A refuge from accountability and a bulwark against transparency

It’s the enveloping architecture intended to enable civil servants support elected politicians, and then account to them. An untold joke of Irish politics amid constitutional conventions, citizens’ assemblies and endless conversations about constitutional referenda, many unsought, is that the single instrument of far greater importance than most constitutional clauses, the Ministers and Secretaries Act 1924 remains undisturbed.

It is a haven of tranquillity, a refuge from accountability, and a bulwark against transparency. It transposes what in its theoretical origins is literally medieval mist, via 19th-century British parliamentary practice, into Irish law. It is, in essence, fully intact 95 years later. That legislation provides that ministers “shall be a corporation sole” and “shall have perpetual succession and an official seal”. T

hey “may sue and be sued under his style or name aforesaid”. This is the king’s minister, in persona majesty even to the extent of enjoying “perpetual succession”. In the medieval theory of the king’s two bodies, one corporeal, dies. But another lives on, thence “the king is dead, long live the king”.

Constant referencing of something called ‘the department’ is fiction. Government departments, and their civil servants exist only as extensions of the person of the minister, the corporation sole, who as a legal entity enjoys kingly perpetuity. There is no basis for accountability of civil servants to the Oireachtas. It is ministers who account to the legislature. Civil servants account to the minister, and that was reiterated in the Public Service Management Act, 1997. For the avoidance of doubt that legislation states that ministers “shall, in accordance with the Ministers and Secretaries Acts, 1924 to 1995, be responsible for the performance of functions that are assigned to the Department”.

Most of what is intended to be meant now when the words accountable and accountability are bandied about, have no legal basis. In accounting for the expenditure of money, which applies to secretaries general in their capacity as accounting officers, this far narrower responsibility for accountability on behalf of an organisation does not extend to personal accountability. Personal accountability for a secretary general is not to any organ of the Oireachtas, it is to the minister.

The fact that it is almost indefinable, and almost unenforceable, is another matter. It is not simply as set out in the Supreme Court judgment in the Angela Kerins case, that committees, specifically the PAC, overreached their remit. It is that the whole commotion is based on a recent myth, that accounting is akin to accountability. It is not. The system was never designed and purposely never intended to deal with who did what, as distinct from what an organisation did.

If this is unsatisfactory, and largely unsuspected by politicians, it is their own fault.

While they have tinkered with window-dressing in the constitution, and here I think of nonsense proposals to reduce the age of eligibility of presidential candidates, they left intact the legislative basis of their own inadequacy. After the 2011 election, when so much of the State failed to one degree or another including its politics and civil service, there was an opportunity.

But it was ignored. Instead, in 2014, a Report of the Independent Panel on Strengthening Civil Service Accountability was published. It made some improvements, but no fundamental change. The tranquillity of the Ministers and Secretaries Act was preserved. Lest the point be lost, the suggestion of appointing a head of the civil service was never acted on. The second missed opportunity has been since 2016. The Government no longer controls the Oireachtas. But Oireachtas members who rail against a lack of accountability, have totally failed in their responsibility to provide for it legislatively.

Over decades politicians have pointedly refused to define responsibility administratively, primarily because it would clear the fog away, and reveal who precisely is responsible for what. And there is another unspoken reason. It is true from the first day in government, but it becomes a deeper truth with every passing day, namely that ministers are loath to take on fundamentally the officer class of the civil service, on whom they are critically dependent.

There may certainly be unhappy relations among individuals and rows over specific issues, but a full frontal assault reminds both sides of the mutually assured destruction of nuclear war. Now, even as they up the ante in ever more aggressive questioning, opposition politicians doubled down by failing to grasp a once-in-a-century opportunity and push through legislation to fundamentally change the administrative landscape. It is ignorance of the environment in which they are operating, and ineptitude on a colossal scale.

The irony is that we have a proliferation of committees, with little legislative work, because the Government cannot command a majority to pass bills. They are relatively idle hands, in a wider cultural context of increased coarseness overall. They mistake delivery of lasting change that works, with treating civil servants with the cruelty some little boys do snails and caterpillars. For all the umbrage of senior officers, they will have the last laugh, because they will still have jobs and nothing will have changed. Government ministers are relatively happy to have a stock of sandbags to soak up the canker at committees. It works for nearly everyone, except us.

The consequence of change, and the extent it is resisted can be traced in very recent case histories. Legislation to enable multiannual funding of the Oireachtas, and effectively enable the legislature better pick it priorities, was doggedly slow-marched by the permanent government, long after the elected one had apparently agreed. Funding key posts at an appropriate level in the new Parliamentary Budget Office and the Office of Parliamentary Legal Advisers was a new era in guerrilla warfare.

These institutional changes upscale the legislature’s ability to hold the executive to account. They are likely effective, and almost certainly permanent. It means a civil service monopoly on budgetary arithmetic and legal advice are broken. It is given only to those who know precisely what that means. But watching Mr Watt suffer the assault of schoolboys, they didn’t, as they imagine, have him. He had them. The whole commotion is based on a recent myth, that accounting is akin to accountability. It is not.