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Good Governance - A Personal Perspective (27.09.2002)

Address by Kevin Murphy (Ombudsman and Information Commissioner) at University College Cork

In an address which I gave in November 1997 to the National Conference of the Institute of Public Administration on the subject "Governance and Accountability", I set out what I believe citizens want from their Government and Public Administration. I said that people want a public administration in which they can have confidence because they know that, by and large,

• it is honest
• it is fair
• it is responsive to them and inclusive of them
• it is efficient and gives value for money and
• it is effective in that it produces results or outcomes which increase the welfare of the community as a whole, economically, socially and environmentally.

Implicit in this statement is the assumption that Government and public administration will provide the necessary legislative and institutional framework (for example, by way of company law, equality law or family law) which will foster core values in society generally, values which, as I argued in my Ombudsman's Annual Report for the year 2000, recognise the autonomy, dignity, respect, status and security of each and every individual. I have no doubt that the key elements in gaining people's confidence in any system of governance are fairness and honesty. Trying to ensure fair treatment for people or appropriate redress for them when things go wrong is of course the essence of the Ombudsman role. But my address this morning will concentrate on the equally important subject of standards in public life.

Before I get into detail, I think it is important to emphasis that there are certain pre-requisites to good governance. They are, in my view,

• Effective democracy
• Adherence to the rule of law
• Respect for human rights and fundamental freedoms
• Access to justice for all

I want to talk a little bit about effective democracy because I have serious reservations about how effective our democracy is. You should not imply from this that I am in any way complacent about the other three pre-requisites. Justice through the courts is not readily accessible to many people. I hope that the present review of the courts system which the Chief Justice has initiated will explore how redress can be provided for those who have been adversely affected by the actions of others in easier and better ways than through the traditional adversarial courts system. Despite the strong protections in our Constitution and the independence and integrity of the Judiciary, there remain concerns in relation to basic human rights in such areas as policing, prisons and institutions for the mentally ill. On the other hand we now have the Human Rights Commission and a commitment to incorporate the European Convention on Human Rights into Irish law. But there remains the difficult question of human rights of an economic, social and cultural nature particularly in relation to groups like travellers, children, the elderly and those with disabilities. The real debate about Boston V Berlin goes much deeper, I think, than economic and taxation policy.

What is effective democracy? Obviously free and fair elections and the existence of real choices for the electorate are a sine qua non. But what about the level of participation of the electorate in the process? How effective can any democracy be if significant numbers of people don't vote and if there is growing cynicism about the whole political process? This cynicism is not just a by-product of the various Tribunals of Enquiry; it goes deeper than that. It seems to me that much of it stems from a realisation by the public at large that the checks and balances provided for in our Constitution appear not to be working, a situation I commented on in some detail in my Ombudsman Special Report on Nursing Home Subventions. In particular it is clear that the Houses of the Oireachtas are not effective in holding Government and Ministers accountable as provided for in Article 28.4 of the Constitution which reads:

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.

In Administrative Law in Ireland, Hogan and Morgan write "Such is the strength of the whip system that the legislature cannot be regarded as speaking with a voice independent of the executive and, so, it is realistic to characterise the central element in the Irish governmental system as a fused executive-legislature".

Despite the improvements in the Committee system in the Houses and the allocation of greater resources to them, I see neither the capacity nor the will there to hold Ministers accountable for the performance of their functions. Ministers are seldom called before Committees and their attendance is usually in the context of legislation going through the Houses. On the one occasion recently where they were called - the Public Accounts Committee's Enquiry into the evasion of Deposit Interest Retention Tax - the general consensus (and not just among public servants) is that they were treated with kid gloves and it is noteworthy that they were not directly questioned by members of the Sub-Committee. This reluctance to assert ministerial accountability contrasts sharply with the enthusiasm with which the PAC pursued civil servants and other Committees attempted to pursue other public servants in the Iarnród Éireann and Abbeylara cases. These and other instances which I could recount do nothing to create any expectation that the "nitty gritty" of real day to day ministerial accountability (as distinct from the generally orchestrated "dust ups" on the Order of Business or the occasional high profile case) is alive and well in Dáil Éireann. I think it was significant, though still extraordinary, that in the recent general election campaign, the position taken by the Progressive Democrats - and clearly endorsed by the electorate - was that they should be in Government to ensure the accountability of their partners Fianna Fáil. It is surely a constitutional novelty for the de facto Opposition to be part of the Government!

