Fintan O’Toole: Five ways to purge politics of ‘dysfunction’

It is not just the Department of Justice that is ‘dysfunctional’. It is Irish democracy

The word of the week is "dysfunctional". Leo Varadkar used it on Tuesday to describe the Department of Justice in the most brutal attack on an arm of the State ever made by a sitting Taoiseach. It is undoubtedly the right word for an institution whose systemic failings have been officially acknowledged for at least three years now.

But the political crisis that almost brought down the Government points to something much larger. It is not just the Department of Justice that is dysfunctional. It is Irish democracy. Yet again, we have seen how basic democratic mechanisms failed to work.

The malaise goes far beyond a single department of government. It infects the relationships between politics, administration and individual citizens. And because it goes so deep, it is easy to despair. The same issues return again and again. We seem to move through a cycle of denial, revelation, scandal, promised reform and then back to denial.

Long-term change will require radical democratic reform. But there are five things that can be done more or less immediately

Long-term change will require radical democratic reform. But there are five things that can be done more or less immediately – and if Leo Varadkar really wants to be seen as the leader of a new generation sweeping away bad old habits, he could do them right now.


1. Admit wrongdoing

Both before and after her resignation, Varadkar and all of his Fine Gael colleagues have repeatedly insisted that "Frances Fitzgerald did nothing wrong" – even though she allowed him to twice mislead the Dáil as to her state of knowledge about the attempt to challenge Maurice McCabe's integrity and motivation at the O'Higgins inquiry. Fitzgerald herself was given a standing ovation by the Fine Gael parliamentary party on Wednesday.

Equally, Charlie Flanagan assured the Dáil that the withholding of key documents by his department was inadvertent. And Fianna Fáil rushed to endorse these assurances even though it is impossible to understand how a simple digital search would not have uncovered the crucial email chains. There is a closing of ranks: move along, nothing to see here.

But how can anything change if these are the standards we apply to public life and public administration? If the new broom Taoiseach thinks there’s nothing wrong in “forgetting” emails (and presumably discussions) about the most explosive issue in recent Irish politics, why should Ministers not continue to suffer from selective amnesia?

And if the two main parties are so anxious to accept that the failure of a government department to comply with the orders of a tribunal is merely an unfortunate accident, why should officials worry about future defiance of the Dáil and the law?

Leo Varadkar should be able to set higher standards than this.

2. Stop hiding behind ‘advice’

Varadkar must tell his Ministers: you listen to advice but you are the one who makes the decisions.

Frances Fitzgerald knew that the senior counsel acting for then Garda commissioner Nóirín O’Sullivan intended to mount an assault on Maurice McCabe’s personal motivation at the O’Higgins inquiry in May 2015.

The Government’s defence for her failure to do anything with this knowledge is that the email of May 15th that first informed that this strategy was about to be implemented also advised her she had no “function relating to the evidence a party to the commission of investigation may adduce”.

This has been inflated by every Minister who has spoken in her defence to mean that she had no function whatsoever in the entire matter. The claim is that if she had done anything at all, she would have been undermining the work of the O’Higgins commission.

This is simply not true in itself: proceeding with due caution is not the same as going nowhere. But it is also especially ironic in the context of what was actually happening at the commission. A real attempt to undermine the inquiry was in fact being made. False evidence was about to be submitted to it.

Ministers should listen to advice but they are employed to weigh it up and place it in the context of the larger public good

The email was sent to Fitzgerald on a Friday. On the Monday, the commission was presented with a document from the office of the Chief State Solicitor, acting for the Garda commissioner. It outlined the evidence that would be called to support the attack on McCabe’s character, including the alleged details of a meeting in Mullingar in August 2008 between McCabe, a Garda superintendent and a Garda sergeant. This “evidence” was going to show that McCabe had told the other two that the “only reason” for his complaints was a grudge against another superintendent.

But this was false evidence – McCabe was able to produce a recording of the meeting which disproved it. If, however, McCabe did not have the recording, the inquiry would have been seriously misled and might have drawn the wrong conclusions.

To claim that Fitzgerald would have been undermining the inquiry if she had instructed her own counsel to object to this “evidence” is the opposite of the truth – she would in fact have been trying to stop the inquiry being undermined.

And this is the wider point: ministers should listen to advice but they are employed to weigh it up and place it in the context of the larger public good. Otherwise, government should be run, not by elected representatives, but by lawyers.

3. Create a proper speaker of parliament

While the political crisis in Dublin was reaching its crescendo, the House of Commons in London was threatening to hold Brexit secretary David Davis in contempt because he had failed to produce in full documents it had demanded.

