INSTITUTE OF PUBLIC ADMINISTRATION National Conference, 7^th November 1997

Paper delivered by Michael G. Tutty, Second Secretary General, Department of Finance

Introduction
Constitutional Provisions
Existing accountability structures for civil servants
Changes in structures of governance and accountability
Public Service Management Act, 1997

- Safeguarding the position of Minister
- New accountability structures for civil servants

Freedom of Information Act
Implementation of organisational changes

- Strategy Statements
- Assignment of authority, responsibility and accountability
- Building on existing best practice
- Performance Management System
- Cross-Departmental Arrangements
- Human Resource Management
Some issues arising from the new arrangements

Appendix

The Public Service Management Act, 1997
The Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997
The Freedom of Information Act, 1997

Introduction

1. Adequate and effective arrangements for governance and accountability within the civil service and between the civil service, the political level and citizens generally are fundamental elements of a democratic system of government. I should say that governance is about the collection of rules, standards and norms that inform the behaviour of civil and public servants and politicians in conducting the business of the State with and on behalf of the public. There is a wide range of changes taking place in the civil service at present under the general umbrella of the Strategic Management Initiative to empower and strengthen our governance and accountability arrangements. Some of these changes are simply administrative changes in the way business is conducted in the civil service. Others are more fundamental in nature and need to be underpinned by legislation. Collectively, these changes are designed to provide greater accountability and openness for the work of the civil service and to improve its performance so that it can give better service to the Government and the public.

2. In this paper, I propose to concentrate on the governance and accountability implications of the changes now being put in place under the Public Service Management Act, 1997. But, in doing so, I must stress that the changes being implemented under the SMI constitute an integrated approach to putting in place a new civil service structure for "Delivering Better Government", as per the title of the 1996 policy document.

3. To this end, and to provide the necessary legal framework for the new structure, key pieces of legislation have been enacted this year - including the Public Service Management Act, 1997, the Freedom of Information Act, 1997, and the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997. Summaries of the provisions of these legislative changes are attached in an Appendix. The statutes enacted this year are but the latest in a series of Acts, stretching back to the 1970s, aimed at improving governance and accountability arrangements - including, inter alia, the Ombudsman Act, the Data Protection Act, the Ethics in Public Office Act, the amendments to the Electoral Acts, and the Comptroller and Auditor General (Amendment) Act. These Acts have all added to greater accountability and openness in the civil service. Moreover, the process of legislative change is ongoing as there are, for example, specific proposals in the Government's programme to extend the remit of the Ombudsman to other parts of the public service. The current developments are, however, an integral part of the SMI process which highlighted the need to develop new structures of management.

4. Why a new structure? The civil service plays a central and significant role in the conduct of government business: in terms of the allocation and redistribution of resources through public expenditure and revenue; direct and indirect effects of public service employment; and the regulatory and administrative role of government. Accordingly, maintaining the highest standards in relation to management and performance in the civil service and the delivery of services are issues of major concern for all of us. A better civil service will benefit all sectors of the economy and all sections of society. I believe we can all agree that the pressures and challenges facing government today have changed very significantly in recent years, calling for more innovative approaches to solving problems and addressing our economic and social needs. These pressures and challenges arise from a greatly expanded economy, increasing economic globalisation, a relentless growth in international competitiveness, public demand for more and better services and societal changes generally, to name but a few. If the civil service is to continue to meet the needs of the country, it has to continuously adapt to being more pro-active and responsive to meeting today's challenges. Here, in this regard, the SMI process requires a constant motivation from the Government and the Oireachtas, commitment and effort from civil and public servants at all levels and a willingness by all concerned to accept and implement change in the conduct of Government business.

5. A commitment to a continuous process of modernisation underpins the announcements made by the Taoiseach in Dublin Castle on 29 July. In particular, the establishment of a high-level Implementation Group of Secretaries General, charged with responsibility for driving forward the process of change in the civil service, will ensure that the momentum of change is accelerated over the months ahead. In carrying forward the needed changes, senior management in the civil service, in common with all sides at a political level, are committed to maintaining the traditional strengths and values of the Irish public service: commitment to national goals, high standards of propriety and impartiality and a willingness to adapt and respond positively to challenges. The change process is emphatically not an attempt to impose a new model of public administration from the UK, New Zealand or any other country. The focus is on the real needs of citizens and users of the public services and the importance of adjusting to actual circumstances and conditions in Ireland. The process is - most emphatically - not about actualising some abstract or theoretical concepts of public services. The programme of change is rooted in the institutions, traditions and organisations of the Irish civil service itself.

6. I will review briefly the existing accountability arrangements before going on to outline the changes which are being introduced and considering the implications of these for how the civil service is managed.

