Strengthening Civil Service
Accountability and
Performance A Consultation Process Submission by the Association of Assistant
Secretaries and Higher Grades
March 2014 1 Strengthening Civil Service Accountability & Performance
Table of Contents
Foreword
2
Executive Summary
3
Introduction
5
Chapter One – Accountability
7
Chapter Two – Existing Accountability Mechanisms
18
Chapter Three – Ministerial Responsibility & Accountability
26
Chapter Four – Civil Service Responsibility & Accountability
35
Chapter Five – Managing & Measuring Performance
46
Chapter Six – Proposals for Reform
55
Chapter Seven – Conclusions
72
Annex 1 – Extracts from Travers Report (2005)
76
References
79
Association of Assistant Secretaries & Higher Grades
Strengthening Civil Service Accountability & Performance
Foreword
The Association of Assistant Secretaries & Higher Grades (hereinafter the
Association), has been in existence since the 1970s. While we represent senior
management grades across the Irish civil service, we are not a trade union but
rather a staff representative organisation.
Through our membership, we bring together many years’ experience and
considerable expertise in the business of public administration. As such, we
believe we have a contribution to make to the ongoing process of reform in our
public service and we are anxious to work constructively with Government in
that regard.
In that spirit, the Association welcomes the publication of the Government's
consultation paper ‘Strengthening Civil Service Accountability and Performance’
and wishes to make the following Submission as part of the Consultation
Process.
The Association of Assistant Secretaries & Higer Grades
27 March 2014
Association of Assistant Secretaries & Higher Grades
2 Strengthening Civil Service Accountability & Performance
Executive Summary
The Association agrees that there should be in place a robust and objective
system for measuring performance and guaranteeing accountability across
the Irish public service and we will support the introduction where needed of
substantive and meaningful reform.
There is a consensus among commentators that there are significant deficits
in terms of establishing the respective accountabilities of Ministers and civil
servants. Yet, there are already in place many rules and procedures for the
purpose of establishing accountability in our public service. We explain in the
course of our Submission how, collectively, these impact significantly on the
culture and day to day working of the organisation. The Association is
concerned that the Consultation Paper fails in many instances to explain how
the suggested options for reform would impact on these existing systems of
accountability.
In this regard, a central theme running through our Submission is that we
should be seeking to achieve better accountability as distinct from simply
introducing more accountability. We need to replace existing inefficient
systems rather than supplement them. Furthermore, existing enactments,
including the Public Service Management Act, 1997 (the PSMA) already
provide a strong legislative base for the implementation of many of the
suggested reforms and significant legislative change may not be required.
Nonetheless some element of legislative consolidation may be beneficial.
The Constitutional responsibility of Ministers is fundamental to our system of
accountability and that should remain the case. Equally, we wish to see the
long standing tradition of independence and integrity in the civil service
preserved and enhanced. A strong and efficient system of accountability
should recognise these complementary roles and encourage and support a
sense of personal responsibility and integrity at all levels within our public
administration.
Additionally, we need to rid ourselves of our predominantly negative view of
accountability as no more than a process of finding someone to blame when
Association of Assistant Secretaries & Higher Grades
3 Strengthening Civil Service Accountability & Performance
things go wrong. Real accountability should recognise excellence as well as
sanctioning underperformance.
The Consultation Paper sets out what it considers are the "Key Questions for
Consultation Process". This is a complex issue and, in our opinion, the issues
arising are too broad for discussion to be confined to a question-and-answer
framework. Therefore this Submission goes beyond the scope of the specific
questions asked in the Consultation Paper.
Instead, this Submission is structured in seven chapters, the first of which
looks at the meaning of accountability and how it impacts on the culture of
the civil service. We look to define the term and establish the hallmarks of a
robust and efficient system of accountability. Chapters Two, Three and Four
look at existing mechanisms of accountability and at some of the issues
associated with establishing the respective responsibilities of Ministers and
civil servants. Chapter Five addresses the issue of measuring and then
managing performance in the civil service. Chapter Six comments on the
options for reform identified in the Consultation Paper.
Finally, in Chapter Seven we draw some conclusions on the mixture of
legislative, administrative and cultural reforms we believe can make a
contribution to establishing a meaningful system of accountability in the civil
service.
Some options for reform identified in the Consultation Paper, such as the
introduction of fixed term contracts for senior officials and greater political
involvement in designing the job specifications of senior civil service posts,
would, in our view, be detrimental to our overall system of public
administration and should not be pursued.
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4 Strengthening Civil Service Accountability & Performance
Introduction
In the period between 2008 and 2010, trust in our system of public
administration declined sharply and although it has fluctuated since then, it
remains low with only 18% of citizens saying that they have trust in
Government.1 This is perhaps unsurprising given that this period coincides
with one of the most severe financial and economic recessions of modern
times. The public feel let down by the system and their frustration is
compounded by what is seen as the lack of any appreciable accountability
among civil servants and politicians. It is a common complaint among
members of the public that, even when things go horribly wrong, no one is to
blame, and no one gets the sack.
It is fundamental in any democracy that those entrusted with the the delivery
of public services, and expenditure of public monies, should be held to
account in the exercise of those duties. Meaningful accountability is critical to
generating trust in our system of government and in ensuring the optimal
performance of our public administration to the benefit of all citizens.
The Government's Consultation Paper provides a useful starting point for a
discussion on accountability and performance management within our system
of public administration.
However, we identify in the course of this
Submission what we believe to be some significant gaps in the Paper’s
analysis.
We believe that the Paper falls short particularly in terms of the
conclusions it draws from an incomplete analysis and some of the subsequent
proposals made for reform.
While considerable reliance is placed on the experience of other Westminsterstyle parliamentary systems in implementing reforms in this area, it is very
difficult to assess the impact, intended or otherwise, of such reforms over the
longer term, or to determine whether or not such reforms have been
successful. Based on the analysis set out in this Submission, we believe the
evidence presented in the Consultation Paper does not support the reforms
1 Boyle, R., “State of the Public Services: Public Sector Trends, 2013”, Institute of Public Administration;
January, 2014.
2 Behn, R. “Rethinking Democratic Accountability”, Brookings Institutions’ Press, Washington, 2001.
Association of Assistant Secretaries & Higher Grades
5 Strengthening Civil Service Accountability & Performance
suggested in every case. Some proposals need to be pursued with caution or
not at all so as to avoid unintentionally damaging our system of public
administration.
Any system of accountability within the public service, particularly at a time
of curtailed public spending,
must be able to recognise the limitations on
what the organisation can realistically deliver with limited resources.
Ensuring a balance between ambition and realism is critical to measuring
performance in our civil service
The present debate must deal comprehensively with the twin pillars of
administrative and political accountability. The Association believes that some
aspects of this relationship are not adequately addressed in the paper and, for
instance, there is no mention at all of the role of Special Advisers to Ministers
in the day-to-day activities of Government Departments.
The Association can agree with significant elements of the Consultation Paper
and, based on that and on our own analysis that follows, will support those
reforms we believe capable of making a positive contribution to a strong and
efficient system of accountability.
We look forward to contributing further to this process as it evolves.
NOTES
For the sake of clarity, references herein to the ‘Paper’ are references to the
Government’s Consultation Paper published on 9 January, 2014. References
to paragraph and section numbers are to paragraphs and sections in the
Consultation Paper. The Paper, together with details of the associated
consultation process can be accessed here: http://per.gov.ie/civil-serviceaccountability-consultation-process/
References herein to ‘Submission’ and to chapter numbers are references to
this work which represents our response to the consultation process.
Also, the use of male pronouns throughout should be interpreted as also
including the female meaning where the construction so warrants. The
narrative would have been unduly cumbersome if both had been used
repeatedly.
Association of Assistant Secretaries & Higher Grades
6 Strengthening Civil Service Accountability & Performance
Chapter One
Accountability
What is Accountability?
Accountability is, at best, an elusive concept particularly in a public sector
context. There are many definitions and a wealth of international literature on
the subject. What does seem to be agreed, almost universally, is that
weaknesses in accountability regimes will ultimately weaken the system of
Government and undermine public trust in the administration. It is therefore
important to try and develop an understanding of what is meant by
accountability.
Robert D Behn, in his seminal work on accountability in the US
administration (2001) 2 looks at the etymology of “accountability” (from the
Latin for “to count”) and concludes that the most obvious meaning of the term
relates to explaining how money is spent. An “Accounting Officer” in the
public sector is a statutory position (usually filled by the administrative head
of a Department) with direct responsibility for the expenditure of public
monies. But accountability in the public sector is about much more than
managing the finances. Again, according to Behn, public servants are
accountable for conforming to the standards of ethical behaviour and
governance expected in public office; they are accountable for fairness in the
delivery of services to the public; and they are accountable for their own
performance in the exercise of their duties. In order to hold an individual
accountable, we must set a benchmark against which they can be judged. We
set rules, regulations and standards in respect of financial management,
fairness and ethical behaviour; in the case of performance we must set an
objective goal or target to be achieved. These are the measures of
accountability.
Our systems of accountability, in common with those of almost all
Westminster-style democracies, are built on the constitutional principle of
2
Behn, R. “Rethinking Democratic Accountability”, Brookings Institutions’ Press, Washington, 2001.
Association of Assistant Secretaries & Higher Grades
7 Strengthening Civil Service Accountability & Performance
absolute Ministerial responsibility (See Chapter Three below). The
Consultation Paper contends (Paragraph 7.1) that this principle dominates
the administrative and management culture of the civil service leading to the
traditional view that the Irish civil service is conservative and risk averse.
Although no empirical evidence has been referenced to support the assertion,
the Paper suggests (paragraph 7.2) that this culture is typified by a civil
service that acts cautiously to ensure that Ministers are not embarrassed by
its actions and decisions. It is also suggested that Ministers seek to tightly
control civil service activities in order to protect themselves.
The Association believes this view is simplistic. In fact, a much more likely
reason for conservatism is that civil servants are necessarily and correctly
subject to very strict rules of governance and procedure in accounting for
their spending of public monies. This can lead to what Behn describes as the
“accountability dilemma”, a trade-off between accountability for finances,
fairness and behaviour on the one hand and accountability for performance
on the other. By creating an excess of accountability mechanisms we run the
risk of stifling innovation and original thinking. According to Behn
“The accountability rules for finances and fairness can hinder performance.
Indeed the rules may actually thwart performance”
A good example of this would be both national and EU rules and procedures
on public procurement which require civil servants to act very differently than
might their counterparts in the private sector. Enterprise Ireland, in advice to
client companies, has observed as follows:3
“…the … environment differs substantially from that of the private sector
due to the regulation and control exercised on the public sector."
Former Secretary-General, Paul Haran (2012) argues that decision-making on
public resources is now rigidly centralised with the focus almost entirely on
spending and its control. While this may keep spending down, it has, says
Haran, the effect of shifting the focus away from the primary aim of public
3
Enterprise Ireland, “Guide to Tendering for Public Sector Contracts in Ireland & the United Kingdom”, 2004.
Association of Assistant Secretaries & Higher Grades
8 Strengthening Civil Service Accountability & Performance
administration which is the optimal delivery of services.4 This is a classic
illustration of the “accountability dilemma” at work.
Another factor encouraging conservatism is that, unlike much of the private
sector with which the public engages by choice, the public sector in one way
or another imposes itself on the everyday lives of all citizens. Thus, the
business of the public sector is often conducted in the public domain and is
subject to a level of intense scrutiny, not only by a complex system of internal
controls, but also by the media and by the public generally, that does not
apply in much of the private sector. The public sector is often forced to
implement measures which will be unpopular with one vested interest group
or another, or which impact adversely on some element of society. Taking
risks with public welfare is unlikely to be met with widespread acclaim.
Reporting Accountability v Management Accountability
It is important to distinguish between two different forms of accountability
which are not mutually exclusive and which sit side by side within any
system of public administration. The first is what we might call “reporting
accountability” which imposes an obligation on individual public servants to
report on their actions to a higher authority or authorities, including, for
example, the Minister and the Oireachtas. The second, which we term
“management accountability” is the requirement of individuals to submit to a
system of reward and sanction (or discipline) in respect of the performance or
otherwise of their duties. Under current accountability arrangements provided
for in the Civil Service Regulation (Amendment) Act 2005, the SecretaryGeneral of the Department is responsible for managing all matters relating to
performance, conduct and discipline of civil servants below Principal Officer
level. In respect of those at Principal Officer level and above, accountability is
to the Minister of the Department. At Secretary-General level, management
accountability is to the Government.
4
Haran, P., (former Secretary-General, Chair of the UCD Michael Smurfit Graduate Business School),
“Decentralisation of Power Key to Improving Services”, the Irish Times, 8 June, 2012.
Association of Assistant Secretaries & Higher Grades
9 Strengthening Civil Service Accountability & Performance
These two forms of accountability are sometimes referred to as “answerability”
and “enforcement”.5
Analogous to this is the distinction to be made between the accountability of
individuals or groups of individuals on the one hand and organisational
accountability on the other. The performance of an individual is not
necessarily reflected in the performance of the organisation for which he is
called to account. We refer further to this issue in Chapter Five below.
For the purposes of this Consultation Process, it is important that the
distinction between these different forms of accountability is understood. In
particular, any accountability of civil servants to report to an authority other
than the Minister, for example the Oireachtas, should not necessarily confer
on that authority any form of management accountability. If it did, it would
carry with it a significant risk of the politicisation of our civil service and that
would be a hugely retrograde step.
Fair & Objective Procedures
Ultimately, the role of the administration is the delivery of services to the
public. While it is absolutely fundamental that the civil service should be
held accountable in the performance of that role, such accountability must
have regard to due process and be subject to fair and objective procedures. In
any system of Government, civil servants are often unable to meet all public
expectations because they are working in the balance of the public interest.
They are not working in the interest of any individual or any single element of
society. Additionally, they are working within the constraints of the rules and
regulations governing their behaviour and within the limitations of the
policies and resources at their disposal. Public expectation is not, therefore, a
fair measure of accountability.
The media has an important role to play in keeping the public informed about
the activities of our public service. However, although the media has a right
to comment, not all elements of news reporting is responsible and objective
and some elements of the media can on occasions be agenda driven and
5 Akpanuko, E. & Asogwa, I.; “Accountability: A Synthesis”; International Journal of Finance & Accounting,
2013
Association of Assistant Secretaries & Higher Grades
10 Strengthening Civil Service Accountability & Performance
sometimes poorly informed. Although not the subject of this Submission, the
media too must be held to account for its own activities and it is not always
the most suitable arbiter of performance in the public service.
The Consultation Paper asks what the hallmarks of a robust &
efficient system of accountability are. We suggest:
•
Based on fair and objective criteria, on independent and
informed judgement of performance, and on systems of scrutiny
that reflect due process.
•
Encourages a culture of personal responsibility and integrity.
•
Upholds and encourages the long-standing civil service tradition
of professionalism, political independence and impartiality.
•
Rewards excellence and sanctions failure in equal measure In Chapter Two we look in more detail at the existing accountability
mechanisms in our civil service. At its simplest, our system of public
administration provides for a linear chain of accountability that runs through
the hierarchy of individual Government Departments to the administrative
head of the Department (the Secretary-General), and then to the Minister and
ultimately to the Oireachtas, who will judge the administration on its
performance in the delivery of services to citizens.
