Should ministers be indictable for bad decisions?

By Eoin O’Malley (29 September, 2010)

The news that Geir Haarde, the former prime minister of Iceland is to be charged with criminal negligence for his role in the Icelandic banking collapse will, no doubt, be greeted with popular acclaim. Haarde faces a fine and up to two years in prison if the charges are upheld in the Constitutional Court. It is unusual that a politician faces criminal charges for poor policy decisions or economic management, as opposed to say corruption. Is it something that is desirable?

Ireland currently has each minister as the legally responsible principal for any actions his or her department take. But this is invested in the office not the individual, so if I sue the Minister for Education, it’s not Mary Coughlan personally and when her successors takes over the lawsuit transfers to that person. She couldn’t lose her house because of an error she or her department made. But in other countries ministers have faced criminal prosecution for their decisions, such as the decision in France to delay the testing of blood products until a French-made testing system came on the market.

One problem with this might be that, as Keir Haarde argues now,  you have politically motivated charges brought. It might, some could argue, prevent the taking of bold decisions.  In fact even banal decisions might only be taken with enough consultants’ reports to back up any possible litigation. Another problem is that it makes ministerial responsibility too strict, and will prevent the normal process of government, where ministers can’t oversee everything and have to delegate and trust others within the system. If you risk being imprisoned then you might become too cautious. It might encourage cover-ups if the minister will be personally responsible.

Those in favour might say that it is only something that would be used in exceptional circumstances  – it’s over 100 years since the procedure was last used in Iceland. And that it’s possible to have procedures to protect against populism or politically motivated charges being entered or at least convicted. It could, make politicians far more interested and considerate in decisions they take. Would an Armed Forces Minister try to save money on equipment if she could be prosecuted for the failure to provide adequate protection?

There seems to be a trade-off between efficient government and effective accountability. Would the possibility of prison for not doing your job well, or even doing it extremely badly encourage better policy?

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7 thoughts on “Should ministers be indictable for bad decisions?

  1. Wasn’t the framework for this in place already and last used in 1905? So since then there has been so self inflicted crisis like the credit crunch and no need to invoke it, now there has been a self inflicted credit crunch, the legal procedures have been evoked.

    Ireland’s crisis is also self inflicted.

    But, my brain is hurting even thinking about the scale of the change in mentality that would have to occur in Irish people to firstly, elect the calibre of politican who would hold the Taoiseach to such standards, as in Iceland, and secondly, the change in mentality that would be required among those in the Oireachtas at the moment, to pass such legislation to allow Bertie Ahern, Brian Cowen and Brian Lenihan to be charged with a criminla offence.

    We can’t even manage tribunals properly.

    It is something that could never ever ever happen in a country like Ireland. Never ever.

  2. Obviously ministers and other politicians should not be above the law, but the question is whether ministers should be open to prosecution if their decisions or omissions turn out to be disastrous. The points made in the initial post by Eoin OM are sufficient to show that this is not feasible or sensible. It would be particularly difficult to justify prosecution in the circumstances of the current economic crisis here, because the policies now generally accepted to have caused this crisis – cuts in taxation rates, a narrowing of the tax base, increased public spending based on unreliable revenue streams, so-called ‘light touch regulation’ of the banking and financial sectors, and tax incentives in the property and hotel areas geared to the short-term demands of the construction industry – were in effect endorsed by the electorate at the 2002 and 2007 elections.

  3. Pingback: La Reykiavik-Castilleja de Guzmán Connection. | ¿Hay Derecho?

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