Submission of Dr Muiris MacCarthaigh (Queen’s University Belfast)

to the Oireachtas Joint Committee on Environment, Culture and the

Gaeltacht on the issue of an Electoral Commission for Ireland

16 June 2015

I wish to confine my comments to the Committee’s Question 3, concerning the Independence and accountability/Membership of an Electoral Commission. The Consultation Paper on the Establishment of An Electoral Commission in Ireland has identified the importance of organisational design for the effective functioning of a possible Commission, and set out some of the options for members to consider in respect of aligning tasks with form. The comments below are designed to assist thesedeliberations, and are presented in summary format.

Context

  • There is a long history of creating new arm’s length bodies or ‘agencies’ in Ireland. Titles such as Commission, Board, Council, Authority, Agency and Body are used interchangeably but give us little indication about their relative powers, accountability, funding mechanism or relationship to departments.
  • Irish agencies have traditionally been created in an ad hoc manner, drawing on a wide variety of accountability and funding mechanisms (See Figure 1 below).
  • In recent years, the number of agencies in Ireland has been in decline, and where new agencies are being created, it is in the context of a more regulated agency environment including the use of performance frameworks and service-level agreements between agencies and funding/sponsoring departments.
  • Of 249 Irish agencies identified in a 2010 review, 188 (75%) of them have some form of board or governing authority, ranging in size from 2 to 37 members (MacCarthaigh 2010). Modes of appointment to these organisations also varied considerably, from ministerial nomination to ex-officio and elected positions.
  • The average size of board memberships in Ireland in 2010 was 12 members, though international trends are towards even smaller board/governing authority sizes of between 6 and 9 members.

Figure 1: Variety of Irish public organisations

Source: MacCarthaigh 2012a, p.141

Autonomy and accountability

  • Internationally, there is no clear convergence towards one single best organizational form for agencies. The organizational pattern is instead becoming increasingly complex (Verhoest et al 2011). This is particularly the case for multi-functional agencies.
  • The existence of diversity can become problematic when it leads to a lack of transparency for citizens,stakeholders, parliament and government. Complexity in agencyforms makes accountability difficult, as it is less clear who is responsible for what. It also hamperseffective control by whomsoever the agency is accountable to.
  • Providing political independence or administrative autonomy by itself is an insufficient condition to improve agency management and performance. Other issues affecting the performance of an agency concerns high levels of mutual trust between agencies and sponsoring departments;a professional organizational culture with qualified, motivated, and committed employees;appropriate governance structures; and the right capacity to perform functions.
  • Those responsible for creating new agencies must consider the complete autonomy profile of a new agency along different dimensions, including legal, financial, political and managerial independence to ensure that they combine to have a positive effect on outcomes and performance.
  • The accountability of agencies also has a number of dimensions and a balance must be struck betweenex ante controls concerning rules and procedures the organisation must follow, ex post control involving assessing the results achieved by the organisation, and methods of appointment and evaluation for CEOs and board members if a board is to be used.
  • The accountability of an agency to its parent department or parliament directly is important, but other forms of public accountability should be considered such that an agency is accountable for their functioning and performance to other stakeholdersand the general public.
  • International experience suggests that where agencies perform tasks with high political salience, or involving large budgets, de facto political control may in fact be much stronger than originally envisaged by those creating the agency.
  • The most recent publication of the Department of Public Expenditure and Reform on the issue of agency rationalisation has indicated that all state bodies will be subject to ‘Periodic Critical Review’ to assess the ongoing business case for state agencies, ‘including those newly established…to secure improvements in accountability, efficiency and effectiveness’ (DPER 2014, pp.12-13).
  • Agencies are also expected to have Service Level Agreements with their sponsoring Departments, and are expected to share corporate or support services with other public organisations.

Boards/governing authority

  • The 2011 Programme for Government suggested a preference for the use of executive boards that would be directly accountable to Ministers.
  • Three years is a common Board/Authority membership period in a number of countries. Subject to satisfactory performance, appointments are normally renewed for a second term but no more.
  • It is important to strike a balance between the representative roles played by stakeholder appointees and their fiduciary, legal and other corporate responsibilities as board/authority members.
  • There is an international trend away from ‘stakeholder’ boards towards more professional competency-based boards in public organisations arising from increased corporate governance requirements.

Miscellaneous issues arising from international experience (other than those presented in the Consultation Paper) of possible interest to the Committee

Status of employees: Netherlands

In the Netherlands, the Electoral Council (or Kiesraad) has introduced changes to the status of its employees, such that they remain civil servants of Ministry of the Interior and Kingdom Relations, but are only accountable to the Electoral Council rather than that Ministry.

Appeal/review bodies: Sweden

The Swedish Election Authority was established in 2001 and is responsible for planning and coordinating the conduct of elections and referendums. It also develops and maintains IT support for the whole electoral administration. Sweden has however also created an Election Review Board to resolve electoral disputes than cannot be decided upon by the Election Authority, and which in chaired by a judge.

Investigations: Lithuania

The Lithuanian High Electoral Commission has been very active in recent years arising from challenges concerning vote-buying which has led to the cancellation of results and repeat elections.

References

Department of Public Expenditure and Reform (DPER). 2014. A Report on the Implementation of the Agency Rationalisation Programme. Dublin: Department of Public Expenditure and Reform.

MacCarthaigh, M. 2010.National non-commercial state agencies in Ireland, Dublin: Institute of Public Administration State of the Public Service Series, No. 1.

MacCarthaigh, M. 2012a. ‘From Agencification to De-Agencification: The changing bureaucratic model’, in O’Malley, E. and MacCarthaigh, M (eds) Governing Ireland: From Cabinet Government to Delegated Governance. Dublin: Institute of Public Administration, pp.128-51.

MacCarthaigh, M. 2012b. Politics, policy preferences and the evolution of Irish bureaucracy: A framework for analysis. Irish Political Studies, 27, 1, pp.23-47.

Verhoest, K.; van Thiel, S.; Bouckaert, G. & P. Laegreid. 2011. Governing Public Agencies in the 21st Century, K.U. Leuven.

1 | Page