Therefore, both constitutionally and statutorily, the right of the public to hold
our administration to account is, in large part, exercised on their behalf by
their elected representatives in Parliament. (There are exceptions – for
instance, the right of the public to access information directly under freedom
of information legislation.) This imposes a huge responsibility and burden on
members of Parliament who are themselves in turn democratically
accountable to the electorate. The challenge for Parliament is to be objective
and dispassionate and, in particular, to avoid exercising any element of selfinterest when it comes to holding the civil service to account. Additionally,
they must be able to identify and take into consideration the many external
Association of Assistant Secretaries & Higher Grades
11 Strengthening Civil Service Accountability & Performance
influences that impact on the implementation of public policy (See Chapters
Two & Five below).
Personal Responsibility & Integrity
Paragraph 2.5 of the Consultation Paper recognises a long standing definition
of accountability as meaning “the formal obligation to submit to a mechanism
designed to achieve external scrutiny in explaining and justifying past conduct
or actions and with the possibility of facing consequences arising.”
Paragraph 2.7 suggests a different formulation in which accountability is seen
“as corresponding to a sense of personal obligation to take responsibility for
one’s own actions.”
The Paper suggests that these are “divergent interpretations”. The
Association, in fact, does not agree and believes that these two
characterisations of accountability are not mutually exclusive but rather
complementary. More to the point, a regime that encourages a sense of
personal responsibility is arguably critical to any effective system of
accountability. Conversely, a robust system of accountability should support
and encourage a sense of personal responsibility and integrity. This is
particularly so within a busy administration where it is not always practicable
to require that everyday decisions and instructions are recorded and the
record agreed by all parties involved.
Paragraph 2.7 suggests a possible dilemma for civil servants who may be torn
between their “professionalism and sense of personal morality” and reliance on
“instructions from political masters”. That statement seems to suggest that the
two things may not coincide and the implications of that possibility require
very careful consideration.
This concept of taking responsibility for one’s own action is discussed in
Section 2 of the Paper in the context of civil servants and how it interacts with
their relationships with their “political masters”. We discuss it in more detail
in Chapter Three below – “Ministerial Responsibility & Accountability”.
Association of Assistant Secretaries & Higher Grades
12 Strengthening Civil Service Accountability & Performance
Civil Service Independence
Despite working so closely with the political system, civil servants are also
required to be independent of it. They must be responsive in terms of
delivering the agenda of the democratically elected Government of the day but
they must be free to offer robust advice when they believe it warranted. The
risk in seeking greater accountability of senior officials is that the balance in
the relationship is upset. Lodge et al (2013) 6 express the difficulty thus:
“Tip too far towards ‘independence’ and there is a danger that the Civil
Service will become self-serving and immune to political leadership; too far
the other way and there is a danger that it will become captured, serving
partisan rather than the national interest.”
The Irish civil service has traditionally enjoyed a reputation for
professionalism, independence and integrity. The Civil Service Code of
Standards & Behaviour7 states that civil servants, in the performance of their
official duties, “must conscientiously serve the duly elected Government of the
day, the other institutions of state and the public” and “must advise and
implement policy impartially and, in particular, be conscious of the need to
maintain the independence necessary to give any future Minister or Government
confidence in their integrity.” It is for this reason that civil servants are also
restricted from having any active involvement in politics.
It is critical to the effectiveness of our administration that such reform
measures as are finally agreed should avoid undermining or weakening the
independence of our civil service. At the same time, the Association
acknowledges that guaranteeing responsiveness requires necessarily that
there be some limits to civil service independence.
We recommend retaining and, if possible, strengthening the Code of Conduct,
perhaps through embodiment in legislation. This can contribute to ensuring
the required balance in the relationship between civil servants and Ministers
is achieved.
6
Lodge, G., Kalitowski, S., Pearce, N., Muir, R. (2013) Accountability and Responsiveness in the Senior Civil
Service: Lessons from Overseas, Institute for Public Policy Research; 7 The Standards in Public Office Commission “Civil Service Code of Standards and Behaviour”, September
2008, Part 1, paragraph 2(a).
Association of Assistant Secretaries & Higher Grades
13 Strengthening Civil Service Accountability & Performance
Reward & Sanction
A further difficulty with the two characterisations of accountability described
in the Paper is that the language used in each case tends to reinforce the
notion of "accountability" as a term that has become synonymous with
"blame". All too often, the process involves seeking a scapegoat when things
go wrong (see Para 2.13 of Consultation Paper) and this is generally accepted
in international literature on the topic.
As the Paper further acknowledges (Para 2.11), a common refrain among
commentators on the Irish public service, and one repeated in the Programme
for Government, is that "no one is accountable". Unfortunately, that refrain is
almost exclusively used when commentating on a perceived failure in public
administration and consequent damage to the public interest. However, not
all failure merits sanction in addition to which it is rare for commentators to
seek out the person responsible in the event that a particular policy or set of
actions benefits our citizens.
The Association offers the following definition of
Accountability.
“A process or combination of processes which, taking account of
all relevant factors including the availability of resources and the
impact of external influences, independently and objectively
assesses and measures the performance of individuals, groups of
individuals or organisations against an agreed set of targets,
obligations and responsibilities and which, where appropriate,
determines a proportionate reward or sanction in respect of the
outcomes attributable to that performance.”
The process of delivering change in any large organisation is a difficult one
and this applies not just in the public sector. If organisations are to be
encouraged to embrace reform, leadership of the organisation must be able to
demonstrate a positive vision of how those reforms will impact on individuals.
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14 Strengthening Civil Service Accountability & Performance
Unfortunately, the predominantly negative association with the notion of
accountability is liable to engender distrust of a system that is seen as simply
looking for someone to blame.
A robust system of accountability should recognise excellence and sanction
failure in equal measure. That balance is not always reflected in public debate
on the civil service, nor within the systems of accountability that currently
apply. Recent reforms have understandably focussed on curtailing public
expenditure but the impact on resources and on organisational capacity, as
well as on incomes, promotion opportunities and consequently on morale,
must be recognised.
We recommend that the process of civil service reform currently underway8
take cognisance of this aspect of accountability, particularly in terms of
recruitment, training, promotion and remuneration policies. A clear statement
of Vision for the Civil Service should incorporate a commitment to increasing
the attractiveness of the civil service as an employment option and providing
real career prospects for the best and brightest talent this country has to
offer.
The Principles of Accountability
The consultation paper sets out at paragraph 9.4 what are generally
considered to be the four principles or characteristics of accountability. The
Association is broadly in agreement with these principles and believes that
they should form the basis for any review of existing accountability and
performance mechanisms within the public service. However, in regard to the
Second Principle (‘Sufficiency of Control’), we believe that this should be
expanded to make it abundantly clear that this includes ensuring that the
organisation and individuals within it have the resources and capacity to
carry out the tasks assigned to them. This is the distinction between
ambition and realism referred to earlier. Increasingly, the allocation of
human, physical and financial resources are tightly controlled by central
government and individual Departments rarely have control over such
8
Public Service Reform Plan, 2014 – 2016 (http://reformplan.per.gov.ie/index.html) Association of Assistant Secretaries & Higher Grades
15 Strengthening Civil Service Accountability & Performance
matters. This impacts on what can be delivered and must be recognised
within our systems of accountability.
We have also suggested a fifth principle – sufficiency of expertise.
Civil servants have generally been regarded as “generalists” who should be
capable of performing whatever tasks are assigned to them. As a result, they
are sometimes judged as lacking the expertise needed to cope with what are
seen as the increasingly complex demands of effective public administration.
However, such criticism is unfair and overlooks the fact that a wide range of
experience across the organisation is a huge advantage in terms of
understanding the broader impact of public policy. In fact, the majority of
career civil servants are skilled public administrators.
Nonetheless, in the past decade or so, there has been increasing demand for
specialist skills and expertise in particular disciplines within the civil service.
This is likely to continue to be the case in the years ahead.
Recruitment policies have been increasingly adapted to cater for the
introduction, where required, of such specialist expertise into the civil service
and, for example, posts at Assistant Secretary level have for the past number
of years been filled by means of open competition. One of the significant
benefits of this is that it has opened up recruitment at this level to the wider
public service thus significantly increasing the pool of relevant expertise from
which senior administrators are chosen. In the private sector, it is not
unusual for recruitment to reflect a sectoral trend so for example, senior
bankers are often recruited from within the financial services industry while
senior managers recruited to large multiple supermarkets might also be
expected to have a career background in the retail trade. It should not be a
surprise, therefore, if public service recruitment demonstrates a similar trend.
We also must recognise, in so far as we can, individual talents, training and
skills and make job assignments accordingly. We must also invest sufficient
resources in the continuous professional development of staff and in
workforce planning to meet the increasingly complex demands of effective
public administration (See Chapter Four below).
Absent any one of the foregoing principles in a given set of circumstances and
the entire chain of accountability runs the risk of collapse.
Association of Assistant Secretaries & Higher Grades
16 17 Strengthening Civil Service Accountability & Performance
The Four (actually, five) Principles of Accountability
•
Clarity of Accountability: The person accountable must know
what he or she is accountable for, and to whom he or she is
accountable and these accountabilities must be documented and
publicly available;
•
Sufficiency of Control:
the person accountable must have
sufficient control over the outcomes for which he or she is held
responsible (including access to all necessary resources);
•
Clarity of Consequences: the person accountable must be made
aware of the likely consequences that will result from carrying
out responsibilities
at above or below
defined levels
(and
consequences should be proportionate);
•
Sufficiency of Information: there must be enough information
available to judge whether responsibilities have been performed.
•
Sufficiency
of
Expertise:
The
person
accountable
must
reasonably be expected to have the capacity to carry out the
tasks assigned to them and for which they have been made
accountable.
We will refer to these principles of accountability again as we go through our
Submission to highlight their relevance to particular areas of responsibility.
Association of Assistant Secretaries & Higher Grades
Strengthening Civil Service Accountability & Performance
Chapter Two
Existing Accountability Mechanisms
The Function of Public Administration
The business of public administration is a complex one and ranges from the
formulation and implementation of policy to delivery of public services,
support for the political system, and the regulation of society. The civil service
comprises Departments of Government and a range of specialist offices such
as the Office of the Attorney General, The Office of the Revenue
Commissioners, the Houses of the Oireachtas, and the office of the
Comptroller & Auditor General.
Policy development, a core function of the civil service, involves research,
impact analysis, and public consultation all designed to facilitate an
understanding of societal needs and the making of informed judgement on the
public interest. These are key stages in the process of developing and advising
Ministers and Government on appropriate policy options. The process is
complicated by the interaction of policies which overlap, are interdependent,
or, sometimes, contradictory, and often in the most unexpected ways.
For example, Government promotes business but also regulates it and
protects the interests of consumers; it both promotes and regulates the
agriculture sector; education policy impacts on industrial policy; health policy
overlaps with social protection policy; employment law interacts with job
creation; data protection laws prevent the sharing of information across
Government; immigration policy affects labour supply; Government
incentivises the motor industry while encouraging citizens to use public
transport. Competition policy seeks to liberalise markets, myriad Government
policies protect them. Governments promote national interests while
remaining loyal to international obligations. This complex interrelationship
not only complicates policy making but also makes policy evaluation
extremely difficult. The link between cause and effect can sometimes be
tenuous.
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18 Strengthening Civil Service Accountability & Performance
The task of implementing and monitoring agreed policies is no less
demanding. It can take a number of years before the outcomes of policy
initiatives can be properly assessed. During this time, the process is
dependent on the availability of resources, the cooperation of multiple
Government Departments and agencies, shifting political priorities (including
changes of Government), technological developments, the impact of external
influences and events (both national and international), and public opinion.
The function of implementing policy and delivering services to the public is
subject to legislative and administrative rules and is often assigned to
autonomous and statutorily independent agencies and offices (e.g. the
Revenue Commissioners). In other cases the delivery function remains the
responsibility of line departments (e.g., certain grant functions, the
administration of social welfare systems and the issuing of work permits).
Regardless of where such responsibility lies, delivery of services must be
achieved on a fair and equal basis that recognises the entitlements of all
citizens. In particular, decisions in respect of the entitlements of individual
recipients of public services must be transparent, rules based and free from
any form of personal influence, patronage or favour, whether political or
otherwise.
The civil service is responsible for managing these processes and, in so doing,
is held accountable through a variety of mechanisms. Throughout the cycle,
the system is overlaid with a complex web of internal management controls,
reporting obligations as well as public and international scrutiny. Much of
our accountability structures are underpinned by statutory provision
including for example the Public Service Management Act, 1997, the Civil
Service Regulation Act, the Freedom of Information Acts and even the
Constitution itself. Table 1 at Paragraph 2.2 of the Paper lists many of these
mechanisms although it does omit some of the detail. There is no mention for
example of the internal audit function of Departments or of the Public
Spending Code.
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19 Strengthening Civil Service Accountability & Performance
The Mechanisms of Accountability
The principal chain of accountability within our civil service is the
hierarchical structure within individual Government Departments and
through that to the Minister and, ultimately, the Oireachtas. The Minister has
the primary responsibility of reporting to the Oireachtas in respect of the
Department’s activities although individual civil servants also appear before
parliamentary committees (sometimes with their Minister, sometimes
without). Secretaries-General and Accounting Officers (usually one and the
same person but with separate legal identity) have specific statutory
responsibilities in this regard. However, the power of the Oireachtas to take
evidence from civil servants is not unfettered and is subject to statutory
restriction. A civil servant may not, for example, offer an opinion on any
aspect of Government policy.
In addition, there are multiple other arrangements and individual civil
servants may be accountable to a variety of other authorities including
internal audit committees, the Comptroller & Auditor General, the media, the
public, tribunals of enquiry, the Standards in Public Office Commission,
statutory regulators (such as the Data Protection Commissioner), EU
institutions, and, more recently during our period of economic crisis, the
Troika. In addition, under reforms currently in progress, there will be greater
Oireachtas scrutiny of legislative proposals before legal drafting even begins
(although civil servants will not be present for these discussions). Civil
Servants must also contend internally with the priority afforded to their
responsibilities to the political system through such tasks as attendance on
Ministers, providing answers to parliamentary questions, topical debates,
Ministerial representations and speech writing. There is also a significant
degree of horizontal accountability9 with ever increasing reporting
requirements to central Departments such as the Departments of the
Taoiseach, Finance, and Public Expenditure and Reform as well as to Senior
Officials Groups and Cabinet Committees.
Finally, like all citizens, civil servants are ultimately answerable to the courts.
9
See paragraph 2.9 of Consultation Paper
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20 Strengthening Civil Service Accountability & Performance
Many of the mechanisms, while serving an accountability function, also aim
to facilitate public access to information. For example Parliamentary
Questions and Freedom of the Information legislation are often used as a
mechanism for obtaining information (which may or may not already be in the
public domain) in circumstances where the issue of accountability doesn't
always arise.
