The mover has 40 minutes. Every other speaker has 30 minutes. There is 15 minutes for reply and the debate can take six hours.
Private Members' Business. - Ombudsman Bill, 1979. Second Stage.
I move: "That the Bill be now read a Second Time."
It is with a sense of frustration that I came in here to move this Bill because it was on 6 May 1975 that I moved a Private Members' Motion for the appointment of an ombudsman. The motion was accepted by the House. Subsequently, an all-party committee was set up to deal with the matter. The committee met nine times. I can truly say that the committee were unanimous about the appointment of an ombudsman. Every aspect of the matter was debated until agreement was reached. Deputy R. Ryan, who was then the Minister for the Public Service, was chairman of the committee. The Fine Gael members of the committee were Senator John Boland, Deputy Brendan Total and myself. The Labour Party members of the committee were Senator Evelyn Owens and Deputy Seamus Pattison. The Fianna Fáil members of the committee were Deputy George Colley, Deputy Hugh Gibbons, Deputy Robert Molloy, Deputy Desmond O'Malley and Deputy Paddy Power. The Independent member of the committee was Senator Augustine Martin. The officials of the Department gave us excellent service. The document was not hastily put together but was processed slowly and thoroughly.
Before the Coalition Government left office a Bill was drafted, but events overcame it. It never occurred to me that there would be any delay in presenting the Bill because of the manner in which the matter was handled. However, the Government had been in office for two-and-a-half years and there is still no sign of a Bill. The reason for the delay cannot be the number of Bills being introduced in the House.
Do Fianna Fáil fear the appointment of an ombudsman? Under the terms of reference he had the right to examine files and make recommendations. He could not tell the Departments what to do but he had the right to investigate complaints. We sought the appointment of an ombudsman because we felt that Departments could withhold information. We believe that grievances must be thoroughly investigated and reported. This Bill has been gathering dust on the shelves of the Government. This is typical of the Government's attitude towards legislation. They are not too sure where they are going or what they want to do. They do not like the idea of someone breathing down their necks.
There can be no argument against the appointment of an ombudsman. A survey was taken which showed that 17 per cent of the people do not expect fair play, which must lead to frustration with the establishment. As legislators, we have a duty to ensure that people are treated fairly.
The report of the committee is a long one and a good one and should be read by everybody, especially those involved in public life. The main avenues of redress for the individual citizens aggrieved by actions or decisions of public officials are through the courts or through elected representatives. We know that the courts are only available to the well-heeled members of our society. Elected representatives can ask questions but cannot get complete answers. Therefore on many occasions we feel aggrieved.
A problem throughout the country today is the delay in the payment of social welfare benefits. We can ask questions here until Tibb's Eve but we do not seem to get the right answers. We cannot get at the nitty-gritty of what is happening in the Department of Social Welfare and why these delays are occurring. An ombudsman could have power to investigate this small area which is causing tremendous hardship. People are being left for weeks and weeks without money. They are supposed to live on fresh air or to go cap in hand looking for some supplementary welfare benefit.
No wonder people become cynical about politics. This makes people cynical. It is up to us to eradicate that cynicism where we can. As public representatives we can ask questions and go to Departments. Not everybody wants to go to an elected representative. Why cannot people pursue these matters in their own way? We recommended that a member of the public should be able to process his own complaints directly through an ombudsman. If somebody did not want to go to an elected representative he should have that alternative.
I was anxious that this Bill should cover all the Government services and the local authorities, but it was agreed to keep it within the Government Departments with the option of extending it to local authorities and other bodies. We should be able to set up the machinery to deal with general complaints. I hope it will be possible to have an ombudsman to deal with general consumer affairs with power to investigate all avenues of discontent.
Why have the Government shied away from this matter? They have so many internal problems that possibly they need an ombudsman to investigate them and sort them out. After that, they might see the light, and the reason why this Bill is necessary and desirable. There was broad agreement on the necessity for this proposed Bill but obviously there was no great sincerity or goodwill on the part of Fianna Fáil. When they were in Opposition they went along with it, but as soon as they took over the reins of Government they said: "We are the allpowerful party. The people gave us a mandate. We know what is good for the people. We will tell them what to do". A government who adopt that attitude do so at their peril. Events in the past two-and-a-half years have proved that.
I would ask the Minister to accept this Bill. There is nothing revolutionary about it. It will not overturn our society. It will not encroach on the powers of this House. On the contrary, it will give the House a better standing and a better image. Possibly people will have more respect for it because they will know they can get fair play. I am not saying officials set out to make bad decisions, or that governments set out to do wrong but, where there are grievances, we should have the machinery to deal with them.
