No. 1 on the agenda is an exchange of views with the European Ombudsman, Mr. P. Nikiforos Diamandouros, and the Irish Ombudsman, Ms Emily O'Reilly, on strengthening the trust and confidence of citizens in the work of European Union institutions. I welcome them both to the committee. Our format is simple. Mr. Diamandouros will make an opening presentation and be followed by Ms O'Reilly. I will then open the discussion to members.
EU Institutions: Presentation.
Mr. P. Nikiforos Diamandouros
I thank the joint committee for giving me the opportunity to address it. I am delighted to appear before the Joint Committee on European Affairs of the Irish Parliament. I know this committee gives high priority to bringing the Union closer to its citizens and I am pleased to have the opportunity to exchange views with members on how to strengthen the trust and confidence of citizens in the European Union institutions. Last year, I had a similar opportunity to address the Committee on European Affairs of the House of Lords in London, which proved a profitable experience for me. I look forward to members' questions and our discussion.
My opening remarks will focus on three main issues: building trust, promoting transparency and encouraging effective communication. I will start with a brief overview of my role. The European Ombudsman was established by the Maastricht treaty to investigate complaints about maladministration by European Union institutions and bodies. I can also open inquiries on my own initiative. The ombudsman is a human being, a person with a name and a face, to whom citizens can turn if they are dissatisfied with the EU administration.
Since the first ombudsman began work in 1995, the office has handled almost 25,000 complaints. We help around 70% of complainants by opening an inquiry into the case, transferring the complaint to a competent body or advising the complainant on where to turn. This figure of 70% of complainants helped is comparable to that of many of my national ombudsman colleagues.
Around 20% of the complaints I investigate concern lack of transparency such as refusal of access to documents. Other complaints concern contractual disputes, both as regards the process of award and subsequent performance and payment. I also deal with grievances related to recruitment, allegations that fundamental rights have been infringed and complaints against the European Commission in its role as guardian of the treaty.
Many complaints fall outside my mandate as European Ombudsman because they concern national or regional administrations in the member states. These cases are sent to me by citizens who believe, understandably but mistakenly, that if EU law is involved I can deal with the matter. This is not the case, however, because my mandate is limited to the Union institutions and bodies. Put somewhat differently, subsidiarity in the administration of EU law and policies implies — or should imply — subsidiarity in remedies. For this reason, I transfer complaints to the relevant national or regional ombudsman or advise the complainant whom to contact.
To make this work efficiently requires close co-operation with my colleagues in the member states. We are all linked through the European network of ombudsmen and I have committed the resources of my office to strengthening the network and making it more visible to citizens. I am delighted the Irish Ombudsman, Emily O'Reilly, is present as we have worked together closely since taking up our ombudsman duties in 2003. After today's meeting, I will travel to Belfast for a two day information visit organised by the Northern Ireland Ombudsman, Tom Frawley.
These visits have a dual purpose — to raise awareness about citizens' EU law rights and the possibility to complain to the European Ombudsman or another ombudsman in the network and to further intensify the close working relations I have with my ombudsman colleagues so as to ensure citizens' complaints are dealt with quickly and effectively.
Since I took up the position of European Ombudsman on 1 April 2003, I have been keen to promote what I describe as a "culture of service" in the EU administration. EU officials and agents should make service to citizens their guiding philosophy and strive to ensure a high quality service in everything they do. Delivering on promises, providing proper redress mechanisms, learning from mistakes, working openly and allowing for public scrutiny and, above all, acting fairly and reasonably are the all important means of building trust.
As members will be aware, complaints are often symptoms of more serious, complex or systemic issues or problems. One of my functions is to identify these and to promote ways of tackling them, including the launching of own-initiative inquiries. In addition to serving as an external mechanism of control, the ombudsman constitutes a valuable resource to public sector managers. I endeavour to convince the administration that the ombudsman is part of the team that is trying to improve relations between the administration and the citizen, not an outside force to be feared. I am part of a culture of service not a culture of blame. We need to work together to build trust.
