Michael McDowell: How did Justice get so rough?
Without strong leadership – from both politicans and senior civil servants – government departments and those who work in them can quickly become dysfunctional, writes a former minister for justice
Complex role: Minister for Justice Frances Fitzgerald talks to the media about GSOC. Photograph: Alan Betson
The dysfunctional picture painted of the Department of Justice in the Toland report is alarmingly different from the department I knew when I was minister for justice. The report of the independent review group describes a “silo driven” culture in which secrecy had “become part of the department’s DNA”. My first reaction was that there had been a very serious deterioration in the control and management of the department in recent years. My experience was that its civil servants were nearly all hard-working, honest, committed and deeply loyal public servants who responded very positively to proper leadership.
I had, for example, introduced a weekly meeting on a Friday or Monday, cochaired by the minister and secretary general, of all the senior civil servants with programme responsibilities. The meetings had a rolling agenda to ensure that everybody in the department knew what the other divisions were doing. All participants had to report on tasks they had in hand, on new issues, and on the progress they were making on them. These innovations may have been a shock to the system for some of the older Civil Service staff. But they worked very well.
Every two months there was also a project-oversight board meeting, so that major departmental projects, involving for example the Garda or the prison service or major capital expenditure, would be openly discussed and evaluated. That project-oversight board also seems to have been disbanded in the past few years.
From my interaction with the Toland report team I learned that these meetings had completely disappeared. That saddened and surprised me, because the value of those weekly meetings and the project-oversight meeting was that the minister and the secretary general and the members of the management advisory committee were effectively in continuous open dialogue, and every assistant secretary or principal officer knew what the rest of the department was doing.
The rules governing the Civil Service are, of course, different from those in a private company. The minister can’t behave like a chief executive and hire, fire or reassign at will, and the Civil Service has a statutory responsibility to question and advise politicians. But it must also be run professionally. I felt this open regime was the only way to run a large department – a method that should be normal in any large enterprise.
The Civil Service faces many challenges at present, but it is only as good as its leadership, both its political leadership and its own top brass. The minister of the day and the secretary general share responsibility for any malfunction in their department. Without good leadership and systems of real accountability, the best of people can become dysfunctional.
The Justice brief is a huge responsibility. In my view it was a mistake to give Alan Shatter both Justice and Defence. Justice in itself is a very significant department. In my time as minister we also covered areas as diverse as equality, immigrant and Traveller integration programmes, childcare (hundreds of millions of euro went into childcare facilities), refugees and immigration, as well as law reform, the Garda, the prisons and the courts system.
The minister for justice also has a major legislative role. I was often the object of mild derision for being a “serial legislator”. It has been said that Alan Shatter was really more a minister for law reform than a minister for justice.
The report accuses the department of being overly secretive. In a department that deals, among other things, with the security of the State there are matters that must be secret. But we must differentiate between what should be secret and what should be open. If you’re accustomed to being secretive about subversive threats, for example, you don’t want to apply that secretive mindset to the area of childcare or asylum.
The department of justice in my time had a very active press office, and probably one of my faults was to be overly available to microphones rather than being secretive. I don’t think we were secretive about the wrong things.
I can’t fathom how the department’s “deferential attitude” to the Garda Síochána, as found by Toland, has developed. It was not there when I was minister. There was no sense in which I or the department was “deferential” to the Garda. We had a good working relationship in which the line of authority was clear and accepted. We used the 2005 Act and its control structures properly. If the Toland report is correct, and if deferential relationship has developed, I can only conclude that it must have been a question of personal attitudes and deliberate choice.
The Garda Síochána Ombudsman Commission (GSOC) and the Garda Inspectorate must be encouraged to function and receive ministerial and departmental support. In recent years that didn’t always happen. I was shocked, for example, to learn that the head of the Garda Inspectorate had never even met Alan Shatter. I also detected a somewhat hostile attitude to GSOC from the department in the past three years.
Media reports frequently contained hostile comments about GSOC from Garda sources. It reminded me of occasions during my tenure when some of the Garda representative associations were threatening to boycott the Garda Reserve. I had to put my foot down and say there would be consequences if gardaí adopted any negative policy at any level towards the reserve force.
I believe it was a serious error on the part of the department not to ensure that this relationship was at all times highly functional.
As I have said elsewhere recently, I am utterly dismayed by the idea – not a result of this report – that the Garda should operate under an independent body. I believe the decision to establish an “independent police authority” is a knee-jerk reaction to the Shatter-Callinan affair. No public debate preceded it, and it seems to me unworkable and possibly even unconstitutional.
The Government is constitutionally entitled and duty-bound to exercise the executive powers of the State. Policing is a quintessential and central executive power for which the Government must be accountable to Dáil Éireann.
Few things are more central to the functioning of a democratic state than the way we are policed. While the courts exercise the constitutional judicial power and must be independent of the Government, the Garda must be accountable to the Government.
If you look at any common-law countries – Canada, the US, South Africa, New Zealand and Australia, to name a few – the national police and security service are always under the control of a commissioner who is accountable to government via a minister.
We can’t simply decide that an unelected body chaired, say, by a High Court judge and/or composed of some well-meaning public figures can run the Garda Síochána, our national police and security service. The Garda would be out of control if you had the equivalent of the RTÉ Authority nominally in charge of it.
Such a body wouldn’t be in a position to be accountable, to take democratic responsibility, to lay down strategy, to set budgets, to make executive decisions and directions, or to appoint or remove the commissioner. Those are the functions of a democratic, accountable government.
And if we have a so-called independent authority overseeing the force, the minster can’t be properly responsible, can’t discuss in the Dáil why rural stations are being closed or why other key decisions are being made. The Garda Síochána Act is very clear that the minister must not become involved in investigations of individual crimes. But there are areas – organised crime, subversive activity – that require the minister of the day to become involved. That should continue.
It is to be hoped that the report’s recommended splitting of the department into two sections – home affairs and traditional justice – will help address some of the administrative problems. Most European countries have separate ministers overseeing these areas. I don’t think Ireland can afford two ministers, but it may require two secretaries general. As a minister with these dual responsibilities, I often did a “double shift” at meetings of European ministers, and this is likely to continue to be the case for Frances Fitzgerald.
The division between justice and home affairs is not an exact science, and, in any case, even with structural reform there are many other issues to be addressed. I like to think of it as the difference between geography and geology. The geography is the structure, the rules, the laws. The geology is the Garda culture, the attitudes and practices in the department – the culture. Geology is more deeply rooted and is often far more difficult to alter.
I do not envy the new Minister her task of reforming the Department of Justice while also keeping the department and its systems running effectively between now and the looming general election. It’s a difficult balancing act to keep a system working and to radically change it at the same time. It needs time. And it needs to be thought through.
Michael McDowell was minister for justice from 2002 to 2007. He is currently a senior counsel