Towards Improved Policymaking in Ireland:Contestability and the Marketplace for Ideas

Frank Barry^*

“There can be no doubt that public confidence in the administrative machinery of the state and in the capacity and judgment of its personnel would be immeasurably strengthened if the facts and considerations on which policy decisions are based were frankly and fully disclosed to the public”. Patrick Lynch (1953, 258)

Introduction

Discussions of public sector reform have traditionally focused on the efficiency with which services are delivered to the taxpayer. Another crucial role that the senior layers of the civil service and state agencies perform entails the provision of policy advice to government. This is the focus of the present discussion. The paper argues that official policy-advice and decision-making processes in Ireland are overly secretive and cartelised. A more contestable “marketplace for ideas” would afford greater opportunities for good ideas to challenge bad ones and would diminish the power of vested interests, including elements of the political establishment and the bureaucracy itself.

Consider how the competitive marketplace for ideas functions in ensuring progress in the fields of science and medicine for example. Before a research paper is accepted for publication, it is likely to have been presented at conferences and seminars before audiences of one’s peers; it will have been refereed anonymously by a number of experts in the field, and will have been adjudicated upon by a journal editor. The leading academic journals have rejection rates of over 90 per cent, and one would rarely consider even submitting to these journals unless previous feedback had been extremely positive. Even for much lower-ranked journals, the paper will frequently have had to have been revised and resubmitted. This process ensures that the ideas will have been tested and challenged, and errors and ambiguities identified and rectified.

The next section offers examples of policy failures and policy weaknesses that could have been identified much earlier were the policy-making system more transparent and contestable. Section 3 discusses problems arising from the strict interpretation of the “doctrine of the corporation sole”. By obscuring where policy advice ends and political decisions begin, this facilitates the evasion of responsibility. Section 4 offers some thoughts on increased Oireachtas scrutiny while Section 5 analyses incentives in the policy formation and implementation processes.

The Cartelised Marketplace for Ideas

Shortly after becoming Taoiseach, Brian Cowen stated in an interview on RTE television that economic decisions over the boom period – which in retrospect could be seen to have displayed certain weaknesses – had been made at the time on the basis of the best policy advice available. This is remarkable in its suggestion that political factors play no role in political decision-making. It can also be challenged on the basis that many responsible commentators had been highly critical of two policies, now generally accepted as blunders: the tendency for Irish fiscal policy to be run in a destabilising pro-cyclical manner, and the way in which the property-market bubble was facilitated and supported. The fact that these warning voices could be so completely ignored illustrates the central point of the paper: that the cartelisation of policy advice insulates the system from concurrent debates amongst those with relevant expertise.

Several further recent examples support the point. The Attorney General’s advice in 2009 that the judiciary could not be subjected to the public-service pension levy was immediately challenged by senior legal academics such as Professor Gwynn Morgan of UCC, and later by some members of the judiciary itself. It seems incontrovertible that policy advice would benefit if opportunities existed for advance review by an expert audience.

The Bacon Report on NAMA similarly emerged almost fully formed, and was clearly accepted by government before its underlying logic could be subjected to thorough examination in the broader “marketplace for ideas”. While it appears that the intensity of the subsequent debate had some influence on the final outcome, the proposed NAMA solution rapidly became “the only game in town”. The Bacon Reports of a decade ago on reducing house price inflation were similarly published before their principles could be debated and assessed. These episodes must surely raise suspicions similar to those which greet many private-sector management consultancy reports.

Interestingly, one of the strongest criticisms of the closed and cartelised market for ideas, and the weakness of its outcomes, may be contained in the unpublished Bacon Report undertaken for the Moriarty Tribunal. The report apparently challenged the logic of the imposition of a cap on the auction price of the second mobile phone licence, which was ultimately awarded to businessman Denis O’Brien. If this procedure had been open to expert scrutiny at the time, the report apparently suggests, the procedure may not have been adopted.

The research commissioned by government departments and public bodies, while occasionally subject to public procurement rules, is also usually published without advance public presentation. By affording other interested parties a chance to challenge or respond, advance presentation would serve as a form of quality control in a way that public procurement rules cannot.