Society is becoming more and more complex. There are more demands on the State. It is becoming more of a welfare State and, as a result, it is necessary to appoint an ombudsman as soon as possible. I would not envisage the ombudsman dealing with the various day-to-day problems which are dealt with by public representatives, but there are cases in which it is necessary to have such a person. I do not anticipate a deluge of problems on the desk of any ombudsman, but there are serious problems which justify the creation of this position.
Almost all democratic countries have some type of ombudsman because they realise the need for such an appointment. Because of the complexity of government today, the appointment of an ombudsman is necessary. People's rights can be eroded and usurped, not necessarily deliberately, but because of the pressures on the Government's time and on officials. With the overall complexity of Government welfare services, and of the various Government agencies who disburse funds, people may feel they are not getting what they should be getting. Because of the way the system works, they feel they have no redress.
I appeal to the Minister to take this Bill seriously just as he was serious in regard to the discussions in which he was involved and which formed the basis for this measure. The setting up of an all-party committee in respect of this legislation was an example of the openness of the last Government. They were not prepared merely to go into conclave and to decide on the type of legislation to be produced. Instead, they invited members of the then Opposition to participate in the discussions in the knowledge that the more people who are involved in such discussions and the more views that are put forward, the better will be the legislation that results. On that committee some people indicated that they themselves could do the work that would be required of an ombudsman while others had no doubt about such an appointment; but at least we sat around the table and during our nine meetings considered all the various points of view.
I fail to understand why the Government have not moved in this regard long before now. Their failure to introduce the appropriate legislation represents a denial of democracy. No one can doubt our sincerity so far as this legislation is concerned. In addition to the setting up of an all-party committee, we invited the expression of all shades of opinion on the issue. Indeed, that may have been the first time that democracy operated really well here. There was not any question of the legislation being kept on one side of the House. Having covered all the ground painstakingly and being aware of our responsibility in this regard, we proceeded to prepare a Bill. Yet, two-and-a-half years later the Government have not made any move in regard to appointing an ombudsman.
The Government should be ashamed of themselves for the way in which they have dealt with this matter. Their attitude highlights their total lack of commitment in the area of providing help for people who require it. The Government are indifferent to the problems that people may have to face, adopting the attitude that the system will suffice and will provide what is necessary. But such a policy will no longer be tolerated. People nowadays think for themselves. They want to know the answers and they need to be told what is happening. They need an ombudsman to give them the answers that they cannot get otherwise. That in itself may be part of the reason for the Government shying away from the problem. However, I hope that I have given some of the answers. Obviously, we are anxious to hear what the Government side have to say. Hopefully, they will be in a position to tell us that they are accepting this Bill, a Bill which cannot be regarded necessarily as a Coalition Bill having regard to the taking into account by us of all the various points put forward by the then Opposition in relation to the framing of the Bill, a procedure that was followed throughout the drafting of the legislation. If the then Opposition held any serious reservations about the Bill, they failed to voice them at the time or else they were merely paying lip-service regarding the necessity to appoint an ombudsman but hopefully that was not the case.
The Bill would not appear to contain anything that might be considered to be in conflict with what was contained in the report. The provisions relate to the appointment and tenure of office of an ombudsman, to the question of staff and so on. In the report which was laid before us there was reference to the way in which complaints would be dealt with and to the question of evidence and investigation. When one examines that report and compares it with what is in the Bill, one fails to find anything in either that would conflict with what is in the other. What, then, is the reason for the delay? There are many reasons for appointing an ombudsman but to go into those now would only involve a rehashing of all that has been said before on Private Members' Motions and during the meetings of the all-party informal committee.
When on this committee I was of the impression that everybody on it was serious and wanted the implementation of the recommendations of the report and the appointment of an ombudsman. I believed this. As time drifted on I felt that something would happen, that the committee could not close their minds to something they themselves were involved in. Three of the present Ministers were on that committee, the Minister for the Public Service and two other Ministers. So there is no question that they have not the muscle or the influence to initiate legislation. That is why I am worried. If they were now backbench Deputies and had not the same clout then we could say that there was some reason. But here we have senior members of the Government who were involved in that committee showing total unconcern.
