Dáil Éireann debate -
Wednesday, 28 May 1980

Vol. 321 No. 6

Ombudsman (No. 2) Bill, 1979: Committee Stage (Resumed).

Question again proposed: "That section 7 stand part of the Bill".

Mr. Kelly

Before lunch I was talking about the problem which subsection (1) discloses, namely, that though it requires officials to provide information and documents to which they have access, at the ombudsman's request, it does not specifically commit the officials to answer the ombudsman's questions on something which may be just as material to the issue of whether there has been maladministration, in other words, the state of an official's mind at the time when the administrative action was taken.

The wording of that subsection does not necessarily include the possibility that the ombudsman might wish to establish, as a litigant in court might wish to establish in similar circumstances, whether the decision of which the litigant has complained had been taken for the wrong reasons, perhaps as the result of an element of bias. These things will not surface merely through the delivery of documents or of information of an oral kind. They will only surface if the ombudsman is permitted to interrogate the officials—I emphasise I do not mean that in a hostile sense—in regard to other matters, particularly the official's state of mind and his motives, and if the complaining party is permitted to cross-examine—again, not in a hostile sense—the official whose behaviour is under scrutiny.

In reply the Minister said he thought the expression "in possession of information" in subsection (1) is a phrase apt to include the state of the official's mind. Though there is room for a difference of opinion in regard to the wording, I cannot see that the wording means that at all. As far as I can see, the subsection relates to information of a factual kind. The Bill requires the official to deliver certain information, but why did the official consider that the applicant was not a fit and suitable person? These are all areas on which an official might have a subjective and completely honest point of view—there is no question of suggesting dishonesty in that regard—but it is a subjective matter about which information cannot be elicited from the official if the ombudsman is not permitted to inquire about his motives. The officials's motives cannot be ascertained unless he is subjected to testing by the plaintiff or by his representative. The question of a representative arises more properly on section 8.

Minister of State at the Department of the Public Service (Mr. Calleary)

All I can do is restate what I said before the adjournment, that as far as we are concerned this is designed to give the ombudsman statutory power to summon witnesses and to ask them any questions he feels will be of use to him in his determination of complaints. I will have a look at the subsection before Report Stage to see if we can strengthen it, perhaps by changing the wording, in order to come some way towards Deputy Kelly's thinking. Our aims are the same. It is only a question of getting the form of words that might satisfy.

Mr. Kelly

I would point out to the Minister that subsection (3) puts the ombudsman for some purposes in the same position and on the same level as a court. An official might behave towards the ombudsman in a way which would render him guilty of contempt of court, if he was in court, or of an offence. Although it is not usual for a judge to do it, a judge might ask a witness why he had done this or that, particularly if the judge finds that counsel have not been active enough. If the witness refuses to answer, or pretends he does not wish to answer, it could constitute a contempt of court.

The Minister may argue that my question is answered by subsection (3). If so, why bother reciting all the things the ombudsman may do, require information and the production of documents and so forth? Already these things are in the power of a court. The first subsection declares the positive things the ombudsman can do and the third subsection states that a person shall be guilty of an offence if he obstructs or hinders the ombudsman. These two subsections should correspond; they should be like the obverse and reverse of a coin. I accept that the Minister and I have the same aim and I think I will put down an amendment for the Report Stage on this.

Question put and agreed to.

SECTION 8.

Question proposed: "That section 8 stand part of the Bill".

Mr. Kelly

My first point is very minor. Subsection (1) appears to contain an echo of Article 34.1 of the Constitution. It says that an investigation by the ombudsman under the Act shall be conducted otherwise than in public. The reason I say the subsection is an echo of that Article is than the Constitution lays down that justice shall be administered by judges in courts established by law, and save in such limited and special cases as may be prescribed by law, shall be administered in public. This may be only a drafting point and whoever in the office of the Attorney General or the draftsman formulated this subsection might like to have another look at it. It contains a strong suggestion that the Government's view of the ombudsman is that he will be a person administering justice. Obviously he will not be a judge for constitutional purposes. If he will not be a judge and if he will not administer justice I cannot see the purpose of specifying that he is to sit otherwise than in public. I suppose the more explicit the whole business is the better but the Government might like to reflect that they may be burdening themselves with a forensic point that might tell against them at a future stage.

I could see much advantage in allowing the ombudsman to decide for himself whether an investigation should be held in public or in private. This ombudsman-in-a-bottle will be entitled to look at only a very small proportion of public grievances but even of that fraction I have no doubt that the majority will be cases which it will be more convenient and humane to conduct in private. However, there might be the odd one that would be the subject of intense public interest and where the public advantage would be better served by having the investigation in public. On the whole it might be better to leave this matter to the discretion of the ombudsman or, if the Minister wishes, to insert a directive clause to the effect that he shall, unless satisfied that the public interest so requires, sit in private.

Subsections (3) and (4) add up to something awkward. Subsection (3) states:

Subject to the provisions of this Act, the procedure for conducting an investigation shall be such as the Ombudsman considers appropriate in all the circumstances of the case,

That is fair enough. I should have preferred also if the question of publicity or non-publicity of his operations were left to his discretion. The modern doctrine of the courts is to the effect that in a clause like this the courts read a presumption into it that whatever decision the ombudsman makes about conducting his investigation, whatever decision any official makes about doing anything he is statutorily empowered to do, he will do it with regard to the principles of justice. In other words, he is not going to behave unfairly. That presumption automatically is hung around the neck of an official or a Minister by the inclusion of a clause such as this in a Bill. There a presumption not only that the Act will be constitutional but that anybody who is given any power under the Act will exercise it in a constitutional way. That is very healthy and salutary.

Subsection (4) states:

The Ombudsman may determine whether any person may be represented, by counsel, solicitor or otherwise, in an investigation by him under this Act.

Again, that is subject to what will be the judicial presumption that the ombudsman in deciding whether to allow somebody to be represented by solicitor and/or counsel will behave fairly, that he will decide whether it is appropriate in a particular case for the complainant to have legal assistance and so forth. It is a pity that we should fall back on this, as yet not very well-defined judicial presumption that, in any case, will come into operation only when it is invoked before the High Court. What may happen is that there could be 999 cases of unsatisfactory proceedings before the ombudsman before it occurs to the 1.000th litigant to go to the courts by way of an ordinary action and complain that he is not allowed to bring solicitor and counsel with him.