Meanwhile, functional responsibility of individual civil servants derives from a
range of practices and procedures some of which are not documented in any
detail in the Consultation Paper.
The Public Service Management Act, 1997
The Paper refers at a number of junctures to the Strategic Management
Initiative (SMI) dating from the 1990s which in turn gave rise to the Delivering
Better Government (DBG) report of 1996 (see paragraph 7.6). Ireland is not
unique in implementing the reforms typified by these initiatives and which
have become known globally, particularly among the Westminster
democracies, as New Public Management (NPM). The difficulty with NPM
according to some critics is that it has failed to deliver on its promises and in
some instances has contributed to deficits in accountability and control. 10
(See also below Chapter Four – ‘Policy Formulation & Advice’.)
One of the key developments arising out of the DBG report was the
introduction of the Public Service Management Act, 1997 (PSMA) which
sought to redefine the relationship between Ministers and their senior civil
servants. The Act is an important feature of existing accountability
arrangements and is dealt with at some length throughout the course of the
Consultation Paper (see for example paragraphs 3.19, 4.3 and 6.8).
For example, the PSMA requires Government Departments to periodically
prepare a Statement of Strategy detailing the “key objectives, outputs and
related strategies” of the Department. The Act is also clear that the SecretaryGeneral is responsible for managing Departmental policies and delivering the
required “outputs” (not outcomes) and furthermore is directly accountable to
10
Lodge, G., and Kalitowski S., Innovations in Government International perspectives on civil service reform,
Institute for Public Policy Research, London; 2007 (Pg. 6) Association of Assistant Secretaries & Higher Grades
21 Strengthening Civil Service Accountability & Performance
the Minister in respect of these and other Departmental functions. The
Secretary-General is also responsible for assigning Departmental functions to
appropriate officers within the Department. Flowing from these provisions are
a series of procedures under which each business unit within the Department
must prepare an annual business plan setting out their key goals and
objectives and which must be allied to measurable performance indicators.
Furthermore, each individual must agree with their superior officer an annual
role profile setting out the key responsibilities with which they are tasked.
The First Principle of Accountability
The person accountable must know what he or she is accountable for, and
to whom he or she is accountable and these accountabilities must be
documented and publicly available.
These requirements should provide clarity in terms of the aims and objectives
of individual Departments and also in terms of who does what within that
Department. And yet an enduring criticism of our accountability structures is
the lack of distinction in terms of the respective responsibilities of Ministers
and civil servants. For example, Paragraph 7.13 of the Consultation Paper
states:
“In hindsight, the reforms embodied in the PSMA have not had the
anticipated and desired impact in sufficiently clarifying the responsibilities
of Ministers and civil servants or the extent to which the latter can
reasonably be held accountable and responsible for their actions and
decisions.”
Others share this view. The Institute of Public Administration (IPA) (2014) in
its response to the Consultation Paper states that “(T)he Act did not fully
delineate the respective accountabilities of Ministers and civil servants..”11
11 MacCarthaigh & Boyle, “Civil Service Accountability: Challenge & Change”, Institute of Public Administration,
2014
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22 23 Strengthening Civil Service Accountability & Performance
The Mullarkey Report (2002)12 was less critical but concluded nonetheless
that the accountability of both Secretaries-General and accounting officers
within the framework of the PSMA is appreciably stronger than for other
senior level managers in the civil service.
There are a number of reasons why these views might prevail. Most obvious
is the strict constitutional provision that a Minister is ultimately responsible
for everything that his Department does (see Chapter Three below). This
makes it difficult to hold the administration to account without also attaching
responsibility to the political head of the Department.
Secondly, both Departmental strategy statements and divisional business
plans tend to contain very significant amounts of detail and may run the risk
of attempting to focus on too many objectives, or on low-level outputs, which
makes the assessment of the performance in the delivery of key political
objectives more difficult, particularly in the case of of senior officials in the
organisation. New Zealand, for example, has abandoned attempts to specify
everything a Secretary-General is responsible for, and performance
agreements now focus on a smaller number of specific areas instead. 13
Thirdly, while the Act confers very specific responsibilities on the SecretaryGeneral and Accounting Officer of the Department, and also provides a
statutory framework for the assignment of responsibilities to officials below
the rank of Secretary-General, officers receiving such assignments are
accountable only to the Secretary-General rather than directly to the Minister.
Finally, as the Consultation Paper highlights at Paragraph 7.14, there is no
requirement under the Act to prepare these assignments on an annual basis
and the assignments are not made uniformly across all Government
Departments. The Act is also silent on the level or grade within the
Department to which such assignments should cascade.
Though these may all represent weaknesses in the PSMA, it would be unwise,
in the view of the Association, to dismiss in their entirety the procedures and
12 Report of the Working Group on the Accountability of Secretaries-General & Accounting Officers, 2002 (cited
hereafter as the Mullarkey Report)
13 Paun, A. and Harris, J. “Reforming Civil Service Accountability: Lessons from New Zealand and Australia”
(London: Institute for Government), 2012
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Strengthening Civil Service Accountability & Performance
processes which flow from that Act and which, as we have described,
contribute to role clarity for the majority of civil servants. Furthermore, while
we recognise in the course of this Submission that elements of legislative
reform may be required (and these are addressed below and summarised in
Chapter Seven), the reality is that the PSMA and other relevant statutes
provide a strong legislative foundation upon which substantive administrative
reforms can be based.
More Accountability v Better Accountability
For many public servants, the reporting requirements arising from the
multiple accountability mechanisms we have described above are in danger of
becoming the job rather than a consequence of it. They represent a very
significant administrative burden. The IPA (2014) recognises that
notwithstanding the hierarchical structure of our civil service, multiple
accountability mechanisms are the norm and that civil servants are
increasingly answerable, if not formally accountable, to a wide variety of
organisations and bodies. While acknowledging that such multiple
accountability mechanisms are here to stay, the IPA observes that few
commentators are prepared to say where the threshold lies between
accountability deficit and sufficient accountability or, indeed, when too much
accountability might become a problem. Behn (2001) speaks of the “trade-off”
between accountability and efficiency. The notion is that distrust of
Government leads to a demand for greater accountability which in turn
results in greater inefficiency as civil servants are required to justify
everything they do, as they do it.
The Challenge
In the view of this Association, the challenge in pursing reform is not to
introduce more accountability, but to achieve better accountability
Association of Assistant Secretaries & Higher Grades
24 Strengthening Civil Service Accountability & Performance
It is also interesting to observe that despite the multitude of accountability
mechanisms identified, both above and in the Consultation Paper, there
remains a consensus among commentators that there are very significant
deficits in terms of the accountability of the public sector. This raises
questions about the value of some of these measures. Thus, considerable care
needs to be exercised in promoting additional reform to ensure that existing
ineffective measures are replaced rather than simply supplemented.
In that respect, some element of both legislative and administrative
consolidation may be beneficial in ensuring that that in so far as possible our
mechanisms for accountability are set out in one place and do not overlap.
Association of Assistant Secretaries & Higher Grades
25 Strengthening Civil Service Accountability & Performance
Chapter Three
Ministerial Responsibility & Accountability
The Focus of Reform
The specific commitment in the Programme for Government14 which the
Consultation Paper is intended to address begins as follows:
“We will pin down accountability for results at every level of the public
service from Ministers down….”
Also, paragraph 2.1 of the Paper clearly states that the focus of the paper is
“Ministerial responsibility and accountability, and the associated
managerial or internal accountability of the civil service and individual civil
servants.” (Emphasis added.)
Notwithstanding this, the ‘Key Questions’ posed by the Paper (Page 4), the
Conclusions (Section 10) and the Reform Options (Section 11) are
predominantly focussed on the civil service. In that respect, the Association is
surprised, for example, that the Paper makes no mention whatsoever of
Special Advisers to Ministers, particularly given the important role they play
in the relationship between Ministers and their civil servants. We address
this issue later in this Chapter.
Constitutional Position of Ministers
The principle of Ministerial responsibility is fundamental to our system of
accountability. Individual Ministerial responsibility is based on Article 28 of
the Constitution and is elaborated upon in the Ministers and Secretaries Act,
1924. Under these arrangements, a Minister is individually responsible to the
Oireachtas for the administration of the Department of which he is head. This
14 Programme for Government, 2011; http://www.merrionstreet.ie/index.php/about/programme-forgovernment/
Association of Assistant Secretaries & Higher Grades
26 Strengthening Civil Service Accountability & Performance
position is confirmed by Section 3 of the Public Services Management Act,
1997.
The practical reality, however, is that notwithstanding a Minister's
constitutional and legislative responsibility, his role may often be limited to
providing an account to Parliament of the activities of his Department and
may not always result in him having to accept personal responsibility when
things go wrong (paragraph 3.7). This may be the case, for example, in regard
to the consequences of actions taken on his behalf by his civil servants of
which he was not personally aware.
Paragraph 3.11 of the Consultation Paper suggests that it is a common
experience, both in Ireland and in other jurisdictions, that it is often difficult
to distinguish between an issue giving rise to personal responsibility (and, if
the circumstances so warrant, culpability) on behalf of the Minister, from a
situation of constitutional accountability in which he is only required to
account to Parliament for what happened. Resolving this dilemma is
potentially important.
There are arguably three questions to be addressed in deciding the issue.
They are;
a) Does the Minister have a statutory role or is the Minister being called
upon to explain an issue properly the responsibility of another
Minister or Department? Or does it relate to an action on the part of
an outside agency in respect of which a separate statutorily
accountable person exists?
b) Does the Minister have any personal involvement in, or knowledge of,
the circumstances or actions which require explanation? And if not, is
it a matter he should properly have known about?
c)
Is sanction warranted? How serious is the breach of trust between the
Minister and parliament or how serious is the damage to the public
interest and is it sufficient to warrant resignation? The answer may be
straightforward, for example where a Minister is found to have lied to
parliament. Or it may be an entirely subjective judgement determined
by media reaction and public opinion. Very often it is not something
that can be determined according to strict rules of accountability.
Association of Assistant Secretaries & Higher Grades
27 28 Strengthening Civil Service Accountability & Performance
The most difficult of the three questions to answer is often that relating to
knowledge which, at its simplest, usually plays out as a “who knew what and
when?” type debate. And that in turn, often brings us back to the issue of
personal responsibility - which we have already described above as
fundamental to any system of accountability.
Personal Responsibility
Personal responsibility can best be described as the willingness or otherwise
of individuals to acknowledge the consequences of their own actions. In some
instances, individuals may seek to deny personal responsibility in an effort to
avoid sanction for improper or inappropriate action. Alternatively, such
situations can arise as a result of poor communication in a crisis situation
leading to a misunderstanding as to what was decided and on whose
authority. In practice in a busy administration, important actions can hinge
on directions that are issued orally and where no record is made, written or
otherwise, to evidence what was agreed. Establishing accountability in such
circumstances may prove extremely difficult.
For example, there is the response of the then Ceann Comhairle (2009) to
public concern in regard to personal expenses he himself incurred in his time
in that office and in a previous Ministerial role.
“I was not aware of the cost of these arrangements and when I read the
detail in the past weeks I was embarrassed that such costs were
associated with some of the arrangements made on my behalf”
15
Ultimately, the Ceann Comhairle did accept personal responsibility for the
matter and resigned. In this case, given the subject matter, it could be argued
convincingly that even if he did not know, he should have known.
In the 1990s, in a matter investigated by the Tribunal of Enquiry into the Beef
Industry, significant conflicts of evidence arose between a Minister and his
civil servants in which the Minister denied that he had issued particular
instructions and denied also that he had ever seen a written record made by
the civil servants purporting to record those instructions. This was despite
15
Irish Times, September 17, 2009.
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Strengthening Civil Service Accountability & Performance
evidence to suggest that the written record had been submitted to the
Minister immediately after the meeting. The Tribunal was unable to decide
who was ultimately accountable for the consequences of the resulting
actions.16
In more recent years, a public controversy arose as a result of a long standing
administrative practice on the part of a Government Department that, it
transpired, was ultra vires. A dispute arose as to whether the then Minister
responsible was aware of the practice and despite various claims in that
respect, no record that might have determined the matter one way or the
other was found to exist.
The Travers Report
The resulting report of an investigation into the circumstances giving rise to
the controversy, the so-called Travers Report (2005),17 contained important
findings and recommendations in regard to the relationships between
Ministers, their Advisors and civil servants that have application across all
Government Departments. In particular, Travers observed as follows
"The relationship between a Minister and the top management of the
Department and, in particular, the Secretary-General…. must be built on
mutual trust, loyalty and confidence. Any overemphasis on note-taking and
the recording of minutiae in this relationship would undermine the
establishment of the mutual confidence essential to a productive working
relationship. At the same time, it is essential from the perspective of good
public administration, public-sector corporate governance and the
strengthening of the democratic process in Ireland, that firm ground rules
are set in each Department on the de minimus recording of decisions, taken
or not taken, either singularly or jointly by the Minister and top
management of a Department. This is particularly essential where
Report of Inquiry into the Beef Processing Industry, Stationery Office, Dublin, 1994
Travers, J., “Report on Certain Issues of Management & Administration in the Department of Health & Children
Associated with the Practice of Charges for Persons in Long-stay Care in Health Board Institutions & Related
Matters”, Houses of the Oireachtas, Joint Committee on Health & Children, March 2005, (hereinafter cited as
the Travers Report).
16
17
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29 Strengthening Civil Service Accountability & Performance
important turning points in policy development or operational practice are
taking place."
Travers made a number of important recommendations, particularly in regard
to records management, the recording of important decisions and internal
Departmental management structures which can be considered entirely
germane to the issue of accountability within any Government Department.
The most relevant of these (from Chapter 6 of the Travers Report) are included
in Annex 1 to this Submission. It is suggested that these recommendations
should be carefully considered as part of any suite of reforms that might be
put in place as a result of this Consultation Process.
The Association also notes that the Programme for Government (2011)
contains a commitment that is relevant in this regard:
“We will bring to an end the unacceptable executive practice where no
record is kept of Ministerial involvement with an issue and resulting
decisions.”
Shared Responsibility
A criticism of existing systems of accountability is that they fail to sufficiently
distinguish between the respective responsibilities of Ministers and senior
civil servants. While a central thrust of Consultation paper is directed at
remedying this perceived deficiency, the reality is that a clear distinction may
not always be possible. The issue of Ministerial responsibility does not have to
be an “either or” situation and, in practice, there may often be a degree of
shared responsibility between Ministers and senior civil servants which has to
be recognised. As Boston, J (1997)18 recognised in the case of New Zealand:
“Within the public sector, shared responsibility is the norm rather than the
exception. Cabinet Ministers are collectively responsible for what the
Government decides, Ministers are politically responsible (to Parliament and
the public) for what their Departments do, while chief executives are
managerially responsible for the operation of their Departments.
18
Boston, J. (1996), ‘Accountability and responsibility: the impact of recent public sector reforms on
administrative conventions’, paper prepared for CAPAM/NZIPA Regional Colloquy, Victoria University Law
School, Wellington, 13 – 15 November.
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30 Strengthening Civil Service Accountability & Performance
Necessarily, these respective responsibilities overlap a good deal; they
cannot be precisely delineated.”
