, Guidelines for civil servants appearing before or providing information to Oireachtas committees.

-30- decisions or related aspects which reflect on the competence, judgment or good name of the witness or other persons, the witness may point out that: • he is precluded from disclosing policy advice given to a Minister; • criticisms of policy decisions are appropriate to Ministers who are answerable to the Oireachtas.17”

And it is still argued by some that, if you believe in a neutral, impartial civil service which does not have a political allegiance, it is important that the rules about appearances before committees reflect and respect that status. In other words, it is argued that a necessary precondition for having a civil service that is neutral and impartial is that its members must never be pinned down to a personal opinion on a policy issue or be held to account for personal actions.

The basis for this argument is that, if civil servants are reasonably secure from public scrutiny and censure, they will therefore find it easier to give unstinted loyalty to a succession of political masters.

The Carltona doctrine – how departments are run

In 1924 the Oireachtas established 11 departments of state “amongst which the administration and business of the public services in Saorstát Éireann shall be distributed”18. The departments were given powers, duties and functions “assigned to and administered by the Minister hereinafter named as head thereof”.

In other words, the model was to create a department – an operational division of the civil service – to assign a particular function to it and to appoint a minister at its head. However, that model was very largely abandoned. With one or two exceptions, all subsequent legislation ignores the concept of the powers, functions and duties of a department of state and instead vests such powers, etc., directly in the minister, to be exercised personally by the minister.

The trend was formally recognised in 1939 and the Oireachtas enacted that, whenever a particular power, duty, or function is conferred by statute on a minister having charge of a department of state, the “administration and business” in connection with the exercise of that power, duty, or function is deemed to be allocated to that department19. You would have thought that this was reasonably straightforward and clear cut: the minister exercises ministerial powers but the department assists with all the accompanying “administration and business”.

In practice, in both Britain and Ireland, ministers relied heavily on their civil servants to do most of their work and some of their thinking for them. By the 1940s this had become well established, but no statute or doctrine of common law had ever sanctioned it, and executive powers were always (as they still are) vested by law in ministers alone. Delegation within a department of the statutory powers vested in the minister, theoretically underpinned by ministerial responsibility to parliament, became an accepted convention. When, in wartime Britain, its lawfulness was challenged in a case called Carltona Ltd v Commissioners of Works20, the Court of Appeal found itself compelled to elevate departmental practice into a doctrine of law.

17 ibid. 18 Ministers and Secretaries Act, 1924, s. 1. 19 Section 6 (3) of the Ministers and Secretaries (Amendment) Act, 1939 20 [1943] 2 All ER 560

-31- An entirely novel concept of the civil servant as the minister’s alter ego was enunciated. “It violated all the common law rules against unauthorised delegation, but it perfectly adequately described what went on and could not be stopped, and it has done service ever since as a principle of constitutional law.”21

However, as recently as 1999, this post-independence rule of British constitutional/ administrative law was confirmed by the Supreme Court as also forming part of Irish law22. So, the statutory powers of a minister may be exercised by responsible officials of his or her department without the minister necessarily having any direct or personal knowledge, or having granted specific authority for their exercise. (The case in question concerned the appointment of clerks – an explicitly ministerial function under the Courts of Justice Acts – by a middle ranking civil servant of the Department of Justice, who affixed the ministerial seal to the instruments of appointment for the purpose.)

There is stated to be a vague and indeterminate category of powers which the courts consider cannot be exercised in this manner and where the minister is required to act personally. But by and large it is the finely tuned political antennae of the civil service that are relied upon to decide what within the department requires ministerial intervention – and to what extent.

Public service management reform

At the same time as the courts were admitting the Carltona doctrine as a canon of Irish constitutional law, the civil service itself was embarking on a process of strategic management review and public service management reform. The essential purpose of this exercise was to “[clarify] issues of responsibility and accountability and [bring] into greater focus the importance of accountability to citizens both as users of public services and as taxpayers who finance the expenditure required to ensure the delivery of these services”23.

As part of the process of civil service modernisation the Public Service Management Act, 1997, was enacted to provide greater clarity in relation to the authority, responsibility and accountability of secretaries general. Specific duties are now assigned to the secretary general within the department, including managing the department, implementing government policies appropriate to the department, delivering “outputs” as determined with the minister, providing advice to the minister and so on.

In particular, one of the objectives of the strategic management initiative is to promote the devolution of responsibility within departments. The 1997 Act provides a statutory framework for the assignment of specific functions for which the secretary general is responsible to officers or grades of officers within departments.

There are, therefore, two competing strands of policy. On the one hand, a desire to maintain in place the Carltona doctrine, with all thereby entailed. All power is vested in the minister and the minister alone accounts to the Oireachtas. But any officer of the minister within the department can exercise any of the powers that have been vested by statute in the minister personally.

