Opinion: Catherine Murphy TD

For months now, I and several of my fellow opposition TDs have been asking important questions about the National Broadband Plan (NBP).

What we’ve learned has made me concerned about the interactions between business and politics.

This has since been confirmed by revelations of private dinners between ministers and bidders, access for bidders to the corridors of power, and meetings between ministers and business people with no civil servants present and no minutes taken. What exactly happened in relation to NBP is now the subject of a review.

If it all sounds familiar, that’s because it is. We’ve been here before, many times, when major state contracts were being awarded. We have failed to ask the right questions while there was still time, and we’ve paid the price.

Yet when it comes to scrutinising ministerial decisions and actions in real time, it is often hard to get the full picture.

This may be because government departments withhold from release (including legitimately under Freedom of Information exemptions) certain documents – like minutes of meetings, briefing materials or correspondence.

Or it may be because important documents were either not created in the first place or have not been properly filed and stored for prompt retrieval.

This is not just an issue of slack administration or poor record-keeping practices – although these may indeed be factors. When ministers and senior civil servants don’t create proper paper trails, it makes it almost impossible for there to be any accountability for errors, and even for crimes.

Every single Tribunal, inquiry and investigation set up in recent decades has been hampered by the fact that official documents have gone astray or were never created.

And it is apparent that such practices of ‘off the record government’ prevail at the highest level.

For example, the recent Fennelly Commission looking at the circumstances around the resignation of former Garda Commissioner Martin Callinan concluded that, too often, somehow there are no precise minutes of important meetings.

The Commission expressed “astonishment at a system of administration which apparently quite deliberately adopts a practice of not keeping any record of a meeting where an important decision is made”.

Similarly, the Oireachtas inquiry into the near- collapse of our banking system in 2008 reviewed some 500,000 pages of documents from banks, government departments and state agencies.

Yet not a single official document was provided relating to the marathon overnight meetings in Government Buildings that led to the blanket bank guarantee of September 2008.

When asked during the inquiry hearings why there wasn’t a ‘proper full note’ of what happened on the night of the guarantee, former Taoiseach Brian Cowen said he was sorry this was the case and, as chair of the meeting, he took responsibility for the lack of a full record.

The only way to change such habits is to bring in firm rules backed by sanctions.

That is why the Social Democrats have proposed creating a new legal duty on senior officials to make and keep written records of meetings with ministers – including minutes of meetings with lobbyists, and memorandums and briefing notes on matters of important public policy.

In other words, all significant decisions and actions should be documented to a standard that allows investigators, or the general public, to understand the reasons why a decision was made, or an action taken.

Legal obligations on civil servants already exist in New Zealand and the Australian states of New South Wales and Queensland. In Scotland too, reforms were introduced in 2011 on foot of a public inquiry into historical abuse which highlighted problems with missing records and files.

We are not suggesting that officials get bogged down keeping detailed notes of every single ministerial utterance, meeting, conversation or policy discussion. A positive legal duty to document would not necessarily mean creating lots more official records, but rather creating and keeping the right ones.

This is about establishing clear ground rules, and ensuring that civil servants and ministers get into the habit of anticipating the harmful effects of not creating written records – in terms of damage to government, the public finances, public safety etc.

Above all, they must know that they will pay a personal price for any failure to do so. For example, there could be a presumption that if notes of meetings or decisions don’t exist or can’t be found that there was negligence or maladministration.

Sanctions could range from disciplinary proceedings to, ultimately, criminal penalties.

More transparency over important decisions in government departments is vital if we are to have any chance of ensuring proper accountability today – not in a decade’s time.

I firmly believe that a proactive legal ‘duty to document’ is something that is also in the interest of ministers themselves – after all it is they who have to stand up in the Dáil and answer questions.

This opinion piece appeared in the Sunday Business Post on 4th November 2018