Such shared responsibility may not always be inevitable, but it may be
inevitable that such shared responsibility, where Ministers and their civil
servants are jointly accountable, will arise from time to time. The issue to
arise in these circumstances is whether or not joint responsibility has the
effect of diluting accountability to the point where it becomes meaningless.
However, if shared responsibility is a situation that cannot be avoided then it
is one which must be accommodated within our systems of accountability.
Boyle (1998)19 postulates that the use of strategy statements in the context of
the PSMA is an attempt to do just that.
Distinctive Responsibilities
On the other hand, there may well be circumstances where the separation of
the responsibilities of Ministers and civil servants is not only possible but
desirable. In Chapter Two above we attempt to summarise the role of public
administration and refer in particular to the assignment of certain functions
to autonomous and statutorily independent agencies and offices which are
staffed by civil servants. Examples might include the Revenue Commissioners
or the Office of the Director of Public Prosecutions. The day to day operations
of these offices are properly free of political influence, and accountability in
those circumstances should rest with individual civil servants and, ultimately,
with the administrative head of the office. In many cases, Government policies
are implemented and public services delivered, by offices and agencies which
have been established precisely for the purpose of ensuring autonomy from
the political system.
However, we recommend that careful consideration be given to facilitating the
extension of this principle of autonomy to the functions of line Departments
which involve the direct delivery of public services analogous to those
provided by the independent offices mentioned above. For example,
entitlement to receipt of services or support from the public purse should be a
19 Boyle, R., “Governance & Accountability in the Irish Civil Service”, Committee for Public Management
Research, 1998
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31 Strengthening Civil Service Accountability & Performance
rules based decision and should not be influenced by any form of personal or
political patronage. If it is accepted that in these circumstances Ministers and
the Government make the policy and civil servants implement it, then this
principle should be reflected in our systems of accountability –
notwithstanding the ultimate constitutional responsibility of Ministers for the
activities of their Departments. One way to achieve this might be the
establishment in appropriate instances of independent appeals procedures to
oversee the fair and equitable delivery of such services.
The Carltona Doctrine
We have already seen how the Public Services Management Act, 1997
provides a statutory framework for the assignment of responsibilities to senior
civil servants. Regardless of any such assignments, there is also a generally
accepted principle that the range of duties for which a Minister has
responsibility is so wide that it would simply not be possible for the Minister
to undertake all of these duties personally. This principle gives rise to what is
known as the Carltona Doctrine whereby the powers vested in a Minister are
exercised by civil servants as agents of the Minister and are accepted as
decisions of the Minister.20
Importantly, neither formal assignments under the 1997 act nor the Carltona
Doctrine have the effect of absolving the Minister of any of his Constitutional
or legislative responsibilities.21
More importantly still, there should be no implication that actions performed
by civil servants, whether under a specific delegation of powers or through the
application of the Carltona Doctrine, are necessarily actions carried out
without the express knowledge, consent or perhaps even direct instruction of
the Minister.
20
The Doctrine derives from British case law dating from 1943 which has since been upheld by the Irish
Supreme Court.
21
Public Services Management Act, 1997, S.3. See also Mullarkey Report para 2.7 & Tutty, M “The
Governance and Accountability Implications of New Organisational Structures”, 1997, para 9.
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32 Strengthening Civil Service Accountability & Performance
The role of Special Advisers to Ministers
Special Advisers play an increasingly important role within the administration
of any Government Department. They are a critical part of the interface that
exists between a Minister and his senior civil servants. In addition to their
advisory role, they are an important cog in the internal communication
structures of the Department. They can be instrumental in conveying advice
and information from a civil servant to the Minister and in turn in relaying a
Minister's wishes on important policy and operational matters to top
management. They also work across Departmental boundaries in order to
bring greater cohesion and joined up thinking to the role of Government.
While in practice, the sphere of influence of a Special Adviser may seem to be
ever widening, their statutory role as provided for in the Public Service
Management Act, 1997, is unchanged and more limited than might first
appear. Section 11 of the Act states that an Adviser will assist the Minister by
providing advice and by “monitoring facilitating and securing the achievement of
Government objectives that relate to the Department, as requested by the
Minister".
The Minister may also direct his Adviser to perform other functions but only
those
“…that are not otherwise provided for in this Act and do not involve the
exercise of any specific powers conferred on the Minister or the Minister of
State, as the case may be, or any other office holder by or under any other
Act…”
A Special Adviser is accountable under the Act to the Minister who appointed
him in the first place.
The statutory role of the Adviser is positioned alongside the statutory role of
the Secretary-General and other civil servants and on occasions this could
cause confusion as to where the lines of responsibility are drawn. Additional
confusion may result from the various titles by which Advisers are often
addressed – Special Advisers, Ministerial Advisers, Political Advisers and,
sometimes, Policy Advisers. Their statutory title, however, is Special Adviser to
the Minister. It does seem clear that under the statutory provisions currently
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33 Strengthening Civil Service Accountability & Performance
in force, an Adviser, by whatever name called, cannot be delegated with any
powers which are conferred on a Minister by statute and that furthermore, an
adviser has no decision-making status. Thus, the role of the Adviser does not
supplant the role of the Secretary-General or other Departmental officials. Nor
does it supplant any portion of the authority, responsibility and
accountability of Departmental civil servants. In particular, Travers (2005)
pointed out that Advisers “are not part of the line management system of the
Department". Travers went on to conclude as follows:
"The briefing of special advisers by Departmental officials and the fact that
special advisers attend particular meetings should not be considered, and
should not be accepted as, an alternative to the direct briefing of the
Minister on important areas of policy and operation.”22
These are important aspects of the relationship between a Minister and the
senior management of his Department and it is essential that the roles of the
respective players are understood by all involved.
The Association recommends the establishment of a code of conduct to govern
the relationships between Ministers, their Advisers and their senior civil
servants. Ideally, such a code should take into account the views expressed
above, and include the relevant recommendations of the Travers report.
22
Travers Report, p84, para 6.7 (10), Op.Cit.
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34 Strengthening Civil Service Accountability & Performance
Chapter Four
Civil Service Responsibility and
Accountability
The Role of Management Advisory Committees
The Management Advisory Committee (MAC), sometimes referred to as the
Management Board, is part of the internal governance structure of a
Government Department. The MAC owes its origin to the recommendations of
the Devlin Report (1969) on the organisation of the public service.23 These
Committees were established, in some Government Departments at least, as
early as 1970.24 The core membership of the MAC will usually comprise the
Secretary-General, deputy secretary, assistant secretaries and their
equivalents, with other senior officials in attendance dependingthe on the
subject matter under discussion. Different arrangements apply across the
various Departments but the Committees may meet as often as once a week
and in some Departments Ministers and Ministers of State may meet with the
MAC on a regular basis.
Crucially, however, the MAC is not underpinned by statute and the
membership has no collegiate responsibility. Indeed it could be argued that
the very existence of the MAC is contrary to the aims of the Public Service
Management Act, 1997 which envisages an essentially linear form of
management within the civil service from the Minister to the SecretaryGeneral and on down through other Departmental grades as appropriate. The
Act does not provide for the interposition of a collegiate body and as currently
framed does not provide an appropriate basis upon which the MAC can act as
a decision-making body. This may be the reason why the original Devlin title,
Management Advisory Committee is the preferred formulation. At best it can
be said to have an advisory role.
23 Report of the Public Services Organisational Review Group, 1966 – 1969, Chaired by Mr Liam St John
Devlin (and hereinafter referred to as the Devlin Report)
24 Dáil Eireann Debates, Vol 337, 02 July 1982, Written Answers, Mr J Bruton [835] 443
Association of Assistant Secretaries & Higher Grades
35 Strengthening Civil Service Accountability & Performance
The MAC is not part of the statutory accountability structures of a
Department and decisions made, or advices offered, by the MAC carry no legal
or accountability implications and remain at all times the responsibility of the
Secretary-General and the individual officers to whom functions have been
assigned. Neither does membership impose any of the fiduciary or corporate
governance obligations that apply in company law in respect of directors of
private sector companies.
The MAC should be seen as part of the internal management structure of a
Department. Its membership should include senior management but not
Ministers or their advisors, with whom they should instead meet on a regular
basis. Arguably, the MAC should be a collegiate hub around which all key
administrative and organisational matters are decided, and a sounding board
that brings relevant expertise to bear on major policy initiatives. It should be a
source of leadership and direction with a strong internal communication
function and have a central role in advising the Minister on all important
decisions.
However, if that situation is to be achieved, some form of statutory
underpinning, possibly by means of amendments to the Public Service
Management Act, will be required. However, under no circumstances should
the MAC supplant the role of the Secretary-General as effective ‘Chief
Executive’ of the organisation.
Finally, it is worth observing that Travers (2005) also made recommendations
regarding the role of the Management Advisory Committee.25 This included
the suggestion that external members (although not necessarily external to
the public service) be appointed to bring a different perspective to bear on the
work of the Committee.
Policy Formulation & Advice
The age-old maxim “civil servants advise, Ministers decide” encapsulates the
traditionally understood divide between administrative and political
responsibility. Once policy is determined, responsibility then shifts back to
25
The Travers Report, Op.Cit., paragraph 6.7 (8)
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36 Strengthening Civil Service Accountability & Performance
civil servants to implement it and deliver the required outputs and outcomes.
However, as a description of who is accountable for what within our public
service, it has become something of an oversimplification.
More than 40 years ago, Liam St John Devlin (1970), author of the already
quoted Devlin report argued that:
“…the greatest single defect in the present organisation of the civil service
(is) that the top levels of the Departments of State are so involved in the
press of daily business that they have little time to participate in the
formulation of overall policy…”26
A UK study
27
(2001), in an uncanny reflection of Devlin’s view from 30 years
earlier, found that an increasingly important barrier to modernising the
policymaking process within the UK civil service was “inadequate time”
resulting from the administrative burden under which officials were working.
While, as the Paper states (paragraph 7.4), the main recommendations of the
Devlin Report (1969), including those relating to the greater distinction of
policy and execution, were never implemented, the Report’s observations and
recommendations still have resonance in today's modern public service.
The recommendations envisaged creating a clear distinction between the
various streams of public administration, particularly between policy advice
and implementation, to ensure that a Minister and his senior civil servants
could concern themselves more directly with those areas of the business
which "must remain the direct responsibility of Government" including the
“formulation of policy proposals for Ministerial decision and preparation of
legislation.” Devlin was also concerned with what he called the “public acceptability” of
policy and saw the need to facilitate public input into policy formulation. He
recommended that this should be secured “by setting up ad hoc groups with
private and public sector representation to examine all major proposals for policy
development.”
26 “The Devlin Report – An Overview” a lecture by Liam St John Devlin to the Institute of Public
Administration, January 1970. ftp://78.153.208.68/bkp/ipa/PDF/The_devlin_report_an_overview.pdf
27 Bullock, H., Mountford, J., & Stanley, R.,
“Better Policy Making”; UK Centre for Management and Policy
Studies, November 2001
Association of Assistant Secretaries & Higher Grades
37 38 Strengthening Civil Service Accountability & Performance
Policy development and advice is still seen as a core function of our civil
service and yet the modern reality is that the process of analysing and
determining appropriate policy options and offering advice to Ministers is no
longer the exclusive domain of civil servants. Perhaps inspired by Devlin,
there has been an increased reliance in recent decades on input from external
sources in the formulation of policy advice to Ministers. In some instances
this has involved the use of consultants while in others, Ministers have
favoured the establishment of “expert groups” to advise them on distinct areas
of policy. However, there is no single model to describe the role of such
groups nor are there any guidelines governing their terms of reference or
membership. In general, such groups tend to have a varied membership, often
comprising both civil and public servants but including individuals and
groups external to the public service with a particular interest or expertise in
the policy area to be reviewed. However, it is not unknown for civil servants to
be excluded from membership of such experts groups on direction of the
responsible Ministers.28
This type of externalisation of policy advice is not unique to the Irish civil
service. In other jurisdictions, particularly in the so-called Westminster
democracies, this devolution of the policy advice function is sometimes
considered to be the inevitable consequence of the adoption of New Public
Management and of what some would view as the predominant focus of new
management techniques on outputs and outcomes.
29
30
Ruane (2012) ,
however, suggests that
“…while other countries at our stage of economic development use such
groups from time to time, Ireland seems to use them more frequently.”
She also describes the extensive use of ‘expert groups’, as “a less positive
feature” of Irish policy making and questions their role and independence.
However, such a generalised criticism may be unfair for a number of reasons.
Firstly, access to relevant expertise is critical to the policy making process
28
We have deliberately not referenced any examples as to do so may be wrongly interpreted as a commentary
on the quality of the report and recommendations of any Group cited.
29 Di Francesco, M., “Process not Outcomes in New Public Management? Policy Coherence in Australian
Government”, The Drawing Board: An Australian Review of Public Affairs Vol. 1, No 3, University of Sydney,
2001
30 Ruane, F., “Research Evidence & Policy Making in Ireland”, Administration, vol. 60, No. 2, 2012, pp. 119–138
Association of Assistant Secretaries & Higher Grades
Strengthening Civil Service Accountability & Performance
and secondly, there are examples of how the membership and terms of
reference of such groups have been constructed to allow departments and
civil servants to retain control of the process and ultimately to determine the
policy options to be presented to Ministers.
That said, there are also risks associated with this model of policy making,
the first and most obvious of which is that of policy capture by vested
interests seeking to manipulate the process to their own ends.
Secondly, if civil servants are to be confined to working within the policy
options presented to them by external experts their creditability in identifying
and advancing alternative approaches may be undermined.
The Second Principle of Accountability
Sufficiency of Control:
the person accountable must have sufficient
control over the outcomes for which he or she is held responsible
(including access to all necessary resources);
Furthermore, “ownership” within a Department of whatever policy is
ultimately agreed by the Minister runs the risk of being diluted with possible
implications for delivery and implementation. Notwithstanding Devlin’s view
from 40 years ago on the separation of functions, a continuity of involvement
in the process, from formulation of a strategy through to delivery, while not
always possible, can be hugely beneficial. Lodge & Kalitowski (2007) identify
one of the negative consequences of New Public Management reforms, and
one which has caused a “significant problem” for civil services, to be the
separation of policy and delivery. By this they mean too much ‘distance’ has
been put between the designers of policy and those tasked with delivering it
on the ground.
And, finally, excluding civil servants from the process of policy making, or
limiting their role, runs the risk of "hollowing-out” our system of public
administration and depriving it of the skills needed to do its job. Ruane
(2012) observes that unlike in other countries:
Association of Assistant Secretaries & Higher Grades
39 Strengthening Civil Service Accountability & Performance
“… specialist knowledge became fragmented across a growing number of
specialist agencies, and in some cases within private sector consultancies.
As a consequence, many Government Departments had little specialist
knowledge or resources to analyse and develop policy.”
Of particular concern in the context of the current debate, however, are the
implications for accountability resulting from a pronounced lack of clarity
within our existing systems as to what the role of civil servants in policy
making should be. If civil servants, either individually or collectively, are to
be responsible for delivering outputs and outcomes, then they should also
have an involvement in advising on what outcomes might be possible as a
result of any particular set of actions.