Constitutional Provisions

7. Article 28 of the constitution, Bunreacht na hÉireann, provides the basis in primary law on which the relationship between the Government, individual Ministers, Government Departments and the Oireachtas is framed. The key relevant provisions are as follows:

Article 28.4.2o "The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government."

Article 28.12 "The following matters shall be regulated in accordance with law, namely, the organisation of, and distribution of business amongst, Departments of State, the designation of members of the Government to be the Ministers in charge of the said Departments, the discharge of the functions of the office of a member of the Government during his temporary absence or incapacity, and the remuneration of the members of the Government."

8. Of particular importance to the process of establishing the proposed new management structure in the civil service are the words "...administered..." in Article 28.4.2o, and "...in charge of..." in Article 28.12. The use of these terms in the Constitution mean that only a member of the Government can be "in charge of" a Department of State under Article 28.4.2o.

9. However, the constitutional provisions do not mean that a Minister is inhibited from assigning authority and responsibility in respect of the "management" of some or all of the functions of a Department of State to a Secretary of a Department or another civil servant. Similarly, Ministerial accountability for the work of Departments does not prevent the enactment of legislation to provide in law for a mechanism of accountability for civil servants under the Minister.

Existing accountability structures for civil servants

10. The statutory basis for the accountability of civil servants derives from the Ministers and Secretaries Acts, 1924-1995, the Civil Service Regulation Act, 1956, the Comptroller and Auditor General (Amendment) Act, 1993 and some other relevant legislation.

11. Under these provisions, Secretaries are appointed by the Government on the recommendation of relevant Ministers as "principal officers" of their Departments. Other officers are appointed by their Minister with the sanction of the Minister for Finance. Secretaries and other general civil servants are accountable to the Government and to their individual Ministers. Secretaries are also accountable, as accounting officers, to the Public Accounts Committee of Dáil Éireann.

12. The Minister for Finance is responsible for the regulation and control of the civil service, their classification, numbers and remuneration and terms and conditions of service, promotion and discipline. Only the Government has had the authority to dismiss established civil servants.

Changes in structures of governance and accountability

13. The practical changes now being implemented in the administration of central government are intended, in the first instance, to improve the internal management of the civil service. Therefore, prima facie, their immediate impact will mainly be on civil servants and Ministers. But the consequences of these changes are intended to go well beyond the confines of Government Departments and Offices. The changes are designed to ensure greater efficiency and effectiveness across all branches of the public service in order to ensure quality in the delivery of services. Business and the general public will benefit from this firstly, as users and as consumers of public services, and secondly, as taxpayers who finance the public expenditure needed to ensure the delivery of public services.

14. While the central emphasis in the current phase of the SMI process is on comprehensive structural change through the creation of a new management structure for the civil service by means of the Public Service Management Act 1997, there are parallel developments in the areas of human resource management, information technology, auditing, government accounting and financial management. We recognise also that, as the process evolves, increased attention will need to be directed towards the more "cultural" dimension of organisational change.

15. In identifying the central organisational and structural issues within the SMI process, previous proposals for change have been drawn on. Even a cursory knowledge of the period of the Devlin Report in the nineteen seventies or the policy priorities identified in the context of the White Paper "Serving the Country Better" published in the mid-1980s, will reveal the same fundamental issues as are being addressed by the SMI.

As Delivering Better Government puts it (page 22):

"It has long been recognised that the existing structures and reporting systems promote a risk-averse environment where taking personal responsibility is not encouraged and, equally, where innovative approaches to service delivery have not been developed."

16. Underpinning this is the conviction that long-standing practice has tended to concentrate too much on the responsibility of the Ministers, leaving the accountability of civil servants unclear.

17. The role of civil servants under the law, including that of Departmental Secretaries, has not been adequately addressed in legislation up to now. The Ministers and Secretaries Acts do not set out in detail the form of authority and responsibility which may be exercised by officials of Departments in conducting public service business. This situation gave rise over time to a tendency for decisions to be taken at too high a level and for authority to become unduly centralised which, in turn, resulted in structures which did not always ensure optimal levels of efficiency and effectiveness.

18. The Group of Secretaries responsible for the Report on which Delivering Better Government was based identified a causal connection between the legal basis for the organisation of the public service and interpretations of the respective roles of Ministers and civil servants. Contemporary legal opinion on the degree of potential organisational flexibility under existing legislation suggested a less restrictive statutory framework than traditionally understood. However, it became increasingly clear that the Ministers and Secretaries Acts provided an insufficient legislative foundation to accommodate the changes required in the structure of civil service management within the existing constitutional parameters.