No matter what way this matter is looked at it is in no way contentious; nobody is misled; it is not a matter of a report being made and watered down and twisted to suit the needs of the government of the day. There is no question of that whatsoever. That is why I believe the Government are being less than honest in relation to this report and the Bill that was being initiated before the Coalition Government left office. It is not as if the Government had to initiate a Bill. It is there for them but they will not accept it. I do not know whether they are being bloody-minded because this is not their legislation or whether they are inept and just not concerned about whether people have grievances or not. I do not know the reasons but I do know that it is the work of a government who do not care, who are not concerned about whether people have grievances, genuine or not.
Here is an area that will not cause any problems, that will not upset the balance of power or interfere with the authority of this House or of the Ministers because, although the ombudsman has the right to go in and examine files and to bring problems to the notice of Ministers, Ministers can in their wisdom or otherwise reject that although I believe it would be a rather foolish Minister who would. Maybe Ministers do not like the idea of people coming into their Departments and pointing out problem areas. Perhaps it is arrogance which prevents the Government from bringing in this legislation. I believe that is the case. They are ensconced now and why should any individual whom we appoint in this House or who is appointed by the President come into their Departments and tell them where they are not doing an efficient job and that people's lives are being affected as a result of some of their inefficiencies or some of the orders they make? Why should they allow this? The people elected them, therefore they have all power. That is a dangerous philosophy particularly in modern times. People have rights and this House has an obligation to ensure their rights are protected and if there are areas where people may be suffering from one thing or another because of bad administration then it behoves this House to appoint a person or persons who will ensure that the rights of individuals are upheld at all times. Otherwise we are only paying lip service to democracy and we all know democracy was got at a hard price.
When I look at the delays, when I look at the legislation before the House and when I look at the report of the all-party committee, I am at a loss. I can only say that there is no good reason why this Government will not accept it except that they do not like interference from anybody. If we cannot accept advice and if we cannot accept people probing and questioning the reasons why we do this, that or the other, then we are drifting away from the mainstream of democracy and I believe that is what the Government would like to do. It is a sad thing to say but one can only come to that conclusion when one sees the delays and the frustrations this House has had to put up with because this legislation has not been laid before it before now.
I sincerely ask the Minister to accept the Bill and if he will not accept the Bill to spell out quite clearly why he will not in the light of the all-party committee report. There may be something I do not see that is wrong in this legislation. I can see nothing wrong with it. In conforms with the report and therefore it behoves the Minister who was a member of the committee to accept it. If he does not, given the circumstances of this legislation, he is not being fair. Fianna Fáil, as an Opposition party, were brought in on the informal committee and agreed to the report and now at the end of the day they are running away from it. It would seem therefore, that all-party informal committees may not be a good idea at all and this is something I would regret very much.
In conclusion I appeal to the Minister for the Public Service to accept this legislation. It is worthwhile and will not cause any problems, but will in fact help governments and make them more efficient, given that in the terms of reference the ombudsman will make reports, with worth-while ideas and ideals for governments to act on.
I should like to make it clear, at the outset, that we are not accepting this Private Members' Bill because it is not good enough. I hope to enlighten Deputy O'Brien——
Glory be. Better than nothing.
I did not interrupt Deputy O'Brien, who kept on saying things which were wrong and which I believe were supplied to him by Deputy Ryan.
That is wrong. I apologise. Deputy Ryan was to move this Private Members' Bill, but had other matters to attend to.
I am not saying that, Deputy. I shall explain.
Excuse me. The Minister made the charge that Deputy Ryan supplied me with information. I am telling the Minister, through the Chair, that that is not true.
All right. The Deputy has taken the responsibility on himself.
Of course. I take responsibility for all that I say in the House.
I did not interrupt Deputy O'Brien with all his allegations. Let me make my case.
The Minister mentioned my name.
Deputy O'Brien mentioned my name on numerous occasions saying that I was guilty of bad faith, arrogance and various things. I did not interrupt him.
That is right.
Just listen for a moment, please. What are the facts? Deputy O'Brien seems to think that it was a great thing on behalf of the previous Government that they had an all-party committee including the Opposition. All-party committees existed a long time ago, before and since, and in some cases worked very well. I would agree with Deputy O'Brien that this was a committee which, in my opinion, did work well. Deputy O'Brien's approach to it at the time, and in the committee, was one of quite genuine commitment. I cannot say the same for his party. The evidence shows that, when it came to the crunch, his party were more concerned with political opportunism than with getting a worth-while ombudsman system set up here. I say that for two reasons. Firstly, the committee having met over a long period and having worked very well, a meeting was called by the chairman, my predecessor, Deputy Ryan. It was called on 18 May 1977, with virtually no notice to the Opposition members, and the whole object was to rush it through in time for the election to show the great job the Coalition Government were doing. It was known, and communicated to Deputy Ryan at the time, that the Opposition members, for good and genuine reasons, primarily due to the ridiculously short notice, would be unable to attend. This was where the political opportunism came in. The then Opposition party had worked hard and genuinely and in good faith to produce the best possible results, but when it came to the crunch, the effort was made—and succeeded at the time—in rushing the report through, in the absence of the Opposition and the points which the Opposition——
Four months after the draft report had been approved.