21 Sir Stephen Sedley, “Governments, Constitutions and Judges”, in G. Richardson and H. Genn (eds.), Administrative Law and Government Action, Oxford University Press, 1994. 22 Devanney v Shields [1998] 1 IR 230 23 Report of the Working Group on the Accountability of Secretaries General and Accounting Officers, July 2002

-32- On the other hand, a desire to introduce concepts of delegated responsibility and accountability into the civil service, pursuant to a specific statutory regime that allows for certain powers to be delegated to named and identifiable officers of particular grades.

It is entirely understandable that the emerging model appeals to senior civil servants. The outside world is presented with the minister as personification of the department. All power is vested in the minister and the minister must account in public and in the Oireachtas for the performance of his or her functions. Civil servants, if they appear at all, do so merely to explain and amplify upon the minister’s position: there is no departmental point of view.

Internally, however, the powers of the minister are capable of being exercised by any responsible officer of the department and the department is managed not by the minister but by the secretary general, according to a system of line management, with authority delegated downwards by the secretary general and accountability travelling upwards, to the desk of the secretary general.

In the light of these developments, an old-fashioned demand for parliamentary accountability, concentrating simply on making life difficult for ministers, does not even begin to impact upon the reality according to which the country is governed.

Devolution of responsibility and parliamentary oversight

To a very large extent the programme of public service management reform has been owned and driven by the public service itself – or at least by its senior officials. Politicians have been content to encourage and to incentivise but have not sought to take control. This was based on the supposition that the process would work best if it was embedded on a voluntary basis.

That judgment call was no doubt the correct one to make at the development stages of the process. But when it comes to the impact that public service management makes on the system of parliamentary oversight and public accountability, then politicians must have a point of view.

Nineteenth 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.

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

One the one hand, we require an increased emphasis on the accountability of officials, through the departmental management structure. On the other hand, this must be addition to, rather than in substitution for, the constitutional accountability of ministers. And the overall scheme must make both theoretical and practical sense.

The issue is how to reconstruct the constitutional accountability of ministers to accord with the changed structure and nature of government, of which the managerial accountability of civil servants is a product.

-33- Part of what is required is a reformulation24 of the convention of ministerial responsibility so as to make a more appropriate distinction between the accountability requirements imposed on ministers and on their officials. Ministers will still be accountable for “what happened on their watch”, but it will no longer be necessary to pretend that whatever went wrong, “they did it themselves”.

The involvement of ministers in a system of parliamentary accountability is vital. It is particularly important when matters of public concern arise. The convention of ministerial responsibility, the mechanism through which constitutional accountability is delivered, requires that ministers are accountable to the Dáil for their own actions and those of their department.

The way forward will distinguish more clearly between the position of officials on the one hand and ministers on the other and will imply that ministers are constitutionally responsible for their departments, not because of their detailed involvement in departmental affairs, but because of the positions of public trust they hold as politicians. It will lay upon them certain duties, both personal and organisational, and the responsibility for ensuring that these are fulfilled. It will include exerting the appropriate level of supervisory authority.

Ministers therefore have an overseeing role, which includes ensuring that standards are maintained, both in terms of what is delivered and how it is delivered, and that the mechanisms are in place to provide the minister with the necessary, and correct, information to enable him or her to respond to problems and to account to parliament and the public.

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. Ministerial responsibility also imposes responsibility for ensuring that officials themselves account fully to the Oireachtas, through its committees.

The main issues then become first, whether the minister has been negligent or incompetent in the overall supervision of the department, a conclusion that may be reached when there has been a succession of errors or when, after a major incident, there are found to be systematic failures within the department. Second, whether the minister responds adequately when things go wrong.

The emphasis is therefore on giving information and satisfying the Oireachtas and the public that mistakes have been rectified and mechanisms have been established to prevent a reoccurrence on similar errors. This requires greater openness from ministers than has often been the case and accords with Sir Richard Scott’s belief that the “key to ministerial accountability must surely be the obligation to give information”25. It also accords with the ministerial code of conduct quoted earlier in this document – “Office holders who are members of the Houses of the Oireachtas are accountable to the Houses of the Oireachtas in accordance with the arrangements set out in the Constitution or in the Standing Orders of the respective Houses. It is of paramount importance that office holders give accurate and truthful information to the Houses of the Oireachtas, correcting any inadvertent error at the earliest opportunity.”26

24 The Reconstruction of Constitutional Accountability, Diana Woodhouse, Department of Law, Oxford Brookes University 25 Sir Richard Scott, ‘Ministerial accountability’ in Government Accountability (London, CIPFA, 1996) 26 para. 2.2.2 “Accountability to the Houses of the Oireachtas” of the Code of Conduct for Office Holders (drawn up under s. 10 (2) Standards in Public Office Act, 2001.