19. Accordingly, a central proposal put to Government concerned the need to amend and update the existing law. Support for such measures came from all parties represented in the Oireachtas and the Report and Final Stages of the Public Service Management Bill were unopposed in both Dáil Éireann and Seanad Éireann. Discussions among Departmental Secretaries and at networks of Assistant Secretaries and Principals indicated wide support within the civil service itself for the thrust of these changes.

Public Service Management Act, 1997

- Safeguarding the position of Ministers

20. In devising the Public Service Management Act, 1997 in the light of the existing constitutional and statutory provisions, it was decided that a wholesale repeal and replacement of existing legislation was neither feasible nor necessary.

21. As I have already indicated, the role and status of Ministers "in charge" of Departments and "responsible" to Dáil Éireann are set out in the Constitution. Constitutional change was not seen as necessary to bring about the desirable changes in the accountability and responsibility structures for civil servants. Therefore, Section 3 of the Public Service Management Act, 1997 reaffirms that, not withstanding any assignment of functions in the Act, a Minister of the Government is in charge of his or her Department and is responsible for the administration of that Department as provided for in the Constitution and the Ministers and Secretaries Acts, 1924 to 1995.

22. The Public Service Management Act, 1997 does not repeal the Ministers and Secretaries Act, 1924, makes relatively minor amendments to that Act and creates new mechanisms for the accountability of civil servants, without diminishing the role and responsibility of Ministers. The new management structure created by the Act functions "under the Minister" and provides a number of specific safeguards which maintain the unique authority of Ministers in relation to policy, the allocation of resources and their responsibility to Dáil Éireann. The Act differentiates between these constitutional functions of the Minister and the assignment of authority, responsibility and accountability for carrying out duties appropriate to Departments and certain other Offices (specified in the Schedule to the Act).

23. An additional safeguard of the position of Ministers is Section 7 of the Act which empowers a Minister to give directions in writing to a Secretary of a Department of State (now renamed Secretary General) for any of the functions performed by the Secretary General. The purpose of this provision is to ensure that the provisions of the Act do not place any restrictions on Ministers in exercising ultimate authority in the administration of Departments for which they are responsible to Dáil Éireann.

24. In including this provision, it was not envisaged that the issuing of written directions would form part of the "normal" relationship between a Minister and his/her Secretary General. Indeed, the need to resort to a written direction should arise only in relation to unusual, unforeseen and infrequent developments in the work of the Department. It was necessary, nevertheless, to ensure that there is no possible ambiguity with respect to the power of the Minister to issue such directions to Secretaries General.

25. However, it was considered necessary to exclude from such directions matters relating to the management of appointments, discipline, performance and dismissals which are being assigned to the Secretary General under the Act. If these matters were included it could potentially dilute the authority of the Secretary General in relation to staff management.

- New accountability structures for civil servants

26. While the accountability structures relating to the political sphere are unchanged, the existing organisational arrangements for civil servants are being made more transparent and effective in the following ways:

• the accountability of Secretaries General of Departments to the relevant Minister is put on a statutory basis;

• the accountability of Secretaries General is now specified as being in respect of the exercise of authority and responsibility in relation to duties set out in the Act, subject to the determination of matters of policy by the Minister or the Government, including

– managing the day-to-day business of the Department

– implementing Government policies appropriate to the Department

– monitoring Government policies that affect the Department

– delivering outputs as determined with the Minister

– preparing and submitting to the Minister a strategy statement in respect of the Department

– providing progress reports to the Minister on implementation of the strategy statement

– providing advice to the Minister

– ensuring proper use of resources and the provision of cost-effective public services

– assigning duties to other officers down through the Department;

• officers who have been assigned functions are now being made accountable, in statute, to their Secretary General and to their line manager as appropriate;

• Secretaries General, or other designated officers, must now appear before Oireachtas Committees when requested to do so in relation to the Strategy Statement for the Department;

• under the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997, all civil servants may be compelled to appear before an Oireachtas Committee with power to send for persons or papers and, in such circumstances, may be granted privilege and immunity in relation to evidence given (in such cases civil servants may not comment on the merits of Government policy) ;

• civil servants assigned to cross-Departmental groups may now be made accountable for the utilisation of related financial resources with the agreement of, and in a manner to be specified by, the Minister for Finance;

• subject to amendments to other legislation and consultation with staff, Secretaries General will exercise authority in relation to appointments, performance, discipline and dismissal of all civil servants below the grade of Principal or its equivalent;

• authority in relation to appointments, performance and discipline - but not dismissal - of all civil servants below the grade of Principal or its equivalent may be assigned by the Secretary General to other grades of civil servant.

• officers assigned duties will be directly accountable to the Secretary General or other superior officers for the achievement of objectives and the delivery of specified outputs.

