Deputy Terry Leyden reported progress last night, but due to a serious illness in his family he has had to return home to Roscommon.
Private Members' Business. - Ombudsman Bill, 1979: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time."
I was sorry to hear about the illness in Deputy Leyden's family and I hope it will be overcome without further difficulty or pain to him.
I am distressed that it has taken so long for the Ombudsman Bill to reach Dáil Éireann. It is some four-and-a-half years since the Dáil resolved that there should be an ombudsman. That was decided in May 1975. It is deplorable that our democratic system has taken so long to produce a Bill in respect of which there was the unanimous agreement of this House. I am worried—I have never been so worried in my public life as I am today—because I see that democracy in Ireland is at risk. It is under attack from three different quarters, each one of them is a menace. The most obvious one, and the least effective one, is from the Provisional IRA. I say, least effective because there is such an overwhelming revulsion in our community against the Provisional IRA but the attack on our democratic system is nonetheless coming from there. The second attack on the democratic system comes from non-government here. It comes from the unfortunate fact that we have in office a Government who believe the best way of avoiding unpopularity is to do nothing about anything in the belief that the trouble will go away. Fortunately we still have every four or five years a correction when that system is developing and the correction is, of course, a general election. A reminder of the ability of people to correct in the democratic system arose recently in Cork where a very effective protest about non-government was given by the people. That was democracy at work. My argument in favour of the ombudsman system is that elections every four or five years, or even by-elections in between, are not a sufficient corrector to the political system.
I say that democracy is under attack first, from the Provisional IRA, secondly from non-government and the distress, disaffection and frustration that non-government generates, and, thirdly, because our whole political system is unable to give rapid effective, efficient translation of the people's will into legislation.
When on the proposition of Deputy Fergus O'Brien four-and-a-half years ago Dáil Éireann unanimously agreed to the system of ombudsman, one would have hoped that the ombudsman system would come into being within a year or so. At that stage I had the honour and responsibility of being the Minister in charge of the Public Service. It fell to me to translate the will of the Oireachtas into legislation. I believe it was the right thing to do at that stage, to have an all party committee which would agree if possible on a set of proposals which would then have all party agreement. As a result I recommended to the Government that there should be an all party committee. We were satisfied that there should be an ombudsman system. We had agreed among ourselves as to what the bones of that system should be but I felt it was desirable in the public interest to involve the largest number of people in discussion on what the ombudsman system should be.
Nonsense.
I was very disappointed at the performance of that committee, primarily due to the then Opposition who are now in Government. I do not want to waste the time of this Dáil or the time of the people of Ireland by recriminations about things past. I heard the Minister for Finance last night try to defend Fianna Fáil's performance in that committee. I want to put the truth on record. After the establishment of the committee was announced it took six months before we could have a meeting of the committee because the Fianna Fáil Party would not nominate members to it. When the committee sat, after we had endeavoured for weeks to get agreement on a date, I as the Minister responsible to the people of Ireland decided we could not allow any further delay. I fixed a date. Subsequent to my fixing the date the Fianna Fáil Party decided to have their own Oireachtas party meeting. Then on the day of the meeting they sent around a note saying they could not attend because their own in-fighting was more important than the appointment of an ombudsman or the creating of a system that would give the people of Ireland administrative justice. In an effort to use the Opposition notwithstanding their absence from the first meeting, a number of amendments were made at the second meeting because of their objection. Decisions taken at the first meeting were amended in order to meet their objections even though they were quite unreasonable.
When, ultimately the committee met to consider the final draft there was agreement on the draft, subject to the opportunity that they consider the matter away from the meeting. It was agreed that if there were any amendments to the draft report of that committee the amendments should be in before an agreed date. No amendments were received to the draft report. I made several efforts for weeks and weeks to get the Bill for a final meeting to endorse the report and present it to parliament and the people. Again, I was met with a pregnant silence.
Finally in discharge of my responsibilities as Minister, I fixed a date, as it was my duty to do. If the last Dáil was to present a report it had to go to the last Dáil, not to this one. If we had not produced a report in the last Dáil this report, which is a worthwhile one would never have been published. When I fixed a date again the Fianna Fáil Party decided to have their own Oireachtas party meeting and considered their internal in-fighting as more important than the discharge of the business of the people of Ireland, the plain people of Ireland who would not be looked after by an ombudsman. The night of the final meeting, when the final report was agreed to, admittedly in the absence of Fianna Fáil—if they were absent that was their business—when the final report was published Deputy George Colley, who came into the House now for a moment and then left because he does not want to be reminded of the truth, called a press conference when he made charges of unfair behaviour by me. Long before that committee were ever established, long before Dáil Eireann ever agreed to the establishment of an ombudsman I wanted it. I believe in an ombudsman system. I have argued for it for years and years. I wanted to see the thing through. I wanted to see it agreed. That is why I agreed to an all-party committee. We, as a government, could have brought in legislation and pushed it through with a majority. I wanted agreement and all my attempts at agreement were frustrated by a party who do not want an ombudsman. They do not want the administrative decisions they dictate to be exposed to the public view.
Nonsense.
Nonsense my foot. The Government have had an agreed report for two-an-a-half years.
