Good governance of public bodies is not a particularly exciting topic of discussion. Unlike poor governance, it does not make newspaper headlines. And that is precisely the point. Public bodies wish to stay out of the headlines for governance reasons, much preferring to be noticed for developing their policies, delivering on their strategies and serving citizens. If a public body has clear robust structures in place and appropriate processes and systems, then it will remain out of the news for the wrong reasons and will efficiently go about its business carrying out its functions in a lawful manner.
In this article, we simplify the myriad of relevant legislation and regulation into three essential pillars. Public bodies can refer to these questions when assessing whether they have the necessary structures and systems in place to ensure good governance.
Is the public body complying with its governing statute?
The first question to ask is whether the public body is complying with its governing statute. Typically, a public body will have been established by a statute which sets out its functions, duties and powers, in addition to establishing the governing structure. It will set out rules around the Board and the Chairperson, their appointment, disqualification, removal and their terms of office. The governing statute will often contain rules for meetings of the Board and subcommittees. It will also provide for the Chief Executive Officer and their duties which will usually be to manage and control the administration and business of the public body. The governing statute will also often contain provisions dealing with accounts, audit, an annual report, staff and ministerial powers.
In making decisions and taking actions, public bodies must remain within the limits of the powers provided to them by the legislature in their governing statute. If they act outside the scope of their statutory powers then they will be adjudged to be acting ultra vires or beyond their power. Public bodies must always refer back to their governing statute and examine whether it sanctions the decision or action which they are taking. If a public body acts outside of its statutory powers, an affected citizen can bring a Judicial Review action to the High Court seeking an injunction, an order quashing the action, or a declaration that it is invalid.
Is the public body complying with all of the legislation generally applicable to public bodies?
In addition to the public body’s own governing legislation it must consider a raft of legislation which is generally applicable to all public bodies. For example, public bodies must have processes to deal with, amongst others:
- The Freedom of Information Act,
- The Protected Disclosures Act 2014
- The Ethics in Public Office Acts 1995-2001
- The Standards in Public Office Act 2001
- The Official Secrets Act 1963, and
- The Official Languages Acts 2003-2021.
In addition, it must comply with procurement legislation, Comptroller & Auditor General legislation and GDPR & Data Protection legislation as well as general employment, equality and disability legislation. One can view this legislation as dealing with particular themes or values such as transparency, financial probity, confidentiality, accountability and ethics. The legislation seeks to ensure that public bodies operate in accordance with these good governance values.
Is the public body complying with the Code of Practice for the Governance of State Bodies?
Finally, the public body must review whether it is fully compliant with the Code of Practice for the Governance of State Bodies. This 2016 publication of the Department of Public Expenditure and Reform sets out best practice governance standards for public bodies. It provides good practical advice for public bodies together with suggested template documents. The Code of Practice is not a law and is not legally binding on public bodies, however public bodies are generally expected to be in compliance with it. The Code of Practice operates on the principle of “Comply or Explain”. Public bodies should follow the Code of Practice unless they have a very good reason for departing from it and, if they do depart from it, they need to explain why.
Conclusion
In making decisions and taking actions a public body must firstly consider whether that action is permitted by its governing statute. For each action it must ask whether it is fully compliant with its governing statute? Secondly, is it fully compliant with all other legislation with which public bodies are expected to comply? And finally, is it acting in compliance with the Code of Practice for the Governance of State Bodies? It would be prudent for public bodies to carry out a review or audit of its compliance with all relevant and applicable legislation. The Board members should be satisfied that the public body is fully complaint with all legislative and legal requirements. Furthermore, they should be certain that the public body and its staff fully understand all of the legal obligations. It might be useful for a public body to use the three pillars as a checklist or as the basis for an audit or review of its level of legal compliance and governance.
If you have any questions about good governance for public bodies, please contact our Public, Regulatory & Investigations team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
People also ask
What is corporate governance? Corporate governance comprises the systems and procedures by which organisations are directed, controlled and managed.[1] |
What is good governance in the public sector? Good corporate governance is where a public body is managed with integrity, effectiveness, efficiency, accountability and transparency such that it meets the highest standards of corporate governance. |
Why is good governance important for public bodies? Good governance is important because it avoids bad publicity. It also avoids Court actions against public bodies for invalid, illegitimate or illegal actions and avoids enforcement actions for non-compliance with legal obligations. |
What are the Nolan Principles? The 7 Principles of Public Life commonly referred to as the Nolan Principles[2] apply to people who serve the public such as public officer holders and are:
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[1] Department of Public Expenditure and Reform, Code of Practice for the Governance of State Bodies, (Dublin, 2016).
[2] Lord Nolan, Standards in Public Life: First Report of the Committee on Standards in Public Life, (London, 1995).