Freedom of Information Act

27. The greater transparency and openness being created by the implementation of the Freedom of Information Act will generate more confidence in the system of governance as a whole. Client relationships with the civil service will improve significantly as individuals gain the reassurance of having access to records, because people will know that their cases are dealt with fairly and impartially. A culture of openness in public administration will itself encourage quality and public services will become more efficient and effective. Freedom of Information will also ensure that the highest standards are maintained in Government agencies in relation to accuracy and objective record keeping. The citizen will, in effect, "own" the official information on his or her particular case, which the public services possess. All of these factors will give added impetus to the process of change and, indirectly, assist the transition to the new structures of management and accountability in the civil service.

Implementation of organisational changes

- Strategy Statements

28. Arising from the commencement of the Public Service Management Act on 1 September 1997, the various tiers of governance - the Government itself, individual Ministers and Secretaries General of Departments - are required to undertake a number of specified actions.

29. The key function is the preparation of Strategy Statements. Specifically, Secretaries General of Departments are required to prepare Strategy Statements and submit them to their Ministers within six months - that is by March 1998. The Government will soon issue directions regarding the form and manner in which these Strategy Statements are to be prepared. Ministers must approve the Strategy Statements, with or without amendment. They are then required to ensure that a copy of the Strategy Statement is laid before each House of the Oireachtas "not later than 60 days after the strategy statement has been approved". The Taoiseach has indicated that this must occur, in the first instance, no later than 1 May next. A new Strategy Statement must be prepared within six months of the appointment of a new Minister or three years after the previous Statement.

30. It is envisaged that Strategy Statements will set out the key objectives, outputs and related strategies of the Department, including the use of resources. They will reflect policies or targets being pursued consistent with the Government's programme - "An Action Programme for the Millennium" - as well as the on-going business of the Department. They will incorporate an indication of how Departments will pursue the achievement of policy objectives and the practical actions of Departmental management needed to achieve them. These Statements will also need to indicate how the approach to the individual policy objectives fits into the overall business of the Department and what arrangements and steps are being taken in relation to the overall utilisation and deployment of resources. In this way the Strategy Statements will provide managers within the civil service, Ministers and the Government, the Houses of the Oireachtas and citizens generally with a clear and comprehensive framework within which arrangements for the accountability of Secretaries General to their Ministers will be structured.

- Assignment of authority, responsibility and accountability

31. Secretaries General will also be required to prepare an "outline" of how specific elements of responsibilities are to be assigned to other civil servants or grades within their Departments and then to proceed with appropriate assignments.

32. The key purpose of the outline is to ensure that "the functions performed on behalf of the Minister ... are performed by an appropriate officer, or an officer of an appropriate grade or rank". The outline will facilitate the association of individual civil servants, ranks or grades of officers given responsibility for particular functions assigned by the Secretary General with the specific tasks and duties required to undertake those functions and make it easier to relate the delivery of particular outputs and the discharge of functions or duties to the resources available for those areas within a Department.

33. Based on this outline, the Secretary General will assign responsibility for the performance of functions down through the Department. This will include responsibility for providing policy advice in particular areas, achieving specified outputs, assuming responsibility for particular statutory schemes or programmes or for the delivery of quality services, ensuring value for money and performing, on behalf of the Secretary General, functions in respect of appointments, performance and discipline of personnel, but not dismissals.

34. The Secretary General may designate appropriate officers to appear before a committee of either house of the Oireachtas in relation to the Department's Strategy Statement where the relevant responsibility for the performance of functions has been assigned to those officers.

- Building on existing best practice

35. The provisions in relation to preparing Strategy Statements and delegating functions to appropriate officers are not new concepts in the civil service. The new legislative provisions simply bring a degree of formality to earlier practice in these areas and ensure that best practice is spread throughout the civil service.

36. Strategy Statements have already been prepared under the SMI, notably those prepared and published by each Department in the past year. These will now have to be expanded and made more specific in line with the requirements of the 1997 Act.

37. Under the SMI, Departments have been using their Statements of Strategy internally to spell out how the work of individual divisions, work units or teams feeds into the overall strategy and what specific outputs are to be delivered. This internal process has taken different forms and goes under different names - e.g. Business Plans, Work Programmes, Action Programmes - but it provides the foundations on which the assignment of functions under the 1997 Act can be built.

38. Overall, the new arrangements will give much greater clarity at all levels of the civil service on what is the specific goal of each person's work assignment and how it fits in with the overall goals of the Department and Minister.