In the first instance, the PSMA is, at best, ambiguous on the topic. As
paragraph 4.3 of the Consultation Paper states, the areas of responsibility
assigned to the Secretary-General of a Government Department under the Act
include implementing and monitoring policy, and correctly so, but there is no
mention of a policy advice function. Despite this, and somewhat
paradoxically, the Secretary-General of a Department is responsible for the
assignment of functions under the Act to other officers of the Department and
such assignments must include a requirement to provide policy advice in
respect of the subject matter of the assignment. However, as the Consultation
Paper recognises at Paragraph 7.14, such assignments are not uniform across
Government Departments and offices.
The commitments contained in the Programme for Government31 express the
relationship between a Minister and his civil servants in the following limited
terms:
“Ministers should be responsible for policy and public service managers for
delivery.”
Again, no mention of policy advice.
The Consultation Paper would also seem to be self-contradictory on the issue.
Paragraph 1.4 suggests that based on international evidence, strong
accountability structures can contribute to a high performing system of public
administration. It suggests that among the benefits to be obtained is:
31
Programme for Government, 2011; Op.Cit.
Association of Assistant Secretaries & Higher Grades
40 Strengthening Civil Service Accountability & Performance
“…increased effectiveness and greater efficiency in carrying out the civil
service’s core function of policy development, policy advice and operational
delivery." (Emphasis added.)
But Paragraph 8.5 lists among the steps taken internationally to strengthen
individual accountability the following:
"Formal sources of policy advice to Ministers have been diversified and
there is no longer, in effect, a monopoly on the provision of policy advice to
the political executive."
The Association believes that such ambiguity in a critical area of public
administration is unhelpful and that delivering transparent, evidence-based
and objective policy advice to Ministers should be clearly understood to be a
core function of civil servants. Access to the views and input from all external
stakeholders should remain an important and crucial part of the process but
it should be the function of civil servants to compile and assess such inputs
before making a judgement on where the balance of the public interest lies.
Indeed, there are many examples of how external expertise can be sourced
without devolving the entire policy formulation process. The Association
believes that expert groups can play an important role play in the formulation
of policy but that their contribution should be seen as one element of a
complex and dynamic process. Donnelly (2007)32 has suggested that
collaboration with the academic community in our universities and colleges,
who are in any event funded by the State, is a further way to access external
expertise where required.
In the final analysis, policy making is, as suggested above, a dynamic process
and policy options presented formally to Ministers do not have to represent
the final word on the matter. These options can be refined and amended as a
result of engagement between all parties involved. Furthermore, nothing
should preclude a Minister from also taking into consideration other views,
including those of his Special Adviser, before making a final policy decision.
Nonetheless, it is a core function of the civil service to prepare and present
advice on policy options to Ministers. We recommend making the provision of
such advice, where appropriate, a statutory function of a Secretary-General.
32
Donnelly, G. 'Trinity Week Academic Symposium - Public policy partnerships'. - Dublin: Journal of the
Statistical and Social Inquiry Society of Ireland, Vol.XXXVI, 2006/2007, pp240-244
Association of Assistant Secretaries & Higher Grades
41 Strengthening Civil Service Accountability & Performance
We would also support the introduction of some form of guidelines or ‘modus
operandi’ around the use of expert groups, their membership and their terms
of reference to reflect that statutory provision.
Ruane (2012) also suggests that the extent of the use of expert groups suggests
that a systematic review of their impact and effectiveness would be very
informative.
Training & Development
This policy advice function must be backed up by adequate investment in the
continuous professional development of civil servants, particularly in regard
to equipping the administration with required skills in the area of project
management, policy analysis and impact analysis. The context for this will
undoubtedly be the Public Service Reform Plan 2014-2016 which commits to
expanding the organisation’s capacity, capability and leadership skills and
specifically recognises the need to develop key skills in these areas. However,
that commitment must be supported by further investment of time and money
in formal training, complemented by internal skills transfer through on-thejob learning.
The Fifth Principle of Accountability
Sufficiency of Expertise: The person accountable must reasonably be
expected to have the capacity to carry out the tasks assigned to them
and for which they have been made accountable.
This will place even greater demands on resources but expenditure of time
and money in this area should be prioritised. This should include
arrangements for the appropriate deployment of resources to facilitate the
Association of Assistant Secretaries & Higher Grades
42 Strengthening Civil Service Accountability & Performance
release of staff to attend appropriate training courses. These measures have a
significant contribution to make in building a robust and effective process of
accountability in our civil service.
The Lines of Demarcation
Returning the core function of policy advice to the civil servants should not,
on the other hand, be allowed to result in the process becoming some form of
closed shop. Good policy making should be open and transparent and policy
options put to Ministers should reflect the balance of the public interest.
They should be based on evidence which demonstrates that the proposals are
necessary, desirable and proportionate.
However, it is Ministers and Governments that make the decisions and in
weighing up the options open to them they must have regard, as is their right,
not only to the advices offered to them by their civil servants but also to other
factors, including their own political judgement as to what is acceptable to the
electorate, at whose pleasure they serve. The risk within our political system
is that Ministers may be subject to immense local and party political
pressures that may not always reflect the national interest.
The demarcation line between policy advice and political decision is not
always obvious and it can be argued that it is the blurring of this division that
facilitates the evasion of responsibility and undermines our system of
accountability. The situation is compounded by the principle of absolute
Ministerial responsibility which some commentators have argued provides a
convenient hiding place for civil servants (see paragraph 5.3 of the
Consultation Paper). On the other hand, we have Parliamentary rules that do
not allow civil servants appearing before Oireachtas committees to comment
on any aspect of Government policy. There is also a long-standing tradition,
bolstered by a written Code of Conduct, that civil servants do not engage in
public debate, express any form of political or quasi-political sentiment, or
seek in any way to influence the electorate's view of their political masters.
This lack of a civil service ‘right of reply’ leads others to claim that Ministers,
freed from the risk of exposure, are just as likely to blame their civil servants
Association of Assistant Secretaries & Higher Grades
43 Strengthening Civil Service Accountability & Performance
when things go wrong (Paragraph 3.12 of Consultation Paper). Either way,
the result is the public perception that “no one is accountable”.
O’Malley (2008) puts it as follows:
“We should expect that politicians will aim to maximise their electoral
prospects, but if poor policies do that, it is only because they are not
exposed as poor policies to the electorate.”33
If Ministers were required to reveal the policy advice which they received from
their civil servants and to justify the political considerations taken into
account in reaching a final decision, and if civil servants were allowed to
disclose the policy advice and options offered to Ministers and to explain the
process, the problem to be addressed and the expected outcomes, the result
may well be greatly enhanced transparency within our system of
accountability. In New Zealand, for example, policy advice from Departments
to Ministers is frequently made public under the terms of the Official
Information Act (Paun & Harris, 2012)34. One way of achieving the same
result in an Irish context is to relax the rules on civil service evidence to
Oireachtas Committees. This suggestion is addressed further in Chapter Six
below.
And neither can it be assumed that policies which have already been agreed
and implemented are necessarily immune from further political direction and
influence. Indeed, many would argue that is essential to good governance that
some measure of political oversight be retained through the delivery phase.
Inevitably, circumstances will arise through the lifetime of any policy when
political guidance is required. However, such political direction, whether or
not it might be viewed as interference and damaging to the credibility, viability
or effectiveness of settled policy, must also be subject to the rules of
transparency and accountability. Civil servants should not be held
accountable for actions taken on the direction of their Minister.
While such arrangements might produce greater transparency after the event,
if policy options being considered by Government were subject to greater
33 O’Malley, E., “The Governmental System; Fit for Purpose”, paper prepared for conference on “Are our
Institutions Fit For Purpose? Political Reform in the Republic of Ireland”, DCU, 22 June 2009,
http://www.tcd.ie/Political_Science/assets/pdfs/eomalley.pdf
34 Paun, A. and Harris, J. “Reforming Civil Service Accountability: Lessons from New Zealand and Australia”
(London: Institute for Government), 2012
Association of Assistant Secretaries & Higher Grades
44 Strengthening Civil Service Accountability & Performance
public scrutiny before implementation, we might end up with better policies in
the first place. Barry35, for example, argues that
“A more contestable ‘marketplace for ideas’ would afford greater
opportunity for good ideas to challenge bad ones and would diminish the
power of vested interests, including elements of the political establishment
and the bureaucracy itself. Policy weaknesses could have been identified
much earlier were the policy-making system more transparent and
contestable.”
A step in this direction was taken with the announcement of recent
parliamentary reform to facilitate the advance scrutiny of legislative proposals
by Oireachtas Committees. However, this process will not involve civil
servants. Nonetheless, civil servants must be prepared to offer robust advice
to Ministers when they consider it warranted. Travers (2005) recommended
that civil servants should
“…not allow issues of political sensitivity to compromise the integrity of the
analysis undertaken and brought forward, the options for any associated
decisions that require to be taken or the full articulation of the likely
consequences of alternative decisions.”
An additional significant challenge facing the Irish public service
given the rapid reduction in numbers in the period since the onset
of the economic crisis, is the alarming loss of corporate memory
and experience at a senior level in the organisation and the
resulting risk to the successful management of longer term policies
and projects.
35 Barry,F.,“Towards Improved Policymaking in Ireland: Contestability and the Marketplace for Ideas”, Irish
Journal of Public Policy, Vol 3 issue 2, University College Cork
Association of Assistant Secretaries & Higher Grades
45 Strengthening Civil Service Accountability & Performance
Chapter Five
Measuring and Managing Performance
Peter F Drucker36 is credited with coining the phrase, “what get measured,
gets managed”. Well if that is true, then the corollary may also apply.
Certainly in the case of performance, if you want to manage it, you will first
have to find a way to measure it.
A central thrust of the Consultation Paper is that robust systems of
accountability are themselves a significant driver of improved performance
(see paragraph 5.12). This, the Paper postulates, is achieved by making
relevant civil servants directly accountable for the delivery of policies which
have been formally delegated to them. While this cause and effect of
accountability driving performance is not disputed, it still leaves us with the
dilemma that you cannot have accountability unless you can first measure
performance.
Performance in the civil service is measured on two levels, organisational and
individual. While the two are obviously linked, there is not necessarily a direct
correlation. As we explain below, the failure of a policy to deliver the expected
outcomes does not always represent a failure of performance on the part of
the individual. The distinction is analogous to the distinction made earlier
between reporting and management accountability.
Organisational performance is measured at a high level using a variety of
mechanisms some of which derive from the Public Service Management Act,
1997. These include a requirement for Government Departments and offices
to prepare periodical statements of strategy, annual output statements that
are subject to Oireachtas scrutiny, performance budgeting and internal audit
processes. Organisational performance can also be measured at individual
policy level against measurable performance indicators set down at the outset
36
Peter Drucker was an American author, professor and management consultant once hailed by Business
Week magazine as “the man who invented management”.
Association of Assistant Secretaries & Higher Grades
46 Strengthening Civil Service Accountability & Performance
of the project. Value for Money (VfM)37 studies are also used to measure the
performance of individual policies. In setting the targets and objectives
against which performance is measured, it is important to have regard to the
capacity of both individuals and the organisation to deliver in terms of
human, physical and financial resources. This is true not just in terms of the
quality of the required outcomes but also in terms of the timescale for
delivery.
These measurements are not always a precise science. For example, the
Mullarkey Report38 recognised that the policy advice function which, as we
have argued above should be regarded as a core function of the civil service, is
not one which lends itself easily to independent and objective review and
evaluation (Paragraph 4.6 of Consultation Paper). And it is not only policy
advice, but also the success or failure of a policy itself, which may be a matter
for subjective interpretation. In addition, policy outcomes are invariably not
susceptible to measurement in the short term. We have already looked at
some of the factors that can impact on policy formulation and delivery and the
reality is that within a complex system of public administration, the
consequences of any set of actions may not always be attributable to any
single individual or even to any clearly identifiable group of individuals.
The success or otherwise of an organisation in delivering on policy objectives
may only be capable of being measured over time, often extending to a period
of many years. Equally, successful outputs delivered immediately may not be
capable of being sustained and translated into successful outcomes in the
longer term. Administrative and political responsibility may have changed
hands many times before a policy can be judged successful or otherwise. And
founded on these shifting sands, individual policies and projects may find
themselves over time subject to changed objectives, depleted resources and
technological change.
And even where there is a failure to implement all aspects of a policy decision,
or where when implemented, the policy fails to deliver the required results, it
does not always have to represent a failure of performance requiring some
form of sanction under rigid accountability rules. Policies fail for a whole host
37 Value for Money Reports record the efficiency and cost effectiveness of Departmental programmes and
policies.
38 Op.Cit.
Association of Assistant Secretaries & Higher Grades
47 Strengthening Civil Service Accountability & Performance
of reasons which may be outside the control of the individuals responsible for
their delivery. The success or failure in delivering policy objectives may not
always be an indicator of individual or group performance.
In essence, some policies are, or become, un-implementable and this may not
be a phenomenon confined either to the public sector or to Ireland. Indeed,
the incidence of project failure is much more common among business
internationally than one might expect and there is a wealth of international
literature seeking to document the incidence and causes of project failure.
For example, a McKinsey-Oxford study in 201239 of 5,400 large IT projects
globally found that half of all large projects (i.e. those with an initial budget
exceeding US$15m) run 45% over budget and 7% over time while delivering
56% less value than predicted. Some 17% go so badly wrong as to threaten
the very existence of the company. The causes, according to the study, range
from unclear objectives, shifting requirements, technical complexity, lack of
skills and restrictive planning. Interestingly, these findings are described as
consistent across all industries.
The Fourth Principle of Accountability
Sufficiency of Information: there must be enough information available to
judge whether responsibilities have been performed. In New Zealand in 2010, KPMG40 found that at least 70% of businesses had
experienced project failure in the previous 12 months while more than 50% of
businesses said that projects do not consistently achieve what they set out to
achieve.
39 McKinsey & Co, “Delivering Large Scale IT Projects on Time, on Budget, and on Value”, Insights &
Publications, October 2012, http://www.mckinsey.com/insights/business_technology/delivering_largescale_it_projects_on_time_on_budget_and_on_value
40 KPMG; http://www.kpmg.com/nz/en/issuesandinsights/articlespublications/pressreleases/pages/project-management-survey.aspx
Association of Assistant Secretaries & Higher Grades
48 Strengthening Civil Service Accountability & Performance
A study published in 2008 by the US Government Accountability Office41
found that 49% of IT projects were either poorly planned, poorly performing,
or both.
Another dilemma, perhaps not reflected in raw statistics like these, is in
deciding the appropriate measure by which to judge the success or otherwise
of a particular policy. An example of measuring the wrong thing is that of the
management of an NHS hospital in the UK who, in an effort to improve service
to its patients, set itself a target to reduce the average waiting time in its A&E
Department to under 45 minutes. In order to achieve the target, patients
were held in ambulances on the hospital forecourt and not admitted to A&E
until there was a reasonable certainty that they could be seen within the
allotted time. The resulting chaos was a classic example of Drucker’s adage
that what gets measured gets managed. It is also an example of what
happens when outputs are confused with outcomes. Take for instance an
infrastructure project involving the construction of a new water treatment
plant. Is the project a success if it is delivered on time and within budget (the
output)? Or does success depend on the resulting level of the water quality in
the catchment area served by the plant (the outcome)?