Around 70% of the ombudsman's inquiries concern the European Commission, so it is vital that the Commission takes a leading role in dealing with maladministration and in promoting a service culture with respect to citizens. It is for this reason that I have been meeting bilaterally with each of the European Commissioners who have confirmed their commitment to this goal. In July, I had a very productive meeting with the Irish Commissioner, Mr. Charlie McCreevy.
Transparency is the key to citizens understanding and trusting the Union. Citizens want to know what is being done in their name in Brussels and it is in the interests of the Union that they should know. Significant strides have been made over the past decade in the area of transparency, with new rules on access to documents figuring among the most important steps taken. Much remains to be done, however, to create a real culture of transparency. Among the most urgent measures that should be taken is for the Council of the European Union to agree to meet in public whenever it acts in its legislative capacity. While progress has been made in this area over the past 12 months, there is still room for improvement.
With regard to the Commission, the planned revision of the regulation on access to documents represents a key test for it to show how serious it really is about increasing trust in the administration. It has already demonstrated its willingness to improve the situation, most notably through its European transparency initiative. I wholeheartedly endorsed its efforts in this regard and was encouraged to hear that member states appear to be ready to sign up to the idea of providing access to information concerning the beneficiaries of EU funds. I have already signalled my support for this proposal. It is in the general public interest to provide information on how EU taxpayers' money is spent. Explaining openly what the EU and member states do in the name of the citizen makes the European Union more democratic and accessible.
The transparency initiative is just one of the initiatives brought forward recently to help bring Europe closer to the citizen. I understand that this committee recently discussed another initiative, namely the Commission's white paper on communications. The need to listen, to promote dialogue and to empower citizens is central to the Commission's White Paper and goes to the core of the ombudsman's function.
I have submitted my comments on the White Paper and have outlined therein the European Ombudsman's ideas for best communicating Europe. I confirmed my commitment to ensuring that citizens are made aware of my role in promoting a high quality EU administration and the service I can provide. We are working hard to direct citizens to the right ombudsman the first time around, through the provision of clear and understandable information about the multiple means of redress available to them at European, national and regional levels. For instance, we are currently working on an entirely redesigned and restructured European Ombudsman website with the aim of providing a modern, dynamic, informative, interactive and constantly evolving service to citizens.
In my comments on the Commission's White Paper, I also confirmed that I will continue to extend my communications strategy beyond Brussels by following up on my first tour of all 25 EU member states with a new tour that will begin next year and that will include Ireland among the first of the countries to be revisited. I had an opportunity this morning to discuss this matter with Ms Emily O'Reilly and Mr. Pat Whelan the director general, in order to take the first steps in that direction.
One of the main aims of these information visits is to raise awareness among citizens of their rights under EU law. I know that in Ireland major efforts are being made to improve the information available to citizens about these rights. This is particularly important. A recent Eurobarometer survey entitled "Getting Information on Europe" revealed that the top area about which people would like more information is the rights of EU citizens.
One right I am especially keen to promote is the citizen's fundamental right to good administration as laid down in Article 41 of the Charter of Fundamental Rights of the European Union. To explain to citizens what this means in practice, the European Ombudsman developed the European code of good administrative behaviour which was approved by the European Parliament in 2001. In drawing up the code, the European Ombudsman was inspired by the administrative laws and practices of the member states, including the Irish Ombudsman's guide to standards of best practice for public servants. The code explains to citizens what they have the right to expect from the European administration and, equally, serves as a useful guide to civil servants which encourages the highest standards of administration.
