One of the most striking features of the constitutional convention debates and referenda of the past year has been their failure to address issues of administrative justice which lie at the core to our society’s failings in both the economic and social spheres. All high minded rules, including the children’s rights amendment, remain to be refracted through a system of oversight and implementation that has proven to be deeply compromised. We must look to balance politicians’ legislative and constitutional hyperactivity (which offer certain uncharismatic party leaders the opportunity to do the ‘vision thing’), with a hard eye on the Irish administrative state and our political culture. The levers of change often lie in reshaping bureaucrat apparatuses, challenging cultures of minimal compliance and addressing government with sharp awareness that law and legal judgment is one tool of regulation that can be crowded out by other incentives and pressures.
In defining our relationship with government some unifying values emerge quite easily:
– access to justice; expedition and timeliness;
– Justification delivered according to expertise and shared reasons;
– equality, fairness and integrity;
– independence and accountability;
– public trust, participation and confidence.
Instead of holding myself out as having an academic definition of administrative justice, I want to underline that the search for its meaning crops up again and again in our media and daily experiences, driving home an unmet need in Irish society. Let’s take some stories from the past number of weeks:
- A Children’s Ombudsperson ignored as a division of the administrative state abused its juvenile inmates with impunity.
- One of the most unambiguous instances of regulatory capture I have ever seen, the uncovering of which has led the Department of Finance to fundamentally reappraise its relationship with the Irish Financial Services Centre lobby. As the Irish Times described, this “followed criticism that the relationship between Government and the IFSC was too close; that it gave unfettered access to the sector to lobby in its own interests; and that the body was secretive and lacked transparency.” Reading Harry McGee’s article, we see the persistence of what defined Celtic Tiger public administration, now even strengthened by our economic straitjacket.
- A Social Welfare Appeals System, which, as underlined by this week’s FLAC report, is simply failing to deliver upon even basic indicators of administrative justice; accessibility, consistency and certainty, and is well off any more advanced norms such as fairness or human rights law.
- HSE: Poor financial management, unrealistic budgetary assumptions and legislative delays within the Department of Health. Diffusion of accountability facilitated by the split between policy and administration with no oversight for the whole picture.
- The Ombudsman’s report on the Mobility Allowance which ruled there has been an illegal, unfair, persistent administration of the scheme by the Department of Health for the past 12 years.
Despite the specialisation of NGOs and civil society, there’s a need to champion the common grammar to our claims for change, and implementation barriers that face all of us, with a renewed understanding of fast developing bodies of expertise such as regulatory theory.
The Failure of Existing Structures
– An Overreliance on Judicial Review
As one former Australian Attorney General has noted, the role of the courts in promoting higher standards is episodic and unsystematic, particularly due to expense. Administrative law doctrines offer only partial incentive to standards of administrative justice. They are concerned with process and not merits which, very often, has led to a test of bare irrationality being applied to instances of maladministration. Inertia, based on institutional concerns about competence and role, and not imagination or even clear communication to administrators, is what is often found here. The old orientation to deference to stated (and not proven) bureaucratic expertise remains stubbornly resilient. Administrative justice is, under prevailing understandings, a happy byproduct of judicial review but is not its primary orientation.
– Political Culture
One of the core messages of the rejection of the Oireachtas inquiries referendum, was, in my view, the public’s deep suspicion of a Parliament-led system of administrative review. The intercession of our politicians is not systematic and may not be value led (being often shaped by electoral self-interest). Despite the example of the late Jim Mitchell and the DIRT inquiry, we see atmospheres of clientelism and opportunism.
The Oireachtas has a long way to go in self-critically rebuilding a parliamentary culture. We cannot simply constitutionalise or legislate our way to parliamentary scrutiny without an overarching change of political culture or greater research resourcing. Perhaps the newly launched public petition system, partnered with a new engagement with the Ombudsman, is a more humble, incremental path to enhancing credibility. Regardless of constitutional compliance, the newly announced proposal to legislate for enhanced legislative inquiry power has more unstable roots. The two main forms of administrative oversight announced: the ‘inquire, record and report’ inquiry, which would record and report evidence but only make findings of fact that are uncontested, and the ‘forward-looking’ inquiry, both pivot on prosaic, arbitrary divisions which are sure to frustrate commitment to principle.