An example of much current interest relates to Ireland’s decision in the late 1990s to participate in the single currency project. Honohan and Murphy (2010) found that the earlier decision to sever the link with sterling was based more on a desire to stay in the vanguard of European integration rather than on the technical merits of the new system as an exchange rate regime for Ireland. Little formal economic analysis of the policy choices available had been carried out.

Publication of the Economic and Social Research Institute report on the costs and benefits for Ireland of participating in EMU (Baker at al., 1996) triggered a massive debate among Irish economists, over the course of which many of the weaknesses of the project – which would become fully apparent only in the wake of the global financial crisis – were raised. The decision to join however had already been made. The fact that few if any of these important issues even appeared in the terms of reference for the ESRI study offers support for Lee’s (1984, 5) comments on Irish policymaking within the EEC: “While the ‘political’ skills of Irish representatives in negotiating positions are widely acknowledged...there seems to be no comparable criterion for assessing the calibre of conceptualisation of the Irish case.”

A detrimental consequence of the lack of transparency in the policy process is the extent to which it facilitates regulatory capture – the process by which a supervisory agency can come over time to see its goals as synonymous with those of the regulated entities. As noted by the head of the Downing Street Policy Unit, Bernard Donoughue, in his diary of May 23, 1978 (quoted in Business and Finance Magazine, September 24, 2009), “the most striking thing about Whitehall departments, and something rarely referred to in the textbooks, is that they become captured by their own client group”.

Amongst the factors contributing to regulatory capture are information asymmetries which make the regulators dependent on the regulated entities for information and specialist industry expertise, and the repeated close interactions between regulators and their regulated counterparts. The Economist Intelligence Unit’s recent review of the regulatory environment in Ireland notes for example that “during the course of our discussion with regulatory agencies, several commented on the fact that they had much more developed relations with the regulated industries than with consumer groups. Similarly, in chapter 4, we note the example of one agency that requested that the firms it was regulating should prepare proposals on how they should be regulated and then invited third parties to comment on those proposals” (EUI, 2009, 18).

Political scientist Basil Chubb (1992, 124) was alluding to regulatory capture in quoting approvingly from Magill magazine to the effect that “Ministers for Agriculture have, since Ireland’s entry into the EEC, become Ministers for Farmers”. Similarly, Collins (1993) and Adshead (1996) refer to the “closed policy communities” that determine Ireland’s agricultural policy stance within the EU. By excluding other interests – such as those of consumers – they yield a false appearance of national consensus. The deliberations of the Beef Tribunal revealed the extent of this capture (O’Toole, 1994; Byrne, forthcoming).

Two further dramatic instances of capture are deserving of mention. The first concerns the attempted enactment of the Air Transport Bill of June 1984, which proposed to imprison, fine and deprive of their licence any travel agents that offered air tickets for sale at prices below those approved by the Department of Communications (Barrett, 2006). It was originally hoped to rush the legislation through but it was held up almost single-handedly by then independent TD Desmond O'Malley. “Is it in our national interest that we continue to make the mistake of equating Ireland's national interest with the health of Aer Lingus's balance sheet?”, he asked, making the point that “Aer Lingus take the view that it is better to sell one hundred seats at $200 rather than two hundred seats at $100. The revenue would be exactly the same … (but) the national interest would be greatly helped by having an additional one hundred people visit this country.”

Over the course of the Dáil debate, O’Malley referred to a newspaper interview in which economist Seán Barrett pointed out that the Air Transport Bill was “a negation of any commitment to open policy making” (O’Byrnes, 1984) – sentiments which mirror the motivations of the present paper.

O’Malley’s stonewalling, supported by a group of academic and financial-sector economists led by Barrett, ensured that the initially anti-competitive Bill was completely transformed by the time it was eventually passed (Barrett, 2009, 3). Less than two years later, this undermining of regulatory capture led to the deregulation of the Dublin-London route. Fares fell by more than 50 percent on the first day of deregulation, passenger numbers expanded dramatically and Ireland’s share of world tourism rose, against the concurrent European trend and in a reversal of the Irish trend of the previous 20 years (Barry and Crafts, 1999).