-34-

What is needed is a reconstruction of constitutional accountability, with ministers assuming a supervisory role, with its focus on “giving an account” and taking amendatory action. Ministers may still frequently be called on to resign, but such calls will be more solidly grounded in the reality of the Minister’s overall role. The doctrine that the minister can be held personally blameworthy because all acts done within the department are deemed to have been done by the minister personally should be abandoned as a discredited fiction.

The time has come when officials giving evidence to select committees should be allowed to speak on their own behalf for their delegated responsibilities and, where appropriate, defend themselves and their actions. Civil service rules that were designed to give effect to the principle that ministerial responsibility protects officials from public accountability are now outdated. Ministerial responsibility has been shown in recent years not to provide that protection. In any case, allowing officials to speak on their own behalf would seem to be a necessary response to the changes in government which have given officials delegated responsibilities but no opportunity to account for the discharge of those responsibilities.

Under this approach, Ministerial responsibility includes accountability for failing to give officials adequate resources to fulfil their delegated responsibilities, failing to intervene when things start to go wrong, failing to ensure that they are kept informed of potential, as well as actual, problems, as well as accountability for the way in which civil servants account for their acts, whether to Oireachtas committees or the public.

The working group on the accountability of secretaries general and accounting officers identified among the principles reflected in their conclusions “the need for clarity in relation to responsibility and accountability, and the constitutional and legal basis for same, in both existing and new State entities”27.

PROPOSALS FOR PARLIAMENTARY OVERSIGHT AND ACCOUNTABILITY

In order to bring about that clarity, and to reintroduce a meaningful concept of accountability, the following proposals are made.

1. The Carltona doctrine should be abolished by statute.

2. In its place, a reformulated code should replace existing legislation and should establish the present departments of state, specifying their roles, their functions, powers and duties and the position of the minister in charge of each department.

3. Provision would be made permitting 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 would spell out the function of the minister in relation to supervision of the exercise of delegated power.

4. The statutory description of the departmental function, together with its strategy statement and the relevant delegation orders, would form a “site map”, by reference to which the appropriate joint committee would draw up a rolling 2 to 3 year work programme of scrutiny and oversight. (Clearly, sufficient flexibility would be required

27 Para. 4 of executive summary, Report of the Working Group on the Accountability of Secretaries General and Accounting Officers, July, 2002

-35- so as to deal with the unexpected.) Departments would be examined division by division and spending programme by 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.

5. The potential workload of the public accounts committee now far exceeds what is capable of being undertaken by it. Its burden should be shared with the joint committees that track each department of state. As a starting point, examination of the reports of the Comptroller and Auditor General on economy and efficiency in the use of resources and of the effectiveness of management systems (“value for money” audits) should fall within the jurisdiction, concurrent if not exclusive, of the relevant joint committee as well as of the public accounts committee.

6. The Department of Finance circular 1/84 should be scrapped and replaced with new guidelines for civil servants appearing before Oireachtas committees that reflect the reality of the authority delegated to them and their personal accountability for the way in which it is exercised.

7. One concern of the DIRT committee was to ensure that its recommendations were implemented in a speedy and efficient manner. To this end the committee decided that there would be an interim stock-taking at the six month stage; a more comprehensive review at the twelve month stage; and a detailed report, outlining progress on the implementation of the recommendations made in its first report. Both reviews were conducted in public in the form of hearings. This method of proceeding by way of follow up review should become the norm for committee reports that make recommendations for action.

-36- SUMMARY OF MAIN PROPOSALS (This summary is set out in the order in which proposals appear in the document)

LEGISLATIVE AND ADMINISTRATIVE PROPOSALS

• Legislation to be introduced on the issue of cabinet confidentiality, to ensure that it cannot be used to cover up necessary investigations. • Restoration of the Freedom of Information Act to what it was before it was filleted by the present Government, remit to be extended to the Garda Siochána. • FoI and the Ombudsman Act to be extended to all statutory bodies, and all bodies significantly funded from the public purse. • Whistleblowers legislation to be introduced. • Legislation to be introduced to establish spending limits for local and Presidential elections, and to reduce the ceilings for European and general elections. • Given that it is not constitutionally feasible to abolish outright donations to political organisations, legislation to be introduced to restrict contributions to political parties and candidates to €2,500 and €1,000 respectively, and to require disclosure of all aggregate sums above €1,500 and €600 respectively. • Official Secrets Act to be repealed, while retaining a criminal sanction only for breaches which involve a serious threat to public policy (affecting the international relations of the State, the conduct of a fair trial, national security and the like). A public interest defence to be retained in such cases. • Cabinet Procedures Instructions to be amended to require the Heads of Bills to be published when they are approved by government, so they can be debated by relevant Dáil Committees before final decisions are taken. • A statutory register of lobbyists to be introduced, together with rules covering the practice of lobbying. • Rules to be amended to ensure that no senior public servant (including all political appointees) can work in the private sector in any area involving a potential conflict with their former area of public employment, until at least two years has elapsed after they have left the public service.