The public realisation that our elected representatives in parliament are unable or unwilling to exact accountability is a major factor in the tendency for citizens to assert their constitutional sovereignty directly by using referendums as a means of protest. The right to express our views in a referendum is a precious right which we should cherish. It is invidious if citizens fail to exercise that right and equally invidious if they use that right in a way which has nothing to do with the merits or demerits of the proposal being put before them . I am confident that as a result of the information campaign being run by the Referendum Commission (of which I am a member) and by the various parties on both sides, nobody will be able legitimately to claim that information on the Treaty of Nice was not made available to them. My final comment on effective democracy is to emphasise the importance of a civil service of quality and integrity, a subject to which I will return later on.

Let me now deal more specifically with our ethics and electoral legislation. The enactment of the Ethics in Public Office Act in 1995 was a very significant development, introducing for the first time a statutory requirement on office holders (primarily Ministers and Ministers of State) to disclose their interests. This requirement also extended to members of the Dáil and Seanad and specified persons in the civil and public service. The Ethics Act also sets out the standards to be observed in the performance of official functions and measures for dealing with potential conflicts of interest. The Act, however, shied away from prescribing principles or rules of conduct and primarily concentrated on bringing transparency into areas where the exercise of public functions could have implications for personal interests. Failure to disclose interests and other breaches of the Act were matters for the appropriate Committee on Members' Interests in the Dáil or Seanad or for the Public Offices Commission in the case of office holders and designated public servants. The Act was never brought into effect as it could have been in relation to local authorities and health boards although I am glad to see that the Local Government Act 2000 includes substantial provisions setting down an ethical framework for elected councillors and staff of local authorities.

The Ethics Act was complemented by the Electoral Act 1997 and the Electoral Act 1998 which sought to bring transparency to the relationships between, on the one hand, political parties and individual politicians and, on the other, their supporters where that support takes the form of donations of money, property, goods or services. The Acts also attempted to achieve greater equity in the electoral process by capping election spending and to encourage greater candidate participation by providing for recoupment by the Exchequer of a portion of their election expenses. The emphasis in the Electoral Acts was on facilitating public scrutiny of political donations and election spending and in the event of failure to make proper disclosure, allowing for prosecution of offences in the courts. In addition to supervising these matters, the Public Offices Commission also oversaw the Exchequer funding of qualified political parties.

As a result of matters emerging from the Flood and Moriarty Tribunals, there was increasing concern on the parts of both the public and the political parties that the transparency provided for in the Ethics and Electoral Acts was not sufficient. For example, it became quite evident that the public at large viewed a political donation of ?20,000 to an individual politician as being quite unacceptable whether it was transparent or not. The Electoral (Amendment) Act 2001 set annual limits on donations to political parties of ?5000 and ?2000 (or the equivalent in Euro) to individual politicians and banned donations from non-citizens and foreign businesses. The Act also increased the Exchequer funding for political parties from just over ?1m to in excess of ?3m annually.

On the ethics front the then Government's initial response was to produce proposals for a new Standards in Public Office Act which it referred to the Oireachtas Joint Committee on Finance and the Public Service. The Comptroller and Auditor General Mr John Purcell and I on behalf of the Public Offices Commission made a written and oral submission to the Committee. Among other things, we recommended a restructuring of the Commission and the introduction of Codes of Conduct which would set out the standards which those in public life should be expected to meet and the principles which should govern their behaviour but which cannot appropriately be expressed in legislation at least as drafted in this country. Recent experience in the United States shows that legislative regulation no matter how stringent is no substitute for strong ethical standards or values. The most important ethical principle by far in our view is that public office (and that includes public servants as well as politicians) should never be used for private gain or personal advantage. This apparently simple principle raises complex issues on a broad front including where the advantage conferred is an electoral advantage. Last year, for example, the Dáil and Seanad passed legislation which provided that the facilities serving members enjoyed e.g. free postage, free office facilities should not count as election spending even though used during an election campaign. The High Court found the legislation unconstitutional on the grounds that it conferred an unfair electoral advantage on sitting members compared to other candidates. The High Court's decision has been appealed to the Supreme Court.