- Performance Management System

39. Overall, therefore, the Act provides for a process by which strategic objectives are set and reviewed regularly and inform the day-to-day work of Departments and their achievement is monitored. An effective performance management system is clearly central to this process. Performance management is a means of managing and developing individual performance, in line with corporate objectives, to deliver improved performance for the organisation as a whole.

40. A new performance management system for the civil service is in the final stage of design and development following extensive consultations with management, staff and the Civil Service Group of Unions. A staff survey carried out as part of these consultations shows that a majority of staff would welcome "good practice" performance management set in the context of Departments' overall objectives and involving:

¯ regular performance review;

¯ focus on development and improvement;

¯ reviews taking into account how jobs were done and what was achieved; and

¯ provision for upward feedback.

41. However, the survey also indicates that there is a lack of awareness of managerial responsibility and accountability throughout the organisations.

42. The successful introduction of an effective performance management system requires that there is a clear description of job and role requirements in terms of results to be achieved and the related performance measures and the skills, knowledge, and competencies needed to do the job. In that latter regard, performance management must be linked to and inform other HRM processes in the organisation i.e. planning, training and career development. There is also a need to focus on developing managerial capability. This focus on managerial aspects of roles is, of course, a pre-requisite to the effective implementation of the Public Service Management Act.

43. Taken together, the Public Service Management Act and the performance management process will provide a firm foundation for developing a more results-orientated and accountable civil service. Given the importance of the

civil service in the conduct of Government business, I believe we would all agree that improved levels of accountability and transparency are essential and that the workings of the service are open and can stand up to public scrutiny.

- Cross-Departmental Arrangements

44. I would now like to turn to section 12 of the Public Service Management Act, 1997, which is a major legislative innovation providing for the assignment of responsibility for cross-Departmental matters. This arises from a specific recommendation in the Delivering Better Government report. The report argued that the existing structure of the civil service is not well geared to understanding, developing and managing the linked activities and processes needed to address issues of policy and execution which cut across a variety of Departments and Offices. The work of individual Departments tends to be determined by sectoral and functional demands. Experience suggests that Departments have "limited structures for consultation, coordination and cooperation" and that "the current system rewards territorial protection at the expense of active cooperation to achieve results".

45. Cross-Departmental groups - such as the Tax Strategy Group and the Task-Force on Long Term Unemployment - have stimulated more integrated policy approaches in the relevant areas but it has long been clear that many issues of cross-Departmental concern would require a more structured and formal approach. Policy matters which would benefit from such an approach were identified in Delivering Better Government including:

¯ Child Care

¯ Drugs

¯ Employment

¯ Competitiveness

¯ Unemployment and Social Exclusion

¯ Financial Services

¯ Local Development

46. The Public Service Management Act empowers Ministers or Ministers of State, jointly with their counterparts in one or more other Departments, to assign responsibility to civil servants for the performance of functions relating to both or all of the Departments concerned. The Ministers continue to have the right to perform the functions concurrently. A specific provision is made in the Act for consultation with the Secretaries General of the Departments involved.

47. In framing the legislation, it was recognised that the issue of accountability is of central importance. To whom are civil servants assigned responsibilities in respect of cross-Departmental groups ultimately accountable? To their parent Department or Office? Or to the head or Chairman of the cross-Departmental group? The Advisory Group - established to advise the Minister for Finance on the legislation - recognised that, in practical terms, the matter of accountability is inseparable from the specifics of the remit, tasks and objectives of the cross-Departmental group in each case.

48. Accordingly, Subsection 12 (4) provides that orders assigning responsibilities to civil servants will specify to whom they shall be accountable. In addition, it was recognised that special arrangements might have to apply in relation to the disbursement of public funds by cross-Departmental groups. So the legislation also provides that the Minister for Finance will have authority for specifying "the manner of accountability" for responsibilities that involve the use of financial resources.

- Human Resource Management

49. There is one aspect of the overall change programme which warrants mention in the context of the new structures provided for in the Public Service Management Act, that is the management of the staff resources of the civil service. A consistent criticism of the civil service, both within the system and from outside commentators, has been that sufficient priority has not been given to Human Resource Management. This was - to some extent - a failing common to all large organisations, whether private sector or public sector.

50. Underlying the SMI - and the change programme set out in Delivering Better Government - is a recognition of the need for a more flexible approach to managing staff resources so that staff can be deployed to best effect in meeting the changing needs and demands of today's environment, can have the opportunity to use their skills and potential in the most creative and satisfying ways, and where the most productive individuals receive rewards commensurate with their performance. In addition to performance management, every significant aspect of HR management is being looked at in the context of the modernisation process: recruitment (including atypical recruitment), training and development, probation, promotion, multiple grade structures, gender-related issues and terms of employment.

