In the wake of the Travers report, can we be sure that other government departments are any better than the Department of Health and Children, asks Séamus Ó Cinnéide.
The real fall-out from the Travers report is not the failure of political accountability but the undermining of the Civil Service, a threat to a vital balance in our system of government.
The executive branch of government (central departments and all the subsidiary state bodies) consists of two counter-balanced systems of power, the political system and the administrative system, the democratic and the bureaucratic.
The political system represents, or should represent, accountability to the people and the reconciliation of the various and changing concerns of different groups and interests; the administrative system, the public service, guarantees, or should guarantee, financial responsibility, equal treatment related to the rights and entitlements of citizens, respect for the law. Without the Civil Service we could end up with an overbearing and venal autocracy. For their crucial role civil servants need to have their security, and they need to have a sense of professional responsibility.
As John Travers himself says: "The system of professional public administration in Ireland has been pivotal in the system of democratic government which has served this country well since its foundation." But his report calls into question the very professionalism and integrity that he claims for the system: its significance goes far beyond the issues in the Department of Health.
Travers found that since 1976 officials in the Department of Health advised health boards that they could, and in effect should, deprive medical card holders of their medical cards when they went into a hospital or nursing home, so that they could be charged for services.
The department's legal adviser explicitly warned that this was against the law. Despite the fact that a minor change in the law could have rectified the matter, officials continued to support these illegal practices until November 2004.
How did this happen? Who was responsible?
At the end of the day only Michael Kelly, the department's secretary general, had to accept responsibility for his actions. The department's Management Advisory Committee (MAC) is criticised, too. We are told "there is a widespread perception that the MAC has for various, mainly historic, reasons been dysfunctional in many respects for some time." We are not told whether this dysfunctionality of the MAC was connected with the problems that are the main subject of the report.
Apart from that, there is no attribution of responsibility for anything to anyone. The only cause of all the trouble, according to Travers, is "long-term systemic corporate failure". We are not told who exactly took the ill-advised decisions at different times, whom they consulted, whether they were warned against going ahead, whether they made a calculated gamble.
We know that if someone threatened litigation, or the Ombudsman made inquiries, health boards were advised to settle to avoid publicity. Why did this unchecked irresponsibility happen? The report comes up with 10 excuses, but they are all rather lame.
Higher civil servants, from assistant principal officer up, are no longer faceless people. Their names and positions are given in the Administration Yearbook and Diary; they address public meetings, they negotiate with companies and voluntary organisations. They have real power, collectively and individually. But the Travers report deals with them as if they were an amorphous mass. All 150 or so higher civil servants in the Department of Health today, and their predecessors going back nearly 30 years, are in effect burdened with the blame for this vague "long-term systemic corporate failure" that will be so costly.
And the Department of Health is not an independent republic: it is staffed in the same way as all the rest, and there is constant movement of staff between departments. Muiris Houston (March 19th) mentioned just some of the alumni of the Department of Health who have gone on to higher positions elsewhere in the public service. Can we be sure that other departments are any better than Health?
In the department, the legal advice, based on court decisions, was at all times clear and consistent (the report refers simply to "known legal concerns"), but it was flouted by officials.
It is an ironic coincidence in time that only last September the Minister for Finance promulgated a new Civil Service Code of Standards and Behaviour that was published in December by the Standards in Public Office Commission. The code states that it "is the duty of civil servants never to act in a manner which they know, or suspect, is illegal, improper, or unethical or for which they have no legal authority". If they are in doubt they should seek a ruling from their superiors. What was the position before the code was introduced? Was there no such duty then?
In addition to the legal issue, the Travers report raises the question of the moral responsibility of officials, in a runic passage added to the last draft: " . . . a more difficult question surrounds the balance of morality involved . . . [ which] does not fall within the terms of reference of this report".
Since the report came out there has been a suggestion that those involved could claim that "what we did may have been illegal but it wasn't immoral". Such a self-serving defence by professionals in public office would be untenable.
If senior civil servants did not inform ministers of the legal problems with the hospital charges because of some sense of deference, or an unwillingness to convey unwelcome news, this reveals a failure to take their unique role, their profession, seriously.
For over 50 years great efforts have been devoted to "professionalising" the Civil Service in Ireland, recognising that there is more to that than management skills. Professions have codes of ethics and conduct, they police their own standards and distance themselves from members who do not live up to them.
The Travers report, its exposure of a system of power without responsibility, the unanswered questions, is a major setback in the progress that had been made.
Prof Séamus Ó Cinnéide is head of the Centre for Applied Social Studies, NUI Maynooth.