After detailed consideration over more than three years by the Government and by both Houses of the Oireachtas including three Oireachtas Committees, the Standards Act became law in December, 2001. In its report for that year, its final report, the old Public Offices Commission welcomed the new Act and in particular section 10 which requires separate Codes of Conduct to be drawn up for members of the two Houses, for Ministers and other office holders, for civil servants and other public servants and for directors of State bodies. These codes will become admissible in any proceedings before a court or tribunal or before a Committee on Members' Interests or before the new Standards in Public Office Commission which must also be consulted before the various codes are finalised. Let me quote from the Public Offices Commission's final report:

"The Commission hopes that the opportunity this provides to outline principles of integrity and set standards of conduct will not be lost and that adherence to these principles and standards, and to the legislation itself, will ultimately reverse the perception which exists at present among the general public in relation to sleaze and corruption".

I regret to say that the introduction of these codes has not got off to the best of starts. Prior to the last general election the respective Committees on Members' Interests in both the Dáil and Seanad produced draft codes which they sent to the Standards Commission. The Commission put considerable effort into framing its advice based on research into the position in other countries. We felt that our views, if acted upon, would result in a code which would clearly enunciate the high standards which should be expected from holders of public office. Unfortunately neither Committee found it possible to make any changes in their drafts or to explain why they felt it unnecessary to do so. In the absence of any dialogue there was not, in my view, proper consultation. The Standards Commission has also given preliminary comments on a Code of Conduct for Ministers and other office holders and one for Civil Servants and we hope our views will be given full consideration.

One other initiative worth mentioning is the Oireachtas ( Ministerial and Parliamentary Offices) (Amendment) Act, 2001 which provides a new statutory footing for payment of the annual allowances to the leaders of parties to defray expenses arising from the parliamentary activities of the party. As you know, there was some controversy in the past about how this allowance was spent. The Act gives the Standards Commission a supervisory role in that regard.

The Public Offices Commission in its final report reviewed all these developments and concluded:

"It would be premature to attempt to assess the likely impact of these recent developments. However, in the case of the Standards Act, what is clear is that the focus of the legislation has broadened significantly from a position where disclosure of interests and reporting of possible conflicts of interest were the principal features to a more prescriptive mode which includes tax clearance certification for public service appointees and observance of Codes of Conduct. The law is now clearly stating that certain behaviour by those who are involved in the exercise of public office is not acceptable. The many new requirements of the Electoral Acts are designed to ensure greater transparency, equality and accountability in the area of political funding and are a further important step in the strengthening of public trust in the institutions of the State".

Let me conclude by expressing some views on the role of the civil service in ensuring good governance. The role of the civil service is not per se set out in legislation. The 1956 Civil Service Regulation Act defines a civil servant as a person holding a position in the civil service while the term civil service simply means the civil service of the government or the civil service of the State, the latter covering staff in offices such as mine or the staff of the Courts or of the Houses of the Oireachtas which are independent of Government. Yet there is general public acceptance that the role of the civil service should involve ensuring that Ministers act with propriety and take their decisions on the basis of what best serves the public interest. To a large extent this derives from the role of statutory Accounting Officer to which the Civil Service head of a Department or Office is appointed by the Minister for Finance under legislation which dates back to 1866. An Accounting Officer has responsibility for the expenditure of the Department or Office and for ensuring, not only that spending is within the limits and for the purposes approved by the Dáil when it votes the money, but is efficiently and effectively managed. Spending is, of course scrutinised by the Comptroller and Auditor General who reports to the Public Accounts Committee of the Dáil and Accounting Officers are examined by that Committee on an annual basis. Of course very many decisions made by Ministers and indeed by Civil Servants may not raise questions of an accounting nature. However, if they appear to be contrary to fair or sound administration, for example, if they are improperly discriminatory or taken without proper authority, they may be subject to scrutiny by the Ombudsman on behalf of the many complainants who approach my office every year. While my Office is largely complaint driven and I do not, and could not, monitor the enormous number of decisions made by Government Departments everyday, I can investigate on my own initiative. I have used this power to examine unfair or unsound decisions of which I became aware and to issue special reports. I think that, as a result, there is an increasing awareness in public bodies of the need to ensure that their decisions conform to the principles of good administration which I have elaborated on over recent years. I should like to see Secretaries General take administrative accountability as seriously as they take financial accountability.

