LETTER FROM THE DEPARTMENT OF JUSTICE TO THE CLERK TO THE COMMITTEE
May I refer to your letter of 21 January and previous correspondence, and also to telephone conversations, relating to the question of Capital expenditure on the prisons.
In your letter of 10 December you say that if there are particular difficulties in relation to the provisions of (some of) the information sought it would be appreciated if the Chairman could be supplied with a statement setting out the views of the Department. Much of the material in this reply is included by way of response to that particular invitation. There certainly are difficulties in certain respects and I am endeavouring to explain them in sufficient detail to show that they are real and substantial.
Regrettably this means that the letter has to be rather long and it may be that, here and there, the justification for particular statements may not be apparent. I hope however that, taken as a whole, the letter will serve to explain the difficulties we have faced in seeking to respond to the Committee’s questions. (I am not, even in this letter, seeking to refer to the difficulties we have faced in other respects, namely our difficulties over the years in endeavouring to deal with highly complex series of projects with what in staffing terms meant operating on a shoestring. I appreciate that that is no concern of the Committee and I refer to it only in passing).
One other preliminary point may be made. Officers of the Department who have been before the Committee or the sub-Committee have a definite impression that official performance was being contrasted - unfavourably - with what might be expected of, say, professionally qualified people in the private sector. Some of the comments made in that respect have obviously been based on misunderstandings which it may be possible to clear up later. That apart, we would not like it to be thought that we would have any fears of any comparison with private sector performance that might be made even by private sector assessors professionally qualified in the relevant disciplines and free and willing to go into the detail necessary to form a judgement. Of course valid comparisons must take account of differences that arise from the constraints under which Civil Servants operate. I am sure I need not labour the point that nobody in the private sector would be asked to re-construct, years after the event, the circumstances in which decisions were taken (often not even by him) or be asked, by implication, to defend those decisions in an entirely different milieu.
As you know, two officers of this Department, an Assistant Secretary and a Principal Officer, have already been before the Committee or a sub-Committee on three separate occasions and, in addition, a substantial amount of written material has been supplied. The Assistant Secretary has recently been appointed Secretary to another Department, in which post he took up duty immediately. His departure inevitably adds to work pressures here that were already substantial.
I may say that we find considerable difficulty in approaching an issue that, at the present juncture, hinges in part on what went on at the last meeting when the record of that meeting is not available. It had been assumed that there would have been no question of our being expected to respond until we had got such a record. I appreciate that you have done your best to construct some questions from notes. However, some of those questions do not seem to take account of what has been said already to the Committee or sub-Committee and Mr MacConchradha’s recollection of the matters raised diverges from your impression.
Effectively, the Committee is seeking information about matters that go back over many years. It may not be out of place to say very clearly, at this point, that this Department has nothing to hide in relation to any of the matters in question and would wish to co-operate as far as possible with the Committee. It will be appreciated however, that - subject always of course to the qualification that there is accountability to the Comptroller and Auditor General and, through him, to the Public Accounts Committee - officers of this Department were accountable to the Ministers in office at the relevant time and maintained records reflecting that accountability. It was not the practice to attempt to keep records designed to provide explanations or defences, years after the event, either for decisions or policies which were public knowledge at the time or for the actions of officers of the Department.
I suggest that that is not something that needs justification - on the contrary, even if staff had had time for such unproductive work, which most certainly they had not, to have adopted such a practice would have been to provide some justification for the frequently-heard jibe about Civil Servants’ obsession with the keeping of records to protect themselves and to “play safe”.
For the same reasons, records were not kept in a manner designed to facilitate the production of a detailed “history” of the building, acquisition or reconstruction of prisons over a period of years. Decisions at any given time were made against a background of a complex set of social, economic and other factors some at least of which were of direct and substantial relevance but which do not lend themselves to Departmental recording.
A file that we might have about a particular building project would not - and could not reasonably be - a comprehensive record. For instance, if, in the context of a discussion on another matter, the Minister of the day had given a policy indication which was such as to make clear his wishes in general, it is not to be expected that it would be formally recorded in the file about the particular project. The Minister of the day, to whom we were accountable, would have known that the action taken was in accordance with his policy.
This explains why it is that, while certain information sought by members of the Committee may reasonably be understood by them to be merely factual, the “facts” sought in a number of instances - which relate to past decisions under different administrations - could be established only by reference to and in the context of the many discussions that took place from time to time between Ministers and officers of the Department - which of course is not to say that Ministers were involved in every detail or did not delegate any authority. Apart from the difficulty that some of the officers concerned are no longer with the Department, the provision of statements of that kind would raise at least two substantial issues of principle.