There was no draft Bill.
There was a draft Bill in the files of the Department of the Public Service, upon which I personally worked. I do not pretend that this Bill is my own personal effort. That Bill is based upon a draft which was in the Department of the Public Service when I left office. I asked several questions about the production of a Bill to translate into the law of this land the decision of Dáil Éireann of 1975 and I was told that it would come. It was only when Fine Gael produced this Private Members' Bill that the Government introduced a motion saying they were producing a Bill. That Bill has not yet been produced.
There was no draft Bill.
Even as late as last week the Fianna Fáil Whip told Fine Gael that there was no way in which they would allow this matter to be debated before their Bill was circulated. How long will we have to wait? We will have to wait may be for many many months because once this matter has reached the Dáil in Private Members' Time it cannot be resurrected again for another six months in Private Members' Time. The reality of the matter is that Fianna Fáil do not want their administrative actions to be exposed to public examination.
Pure nonsense.
My conviction is that it is necessary for the survival of democracy that people have confidence in the system. Unfortunately we have allowed the whole political system to be polluted with a cloud of suspicion that rights, which are guaranteed by law, are not obtainable unless one goes craw-thumping to a politician to obtain them. That is very bad for democracy. That is worse than violence used against democracy when there is an overwhelming conviction that statutory rights, constitutional rights, are not obtainable unless one goes cap in hand to a politician.
The objective of this Bill, the establishment of an ombudsman, is to convience people that when administrative decisions are made those decisions are in accordance with the law and are right. I know, you know and I believe everybody in this House knows that most political representations are not even worth the paper upon which they are written, because the decisions are taken in accordance with the law by officials who are above reproach. Even people who are above reproach can make mistakes. Even people who are above reproach can have a bias of which they are unaware. Even people who are above reproach can feel a loyalty to an establishment, which is likely to create a bias against objective judgment. The whole purpose of having an ombudsman, a judge outside the system, is to enable that person outside of institutional loyalty to look at decisions; to look at the facts which affect decisions and to look at the possibility of bias affecting decisions.
Of all countries in the European Community there are only two without an ombudsman. I think the other one is Luxembourg. If I am wrong, I apologise to my Luxembourg friends. Luxembourg has a population of only 300,000. While we know well that we cannot turn up at any function without finding relatives or friends, or contacts who know one another, I am sure this is even more true in relation to Luxembourg.
The European Parliament has already voted in favour of an ombudsman system. It has recommended that the ombudsman system in Europe should be based upon the ombudsman system in the Community countries which is at present being studied by Parliament. It is regrettable that Ireland is the only other country without an ombudsman system, although it is now four-and-a-half years since our Parliament decided that there ought to be such a system.
Today, whether we like it or not—and most of the time people like it—the State is involved in innumerable decisions affecting the most intimate life of individuals and their families: in health, education, housing, social welfare, planning and price control. Think of any human or commercial activity and you will find that the State is involved. The purpose of an ombudsman system is to provide independent assessment as to whether a system is working correctly or not.
I see on the screen that Committee Stage of the Bill is being discussed instead of Second Stage.
I am grateful to the Minister of State for letting me know what is happening in the House. There is a need for better communication between Parliament, and the people, so that the people will truly understand what is happening.
In our Bill we are recommending the appointment of an ombudsman who will have the right to examine the files of Government Departments. This is revolutionary in the Irish scene. I was very disappointed today to find that the internal fighting of the Fianna Fáil Party, the difficulties in Iran and the spy stories from Britain were all regarded as more important that a Bill which is trying to give the people the right to have decisions made by the executive examined by an independent authority. We have no control or influence over any spy stories between Britain and Russia and so on of two decades ago, but we have the right and the duty in this Parliament to try and improve the lot of the Irish people now and in the future. That is what this Bill is about. I do not criticise the media. People get more excited about romance and fiction than they do about reality. This Bill is about providing a system which will enable any person disappointed with an official decision to have the decision investigated by an independent investigator. I do not want to excite the Minister of State into further interruptions, but by the murmurs issuing from him it seems that he is against the Bill; he is against the idea of having an independent investigator.
We have a Bill ready.
He says he has a Bill. The Minister for Finance said last night that he has a Bill. After two-and-a-half years in office why the hell can they not produce the Bill? I suspect he has a Bill because we have pushed the Government along the line for the production of a Bill. It is not unreasonable of us to expect a Bill, we are disappointed that Fianna Fáil's lack of co-operation with the Oireachtas Committee did not enable us to bring in the Bill. It was one of my dearest hopes and expectations when I had responsibility as Minister for Finance and of the Public Service to bring in such a Bill. I was deeply disappointed that I did not have the opportunity of creating the office of ombudsman.
The report was produced only a week before the election.
The fault was not mine. If we had not produced the report at that stage, which represented two years' work of the Oireachtas, including the involvement of Fianna Fáil, it would never have been published. We were accused of electioneering because we insisted, as was our obligation, that the last Dáil should have produced its own report. If it had not produced the report it would never have been published. The draft Bill was in the Minister's Department.
There was no draft Bill.