STANDING ORDERS REFORMS

• Dáil Standing Orders to be completely redrafted. The responsibility of the Ceann Comhairle in ensuring that the interests of members and the public interest are fully protected to be inserted. • An obligation to be placed on ministers to ensure that questions are answered properly and fully (including an obligation to provide redress or correction if the House is misled), and rules covering the standard of reply. • Measures to be introduced to allow discussion of genuinely urgent matters, especially those involving a wider public interest, when there would be a reasonable expectation that the matter would be publicly discussed. • Rules to be introduced covering the passage of legislation to ensure that all matters covered by bills are fully debated, including limits to the use of guillotine motions. • Changes to be made to the rules of debate, to allow far more interchange between members, and to make it obligatory on members, including ministers, to “yield” to reasonable interventions and questions from the floor.

-37-

SPECIFIC AND URGENT REFORMS

• Dáil Eireann to meet four days a week when in session. • Working hours to be significantly extended. • Summer recess of six weeks, significantly reduced breaks at Christmas and Easter. • Full week off at Patrick’s Day and Halloween to be abandoned. Overall effect a 50% increase in plenary sitting days. • Leinster House to be open from 8 am Monday to Friday and on Saturday mornings. • Introduction of a committee week (one week in four) to be considered, but the Dáil to convene in plenary session each day during that week for a normal Order of Business and Leaders’ Questions. • The Dáil chamber to be used for committee work. • Order of Business to be reformed to allow for urgent or topical matters to be raised by Deputies. • Taoiseach to be present for the Order of Business every day. Tánaiste to stand in in cases of urgent government business. • Private Members Time to be extended to include government as well as opposition deputies. All deputies to be allowed to put forward a Bill, if they choose, and a lottery at the start of each session to determine which Bills will be debated. Party whips to be relaxed on all such occasions. • Question Time to be extended, to increase the proportion of oral questions submitted to be answered and debated in the Chamber. • Written questions to be introduced to state agencies. • Written questions to be answered during Dáil recesses. • Procedures for dealing with legislation to be reformed, to allow more debate and participation at every stage. • Television and radio coverage of the Oireachtas to be significantly extended and made much less restrictive. • Proceedings of the Oireachtas to be streamed on the internet. • Summaries of Attorney General’s advice to Government to be permitted in certain circumstances. • Work of Oireachtas Committees on European and secondary legislation to be significantly expanded. • Regulations made by Ministers to require Dáil approval in certain circumstances.

-38- PARLIAMENTARY INQUIRIES

• Constitutional amendment to be proposed to allow the Dáil to “inquire into and report upon an exercise of the executive power of the State or in relation to the administration of any of its public services.” • A Committee of Investigations, Oversight and Petitions to be established: - bi-partisan in structure, chaired by a member of the opposition; - ensure consultation and collaboration between the Oireachtas and the Ombudsman; - receive parliamentary petitions from interested groups in the community seeking the redress of grievances connected with the public services and with public administration generally; - arrange investigation of issues of urgent public importance which demand detailed and thorough investigation, of the sort that normally only a tribunal can satisfactorily deal with; - supervise an Office of Parliamentary Investigator. • An Office of Parliamentary Investigator to be established to ensure timely and cost- effective investigation of issues giving rise to significant public concern: - persons would be appointed from time to time to this office, on the basis of specific contracts, to carry out specific investigations; - perform functions similar to those carried out by the Comptroller and Auditor General; - powers to attend, to answer questions, to disclose and produce documents, to enter and search premises, to seize documents, to make determinations where privilege is claimed over information or documents; - evidence to be taken in private, without legal and other representation by other parties; - Investigator to prepare written reports on matters of established fact, which could be used as the basis for further investigation, including Tribunals. • Law in relation to legal costs to be strengthened • All future Tribunals of Enquiry to be televised to the maximum extent possible.

MINISTERIAL AND CIVIL SERVICE ACCOUNTABILITY

• New law to specify the roles, functions, powers and duties of departments of state and the position of the minister in charge of each department. • Provision to be made permitting the delegation of specific powers to civil servants who would, to the extent of the authority delegated to them, be accountable both within the department and also directly to the Oireachtas. • Appropriate joint committees to draw up a rolling 2 to 3 year work programme of scrutiny and oversight of departments. • Examination of the reports of the Comptroller and Auditor General to fall within the jurisdiction of the relevant joint committee as well as of the public accounts committee.

-39-