The Travers report should kick-start a real debate on political accountability, writes Carol Coulter
Where does the buck stop when things go wrong in a Government Department? Should the Minister carry the can for the actions of officials? And is there a difference in his degree of responsibility for public servants and for those he has personally appointed as political advisers?
Such issues have to date been the subject of relatively little debate. Yet in the wake of the Travers report they are central questions.
In 1961 a crucial parliamentary debate set the ground rules about ministerial responsibility. It involved the Mental Health (Amendment) Act, which sought retrospectively to legalise the detention of a number of people in mental hospitals.
It had emerged that the procedures whereby they became inmates had not been followed correctly and that they were in effect illegally detained.
The Opposition called for the resignation of the minister of the day, Seán MacEntee, but those calls were resisted on the basis that he could not possibly have known what had happened. Former minister for health Micheál Martin has said he did not know of the legal problems with the nursing home charges.
The most recent legislation dealing with the relationships within Government Departments is the Public Service Management Act of 1997. It outlines, among other things, the respective responsibilities of the minister and the secretary general of a department, and also the role and functions of special advisers.
It states: "A minister of the government having charge of a department shall, in accordance with the Ministers and Secretaries Acts, 1924 to 1995, be responsible for the performance of functions that are assigned to the department pursuant to any of those Acts."
A secretary of a department shall, "subject to the determination of matters of policy by the minister", have responsibility for carrying out a number of specified functions. These include managing the department, preparing and submitting a strategy statement, providing progress reports and assigning responsibilities.
The Act also states that the secretary's duties include "providing advice to the minister . . . with respect to any matter within, affecting or connected with the responsibilities of the minister or the department . . . giving rise to material expenditure chargeable to its appropriation account."
Charging medical-card holders for nursing home care, or ceasing to charge them in the light of legal advice, would appear to fall under the heading of a matter "giving rise to material expenditure chargeable to its appropriation account."
The Act also sets out, for the first time, the role and duties of special advisers. These include providing advice; monitoring, facilitating and securing the achievement of government objectives; and performing such other functions as may be directed by the minister. Special advisers are accountable to the minister in the performance of their functions.
It is not laid out in the Act whether such special advisers represent the minister at meetings which he or she is unable to attend, or whether they are expected to report the contents of such meetings to the minister.
However, Fergus Finlay, former special adviser to Labour Party leader and minister for foreign affairs Dick Spring, says that, if an important matter was discussed at a meeting, "I felt it important that the minister had a 'good flavour' of what went on at the meeting".
He said it would not have been acceptable for something to catch his minister unawares following a meeting he (Mr Finlay) had attended.
"I find it inconceivable that two advisers would be sitting there at a meeting and the minister was unaware of what was said," he said.
However, Noel Whelan, barrister and author of a book and a number of articles on public affairs, as well as a former adviser to then minister of State Tom Kitt, argues that in no circumstances should communication with an adviser be seen as a substitute for structured communication within a department, through a minister's private secretary.
"There is no defined role for advisers," he said yesterday. "Essentially some are no more than glorified constituency managers. Others can be almost as important as secretaries general. They should bring political, communications or strategic added value to the minister."
A successful adviser had three essential qualities, he said. The first was a close relationship with the minister, the second a capacity to build a relationship with key officials in the department, and the third was innate intellectual and political ability.
However, the issues go deeper than "who heard what, and when" in relation to this latest controversy. The whole relationship between the political accountability of ministers and the managerial accountability of civil servants has had little serious discussion. The Dáil debate on the 1997 Act was, in the words of a public servant specialising in the area, "depressing" for the lack of interest in the principles involved.
The 1997 Act sought to graft modern managerial thinking on to the "corporation sole", which defines the corporate personality of the department as residing in the minister, who traditionally took responsibility for every act of every public servant. But this Act did not address how the minister's will, as mandated through the political process, was to be imposed on the department.
The Travers report marks a turning point, according to Whelan. "We have hit a watershed when the Tánaiste of the day says, 'The day I took up this job I was not briefed on this issue'.
"Why should ministers pay for the mistakes of civil servants? Senior public servants are paid phenomenal salaries, they have phenomenal job security. We are entitled to hold them responsible in the departments.
"All these reports - Quigley, Travers and the Public Accounts Committee [on the indemnity deal with the religious congregations] should be giving rise to a serious debate about the structure of our Civil Service and how to measure its output. No one has even looked at the structure of our departments for years. We have never had leadership in public sector reform."
To date the question of where the buck stops - is it a political, legal or a managerial issue? - has not been definitively addressed in public debate or legislation. Perhaps Travers is such an opportunity.