It takes a brave soul to reform the system

Elaine Byrne: What incentive is there for a government to introduce changes that may allow for the possibility of exposing itself to unprecedented scrutiny? The Sunday Times Published: 24 April 2011

Since his election as taoiseach almost 50 days ago, Enda Kenny has officially received two devastating critiques on the administration of power in contemporary Ireland. His response to the findings of the Moriarty tribunal, which investigated payments to politicians, and the Nyberg report on the banking crisis, has been a commitment “for the sake of our democracy” to introduce the “most comprehensive programme of political reform since the 1930s”. I want to believe him but is his definition of political reform wholly counterproductive and intrinsically limited?

Kenny has hung his constitutional hat on a referendum this November to repeal the 2002 Maguire v Ardagh Supreme Court judgment. Better known as the Abbeylara case, this judgment ruled that the joint Oireachtas sub-committee on justice had overstepped its jurisdiction in its investigation into the shooting dead of John Carthy by gardai after a siege in Longford in 2000. The Oireachtas lost its power to conduct an inquiry which could lead to “adverse findings of fact and conclusions” in relation to a named person who was not a member of the Oireachtas.

Incredibly, this meant the Oireachtas remains the only modern democratic parliament in the world, according to Professor Gary Murphy of Dublin City University in his recent submission to the joint committee on the constitution, “which does not have the power to investigate and find matters of fact”. In other words, for the past decade the parliament as an organ of the state that directly represents the Irish sovereign people has been legally prevented from inquiring into matters of national importance.

In 2009, Anglo Irish Bank’s auditors, Ernst & Young, refused to attend the Oireachtas economic regulatory affairs committee because the firm believed it “would not be appropriate”. The committee had no power to compel Anglo’s auditors to explain why one of the world’s largest professional firms did not notice the bank’s former chairman Sean FitzPatrick had over eight years hidden loans of more than €100m — using short-term borrowings from Irish Nationwide — at Anglo’s year-end accounting.

Concern about the role of external auditors was revealed during the 1999 inquiry into deposit interest retention tax (Dirt). Chaired by the late Jim Mitchell, this parliamentary investigation is cited as a model of a speedy, comprehensive and cost-effective inquiry. It took just 14 months to hold public hearings and publish a report. In all, it cost in the region of €2m while the exchequer received almost €1 billion in tax, interest and penalties from financial institutions and individuals who held bogus, non-resident accounts.
The public hearings were televised and at times made compulsive viewing. The vista of political representatives demanding answers from individuals holding senior positions in state bodies and financial institutions had obvious merit in terms of transparency and promoting public trust. Irish citizens could justly feel a sense of pride in the competent manner in which politicians conducted themselves and the inquiry. Yet, the Dirt example is not a fair representation of what a repeal of the Abbeylara decision would entail for the committee system. For starters, it was the beneficiary of professionally-gathered technical information contained within a preliminary report prepared by the Comptroller and Auditor General which formed the basis of the subsequent probe.

Secondly, the success of Dirt was in part due to the fact that those under scrutiny were primarily bank officials and auditors. The parliamentary inquiry was not captured by political loyalties and was instead motivated by a disinterested search for the truth.

The Abbeylara referendum may have the unintended consequences of reversing existing structures of accountability.

Let’s begin with the farce that is Article 28.4.1 of the constitution. The assumption that “the government shall be responsible to Dail Eireann” does not take into account the pervasive power of the party whip system which determines the legislative agenda, decides the order of business, and ensures that the context of parliamentary debate favours the government through the election of the ceann comhairle. The government controls all aspects of parliamentary activity.

Ireland has one of the weakest parliaments in Europe. The Fine Gael-Labour Programme for Government acknowledged as much when it noted that “an over-powerful executive has turned the Dail into an observer of the political process rather than a central player and this must be changed”.

What does this mean for parliamentary inquiries? At the end of the day, the government always decides who and what is investigated. The previous government wilfully ignored an overwhelming public demand for an inquiry into the banking crisis. When that inquiry eventually came, turkeys did not vote for Christmas and the terms of reference were suitably structured to avoid any investigation into political decisions that facilitated and enabled Ireland’s economic collapse.

Instead, we have the bizarre precedent of a 156-page report called Misjudging Risk: Causes of the Systemic Banking Crisis in Ireland, which fails to mention a political party or politician.

A half-hearted acknowledgment of political culpability is presented by Nyberg on page six of his report: “People in a position to make decisions are and must be ultimately responsible for them regardless of what advice or suggestions they have received … the higher and more influential their position, the greater their responsibility.”

The ability of parliament to conduct its own inquiries is utterly meaningless unless the executive gives the legislature the power to decide the remit of such investigations. Repealing the Abbeylara decision and strengthening the committee system may give the perception of meaningful reform but only masks the fundamental shortcomings of Irish democracy.

Dr Niamh Hardiman of University College Dublin says the real issue of the reform agenda should be to engineer a radical shift in the balance of power between an inherently weak legislature and an overtly dominant executive.

The Dail can only hold the government to account through the limited means of parliamentary questions, leaders questions and a vote of no confidence. All of which failed to satisfactorily uncover the incidents revealed in two decades of public inquiries.

One check on the executive is to place limits on the ability of the finance minister to make discretionary decisions. This perception of influence is far-reaching. Figures released last week by the Revenue Commissioners showed how the former minister, Brian Lenihan, was responsible for almost 60% of the political representations it received in 2010.

Another core issue at the heart of so many public inquiries is the lack of a distinction between the function of ministers and their civil servants. In a speech last month, the ombudsman, Emily O’Reilly, criticised the practice of senior civil servants “acting primarily with a view to protecting the minister or the interests of the department rather than the public interest”.

What incentive is there for a government to introduce far-reaching reforms which may allow for the possibility of exposing itself to unprecedented scrutiny at a time of unparalleled economic challenges?
In opposition, Kenny had the political luxury to believe “government is too centralised and unaccountable”. But now he is in power will he still argue the government is too centralised? That, I suggest, will require political courage.

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