I know that Deputy Ryan does not like the truth, but he can take it now.
All right. I can speak tomorrow and I shall screw the Minister for the nonsence he is talking.
No interruptions, Deputy, please.
The fact is that there were outstanding amendments which the Opposition——
That is not so. All right, go on. I shall speak tomorrow.
The facts are there on the record. The Deputy should not walk himself into too much trouble.
Mr. Ryan
No trouble at all.
The fact is that we had sought certain amendments. Let me say immediately——
You did not, of course.
Acting Chairman
No interruptions please.
I think the Deputy is embarrassed. I think that is the trouble.
It is a clear indication——
(Interruptions.)
It is a clear indication of the situation in this House that Deputy O'Brien spoke for 40 minutes without interruption and when I have spoken for only five minutes I have been interrupted virtually the whole time. The fact is that we sought certain amendments and I was about to add that they were relatively minor amendments, but that did not matter. Deputy Ryan was determined to drive the report through, so the meeting was held in the absence of the Opposition, on 18 May. The report, as it then stood, was adopted and was submitted by Deputy Ryan to the then Government on the following day. That fact alone gives an indication of what was happening. The Government authorised the publication of that report on the following day, 19 May, and copies were released by the Minister at a press conference which he held on 23 May. The first thing which made me think that Deputy Ryan had informed—or misinformed, rather—Deputy O'Brien of the situation was that Deputy O'Brien said on a number of occasions when speaking here this evening that the previous Government had prepared a Bill and we did not do anything about it, sat on it for two-and-a-half years, he said. If Deputy Ryan did not tell Deputy O'Brien that, where did Deputy O'Brien get this fairytale, because it is a fairytale? There was no Bill prepared by Deputy Ryan, or on behalf of Deputy Ryan. I am not criticising him for that.
Were the bones of a Bill not there?
The report was there and if the Deputy will listen to me, I will mention something which he will probably remember then. One of the things that the committee recommended was that when the report was completed it should be publicised, because there would be groups who would have views to offer which should be taken into account before the legislation was drafted. I do not know if Deputy O'Brien remembers that, but if he looks at the record, he will find that is so. There was no Bill, therefore, prepared. As far as I was concerned I was starting from scratch with a report which had been rushed through in the way I have described. I arranged for advertisements to be issued and submissions were sought. In fact there were 18 submissions received which were examined closely. Then it transpired that there were a number of quite difficult legal points arising out of the committee's report. We had sought to keep as precisely as possible to the recommendations in the report; these difficulties came to light and necessitated consultations with the Office of the Attorney General, even before the drafting could commence.
I intend to indicate to the House some of the difficulties. They were not, of course, taken into account in this Bill now before us and that is the reason why I said, at the outset, that the Bill is not good enough. Unlike the picture painted by Deputy O'Brien of a Government which did not care, the fact is that we cared so much that we wanted to make sure it is absolutely right, and have taken every precaution to try to ensure that as far as it could be done. The Bill has, in fact, been drafted, approved by the Government and in the process of tidying up, relatively small points have come to light which have to be submitted again to the Government and will, I hope, be dealt with very shortly and the Bill will be published. It has already been introduced by long and short titles.
I charged the Fine Gael Party with political opportunism in this matter, firstly because of the circumstances in which they—and Deputy Ryan, in particular—tried to rush it through for the elections, in the absence of the Opposition who had co-operated fully in preparing this all party report. Secondly, I accuse the Fine Gael Party of that because the Fine Gael Whip was told clearly that the Government had this Bill almost ready and would be circulating it quite shortly. They insisted, as they are entitled to do within the rules of this House, on bringing in this Private Members' Bill. I suggest there is only one reason for that. It is because they want to suggest the Government have deliberately held up the Bill. It is the same pattern that we had prior to the last general election when an effort was made to try to reap the kudos for the work done by Deputies from all sides of the House.
Why did Fianna Fáil not have their own Bill ready?
The Deputy has come in late. As he did not bother to come into the House before now he should not bother interrupting. I have dealt with that matter.
The Government will have enough to deal with tomorrow.