Then somebody burnt it. I have in my possession a draft Bill. The copy that I have was not the only copy in the Department of the Public Service. If there was no other copy of that draft Bill in the Department of the Public Service then somebody in the Minister's Department destroyed it. I say that on oath. There was an advance draft copy of a Bill to which I personally contributed. If that is not in the Minister's Department the Minister's officials have let him down. I do not believe they have let him down. With the integrity and efficiency of the Public Service, I believe there was a draft Bill in the Department and that Fianna Fáil and their representatives in the House are talking rubbish when they say that there was not a draft Bill. Even if there was not a draft Bill, it should not take two-and-a-half years to implement the very clearcut decisions of an all-party committee representing both Houses of the Oireachtas that set out their recommendations in the clearest possible language in a document of 39 pages, after over two years' work. As I said earlier, we know that we are being ruled by a Government of non-government. They do not believe in making decisions, but hope that the issues will disappear.
Very briefly I should like to deal with the elements of the Bill, all of which, with one exception, follow the recommendations of the all-party committee. The all-party committee recommended that the ombudsman should have the right to investigate all Government departments and their activities with the exception of security issues and such issues as are properly the reserve of the courts of law. It recommended that there should be enabling legislation to entitle the ombudsman at some future date to inquire into the activities of local authorities. We have gone further in our Bill because we are fed up with the tardiness of the Government in doing anything in this area. We felt that if we simply brought in enabling legislation on the local government front several decades might pass before there would be an effective ombudsman system touching administrative decisions affecting the humblest people in the land and, therefore, the most numerous group in the land. We, in this Bill, would enable the ombudsman to investigate decisions of local authorities across a wide area including the allocation of housing, the availability of beds in hospitals, a whole lot of intimate issues which vitally affect individuals.
I was always concerned, as Minister for the Public Service, that what we were proposing in this report—which was a unanimous one—might not satisfy people because a lot of the issues failed to touch a large area of administrative decisions. At the same time I wanted to avoid the creation of a large number of people in an establishment which could not be dissolved for a long time. In other words, once we bring the ombudsman on stream we will have a huge backlog of demands made on him and, as has happened in other countries, we will find that 99 per cent of them are not justified. I wanted to avoid an event which would lead to a massive empire-building operation which could not be justified afterwards. That is why originally in this report it was decided that initially we should have only an examination into government decisions. But, having regard to the tardiness of the Government in relation to that simple operation, we felt it necessary to impose the statutory obligation on the ombudsman from the very beginning to investigate other areas, because it should not have taken four-and-a-half years for the Dáil to have a Bill before it to establish the ombudsman system. Unfortunately it appears from the Government's opposition to this Bill that our efforts to establish the ombudsman are going to be defeated and there will be a lot more than four-and-a-half years before we have the necessary legislation before the House.
Last evening I heard a certain amount of petty criticism from the Minister for Finance of the Bill because it was not precise in this or that area. He mentioned, amongst the things which he said our Bill allowed to happen, something which he could not accept. He referred to the right of a Minister for Justice to grant pardons and remissions in respect of penalties imposed by the court. He said that the ombudsman should not have a right to look into that. We accept that the ombudsman should not investigate any areas which are proper to the Judiciary, that he should not have the right to look into certain security areas. But we do not accept that the ombudsman should not have a right to look at some decisions taken in the area of remission of penalties. I have had, I suspect, more intimate contact with the remission of penalties imposed by the court than any other Member of this House, other than any Member who was or is Minister for Justice because, for three-and-a-half years, I had the privilege of being personal assistant to a Minister for Justice and I know the weight of political and personal interference brought to bear on a Minister for Justice in relation to decisions of the court. Quite frankly, some of them are quite improper.
In the last Dáil we passed legislation—on the recommendation of the National Coalition Government— against interference with the Public Prosecutor. We have made it now an offence for people to try to obstruct the course of justice. It is equally an obstruction of the course of justice for people to bring pressure to bear on a Minister for Justice to interfere with decisions taken in an independent court. And I speak with recollection of a man for whom I had great admiration, the Minister with whom I had the privilege of serving, Jim Everett, who introduced legislation to deprive himself and every other Minister for Justice of a right of interfering with a penalty imposed by the court in respect of a traffic offence. He decided, quite properly—and the Government of the day and the Dáil endorsed that decision—that a Minister for Justice should not have the right of waiving the suspension of a driving licence.
The Deputy has approximately two minutes left.
I am not entirely satisfied that it would not be proper for an ombudsman to look at remissions given in circumstances which caused pain and anxiety to the general public, or indeed to some person who was the victim of a crime committed by others. That might be regarded by some people as being a matter of detail; I do not think it is. It is not a matter which came before the committee, of which I had the privilege of being chairman, but it is a matter which should be looked at in relation to any legislation the Government may introduce.
We have provided in this Bill uniquely—and this in accordance with the wishes of the all-party committee—that the ombudsman should be appointed by the President with a vote of two-thirds of both Houses of the Oireachtas. There is no other appointment in this land which requires the support of two-thirds of both Houses of the Oireachtas. That was an argument we made to the Select Committee when it met between 1975 and 1977. It is an argument in which we in Fine Gael completely believe—that the ombudsman must be above reproach, above suspicion, above party loyalties; he must be a person whose objectivity is totally respected. That is why we built in uniquely in this Bill the requirement that nobody could be ombudsman without having the support of two-thirds of the membership of both Houses of the Oireachtas.
