(South Tipperary): I move:
That Dáil Éireann takes note of the Interim Report dated 13th December, 1967 of the Committee of Public Accounts.
Before I begin I would point out that in this respect I approached the Taoiseach and asked him if he would change his mind and allow it to be discussed in Government time. I did that as I was anxious to have a discussion in as non-partisan a fashion as possible. He was kind enough to agree to my suggestion and for that I now wish to thank him.
This matter may seem at first sight a small matter between two officials. Actually, there are fundamental principles involved. Those of you who have read the interim report will understand that it concerns the position of the Comptroller and Auditor General. The Comptroller and Auditor General derives his authority on two bases, on a Constitutional basis and a statutory basis. His Constitutional basis I will give from Article 33 of the Constitution, page 108 which reads:
1. There shall be a Comptroller and Auditor General to control on behalf of the State all disbursements and to audit all accounts of moneys administered by or under the authority of the Oireachtas.
2. The Comptroller and Auditor General shall be appointed by the President on the nomination of Dáil Éireann.
3. The Comptroller and Auditor General shall not be a member of either House of the Oireachtas and shall not hold any other office or position of emolument.
4. The Comptroller and Auditor General shall report to Dáil Éireann at stated periods as determined by law.
That is the exact wording which was laid down in the original Constitution in 1922. It has been represented that the statutory position is less satisfactory. The Comptroller and Auditor General Act, 1923, stated that the working of his Department was to be carried out in accordance with the 1866 and 1921 British Acts. Some doubt has been expressed as to whether this matter came within the realm of the Adaptation Act, 1922. It has also been suggested that it is outdated because it is 100 years old. Commercial audit and company law have kept pace with the times but the statutory law in connection with State Departments has remained unchanged since 1866. In practice of course the Gladstonian concept of audit limited to regularity, has for many years been developed and expanded to meet the conditions of modern society by our Comptroller and Auditor General as has been the practice in most modern States. I would direct the attention of the House to page 6 of the interim report which I quote:
We always in the Department of Finance supported his investigation, not just of regularity, but also of economy in the carrying out of policy decisions. We are concerned as the Finance Department with helping him in investigations designed to ensure that there is no failure to get value for money, that there is no inefficiency or waste or inadequate financial control. I would like to emphasise that this is a function of the Comptroller and Auditor General which goes back many, many years. There is nothing essentially new about it. I think that what is new, as probably the Comptroller and Auditor General will confirm, is that this has got an increasing emphasis in recent years. That is all I would like to say for the moment.
That is the contribution in evidence given on the 30th November, 1967, by Mr. Whitaker, Secretary of the Department of Finance.
Now, to give a short résumé of the position as it has developed. In paragraph 2 of his Report on the Appropriation Accounts for 1966-67 the Comptroller and Auditor General states that he requested three files which appeared to relate to travelling expenses of a Garda Superintendent; the supply of medicines to Gardaí in Dublin; and an organisation and methods report relating to the payment of witnesses expenses. The Accounting Officer suggested to him that his request be withdrawn because he saw objection, in principle, to making available any papers which might contain administrative directions or arguments of a policy character and matters of that kind. The Comptroller and Auditor General informed the Accounting Officer that he rejected his suggestion and that the matter would be reported to Dáil Éireann.
In this way the Committee of Public Accounts, of which I had the honour to be Chairman, was called upon to investigate and we took evidence from the Accounting Officer of the Department of Justice, the Secretary, Department of Finance, and the Comptroller and Auditor General.
The question raised is of such fundamental importance to our democratic processes that the Committee decided to present to the House an interim report with the minutes of evidence appended.
I propose to briefly review the evidence tendered to the Committee. The case for the Department of Justice was based on a contention that the Comptroller and Auditor General had no statutory right to demand papers relating to administration or policy proper. His powers are set out in the Exchequer and Audit Departments Acts, 1866 and 1921 and in the Comptroller and Auditor General Act, 1923. Section 28 of the 1866 Act states that — the Comptroller and Auditor General shall have free access, at all convenient times, to the books of accounts and other documents relating to the accounts. But the Accounting Officer was prepared to concede that down the years a system had evolved where Departments recognised that the Comptroller and Auditor General should have the right to inquire into any questions of extravagance or waste in administrative matters which arose out of items of expenditure which the Audit Office had been looking into.