Acting Chairman
There should be no further interruptions.
Does the Deputy want the floor? I can sit down. I do not give a damn. If the Deputy does not want me to explain I can sit down.
We know the Minister does not give a damn.
I do not have to. I am doing the job. I have a Bill that will give us a decent ombudsman, not this thing that is before the House. If Deputy L'Estrange insists on interrupting me he can have the floor himself. Is that what the Deputy wants?
The Minister is in possession.
If I am in possession I hope the Deputy will leave it that way. I said I would point out some of the difficulties that arose which caused detailed legal consultations and matters which have been omitted or overlooked in the Bill before us. First, the all-party committee envisaged the ombudsman's remit as being limited in the initial stages of his operation to Government Departments but with local authorities, health boards and non-commercial State-sponsored bodies being brought within his jurisdiction at a later stage. Indeed, I understood from Deputy O'Brien that he thinks this is in the Bill but it is not.
The Deputy will recall that the reasoning behind it—and I think it was very sound—was that if we were to bring in all of these bodies together the ombudsman and his office would be swamped. It just would not work at the beginning and it would be discredited. Section 5 (1) of the Bill before the House would bring in all these bodies under the scrutiny of the ombudsman from the first day of operation, the very thing the committee said should not happen. The all-party committee explained their approach as being one of cautious pragmatism. They did not elaborate on the report but I do not think Deputy O'Brien would disagree with me if I said that underlying this idea was that as the ombudsman and his staff would be breaking new ground they should confine themselves to a limited area of governmental activity until they got the procedures and the work methods firmly established. As I said, there was a danger that if all these things were brought in from the beginning the ombudsman would be swamped and the whole operation would be discredited.
Will the Minister state whether all this will be done by order under his Bill?
Yes.
It will not be done by way of further legislation?
No. We are providing for adding to it without additional legislation. Secondly, the committee recognised that "certain decisions by Ministers where they were required or allowed to make value judgments should be subject to investigation, probing and censure only by the Houses of the Oireachtas themselves and should, therefore, be excluded from the ombudsman's remit".
The Bill before the House makes no provision for this category of decision. As an example of the effect of this, we would have a situation in which, for example, petitions to the Minister for Justice in regard to mitigation of prison sentences would come within the investigation of the ombudsman, something that was envisaged by the committee as not happening and something that should not happen. During the years the Oireachtas has provided that certain decisions taken by officials should be subject to appeal or review either by the courts or by certain statutory mechanisms specifically created for that purpose. Some examples of that would be appeals to the Commissioners of Income Tax and appeals to An Bord Pleanála. When the committee considered this and also considered whether matters which were already subject to existing appeals facilities should be brought within the ombudsman's report, they regarded the danger of citizens pursuing complaints both through the facilities which existed already and through the ombudsman as objectionable and suggested that these should be excluded from the ombudsman's remit. The committee went on to make a distinction between appeals to bodies outside the public administration, that is, appeals to independent tribunals and appeals to career civil servants who would be, perhaps, subject to the administration, for instance, in the case of social welfare appeals officers. They recommended that the ombudsman should not investigate where there is an independent facility available but should investigate where the appeal is to somebody who is part of the general administrative system as, for instance, in the case of social welfare appeals officers.
This Bill before us has no provision to deal with this problem. It would leave it open to a complainant—to quote the report—"having pursued a meritless case through the full range of appeals facilities to have the same matters looked at again by the ombudsman". The income tax appeals commissioners deal with about 20,000 appeals each year and I am sure it will be clear to the House the scope for duplication under this Bill if it were implemented in this way. There are a number of other matters of a similar kind that I could point out to the House but I do not think it is necessary. All I am seeking to do is to point out that there are a number of difficulties involved even following the recommendations of the all-party committee as closely as possible. That is what we have tried to do.
This Bill put forward by Deputy Ryan on behalf of Fine Gael does not deal with these difficulties. That is why I said at the outset that we are opposing the Bill because it is not good enough but I reject categorically the charge that we had a Bill ready when we came into office which was prepared by the previous Government and that all we lacked was the will to implement it. Deputy O'Brien seems to think that was the case. As I have tried to point out, that is as far from the truth as it could be. We had no such Bill. We had to advertise for submissions. We got the submissions, we examined them and we discovered even before drafting the Bill that there were a number of very complex problems. In fact, the Bill that we will bring before the House shortly is one of the most complex Bills the parliamentary draftsman has had to deal with. It will be before the House very shortly and Members will see that it adheres as closely as possible to the report of the all-party committee and that it is a far more satisfactory Bill than this Bill which has been put before us now for reasons of political opportunism.