I would hope, therefore, that our Bill—we do not say it is administratively perfect—would be accepted in principle, that whatever amendments the Government may have to suggest ought to be and will be made in the course of Committee Stage. I would love this Parliament to get away from the British tradition. God knows we love to boast our Irishness, but can we not get away from the British tradition that no Bill is acceptable unless proposed by the Government of the day? We are making an honest effort, as equal Members of Parliament, and Ministers—as I am sure the Minister of State present will accept—are equal in this House to ordinary Deputies, or should be equal and no more.
Only sometimes.
I would suggest, now that we are departing from past tradition by the appointment of an ombudsman to investigate administrative decisions we ought to depart from other bad practices of the past. We should see this Parliament as the parliament of equals. Nobody would be more willing than I and I believe, my colleagues in the Fine Gael party to see the Government make more amendment to this Bill—and we would give them all honour for doing so—instead of insisting on their own, thereby convincing our people that this was a democratic parliament at work in which everybody was equal and in which everybody had an opportunity and a right to offer a viewpoint which would not be rejected automatically simply because it came from the other side of the House.
The ombudsman idea is one which has become fashionable, popular and well known in western Europe in the last 15 years or so. Had one spoken in a political setting, a social setting or anywhere else 20 years ago about an ombudsman people would not have known what one was talking about. But for some reason, around the middle nineteen sixties a couple of severe administrative scandals, in Britain I regret to say, coincided with the spread of knowledge about this Scandinavian institution in such a way that in Britain the cry was taken up; we ought to have an ombudsman. And, since we follow British practice—as I say almost every time I get on my feet in this House, in everything—it was not long before the trendy idea in Britain became the trendy idea in Ireland as well. However, the British introduced a Bill, which was enacted, which created a Parliamentary Commissioner hedged around with restrictions of a kind which, if they existed in this country, would make such an official perfectly useless to us. The British Parliamentary Commissioner is not allowed to look at anything unless it is referred to him by a Member of Parliament—that is a defect which the Bill before the House this evening does not have—he is not allowed to look at any matter of discretion—again, a defect of which this Bill is free—and matters of local government are excluded from his purview, another defect this Bill does not have.
It is important to bear in mind, before we go overboard in regard to bad administration, that it is an ironic fact of the late twentieth century, which perhaps some of these cosmic historians will spot when they come to write in the past tense instead of in the future about the decline of the west, that it should be precisely in those countries in which the rule of law is most vigorously and most generally upheld, in which there is a free press, in which the media and politicians are most sensitive to injustices and to maladministration, there should be this great cry to improve and improve up to the point where no further maladministration can take place. Whereas in the countries occupied by seven-tenths or eighth-tenths of the globe's population, which do not have a free system, which do not know what it is to be able to choose their own rulers whether good or bad, which do not know what it is to enjoy freedom of speech, which perhaps do not even value it because more pressing human needs such as the next square meal comes first and which most desperately need liberalisation, there is no talk of an ombudsman or about liberalising a situation so as to diminish the force of the State. In the Marxist part of the world the insistence on the dictatorship of the State is all the more pronounced the more the governments of these countries feel threatened by the western democracies.
These preliminary observations are intended to suggest that we ought not, in pursuing the idea of an ombudsman, fall too far on our knees in blaming ourselves for a rotten administrative system. We have not a rotten administrative system. This country, measured against any standards and particularly against general world standards, has a good administration. It contains about 25,000 people, too many on its payroll, and because of the cautious approach to life—which admittedly is a salvation for us in a lot of ways—inherited from the British, like the habit of wearing a collar and tie, we have stopped short of the kind of experiments which mght have been expected from a young republic.
That sort of revolutionary enthusiasm was visible in the first Government of this State. The photographs of them with their celluloid collars, buttoned boots and frock coats, look pretty old-fashioned today, but the Cosgraves and the McGilligans were revolutionary idealists who believed in trying to start something new, free from the shackles of the past and free from English patterns, although they were more under the burden of them because they were nearer to them in time. We are 50 years further on, but we have lost the energy they had and are less willing to strike out for ourselves. One has only to look at the humblest and most trivial things around us to see that the most trivial aspects of life are aspects in which we tip-toe and traipse after the English.
There were as many arguments for having women police here, when they were first introduced in Britain but we had to wait for the English to do it. In the whole sphere of traffic control we waited until the English introduced traffic lights and so on. All the reasons for doing these things were there, but we waited until the British did them to see if they were safe. I do not intend to offend the Minister opposite, but since the party opposite are most slavish in this regard, they waited——
Give me an example of the Deputy's party's initiative?
——waited until the British did it.
Will the Deputy give just one example?
The first semi-State body, the ESB, over which the Minister opposite presides was a creation of the late Deputy P. McGilligan who died only last week, and the IDA——
We are not denying him that.
