I move: "That the Bill be now read a Second Time."
The purpose of this Bill is to provide for the establishment of an ombudsman, whose function is to investigate individual grievances arising in the course of public administration.
In introducing this measure, I recognise the need to safeguard the rights of individual citizens in our modern society. In recent decades, in Ireland and elsewhere, the scope of state administration has greatly expanded, especially in the fields of education, health, social welfare, housing and physical planning. Areas previously considered to be the preserve of private individuals and undertakings now come under the wing of the State. The State now offers a range of financial incentives for agriculture and industry; it provides health services, housing and income maintenance schemes for large sections of the population, and it regulates working conditions, food standards and physical planning.
Clearly the individual citizen now comes into increasing contact with Government Departments and other public agencies. Decisions taken within those Departments or agencies may have a considerable importance for him. Problems can therefore arise in reconciling the efficient exercise of governmental power and treatment of each individual case in a clearly just and fair way.
Given the huge volume of State activity, it is inevitable that errors of one kind or another will sometimes give rise to wrong or unfair decisions or cause a citizen to feel he or she is deprived of some benefit to which he or she is entitled, or which he or she feels is his or her due. A citizen who feels aggrieved will find little consolation in the knowledge that he is one of a small minority and that, generally, the system works well.
There is really no fail-safe method of ensuring that wrong or unfair decisions are never taken by public officials. What can be done, however, is to provide machinery whereby the individual affected can bring such a decision to light and have it speedily rectified. For this reason, most developed countries provide formal channels of appeal for an individual who feels he has been treated unfairly by a public official.
There is no need here to elaborate on the nature and limitations of our existing appeals arrangements. These have been discussed at length in the Report of the All-Party Informal Committee on Administrative Justice established in 1976. At present, the aggrieved citizen can seek redress by taking the matter to court, by direct approach to the Minister or by raising the matter in the Dáil through a parliamentary question. In addition, in certain fields such as social welfare and income tax there are special appeals facilities which are widely known and used.
However, the present arrangements are for the most part designed to cope with specific situations: they do not adequately cater for the whole area of public administration. The ordinary person with a complaint may be reluctant to use a direct approach to the Minister. He may regard the special appeals facilities as part and parcel of the whole bureaucratic set-up which in his view is unlikely, therefore, to produce a fair result. An appeal to court can be a long drawn out and expensive business and, since most disputes between individuals and public agencies concern relatively small matters of immediate moment, courts do not really present an appropriate forum for airing the citizen's grievance. While Parliamentary Questions have, to some extent, been used to highlight individual problems, Deputies would readily admit that they can never fully meet the problem. In sum, existing procedures and institutions do not provide an adequate appeals system.
The problem of ensuring an effective means of redress for the aggrieved citizen has been tackled in other countries, some of which have sought a solution in the establishment of an ombudsman. Of course, the idea of setting up an ombudsman in Ireland is not new. But perhaps the best starting point for consideration of the present proposals is the establishment by the Dáil in 1976 of an All-Party Committee to consider the desirability of the ombudsman institution. The Committee consisted of 12 members drawn from both Dáil and Seanad. Its Chairman was Deputy Ryan, then Minister for the Public Service, and the vice-chairman was the present Tánaiste.
It is not necessary here to go into any great detail on the work of the All-Party Committee. It held its first meeting in July 1976 and published its report in May 1977. Suffice it to say that the committee's recommended the establishment of an ombudsman along the lines of the accepted international model. The committee's report was released to the press without delay, with a statement indicating that the Government proposed to legislate to give effect generally to the recommendation.
Following the change of Government in July 1977, the new Minister for the Public Service informed the Dáil that, while there was no objection in principle to the committee's recommendations, there had been general agreement among the committee members that the views of interested members of the public would be obtained before the legislative proposals were prepared. Advertisements for this purpose were published in the newspapers early in 1978 and following consideration of the responses preparation of the legislation commenced.
We have been accused of delay in bringing forward our Bill. Indeed, last November Deputy Ryan introduced his own Private Members' Bill and we on this side of the House explained that the legal difficulties were such that we could not accept Deputy Ryan's Bill, even as a basic draft. There is no doubt that our present Bill proved a difficult one to draft, but let me make one thing clear, our concern is not—as was alleged during the debate on Deputy Ryan's Bill—to bring in a Bill which is perfect, or to which the collective wisdom of this House can add nothing. Our concern is to bring in a Bill which is workable, which will stand the test of practical operation over a reasonable period of time. We think it important that we get it right first time around and avoid the necessity for amending legislation which could deflect the ombudsman and his staff from their work at the crucial initial stage of the office's operation.