A new edition of the code was published in 2005 in 24 languages, and over 100,000 copies have already been distributed in Europe and beyond. In response, national administrations and local authorities, schools and universities, training centres and public libraries as well as individual citizens have asked for copies for further distribution. The code has been adopted and is applied in national, regional and local administrations from Portugal to Italy, Wallonia to Greece and from Romania to Croatia. It is truly a European success story. I note that copies are available in the committee today. One of the requests we received for a copy of the code came from a tourism outlet in Madeira, Portugal. The request was couched in the following words:
It is our experience that many of those who hold important administrative posts routinely ignore our citizens' rights. By promoting your handbook, we would like to make our own small contribution towards improving this situation.
I am persuaded that over the past 11 years, the European Ombudsman has made a substantive contribution to the improvement of the services citizens receive from the EU administrative while giving the Union a human face. The defining feature of the institution is that the European Ombudsman is a physical person who communicates personally with individual citizens who write to him or her, reviews citizens' cases and seeks to have complaints resolved. It is these "micro-communications" which help to humanise the EU administration and bring it closer to the citizen.
Each year, the number of complaints to the European Ombudsman increases. Members will hardly be surprised to hear me say I find this reassuring. I believe firmly that increased numbers of complaints do not reflect worsening performance by the institutions, but rather offer clear proof that citizens feel it is worthwhile to exercise their rights. Their voice counts and their actions will help to improve things. Engaging citizens, taking on board their concerns and facilitating their participation in the work of the EU are vital to their empowerment, another concept which is central to the ombudsman's work. I look forward to discussing these issues further with the members whom I thank for their attention.
Ms Emily O’Reilly
I thank the committee for the opportunity to attend to join in the discussion with the European Ombudsman and, especially, to outline how both our offices work together for the betterment of citizens of the European Union. Professor Diamandouros is an old friend of my office. In his previous role as Greek Ombudsman, it was to my office he turned for assistance to get his office off the ground. In his current capacity, he will agree that my office has been one of the strongest supporters of the European Ombudsman's office since its inception in 1995. Over the past few years, it has been my great pleasure to work closely with him to forge even closer links.
When the concept of a European Ombudsman was first mooted, there was a great deal of unease among national ombudsmen of the member states as to what the role of the new institution would be. We asked if its remit would overlap those of national ombudsmen and questioned whether it would have a role in overseeing and scrutinising national ombudsmen? Neither is the case. The European Ombudsman has no jurisdiction over national ombudsmen and complaints about the implementation of EU law at member state level is a matter solely for national ombudsmen. To put it simply, the European Ombudsman investigates complaints of maladministration by EU institutions while a national ombudsman investigates complaints against public bodies in a member state. Nevertheless, confusion continues to persist. Some complainants dissatisfied with my decisions on their cases still have the mistaken belief that they can appeal my findings to the European Ombudsman.
A fundamental characteristic of all national ombudsmen is that they make recommendations only, rather than binding decisions. The Office of the Ombudsman has an excellent track record in having its decisions accepted by public bodies. Intervention by the courts in any complaint with which I have dealt would only be by way of judicial review proceedings. Such proceedings have not been initiated to date.
Despite the separate and distinct jurisdictions of the European and national ombudsmen, there are, nevertheless, strong informal links between them. These have been developed over time to best serve the interests of citizens of the European Union in a joined-up way. First, there is the European Network of Ombudsmen, to which the European Ombudsman has referred in his paper and about which I will say more. Second, the European Ombudsman's office has been able to assist national ombudsmen to process individual complaints where the interpretation of some aspect of EU law is at issue. I will give an example of how the office has assisted the Office of the Ombudsman in its examination of a particular complaint.
The European Network of Ombudsmen meets annually. It consists principally of the European Ombudsman and the ombudsmen of the member states. It discusses, among other matters, developments in EU law, the impact on member states and, in turn, the implications for complaints received by the ombudsmen of the member states. Among the issues of most relevance are policy on immigration and the free movement of persons. In the newly enlarged European Union the significance of these issues is obvious, as is the need for consistency in how complaints from citizens of the Union are handled. The network also facilitates the comparison of the powers and remit of the ombudsmen of the respective member states. The Irish Ombudsman's office continues to enjoy a very high reputation on the European and international stage. However, it now scores badly by reference to its European neighbours in terms of the breadth of its remit. Inexplicably, large areas of the public service are still outside of its remit, for example, non-commercial State bodies such as FÁS, the Health and Safety Authority and the third level institutes of education. It is alone among the member state ombudsman offices in not having jurisdiction in immigration issues — a social policy issue of crucial importance to all member states and, collectively, citizens of the European Union. Neither does it have jurisdiction in regard to prisons.
