by Eoin O’Malley (13 June, 2010)

Coming up to and in the wake of the reports on the economic crisis in Ireland there was a gradual shift away from the Lehman Brothers defence and admissions that mistakes were made by Brian Cowen and the governments between about 2002 and 2008. This culminated last week with Cowen’s announcement that he takes ‘full responsibility’ for the decisions he made as minister and presumably in accepting that those decisions (or indecision) were important causes of the crisis, he takes an amount of responsibility for the crisis.

What does this mean? As a minister he is legally responsible for all the decisions of the department – and meant to be accountable for them to the Dáil. He is not personally responsible – so if the departments acts illegally the minister cannot be sued personally and lose his family home. Because of an odd case – Crichel Down in the mid 1950s- where a UK minister resigned for something he seemingly had no hand or act in (though this was later questioned), there has grown an expectation that the minister must resign for errors made by his or her department, even those that s/he knew nothing about.

Now this would be plain nuts. First of all, how big should the error be to warrant resignation? In the Crichel Down case it was important for one family who had lost their land through a compulsory purchase order during the war, but it was easily resolvable. So the land was eventually offered to the child of the original owner at a more reasonable price than was initially demanded – but only after a public inquiry. But many errors are made every day by government departments – if a children’s allowance cheque goes missing, should the minister resign? Of course not. But if the error costs €500m, or if it costs a life, then what? We might think a resignation is due then, but where do we draw the line?

We might think that the line should be drawn at the minister if the minister is aware of the events. So if a minister knows that there is a problem with a policy should s/he resign? A minister should not be held responsible for a doctor misdiagnosing a patient, but can be held responsible if s/he knows about a systemic problem leading to misdiagnoses. But this is surely not enough for resignation? What we want is accountability not resignation.

Our expectation for resignations as the constitutionally proper form of accountability derives from that one British case (interestingly another minister to resign for his government’s failure to foresee the invasion of the Falklands/ Mavinas by Argentina, Lord Carrington was the junior minister in the relevant department during the Crichel Down affair). But there are many more non-resignations that have not had the same impact on constitutional theory but which reflect the political reality.  And perhaps the political reality is preferable to the constitutional purity of Crichel Down.

If a minister becomes aware of a failure within his/ her department and then does something about it, perhaps it would be a poor form of accountability that forced him or her to resign? It would be an inefficient solution if a new minister is then required to come in and possibly rely on the department at fault to inform him/ her of the problem. The old minister may be in a better position to fix the problem.

The minister should not be bound to defend or be held personally responsible for actions s/he did not know about or disapproved of, but must be accountable to the Dáil for those failures, be willing and able to answer questions for those failures, and to personally oversee the correction of the problem. This last bit is what Brian Cowen would like to emphasise.

Will Cowen’s taking ‘full responsibility’ for government policy mean he acts in any way differently to how he would had he not been in government in those years? One might expect that it should, but other than resignation I can’t think of what form it might take. Now we know from studying actual ministerial resignations and non-resignations that one thing matters – the expectations of voters. Taoisigh don’t usually like resignations, but if they fear a backlash from voters, they might be more likely to force it. Taoisigh themselves only resign if their coalition falls apart or if their party dumps them, usually because they think him (always hims) an electoral liability.

Perhaps the important thing is that the Taoiseach is accountable to the Dáil. And this week we will see it in operation during the confidence motion debate. If this week he is able to convince the Dáil (actually Green and Fianna Fáil TDs taking their cue from the public) of his ability to lead the country out of the problem then he gets to keep his job, if not he goes. Of course other things matter, like the availability of a replacement or their willingness to risk an election. In the meantime accountability in the form of an inquiry into government decision making failures and a willingness to reform the governmental system in response to these would be welcome.