I might be answered by being told—as I have said to the House—that the ombudsman will behave in a constitutional way in regard to the procedure of his inquiry and the question of representation. However, it would be more satisfactory if a party were specifically authorised here to be represented by solicitor and counsel. Most complainants will not want that. In any case, presumably they will have to pay if they bring solicitor and counsel with them. If they get a fair sight of the official whom they think has done them down that will be enough for them. But I think they should be specifically authorised here to do this and not leave open the possibility that we are going to have yet another case like in re Haughey, where in the Committee of Public Accounts in 1970 a person who was being examined by the committee was not allowed the benefit of counsel to test the accusations being made against him and which the Supreme Court subsequently—and I suppose predictably —said was impermissible.

This is a regrettable arrangement. I can see what is meant. I know the presumption is there and I have no reason to think that the ombudsman will behave other than fairly. However, it should be spelled out that a party appearing before him is entitled to have representation with him.

Mr. Calleary

I consider that if the right of a person to have counsel was written into the Bill it would defeat its whole purpose. It would be running parallel to the courts system. In specifying that a person was entitled to be represented there would be a danger that every person and organisation involved in even the most simple complaint might feel it incumbent on him or them to engage a representative. If the ombudsman cannot be trusted to behave in accordance with the Constitution and with natural justice the whole Bill will fail. To write into the Bill what the Deputy has suggested would make the whole system unnecessarily cumbersome and would encourage the association of investigation by the ombudsman with court proceedings. It is my belief it would run contrary to the whole purpose of the office.

Mr. Kelly

I agree it would be more cumbersome but I believe the Minister of State is building up trouble for himself. I am sure the ombudsman will be decent, respectable, honest and willing to observe the spirit of the Constitution. So was the late Deputy Paddy Hogan who was Chairman of the Public Accounts Committee but that did not stop him from going wrong and making a mistake because he simply was not a lawyer and there was no legal advice available to him on the spot. Perhaps he did not think of taking advice and the other members of the committee—of all par-ties—did not think of it either. The ombudsman may just as easily go wrong. If he decides, with a perfectly clear conscience, that a complainant has not established his complaint, what is to stop that complainant bringing an action? If he asks for counsel and is refused permission, what is to stop him from bringing an action in the courts saying he is being treated in an unconstitutional way in disregard of his rights by the ombudsman?

I quite agree with the Minister of State that the more one builds into a Bill like this the more cumbersome it is likely to be but at least it will be written down in black and white that the ombudsman will have no discretion to forbid a complainant bringing counsel with him if he wishes. If you give him that discretion you give him discretion to be wrong as well as to be right. If he exercises that discretion wrongly the Minister may find himself encumbered by proceedings in the High Court.

Mr. Calleary

The other point raised by the Deputy and which relates to subsection (1) of section 8 is that an investigation by the ombudsman under this legislation shall be conducted other than in public. I have no objection to accepting what the Deputy suggests and we shall consider this suggestion between now and Report Stage. At this point we can only take into account what the Deputy has said.

Mr. Kelly

I am grateful to the Minister for his open-mindness, but what about the point in regard to representation by counsel?

Mr. Calleary

We will have a look at that again, but it is a matter that would involve certain complications. It is our wish that the situation be as informal as possible. However every point the Deputy has made will be considered between now and the Report Stage. It might be helpful if the Deputy would table an amendment for that Stage.

Mr. Kelly

There is not any question of suspecting any sinister intent on the part of anyone either now or in the future but if the Minister refers back to the Irish Law Reports he will find hundreds of cases in which people have been forced to come to grips legally with the administration, and where the citizen has won it has almost inevitably been the case that the administration has not been malicious towards him in any way but had acted by reason of not understanding him properly. That is the sort of situation that I am trying to avoid in the case of the ombudsman.

Question put and agreed to.

SECTION 9.

Question proposed; "That section 9 stand part of the Bill."

Mr. Kelly

In a way subsection (2) of this section is a little brother to section 1 which empowers the Minister to withdraw a matter entirely from the scrutiny of the ombudsman. Here the Minister is being given what amounts to the same power because he is being empowered to withhold from the ombudsman any document, information or thing on the grounds that the disclosure of such would be for the reason stated in the notice which the Minister must give, prejudicial to the public interest. This is a regressive provision. Nowadays the tendency of the courts is to narrow and not to entrench the grounds on which in ordinary proceedings the Minister is entitled to claim privilege in regard to documents. That ground has been whittled away to a large extent. The idea that a Minister would keep a document out of sight of a court can be likened to our habit of wearing collars and ties, a habit that we inherited from the English and which at least those of us who are older than 35 are afraid to throw off. Despite the stuffy aura of the courts and of the conservatism which is attributed to them, they are a good deal more advanced in moving away from the English model than are the Legislature or the Executive. The courts have said that the old English rules in the type of case we are talking about are not in keeping with the kind of state we have here and they have tended, except in very restrictive types of cases, to allow a judge to make up his own mind as to whether a departmental document should be admitted in evidence. In other words, the judge is trusted to decide on whether a Minister is entitled to withhold a document.

Mr. Calleary

That is the case, too, so far as the ombudsman is concerned.

Mr. Kelly

If that is so, it does not come through in the section. Paragraph (a) of subsection (2) provides that;

A Minister of the Government may give notice in writing to the Ombudsman, with respect to any document, information or thing specified in the notice, or any class of document, information or thing so specified, that, in the opinion of the Minister of the Government, the disclosure of that document, information or thing or of documents, or information or things of that class, would, for the reasons stated in the notice, be prejudicial to the public interest.

There would not appear to be any discretion on the part of the ombudsman to force the Minister to produce anything.

Mr. Calleary

Paragraphs (a) and (b) of subsection (2) provide that either the Minister or the Revenue Commissioners may request the ombudsman not to disclose information obtained by him by giving notice in writing that the disclosure would, for the reasons stated, in writing, be prejudicial to the public interest. The intention is to restrain the ombudsman from publishing sensitive information. However, neither the Minister nor the Revenue Commissioners can prevent disclosure of any such information. They can only request that it not be disclosed.

Mr. Kelly

If that is so, I have misread the section because the Minister's interpretation is not clear from reading the section. I read those paragraphs as meaning a direction to the ombudsman, as being equivalent to an attempt to empower the Minister or the Revenue Commissioners not to allow the ombudsman see something.