51. In relation to the latter, at present civil servants are appointed by Ministers and hold office "at the will and pleasure" of the Government. Subject to appropriate safeguards and to natural justice and to full discussion and consultation with staff interests on the changes, powers in relation to the appointment, performance, discipline and dismissal of staff below the grade of Principal or its equivalent will now be vested in Secretaries General under Section 4(1)(h) of the Public Service Management Act. This change is in keeping with the formal assignment of responsibility to Secretaries General for management of Departments. It also brings the civil service into line with practices elsewhere.

Some issues arising from the new arrangements

52. The Public Service Management Act is the most fundamental statutory change in the organisation of the business of the public service since the original Ministers and Secretaries Act of 1924. Given the broad sweep of change arising from this legislation and other SMI-related initiatives, there are bound to be questions asked and criticisms levelled at the particular changes being made. This is both inevitable and positive. All levels within the civil service are affected by the process of change and development. It is entirely reasonable that civil servants should try to tease out the various consequences

and nuances of the changes being made, either individually or through their unions and staff associations. Equally, the process of change itself must involve dialogue and partnership if it is to achieve the goals of the SMI. Delivering Better Government identified five communication and consultation processes:

¯ at the political level, including both Government and opposition;

¯ between Government and the civil service;

¯ between the civil service and its customers and clients;

¯ at the senior levels of the civil service; and

¯ between all levels within the civil service through direct involvement and through consultation with trade unions and associations.

53. Progress on all five fronts has been made, although the extent of the direct involvement in the process has been uneven. The consultation and participation structures to be put in place under Partnership 2000 will redress this shortcoming. These structures, which are currently the subject of discussions with the Unions, will provide for a range of mechanisms to facilitate and encourage consultation on and participation in the change process at the level of each Department. Significantly, verified progress to a satisfactory level in implementing the Delivering Better Government programme will be a prerequisite to the payment of the 2 per cent available under the local-level negotiation clause of the Partnership 2000 Pay Agreement.

54. One criticism which has been made of the Public Service Management Act is that it conveys a perception of "distancing" the Minister from the day-to-day business of his/her Department - in effect imposing the Secretary General in place of the Minister as a virtually autonomous "general manager" of the Department. This is, in fact, a misconception. Section 3 of the Act states unequivocally that the Minister is "responsible for the performance of functions that are assigned to the Department" in accordance with the Ministers and Secretaries Acts. Every duty subsequently assigned to the Secretary General under Section 4 is under the authority of the Minister and subject to the determination of policy by the Minister or the Government. The integral role of the Minister is further specified in Section 6 which provides that the Secretary General shall be "accountable to the Minister ... in carrying out the duties or functions" assigned under Section 4. These arrangements preserve the chain of authority to the Minister while at the same time creating a clear statutory basis for the exercise of managerial authority by the Secretary General.

55. In this regard, the Departmental Strategy Statement provides an essential management tool. Secretaries General have responsibility for preparing Strategy Statements but the Minister can refuse to approve them, can amend them or intervene through directions in writing. Rather than creating the impression of a "semi-detached authority", as at least one commentator has suggested, these Ministerial prerogatives integrate the Minister in the composition of the objectives, outputs and strategies of the Department whether or not powers of amendment or direction are actually used. In effect, the Minister is clearly "in charge" of the Department.

56. A related criticism is that the Act enables a Minister to be in charge when things go right - a civil servant in charge when things go wrong. Again, this was not part of the thinking underpinning the legislation. On the contrary, by clarifying roles and responsibilities in the new management structure, the effect of the Act is more likely to focus attention on the efficiency and effectiveness of high quality management at all levels across the civil service. There is no question of any aspect of the Act being used intentionally as a means of "passing the buck" to civil servants. Ministers are politically accountable for their Departments. If something goes wrong the Opposition and the media will demand explanations from the Minister. Where civil servants have been assigned responsibilities, appropriate mechanisms of accountability will be devised but they will not be asked to account for matters over which they exercise no authority.

57. A further issue has been raised in relation to section 4(1)(h) of the Act under which Secretaries General are assigned authority for managing all matters relating to appointments, performance, discipline and dismissal of civil servants below the grade of Principal or its equivalent, thereby creating different arrangements for Principals and higher grades as opposed to other grades. Criticism of this is based on an assumption that the position and status of these other grades are being diminished relative to Principals and higher grades. No such diminution was envisaged in the preparation of the legislation. Nor is there any intention of introducing procedures for any grade of officer below the level of Principal without full discussion and consultation with the trade unions and staff associations. Moreover, there is no reason why the new arrangements in this regard should interfere with the working relationships between individual grades or between Ministers and civil servants at any level. Changes affecting discipline and dismissals will not be made effective until the scheme of changes proposed to the Civil Service Regulation Act 1956 is put in place. Guarantees of consultation in relation to changes in 1956 Act have been given.

