Splitting justice department will not be easy (Irish Times Op-Ed)

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In announcing the decision to split the Department of Justice and Equality (Irish Times (December 28^th), the Taoiseach noted that some thought may need to be given to which Department to close as ‘every time you create a new government department you have to abolish one’.  There may be logic to the principle of replacing rather than adding ministerial departments but it is by no means an imperative. In fact, no limit applies to the number of Departments a government may create. Rather, the Constitution sets the limit on the number of Ministers (15 in total, including the office of An Taoiseach).  During the period from 1967 to 97, there were never less than 16 government departments in operation, with 18 in existence between 1978 and 1984. And for a brief period in January 2011, as the then Fianna Fail/Green Party coalition crumbled, two Ministers held three portfolios apiece, with four others holding two.

 

In terms of individual Ministers holding dual portfolios, the Taoiseach may not have to look too far for examples of how to make this work in practice as his ministerial colleague Paschal Donohoe currently holds responsibility for two ‘central’ portfolios – the Department of Finance and the Department of Public Expenditure and Reform. In their current incarnations, these two Departments emerged from the decision of the Fine Gael/Labour Party government in 2011 to split the Department of Finance.  Important lessons have been learned from that process which should prove useful for the proposed division of the Department of Justice and Equality.

 

Major reform of the Department of Finance was well heralded in advance within both parties’ manifestos for the general election that year. It was also trailed in the Wright report which highlighted the shortcomings of the Department in the lead up to the crisis. In anticipation of reorganisation at the heart of government, officials considered a number of scenarios for implementing likely changes in advance of polling day. Dual-Minister, dual-Secretary-General and renaming an existing ‘shell’ Departmental (one which existed in law from previous administrations but which was not currently in operation) were all considered and ultimately rejected in in favour of creating a new Department in primary law. Within this new department the vital expenditure functions of the Department of Finance coexisted with the public service reform role of the Department of the Taoiseach.

 

While the goal was clear, realising this new Department involved a gargantuan amount of preparatory work. All had to be achieved in a tight timeframe and in the midst of an economic crisis. 

 

Those charged with splitting the Department of Justice are not beset by such pressures. However, like the Department of Finance, Justice is one of the original 11 Ministries created under the 1924 Ministers and Secretaries Act to provide the basic structure for the administrative system in the Irish Free State.  And, as documented in my recent book, in order to transfer functions to the new Department of Public Expenditure and Reform in 2011, a massive trawl had to be undertaken by all Departments to document the totality of responsibilities for which that Department assumed responsibility over the previous nine decades. This included such diverse issues as provisions for compensation applications arising from property damage during the Independence and Civil War period, to consenting on borrowings for capital investment and shareholder responsibilities. Once these had been identified, a complex legal process kicked into action, involving the transfer of over 4000 specific legal functions originally assigned to the Minister of Finance in hundreds of pieces of primary and secondary legislation. A similar trawl and transfer may be necessary to avoid overlaps or gaps in legislative responsibility between the two new Justice departments.

A particular feature of the Department of Justice in its various incarnations down the years has been the diverse array of agencies and offices it has accumulated but struggled to manage. The 2014 Toland report found that although the Department fulfilled its statutory obligations in respect of these bodies, it did ‘not hold agencies to account or have real management oversight’. Re-organising the Department thus provides an opportunity to consider the mandates, accountability and co-ordination of these arms-length bodies.

 

Splitting the Department of Finance was a necessary step in 2011, and the resulting two Departments each played a significant role in addressing the economic crisis and introducing reforms that would otherwise not have been possible. This process provides a model that those tasked with reforming the Department of Justice and Equality would be well advised to examine.