The Accounting Officer further appeared to contend that the Comptroller and Auditor General had changed his procedure for obtaining information, but this was denied by the Comptroller and Auditor General who maintained that audit queries were usually issued after examination of departmental files. The Accounting Officer also mentioned that he had obtained an opinion from the Attorney General which, from the extracts he quoted, appeared to indicate that the powers of the Comptroller and Auditor General to examine departmental files or papers were restricted by law and that the powers of the Committee of Public Accounts were also limited by the Standing Orders of Dáil Éireann.
In a statement supplied to the Committee, the Secretary of the Department of Finance states that it has always been the view of that Department that the Comptroller and Auditor General should be facilitated in investigations designed to ensure that in the carrying out of policy there is no failure to get value for money, no waste or inadequate financial control. This important function has the sanction of custom and good sense rather than of an express statutory provision. It is admitted that there is a rather narrow legislative definition of the scope and powers of the Comptroller and Auditor General's activities. The Department of Finance felt that, in view of the responsibility of the Comptroller and Auditor General in our system of Government, it would be unfortunate if his access to official documents were to become strictly a matter of legal definition.
The Comptroller and Auditor General told the Committee that his report on the accounts must include a statement that he obtained all the information and explanations that he required. He considered that he must be the judge of what papers or information he needed and that this had been accepted generally by the Departments for over 40 years. His practice was to get the background information from departmental papers so that he could judge whether there were grounds for an audit query which would put the Accounting Officer on notice that a particular matter might be reported to Dáil Éireann. He could scarcely be interested in police files or matters of that kind but, if such files were referred to in the accounts submitted to him, he might ask to see them. The production of papers is a fundamental business as far as audit in any context is concerned and the Comptroller and Auditor General felt that he could not properly discharge the duties imposed on him by the Constitution if the Accounting Officers were permitted to withhold papers requested in the course of audit or to carefully select papers to be shown to the Auditor.
In the course of its deliberations the Committee learned that the British Committee of Public Accounts many years ago felt that no Department should have a right to refuse information, even though of a highly confidential character, to the Comptroller and Auditor General if he requires it to discharge his duties. It was also told that there had been no previous difficulty that had not been surmounted in getting papers from the Accounting Office of the Department of Justice or, indeed, from other Departments.
One appreciates that the Department of Justice must be careful and that, in the nature of things, security must impose its own rules. But the Comptroller and Auditor General is in a special position holding a quasi-judicial Office, one of the organs of the Constitution which is thoroughly safeguarded in the public interest. If it is found that under existing law he may be delayed or obstructed in obtaining all the documents or papers he judges to be necessary then the law relied upon — which is 101 years old — should be revised and brought into line with modern thinking. Although I have learned that in England the Audit Office do not remember a case where even secret documents were withheld so long as to bring the Comptroller and Auditor General to complain to the House of Commons, Dáil Éireann is now faced with this delicate problem.
I understand that the position of the auditor in private practice is thoroughly safeguarded by the Companies Act, 1963, and that he could be found guilty of negligence if he failed to obtain documents necessary for the completion of his audit.
More appropriately, however, I looked up legislation enacted by this House in 1941. I refer to the Local Government Act, 1941, Section 86, which provides, inter alia, that a Local Government Auditor may, by giving notice in writing to any person, require such person to attend before him to give evidence — on oath if necessary — or to produce any books, deeds, contracts, accounts, vouchers, maps, plans, or other documents in his custody or control. There is a penalty for failure in this respect. It would seem that the Comptroller and Auditor General should be placed in a not inferior position to that of the Local Government Auditor.
I was also able to check on the position in the United States of America. I found that the Budget and Accounting Act, 1921, provides that all departments and establishments shall furnish to the Comptroller such information regarding the powers, duties, activities, organisation, financial transactions and methods of business of their respective offices as he may from time to time require of them; and the Comptroller General, or any of his assistants or employees when duly authorised by him, shall for the purpose of securing such information, have access to and the right to examine any books, documents, papers or records of such department or establishment. This Act also contains provision for the Comptroller General to make recommendations looking for greater economy or efficiency in public expenditure.
It is clear to me that this House should not even be suspected of encouraging any Minister or civil servant to withhold papers which the Comptroller and Auditor General wishes to see. Indeed, he should be commended for interpreting his task more widely so as to cover the administrative processes involved in the collection and spending of public moneys. But, at the moment, his rights have been challenged on an interpretation of the law, and the position must be put in order by this House.