——at an opening of whose industrial estate the Minister was tripping over the real Minister for Industry, Commerce and Energy a month ago, was a Fine Gael creation introduced in this House by Deputy Dan Morrissey and damned by Deputy Sean Lemass as a typical product of the Fine Gael mentality. We have nothing to be ashamed of in that regard. We struck out for ourselves and I wish the same could be said for the people who have ruled this country for five-sixths of my lifetime. They are slaves in their hearts and they show it by every one of their administrative actions. I would not mind betting £5 that the ombudsman Bill which is in that Minister's Department, much more closely resembles——
(Interruptions.)
Acting Chairman
Deputy Kelly without interruption.
——the British Act for a parliamentary commissioner than it does Deputy Richie Ryan's Bill. If I am wrong about that I will donate £5 to Deputy MacSharry's favourite charity provided I am willing to admit it is a charity. I have offered to donate money before if I was wrong in a bet and I have never had to part with a pound yet.
(Interruptions.)
We have a good administration here although is has 25,000 people who should not be here. It measures up well to European standards and excellently against world standards. Nobody has alleged, in the context of this legislation that we are proposing, or the stuff that Fianna Fáil intend to produce, that our administration is in any way defective or at least that it is defective in principle or that there is any kind of widespread malpractice. There is none and if I thought there was I would not be slow to say so. As well as the fact that we have a good uncorrupt administration—I naturally do not personally guarantee the incorruptibility of all 25,000 of them——
The Deputy said that half of them were not needed.
Half of them are not needed. There was a time when Ministers for Finance apologised for growth in the civil service, but now we have Ministers boasting that they have created jobs.
And an efficient service as a result.
But no work to give them.
That is what the Deputy thinks.
In a Parliamentary Question a month ago I asked if there was one single section of the Civil Service which had a smaller personnel now than it had in 1949 and the answer was that there was not one. If I were a Minister of State at the Department of the Public Service, on some slack day when there was not too much going on in Sligo, when there were not too many things being opened by the IDA that I had no business attending——
Since 1949 quite a lot of extra things have being going on in the country.
Acting Chairman
Deputy Kelly, please, without interruptions.
The Deputy wants to live in 1949 times.
I remember 1949 quite well and would be the first to admit that a lot of things happened since 1949. The IDA was set up by Fine Gael the following year and the industrial development which we have seen since is the direct consequence of that. Deputy Gerard Sweetman in his 1956 Budget introduced the export tax relief scheme for industry. That has happened since then. We have all been the beneficiaries of these things.
It took people to implement them.
These are disagreeable truths. Bíonn an fhírinne searbh.
It took people to implement those schemes.
I do not believe the volume of administrative activity since 1949 has doubled. That is well within my lifetime and I believe even the lifetime of the Minister opposite even though I think he is younger than I am—
About 20 years.
I do not believe that it has doubled.
We will prove it.
I do not believe there is a need for this. It would not matter if this country were infinitely rich and could pay as many public service salaries as it wished, but it is not. If the Minister were a member of the Government and sat in on Government meetings and heard the scratching of the heads and the moaning and groaning that go on about public service salaries, he would know exactly what I mean. Every 1 per cent on the public service salary bill cost two years ago—which is when I heard Deputy Colley give this figure—£10 million to the taxpayer. It would be more like £17 million or £18 million now.
Get away from the hypocrisy.
Instead of having 25,000 honest public servants we have 55,000 honest public servants. There should be an organisation in this society which would have those extra people doing something useful, creating wealth instead of devouring it. This would not have seemed a bit old-fashioned to Mr. de Valera, believe me.
We are not discussing the civil service.
The Chair will know I am not trying to flatter him when I say everyone in the House respects him as a gentleman. I do not want to quarrel with him but, in fact, we are discussing the civil service. We are discussing a measure to control, not their numbers, unfortunately, although I would have been very interested in such a measure, but their activities. All this talk about an ombudsman must be looked at against the background of the fact, which we willingly recognise, that although far too many people are involved in them these activities are carried out honestly and effectively on the whole and in general.
However, not because of malice, not because of any sort of ill-intention on the part of anybody, there is the odd mistake, misconstruction of powers, impatient decision, perhaps something which has been insufficiently considered. Something slips through the net. It must do so. The civil service would consist of 55,000 saints albeit 25,000 redundant saints were it otherwise. That is not what we are talking about. There are these occasional cases, and it is these occasional cases that I take Deputy Ryan's Bill to have been drafted to deal with.
Many of the heads of maladministration Deputy Ryan's Bill mentions would render an administrative activity in the strict legal sense voidable, in other words objectionable and capable of being struck down by a court. Section 6 (1) (b) refers to an administrative action:
(i) taken proper authority, or
(ii) taken on irrelevant grounds, or
(iii) the result of negligence or carelessness, or
(iv) based on erroneous information, or
(v) improperly discriminatory, or ...
I can fairly say that administrative decision, act, disposal, determination or anything else, taken in any such way is legally objectionable. In other words, a court of law will declare it void, will declare it invalid, and will declare anybody injuriously affected by it to be free from its effects. So far as the authority are concerned it is back to square one with them. They must start all over again, if it is not too late for them to start all over again, which may be the case depending on the circumstances of the matter.