It was a reminder that, while independent Ireland copied the Westminster parliamentary model, it left out one crucial part of it: the role of an independent, robust parliamentary speaker whose primary job is to uphold the rights of parliament itself. If we had such an office, the contemptuous refusal by Ministers to answer questions that is such a feature of the current crisis would be impossible.

Charlie Flanagan's complete stonewalling in the face of Alan Kelly's questions was not just a continuation of a notorious tradition – it was actually worse. The old standard, famously expressed by Ray Burke, was "if you don't ask the right question, you don't get the right answer".

But this time Kelly, who clearly had a great deal of information, asked very precise questions, for example about a phone call on May 15th, 2015. And he was still stonewalled – even if you do ask the right questions you still get in effect no answer at all.

This culture of contempt can be changed by making the ceann comhairle not just an affable chair of parliamentary proceedings but a vindicator of parliamentary rights. Ministers who fail to answer questions should be held in contempt and suspended from the Dáil until they do so.

4. Ensure civil servants serve democracy

Legally oblige civil servants to prepare full, accurate and informative answers to parliamentary questions.

Civil servants should serve democracy, not the demands of the minister of the day for convenient obfuscation. If a TD asks a parliamentary question, the relevant officials should be obliged by law to draft a written answer that is (a) a comprehensive account of what the department knows and (b) available to all citizens through freedom of information.

This would both clarify for officials what their job is and protect them from political pressure to, as one senior official once congratulated his junior, “successfully confuse the deputy”.

5. Make senior civil servants accountable

Irish government is grounded on a fiction – that the minister knows everything that happens in the department and is therefore accountable for it. It sounds good but in practice it destroys accountability.

The minister can claim (often reasonably) not to have known, and the senior civil servant who actually took the decision can say: I’m not responsible, the minister is. The result is an all-round ability to avoid personal consequences for screw-ups.

Tracy Cooper, who did an excellent job in establishing the Heath Information and Quality Authority (Hiqa) as an independent inspectorate, told The Irish Times on her retirement in 2014: "The problem is we have never had any consequence so that if there is repeated system failure … Nothing really happens." She was speaking of the health service but her words apply to the entire system of government.

The 2011 Fine Gael-Labour programme for government recognised this absurdity and its toxic consequences, and promised to end it: “We will pin down accountability for results at every level – from ministers down – with clear consequences for success or failure. Ministers should be responsible for policy and public service managers for delivery.”

Yet the main outcome of this promised reform is the establishment of an accountability board for the civil service, chaired by the taoiseach. Its radicalism can be judged by the language of its remit: “To oversee Civil Service capability in implementing cross-cutting priorities set by government or other system wide issues; this may involve considering individual case studies to promote learning and highlight best practice.”

Clear consequences for success or failure morphs into “individual case studies” that may (or may not) be commissioned.

Calling this an Accountability Board is classically Orwellian. Instead of actually identifying the responsibilities of ministers and top managers and making them personally accountable, the board itself says its “overall aim is to examine the general performance of departments in meeting their overall objectives, identify strengths and weakness and make recommendations. They will be developmental in nature with the aim of assisting departments in being fully fit for purpose in delivering on their business agenda.”

If this were a play, it would be called Who's Afraid of Recommendations of a Developmental Nature? The answer would be nobody.

The 2016 annual report of the Accountability Board does not mention a single case of anyone actually being held to account for failure. The only real danger the board poses to anyone is that of death by management-speak – to read that annual report is to lose the will to live.

The one consolation for Frances Fitzgerald after her awful week is that, as of Tuesday, she is no longer a member of the board, which she had been since July 2016.

The system still has just two possibilities: heads down or heads roll. Ninety nine per cent of the time, it is heads down

We didn’t actually need yet another scandal to expose the toxicity of the system in which ministers and civil servants hide behind each other and no one is truly accountable. We have had processes, panels and review groups since at least 2002. But the whole disgraceful saga of Maurice McCabe shows how little has changed.

The system still has just two possibilities: heads down or heads roll. Ninety nine per cent of the time, it is heads down – senior officials do what they want and effectively account to no one. And when a crisis reaches fever pitch, it is heads roll – a minister or a Garda commissioner quits on a nice pension, leaving a different vacuum of accountability. The departed doesn’t have to answer for anything either.

Leo Varadkar knows very well what the solution is. It is perfectly expressed in the 2011 programme for a government in which he served: clear lines of accountability and clear consequences for failure. He just has to decide whether he wants to the Taoiseach who created real accountability or merely, as he already is, the compliant chairman of a bland Accountability Board.