I made some inquiries to find out what the position was in this regard in other countries, as I felt the matter was of such extreme importance. A questionnaire issued in 1963 by the Permanent International Secretariat in Vienna of Supreme Audit Institutions to member countries requesting information on the legal basis and organisation of Supreme State Audit Institutions included the following questions:
1. Has the Institution the right of perusal of all the documents it may choose to request (not only vouchers, but also records, correspondence, contracts, etc.)?
2. Are the auditing officials empowered to demand all the verbal information they deem necessary?
3. As regards the powers of control as covered by questions 1 and 2 are there any restrictions imposed on the Institution in respect of supreme government organs (head of State, members of government, etc.)?
With the exceptions mentioned below all the replies received were affirmative in the case of questions 1 and 2 and negative in the case of 3.
In Germany the reply to question 1 indicated that the personal ministerial papers of a Federal Minister could be made available to the State Audit Institution only with the Minister's agreement, but otherwise there was no limitation to the Institution's right to peruse documents.
The replies to question 3 indicated that in Belgium and Holland Royal Family papers were excepted; in France special ministerial and Parliamentary funds were excepted but were audited by a special commission on which the Audit Institution was represented; in Germany Budget legislation permits specified individual items to be withdrawn from the Audit Institution as in the case of grants in aid in Ireland; in Sweden papers of the Cabinet are not subject to scrutiny.
Among the 68 countries who replied to these three questions were Austria, Australia, Belgium, Canada, Finland, France, Germany, Israel, Iceland, Italy, Japan, Holland, Norway, New Zealand, Poland, Yugoslavia, Sweden, Spain, Switzerland and Venezuela.
Article 15, subsection (10), page 38 of the Constitution states that each House of the Oireachtas shall make its own rules and Standing Orders. Standing Order 127 which gives statutory authority to the Public Accounts Committee reads:
There shall be a Select Committee to be designated the Committee of Public Accounts for the examination of the accounts showing the appropriation of the sums operated by Parliament to meet the public expenditure and of such other accounts laid before Parliament as the Committee may think fit... The Committee shall have power to send for persons, papers and records and to report from time to time.
The Public Accounts Committee takes evidence from Accounting Officers of each Department, usually the Secretary of a Department but not necessarily, and publishes an annual report with minutes of evidence incorporating a minute from the Minister for Finance on the Report. The Committee depends largely on the Comptroller and Auditor General who, as well as presenting his own Annual Report, furnishes the Committee with information based on his audit and sits in and contributes to the examination of each witness or Accounting Officer. Therefore, if the Comptroller and Auditor General is unable to conduct a satisfactory audit, the function of the Public Accounts Committee is gravely impaired.
I would finally direct your attention to page 21 of the Interim Report and I quote from the last paragraph of Mr. Suttle's statement to the Committee:
In my work in the auditing of accounts, I will look for papers which I consider are relevant to the accounts, which are the only papers I am interested in, and if I do look for such files, I must insist on obtaining them. In this particular case, I did not know what the files dealt with. All I had was the vouchers which referred to these particular files. If it was left to accounting officers to decide what papers I should see or what papers I should not see, I could not certify the account as correct because I would not be sure until I had seen the papers I asked for whether I had obtained all the information and explanations that I required; but on the basis of looking for every document I would not like to put a limit on what I was looking for because every action of the State has financial repercussions somewhere, and I feel that once I ask for a paper, I must see it, as has been the custom for years in every other Department. If some papers are highly confidential, it has generally been the practice of the accounting officer to get into direct touch with the Comptroller and Auditor General, explain the position to him and then invite him across to see them, no matter how confidential they are. But it is he himself who will see them, and then having satisfied himself whether things are correct or not, he will notify his staff: "I have seen that file: you need not look for it further." That has been the custom for years.
It was in view of that position that the Committee of Public Accounts, having taken all the necessary evidence and having discussed the matter in detail, asked the House to consider the following:
(1) That the proper discharge of the duty placed on the Comptroller and Auditor General by Article 33 of the Constitution, viz. to audit all accounts of moneys administered by or under the authority of the Oireachtas, requires that such documents as he determines to be necessary for the carrying out of this duty should be made available to him by Accounting Officers and
(2) that as the statutory position in relation to the making available of documents is not satisfactory legislation to give effect to (1) should be enacted.