Mr. Calleary

The intention is that the ombudsman should not disclose certain information.

Mr. Kelly

I would not object to that provision. It might not be even in the interest of the complainant, let alone in the public interest, that something would be disclosed but that is not what I understand from reading the section.

Question put and agreed to.

SECTION 10.

Mr. Calleary

I move amendment No. 3:

In page 11, subsection (3), line 51, to delete "of" and substitute "by".

Amendment agreed to.

Question proposed: "That section 10, as amended, stand part of the Bill".

Mr. F. O'Brien

This section provides for the appointment of the officers and servants of the ombudsman by the Minister but, if we are talking about giving the ombudsman independence, should we not allow him to appoint his own staff? I cannot think of any valid reason for giving to the Minister the power to decide on the staffing of the office and of appointing the officers. We have been hearing a good deal about the integrity of the ombudsman and about his independence, but why is he not being given the right to appoint his own staff?

Mr. Calleary

The subsection concerned confers on the Minister for the Public Service the right to appoint and determine the number of staff of the ombudsman. The control of staff numbers is a normal function of the Minister for the Public Service, the only exception being in the case of the Director of Public Prosecutions whose staff are appointed by the Taoiseach.

Mr. F. O'Brien

Is it not taking away from the independence of the ombudsman for the Minister to decide on the number of staff that will be necessary for the office?

Mr. Calleary

The people who will be appointed to the office will be civil servants. The procedure will be the same as, for instance, the appointment of staff in the Houses of the Oireachtas who, though appointed to the offices of the Ceann Comhairle, are not appointed directly by him.

Mr. F. O'Brien

But the point is that we are setting up the office of ombudsman as an independent body and divorced from the general administration but dealing with investigations within the administration. If this new office is to be seen to be independent and fair the ombudsman should have the power of deciding on the appointments to his office, though I agree that the question of number would be one for the Minister. I do not think it fair to compare staff in the Ceann Comhairle's office with this new situation because to do so is to view the ombudsman in the light of his being part of the machine, whereas I see him as somebody outside the machine who will be looking in at the machine. We are talking of a totally new concept and that is the light in which we should consider the situation rather than that the Minister should make the appointment. I am not saying that the Minister would appoint the wrong staff. That is not at issue. What is at issue is that we are setting this office up and must give it all the independence that we can. If we start niggling about the Minister's powers to appoint, that is limiting the power of the ombudsman. That is the point I want to make.

Mr. Calleary

I do not think it is limiting his independence. Section 10 (4) empowers the Minister for the Public Service to delegate to the ombudsman his powers and appropriate authority under the Civil Service Commissioners Act, 1956, and the Civil Service Regulation Acts of 1956 and 1958. He has power to delegate such matters as extension of probation, dismissal of unestablished civil servants, certain disciplinary procedures and so on.

For legal reasons it is necessary that a Minister appoint staff, as in the case of the Director of Public Prosecutions. Their independence is not thereby diminished. The Deputy need have no worries at all about this.

Mr. F. O'Brien

I am not going to labour the point. This impinges on the independence of the office and that is what worries me. In section 10 (4) would the Minister accept that the word should be "transfer" rather than "delegate"? If he delegates the power, he can give it and take it back again. If he transfers power to the ombudsman, it is not something which will be taken back. This is just a question of words, but from the point of view of the independence of the office the transfer of powers to the ombudsman would be better. There is more permanency and independence about a transfer.

Mr. Calleary

I do not accept that the Deputy need have any worries that this impinges on the independence of the office. This is a standard thing. It relates to the Revenue Commissioners, to all bodies and even to the most independent body of them all, the Civil Service Commission. This is not going to make one whit of difference.

Mr. F. O'Brien

I must make the point that it does. We are pigeon-holing the ombudsman into a compartment of the whole administration. This is what I have been wanting to get away from all the time. This is a completely new office which should not be affected by what happened in the past or what happens in other Departments. It should be looked at differently. What is done in other areas does not necessarily follow for it and should not follow it. It is not that I have any great fears about it. We will not always be around and this will be the norm for the appointment of staff and the delegation of authority and power. On that basis, the Minister should look at both of these matters again, not on the basis of what is the procedure in other areas. We are speaking about something which will be basically outside the competence of the administration. The ombudsman will be on his own and if he is on his own we should give him authority and independence.

Question put and agreed to.

SECTION 11.

Mr. Calleary

I move amendment No. 4:

In page 12, line 12, to delete "by the Minister".

Amendment agreed to.

Question proposed: "That section 11, as amended, stand part of the Bill."

Mr. Kelly

I would not have thought of this point if the Minister had not moved that amendment. Is there anything in the Minister's mind, apart from the expressed provision about travelling and subsistence expenses? The provision further back in section 7 in regard to sums in respect of travelling and subsistence expenses or allowances which the ombudsman may pay to a person affected by an action in respect of which an investigation has been held—is that an expense incurred in the administration of this Act?

Mr. Calleary

Yes. Any and every expense of the office. It is considered that the section should be amended and refers to the expenses of the ombudsman rather than those of the Minister.

Mr. Kelly

Is the phrase "the expenses incurred in the administration of the Act" intended to include the expenses envisaged in section 7 (5)?

Mr. Calleary

Yes.

Question put and agreed to.

SECTION 12.

Question proposed: "That section 12 stand part of the Bill".

Mr. Kelly

This is a new one to me. I do not know of another example. What is the reason why this Bill should be entitled the Ombudsman (No. 2) Bill? This is the second Bill we have had on the subject, but the other one did not become law. Is there any reason for calling this the Ombudsman (No. 2)?

Mr. Calleary

No. It is just that both Bills were there at about the same time.

Mr. Kelly

Yes, but will the parenthesis be deleted on the next Stage?

Mr. Calleary

There is no reason for this. It is just that at the time when this Bill was published there was another Bill before the House.

Mr. Kelly

I appreciate that, but that other Bill is now gone. Was it not voted out by the Fianna Fáil Party about six months ago? It never became law.

Mr. Calleary

I can assure the Deputy that the words "No. 2" will be removed.

Mr. Kelly

They will be deleted?

Mr. Calleary

They will of course.

Question put and agreed to.

FIRST SCHEDULE.

Question proposed: "That the First Schedule be the First Schedule to the Bill".