Most importantly, the Office of the Ombudsman is one of a small minority which do not enjoy constitutional status, despite the recommendations made a decade ago by the Constitution review group and the all-party Oireachtas committee on the Constitution that the Ombudsman's office should be included in the Constitution. By contrast, it is worth noting that constitutional status for the European Ombudsman's office was seen as an important priority. It would have been enshrined in the proposed EU constitution by virtue of Article 43 of the Charter of Fundamental Rights of the European Union.
I have mentioned that the European Ombudsman's office has been able to assist my office's examination of complaints where the interpretation of EU law has been an issue. For instance, a recent case involving the Department of Agriculture and Food turned on the manner in which a particular article in an EU regulation was interpreted. We wrote to the European Ombudsman seeking clarification of the relevant article. The European Ombudsman's office, in turn, obtained a detailed report from the European Commission, which included useful background information on relevant decisions by the European Court of Justice and a Commission notice on the issue circulated to member states. This was very useful to my office in making an informed decision on the individual complaint, as well as providing general background information which could be brought to bear in dealing with any similar complaints.
I think it will be clear that despite our different jurisdictions, there is great benefit to be derived from collaborative working between our respective offices. Underpinning all of the work that the community of ombudsmen do either at European institution level or throughout the member states is the goal of improving overall standards of public administration. In this "period of reflection" the Commission's White Paper on communications is particularly relevant in bringing the European Union closer to the citizen. As the European Ombudsman has said in his paper: "The need to listen, to promote dialogue and to empower citizens is central to the Commission's White Paper and goes to the core of the Ombudsman's function". In this sense, implementation of the White Paper is really a call for high standards of public administration within EU institutions and bodies. While this falls firmly within the European ombudsman's remit, my office will continue to collaborate in the interests of EU citizens generally.
My comments will be directed mostly to Mr. Diamandouros and relate to the recent banning of drift-netting in Ireland. This refers to salmon and salmon fishermen, especially the compensation they will or will not get. I met the European Commissioner for Fisheries and Maritime Policy, Mr. Borg, in Italy on Monday and told him that I feel there are issues regarding equity and equivalence of compensation. I compared the compensation some fishermen will get after the banning of drift-netting with the compensation for farmers, tobacco growers and wine producers. It is worth investigation.
I made the case to Mr. Borg because an EU directive was responsible for banning drift-netting. The EU made it clear to the Government that interception methods, meaning drift-netting, were unacceptable under the habitats directive and therefore had to be banned. When I consider that some of the fishermen I represent have been fishing salmon for up to 50 years but are left with a €2,000 compensation package, I feel an argument for equivalence can be made. I pointed out the damage that has been done, and the loss of earnings that will occur because of this decision. Mr. Borg told me that he understood my concerns and that he would consider it. He asked me to make a submission on that basis.
I understand that asking Mr. Diamandouros about this is putting the cart before the horse. He deals with the institutions and the maladministration or decisions they make after the fact. I informed Mr. Borg that Mr. Diamandouros would meet the committee today and I would raise the issue with him. In the event that the Commission does not accept my argument, which will be made to it within the next week, I will approach his office. I would appreciate if Mr. Diamandouros would comment on this.