Measuring performance, particularly in a public sector context, is both
difficult and complex and remains a challenge facing the Irish civil service. It
is however a key factor in establishing accountability. If the objectives of the
current reform process are to be realised, we need to ensure that the key
performance indicators according to which public sector performance is
judged are outcome based, measurable and objective, and that those passing
judgement are independent and informed. Only then can we have real
accountability that in turn will drive performance.
Tackling Underperformance
Managing performance in the civil service, and, in particular tackling
underperformance, is regarded as one of the most difficult and controversial
aspects of public administration and a significant weakness in the
management culture of the organisation. A common criticism relates to the
41
US Government Accountability Office, GAO-08-1051T, http://www.gao.gov/new.items/d081051t.pdf, 2008
Association of Assistant Secretaries & Higher Grades
49 Strengthening Civil Service Accountability & Performance
perceived lack of accountability or "consequences" when individuals fail to
perform to the highest standards. And this in turn contributes to the popular
view that “no one is accountable”. The IPA (2014) comments42
“It is the apparent absence of punishment in the forms of sackings and
resignations that leads to the observation that accountability is deficient or
non-existent, and thus reformers seek to create new accountability systems
by way of resolution.”
Since the foundation of the state, Irish civil servants have enjoyed a security
of tenure that does not apply in the private sector and this is one of the more
heavily criticised elements of employment in the public sector. However,
Bossaert, 43 has determined that ‘life tenure’ is commonplace in civil services
in the majority of European Union countries. According to Bossaert, it is
considered an essential condition of maintaining independence and freedom
of the civil service from political or partisan control. She states as follows:
“To summarise, the main argument in favour of life tenure is to protect civil
servants against arbitrary behaviour from political authorities and to allow
them to perform neutrally and loyally. A further argument used in the
context of tenure is that it guarantees a continuous and stable exercise of
public functions by civil servants, who are not threatened by dismissal.”
However, life tenure does not mean that civil servants cannot be dismissed
and the notion that the public service provides a “job for life” is often
misrepresented. Statutorily, every civil servant holds office "…at the will and
pleasure of the Government".44 Furthermore, it is made clear in the civil service
disciplinary code that serious misconduct or underperformance may result in
disciplinary action up to and including dismissal.45 Other forms of
disciplinary action include formal warnings, debarment from promotion,
reduction in remuneration, demotion and suspension. However, unlike the
private sector, dismissal of established civil servants on economic or
MacCarthaigh & Boyle, “Civil Service Accountability: Challenge & Change”, Op.Cit.
Bossaert, D., Senior Lecturer European Institute of Public Administration “The flexibilisation of the
employment status of civil servants: From life tenure to more flexible employment relations?” Luxembourg, June
2005 (p. 20) 44 Civil Service Regulation Act, 1956, No 46 of 1956, S.5 (as amended)
45 Department of Public Expenditure & Reform, Circular 14/2006: “Civil Service Disciplinary Code revised in
accordance with the Civil Service Regulation (Amendment) Act 2005”
42
43
Association of Assistant Secretaries & Higher Grades
50 51 Strengthening Civil Service Accountability & Performance
structural grounds, although a theoretical possibility, does not occur in
practice.
The Third Principle of Accountability
Clarity of Consequences: the person accountable must be made aware of
the likely consequences that will result from carrying out responsibilities
at
above
or
below
defined
levels
and
consequences
should
be
proportionate.
While underperformance is a disciplinary issue that can be dealt with under
the terms of the Disciplinary Code, the process tends to be cumbersome.
According to Bossaert, this protracted nature of disciplinary proceedings is
characteristic of other national civil services across the European Union:
“…termination of an employment relationship is handled with great care in
the public sector. In particular, the case of poor or inadequate performance
linked to evaluations requires effective and transparent procedures in order
to safeguard the highest possible level of objectivity as well as the civil
servants’ rights. This is particularly so as performance in certain sectors of
public administration is more difficult to evaluate than in certain parts of the
private sector.”
Other reasons may include the fact that civil servants are statutory employees
and the regulation, control and management of the civil service is statutorily
based (the Civil Service Regulation Acts, 1956 to 2005). It may also be due to
an assiduous observation of labour laws within the civil service and a greater
tolerance of underperformance resulting from an anxiety on the part of the
public service to be seen as a fair employer prepared to recognise the many
complex and often difficult personal reasons giving rise to underperformance,
and to work with the employee in an effort to turn things around.
Nonetheless, it is damaging to the morale and motivation of other employees
within an organisation when underperformance is seen to be unjustifiably
tolerated by management and the vast majority of public servants would
Association of Assistant Secretaries & Higher Grades
Strengthening Civil Service Accountability & Performance
welcome reforms to ensure that the system is properly underpinned by robust
procedures for dealing with these issues. However, before disciplinary
measures as a consequence of underperformance can be applied, it is
necessary for instances of underperformance to be identified using
measurement techniques that are fair, objective and recognise the rights of
the individual.
The principal mechanism for measuring and managing individual
performance is the Performance Management Development System (PMDS).
PMDS involves a system of business planning and role profiling to measure
performance against targeted outputs using a graduated scale. PMDS as
originally implemented in the Irish civil service has been heavily criticised by
some commentators who argue that it has failed to produce a realistic
assessment of performance of the civil service. Critics point to the fact that in
2011 only 1% of staff were rated as underperforming.46
In the view of the Association, however, it would be unwise not to also
recognise the value of the system particularly in terms of providing role clarity
for the majority of civil servants and in focussing greater attention on
performance management generally. Undoubtedly, some would regard the
scheme as cumbersome and bureaucratic and it can be time consuming, not
least for managers with large numbers of staff and who are already
experiencing increased workloads and dwindling resources. Although not a
phenomenon unique to the civil service, it is likely some managers will seek to
avoid the type of confrontation with individual members of staff that is
required when dealing with underperformance, while in many instances, the
jobholders themselves are unenthusiastic about aspects of the scheme such
as form filling and upward feedback. Additionally, many jobholders will
strenuously resist any attempt to downgrade their performance from one year
to the next.
A factor which is often overlooked in regard to the operation of PMDS is that
an individual’s performance is rated on a five point scale. Once an individual
has performed adequately, there is, for instance, little difference in practical
terms between a rating of 4 and a top rating of 5. This situation may be
exacerbated where an individual is at the top of an incremental scale. In a
46
Source: Department of Public Expenditure & Reform
Association of Assistant Secretaries & Higher Grades
52 Strengthening Civil Service Accountability & Performance
civil service where promotion opportunities are limited and remuneration is
severely curtailed, awarding a higher rank on the scale may be seen by some
managers as their only opportunity to reward staff in an effort to boost
morale.
Significant changes to the scheme of PMDS have recently been rolled out with
the aim of introducing greater objectivity, fairness and realism. It would be
premature at this point to judge those changes and in any event it is certainly
not within the scope of this Submission to review the operation of the scheme
in any detail. However, the Association agrees that there is a need to tackle
these issues in a robust and meaningful way. In the meantime, further
changes that might be considered in the context of the current process of
reform include the following:
•
There needs to be tighter links with individual training and
competency development. In particular, and as already stated above,
managers need to be encouraged and facilitated to release staff for
training course more readily. The resourcing implications of this need
to be carefully considered and addressed.
•
A reduction in the number of points on the performance scale from 5
to 3 could have the benefit of making the scheme less cumbersome
and more objective.
•
The link with payment of increments should be strengthened to make
it clear that continued underperformance will result in placement on a
lower point of the scale pending consideration of more severe
disciplinary measures. Such disciplinary action is already provided for
the Civil Service Disciplinary Code.
•
The Management Advisory Committee should assume an active, and
possibly statutory, role in managing PMDS in general, and
underperformance in particular, and should regularly review
disciplinary cases in each Department.
•
The civil service disciplinary code should be reviewed with a view to it
being simplified and made more accessible, while at the same time
safeguarding the rights of the individual and protecting due process.
Association of Assistant Secretaries & Higher Grades
53 Strengthening Civil Service Accountability & Performance
Ultimately, however, the effective management of performance is critical in
terms of ensuring adequate accountability of civil servants and the
Association looks forward to cooperating with the current reform of the PMDS.
In the meantime, it is also fair to observe that if the public service has lagged
behind the private sector in sanctioning underperformance, the same could
also be said to be true when it comes to rewarding exceptional performance.
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54 55 Strengthening Civil Service Accountability & Performance
Chapter Six
Proposals for Reform
Based on the analysis contains in the earlier chapters of this submission, we
now comment on the individual proposals for reform contained in the
Consultation Paper.
1. Reform of the Legislative Framework
“The main aim of any reform of the overall legislative framework within which
the civil service currently operates (i.e. the Ministers and Secretaries Act and the
Public Service Management Act) would be to seek to provide greater clarity and
certainty as to the respective roles and responsibilities of Ministers and civil
servants respectively. In view of the current formal accountability mechanisms to
which Secretaries-General/Accounting Officers are subject, these legislative
reforms would be intended to focus, in particular, on putting in place more
effective and operational accountability systems for senior level civil servants.”
– Paragraph 11.2
While the Association appreciates the intention behind the suggested reforms,
experience suggests that legislation which seeks to be overly prescriptive is
extraordinarily difficult to achieve and can, in the long run, create more
problems than it solves. This may be particularly the case in terms of what is
being suggested here. The IPA (2014) warns that international experience also
supports the view that any attempt to over specify the roles and
responsibilities of Ministers and civil servants is doomed to failure.
It may not be the case that all reforms require legislative change and some
may be capable of introduction on an administrative basis. Legislation should
only be used where absolutely necessary.
Association of Assistant Secretaries & Higher Grades
56 Strengthening Civil Service Accountability & Performance
The Association membership has considerable experience to bring to bear in
this regard and would wish to engage constructively and meaningfully with
Government on proposed legislative reform. In that regard, we suggest that
options for change that might be considered could include the following:
•
The inclusion of policy advice as a specific statutory function of a
Secretary-General (where appropriate);
•
The introduction of a requirement for a concise and limited list of
high-level priority goals to be reviewed annually;
•
Assignments under the PSMA to be grade specific and made annually
(and possibly published);
•
Officers to whom assignments are made to be ultimately accountable
to the Minister in the same way as a Secretary-General;
•
Provide some statutory underpinning for Departmental Management
Advisory Committees.
•
The potential for legislative consolidation should be considered where
possible.
The Association also recommends that consideration be given to granting
greater autonomy to line Departments involved in the direct delivery of public
services as explained in Chapter Three above (“Distinctive Responsibilities”).
2. Enhance the Corporate Centre
“The delivery of the goals of a programme of reform requires a review of the
capacity of the “corporate centre” in relation to senior level civil service
personnel…. The extent to which the creation of a Head of the Civil Service could
discharge a key role in enhancing the capacity of the senior level civil service
also warrants detailed consideration…. Structures such as a Head of the Civil
Service play a pivotal and constitutionally significant role in other jurisdictions
as an appropriate buffer between the political and administrative system in
terms of the performance assessment of senior-level civil service personnel.”
- Paragraph 11.8 et al
The Association sees some merit in considering proposals along these lines
which would include oversight of the performance management systems at
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Strengthening Civil Service Accountability & Performance
this level. Depending on how such arrangements are structured, they could
have the potential to maintain a strong accountability chain for senior civil
servants while at the same time strengthening their independence from the
political system and this should be an objective of such reform. This could
particularly be the case if Ministers and Government are to continue to have a
role in managing accountability and judging performance of senior civil
servants.
Many examples of a “corporate centre” model exist in other jurisdictions,
including Canada, Australia and New Zealand. These should be examined as
part of the further consideration of this proposal. Additionally, the
Association agrees that the recently instituted Senior Public Service (SPS)
could provide a useful platform for this initiative.
However, we would wish to see much greater detail of what is proposed before
commenting further. It is not clear, for example, how such an individual
would be appointed, what their status would be (would they themselves be a
civil servant), would it be a statutory role, to whom would they be
accountable, would the new structure replace existing lines of accountability,
and what role, if any, would Ministers and Government continue to have in
regard to such accountability arrangements?
A further consideration relates to the relationship between a new Corporate
Centre and existing central Departments of Government. We have already
alluded above to the administrative burden imposed on line Departments as a
result of the requirements to report in particular to the Departments of The
Taoiseach, Public Expenditure & Reform and Finance. The imposition of
additional reporting and accountability requirements on top of those already
existing would not, in our view, represent a welcome or progressive reform.
3. More Effective Accountability of Senior Civil Service
Management
“Legislative reform could help put in place a framework enabling clearer
personal accountability for the delivery of specific Governmental objectives and
priorities delegated or assigned to the administrative level…. Such a process
could build on the existing Statements of Strategy and the resource budgeting
Association of Assistant Secretaries & Higher Grades
57 58 Strengthening Civil Service Accountability & Performance
model currently being implemented as part of the Estimates process. …Pitfalls to
be avoided include focusing on too great a number of objectives, or basing
assessments too heavily on outputs that can easily be quantified to the
detriment of pursuing outcomes that are more important but more difficult to
measure. In addition, evaluation of outcomes should be based on appropriate
timeframes, with an explicit acknowledgement that longer time frames may be
necessary to evaluate some policy outcomes.” – Paragraph 11.13
The focus on a smaller number of high level objectives that are outcome (as
distinct from output) based, as well as the acknowledgement that longer
timeframes may be required in order to evaluate these outcomes, are both in
keeping with the analysis set out in the course of this Submission and are
welcomed. The success or otherwise of this proposal will depend ultimately,
on two things - how the objectives are set and how performance is measured.
In our view, the objectives must be set in agreement with the job holder rather
than imposed by Ministers or from the centre and they should include some
element of risk analysis to identify obstacles to performance such as
resources, external influences, political direction and cooperation from other
agencies and authorities. Measurement should include regular reviews and
feedback and resetting of targets if necessary. International experience as
identified by the IPA (2014) also suggests that measurement should include
some element of self-appraisal and peer review.
The aim should be to ensure independence and objectivity in any final
assessment of performance and the role of the Corporate Centre, discussed
above, may be critical in this regard.
The extent to which any new measures are embedded in legislation should
also be considered.
As we have already identified, the overall aim of reform should be to achieve
better, and not necessarily more, accountability. Simply adding layers of
administrative and reporting obligations may be counterproductive and only
add to existing burdens for no useful return.
Association of Assistant Secretaries & Higher Grades
Strengthening Civil Service Accountability & Performance
A greater focus on outcomes and a longer timeframe for evaluation may not be
irrelevant to the issue of tenure (see below). Arguably, the greater the turnover
of staff, the poorer will be the evidence of accountability.