Despite some greater clarity as a result of the Public Service Management Act, 1997 the interaction between Ministers and senior civil servants still remains a largely grey and undefined area. I addressed the subject at a previous conference here in 1999 on "Management of Government in the New Millennium" when I compared what I called the Traditional Collaborative Model which exists in the Irish Civil Service with the New Contractual Model which has been introduced in New Zealand. The Irish model continues to be based on the principle enshrined in the Constitution that Ministers are collectively accountable for the performance of the functions assigned to their Departments and that, as provided for in the Public Service Management Act 1997, Secretaries General are accountable to their Ministers.

Civil Servants see their role as being to serve the Government and the Minister of the day on an anonymous and confidential basis and to avoid exposing them to criticism even when they are under pressure from the Public Accounts Committee. In return the Government and Ministers accept the "traditional values" of the public service i.e. propriety, political neutrality, impartiality and concern for the longer term. Such a relationship requires mutual trust and mutual loyalty for success but also a degree of distance and independence between the parties. To operate successfully there needs to be adherence by both sides to unspecified but mutually understood "rules of the game." The relationship seems to me to be under pressure for a number of reasons. First of all it is subject to increased scrutiny from a variety of sources - tribunals, Oireachtas Committees, the media and members of the public through use of the Freedom of Information Act and, indeed, the Ombudsman Act. There are also increasing demands, despite the constitutional and legal position, to make civil servants publicly accountable for their decisions. I had an appeal recently under FOI for the release of the performance assessments of Assistant Secretaries General in a number of Departments. The requester argued cogently that this personal information should be released in the public interest to facilitate the general public in holding senior civil servants accountable. In affirming the decision to refuse access, I drew a distinction between the desirability on the one hand, of there being greater scrutiny of public decision making and, on the other, access to records which were created as part of the formal accountability process. In other words I recognised the constitutional and legal position that it is Ministers and not civil servants who have public accountability. It seems to me, however, that pressure for change will not go away and that there is something to be said for greater clarity in and greater formalisation of the so called "rules of the game". Perhaps a start might be made with the preparation of the respective Codes of Conduct for Ministers and other office holders and for Civil Servants. Each code might recognise the duties and responsibilities set out in the other and acknowledge that in a republic the public interest overrides the interest of any individual group.

Realistically in the world of real politics, dilemmas between principle and practice will inevitably arise and one must find a balance between the extent of legal supervision and control necessary to ensure honest government and actual interference with the business of government and the privacy of individuals. Do we want, as the Taliban had, a Commission for the Promotion of Virtue and the Prevention of Vice? Let me give you a practical illustration of the sort of dilemma which can arise.

Two months after I was appointed Ombudsman in November 1994, I was giving an address to the Association of Municipal Authorities setting out the principles of good and sound administration in relation to local authorities. In the course of that address, I argued that all local authorities should, when allocating public housing, adhere strictly to a system of objective criteria, for example, by reference to such matters as size of family, present living conditions, health considerations, the need for privacy for boys and girls in the family, the length of time on the waiting list. I was laying down a marker that departures from objective criteria would leave local authorities open to complaints of maladministration. At the end of my talk, a hand went up at the back of the hall and a voice asked:

"Mr Ombudsman, if you were the County Manager and all your nice criteria resulted in the top ten places on the housing list going to members of the travelling community, what would you do?"

Perhaps we need to recognise that no democracy is perfect but that we must continue to try to ameliorate its imperfections. May I conclude by once again quoting from a report by the Public Offices Commission:

"the most important requirement of all is that those who are in charge in the public service - be they Government Ministers or Heads of Government Departments or leaders of political parties - should demonstrate by their actions and decisions their commitment to good and honest governance and their determination to deal severely with those who impugn the integrity of the decision making process".

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