Dr. Muiris MacCárthaigh:

I thank the committee for inviting me. It is a privilege to be here. I congratulate the committee on taking time to consider this issue. I am not an expert on electoral commissions. Much of my work is very much on public organisations.

Most of the members might be aware of the review by the OECD of the Irish public service in 2008 when it said it found this organisational zoo. To use that analogy, in my contribution I would like to assist the committee in considering the consequences of introducing a new animal, as it were, to the zoo. It sounds like a very good idea. There seems to be a good deal of support for the idea of an electoral commission but it is worth reflecting, as the members are doing, on what it will look like and how it will operate after day one, and that is where my contributions will be focused.

I will briefly summarise the paper I have distributed, which is in bullet point format. The general idea is that just as we have a long, proud democratic tradition in Ireland, we have a long, proud tradition of creating bodies in response to policy problems. That is usually in response to a new issue. It is not to take issues away from Departments and so on and rarely is it to consolidate functions, as seems to be the case for this electoral commission.

One must be a bit careful when taking bits from the system and putting them together in a new body. It sounds fine, plausible and logical to do so, but we should think about how these functions will be managed and co-ordinated in order to ensure there are no gaps and overlaps. These are common questions that arise in the organisation of government.

Everyone is talking about an electoral commission. Unlike in other countries, names do not mean so much in Ireland, because we have talked about commissions, councils, authorities, boards and agencies. Titles have no legal standing and, therefore, do not confer rights and powers. In Ireland, agencies are defined organisations that have a variety of governance arrangements. I must confess I have not read the paper prepared by Dr. Reidy, Professor Farrell and others. However, I believe it sets out a plausible governance structure at the higher level, which I shall discuss in a second.

In the context of the financial crisis, new agencies are now being created in a very different and much more regulated environment. For example, budgets are not necessarily on an annual basis but on the basis of a three-year envelope. Budgets are also subjected to critical review every three years, which is, quite possibly, a good thing for a new organisation.

In Ireland and internationally, there has been a move away from having stakeholders or people from affected groups on boards and towards having a more professional panel, as Dr. Reidy has mentioned, with people who have certain skills and competencies. I urge the committee to think carefully about whom the board will represent and what exactly the people on an advisory board or commission will contribute. The consultation paper that was written in 2008 was very good but it did not take the next step. If a judge, the Comptroller and Auditor General, the Clerk of the Dáil or the Clerk of the Seanad were involved, I am not sure they would have a chance to think through a situation. Were accountability dilemmas to arise, would the Comptroller and Auditor General suddenly be auditing himself? What would happen if a judge said there was a crisis, even though it had been decided that a judge would head the electoral commission? What would happen if a constitutional crisis arose and a judge were head of the commission? I cannot think of a specific example of same. I ask the committee to reflect on who is the most appropriate for appointment to the board of such an entity if one has a small board. When I looked at this matter in 2010 I counted a total of 2,300 board or governing authority memberships in Ireland. The average board was comprised of 12 people, but the number is getting smaller, and it is international best practice to have small numbers.

There is no best organisational formula, and I hope the committee has picked up that aspect from what I have said. If anything, we have seen more diversity internationally. As Professor Marsh pointed out, there is diversity among electoral commissions just as there is for other types of public organisation. We tend to look to other countries to see if we can copy them, but we need an Irish electoral commission which is unique and specific to the Irish situation.

With regard to accountability, if the commission is to be directly accountable to Parliament in the same way as the Environmental Protection Agency or the Ombudsman, that is fine. However, accountability is not just upwards; it is also downwards to the public. We must think about how the commission can be accountable to citizens in terms of what it does and how it can, in practice, demonstrate that. It is not just about an annual report; there might need to be television advertisements and so on.

There is something of a paradox of which we must be aware. We should always be cautious of attempts to depoliticise an issue - again, this has not really been an issue in Ireland, where integrity is quite high - by putting it in a body that is held at arm's length. Such attempts can often have a perverse effect - I refer the committee to the poor unfortunate HSE - in that the body becomes a real focus for political anger or criticism when things go wrong. When creating this entity we must ensure it is robust enough to stand up to any form of political interference well into the future while, at the same time, being responsible in dealing with genuine and fair political criticism of its actions.

As I have mentioned, new agencies cannot be divorced from changes that have taken place in the wider Irish public administration. Agencies will now be subject to much higher levels of scrutiny, financial accountability and audit compared to what has existed hitherto for a lot of bodies.

I thought it might be useful to the committee if I asked some colleagues in countries other than New Zealand, Canada, the United Kingdom and Australia whether anything had come up in respect of electoral commissions. The Netherlands made a major change recently in its electoral commission, changing the legal status of the employees of the commission. They thought it would be a good idea for the people working in the commission to have a separate legal status and not to be civil servants in the normal way of other government departments, in case there were undue pressures on them. It is interesting, also, that in Sweden, as well as having an electoral commission, they have created a further body to which decisions of the commission can be appealed. That is chaired by a judge. Again, I am not sure whether that is being considered, but in the event of a crisis, is it the parliament that decides, or does one need another body to decide? I will stop there.