The complete failure of the Department of Education to investigate the abuses associated with the industrial schools system, as revealed in the Ryan Report of 2009, provides another example of regulatory capture. Such capture typically only becomes obvious when exposed to forensic probing of the type instituted when massive systems failures lead to the establishment of tribunals of inquiry. Such failures could be averted were the system more open to scrutiny at all times.

Greater transparency would also help to counteract the problem identified by Garret FitzGerald (2000, 117) when he wrote, “democratic national governments tend to be subject to such strong pressure from vested interests within their own territories that many of their decisions operate against the interests of society as a whole”.

Transparency and the Doctrine of the Corporation Sole

How can we move from the present cartelised marketplace, where good ideas have only very restricted opportunities to challenge bad ones, to a more open and competitive one? A major step would be to make it clearer where expert policy advice ends and political decisions begin. The absence of clear lines of demarcation allows all sides to evade responsibility.

Consider the response of the then Ceann Comhairle in 2009 to the revelations of the vast expenses incurred in his time in that office and in his previous ministerial position, most notably perhaps the €400 bill incurred for the hire of a limousine for transfer between two Heathrow airport terminals: “I was not aware of the cost of these arrangements and when I read the detail in the past weeks I was embarrassed that such costs were associated with some of the arrangements made on my behalf” (Irish Times, September 17, 2009).

Clearer lines of demarcation would shield civil servants and other officials from possibly misplaced criticisms but would also force them to accept responsibility where it is due. It is also unclear as to why politicians should necessarily reject the notion that the political factors behind political decisions should be open to scrutiny, since political decisions by their very nature take factors other than expert advice into account. A former Finance Minister frequently boasted of rejecting much of the advice of his civil servants. There is an argument however that revealing when this occurs should be mandatory rather than a matter of choice. O’Malley (2009, 2) makes a similar point in stating that “we should expect that politicians will aim to maximise their electoral prospects, but if poor policies do that, it is only because they are not exposed as poor policies to the electorate.”

The advantage of clearer lines of demarcation is identified by Laudati (1998, 405) in discussing the principles that characterise good practice in the remit of European Competition Authorities. Several authorities have taken steps, she notes, “to subject their decision-making processes to more internal controls by separating investigation from decision-making functions, and increasing transparency. Some national authorities have adopted a two-step procedure, with assessment of cases on competition grounds done by the independent antitrust authority, and assessment on other grounds, such as social and industrial policy, done by a government ministry.” This has the advantage of shielding those responsible for competition assessment from political pressure and of exposing political decisions through increased transparency.

Extending this logic into the area of policy advice more generally would, it might be argued, clash with the “doctrine of the corporation sole”, whereby all the actions of a government department are deemed to be those of an individual Minister rather than of his or her agents. Irish Times columnist Elaine Byrne recognises this in her advocacy of more extensive use of Regulatory Impact Analysis, which requires policy-makers to openly discuss a policy’s long-term implications. “Civil servants must include a written justification for the inclusion or exclusion of proposals”, she writes, “(which) has the potential to completely redefine the traditionally secretive relationship between senior civil servants and their Ministers” (Byrne, 2009).

The classical case for the single point of accountability in the doctrine of the corporation sole was made by John Stuart Mill in 1861:

“Responsibility is null and void when nobody knows who is accountable. Nor, even when real, can it be divided without being weakened. To maintain it at its highest, there must be one person who receives the whole praise of what is done well, the whole blame of what is ill.”

Mill’s argument is that it is possible to shift the blame to others when accountability is shared. But the doctrine appears to be little adhered to in Ireland (Connaughton, 2006). Hence it is worthwhile to explore the possible advantages associated with multiple sources of accountability.

As Mulgan (2003, 27) notes, “arguments for limiting the right of subordinates to reveal information of interest to the public… often have more to do with protecting reputations and suppressing potentially awkward information than with maintaining a legitimate chain of democratic accountability. Plurality of access points is an essential aid to government transparency and public dialogue”.