Mr. Kelly

It is not so much that I want to say something specifically on the First Schedule, except by way of pointing out the contrast between the relatively harmless organs of state mentioned in it and the relative unlikelihood that they are ever going to do any damage to anybody or cause any grievances. I instanced earlier the State Paper Office, the Central Statistics Office, the National Savings Committee, the State Laboratory, the Ordnance Survey Office, the Stationery Office, the Public Record Office, the National Museum, the National Library. These are all relatively harmless bodies. It is worth mentioning them to contrast them with the very far from harmless ones whose operations are of the greatest possible importance which are excluded from the definition of the Departments mentioned in Part I of the Schedule and also the very large number of bodies equally excluded in the Second Schedule.

I did call attention earlier to the fact that there was an expressed reference in Part I of the Schedule to the Department of Economic Planning and Development. If we are going to clean up that Schedule from that point of view, I must also point out to the Minister of State that it will not stop there. The Department of Industry, Commerce and Energy no longer exists under that name. Presumably, either the words "and Energy" will be scrapped and/or the Department of Energy will feature in that first part of the Schedule in its own right. Equally, the Department of Tourism and Transport which had a short existence, rather like the Kerensky Government in revolutionary Russia, between Deputy Lynch's return to power and his exit. That Department has been broken up and its operations reassigned. Presumably that will also have to go from the Schedule and Tourism will be attached to the Department of Industry and Commerce and Transport will be attached to the new Department of Communications and Transport, or is it the other way round?

I want to point out a few grievous elements in Part II of the First Schedule. The first thing which is being excluded from the purview of the ombudsman is the work of the police. I do not mind the police not being under the ombudsman, provided there is some authority to whom people with complaints can go. I say that not because I have reason to suspect the police; it is the other way round, I tend to suspect the people who make charges against them. I believe it is in the public interest that the police should be, so far as it is possible for 8,000 human beings to be, above suspicion, but that does not mean beyond criticism. Those two things are not the same.

If a criticism is made of the police as a unit or of some unidentified officers or a particular officer, there should be some way of having it investigated by an independent official. It is not enough—I freely make a present of this information to the Minister that colleagues of mine have taken a different view of this—merely to say to somebody who says he has been beaten up, framed or victimised by the police that they should be brought to court. I will not go into the reasons why that is not enough but it has not been found a satisfactory way of doing things.

Complaints made to the police about individual police officers are investigated. There is a regular procedure in the police for doing that. I have no doubt that if I made a complaint to the police in my position—if that is not too pompous a phrase to use—or if Deputy O'Brien or the Minister made a complaint, it would be fairly thrashed out. We know enough to be satisfied that the matter was being properly investigated. The people who live in the shadow of subversive organisations and so on, do not have very much confidence in the police. A certain section of the press, and therefore of the public, even though they have no connection themselves with subversion or crime, tend to have their confidence in the police constantly shaken.

There is a lot to be said in the interests of the Garda, if for no other reason, in having an investigative organ other than the courts which are uncertain, expensive and so on but which are clearly independent, to which people can go if they have complaints against gardaí. This is not the first time I said that and I do not want to labour the point. I want to recall an instance which I gave before when it was very visibly in the public interest that the police should be thoroughly investigated. That was in 1967 when a man died in a police cell in Cork. There was no political complexion in this unfortunate man's situation and it was in the days before the IRA were heard of in their present spasm of activity which has lasted 12 years too long. This man died in circumstances which gave rise to ugly suspicion or whisper in some quarters that he might have been attacked by gardaí while in the Cork Bridewell. There was a three day inquest and they returned a verdict of accidental death. But that was no good because the whispers continued. The Minister for Justice in those days was Deputy Lenihan—there are not many offices he has not shed lustre on in the course of his enjoyable career—and he stonewalled on the issue of a public inquiry into that cell death until the whole country was shouting at him, until newspaper editors who had not originally given the matter any thought began to take up their pens and say there had to be an inquiry into this matter because the inquest was too short, not enough matters were ferreted out and so on.

A judicial inquiry was set up with a judge of the High Court, a Circuit Court judge and a district justice. They sat not for three days but for three weeks and took detailed evidence of all kinds. They came to the conclusion that this unfortunate man had genuinely died as a result of an accident. He was the victim of a very unusual accident, but not unheard of. He had fallen while drunk very unluckily in such a way that his ribcage got compressed by the steel bar of a bar stool and he suffered a rupture of the spleen. Unfortunately his injuries were not spotted in time and he died from internal bleeding. Nobody could blame the unfortunate gardaí, who were trying to run a late night police post in a big town, for that. There was no sustainable evidence that he had been assaulted.

Not another word was ever heard about that case. That investigation, which the then Minister for Justice so bitterly resisted until it was dragged out of him by the people, completely cleared the pall of suspicion from the gardaí. At the end of the day the people who came out best were the gardaí. It is for that reason as much as anything else that I would be very much in favour of a proper independent investigative organ other than the courts. The courts are independent but they have not proved satisfactory in some respects to the kind of complaints likely to be involved in such cases.

It is deplorable, after all the talk and the complaints about the gardaí under governments from both sides of this House, that the police should still be exempted from scrutiny when we seem to be getting a complaints commissioner, this ombudsman, mouselike though his statutory character is being made. How many decisions of the Department of Justice or of the organs which fall under their Estimates affect the ordinary citizen? How many licences do they issue? How many orders do they make? How many decisions do they take? The Minister for Justice may decide on somebody's naturalisation or he may take certificates of alienage or something like that, or he may have some functions in regard to things which do not impinge on .1 of 1 per cent of the ordinary population. The matter for which the Minister has responsibility, about which he must answer questions and take political responsibility and which impinges on a large number of people, is the police force. They are the people who are being taken from the scrutiny of the ombudsman.

The second matter I want to mention is the courts. I have no complaints to make about the courts. They are a separate arm of the State and cannot be controlled by this House. I am not making any complaint about them not being subjected to the ombudsman. It would be an absurdity and an impertinence if the House were to attempt to put an ombudsman over the courts.

The third point which gives ground for a lot of hard feeling is An Bord Uchtála, the Adoption Board. I know adoption is a very delicate and painful matter and that innocent hearts are broken over it. I am not trying to make little of these things or neglects them in any way. But there have been cases which ended up in the courts, and God knows how many other cases which might have ended up in the courts if the parties had been better advised, because some part of the adoption procedure was faulty, because something was not taken into account which ought to have been taken into account, or somebody was not given a warning he ought to have been given. These things can happen. As I said before, most defects in administration happen innocently. I am not making any allegations that anything except innocent inadvertence is involved.