The first is that any statements that might be made at this stage by officers of the Department about discussions or policy decisions that were conveyed orally might well be regarded by the former Ministers concerned as being, if not wrong, at least incomplete and possibly entirely misleading as having been made without reference to wider contexts in which a Minister as a member of the Government must operate. I propose to expand on that point later. For the moment it is sufficient to say that of course it would not mean that any bad faith was being attributed to anybody and such differences of recollection or interpretation would be to be expected.
Secondly, there is an important question of confidentiality as between a serving Minister and officers of the Department in relation to discussions. The position as far as this Department is aware is that officers are never asked, even by the Minister, to disclose the content of discussions with previous Ministers nor is it the practice to volunteer such information. It is for the previous Minister concerned, in any given situation, to decide whether to refer to such matters and it would be only if something said by him were to make it necessary for an officer of the Department to respond that any question of a response would arise.
It would be a major step for this Department to depart from what - at least in this Department and as far as we know elsewhere - is a well-established convention which, because it permits a free exchange of comment in a confidential setting, is arguably of central importance in the relationship between a Minister and senior officers of the Department. To break that convention without consultation with the other persons involved (i.e. those who held Ministerial office in the past) would obviously pose an additional problem of principle. We do not think that such an action, with its potentially far-reaching implications, is one for which this Department could be responsible, affecting as it might the rights of Ministers who held office in the past, apart perhaps from the rights and interests of Ministers or Governments in the future.
We are aware, of course, that there is a recognised exception to the convention to which I have referred, namely where a formal public Enquiry is set up under statute pursuant to resolutions passed by both Houses of the Oireachtas. That, however, appears to be a fundamentally different situation.
All this is not to say that no information beyond what is already available to the Committee can be supplied. It is, however, to say that some of the matters raised give rise to issues that go well beyond what might at first sight appear to be nothing more than a (relatively) simple issue of fact that ought to give rise to no difficulty.
Your letter of 10 December last refers to the Committee’s Terms of Reference as including the power to “send for persons, papers and records” and goes on to include the following two paragraphs:
“The sub-Committee members were of the view that they would be unable to make a judgement on whether the expenditure to date on the prison building programme was justified or cost effective, in the absence of basic statistical information relating to decisions which gave rise to such expenditure.
I have been asked by the Chairman of the sub-Committee to request that such information as was sought at the meetings with the officials from your Department should be provided as soon as possible. If there are particular difficulties, however, which prevents your Department from supplying the sub-Committee with this information it would be appreciated if you could supply the Chairman with a statement setting out the views of your Department.”
We recognise that the first of those two quoted paragraphs also echoes the Committee’s Terms of Reference under which the Committee is asked to review the justification for and effectiveness of ongoing expenditure. Perhaps we should therefore emphasise immediately that we do not foresee any difficulty in providing material about ongoing expenditure in this or indeed any other area. The problem arises about some - not all - questions that are concerned with decisions and expenditure of years past which of their nature cannot affect one way or the other any assessment of whether the programme is now justified and/or cost-effective.
Your letter refers, not to ongoing expenditure, but to expenditure to date on “the prison building programme”. It is therefore quite clear that the Committee sees its remit as one that involves the passing of “judgement” on the justification for and cost-effectiveness of decisions - basically Ministerial and/or Government decisions - over a period which is not precisely definable but which arguably covers a period of about fifteen years and which, on even the narrowest possible view, must be taken to cover half that period. Since cost-effectiveness as a concept cannot be divorced from objectives and since the justification for a decision cannot be assessed otherwise than by reference to the context in which it was taken, a context which must include the economic and social circumstances of the time, or at all events those circumstances as they were then perceived to be, it is clear that, while certain kinds of question may be no more than simple questions of historical fact, others can be responded to only if the person responding engages, consciously or otherwise, in a process that involves interpretation and selectivity. At any given time in the past, decisions to build or not to build prisons were policy decisions which, in the nature of things, must have been made - we say “must have been” rather than “were” because we have no authority to speak for the Ministers or Governments of the day - on the basis of a complex network of considerations many of which would not, even at the time, have been written down in any single document or file, nor indeed could they possibly have been. It would be indefensible for any officer of this Department, years after the event, to hold himself out as being in a position to decide what information - statistical or other - was “relevant” at the time and especially indefensible to engage in such a process when the objective involves the passing of judgement on the work of former Ministers and Governments.