He points to the difference between personal responsibility and role responsibility, arguing that the notion that ministers are required to accept vicarious responsibility and resign over purely departmental failures is mistaken. Role responsibility is simply to ensure that failures are rectified.

“Many policy areas depend heavily on the input of trained professionals”, he continues. “Such experts should be directly engaged in open discussion with members of the public or their representatives in order to encourage genuine public debate about the merits of particular policies or decisions.”

Mulgan notes furthermore that Westminster-type systems have evolved substantially beyond the more restrictive versions of the corporation sole over the last half-century.

“Procedures such as committee scrutiny, government audit and freedom of information which allows access to middle-ranking officials were all fiercely resisted by governments at the time of their introduction because they threatened to undermine the leadership’s monopoly control of government information. All have since become accepted as valuable additions to public accountability.”

Connaughton’s (2006) analysis of the Travers Report into illegal nursing home charges (Travers, 1995) illustrates, however, the lack of success achieved by moves to transfer elements of statutory responsibility to the public service hierarchy. The senior civil servant who resigned on foot of the matter noted that the ingrained culture of the department had been to “facilitate ease of manoeuvre at the political level”. Connaughton concludes that the division of responsibility “cannot satisfy fully all of the demands placed on it by various political actors, in large part because these demands are often in tension with one another”. He quotes another analyst approvingly to the effect that “the resurrection of the politics/administration dichotomy in the language of modern managerialism has been no more successful in apportioning blame than recourse to the theory of ministerial responsibility” (273).

The Travers Report recommends that, in the future, concern for the political sensitivity of an issue must no longer be allowed to interfere with making a clear case for action. Without a change in incentive structures, however, it is unclear as to how such an admonition could be expected to be effective. A Whistleblowers’ Charter and increased Oireachtas scrutiny, as discussed in the following sections of the paper, would arguably effect such necessary changes in incentive structures.

Political Reform

The possibility of increased scrutiny requires political reform. It was suggested above that, had Department of Education officials been grilled by a determined Oireachtas committee, it would have been difficult to ignore so comprehensively the scandals revealed in the Ryan Report. Former UK Conservative MP Alan Clarke’s diaries reveal the extensive study he put into his attempts to secure chairmanship of the Westminster committee in which he was interested. The localist and clientelist focus of most Dáil deputies seems to preclude such a degree of commitment. While economists frequently ascribe this to the nature of the Irish electoral system, political scientists such as Farrell (2001), Hardiman (2009) and Gallagher and Komito (2010) are sceptical, suggesting that it is more to do with voter expectations, with the weaknesses of local government, and the bureaucratic difficulties of accessing entitlements.

T.K. Whitaker draws a number of these strands together in suggesting that his preferred electoral system – of single member constituencies elected under proportional representation – would reduce the excessive degree of clientelism, but that greater responsibility would have to be allocated to local authorities. “My personal difficulty with that”, he continues, “is that I cannot see genuine and worthwhile local democracy without responsibility for finance… and I am not sure how this can be organised” (Kenny, 1987, 295)

Some contributors to the current debate on political reform advocate a US-style separation of powers in which the legislature represents a more effective check on the executive. Such systems can easily become gridlocked however, as evidenced by the recent brinkmanship over the US debt ceiling or by the refusal of the US Congress in 1995 to pass spending measures needed to pay federal workers and fund government programmes.

The present paper confines itself to a much narrower range of possible institutional changes, focused specifically on the Oireachtas committee system. MacCarthaigh (2005, 155) notes that “interviews suggest that committee chairs and vice-chairs in particular are not awarded on the basis of expertise. While TDs with a particular interest in a subject may be successful in attaining a seat in a relevant committee, the allocation to each committee is at the discretion of the Taoiseach and the chief whip. In many cases, TDs are appointed simply to maintain a government majority”.