Why take the proceedings of An Bord Uchtála out of the purview of the ombudsman? I make no special case for An Bord Uchtála; it is only the tip of the iceberg as far as the exclusions in the Bill are concerned. Some of the others mentioned later in the Schedule are organs of a quasi-judicial type and I suppose it would be objectionable to have an ombudsman breathing down the neck of the judicial commissioner or the appeals tribual of the Land Commission or the Labour Court. I accept that but there are several other heads, one being the Defence Forces, under which one could criticise the exclusions here contained.

In regard to the exclusion of the Defence Forces, I agree that military promotions must be a matter of things that are impalpable in a way that civil service promotions are not. There are certain posts in the military service to which mere seniority ought not, perhaps, entitle one to promotion and a certain instinct regarding the right man for the job must be allowed to operate in military matters, although one would be a bit more jealous about its operation in civilian matters. However, as far as I can remember it was actually in connection with military administration that the first ever ombudsman was appointed. It was either Gustavus Adolphus or Charles XII of Sweden who established the first independent complaints commissioner. He was not called an ombudsman but a justice officer or something similar. He was appointed specifically in the context of military administration in order to give soldiers or officers who were aggrieved by different forms of discipline or military disposition a chance to make their case to someone other than their superior officer. While I agree that a wide range of military matters are not proper to be submitted to the scrutiny of a civilian ombudsman, I would not have excluded the Defence Forces holus-bolus. I could well imagine certain matters in which the Defence Forces are involved where the scrutiny of the civilian ombudsman would be of great public value.

Mr. F. O'Brien

Obviously I will not object to any matter which is to be investigated by the ombudsman and most of what I wish to say relates to the Second Schedule. I will not delay the House on this Schedule.

Mr. Calleary

I must refer back to the report of the all-party committee because a considerable amount of this Bill is based on that report. The intention was that all Departments should be included from the start and that local authorities, health boards and noncommercial State-sponsored bodies be added later. They specifically recommended that the commercial semi-State bodies should not be included at all. This is broadly what the Schedules will do. We will consider before Report Stage the points which have been made in relation to the tidying up of the First Schedule to cover new Departments.

I am in some difficulty in that I did not have notice of some of the matters Deputy Kelly raised and I presume that he will put down amendments on Report Stage.

Mr. Kelly

I will, if they are in order.

Mr. Calleary

The Garda are not included because their work is considered to be mainly subject to the scrutiny of the Judiciary or related to security or subject to existing appeals machinery. The report of the all-party committee states that the greater part of the work of the Garda relates to the investigation of breaches of the law and the detection, apprehension and prosecution of those responsible. Their actions in this area are, therefore, subject almost as a matter of routine to the scrutiny of an independent Judiciary and are, therefore, not appropriate for investigation by another authority.

The Adoption Board make orders which have legal force and the Minister for Justice has no function in relation to them except to provide them with staff. This does not reduce the board's independence just as it will not reduce the independence of the ombudsman in having civil service staff.

A citizen who feels he has been wrongly dealt with by the Garda can take a case in court. I appreciate Deputy Kelly's point that it can be costly but the facility is there for the citizen to take action against the Gardaí if he feels he has been treated in a wrongful manner. Individuals can cross-examine gardaí in court and I feel the situation is well covered. My own experience of the gardaí has been very good and complaints from people who would not have the same power as Deputy Kelly or any other Deputy are treated fairly, adequately and quickly. It is not envisaged at present that any of the bodies listed in Part II will be included. However, at some time in the future this Government or any other Government can by order amend the First Schedule by deleting bodies from Part II and including them.

The Defence Forces in many European countries are made up of conscripts and consequently they are intimately bound up with the daily life of the people. In Ireland neither the same considerations nor the same cultural traditions as, say, in Sweden would apply. The members of our Defence Forces are there by choice and volunteer. They accept the conditions of military life and a soldier who has a grievance can go, as can a civil servant, to his immediate superior.

Mr. Kelly

I realise the Minister of State is giving the official view on this matter and I accept that it is based to some extent at least on the views of the all-party committee. Regarding what he said about the police, I would emphasise that it is of no use to talk about the courts. Friends and colleagues of mine have taken the same line as the Minister on former occasions but there is no use in saying that the courts are there in order to investigate the police. In order to get the courts into action and to crank up the court machinery there has to be a litigant, there has to be a plaintiff and he has to have a cause of action. There has to be a defendant also. One cannot walk into a court and say: "I feel badly about this". The matter must be cast into a form of action which the legal system of the country recognises. There has to be a defendant who can be made liable under one of the existing rules of law for the act of which the plaintiff is complaining. As an example, let us take the family of the man who died in the cell in the police station in Cork. I understand he came from a fairly humble walk of life and I would imagine—I hope I am not saying anything hurtful—that his family came from a walk of life which would not instinctively know a great deal about how to handle lawyers or legal material. What are they to do? Who are they to sue? Had they any evidence of any kind either against the sergeant in charge or the gardaí in the Bridewell? Had they any means of discovering their names? Had they any means of discovering if there were any other prisoners in or around the Bridewell at the same time who could have given evidence? What would have been the cause of action? Were they going to institute a prosecution for murder? Would the Attorney General of the day not have instantly thrown out as being manifestly unfounded whatever shreds of whispers or rumours they were able to produce towards that end? That family wanted to find out what happened to that man.

Unless one can fit one's point into the mould of a recognised form of action and aim the thing against a recognised defendant the courts are powerless. When one gets there the ordinary rules of procedure apply. The plaintiff must make his case and bring it past the prima facie stage. If he does not it is fired out before even the defence are required to go into evidence, before even the State is required to put up a single witness. Unless the plaintiff can make a plausible case with evidence called by himself, the Garda, the State or anybody else will not be required to produce evidence. The case can be fired out on the conclusion of the plaintiff's submission and his evidence. I am not trying to make a meal out of this or to go into legal niceties—they are not really niceties; they are very simple facts—but there are a lot of areas, particularly in regard to police behaviour, in which it is not easy either to collect evidence, to find out the names of potential defendants, or to make an allegation stick in a form which is recognised as being actionable at law. That must be done apart altogether from the question of costs and the question of whether one has the nerve and the willingness to make oneself disagreeable, which goes with any litigation and is inherent in all litigation, even that about a hedge or a ditch.

