Professor David Farrell:

I thank the Chairman for the invitation to speak to the committee. I have been invited to speak about the role of parliament in scrutinising government. My paper has been circulated. I propose to pick out some of the main features of the paper, if that is acceptable, and I will try to keep to time. I apologise in advance if I inadvertently offend anyone in anything I say. I am not a specialist in parliamentary procedure. The members are and all of them know how this Parliament operates. I am just an academic, a theoretician. I have some knowledge of how the systems work in other countries, and that is the main reason I have been invited to contribute to the discussions. If I make mistakes in what I say about the way in which the Oireachtas operates, I apologise.

In my comments, I want to observe a general consensus, which is that the Parliament in Ireland is weaker than in most other countries. That is the context for my paper. What I want to addresses is the question of whether this might have contributed to the circumstances that gave rise to the banking crisis. I have framed the note in two parts. I want to start by giving some general ideas on what we might consider to be an "effective parliamentary democracy". I will set out the three main features of an effective parliamentary democracy and then address each of them in regard to the Irish case.

Starting with an effective parliamentary democracy, we might reasonably expect it to consist of three factors. First, the parliament should be organisationally and structurally suited to fulfilling its scrutiny role over government. What I mean is that we should see some appropriate structure both in its plenary sessions and in its committee structures. In terms of its plenary sessions, among the things one gets from the literature is that the parliament should be able to determine its own agenda, to varying degrees in collaboration with the government. However, the parliament has a big say over its own agenda. At the heart of this is a chair of the parliament who is elected by the Members of the parliament, MPs. In virtually all of the other European cases it is by a secret ballot of the MPs. Regarding the committee structure, one should see that the committees have a very major role in the legislative process. That would include, among other things, sufficient time for committee work. The features I pick out include the proportional allocation of chair positions among the parties; the election of the chairs by secret ballot of the members of the parliament; the notion that committee membership is not a right but a privilege; the notion of a well staffed and well resourced committee structure. These would be the main features of what we might expect of a well structured parliament.

Second, it is one thing to think about the parliament having control over its own agenda, but if we are to see it also operating effectively we must also think about the culture of the parliament and how it is attuned to its role as a more equal player vis-à-visthe government. The second main factor of an effective parliamentary democracy is a culture of effective parliamentary scrutiny. How this plays out in parliaments today, particularly in the last part of the last century and the first part of this century, is through its committee structure. We should see an effective use of the committee structure as the core to this. In those parliaments with effective committees there is a tendency for many of the members of those committees to take their committee role very seriously. Some even see the committee as an alternative career route to ministerial office. We see committees that follow a tight schedule of policy scrutiny, with meticulous attention to tracking the detail of the policy process, careful background research, well structured interviewing of witnesses and a philosophy of operation that specifically eschews ambulance chasing.

There is a third feature of an effective parliament. One might have a parliament that is well structured and a parliament whose members take their role very seriously, but the third link in the chain is a culture of open and transparent government. This obviously relates to a robust freedom of information regime, whistleblower legislation and the like. However, it also relates to how the government interfaces with parliament. The government and its agencies must be prepared to work with parliament in providing access to information and to key officials. Of particular relevance to the work of this committee, I would argue, is an open budgetary process and the right for parliamentarians to quiz heads of agencies and senior civil servants on policy and operational matters.

Those are the three main features of an effective parliamentary democracy. How does the Irish Parliament relate to that? As I said earlier, the first point relates to the strength of the parliament. The consensus among academics is that the Irish Parliament is one of the weakest in Europe. It is not just the academics who say it, the politicians also say it. Look at what happened in the most recent election in 2011. Every political party represented here put parliamentary reform very high on the agenda in their manifestos, so it is clear that the politicians think this. A key feature of the programme for Government of this Government is a commitment to deal with parliamentary reform. Dáil reform was also a topic that was taken up by the Constitutional Convention as one of the agenda items it chose to examine.

It is the weakness of the Oireachtas that explains why so little attention is paid to it in the three reports we have had to date on the banking crisis. Having read through the three reports in preparation for my presentation today, I was struck by the absence of attention to the Oireachtas. The only thing I could find was in the most recent, 2011, commission of investigation report which says, in passing, that one of the causes of a systemic financial crisis is likely to include a parliament that remains unaware of the mounting problems. That is the only reference I could find to the Oireachtas. Given the recent flurry of interest in Dáil reform, it would be nice to think that this issue has been resolved. There is not too much evidence that the issue of a weak Dáil has been resolved to this date, and I will be happy to discuss that matter in further detail during the questions and answers.

The second feature is the question of whether there has been sufficient scrutiny by the Oireachtas. It is one thing to talk about the weakness of the Oireachtas, which I have just outlined, but it is quite another to see to what extent the Oireachtas has been making use of its existing powers. As I outline in my document, committees already have quite substantial powers. I list them on page 4. The question is whether the committees were prepared to make sufficient use of those powers to test the veracity of the Government and other regulatory offices that were suggesting things were fine in the lead-up to the banking crisis. The second point is the lack of scrutiny by the Oireachtas and whether a culture shift is required by the Oireachtas to address that.

The third feature of an effective parliamentary democracy is open government. That relates to active engagement by the government with the parliament of the day, or Oireachtas in this case. As I set out in my report, as a Westminster democracy we follow what is found in Westminster democracies. First, there is a very tightly controlled, highly secretive budgetary process with a fixation on budgetary secrecy. That question was meant to be addressed. In the programme for Government in 2011 the Government talked about how it could open up the budget process to the full glare of public scrutiny. We have yet to see that.

The second feature in the open government agenda is the issue of the ability to question senior civil servants. The protocol followed in this country is that the Minister's word is final. Any advice that might have been provided in conflict with the decision of a Minister is not divulged, and certainly not divulged to the Parliament. In a context in which we know now, from the reports, that there were differences of opinion between Departments over the direction of economic policy leading up to the banking crisis, it should be possible for a senior civil servant to provide additional information to an Oireachtas committee on the different scenarios that might have been explored in the lead up to a decision. Arguably, it should even be permissible for a civil servant to inform the committee of areas where he or she may have been in disagreement with their Minister. That issue was raised in the Labour Party manifesto of 2011 and was included in the programme for Government: "Restrictions on the nature and extent of evidence by civil servants to Oireachtas committees will be scrapped, and replaced with new guidelines for civil servants that reflect the reality of authority delegated to them, and their personal accountability for the way it is exercised". I would hazard the argument that we get to see that.

In my main conclusion, what I draw from all of this in the period under scrutiny is that the Irish Parliament performed poorly. It lacked sufficient organisational and structural fire power to provide effective scrutiny. It lacked the political will to use what powers it did have, indicating what I call cultural shortcomings, and it was hindered by a governmental system that places great emphasis on secrecy, particularly in its dealings regarding budgetary matters. There is little evidence to this day that those matters have been resolved. My overall argument is that if the Parliament has sinned in any regard relating to the origins of the banking inquiry, it is more in respect of sins of omission than sins of commission.