I feel—I think I said this earlier and, if I did not, I want to say it now anyway—that Deputy O'Brien's concern in this matter has been genuine; he has shown that in the past and in his work on the committee. I cannot say the same in regard to Deputy Richie Ryan. I cannot say the same in the regard to the Fine Gael Party and their approach at the time before the election when they tried to rush through the report in the absence of the Opposition, and now in rushing forward this inadequate Bill when they know that the Government Bill is just about to appear, the one that has all the expertise available applied to it, an expertise which has been fully taxed in preparing this very complex Bill.
I want to make it clear that, as far as this Government are concerned, they are committed to the whole principle and idea of the ombudsman. I made that clear in reply to a Parliamentary Question shortly after we came back into office. We have been pushing this forward as hard as we could and the House will see the results of that very shortly, I would hope within a matter of weeks. For all of those reasons we must oppose the Private Members' Bill now before us and reject categorically the charges that have been made.
The Minister and Deputy Ryan have been engaged, for part of the Minister's speech, in a wrangle which is disedifying to say the least. The Minister described the Fine Gael Party's action in moving this Bill as inadequate. He said it was a Bill that was not good enough and defended his opposition to it by saying that Deputy Ryan, when in office, had been guilty solely of political opportunism by rushing into print with some thing that did not have the full consent of an All-Party Committee. The Minister in his speech could certainly not be accused of political opportunism but he could certainly be accused of political bankruptcy.
How otherwise can he justify a situation in which, two-and-a-half years after assuming office, he has to come before the House and tell us that his Government's Bill is not yet ready. He attempted to justify this by saying that, when they came into office, they invited submissions and discovered that there were various technical problems of a very complex nature associated with the draft Bill. This attitude is very reminiscent of the advice tendered by, I think, Hilaire Belloc, to a fearful child: always keep a hold of nurse for fear of getting something worse. The attitude on the Government side of the House in relation to this Bill seems to be: do not bring it in until it is perfect. It is easy to suspect that following this attitude rigidly would lead to total paralysis on the Government side of the House. Indeed there are times when it seems that this is not an unfair description of what is going on. If one was never to do anything until one had got it absolutely right, then the chances are that one would never do anything at all.
To look at the leisureliness with which the Government have approached this problem one would think that they were going on the basis of an assumption that they had 50 years before them in office instead of the remainder of a term of five. Of course while one appreciates the Government's intention that any Bill they bring before the House should be a reasonably well worked out document there comes a point at which the Government's obsession with having everything in the Bill absolutely right has a very strong implication—that there is nothing that this House can add to this or perhaps any other Bill. I would remind the Minister that this House is also an All-Party Committee and that, if we did not have this rampant infallibility complex on the part of the Government, we might just occasionally be treated to the sight of the Government introducing a Bill in some hope, some humility and in the expectation that it might actually be improved on its passage through the Dáil.
There seems to be little of that kind of sensibility on the Government side of the House. It amounts to a reflection on the ability of this House to conduct its own business, on the ability of this House to make a constructive series of suggestions, amendments, proposals, whatever to a Bill under discussion. It was perfectly open to the Government to accept the Second Stage of this Bill introduced by Deputy Fergus O'Brien and to amend it as the Government saw fir in its passage through the House. I suspect that even the thought of an Opposition Bill—even one on which there is such a substantial measure of all-party agreement as this one—passing through this House, and perhaps the other House, in the lifetime of a Dáil in which Fianna Fáil are in Government is anathema to the Government Party. They govern. Of course they govern; we know that but that they alone must govern is the hidden creed of that Party. In that Party it is not the Dáil that governs; it is the Party that governs.
I want to refer to two broad areas in support of the Bill. I want to refer to the whole question of the public service and the way in which an ombudsman might be expected to bring his attention to bear on it. I want to refer to the role of the public representative because I believe that the function of the ombudsman—and in broad terms I welcome this Bill although I would have some quibbles with perhaps some of its sections—takes place at the intersection of the role of the public servant and that of the public representative. That is why it is important for us to discuss these two roles in a reasonable way. First of all, in relation to the public servant, we can state without contradiction that the role and scope of public administration has increased enormously in the last 50 years. In itself this is not a bad thing.