Drawing on recommendations made elsewhere in this Submission, we would
wish to see progress in eliminating inefficient work practices, reaffirming the
traditional civil service role of policy formulation and advice, relinquishing
control from the centre, restoring autonomy to individual Departments and
agencies and providing for a strong corporate role for the Management
Advisory Committee in each Department. More effective accountability would
require that Ministers and their Departments be restored to control of those
areas of service delivery for which they are nominally responsible in the first
place. Departments will work to a small number of clearly identified and key
policy priorities but with a whole of Government approach to setting key
targets for delivery. The price to be paid for this greater independence is a
stricter accountability on individual Departments for delivering targeted
outcomes within their allocated resources. This could be facilitated (as already
suggested above) by rethinking the way in which civil servants interact with
the Oireachtas and account for delivery of the services and outcomes for
which they have responsibility.
The Association would welcome an opportunity to participate in further
consultation on the detail of these reforms.
4. Align recruitment / promotion practices with HR requirements
It would be a particular priority to ensure that the recruitment/appointment of
civil service personnel at all levels is focused on securing the skills, knowledge,
experience and expertise required to meet organisational requirements… In order
to attract and retain external talent and build internal capability remaining
restrictive recruitment and promotion practices would be eliminated…There
would be a further shift towards open recruitment for all civil service
grades…Drawing on the approach adopted elsewhere to help reinforce a culture
of performance and accountability for senior-level civil service personnel (as well
as providing a mechanism to address under-performance) the case for replacing
permanent tenure for newly-appointed senior Departmental officials and
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59 60 Strengthening Civil Service Accountability & Performance
replacing it with fixed-term performance related contracts would be reviewed in
the course of the consultation process.
– Paragraph 11.17 et al
Recruitment: It is worth noting that there is already a significant degree of
open recruitment at senior levels of the civil service. For example, for the past
number of years, the majority of posts at Assistant Secretary level have been
filled by means of open competition.
We have argued above that sufficiency of expertise should be included as one
of the five principles of accountability. In our view it is axiomatic that the
person accountable must reasonably be expected to have the capacity to carry
out the tasks assigned to them and for which they have been made
accountable. We have also identified in both Chapter One and Chapter Four
the need to ensure that the talents and skills in the organisation keep pace
with the increasingly complex demands of public administration.
Consequently, the Association agrees that any remaining restrictive
recruitment and promotion practices within the civil service should be
eliminated. The aim should be to ensure that we attract the best and brightest
talent into the organisation from whatever source. This will include a shift
towards open recruitment for all civil service grades. However, the Association
further believes that public administration, and a broad experience thereof, is
in itself an important skill that should not be overlooked when to it comes to
fillng senior positions in our civil service. Thus any new policy needs to be
tempered with a number of important considerations:
(a) In the course of this submission we have identified some of the ways
in which the public sector differs from the private sector. These include
the extensive rules and regulations governing public service activity and
the fact that the public service does not serve customers but rather
serves citizens who are entitled to our services as of right. While the
Association agrees that new recruitment practices should facilitate
bringing specialist expertise, where necessary, into the civil service, it
should not be with the intention of trying to run the civil service like the
private sector. This would not be in the best interests of public services in
this country.
Association of Assistant Secretaries & Higher Grades
Strengthening Civil Service Accountability & Performance
(b) No attempt should be made to limit any posts to external candidates
only (as stated in the Programme for Government, 2011). Serving civil
servants should be given every opportunity to compete on a fair and
equal basis for positions within their own organisation. This is in
accordance with the principle of ensuring that recruitment practices
target the widest available pool of talent, and to do otherwise risks
ignoring the significant skills already within the organisation. Debarring
civil servants from applying for what might represent to them a
promotion opportunity does not conform with a system of accountability
that recognises superior performance and would be hugely damaging to
morale in the organisation.
(c) Some measures may be required to protect the independence and
integrity of the civil service. In the same way as retiring civil servants are
restricted in taking up new positions in the private sector47 that might be
seen as representing a conflict of interest, external recruits must not be
in a position to influence policy in respect of any industry or sector with
which they have held a close association in the past.
(d) External recruitment should not be a substitute for a progressive and
determined programme of training and professional development for
existing civil servants as outlined in Chapters One and Four above.
(e) Opening up recruitment to external candidates is only one part of the
equation. If this policy is to be successful in attracting the best and
brightest talent, including the best and brightest young talent, then we
must ensure that the organisation represents an employment option of
choice with a promise of attractive career prospects. We address this
issue further under the heading ‘Vision for the Civil Service’ below.
Tenure: The replacement of permanent tenure of top Departmental officials
with fixed term, performance related contracts is dealt with at paragraphs 8.5,
10.8, and 11.20 of the Consultation Paper. It is argued at paragraph 10.8 in
particular that international experience highlights that such reform “can
create significant impetus to improve management performance as well as
47 The Standards in Public Office Commission “Civil Service Code of Standards and Behaviour”, Op.Cit.,
Paragraph 20.
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61 Strengthening Civil Service Accountability & Performance
significantly sharpening internal accountability.” Paragraph 11.20 suggests that
this approach, when adopted elsewhere, has helped to "reinforce the culture of
performance and accountability for senior level personnel.”
We have examined the evidence cited in support of such reform48 and found it
less than conclusive in terms of the impact of such measures in other
jurisdictions. All the evidence relates to the introduction of fixed term
contracts for Permanent Secretaries or ‘Chief Executives’ of Government
Departments only. Such reform would not represent an innovation in an Irish
context. Since the introduction of the Top Level Appointments Commission
(TLAC) in 1984, all appointments at Secretary-General level in the Irish civil
service have been for a fixed term (usually seven years). Despite the clear
inference in the Consultation Paper, we have found no evidence within the
international literature cited that references the systematic use by other
jurisdictions of fixed term contracts in respect of senior civil servants below
the rank of Secretary-General (or its equivalent).
Furthermore, the evidence tends to suggest that such contracts are renewable
and include some element of performance related pay (neither of which is
currently the case in Ireland). In addition, they have tended to be
accompanied by increased rates of remuneration to compensate for loss of
tenure. In New Zealand, fixed term contracts have also meant greater
autonomy for “chief executives” in regard to pay, staffing, organisational
structure and engagement in public debate, including, according to Paun &
Harris (2012)49, for the purpose of explaining Government policy.
“Chief executives may even publicly argue, on the base of Departmental
analysis, for policies the Government of the day does not itself favour.”
In the case of the UK, where the Institute for Public Policy Research
recommended (Lodge et al, 2013)50 the introduction of fixed term contracts for
Permanent Secretaries, they were somewhat ambivalent on the question of
whether are not the contract should be "fixed term" or "fixed appointment",
the latter meaning that the Permanent Secretary would still enjoy tenure but
48 Lodge, G., and Kalitowski S. (2007), Innovations in Government International perspectives on civil service
reform, Institute for Public Policy Research, Op.Cit., and Lodge, G., Kalitowski, S., Pearce, N., Muir, R. (2013)
Accountability and Responsiveness in the Senior Civil Service: Lessons from Overseas, Institute for Public Policy
Research; Op. Cit.
49 Op.Cit.
50 Op.Cit.
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62 Strengthening Civil Service Accountability & Performance
would be moved to another position in the civil service in the event that their
fixed appointment was not renewed.
It is also clear from the evidence cited that fixed term contracts for
Departmental heads are not without their critics. In Australia, for example, a
degree of "personalisation" has been identified, as prime Ministers have
sought to select a cadre of senior officials they believe can best help them
execute their agenda. Additionally some critics have complained that, under
pressure to respond to Ministers, Departmental heads have become "too
subservient and are less prepared to offer robust advice" (Lodge et al, 2013).
Also in Australia, Paun & Harris (2012) observe that there is a continuing
debate on the impact of changes in tenure for Permanent Secretaries with one
former incumbent claiming that Departmental heads “accept a muddying of
their role and that of political advisers.” He adds:
“.. Secretaries are, I believe, more cautious in avoiding disputes with
Ministers and in ensuring any public image of themselves is aligned with
the Government’s position.”
Neither development would, we submit, be desirable in an Irish context.
A further unintended impact of fixed-term contracts in New Zealand, is that
they have tended to encourage a “silo-mentality” where Departmental heads
concentrated on their own priorities rather than on the bigger Government
picture (Lodge et al, 2013 & Paun & Harris, 2012).
In Ireland, we should in fact be trying to encourage the exact opposite.
T.K. Whittaker, former Secretary (-General) of the Department of Finance from
1956 to 1969 and perhaps Ireland’s most respected civil servant, expressed
his views thus:51
“I would like to see a restoration of the old principle that (civil servants)
were independent of Ministers. You gave your views on any new proposals
fearlessly, critically, honestly. You did not care whether your views were
likely to commend themselves to the Minister, whether for their own sake or
politically. Once a decision was taken by Minister or Government, however,
you carried it out as loyally and efficiently as you could.…
51
Kenny, I., “In Good Company: Conversations with Irish Leaders”, Dublin: Gill and Macmillan, 1987
Association of Assistant Secretaries & Higher Grades
63 Strengthening Civil Service Accountability & Performance
In the new world, the civil servant is all the time trying to please the
Minister, over-conscious of what might be politically acceptable, arranging
the options so that they will appeal, rather than in strict order of eligibility...
I don’t like the idea of appointing secretaries for seven years only. There
should, of course, be some movement among secretaries and perhaps ten
years would be a better term. But I would be afraid that a young man who
saw nothing satisfactory ahead following his secretaryship might be
tempted to make a friend of the mammon of iniquity. He might look outside
to see where he could place himself, whom he should be nice to now so
that, when he goes, they will receive him into their bosom. That could
undermine that integrity which is still regarded as the one decent trait of a
civil servant”
Bossaert (2005)52 has established that across European administrations, the
main reasons for using fixed term contracts have to do with peaks in demand,
staff shortages and budgetary constraints and they are not seen as an
effective tool for managing performance. She has also identified potential unintended consequences of fixed-term
contracts as a result of the negative impacts (including the negative impact on
existing serving staff) of uncertain salary development, lack of career
development, fewer opportunities for training and job insecurity. This could
further erode morale at all levels of the organisation.
Finally, there are issues related to the rights of individuals under labour laws,
and in regard to pension entitlements, that would potentially impact on any
attempt to introduce fixed term contracts at a senior level in the organisation.
5. Enable formal political input into the development of the
job specification of senior level officials and their
performance assessment processes
It would clearly be altogether inconsistent with the principle of civil service
independence and impartiality for Ministers to have any direct role in the
selection or assessment of senior officials. The option of devising structured
mechanisms to allow Ministers to formally contribute to the specification of
52
Op.Cit (see footnote 39)
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64 65 Strengthening Civil Service Accountability & Performance
requirements/appropriate recruitment criteria for senior level posts in their
Departments would be examined during the consultation process to assess
whether it would be feasible without creating any risk of politicisation.
– Paragraph 11.21 et al
The Association would point out that under existing arrangements, the
Government already is already involved in the appointment of senior civil
servants at Secretary-General level. Currently, the Top Level Appointments
Commission conducts a competitive selection process following which it
proposes three names to Government. The Government then chooses its
preferred candidate. Indeed, the IPA (2014) contends that there is already a
higher degree of formal political involvement in senior civil service
appointments than exists in many other countries.
The Association believes that there are risks inherent in extending these
arrangements by providing for political input into the job specification and
recruitment criteria for senior level positions in the civil service. The Paper
suggests that such an arrangement would contribute to greater
responsiveness of officials to Ministers but the Association is not at all clear
how this would arise. Meanwhile the arrangement might leave the political
system open to accusations of interference in an effort to ‘get their man’.
While a central thrust of the argumentation contained in this Submission is
that the current reform process should seek to enhance the independence of
the civil service rather than to dilute it, we also recognise that independence
needs to be balanced with a certain degree of political control over the
administration as a guarantee that senior officials will remain ‘responsive’ to
the Government’s policy priorities. We believe that is better achieved by
political involvement in setting key performance targets.
6. Legislate to change the restrictions on the evidence of
civil servants to Oireachtas Committees
Civil service accountability can also be sharpened by enhancing the legislature’s
ability to hold senior civil servants to account. This would extend, in relevant
circumstances, to giving evidence to an Oireachtas committee on what policy
advice was given or policy options discussed with a Minister. The objective is to
Association of Assistant Secretaries & Higher Grades
66 Strengthening Civil Service Accountability & Performance
ensure that an Oireachtas committee is assisted as much as possible in
ascertaining the full narrative of a series of events relating to the matter under
examination. The provision is subject to the caveat that civil servants should not
comment on the merits of any Government policy or the merits of any objective of
Government policy. Officials may not be asked or give any opinion on the
correctness and appropriateness or otherwise of the policy decision ultimately
made by a Minister or Government.
– Paragraph 11.24 et al
We have argued in Chapter Four above (‘Lines of Demarcation’) that there
needs to be greater transparency in the process of determining policy in order
to counter the blurred lines that exist between policy advice and policy
decision. One way to achieve this might be through a relaxation of the rules
on civil service evidence to Oireachtas Committees. For example, we have
suggested in Chapter Four above that civil servants should be allowed to
disclose the policy advice offered to Ministers. It therefore follows that the
Association would support further consideration of reform along these lines.
Provided that the restriction on civil servants commenting on the merits or
otherwise of Government policies remains (as is suggested), we do not believe
the proposal in any way undermines administrative support for Ministers in
delivering the Government’s policy agenda.
However, careful consideration should be given to the structure of any new
rules and, in particular, the limitations on the interrogation of individual civil
servants. For example, it would not be appropriate for decisions made in
respect of individual citizens to be subjected to political scrutiny.
7. Reaffirm and reinforce the ethos and values of the civil
service
It is imperative to take steps to reinforce and reaffirm core values and ethos of
the civil service. The civil service has a long tradition of promoting and
sustaining fundamental organisational values, such as integrity, honesty,
openness and transparency and promotion of the public interest… It is
noteworthy that New Zealand and Australia, as well as the UK, have given these
principles legislative effect… It is clearly important that the process of reform is
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67 Strengthening Civil Service Accountability & Performance
anchored in a complete and accurate picture of the current set of values that
underpin the actions and behaviours of civil servants…. This could provide the
basis for an up-to-date statement of what values civil servants are expected to
demonstrate to support democratic principles, to maximize civil service
effectiveness and the contribution of the civil service to sustained economic and
social progress.
– Paragraph 11.28 et al
Boyle (1998)53 identifies the elements of the public service ethos as honesty,
integrity, impartiality, objectivity and a desire to serve the public interest.
These qualities are all reflected in the Civil Service Code of Standards &
Behaviour (2008) and they are qualities that have long been regarded as
characteristic of the Irish Civil Service. The Association notes that the
Department of Public Expenditure & Reform has begun a process to establish
what shifts, if any, have taken place over recent years in this value system.
The Association is happy to cooperate with this process and would welcome a
reaffirmation of this public service ethos which we see as a key element of a
robust system of accountability, helping to guarantee a balance between
responsiveness and independence within our system of administration. The
Association believes that some reforms proposed in the Consultation Paper
(including the introduction of fixed-term contracts) would conflict with and
significantly undermine that ethos.
Consideration should be given to providing for an understanding of the
elements of the public service ethos to be included in relevant induction and
training courses for new recruits.