Ireland stands out among European legislatures in the degree of government control of the committee system. In the majority of other cases, the appointment and allocation of committee chairs are based on agreement and proportionality, and, again unlike in the Irish case, minority or dissenting reports to the chamber are permitted. Crucially, the reflection in the committees of the dominant position of the government in the Lower House “plays a significant part in preventing committees from acting as a check on the executive.” Oireachtas committees also have much weaker powers, including powers of compellability and the right to demand documents, than is the case in many other European countries. As Hardiman (2010, 58) points out, citing the Economist Intelligence Unit’s recent review of the regulatory environment in Ireland, they would also need more specialist expertise routinely available to them if they were to be able to “put administrators under pressure”.

Barry and O’Dowd (2001) contrasted the speed and success of the Irish DIRT and Ansbacher inquiries – along with that of the UK Scott inquiry into the illegal export of arms to Iraq and various Canadian and Australian Royal Commissions – with the cumbersome procedures evident in most Irish tribunals of inquiry. They pointed out that part of the reason for the success of the DIRT and Ansbacher investigations was that the groundwork had been carried out by experienced authorised bodies – by the Comptroller and Auditor General in the first case, and by an authorised officer of the Minister and the subsequent Court appointment of three inspectors in the second – before the investigations emerged into the public arena.

In a major blow to the efficient operation of Irish tribunals of inquiry, the Supreme Court ruled in 1999, in response to a challenge from then T.D. Liam Lawlor , that tribunals could not delegate the examination of witnesses to its lawyers and that such examinations must generally be carried out in public. The private sessions had proved a major boost to the speed, cost and capability of the tribunals because the involvement of legal teams was largely precluded since private hearings did not encroach on the constitutional "right to one’s good name".

Other court decisions over the years have adversely impacted on the ability of Oireachtas committees to perform inquiries efficiently and effectively. The Supreme Court’s decision in Re Haughey in 1971 largely collapsed the distinction between the rights to which an individual is entitled under fact-finding bodies (such as Oireachtas committees and tribunals) and liability-determining bodies. The Supreme Court decision in the Abbeylara case in 2002 underscored this, while also pointing to the absence of either constitutional or legislative authority for Oireachtas committees to conduct such inquiries (Maguire v. Ardagh [2002] S.C.).

Barry and O’Dowd (2001) concluded that much of the delay and expense involved in Irish inquiries derived from the strength of the constitutional protection of the right to one’s good name, and suggested that this be weakened and/or the libel laws relaxed along the lines suggested by the 1991 Report of the Law Reform Commission.

The foregoing analysis supports the proposed amendment to Article 15 of the Constitution recommended by the Joint Committee on the Constitution in January 2011. The amendment would permit Oireachtas committees to make findings of wrongdoing in relation to individuals but would not allow for the application of sanctions and would not therefore involve the Houses of the Oireachtas in the administration of justice. In order to avoid expense and delay, the amendment would allow for implementing legislation to balance the public interest in the effective investigation of matters of importance with the protection of the right to the good name of the individual. The Committee proposed that third party specialist investigators should undertake the investigative part of the process and that enabling legislation would establish the relationship between the appointed investigative body and the relevant Oireachtas committee, and would grant powers to compel testimony and disclosure.

Incentives and Policy-making Processes

Two related issues are under discussion here: the provision of public-policy advice and the decision-making process itself. Independent scrutiny is valuable on both counts. FitzGerald (1998) argued that the EU regional aid process improved the Irish system of public administration by increasing transparency and contestability. For example, “the need to satisfy the donor countries, through the EU Commission, that their money was well spent resulted in the introduction of a set of evaluation procedures which helped change the approach to public expenditure. In the past the only question, once money had been voted by parliament, was whether it had been spent in accordance with regulations. Now there was increasing interest in assessing how effective the expenditure had been” (680). Public servants, he suggests, were encouraged to consider the wider implications of individual measures while the involvement of EU Commission officials helped to nudge domestic decision makers towards measures which were desirable on economic criteria. Boyle (2009) has recently suggested however that the ending of EU supervision has meant a return to the status quo ante, as Barry (2005) had warned might occur.

