DAVID GWYNN MORGANon the issues surrounding calls for reform of the law underlying public administration
IN THE area of administrative law, Fine Gael has put forward a new scheme, involving review by the Oireachtas of the appointees to public boards. It seems eminently reasonable that there should be a transparent system, which allows citizens to see that the best candidates are being appointed to these important positions: it is simply asking for trouble to regard them as the Irish honours system.
Fianna Fáil spokespersons respond that not all the present appointees are political cronies. But this misses the point: why not have a system in which there can be confidence that the best candidates are appointed in all cases?
Here, one ought to recall that in the 1920s the Cumann na nGaedheal government, which had many other things on its plate, established the Civil Service Commission and Local Appointments Commission – now continued in the form of the Public Appointments Service – which had the effect of excluding favouritism and nepotism from selection for staff positions in the public service. The historian Joe Lee salutes this as “perhaps the major achievement of the early years and one of the most remarkable achievements in the history of the State”. Twenty-first century, please copy.
Labour proposes that senior public servants should take a share of public accountability commensurate with their significant authority. Again, it seems very reasonable that we should get away from the doctrine of the minister being responsible for everything, which was devised when public administration consisted mainly of a handful of secretaries working behind the scenes in a royal palace.
But the "new" proposals overlook the fact that this type of reform has been in the air since the Devlin report of the 1960s and Albert Reynolds' Strategic Management Initiativeof the mid-1990s; and actually bore fruit with the Public Service Management Act, 1997, which made secretary generals publicly accountable for "administration" going on within their departments, leaving policy for the politicians.
The first post-1997 controversy in this field struck in 2004, when it was disclosed that health boards had been making unlawful deductions from the welfare benefits of people who were in long-stay care institutions. Unfortunately, in all the heat generated by this episode, the Act was not mentioned and the disappointing Oireachtas committee report on the subject simply split on a government versus opposition basis. The Labour proposals fail to show how they would avoid this difficulty and improve upon the 1997 Act.
These major structural features – or the lack of them – are matters for the political organ.
But a lot of the law of public administration – operating in fields like public housing, immigration, social welfare and the regulation of such enterprises as broadcasting, building or financial services – is made by the courts. It is made if and when suitable cases arise, by way of the procedure “judicial review of administrative action”.
A big question here is whether, if suitable legal challenges had been brought, anything could have been done to: cause the Financial Regulator to act more effectively; divert certain councillors with a predilection for development on flood plains; or prevent favouritism in the award of grants or tax-free status?
Such questions are among the most difficult in the law, because major questions of public policy should be left to properly designed expert institutions (about which a little was said earlier), not the courts. Thus, it was plainly correct that in 2009 the High Court refused to be drawn into striking down the scheme by which one quota was imposed for places in medical schools reserved for Irish or other European Union students; while there is a different quota, requiring lower qualifications for admission, for non-EU citizens paying premium fees.
But this judicial hand-washing of responsibility may be taken too far, especially in cases involving not policy but individual rights. A famous example is a case, in which it was said that, for a court to intervene, “it is not sufficient that a decision-maker goes wrong or even hopelessly and fundamentally wrong: he must have gone completely and inexplicably mad”.
In addition, there is an important preliminary point here, namely the failure of some judges to follow precedents in this field. Thus there are, or were until recently, two divergent judicial attitudes to the question of how intrusive judicial review in this field should be, with one group of judges taking the view that, where a citizen’s fundamental rights were disturbed, a court should be prepared to intervene, while the other group held that matters should be left to the political organs.
But it is the first requirement of law that it should be certain; a citizen who considers he/she has been seriously damaged by, say, a refusal of a trade licence, ought to be able to get reliable legal advice as to whether it is worth applying for judicial review. And for that lawyers have to be confident that, irrespective of their personal opinions, all judges will apply the same law. This goal is usually achieved by way of the precedent doctrine. But this doctrine had not always been genuinely followed in the present field. And the fact that Meadows– a 2010 Supreme Court decision (on an asylum claim which had been refused by the Minister for Justice) which it was hoped would bring closure to this field – was determined only by a three-to-two majority, with scathing dissenting judgments, is not encouraging.
There is another sub-field of judicial review, in which there has been a failure to follow a common judicial line, namely the question of when a decision goes against the individual how extensive an explanation of reasons the public authority must provide.
Of course, all of the above is about laws and institutions. But no “system” is as important as the integrity, competence and humility of the politicians and staff who operate it. As Goldsmith wrote “for forms of government, let fools contend: what ere is best administered is best”.
Vote carefully!
David Gwynn Morgan is emeritus professor of law at University College Cork and the co-author with Gerard Hogan of
Administrative Law in Ireland
(Round Hall Thomson Reuters, 4th edition, December 2010)