The tribunes of the people are not too proud to beg. Last week, Niamh Smyth, the impressive chair of the Oireachtas Joint Committee looking into the debacles at RTÉ, ended a hearing with a heart-rending plea: “I make one last appeal to Ms Forbes, Ms Doherty and Mr Coveney to make themselves available to us so we can actually conclude these deliberations.”
It was the most moving entreaty since James Brown performed Please, Please, Please down on his knees with real tears streaming from his eyes. But was it not also rather humiliating for Irish democracy – the people we elect to hold to account those who spend our money having to launch such desperate supplications?
Former RTÉ director general (DG) Dee Forbes is, it seems, excused indefinitely on health and wellbeing grounds from explaining her stewardship of the national broadcaster.
Not only was Forbes unable to attend Wednesday’s hearing – so were eight other invited witnesses: RTÉ's former head of strategy Rory Coveney, former commercial director Geraldine O’Leary, former chief financial officers Breda O’Keeffe and Richard Collins, former chair Moya Doherty, former director of content Jim Jennings and former board members Conor Murphy and Ian Kehoe.
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I am not suggesting that some or all of them did not have valid reasons for being unable to attend. But the scale of the collective absence is remarkable. So is the fact that O’Keeffe, who cited “stress” as preventing her from taking part, sent a solicitor’s letter to the current DG Kevin Bakhurst, “setting out a range of things she would like me to say in Committee”, a request he sensibly declined. She seems to have felt that, using Bakhurst as a ventriloquist’s dummy, she could put things to the committee members without having to deal with any responses they might make.
On Morning Ireland on Monday, Smyth described this whole situation as “farcical”. It is indeed a cross between Waiting for Godot and Where’s Wally? But the joke, ultimately, is on us. The public has a right to know how its money is being spent and how those it trusts to carry out the vital democratic functions of the public broadcaster are repaying that trust. That right is being ridiculed.
Why are we in this situation? Because, in 2002, the Supreme Court ruled that the Houses of the Oireachtas have no “inherent” constitutional right to conduct inquiries and therefore cannot make findings that might tarnish the good name of any outside person. Which means, in effect, that parliamentary committees can’t draw any critical conclusions about the conduct of any civil servant, public servant or employee of a public company.
This goes even for people we entrust with enormous power – like, say, the DG of RTÉ, or the secretary general of the Department of Finance, or the chief executive of the HSE, or the governor of the Central Bank. In practice, all accountability through parliament can be only vague and general. The blame will always lie with “systems” and “cultures” and “governance” – no names, no serial numbers.
This is not a theoretical problem. The biggest public policy disaster in the history of the State was undoubtedly the collapse of our banking system in 2008. It had terrible consequences for huge numbers of ordinary citizens, who lost houses, jobs and futures. The failures of senior public employees – most obviously at the Department of Finance and the Central Bank – contributed greatly to this catastrophe.
We eventually got an Oireachtas inquiry into the banking collapse. Its 2016 report is tame as an old cat: anodyne, insipid and inoffensive – except, perhaps, to citizens expecting a democratic response adequate to their suffering.
But it could not have been otherwise. As the banking inquiry report itself explained, “The inquiry could make findings which impugn a person’s good name only where this had not been contradicted, including by the person themselves. A person also includes an institution. Based on this restriction, such a finding is unlikely, if ever, to arise in practice.”
Note that killer line: a person includes an institution. The good name of the institution trumps the public’s right to know who is responsible for even the most momentous failures. The logic is remarkably similar to that employed by churches and religious orders in explaining why they covered up years of abuse: reputations come first.
In 2011, the then Fine Gael/Labour coalition government did try to address this humiliating situation. It held a referendum on a proposal to add clauses to the Constitution explicitly giving Oireachtas committees, subject to fair procedures, the power to conduct inquiries and make findings. The referendum was lost by 53 per cent to 47 per cent.
It failed because it was rushed, badly drafted and poorly explained. The vote was held on the same day as the presidential election and a second constitutional referendum, meaning the issue got relatively little public attention.
This allowed a group of former attorneys general – all of them barristers professionally inclined to see the courts or judge-led inquiries as the only proper mechanism for accountability – to warn that the changes would create a parallel system of justice. This fear was exaggerated: Oireachtas committees, even if given real powers, can’t impose any legal sanction on anyone. But it was potent enough to kill the proposal.
And what we’re left with as a result is the RTÉ farce. Anyone called before Smyth’s committee, or the Public Accounts Committee, knows that they are paper tigers. They can diligently write their reports but those conclusions can’t say anything negative about Dee Forbes, or Rory Coveney, or Breda O’Keeffe – or even about RTÉ as an institution.
Everybody’s “good name” is fully guaranteed. It’s high esteem all round. Why, knowing that inevitable outcome, would anyone worry too much about what Oireachtas committees think of them? Unless we change the Constitution, Please, Please, Please remains the soundtrack of Irish accountability.