58. There are many other issues which could be raised in relation to the governance and accountability implications of the new organisational structures. I am sure that Seán Ó Ríordáin will address some of them in his paper and I look forward to a discussion on these issues at this Conference this afternoon.

Appendix - Summary of Recent Legislative Provisions

The Public Service Management Act, 1997

" This Act introduces a statutory basis for the creation of a new management structure for the civil service.

" The purpose is to enhance the management, effectiveness and transparency of operations of Departments and Offices and to put in place a mechanism for increased accountability of civil servants. At the same time the discretion of Ministers in charge of Departments of State for the administration of their Departments is virtually unchanged and the collective responsibility of the Government to Dáil Éireann is preserved.

" The Act provides for the replacement of the title "Secretary" by the new title of "Secretary General". In addition, it provides that managerial responsibility for the Department be assigned to the "Secretary General" and, for Offices included in the schedule, to the "Head" of that Office. It also defines the "outputs" of a Department or Office.

" Under the new management structure, the Act provides that specified tasks will be assigned to Secretaries General in accordance with various categories set out in the Government's policy statement Delivering Better Government.

" The Secretary General will be given formal responsibility, under the Minister, for the day-to-day management of the department. This will involve implementing and monitoring policies and delivering the goods and services of the Department to its customers and clients.

" Other functions include giving advice to the Minister in relation to the wider concerns of his or her Department, making arrangements in relation to cross-departmental matters, examining and developing means to improve the provision of cost-effective services and ensuring that the Department's resources are used appropriately and with respect to value for money.

" Subject to existing legislation, Secretaries General will have responsibility for appointments, performance, discipline and dismissal in relation to staff below the level of Principal or its equivalent. These responsibilities will be exercised in addition to the functions which a Secretary normally exercises at present in the routine management of all staff in his or her Department.

" Each Secretary General will be required to prepare a Strategy Statement setting out the specific objectives, outputs and strategies of the Department. This will then be submitted to the Minister who may amend it.

" The approved Statement will be made available to the public through the Oireachtas within a specified time limit. Heads of scheduled Offices will generally follow a similar procedure - with adjustments for those Offices which are headed by independent office-holders. Provision is also made for regular updating and revising of these Statements.

" It is intended that only those Strategy Statements laid before the Oireachtas will be on the public record. All other versions will be confidential documents for 5 years.

" Ministers retain a power of direction (other than in relation to dismissals of staff below Principal) to ensure that, in cases of disagreement, the Minister's instructions will be followed.

" The Secretary General will be accountable to the Minister in respect of the functions assigned and, in certain circumstances, will be required to appear before Oireachtas Committees.

" The Act provides for formal assignment, by the Secretary General, of specified tasks, analogous to his or her responsibilities, to other officers or grades of officer within Departments. This arrangement is intended to ensure that staff at various levels in each Department have a clear idea of what is expected of them.

" The Act also creates a statutory basis for the appointment of special advisers and for the assignment of responsibility for matters which cross Departmental boundaries. At present, only Ministers are corporations sole which allows them to sue and be sued as corporate entities rather than as individuals. The Act provides a mechanism which would allow certain public offices to become corporations sole.

" A provision to allow for the creation of executive agencies by order of the Government was part of the original scheme of the Bill. Subject to the resolution of technical issues in relation to the structure and design of such provisions, the Government will consider introducing them as part of future legislation on public service management.

" The Act was brought into operation by Ministerial Order on 1 September 1997.

The Committees of the Houses of the Oireachtas (Compellability, Privileges

and Immunities of Witnesses) Act, 1997

" Under Article 15.13 of the Constitution, TDs and Senators have absolute privilege in respect of utterances in either House and since 1976 this has been extended by legislation to committee meetings.

" Witnesses appearing before such committees have only "qualified privilege": this does not prevent legal action being taken but it allows a defence against libel or slander unless it can be proven that a witness was actuated by a motive not connected with the privilege, e.g. ill will or spite. The risk of legal action with attendant costs, even where a good defence exists, presents a serious hazard to any witness. Qualified privilege does not extend to other legal actions which could create liability for damages, e.g. breaches of confidentiality, breach of duty or care.

" The new act confers on Oireachtas committees, whose terms of reference include provision for the calling of persons and papers, statutory power to compel the attendance and cooperation of witnesses and the furnishing of documents. It also confers High Court privilege (virtually identical to the absolute privilege of members of Dáil Éireann or Seanad Éireann) on all persons directed to give evidence or present documents to such committees. These two elements are essential to the Act: those compelled to answer questions must be given protection from any adverse legal consequences of complete responses.