People are very ready to assume that the growth of public administration, that the ever-lengthening payroll of the public service—which is not lengthening as fast as we would like on this side of the House—in some way implies that ordinary individuals in society are losing out to the great impersonal State machine. It has to be remembered that this growth in administrative personnel has accompanied a very substantial growth in the involvement of the State and the public services generally in the welfare of a very large number of individuals. To put it quite bluntly, we simply could not have a welfare system, an educational system, a health system, a legal system; we could not have a system of benefits of anything like the degree of flexibility that we have today without a system of administration that is in itself complex, flexible and fairly numerous in terms of the personnel involved.
It is a pity in a sense that the word "bureaucracy" has come to have such a pejorative ring about it. I know many public servants—and I am sure every Member of this House knows them as well—whose contribution to the public service, very often at cost to themselves in terms of what they might be earning in comparable employment in the private sector, has been very substantial, and whose concept of public service is in no way inferior to that of any of us in this House. It is also true to say that the growth of the public service into many corners of our society where formerly they never set foot, has also created problems. If the system is to be administered properly and correctly and fairly, it needs ever-increasing numbers of people and yet, the more you increase the personnel, the more you increase the chance that something somewhere along the line may go wrong.
It is also true to say that in many areas there are extraordinary powers of discretion. This in itself is not a bad thing, as I will come back to argue in a minute. It remains true that the exercise of discretion also carries within it potential problems. We all have to strike a balance in our minds between what kind of discretion in a public service is appropriate and what is not. Without making the slightest reflection on any of the individuals concerned, I should like to give as a prime example of the area in which administrative discretion is over-large the Department of Education.
It is absolutely extraordinary that a Department who administer a departmental budget of almost £500 million a year should be governed by so little legislation. When you think of the reams of legislation which circumscribe the operation of the Department of Social Welfare, when you think of the mountainous Acts and regulations beyond number which govern the administration of the Department of Health, the Department of Education is a puny stripling indeed and, as I have said, a prime example of the doubtless innocent way in which administrative discretion has exceeded what might be regarded as reasonable bounds.
I want to come back to the question of discretion because it is plain that discretion exists, and discretion ought to exist, and if as I hope we will, we establish the office of ombudsman, many of his investigations will be into areas in which this exercise of discretion has either injured an individual or has appeared to an individual to have injured his interests. There is a very ambiguous attitude in the public mind towards discretion. Very often there is a desire to criticise public servants who use discretion. Ironically, at the same time, there is also a willingness to criticise public officials who are too hidebound by the rules, the famous red tape syndrome. I do not think we recognise often enough what the rules were put there for in the public service originally. They were put there to eliminate, or at least to reduce, the likelihood of nepotism, of patronage, or of corruption.
When we attack the rules we have to be very careful about what we are attacking. When we attack the so-called bureaucrats, when we attack the so-called red tape, we have to ask ourselves are we attacking the existence of rules in themselves? Are we attacking particular rules, or are we attacking the particular use that may be made of a certain set of rules? We really cannot have it both ways, and yet we tend to try to. This is probably especially true in the public eye and in that part of the public eye which is reflected in our media.
Where there is a particular case in which there is a whiff of corruption, in which a public official may have been slack, in which a public official may have been careless, there is a call from the public to tighten up the rules, to make sure this cannot happen again, and to sack the official concerned. If in another case somebody is denied a benefit popular opinion feels he or she ought to have had, if a person or category of people is excluded from a benefit because of the application of a certain set of rules, the cry goes up: "Cut the red tape. Away with all this pettifogging nonsense. Let justice be done." There is a danger in all this that simplistic critiques of administration may disregard the strengths of a well-worked out and soundly based system of public administration.
One point I should like to make in passing is that I suspect many of the problems which arise in relation to the public service, and which may well find their way onto an ombudsman's desk, relate to what happens at the point of contact between a member of the public and the public service. I feel personally that public servants who work at the point of contact, at the interface if you like, between their service and the public, tend to be too junior and tend, as they are promoted into areas in which administrative practice and discretionary procedures are elaborated, to move further and further away physically from the public they are supposed to be serving. I should like to see a recruitment and promotion procedure in the public service that brought public servants to the interface with the public at a comparatively senior point in their careers.
I should now like to turn to the role of public representatives in any administrative system. No public representative who has ever reached this House will be unaware of the way in which he or she is regarded as an essential cog in the administrative machine. He or she may regard himself or herself as having been elected in order to decide the fate of the nation, but he or she will find himself or herself interfering with various levels of the public administrative system and service on behalf of individual constituents to an inordinate degree. I recently sent out a survey to a cross-section of my constituents and was interested to find out that their estimation of the amount of time I spent in here as compared with the amount of time I spent looking after their problems was almost exactly the reverse of the situation that exists.