Among Deputy Ryan's eight articles, five are ones in which a court of law already has jurisdiction to strike the thing down. I cannot quite see that there should be any straining at this gnat. There could be no particular objection to these criteria being inserted because these are already recognised in law. I am not sure what the Minister's departmental functions are. All I know is that the elephantiasis of the public service has spread to the political ranks, because it takes ten people with the grand title of Minister of State to do the work which formerly seven people with the modest title of Parliamentary Secretary did. In fact, I did the work of two Ministers of State when I was a Parliamentary Secretary for far less money than one of them, let alone two of them together.
That is why the Deputy was thrown out. He was not doing it right.
I believe there were no complaints in either of my Departments about the work I was doing.
That is what put the Deputy on that side of the House.
The elephantiasis of the public service has gone right to the top. I am not sure what took me into that little sub-theme or bye-theme. It is important to remember that these are all matters which were already legally objectionable. In other words, the litigant affected by a decision taken without the proper authority on erroneous information, or taken on irrelevant considerations and so forth, could already go to the court and have the decision annulled with a variety of procedures. The procedures might have been statutory or, even if there were no statutory procedures provided, he could go to the High Court and with certiorari or mandamus or a declaratory action have whatever the authority had done set aside.
That is a lengthy operation and a costly operation. It may be all right for a building contractor or a building speculator—and I do not mean the term in an offensive way. It is all very well to ask Sisks, or McInerneys, or Gallaghers if they are ever injuriously affected by an administrative disposition to go to the High Court to have it struck down. They have the wherewithal to do that. Like the centurion in the Gospel they can say to ranks of abject solicitors and barristers "go" and they go quickly, or "come" and they come smartly. It is not quite the same for somebody who has been denied a health card, or a non-contributory pension, or some other benefit to which they feel they are entitled.
I know that does not happen through malice or through wilful neglect. At least, it does not in my experience. In my ten years in Leinster House, under one hat or another, I have never run across a case of administrative malice. If my little certificate is worth anything to the public service, they are welcome to it with a heart and a half. I find that that the public service at all levels consists of people who are anxious to help. Sometimes they are overworked, depressed or impatient just as very often I am. Basically they are anxious to help and anxious to do a decent honest job. They make mistakes just as I make them, and just as Deputy MacSharry makes them, and we all make them.
I have run across cases where people, through an over-hasty or insufficiently reflected review of their case, have been denied something like a non-contributory old age pension, or some benefit to which they were entitled. The normal recourse in cases like that is so go to a councillor, a Deputy or a Senator. That is why this type of thing has crossed my path. In case the Minister opposite does not know it, in 1966 I was present on the occasion—looking much younger no doubt, and less wise I suppose—in the Incorporated Law Society's premises when a paper was read which had been prepared for the Minister for Finance to read on the subject: "do we need an ombudsman?"
It was hard to say who the Minister for Finance was, because on the night of that meeting Deputy Lynch succeeded the late Deputy Seán Lemass as leader of the Fianna Fáil Party and as Taoiseach. It was difficult to say whether the speech was intended to be put into his mouth or into the mouth of his successor as Minister for Finance but either way it was an interesting speech, because the officials who, presumably, had consulted with their Minister or had at least shown him a draft of what he would be saying, had said for him the words they put into his mouth, to escape, as Homer put it, the words which they had intended should escape the barrier of his teeth and these were that in this country we had too many ombudsmen, if anything, that every Deputy, councillar, Senator was an ombudsman. Even the parish priest was regarded as an ombudsman because anyone with a grievance went to him in the expectation of the problem concerned being resolved. The thought which came from the Department of Finance then was that we did not really need an official ombudsman because of our having so many effective unofficial ones. Though I made very little of the point then, there is something in that line of thought. In a sense the Minister of State or Deputy Desmond or myself are quite well placed to pursue a grievance that is brought to our attention. It would be quite likely that on receipt of a letter from one of us an official in a Department would at least look through the file concerned to see whether, for instance, Mrs. X was entitled to a medical card after all.
There are five minutes remaining to the Deputy.
Must this source be dried up so soon, this bright light extinguished?
I am afraid so.
There is much more that I wish to say. However, by the time the official Bill arrives I may have another opportunity though I may not then be speaking from this side of the House.
Is the Deputy leaving the party?
There is a qualified question mark in regard to this Bill. When speaking earlier today on the Estimates for the prisons and the Garda, I said that I thought the new legislation for the appointment of an ombudsman would be incomplete if it did not contain a provision for the review by the ombudsman of complaints made against the Garda and against members of the prison service. I went on to give in great detail the reasons for that opinion. Though there was nobody but the officials in the Chamber to hear what I said, I shall not bore the House by going over that ground again. I note that Deputy Ryan's Bill excludes the activities of the Garda from the purview of the ombudsman. I suppose that is so because it would be part of Deputy Ryan's view, as I understand it, that there should be some independent organ or authority for scrutinising the acts of the police where these acts are the subject of complaint by the public and in such situation there would not be any need for the ombudsman to have such authority. In those circumstances, I would not have any fault to find with this exclusion but in the event of our not having any independent authority to scrutinise complaints that may be made against the Garda—and luckily, such complaints are not made often— whatever legislation we have here should contain an expressed subjection to the ombudsman's jurisdiction of complaints made against the police or officers of the prison service. In that event, though I am entirely in agreement with the principle of the Bill I would qualify my support somewhat.