" Issue-specific legislation has been used twice in the past to confer absolute privilege for inquiries:

- the Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act, 1970 for the investigation of the arms crisis.

- The Select Committee on Legislation and Security of Dáil Éireann (Privilege and Immunity) Act, 1994 for the investigation of the circumstances leading to the fall of the Fianna Fáil-Labour Government.

" The Act provides that Dáil Éireann or Seanad Éireann will determine individually or jointly in framing orders of reference for existing or new committees whether they are to have the specific powers to send for persons or papers which would bring the compellability and privilege powers into effect.

" The Act allows for the creation (by the Committee on Procedures and Privilege of either House) a sub-committee on compellability to determine when the powers should be brought into effect.

" In keeping with convention, the President and members of the judiciary are exempt from the legislation. Virtually every other citizen is compellable: members of the public, Taoiseach, Tánaiste, Ministers, Ministers of State and officials: a partial restriction applies to civil servants, gardaí and members of the defence forces who may not question or express comments on the merits (or the merits of the objectives) of government policies.

" Compellability of the Attorney General is limited to the general administration of his Office before the Public Accounts Committee: the Attorney General is not compellable in his roles as legal advisor to the Government or as defender of the public interest.

" The Director of Public Prosecutions is compellable before the Public Accounts Committee for the general administration of his office and statistics published in a report.

" Compellability is restricted in relation to evidence or documents likely to prejudice:

- cabinet confidentiality;

- matters sub judice;

- state security and relations with other states;

- criminal matters;

- tax liability assessment.

" Witnesses may also inform a Committee if they believe a direction falls within categories for which the High Court would grant privilege (e.g. self-incrimination, marital privacy and sacerdotal confidentiality).

" If a Committee wishes to proceed with questioning a witness who gives such an opinion, the Committee may seek a determination by the High Court as to whether a direction falls within such a category.

" The Act has been signed by Uachtarán na hÉireann and may be brought into effect with respect to a Committee of either House of the Oireachtas by means of a resolution of that House.

The Freedom of Information Act, 1997

" The Freedom of Information Act 1997, was signed by the President in April and comes into operation with effect from 21 April 1998.

" The Freedom of Information Act gives individual citizens a legal entitlement to have access to official information kept on them by the State. The intention of the bill is to ensure that members of the public may exercise this "right to know" to the greatest extent possible consistent with the public interest and legitimate rights to privacy.

" By providing the citizen with a statutory right of access to official information the law fundamentally changes the nature of the relationship between the citizen and the State. It alters the balance of power between institutions of the State and individuals to give greater advantage to the citizen.

" Up to now, the institutions of the State maintained the principle of confidentiality in relation to the business of Government: until 1972, the State successfully maintained the position that Ministers could not be compelled by court order to produce official documents for inspection. Even today, costly, formal and time-consuming legal processes are required to access some forms of official information. FoI changes this.

" The Freedom of Information Act will bring about the following key changes:

¯ there will now be a statutory right to official information based on a presumption of openness.

¯ necessary exemptions will be subject to an overall public interest test.

¯ a public register of information and guidelines to be used in decision making by government bodies will come into play.

¯ there will be a legal obligation on officials to help citizens requesting information to identify and find what they need to know.

¯ there will be an onus on those who hold information to justify any refusal to disclose such information.

¯ there will be a powerful independent appeals system to resolve disputes between citizens and public bodies promptly and without undue expense.

" A central policy unit has been established in the Department of Finance to lead the implementation process and provide ongoing advice and support to public bodies. It will

¯ chair the inter-Departmental working group on FoI which monitors and coordinates policies and approaches to implementation.

¯ provide for the establishment of the Office of the Information Commissioner (Mr Kevin Murphy, Ombudsman).

¯ address information management and training issues arising from FoI.

¯ develop expert knowledge on the form and content of publications required under sections 15 and 16 (information on records held; means of access; etc.) of the Act.

" The objectives of the Freedom of Information Act include the following:

¯ greater transparency in policy making will generate more confidence in the system of governance as a whole.

¯ client relationships with government bodies will improve as individuals gain the reassurance of having access to records: people will know that their cases are dealt with fairly and impartially.

¯ an administrative culture which promotes openness rather than unnecessary secrecy will develop across the public services.

¯ openness will itself encourage quality: our public services will become more efficient and effective.

¯ freedom of information legislation will ensure that the highest standards are maintained in government agencies in relation to accuracy and objective record keeping.

¯ the citizen will be made central to the democratic process because the citizen will, in effect, "own" the official information on his or her particular case, which the public services possess.

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