It is pre-eminently not an area in which it is enough to tell people that the courts will see them right. It is pre-eminently an area in which it would be an advantage to have an independent official of a kind who can be informally approached and who does not require a case to be cast in a particular form of action which only a lawyer would be able to identify. It is important that such a person is able to recognise in the common sense that Deputy Calleary or Deputy O'Brien or myself would bring to bear that there is a hardship or a potential hardship and find for himself what happened, if he can. That is what is needed and it is regrettable and deplorable that the very first exclusion in the list should be one of those about which there is most often public concern. I am not saying that it necessarily is a justified concern but, undoubtedly, there is some measure of concern.

Question put and agreed to.

SECOND SCHEDULE.

Mr. Calleary

I move amendment No. 5:

In page 14, after "An Chomhairle Oiliúna (AnCO)" to insert "An Chomhairle Oiliúna Talmhaíochta".

Amendment agreed to.

Mr. Calleary

I move amendment No. 6:

In page 14, to delete "Coras Beostoic agus Feola Teoranta" and substitute "Coras Beostoic agus Feola".

Amendment agreed to.

Question proposed: "That the Second Schedule, as amended, be the Second Schedule to the Bill".

Mr. F. O'Brien

This is the important area of the Bill. The list of exclusions is very formidable. While a lot of the provisions were in line with the thinking of the all-party committee it should be remembered that that committee deliberated four years ago. We have all had time to think, reflect and formulate new ideas in this area. It would be safe to say that if the same all-party committee considered this matter today they would have a different view because of the experience they have gained in this area. I believe the committee would be a little bolder now than they were four years ago. It is not valid to say that the Government are adhering to the report of the all-party committee. The report of that committee was a guideline. The Minister should include any of the bodies that have been excluded. Local authorities and health boards should be included and I will continue to make that point until the Bill is passed.

I understand that the Minister told the House that such bodies can be included by order. He also mentioned that noncommercial State bodies could be included but they are of little consequence because their role is so small. The general public come into close contact with the commercial State-sponsored bodies and they should be included if the powers of the ombudsman are to have any meaning. We can only refer to the commercial State bodies when we consider the Estimate of the Department responsible for them and we are all aware of how restricted those debates are. I do not see any reason why they should be excluded. I am not worried about a lot of the bodies excluded but we are all aware that the public have grievances from time to time about some of them. We are all aware of the areas of contention and frustration. The idea of the Bill was to get away from such frustration and give people a platform where they can air their grievances before a person who has access to the various Departments and bodies. If the bodies I have referred to are excluded then this appointment is not even a halfhearted effort. It amounts to paying lip-service to the problem. I hope the Minister will avail of this opportunity to remove from his mind the idea that he has to adhere rigidly to the contents of the report of the all-party committee. The Minister, knowing the problems that exist in the various areas, should say I will include this, this and this.

This Bill will rest on the appointment of the individual, in his character and calibre. He will fashion the type of office it will be. The complaints and where they come from will also fashion the office of ombudsman and the future of it. If we have a narrow field, the office will become a useless one in no time and people will not have faith in it because they will not be sure what complaints they can refer to it. They will have a list of dos and don'ts. That is not good enough.

I plead with the Minister to look at it again and include local authorities, health boards and semi-State bodies. They are the ones that have direct contact with the public and can initiate the friction and day-to-day problems. It is important to look at the schedule again and go through it with a fine comb. The Minister should not wait for 12 months and see how it goes on. It is quite obvious that there are areas that require to be taken out immediately and looked at. We can look through the list again and say we will have this, this and this at a later stage. People think of local authorities and health boards as general administration and will wonder why they can bring a matter about health but not about a health board or local authority to the ombudsman. They can bring a problem about a hospital to him but perhaps not something else in the health area. There is a conflict and it may be used for exclusions rather than inclusions. We must include as broad a base as possible.

It is five years since we put down this Private Members' motion and we have had time to think and look at it. Let us open the blinds and look at it and if there are problems let us eradicate them. If there are no problems that is fine. The whole idea of having the ombudsman is to have openness as far as we can. I appeal to the Minister to take this course of action and be bold. He probably feels that it will be done anyway and, if that is so, now is the time to do it when the office is getting under way. It should be equipped to deal with all areas. The office will then be effective and do a worthwhile job.

With so many restrictions put on it the position of ombudsman will not be a success, not because of the ombudsman but because the House will have imposed too many restrictions and closed too many doors. I regret this. I do not wish to make political capital out of this because it is not a political issue. We are at one on it and the all-party committee wanted it to work well. The Minister should include local authorities and particularly health boards. In case people think I have a major problem with health boards I have not. They are remote and the way they submit their accounts, which would have nothing to do with the ombudsman, is a typical example of this, and because of the way they treat public representatives and the public in general they must come within the ambit of the ombudsman. Once they do that they will put their house in order.

Mr. Kelly

I agree very much with what Deputy O'Brien has just said. I should like to make a few specialised points on this schedule. There are two personages in the State I cannot find anywhere in the Bill either included or excluded. I believe they should be excluded but I do not see them in either of the excluding schedules and I do not think they are implied anywhere else. One is the Attorney General and the other is the Director of Public Prosecutions. I do not think either of these persons should be subject to the ombudsman's scrutiny. The Attorney General is an independent constitutional officer and although not a judicial personage he occupies a position which would not be appropriate for the ombudsman, who is scrutinising administration in a more general sense, to look at.

I would not be in favour of the Director of Public Prosecutions being under scrutiny but it would be no harm if it is intended to exempt them to say so in so many words. It may be that he is excluded by implication in some way I have missed or my eye has skimmed past and, if so, no doubt the Minister's advisers will tell me. I cannot see how the DPP fits into the Bill. He is not listed among the persons who are subject to investigation. His vote falls under the Attorney General's vote, which, for Dáil purposes, is looked after by the Department of the Taoiseach and I do not notice any exclusions from the Department of the Taoiseach in the second part of the First Schedule, nor does he appear to be mentioned in the Second Schedule.