Moreover, even within the specific area of responsibility of the Minister for Justice acting as such - and of course a Minister for Justice also has his role as a member of the Government sharing in collective responsibility - a Minister’s attitude to what is desirable in relation to prison building is likely to be influenced by his views as to how future requirements may be affected by the activities of members of para-military organisations. Even if the other considerations did not arise, that would not be a matter on which officers of the Department could properly comment at all - beyond drawing attention to it as a clearly substantial consideration.
If, therefore, judgement is to be passed on the justification for past policy decisions, it would - to say the least - be unfair both to the former Ministers concerned and to the officers of the Department for the latter to be put in the position of providing (or even appearing to be providing) explanations for those decisions, to the exclusion of the former Ministers themselves who might quite legitimately have a very different perspective and none of whom has, to our knowledge, ever suggested that the decisions made were other than his or that he was misled in any way by the information given from time to time by his Department. As well as being unfair on the personal level, it would not be consistent with the status of Ministers in our system for this Department to blur the fundamental distinction between their role and that of officials. However, if it should happen that any former Minister wished to undertake to appear before the Committee to justify to the Committee decisions made by him as Minister for Justice in years gone by, it may be taken that he would be given any possible assistance he might request from officers of this Department in so far as the matter rested with them.
Those comments, as you will have seen, are made in the specific context of prison capital expenditure. But the issue is potentially much wider. If, on the basis that there is ongoing expenditure on prison buildings, decisions taken and implemented in the past involving expenditure which is itself now also in the past were at this stage to come under review, then the same can arise in relation to numerous other matters, e.g. decisions taken from time to time over the years about Garda recruitment, pay, overtime transport, etc., because there is and no doubt will be substantial ongoing expenditure on Garda pay, etc. I am sure it will be clear that I am not seeking to comment on what the Committee may wish to do but only drawing attention to the Department’s position in relation to decisions made under various previous administrations.
It seems, also, that despite the fact that there have been three meetings there remain fundamental misunderstandings about the Department’s position in certain respects where information can be, and as I understand has been, provided without difficulty.
For instance, your Question 12 reads:
“Why were designs drawn up when it was clear that adequate funds would not be available?”
The fact is that not only was there no question at any stage of its being clear that adequate funds would not be available but positive indications continued to be given that adequate funds would be made available as time went on - and we have no reason to doubt that those indications were genuine and justified. This question, taken in association with things which I understand were said by members of the Committee, appears to reflect a feeling that this Department went ahead, improperly and without authority, with design work at a time when funds had been cut off. If that is the impression the Committee has, it is without any foundation. If it were true it would involve irregularity in financial matters and, as it was the subject of an audit query (now long since answered) that appears in the 1982 Report of the C.& A.G., I as Accounting Officer will be answerable to another Committee of the House, the Public Accounts Committee, in respect of it. I am due to appear before that Committee in the very near future.
There may be another example of possible misunderstanding in the references in your letter to “cost per place”. Since it can reasonably be assumed that the Committee is not asking this Department to do for it a simple arithmetic calculation - the Department has separately been asked both for total cost and for capacity - the question appears to be intended to raise a query as to whether any worthwhile saving was achieved, the underlying assumption being that the re-designs were undertaken for the purpose of reducing “cost per place”. If that interpretation is correct, it seems right to say that, while cost was the issue as far as the projected security prison in Portlaoise is concerned (though the decision to re-design was made rather because of the size of the probable total outlay) the issues were different in relation to Cork or Wheatfield. (This may be as good a point as any other to say, even if only incidentally, that it is not correct, either, to suggest that any of the re-designing arose from “mistakes” in the first designs. There was no question of mistakes.)
Cork was designed from the beginning to provide accommodation for as many prisoners as could be provided on the site, consistent with the maintenance of adequate standards. The first design, according to professional advice, met that objective. At a later stage, certain developments in the area of building construction (described to this Department as “new technology”) made it possible to provide significant additional accommodation without resort to any unacceptable lowering of standards. A reduction in “cost per place” may reasonably be expected as a by-product but, since availability of site is of critical importance, the re-design to take advantage of “new technology” would be justified even if there were no such cost-reduction and might well be justified even if there were a cost-increase. (This is also an example of a situation where a “simple” factual answer to an apparently simple factual question would be likely to mislead).
Similarly, even though not in such a clearcut way but certainly in substantial measure the issue in Wheatfield was one of site utilisation rather than cost - which is not of course to say that cost was irrelevant but only that the change could be justified on other grounds in the light of growing experience even if there were no monetary saving.
I am afraid that, even with the length of this letter, I have not touched on some important points at all. However, any attempt to try to cover everything that ideally ought to be included would only delay matters further. What has been said will, however, serve to set the general background against which we will now, as soon as possible, take up the specific questions sent with your last letter and such further general “commentary” as may be needed can then be included.