The stimulus of democracy is remarkably diffuse thing in the age of globalisation and exploding technocracy. As I used to insist to my Irish students: We don’t live in a democracy. We live in a representative, constitutional, national, market democracy. The possibilities for reinvigorating democratic processes has been the subject of many post on direct democracy and citizen engagement in our alternative constitutional convention here on Human Rights in Ireland.
– A failure to commit to independent, merits review of decisions and to lock in principles of administrative justice systematically
There has been a basic closure to our public service structures, and a need to collide internal cultures with independent yardsticks to create cultures of justification. Do we need to consolidate our systems into something that echoes, however distantly, droit administratif or more continental system of independent Tribunals? Regardless of the structures in question, we do not want fragmentation and complexity, we need a streamlined system run on core values, not a pockmarked system yielding to claims of exceptional status and special interests (NAMA, refugee matters…). The question is not merely what Oireachtas inquiries have in terms of institutional power, but rather what principles they will apply in critiquing what comes before them.
In their landmark 2002 article “Executive Perceptions of Administrative Law”, the Australian academics Creyke and McMillian, found that 93.7 per cent of officers concluded that external review was an important mechanism for ensuring that decision-makers were accountable. Creyke notes specific comments that were made noting that it is a ‘safety valve’ and ‘without it consistency across the agency would be abysmal’. 85% of officers viewed external review as an important mechanism for ensuring that officers complied with the law, and 81.7% found that external review does not undermine government policy. A burning research question is what Irish attitudes are like?
– Bringing the Civil Service into Critical Focus
The findings which emerged from studies on the regulatory failure of the Celtic Tiger need to be given renewed prominence and generalised. I recall Frances Ruane’s reflection on analytical expertise and research in Departments (particularly in the economic sphere):
Whereas in most countries policy details are designed by specialists within government departments, in Ireland the specialist knowledge became fragmented across a growing number of specialist agencies, in some cases within private sector consultancies. As a consequence, many government departments had little specialist knowledge or resources to analyse and develop policy
So even something as simple as human resources policy has been brought into focus, and the need for a new balance between specialism and generalism in the public sector is on the agenda. Furthermore, the nature of the accountability relationship between ministers and civil servants is under defined for example, with the Programme for Government having already committed, before recent controversies, to reformulating the Public Service Management Act. Administrative justice exists in the culture, attitudes and practices of a bewildering constellation of ministers, departments, authorities, statutory office holders, tribunals and the courts. The capture by the senior figures of the civil service of the amendment of the Freedom of Information Act 2003 also underlines the existence of a closed and distinct institutional culture.
Investing in on our Integrity Structures
To end on a positive note, the Office of the Ombudsman was strengthened by the Government last week in a historic move which was one of the main inspirations for this blog. This may represent a new moment of departure following the often disappointing treatment of the Office by previous administrations, including the unprecedented (even in an international context) failure to support debate of reports in the previous Oireachtas.
This reflects the growing tendency internationally to regard the ombudsman as an essential supplement to the classical branches of judiciary, legislature and executive. While traditional accounts often reductively focus on the Ombudsman as a form of alternative dispute resolution, it enjoys broader role as a public institution in producing systematic standards of good governance and administration and in aiding fundamental democratic oversight by the people, the parliament and the executive in monitoring the implementation of legislation and related administrative practice. This underlying purpose ideally secures ‘horizontal accountability’ by un-elected officials, which in turn leads to more concentrated democratic engagement with the intricacies of ever more bureaucratic and technocratic forms of modern administration. This has led some academic commentators to regard the Ombudsman as part of a reinvigorated doctrine of the separation of powers, which embraces an ‘integrity branch’ to combat the gaps and inertia produced by traditional judiciary-executive-legislature divisions.
The work of our Ombudsmen in Ireland is one example of the idea of an integrity branch in action. Our Human Rights Commission is another. Indeed the ownership I imply in saying ‘our’ Human Rights Commission is conscious as these bodies offer alternative avenues for democratic participation and consultation. A part of constitutional renewal lies in such institutions which, in driving administrative justice, muster the powers of our Constitution to accountable action, and stop the shading of our uniquely value-laden Bunreacht na hEireann into an inert map of designated institutional competences and bureaucratic divisions.