What is one to make of it? I hope the Minister does not think that it is a frivolous matter because more than once it has happened in my time in public life—I am certain the same thing has happened to Deputies Calleary and O'Brien—that people have complained not about being prosecuted but about other people not being prosecuted. For example, if a road accident occurs and someone belonging to them is injured or killed and no prosecution takes place that can be a subject of very acute grievance, let nobody deceive themselves about it. While it might seem vindictive to somebody who is not involved in a family tragedy to be trying to have somebody else prosecuted, one might feel very differently if a member of one's family were injured or worse, let us say, in a motor accident caused by a driver whom one thought was drunk and who had not been prosecuted for reasons which did not seem adequate to me or to you.

The Director of Public Prosecutions has to be a genuinely independent personage. He has to be trusted and he is appointed in a manner rather like that of the ombudsman's appointment. We would not get people of standing very anxious to have the job if they were to have, perhaps, a non-lawyer looking over their shoulder, a man not equipped to make decisions of a strictly legal kind based on an assessment of probabilities in a court of law. Therefore I am not in any way suggesting that he should be included in the ombudsman's scrutiny. But I do think that, in order to circumvent people from imagining that the ombudsman, powerless though he is in a lot of other respects, might be able to check up on the Director of Public Prosecutions' failure to prosecute somebody he should be specifically mentioned here. At least I cannot for the moment see why he is not, any more than is the Attorney General.

In regard to the individual exclusions, some are very hard to understand. I see that An Coláiste Náisiúnta Ealaíne is Deartha is one of the bodies excluded from investigation. That is the formal title of the College of Art here beside us. I had a constituent not very long ago who was very much aggrieved by something which the College of Art had done. I will just explain it very briefly. What they had done was to refuse to award him an honours certificate in drawing. Now he had not passed an honours examination but he had passed an ordinary pass examination at a date when there was no distinction between pass and honours, in 1966, I think. Subsequently this distinction was drawn but it was apparently—or so he said—agreed that the pre-1966 pass qualification was equivalent to a post-1966 honours qualification. However, he was unable to produce documentary proof of this because a certificate had not been issued and was now unissuable because there had been a fire, or student demonstration or destruction of some kind in the College of Art and the authorities were no longer in a position to document for him his achievement before 1966. That was a severe nuisance and a professional handicap to him. I cannot see what is the dimension of public interest or security which should render a thing like that immune from the ombudsman's scrutiny, but there it is—An Coláiste Náisiúnta Ealaíne is Deartha.

I see that the Central Bank are excluded. Suppose I want to take money out of the country to pay for something—I do not mean to speculate against the Irish currency—but suppose I want to take money out of the country to pay a bill, to pay for some necessary import, or to buy myself something abroad—and mind you we are in the Common Market one of the purposes of which is the free movement of capital. That is what it was founded for and that is what we have signed up for. Suppose I want to buy something abroad and suppose someone in the Central Bank thinks my purpose is frivolous—suppose he forms that idea in his mind—that would seem to me to be a highly om-budsworthy matter. But I see the Central Bank is here excluded if they refuse me exchange control permission. What is the reason for excluding that?

Previously I acknowledged that Deputy Calleary, the Minister of State, had a degree of modesty and reasonableness quite unusual in his party when he admitted that we were only feeling our way in this Bill; that we would have to learn as we went along and that the last word had not been said. Something like that coming from a Minister is very disarming. But my experience also tells me that once a thing like this becomes an Act it is very hard to get much of a shift out of it afterwards. I do urge the Minister of State that there are what I can only call idle inclusions in this long list in the Second Schedule. There are bodies included in it that there is no good public reason for excluding. Why not look at it in this way? Why not put them into the ones which are subject to scrutiny and take up the same line that we are only feeling our way, that we will see how we get on and, if the Central Bank or the College of Art find themselves the target of an insupportable burden of inquiry and scrutiny, that they cannot conduct their business without finding little ombudspeople under their feet, certainly then let us look at it again and perhaps remove them from scrutiny in some way. This is a body of men who have done the State an enormous amount of service, but it is a typical, official attitude—let us cover up all we can, wait for the others to squeal and, if they squeal hard enough, we may let out an inch or two here or there, but let us cover up as much as we can in the first instance. That is not a good footing on which to get an ombudsman off the ground.

I see that the Medical Bureau of Road Safety is included. Perhaps I have had a slip of memory here but, as far as I can remember, that is the body which carries out the blood tests on samples taken from motorists. That is a function which, if something goes wrong with it, may be responsible for somebody unjustly being very heavily penalised. It is true that that cannot happen except through a court proceeding, in the course of which the motorist concerned will have ample opportunity to test the correctness of the certificate of his blood. I do not make any special point about this, but what is the sense in excluding the operations of the Medical Bureau of Road Safety from the scrutiny of the ombudsman? Probably it would happen once in ten years only that anyone would start worrying about what was going on in that medical bureau but why exclude it? Why not let the ombudsman in? If he makes a damn nuisance of himself, unreasonably so, and the bureau cannot get on with its work, then perhaps think about taking him out again.

But the worst aspect of the exclusions in the Second Schedule are the ones to which Deputy O'Brien adverted a moment ago. I have been in this House since 1969 when I first stood for the Dáil. I am not exactly sure how long Deputy Calleary has been here; I suppose somewhat longer because I think he was a member of a local authority before he ever came to Leinster House. He knows perfectly well that the bread and butter of the political clinic are people who want health cards, people who want houses, and now, of course, people who want telephones. At least that is how it is in the Dublin suburbs. I can quite understand that in the country there may be an additional range of things. Now and again one gets an eccentric constituent—I do not say that in a censorious way—a constituent with an exotic or out-of-the-way problem. I had one once who was in a terrible state because CIE would not sell him an old double decker he wanted for his private bus collection. I have to say I notched it up amongst one of my successes—I managed to persuade CIE to sell him that old double decker bus. Their reasons for being unwilling to do so were very respectable. They said that, in their experience, even though these double decker buses started off as collectors' items they ended up as unsightly chicken coops. places for growing mushrooms in and generally as eye sores. I persuaded them that the man in question was above board. I showed them photographs of an astounding collection of buses he had made and, eventually, much to their credit, they changed their mind and sold him the old bus. But for every interesting case one gets like that—and out of which one might get some personal benefit from following to its end—one gets 50 which are run of the mill cases about health cards, housing allocations and telephones.