This points to the fact that more extensive EU oversight, as may arise as a consequence of the current European debt crisis, can be beneficial by helping to overcome detrimental political and localist concerns – an example of what New York Times columnist Thomas Friedman (2000) refers to as “the golden straightjacket”. McAleese (2000, 92) has noted for example that “an Irish government untrammelled by Brussels would have found difficulty in turning off the flow of subsidies to several economically weak but politically sensitive companies (Irish Steel, Aer Lingus and the beef processing industry for instance)”, while Barry (2005) similarly referenced Eurostat’s refusal to allow Kerry and Clare to be included in the Objective 1-status Border, Midlands and Western region of the country.

The detrimental effects of Ireland’s longstanding pro-cyclical fiscal stance were alluded to earlier. Most theories propose that socially inefficient pro-cyclical fiscal outcomes are associated with the lobbying power of influential interest groups, and independent fiscal councils can serve to counteract this power (Lane, 2010). The establishment of such a body for Ireland – the Irish Fiscal Advisory Council – was announced in July 2011. Its tasks will include “assessing the appropriateness and soundness of the Government’s fiscal stance and macroeconomic projections as well as an assessment of the extent of compliance with the Government’s fiscal rules”.

Independent advice and scrutiny increases the degree of contestability and transparency in the system. Thornhill (2009) also advocates such contestability in the fiscal process, suggesting that the strategy and output statements of government departments, and their implementation, be subject to independent review, and that the revenue and expenditure projections of the Department of Finance be independently reviewed prior to publication.

One needs to consider also the alignment of incentives facing those providing policy advice. T.K. Whitaker, the most renowned civil servant in the history of the state, referred to “the old principle that (as a civil servant) you were independent of ministers. You gave your views on any new proposal fearlessly, critically, honestly. You did not care whether your views were likely to commend themselves to the minister, whether for their own sake or politically… In the new world, the civil servant is all the time trying to please the minister, over conscious of what might be politically acceptable, arranging the options so that they will appeal, rather than in strict order of eligibility.. I don’t like the idea of appointing secretaries for seven years only. There should, of course, be some movement among secretaries and perhaps ten years would be a better term. But I would be afraid that a young man who saw nothing satisfactory ahead following his secretaryship might be tempted to make a friend of the mammon of iniquity. He might look outside to see where he could place himself, whom he should be nice to now so that, when he goes, they will receive him into their bosom. That could undermine that integrity which is still regarded as the one decent trait of a civil servant” (Kenny, 1987, 296-7).

Kingston (2007, 120) concurs. He notes that one of the British inquiries into the causes of the Iraq war recommended that the post of chairman of the Joint Intelligence Committee should never again be held by anyone other than an official “who is demonstrably beyond influence and thus probably in his last post”. He also notes that the change to the system of top-level civil service appointments in Ireland, whereby three names are now offered to Ministers, “obviously makes ambitious civil servants more compliant with their wishes.” These issues clearly require further consideration.

Also problematic is the incentive to avoid attributable failure, a feature known to characterise public-sector organisations. Mueller (2003, 370) lists several empirical studies of the types of outcomes associated with such behaviour. Peltzman (1973), for example, estimated that the Federal Drug Administration costs the US more lives than it saves by excessively delaying the certification of new drugs, while Gist and Hill (1981) report that officials of the Department of Housing and Urban Development allocated funds to cities with less risky investment projects in order to avoid the criticism that the projects were not successful, even though the stated goal of the programme was to help cities for which the risks of housing programs were high.

The incentive to avoid attributable failure might be tackled by granting an explicit mandate to the Top Level Appointments Committee (TLAC) to explore the extent to which candidates have resisted such motivations. This in turn might be facilitated by appointing more than the current one private-sector member to the usual five-person membership of the body.