8. Build structures to underpin effective horizontal
governance
A major effort is essential to tackle serious problems associated with pervasive
and damaging ‘Departmentalism’ between, and ‘siloisation’ within, Government
Departments…The tensions between clearer accountability at individual and
53
Boyle, R., “Governance & Accountability in the Irish Civil Service”, Op.Cit.
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68 Strengthening Civil Service Accountability & Performance
organisational level and the need to adopt a whole of Government perspective
will need to be teased out further as part of the consultation process.
– Paragraph 11.35 et al
Political leadership is critical to determining the priority to be afforded to
cross cutting policy issues. Ministers must be prepared to ensure that policy
objectives for their Departments reflect a whole of Government approach not
just in the setting of priorities but also in the allocation of resources,
particularly in times of stringent controls on public spending. Care needs to
be taken when introducing reforms designed to secure stronger
accountability, that a silo mentality is not simply further encouraged. This
has been identified as an issue in other jurisdictions, for example, as a result
of a contractual model of employment for senior civil servants. Cross
Departmental representation on Management Advisory Committees might be
considered on an ad-hoc basis
9. Establish a robust governance framework
A detailed and comprehensive governance framework for civil service
Departments could be developed and put into operation…as a practical and
accessible ‘user-manual’. In the case of each Government Department, the
governance framework could help scope out and specify more precisely the
appropriate roles, responsibilities and accountabilities of civil servants, taking
fully into account the particular and sometimes unique circumstances that apply
in each organisation…The framework could also provide a durable platform for
strengthening the management of Government Departments by focusing
attention on important dimensions and features of management responsibilities
that can, on occasion, be afforded a lower priority than might be appropriate on
account, for example, of day-to-day work pressures flowing from the operation
of the political and media cycles.
– Paragraph 11.39 et al
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69 Strengthening Civil Service Accountability & Performance
As already discussed in Chapter Three above, the Association does favour a
civil service wide Code of Conduct to govern the relationships between
Ministers, their Special Advisers and senior civil servants. What is being
proposed here would seem to go beyond that narrow objective and we would
wish to know more detail of what is intended by establishing a ‘user manual’
specific to each Department before commenting further. As a first step, there
needs to be recognition of the considerable administrative burden faced by
individual civil servants arising from tasks not directly related to the delivery
of public services and in that respect we also support a greater focus on the
important dimensions of management which, as things stand, are sometimes
crowded out by other administrative and reporting obligations.
10. Vision for the Civil Service
In light of the issues discussed in this Paper, its conclusions and
recommendations, there appears to be an urgent and essential requirement to
initiate a process to renew and refresh the civil service’s vision with a view to
ensuring that it has the integrity, capacity, professional capability, commitment
and appetite to successfully meet the serious challenges it currently faces.
– Paragraph 11.41
Ireland is not unique in experiencing a constant state of reform in its public
sector. Civil services in Australia and New Zealand have been in an almost
permanent state of change since the 1980s.54 Nonetheless, there are arguably
few organisations in the State, public or private, that have undergone more
extensive reform than that which has taken place in the civil service in the
past three decades. A non-exhaustive list of reforms would include the
introduction of the Top Level Appointments Commission, The Public Service
Management Act, The Civil Service Regulation Act, the preparation of
Departmental strategy statements and business plans, customer charters, a
partnership approach to IR, multi-annual budgeting, systematic programme
expenditure reviews, administrative budgets, annual reports and output
statements, performance budgeting, outside recruitment, a-typical working
54
Paun & Harris, 2012; Op.Cit.
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70 Strengthening Civil Service Accountability & Performance
arrangements, performance management systems, the devolution of
accountability to lower ranks, freedom of information, ethics legislation, eGovernment, regulatory impact analysis, new disciplinary arrangements, the
abolition and replacement of the Civil Service Commission and the
modernisation of HR practices.
More recently, we have seen the Croke Park and Haddington Road
Agreements under which it is generally acknowledged that civil and public
servants have contributed significantly to the process of economic recovery:
•
55
Ireland’s population is growing and demand for public services is
increasing.
•
Numbers employed in the civil service have declined by 7%
•
Public service numbers have declined from over 75 employees per
1,000 of the population to 63.2 per 1,000 in 2013.
•
The public service pay bill is down 17% in the same period.
•
Civil servants are working longer hours and have experienced an
average fall in pay of 14%.
And none of this decline was from a very high base. In 2008 the OECD Public
Management Review of Ireland concluded that the state was managing to
deliver public services with a small public service relative to other OECD
economies and was at that time already doing more with less.56 Ireland has
also fared well in recent international surveys of the effectiveness of public
administration. Boyle (2014) found that Ireland ranked 5th of the EU28 in a
survey of business executives. And according to the World Bank, Ireland
ranked 9th of the EU28 in a survey of Government effectiveness in 2012 (up
from 11th in 2011) and 17th globally.57
Meanwhile trust in our system of Government has declined and civil servants
are subjected to a constant barrage of criticism in our media.
The present Consultation Process, the Government’s Public Service Reform
Plan published in 2011 and the recently published Public Service Reform Plan
2014 to 2016 have continued the trend of ongoing reform. Both the latter
55 Source: Public Service Reform Plan, 2014 – 2016 (http://reformplan.per.gov.ie/index.html) and Boyle, R
“State of the Public Services”, 2014, Op.Cit.
56 OECD Public Management Reviews, “Ireland: Towards an Integrated Public Service”, 2008.
57 The World Bank, Worldwide Governance Indicators (downloaded from www.govindicators.org), 2013 Update
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Strengthening Civil Service Accountability & Performance
reform plans have focussed on reducing costs, improving productivity and
enhancing delivery of services to the public. But they also envisage
strengthening the organisational performance of the civil service and ensuring
that it has the capacity and capability to meet demand for public services in
the years ahead through open recruitment and increased training and staff
development. Worryingly though, as we embark on this latest round of reform,
the latest Plan acknowledges that the median age in the civil service is now 48
while anecdotal evidence suggests that morale is declining and civil servants
are working under increasing pressure amid dwindling resources.
We need to face the reality that much of our recent reform, in addition to
stripping much needed costs out of the system, have also made the civil
service a less attractive place to work
It is not within the scope of this Submission to articulate a comprehensive
vision statement for the civil service. However, if the ongoing programme of
reform is to succeed, the political and administrative leadership must deliver
a convincing vision of how the process of change will benefit current and
future generations of civil servants. If the organisation is to compete
successfully with other professions in attracting the best and brightest talent
this country has to offer, it needs to demonstrate that it can be an
employment option of choice, offering attractive terms and conditions and real
career prospects.
Association of Assistant Secretaries & Higher Grades
71 Strengthening Civil Service Accountability & Performance
Chapter Seven
Conclusions
Drawing from the analysis in this Submission, we summarise below preferred
options for reform which we believe can deliver a strong and robust system of
accountability and public trust in our system of administration.
Legislative (and, where possible, administrative) Reform
•
Changes should not seek to be overly prescriptive
•
Policy advice should be a specific statutory function of a SecretaryGeneral (supported by guidelines on use of expert groups);
•
Provide for a concise and limited statement of high-level priority goals
for each Department;
•
Assignments under the PSMA to be grade specific and made annually.
•
Officers to whom assignments are made to be accountable to the
Minister and the Oireachtas in the same way as a Secretary-General
(subject to appropriate exceptions);
•
Statutory underpinning for Departmental Management Advisory
Committees.
•
Greater autonomy for line Departments involved in the direct delivery
of public services.
•
Establish independent appeals mechanisms in appropriate
circumstances
•
The potential for legislative consolidation should be examined. This
might also be extended to consolidation of administrative rules in
some cases.
Corporate Centre
•
Status and role of a ‘Head of Civil Service’ to be further examined.
•
Role should replace rather than supplement existing controls exercised
by central Departments.
Association of Assistant Secretaries & Higher Grades
72 Strengthening Civil Service Accountability & Performance
Accountability of Senior Management
•
Relinquish control of resources from the centre and restore autonomy
to individual Departments and agencies.
•
Performance based on a smaller number of high level objectives that
are outcome focussed.
•
Ensure that the role of the civil service in regard to policy formulation
is supported by new accountability structures and through renewed
emphasis on CPD of relevant staff.
•
Eliminating inefficient work practices.
•
Role of ‘Corporate Centre’ in setting objectives to be examined.
•
Establish longer timeframes to evaluate these outcomes.
•
Risk analysis to identify obstacles to performance.
•
Regular reviews and feedback and resetting of targets if necessary.
•
Self-appraisal and peer review.
Recruitment & Promotion
•
External recruitment to recognise unique role of public sector.
•
All positions open to external candidates & serving civil servants.
•
Measures to protect independence of civil service.
•
Enhanced focus on CPD of staff.
•
Structure of fixed-term contracts for Secretary-General to be reviewed
but not extended to other ranks.
Political Input to Job specification
•
This proposal should not be pursued.
•
Responsiveness of civil service to be assured by Ministerial
involvement in setting performance targets for Departments.
•
Examine possibility of embedding Civil Service Code of Conduct in
legislation.
Civil Service Evidence to Oireachtas Committees
•
Allow disclosure of policy advice and policy options.
•
Retain restriction on commenting on merits of policy.
Association of Assistant Secretaries & Higher Grades
73 Strengthening Civil Service Accountability & Performance
•
Require Ministers to elucidate political considerations in policy
decisions.
Reinforce the Ethos and Values of the Civil Service
•
The Association would welcome a reaffirmation of the civil service
ethos and will continue to input to process already underway in this
respect.
•
Reforms should seek to protect and not undermine the civil service
ethos.
•
A relevant module should be included in induction and training
courses for new recruits.
Structures to Underpin Effective Horizontal Governance
•
Political leadership key.
•
Whole of Government approach to setting targets and allocating
resources.
•
Reforms should not conflict with aim of horizontal governance.
Establish a Robust Governance Framework
•
Codifying the roles & day-to-day work relationships between Ministers,
their Special Advisers and civil servants.
•
Consider the recommendations of the Travers Report (2005)
particularly in regard to recording of important Departmental
decisions.
•
Review and improve records management procedures.
•
Providing for a strong corporate role for the Management Advisory
Committee in each Department.
•
Review the way in which civil servants interact with the Oireachtas.
•
Further reform of the PMDS system (along the lines suggested in
Chapter Five above)
Association of Assistant Secretaries & Higher Grades
74 Strengthening Civil Service Accountability & Performance
Vision for the Civil Service
•
Underline traditional roles of civil service, including in regard to policy
formulation and advice.
•
Recognise the qualities of, and restore trust in, the civil service.
•
Efficiency, productivity & a commitment to delivery of public services.
•
Strengthen organisational performance & capacity.
•
Establish civil service as an employment option of choice for best and
brightest talent.
Association of Assistant Secretaries & Higher Grades
75 Strengthening Civil Service Accountability & Performance
ANNEX 1 – EXTRACTS FROM CHAPTER 6 OF THE
TRAVERS REPORT (2005)
CHANGES IN DEPARTMENTAL PRACTICES AND PROCEDURES
Analytical Capability: Ensure that the analytical input into important
decisions taken at the level of Department, Minister and Government is
commensurate with the policy and operational importance of the decisions
being taken.
Transparency: Ensure that briefings for Ministers on important issues of
policy or operation are comprehensive, fully inclusive of all relevant facts and
adequately recorded.
Records: Ensure at least a de minimus recording of decisions at official level
and Ministerial level within the Department.
Risk Assessment: Ensure a practical and effective system of risk assessment
covering operational, legal and financial issues in relation to all areas of
activity of the Department.
Decision Making: Ensure that decisions are taken and recorded in a clear,
transparent and timely way. Avoid the temptation to put important issues
where decisions are required into an “in process” mode. Bring reviews of
policy and operational issues to a clear conclusion and record decisions taken
and their rationale.
Issues of Singular Importance: Isolate issues of singular importance which
have significant operational, legal, financial or wider social and economic
(including political) implications and deal decisively with them.
Issues of Political Sensitivity: Be aware of issues of political sensitivity. Be
responsive in dealing with them but do not allow issues of political sensitivity
Association of Assistant Secretaries & Higher Grades
76 Strengthening Civil Service Accountability & Performance
to compromise the integrity of the analysis undertaken and brought forward,
the options for any associated decisions that require to be taken or the full
articulation of the likely consequences of alternative decisions.
Internal Organisation: Rebuild the MAC (i.e. the Department’s top
management group – the Management Advisory Committee) as a cohesive,
effective and positive force of operational management, policy development
and organisational leadership in the Department. The MAC should also be the
pivot of internal and external communication in relation to the management and
operational activities of a Department which has an immense influence on the
quality of life of many citizens and their perception of the public service.
Logging / Recording of File Movements: Put in place and effective and
easily accessible logging system for recording the establishment and
movement of all files (electronic and paper) and the periodic and timely review
of “files in process” until they are brought to appropriate conclusion.
Ministerial: Ministers should seek assurance that the management and
administration of the Department encompasses the fairly minimalist
procedures and practices set out in the points listed above. They should
probe, in an insightful and effective way, areas of policy implementation,
operations and administrative difficulty – using an external source of review if
considered necessary. Ministers should insist on full and periodic briefings on
key issues of policy and operational performance. They should seek to be
provided with periodically updated profiles of the key areas of operational,
legal, financial, social and economic risk associated with the portfolio of
activities for which they are responsible and seek assurance from the
Secretary General of the Department that these areas of risk are under active
management. Ministers and their Special Advisors should avoid becoming
involved to too great an extent in the day-to-day operations and
administration of the Department. In that context, Ministers should consider
whether their involvement with the MAC should be on the basis of, perhaps,
quarterly meetings which are well formulated and structured to focus on the
key policy and operational issues of the Department. The Minister’s key
Association of Assistant Secretaries & Higher Grades
77 Strengthening Civil Service Accountability & Performance
conduit of contact with the overall organisational arrangements for the
Department should be through the Secretary General.
Ministerial/Top Management Relationships: The relationship between a
Minister and the top management of a Department and, in particular, the
Secretary General is the critical relationship that can determine the relative
success of both Minister and Department during any particular period of
government. That relationship must be built on mutual trust, loyalty and
confidence. Both Minister and management need to know that they can
discuss certain issues of sensitivity in confidentiality. Any over-emphasis on
note-taking and the recording of minutiae in this relationship would
undermine the establishment of the mutual confidence essential to a
productive working relationship. At the same time, it is essential from the
perspective of good public administration, public sector corporate governance
and the strengthening of the democratic process in Ireland that firm groundrules are set in each Department on the de minimus recording of all decisions,
taken or not taken, either singularly or jointly by the Minister and top
management of a Department. This is particularly essential where important
turning points in policy development or operational practice are taking place.
The need for such a sensible decision-making and decision-recording system
represents a clear lesson to be drawn from the experience of the Department
of Health and Children in relation to practices of charges for long stay care in
health board institutions over the years.
Association of Assistant Secretaries & Higher Grades
78 Strengthening Civil Service Accountability & Performance
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Association of Assistant Secretaries & Higher Grades
81 Strengthening Civil Service Accountability & Performance
NOTES
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