Though the Garda and the prison service are only very seldom the target of complaints, they themselves would be the main beneficiaries of a system of transparent investigation. It is not to flatter subversives or fellow travellers or the kind of people who get a kick out of having a go at the State, regardless of who is in power, and it is not even to flatter those whom I might call genuine bourgeois liberals, of whom I would regard myself as one, but it is in the interests of the police and the prison service that I suggest we have an independent arbitrator of complaints in regard to these bodies. If the public are made happy regarding the conduct of the police by means of impartial investigation they will accord the police a confidence which in any other set of circumstances would be qualified. While I was speaking on the Estimates I instanced the Cork cell death in 1967 or thereabouts when the Minister for Justice was Deputy Lenihan. I could not count the number of ministries that man has held briefly and flitted from but he was for a short time Minister for Justice, a kind of Guinness Book of Records stuff.
Just as Deputy Kelly was Attorney General.
Or as Deputy Lenihan was Minister for Foreign Affairs.
This hardly has anything to do with the appointment of an ombudsman. The Deputy is now on overtime.
The then Minister stonewalled for about two months while the country was shouting at him in regard to his refusal to allow a proper judicial investigation into the death concerned. The suggestion made by the relatives of the dead man was that death resulted from injuries received by the deceased while in Garda custody. Ultimately the Minister had to yield and there was set up a proper judicial inquiry. The result of the inquiry showed that the death had been accidental and from that day on there was not another word about the matter. In other words, the principal beneficiaries of that impartial investigation were the Garda. The inquiry strengthened public confidence in the Garda and in fairness to them some of their own members were most prominent in saying that and have said it in different forms since. Any suggestion that the police would be hampered in their work by reason of there being an impartial authority with jurisdiction to inquire into complains made against the force is completely misplaced and renders no service to the State, to public confidence and, above all, renders no service either to the police or to the prison service.
The most frustrating aspect of this debate is that it will be well into the eighties or at least two years from now, before we shall have in operation an effective ombudsman system. That is a very serious reflection on the present Dáil because for the past eight or nine years we have repeatedly spoken about the matter here. There has been an unending succession of Dáil questions in this connection. During the past ten years I have littered the Dáil Order Papers with various questions on the issue. I understand that the cost of replying to a parliamentary question is now about £50. Therefore, a lot of money has been spent already on the question of an ombudsman in terms not only of parliamentary questions and debates but in the setting up of special committees and in the parliamentary draftsman's office.
That money could have been devoted to a short, sharp and reasonable attempt by a Cabinet to bring in a suitable system. I doubt if any Cabinet in the past seven or eight years has spent more than ten or 15 minutes discussing this matter, and that applies to previous administrations as much as to the present one. To his credit, the former Minister for Finance, Deputy Ryan, made a serious attempt at the end of an arduous and difficult period in office to get something off the ground, and he nearly succeeded. It is deplorable that it will be at least next April or May before any Bill in connection with this matter is passed, and that is assuming that some provision will be made for the ombudsman and his office in the next budget. There will then have to be the usual protracted procedures of advertising the job and making the appointment.
Last evening the Minister for Finance indicated that the Bill would be circulated within a matter of weeks. On that basis we may assume we will have it in the second week of December, but the House will adjourn a week later. I doubt if we will be in a position to have a Second Stage debate.
That might be possible if the Opposition co-operate.
Time will be against us, because the Minister said it will be some weeks before the Bill will be circulated. If the Bill were circulated next week we might be in a position to discuss it. When we resume after Christmas, provided we have not a new Taoiseach in the meantime, we will be engaged in a budget debate and it is highly unlikely that time will be provided to discuss a Bill dealing with the ombudsman. We know it will be a lengthly and complex Bill. Undoubtedly there will be amendments, and when this House finishes with it it must go to the Seanad.
Perhaps the Minister for Finance may be able to expedite the entire process but it has taken him three years to get this far, with all the ground work done between 1975 and 1977, with a full report available to him, in addition to a voluminous file in the Attorney General's office as well as considerable data from Westminster and European countries on the operation of the system. I think that what happened was that he suddenly woke up and discovered that Fine Gael had wrong-footed him by tabling their Bill and by proceeding with it.
I make a strong plea to the Government not to delay any further in introducing this essential and fundamental legislation. There is no doubt that there are citizens who for whatever reason consider they have suffered grave personal injustice at the hands of the administration. They consider themselves entitled to seek a thorough, independent, impartial and preferably non-judicial investigation into their complaint. Deputies meet many citizens who want to proceed on that course. Naturally, some individual citizens have recourse to law. We had a celebrated case where the Commissioner of the Garda Síochána took the State to court because he had a deep sense of personal injustice. He taught the Cabinet a severe lesson in relation to the process of termination of one's employment.
There was a silent manifesto as well as the printed one.
Deputy Kelly wanted to sack half of the civil service.
The Government had to deliver on their whispered manifesto.