There is another aspect which is that constituents do not often differentiate between the different sectors of public administration. They do not often recognise that as a Member of the Dáil or Seanad one need not have any direct input and that unless one is a councillor one does not have any direct input into a whole series of problems and difficulties that are the preserve of the local authority. Likewise it works in reverse if one comes to a councillor with a problem that a councillor has nothing to do with. There are some areas where public representatives overlap. For example, housing is both a national and a local concern but telephones are purely a Dáil matter and a councillor would have nothing to do with the provision of a telephone.
It is clear that at the moment constituents who feel aggrieved use their public representative at all levels, regardless of the relevance of the role that he may have to play in other areas, as a kind of ombudsman. We are either underpaid as public representatives or else we are the most overpaid secretarial service in the western world in that we spend so much of our time in writing letters to public Departments on behalf of people who have neither the time, the resources nor the degree of familiarity with the system to make these representations themselves. We are not ombudsmen in the full sense of the word. We do not make the judgment on an individual case. In any case in which a constituent has a grievance, Members of the House are usually clear in the first three or four minutes of meeting the constituent whether he has a genuine grievance or whether he is just hopelessly doing the rounds of all the public representatives in defence of a case that he is not sure of. In the case where a genuine grievance exists it seems that by our intervention we can ensure that the case is re-heard at a higher level of administration than the level at which it was originally decided. This is important, but I wonder if it is the work he ought to be doing. This is not to say that decisions against which constituents are appealing are unfair. In fact, I would prefer more discretion rather than less at all levels of the public service. It is just that every system needs an appeal court. However, it is very unclear as to whether this Chamber should be performing that function.
The proportional representation system may be partly responsible for the creation of the client system in politics, which is encouraged by overworked public officials who argue that if anybody has a real grievance it will come through the TDs or the councillors and they therefore confine their administrative attentions more and more to cases that reach them through these channels. It is also encouraged by the TDs because it helps them to build up their file system, their client list and their groups of political dependants. That is not the right way to go about it. The appointment of an ombudsman is an essential first step in breaking away from the client system in politics the only justification for which is that occasionally it produces justice where justice was probably quite innocently denied through the administrative process. If there is one other major benefit from the establishment of an ombudsman it is that it might begin to put an end to the system of patronage which has disfigured this country for decades. I do not know that any administration has entirely clean hands in this regard, but it was quite extraordinary to hear the Minister for Labour on a public platform during the Cork by-election, saying that Fianna Fáil did not believe that one had to go cap in hand to any politician to get a job. If Fianna Fáil did not invent the system of patronage here I do not know who did.
We must differentiate between patronage and patronate. If it is in one's power to make political appointments as a government, for example, naturally one will appoint people, by and large, all other things being equal, who share one's political beliefs. I do not believe in a system of patronage which involves an interference in administrative procedures whether at the level of local administration, national administration, the law courts or whatever, in the allocation of housing, jobs and in the public service. Many of the people we represent find it difficult to differentiate between these two kinds of patronage. It is important in the democratic exercise to do so. We all meet people who believe that political influence will get them something to which they are not entitled. This is particularly true in relation to housing. It is certainly a slur on the housing officials in the local authority with which I have most dealings, the Dublin County Council, but it exists as a kind of folk memory from when people thought things were different. That is why we need more openness. A member of my party has a motion down in Dublin County Council at the moment urging the council to make all housing applicants fully aware of their position on the housing list well in advance of any allocation of houses so that if any mistakes of an administrative nature have been made they can be corrected before the houses are allocated.
It is sad that some politicians and public representatives do not see the need for this kind of openness and for this different way of doing things. It may be that at a time when so much effectiveness and power is being removed, especially from local authorities, but also from the Dáil, they like to continue having people believe that their intervention can have a political effect. We must strike hard at that. An ombudsman is not the ultimate solution to all the problems I have talked about this evening but this Bill goes a considerable distance towards satisfying the things that I have outlined.
Will Deputy Horgan move the adjournment of the debate? The Deputy has two minutes left for tomorrow night.
Can I finish on a sentence?
All right.
An ombudsman is not the ultimate solution. The ultimate solution as well as an ombudsman is public awareness of rights, an administrative system which blends flexibility with fairness and a Labour Government. In time we will have all three.
An Leas Cheann-Comhairle
Will Deputy Leyden move the adjournment of the debate?
I move the adjournment of the debate.
Debate adjourned.
The Dáil adjourned at 8.30 p.m. until 10.30 a.m. on Wednesday, 21 November 1979.