Much of the legislation with which we in this House deal is limited in scope; it deals with a single problem area or with one part of our public administration. Some of it, like our company law or taxation law, is prepared in the full realisation that those affected by it will, in practice, be assisted by trained specialists or have its detailed workings examined by the courts. Ombudsman legislation is different. It grafts onto our public administrative and political systems an entirely new institution. It introduces into the working environment of virtually every public official a new element of constraint. It superimposes on a maze of self-contained legal provisions administered by public bodies a new law which affects all of them. All these departures from the legislative norm call for extraordinary care in translating the general blueprint provided by the All-Party Committee into sections of a Bill. The really unusual feature of this Bill is that it provides a redress facility which can be activated, not by professionals but by any citizen who feels he has been `done down' by the bureaucracy. We want to ensure that when a citizen triggers off an ombudsman's investigation, the ombudsman can proceed to the heart of the matter without getting entangled in legal disputes or bogged down in a morass of conflicting statutes. Because of this, we thought it necessary to take exceptional care in drafting our Bill and in visualising the practical situations which will arise on its implementation.
It would be easy, and wrong, to see the ombudsman legislation in isolation. For my part, I see it both as an enhancement of individual rights and as one of many steps required in a major programme of public service reform.
As the Minister of State entrusted by the Government with carrying out that programme, I am dismayed to find that the public—and, indeed, politicians —sometimes see public service reform as marginal to the business of government, or irrelevant to the needs of the individual citizen. It is not, and the conflicting criticism often heard that public servants are seen as having on the one hand too much and on the other too little discretion is a clear illustration of its relevance. The civil servant dealing with the public is, under our present dispensation, in a difficult position. He is expected on the one hand to be an adviser, ensuring that all his Minister's actions are legally correct and defensible and analysing and offering views on the available options. This role calls for certain skills, temperament and expertise. At the same time, he is expected to be a manager in the best modern manner, identifying and even anticipating the citizen's needs and taking imaginative steps, within the law and within Government policy to meet them. While, in general, our civil servants perform with a high degree of dedication and competence, it is clearly very difficult for any individual to discharge both of those roles at once.
One of the prominent features of the Government's present programme of public service reform is to separate those two roles. The task of advising Ministers and assisting in policy formulation will be carried out by groups closely involved with Ministers, while the execution of the policy will be the responsibility of much more autonomous groups of staff with much less ministerial intervention on a day-to-day basis. The ability of the ombudsman to investigate complaints about the way in which these officials perform their duties will ensure accountability and protect the citizen against arbitrary behaviour.
A second facet of this devolution of functions affects, as will the institution of an ombudsman's office, the role of deputies and senators. All of us in this House are aware of the dual function of the public representative as both a legislator and sort of roving ambassador from constituents to various branches of the administration. The latter is a task which most of us willingly accept as a concomitant of electoral success; it does, indeed, play a vital part in the operation of our current administrative structures by ensuring that the upper echelons of our public service are kept in touch with their organisation's public contact point. I would expect that, to some small degree, an ombudsman would relieve public representatives of the more routine aspects of this task and allow us to bring more of our energies to bear on the review of policy and the consideration of legislative proposals.
Before outlining the proposals in the Bill, let me first clarify what exactly the ombudsman is intended to be. There seems to be some misapprehension on this subject. The ombudsman is not intended to be some kind of overlord, avenging the misdeeds of bloody minded bureaucrats. Rather, he will be an independent and easily reached mediator. His role will be purely to investigate and report. His importance will lie in his power to investigate the actions of administrators and to report on these to the Oireachtas. To the man in the street, the ombudsman will seem an important and independent figure, a known form of redress. Informality, speed and accessibility will be the keynotes of his office.
Briefly, the Bill provides for the establishment of an ombudsman who can investigate, either of his own motion or on the basis of a complaint from any member of the public, actions taken by a body listed in the first schedule of the Act. Initially, his remit will be confined to Government departments and offices staffed by civil servants, but the Government will be empowered to extend it by subsequent orders to local authorities, health boards and non-commercial State-sponsored bodies. Certain areas, notably the courts, security matters, military activities and intergovernmental relations will be exempt from his scrutiny.
I do not intend to go into detail on the specific provisions of the Bill, but since it is a long and complex measure I propose to comment on some of its noteworthy features.
It is proposed in this Bill that the ombudsman shall be appointed by the President on the resolution of Dáil Éireann and Seanad Éireann. Deputy Ryan's Bill, following the recommendation of the All-Party Committee, provided that the appointment and removal of the ombudsman would require a two-thirds majority in both Houses of the Oireachtas. However, this would contravene Article 15.11.1 of the Constitution, and to conform with the requirements imposed by this Article we have provided that only a simple majority is required. Notwithstanding this departure from the letter of the committee's recommendations, I and the Government regard it as vital to the success of the institution that the ombudsman be acceptable to all sides of this House.