Deputy Kelly has already spoken. I would remind the House that there is a Bill before us. We appear to be talking all the time about a Bill that is supposed to come before the House.
It is arguable that if we had an ombudsman at that time a phone call from him to the Secretary of the Department of Justice would have prevented that occurrence. It is a classic case where an ombudsman could have prevented that public disgrace. We should not underestimate the effect it will have on Members of the Houses of the Oireachtas. It is no secret that many Deputies spend innumerable hours at public expense at the end of a direct line telephone in this House, often at their own personal expense——
That is closer to the mark. I agree with the Deputy there.
They spend a large proportion of their time intervening with State Departments, health boards, local authorities, with State-sponsored bodies and with the whole apparatus of the administration trying to elicit information on behalf of their constituents. This applies also to Senators who do this work on behalf of the public. We spend our time trying to find out why somebody did not get their pay-related benefit right down to dealing with an allegation that a garda stopped somebody who was allegedly drunk and abused the individual. The Deputy inquiring into the complaint has to see what he can do about that matter.
Multiply a rural Deputy's work by 184 and it would be necessary to have about one dozen ombudsmen.
I agree. There is no doubt that if we had an effective system of ombudsman what masquerades as parliamentary intervention would be substantially reduced. That would even apply to Dáil questions. If a citizen approached a Deputy with what he felt was a grave complaint against a public servant or a body in the conduct of its affairs, one could legitimately tell that citizen that the complaint would be adjudicated upon, it would be sifted and teased out in the outside office of an ombudsman. Therefore, the predominantly messenger boy role—I say that with great respect to my fellow Deputies because I spend 60 per cent of my time doing this kind of work, work for which I was not elected to do or never paid to do and work which is, basically, not the function of a legislator—of Members would be greatly reduced.
My first point I made in relation to the Bill was the interminable delay in passing this legislation. My second point was that Members would have a great weight of litigation, correspondence and representations taken off their shoulders because the serious complaints would go through a more democratic, objective and fair system of complaint if an ombudsman was appointed. Thirdly, there is the more serious issue of educating public opinion here that one should not have to go through a Deputy's or Senator's good offices to get something. There is the problem of advising citizens that where a decent system of complaint exists there is no great need for perennial recourse to the Deputy, Senator or county councillor for every complaint within the administrative system.
The Deputy will admit that an approach to the people mentioned is a useful way of getting a job done.
It is, but it is the wrong way. For example, we know that a question can be put down in relation to any matter where ministerial responsibility exists. A lovely red file is opened in the Department and the query flutters between the secretary and the clerical officer, costing a great deal of money and many phone calls. A reply is drafted and a four page brief clipped on to the file. That all costs money, in the region of £80.
And the reply will be challenged when it comes before the House subsequently.
As Deputies are aware, the reply to such questions must be delivered in the House within three parliamentary days. I consider that to be the most wasteful and abused system.
It shows the efficiency of Deputy MacSharry's staff.
I cannot conduct a dialogue with the Deputy.
The staff would be doing the same job if Deputy MacSherry had never been heard of.
It may not be done the way it is under Deputy MacSharry.
He puts that extra snas on it.
Deputy Desmond should be allowed to continue without assistance from either side of the House.
Deputy Kelly is the messiah of the country.
There are very few messiahs around here.
Apparently he is the only man who can do anything correctly; the only man who knows it all.
Only one man in here could give lectures from notes on his own heart and that was the man who founded the Deputy's party. He was the professor to end all professors.
We are not going back on professors. Deputy Desmond should be allowed to continue without interruption, because his time is limited.
There is no doubt that the role of an ombudsman in the public sector would make our system more responsive and would take a great deal of unnecessary and inefficient work off the shoulders of public representatives. Those representatives would be able to devote more time to the job they were elected to do. There seems to be an impression abroad that the reason why we are bringing in the structure, office and functions of an ombudsman is—to use an unparliamentary term—to screw the public service. That is not true.
It would take more than an ombudsman to do that. Even the Government can hardly keep up with them.
Having been involved for 20 years in public life, in trade unions and in the Dáil for the past ten years, I know that the overwhelming majority of public servants here discharge their functions and their work with clear efficiency, general competence and fairness. Those of us who have travelled around Europe hold the view that our public service, relative to the public service in countries like France or Italy, is much better. From my visits to America I can say that our public servants are much better. I am talking about elements of corruption, influence, patronage and those issues which impinge on the public service. By and large, our public service are clearly unblemished in the generality of their work.
The Deputy is looking for something.
I am not. We should appreciate our public service. Deputy Horgan made the point that if there are stupid systems in operation, if there is a super-abundance of red tape in operation and if we have set up unworkable bureaucracies here, then the political heads of the Government Departments are the people responsible. We enact legislation here and if it is confused and gives opportunities for corruption or total inefficiency we, as legislators, are responsible. Public servants administer the law in accordance with the Acts passed by this House. I am always bemused that public servants at health board or local authority level are slated by public representatives who know that the systems were set up by politicians. It is the politicians who must reform the system and we should not blame the public servants who administer the system.
Debate adjourned.
The Dáil adjourned at 8.30 p.m. until 10.30 a.m. on Thursday, 22 November 1979.