THE recent debacle in the Department of Justice has raised in an acute form the major unresolved issue in Irish public administration: the relative responsibilities of ministers and civil servants.
The present theoretical situation, that a minister, as a corporation sole, is responsible for all the acts and omissions of his or her Department, derives from the ministers and Secretaries Act. This Act was part of a huge corpus of legislation drafted during or immediately after the end of the Civil War and enacted in 1924.
Now, given the very much smaller scale of our public administration at that time, the corporation sole concept may have seemed a reasonable arrangement, especially, perhaps to the civil servants who drafted it!
But, whatever may have been the case in the 1920s, for many decades past it has been totally unrealistic and unreasonable to expect 15 ministers to be responsible for all the individual actions of 32,000 civil servants, as well as 25,000 members of the Garda Siochana and the Defence Forces.
The resultant disparity between theory and practice carries real dangers. First of all, by effectively sheltering civil servants from ultimate responsibility for their acts, both discipline and efficiency in the Civil Service may be undermined. In any employment this would be dangerous, but in a sheltered employment where, unless they commit a criminal offence, staff are virtually unsackable, this can be corrosive.
Fortunately, the high standards of probity and public service inherited from the British period, and subsequently maintained by later generations of civil servants, have helped to minimise the dangers deriving from this anomalous and anachronistic structuring of responsibility. But over time the strains thus imposed were bound to tell, as we have recently observed.
BESIDES having an adverse effect on the Civil Service, this unrealistic concept of unlimited ministerial responsibility has also been unfair to ministers, leaving them in an ambiguous limbo were the real nature of the responsibility they carry has been obscured.
All ministers know that while in theory they are managers of their Departments. In practice their departmental role is much closer to that of a part time non executive director of a company. I say part time because while ministers, even more than other politicians, work far more hours than people in almost any other employment, much of this work is necessarily extra departmental.
The bulk of their time is absorbed by attendance in the Dail and Seanad or at committees; in carrying out their public role at functions they are required to attend; through involvement in EU Council meetings, and other external engagements; and through attending "clinics" or other constituency functions.
This latter aspect of a minister's activity is far more onerous here than anywhere else because Ireland is alone in requiring ministers to face re election in multi seat constituencies against competition coming, not just from other parties, but also from other candidates of their own party.
During that part of their seven day week when ministers manage to get free of their parliamentary and public duties and to attend their Departments, their primary tasks are political, the preparation of legislation, the formulation of policy, and so on. The idea that they have much time to spare to manage their Department is illusory to the point of being absurd.
The result is that the management of a Department is a function of the secretary of the Department, not of the minister. Whatever may have been the case in 1924 - and I believe that, even then, this law made little sense - in modern conditions a law requiring the minister to be responsible for the management function in his or her Department is asinine.
Of course, it may be possible, especially in a small Department, for a minister occasionally to intervene to improve its working; when I was Minister for Foreign Affairs I made a couple of interventions of this kind, for example introducing a monthly reporting system for expenditure under different headings so that during the year we might know in what areas there was a danger of overspending.
But when I was Taoiseach, I don't think I was ever able to find time to play any managerial role within my Department, even though I believed that there could be a need to re examine its structure.
Of course, I knew that if something went wrong, I would carry the can, but in practice there was no way in which, without neglecting my primary duties as head of government, I could get involved in the time consuming process of ensuring that I could not be vulnerable. The running of the Department I had to leave in the hands of the Secretary, and in the event nothing serious went wrong with it no thanks to me!
THAT said, it was possible during my term of office to initiate some important reforms in the public service by appointing for the only time in the history of the State a cabinet minister, John Boland, with sole responsibility for the public service. Given the crucial role of departmental secretaries, as managers of their Departments as well as accounting officers, one of the most important changes made was a reform of the method of appointing secretaries and assistant secretaries.
Previously these officers had been appointed by the relevant minister almost exclusively from within his or her Department, in many cases on a seniority basis rather than on an assessment of merit.
Many ministers faced with such appointments were reluctant to make what might seem to be invidious choices by departing from seniority, although there were, of course, exceptions to this, most notably Gerard Sweetman's appointment of T.K. Whitaker to the secretaryship of the Department of Finance in 1956.
The system introduced by John Boland and myself gave to a committee of four secretaries the responsibility for recommending officers for secretary and assistant secretary posts on the basis of a Civil Service wide competition. The committee was to recommend one name on a basis of merit, which, given the wide trawl throughout the whole Civil Service, normally meant that someone from another Department was recommended, thus for the first time introducing genuine mobility as well as merit into top appointments.
Unhappily after the change of government in 1987, the committee was instructed to furnish three names rather than one in the case of secretary appointments. Inevitably many of these three name lists include an officer from the Department in question, and, equally inevitably, ministers have been inclined, either because of fear of offending their departmental staff or from a genuine preference for the familiar over the unknown, to appoint the nominee from their own Department.
This has largely undermined the mobility principle and has also weakened the merit factor. In the interest of an efficient Civil Service, it would be important for this Government to restore the system established in the mid 1980s.
But it is absolutely clear that more is now needed. The primary responsibility for the efficiency of Departments must be placed on the managers of Departments, their secretaries, and this principle of responsibility must go right down the line so that all become conscious of their duty to carry out their functions efficiently, and of the fact that failure to do so will have consequences for their careers.
The shelter for inefficiency and laxity provided by the outmoded and dangerous concept of the minister as corporation sole, carrying the can for all his staff, must finally be eliminated. I regret, and accept responsibility for the fact that the reforms of the mid 1980s did not go far enough to deal with this issue, as well as with the Civil Service top appointments system.