The terms of the employment of the ombudsman are very important. These are set out in section 2 of the Bill. The independence of the ombudsman is of vital importance, because if he is to be widely accepted he must be seen to be an independent authority. The Bill sets out that the ombudsman shall be independent in the performance of his duties. It is hoped that the six-year term of office will underline the independence of the ombudsman's office from any government.
The ombudsman may undertake an investigation either of his own motion or as a result of a complaint by a member of the public. This is unlike the situation in England, where the complaint must be made through a Member of Parliament. We feel that to channel all grievances through a Deputy would be unnecessarily complicated and might prevent some complaints from reaching the ombudsman. Initially, the ombudsman's remit covers only the actions of Government departments, with certain specified exceptions. We have decided, on practical grounds, as recommended by the All-Party Committee, to exclude for the time being the actions of local authorities, health boards and non-commercial State-sponsored bodies. Let me stress, however, that the exclusion is simply a temporary one and that the Bill provides for the extension of the ombudsman's power to these areas.
Certain activities of Government departments will not be subject to the ombudsman's scrutiny, notably the Gárda and prisons. These activities have been excluded because their work is mainly subject to the scrutiny of the judiciary or else related to security or subject to existing appeals machinery.
Needless to say the ombudsman may not investigate an action if it is trivial or vexatious, if the complainant has insufficient interest in the matter or has not already used reasonable means to remedy his grievance. However, the ombudsman will give the complainant reason for his refusal.
Certain other matters are excluded from the ombudsman's remit, and although I do not intend to detail all of these I would like to make a few observations on some of these exclusions.
The ombudsman will not investigate where legal proceedings have been initiated or where there is a statutory right of appeal to a court or where there is right of appeal to independent tribunals or referees drawn from outside the civil service. It is not intended that the ombudsman should replace existing appeals procedures or interfere with the judicial process.
Defence matters have been excluded on the ground that they do not greatly impinge on the everyday life of the ordinary citizen.
Public service personnel matters are also excluded. We feel that the ombudsman is intended to be concerned with grievances arising out of the dealings of public servant with the ordinary citizen and not with the relationships between employer and employee. Any alteration in the mechanisms available to public servants aggrieved in matters of a personnel nature are not appropriate for consideration in the context of this Bill. In order to avoid a backlog of complaints, any action done prior to the passing of this Bill is excluded and there is a 12-month time limit on complaints.
Finally, may I refer to an exclusion which caused some contention in the debate on Deputy Ryan's Bill. I refer to section 5 (3) which effectively allows a Minister to have an investigation stopped. The background to this provision is that the All-Party Committee made an explicit recommendation, that notwithstanding the existence of an ombudsman, "certain decisions of Ministers where they were required or allowed to make value judgements" should be excluded from the ombudsman's remit. It proved technically difficult to draft a provision which gave effect to the committee's recommendation, and section 5 (3) is the draftsman's attempt to give effect to the recommendation. I would like to stress that this provision is not as open-ended as it seems. In any situation the ombudsman's only weapon is to criticise and make public such criticism. Clearly if the ombudsman felt that the provision in section 5 (3) was being abused he would, of course, be free to draw attention to it in his report or indeed to make a special report to this House on the matter.
All the investigations of the ombudsman will be carried out in private. He will indicate to the body or person against whom the complaint is being made that he is intervening and allow them to comment. He may require persons to furnish documents and information for investigation, but has no power to compel the disclosure of any document or information relating to decisions by Government. Any publication or utterance by the ombudsman in the course of his investigations is privileged. These provisions, I am sure you will agree, provide ample protection for privacy of the complainant, the administrator and the Government.
The Government are totally committed to the Bill which I now put before this House and as such have spent a long time in carefully and scrupulously constructing it to ensure the best practical effect. It is an important step in the improvement of administrative justice in this country. I have already discussed the advantages of the ombudsman as an accessible and informal investigator to the man in the street. The establishment of this office should also improve the quality of public administration. However, we anticipate that the majority of cases, as has been the experience in other countries, will be found to be unjustified. In this way, the existence of an ombudsman, by dispelling any myths which exist in the public mind about the scale of administrative incompetence, should improve the image of the public servant. Lastly, the ombudsman, by putting information before the House which might otherwise not be known, should complement the work of Members of the Oireachtas. For all sectors of society, this is an important and beneficial Bill and I have no hesitation in recommending it to the House.