What am I to say now to some constituents who come along to me wanting to know if they can get some benefit from the Eastern Health Board? What am I to say in Dundrum and Rathfarnham to people who feel they need contributions to their medicines? What am I to say to the far more numerous ones who cannot get a house? These operations of dispensing health benefits and housing allocations are the functions of the health boards and local authorities respectively. These matters are, however, excepted and exempted from the scrutiny of the ombudsman. It is not a bit of use to tell Mrs. So-and-So who comes to my clinic in Dundrum that if she has a quarrel with the Public Records Office, with the State Paper Office or with the National Museum the ombudsman will look into her case. That is no use to her. She wants a house for her husband and three children. And when she says: "I thought we now had an ombudsman in this country who would look into my grievance", a grievance sharpened by the perception that a neighbour of hers who has less points as far as she can see—though she is usually wrong; there may be some medical dimension or other matter of which she is not aware—has got a house, or somebody who has been on the list for a shorter time, she feels a very acute sense of grievance. She could live to be a very old woman and never once fall out with the Public Record Office, or with the State Paper Office or the National Museum. But she feels a bitter sense of grievance if she has to live in a house with 14 other people. I will not mention the roads concerned but the Minister of State can very well imagine this for himself.

This is the sense of grievance which makes up 95 cases out of 100 of the grievances which people feel against administration, none of which, or a diminishing fraction of which only are the result of official malice. Most of them are not even the result of official negligence but of the grand old budgetary constraints which do not allow enough money for this, that or the other, and the people at the bottom of the barrel are squeezed as they always are. That is a grievance, and an ombudsman who cannot do anything about it will not be of any use to me or to Deputy Calleary.

The same goes for the VECs, perhaps to a lesser degree. What about people who apply for appointments controlled by these committees? They may feel a sense of grievance but they will be wasting their breath if they go to a local representative to ask him to take the matter up with the ombudsman. They will say they are frightfully sorry but that they cannot do anything about it because the letter of the law will exclude it. However, if it should happen that a person has a problem with the Ordnance Survey, the local representative can say: "I will certainly take that up. I will march to the Phoenix Park and bang the table, but as far as getting you a job with the VEC is concerned, or a house or a health card, you will have to go to your TD".

That is the size of it. Though I do not want to belittle the task any Government have in trying to make everybody happy, I say the Fine Gael Bill was infinitely superior to this, and I hope that the Minister, whom I genuinely and sincerely praise for the humility and moderation with which he dealt with this Bill, will try to bring some more of it to bear to get the Bill substantially changed between now and the Report Stage.

Mr. Calleary

Deputy O'Brien asked us not to close the book, not to draw the blinds. I say, let us print the book first; let us build the house first and put up the blinds before we start to draw them. I should like to point out the part Deputy O'Brien had in this. I think it was his motion in 1973 or 1974 that started the process leading up to today. He was a very active member of the all-party committee.

That all-party committee made certain recommendations and we have kept almost rigidly to those suggestions. Points were made in regard to omissions but let me stress that omissions in this Schedule can and will be taken in as soon as we see how the office will operate. There is much talk today about what the ombudsman should do, that he should get staff and that cases should be dealt with expeditiously. All I am saying is that we should get the office started. Let us not give the ombudsman all of these all at once.

I take the points made by Deputies O'Brien and Kelly. Many of the complaints we get as TDs concern local authorities and health boards. I can only speak for my association with Mayo County Council since 1967 when I became a member. There are 31 ombudsmen on that county council and all of the 31 have access to all the information possible. Deputies may say that one should not have to go to a councillor, but if one takes that to its logical conclusion one should not have to go to an ombudsman. In so far as local authorities are concerned there is no need for worry.

Mr. Kelly

The ombudsmen in Mayo beat each other sometimes, or they have to be restrained.

Mr. Calleary

Not always. We have had arguments.

Mr. F. O'Brien

The ombudsmen there need referees apparently.

An Leas-Cheann Comhairle

We are dealing with the Schedule.

Mr. Calleary

The Schedule gives a list of Departments to be included from the start. Deputy Kelly referred to a number of small bodies. Part II of the Schedule excludes certain bodies. The Second Schedule has a list of bodies not now included but which can be included later by order. I will take a look at that. I have some views of my own and I will see what I can do, but I do not think we should include all of these bodies now. I am saying that without any malice, only with a view to getting the office started, in operation, off the ground. I give a commitment now that if I am here in a year I will review the matter and that I will consult the members of the all-party committee, those of them who are left.

I suppose amendments will be tabled for Report Stage. I will undertake to look at the points made. For instance, Deputy Kelly mentioned the offices of Attorney General and the DPP. They are not Departments or institutions such as the semi-State bodies which could subsequently be included. They are separate entities, like the Oireachtas itself.

I undertake to look at the Second Schedule, but honestly I feel that we should not lumber the ombudsman with all of the bodies listed there. We should give him a chance first of all to get the operation off the ground, to get his office working in regard to the bodies listed in the First Schedule. At least we will have an ombudsman. I do not agree he will fit into the bottle Deputy Kelly wanted to put him in. As I have said, as far as possible we have tried to keep to the recommendations of the all-party committee.

I must come back to that again. Deputy O'Brien said we have had time to reflect. Perhaps, but that committee put a lot of good work, which they got little credit for, into their report and I think Deputy O'Brien was doing himself down when he said they have had time to think. I suggest that their thoughts at the time were more accurate than their thoughts now. As I said, I will look into the suggestions that have been made and will consider any amendments the two Deputies, or others, will put down.

Mr. O'Brien

I thank the Minister. Will the Minister promise to look at some of the exclusions with a view to including them?

Mr. Calleary

Yes.

Mr. F. O'Brien

I appreciate that. I do not think Deputy Kelly was asking to have all of them included, but we would like to look at some of the areas of contention. If they were included I think the Bill would work well. The Minister said he would consider all of these at another time. He spoke about excluding the commercial semi-State bodies. Can the Minister give us a reason for that?

Mr. Calleary

Many of the commercial semi-State bodies are in the business of making money——

Mr. Kelly

All of them should be in the business of money making. Will the Minister tell us which ones are not?

Mr. Calleary

They have to operate in competition with private operators and I think it would put them at a slight disadvantage if they were subject to the ombudsman. For that reason it was not our intention to include them here but if experience subsequently shows that they should have been included the position can be reviewed. Some of them have become monopolies and I think there is a good case for looking at them and including them.

Mr. F. O'Brien

I am talking about the monopolies against whom there is little redress.

Question put and declared carried.

Title agreed to.

Bill reported with amendments.

Report Stage ordered for Wednesday, 11 June 1980.