Economists and political scientists have also drawn attention to the adverse effects of the empire-building instincts of the bureaucracy (Niskanen, 1971). The 2008 OECD review of the Irish public service (295-8) concluded that one of the reasons for the proliferation of new agencies in Ireland was to sidestep the limits imposed on core civil service numbers, though agency proliferation also helps to avoid difficult decisions and diffuse blame. Every initiative spawns an interest group that benefits from its continuation. Hence, one of Rodrik’s (2004) design principles for the public sector is the inclusion of “sunset clauses” whereby initiatives are automatically evaluated after a certain period of time and dropped if found not to be achieving their aims. One of the more remarkable headline statistics of recent times, for example, has been the revelation that the state training agency Fás retained a budget of €1 billion per annum while the economy was operating at full employment.

It is not clear that the new Fiscal Advisory Council will be able to monitor public expenditure at this micro level. An alternative would be to institute a body similar to the Special Group on Public Service Numbers and Expenditure Programmes (“An Bord Snip”) to examine public sector structures and programmes at regular intervals of perhaps a decade or so, rather than just when necessitated by financial crisis.

The incentive structures facing those offering consultancy services to the public sector also appear to be inefficient. Receipt of future contracts seems to bear little relationship to the quality of service delivered in previous ones. The case of PPARS in the health service represents a particularly costly example. Another one – with costly political fallout – was the failure of PricewaterhouseCoopers to highlight the importance, in their report to the Minister for Finance, of the €7 billion deposit that Irish Life and Permanent had placed in Anglo-Irish Bank (Irish Times, February 12, 2009). Extending the “naming and shaming” powers of the Comptroller and Auditor General could offer a partial solution. It is hardly sufficient that “much of our current monitoring of government strives to discover that monies weren’t misappropriated, not whether they were spent wisely” (O’Malley, 2009, 5).

A final topic concerns the importance of a Whistleblowers’ Charter. Hierarchies protect themselves from effective challenge by being able to brandish the threat of reprisal. Kingston (2007) argues that a Whistleblowers’ Charter, by negating this threat, would have reduced the likelihood of public-service failures such as the lethal blood transfusions scandal, illegal charges for long-stay institutional care, police criminality in Donegal, the PPARS health-service payroll system, and the acquiescence of the Revenue Service in the face of inappropriate demands by then-Taoiseach Charles Haughey. As noted by the whistleblower whose revelations led to the resignation of the entire Jacques Santer European Commission, “it is an illusion to think that stricter regulations and a perfect audit policy can wipe out all major irregularities… Whistle-blowing is a guarantee against the persistence of structurally endemic fraud and irregularities” (Kingston, 2007, 74).

Concluding Comments

A more competitive marketplace for ideas in the provision of policy advice – in the form of increased transparency and contestability – would afford greater opportunity for good ideas to challenge bad ones. It seems incontrovertible that policy advice would benefit if presented for advance review before a broader expert audience. The recently established Irish Fiscal Advisory Council is a step in this direction, but only in a very narrow area.

The lack of transparency in the current system facilitates regulatory and interest-group capture. This becomes apparent only when exposed to forensic probing, typically instituted by systems failures of the type that lead to tribunals of inquiry. These failures could be averted and the flaws exposed and rectified more easily if Oireachtas scrutiny were more effective. This will be facilitated by the proposed amendment to Article 15 of the Constitution. A Whistleblowers’ Charter would further reduce the likelihood of systems failures.

The absence of clear lines of demarcation between expert advice and political decision-making allows both sides to evade responsibility, even though the traditional doctrine of the corporation sole, which vests accountability solely in the Minister, is notionally designed to avoid this possibility. Westminster-type systems have in fact moved substantially beyond the more restrictive interpretations of the doctrine over the last half-century through procedures such as committee scrutiny, government audit and freedom of information.

No less an authority than T.K. Whitaker has warned of the changed incentives that have made civil servants less independent in the provision of policy advice. Political decisions by their very nature take factors other than expert advice into account, and politicians are elected to make these decisions. Society has a right to demand that the political priorities behind such decisions be open to scrutiny.

Also problematic is the incentive to avoid attributable failure that is known to characterise public-sector organisations. This might be tackled by changes to the mandate of the public-sector Top Level Appointments Committee. The incentive structures facing consultants to the public sector might also be improved by extending the naming and shaming powers of the Comptroller and Auditor General.

References

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