I also think it is relevant to the Irish Ombudsman. I do not know if her office has a role in examining the compensation package that was agreed at Cabinet. Senior Government officials have made it clear to me that they are not happy with the levels of compensation. It is unfair to offer such small amounts of money to people who have been fishing in this manner for up to 50 years. From the standpoint of equity and equivalence as compared to compensation levels in other walks of life, I feel this is a live issue for the Irish Ombudsman
On my case being made to the Irish Ombudsman — that is a personal opinion and not offered as Chairman of this committee. I have raised the compensation issue with some other Government members and they had no difficulty with me doing that, particularly as it pertained to the European Union.
Mr. Diamandouros
The Chairman's key points are those of fairness and equity. I am speaking for myself, but I assume that Ms O'Reilly shares the perception. Clearly, if there is an issue of fairness and equity it could, prima facie, involve the possibility of an ombudsman intervention. As the Chairman correctly said, he will have to wait until the cart is put behind the horse. According to my remit, I would not be able to accept a complaint unless it had first been addressed to the institution implicated — in this case the Commission — and in the complainant’s view the institution’s response was inadequate or unsatisfactory. Such a complaint would create prima facie grounds for a decision on whether there had been maladministration and I would have to examine the matter.
If we are speaking about a directive, we are then essentially speaking about a form of action by the Union which falls within its legislative capacity. The usual division of labour between my office and the European Parliament's Committee on Petitions requires that issues pertaining to the legislative or political aspects of the EU ought to be addressed to the Committee on Petitions and issues pertaining to potential maladministration on the part of the European institutions fall within my remit. I would be required to make such judgments.
On the issue of equivalence, long-standing case law of the European courts provides that where an issue of potential discrimination between cases of equal or comparable constituencies, individuals or groups is involved, the institution must justify its policy based on objective grounds. I will give the joint committee an example in this regard. I recently dealt with a complaint from a 65 year old man, a translator in Parliament who was no longer receiving contracts, who complained that a particular policy was discriminatory. The Parliament responded stating that while the policy was discriminatory it had adopted a long-term policy of nurturing a younger generation of translators because demographics were causing a significant dearth of translators. There were, therefore, objective grounds for the discrimination and the matter was referred to the European Ombudsman for consideration. That would be the type of questions that arise. Again, matters must first be addressed to the Commission and forwarded to me as European Ombudsman. If the case relates to maladministration I can deal with it, though it is more likely, as a result of the directive, that cases would go first to the Committee on Petitions. Much depends on how the complaint is constructed. If it is constructed to fall within my mandate I can potentially take it on, otherwise I would transfer it to the Committee on Petitions.
I thank Mr. Diamandouros for his response.
Ms O’Reilly
My office is complaint driven. I do not give my opinion on particular policies unless as a result of a particular complaint involving maladministration. I have been following the debate on this issue with some interest. As I understand it, a compensation package has been agreed. I am not sure how much individuals involved in the industry will get and I do not believe they know that either. I understand also that money will be given to communities badly affected by this decision. I imagine it is possible I will get complaints in regard to the amounts of money paid to individuals. I am not suggesting that is definite but it is possible. People may feel they have been treated unfairly in comparison with others. The point being made relates to how they might compare with communities in other European countries.
I would make the argument on the basis of equivalence. I mentioned three other walks of life, farming and tobacco and wine growers in the European context, where the levels of compensation paid were substantial. On the face of it, having fished for 40 years in a particular way, €2,000 in some cases is not a lot of money. I believe an argument can be made on that basis. At the very least it is worth investigating. That is the essence of the matter.
Ms O’Reilly
I would work from the complaint upwards. It is interesting that the issue of compensation has been raised. I am currently dealing with another issue involving compensation, or rather a lack of compensation, for manufacturers of pigswill for animal feed. An EU directive implemented following the outbreak of foot and mouth disease resulted in these people being put out of business despite the fact that their operations were satisfactory. The relevant Department is arguing they are not entitled to compensation because the issue is one of health and safety and so on. I am examining the matter. I understand from where the issue of equivalence arises in terms of what one particular group or another is paid. I am not sure whether it is myself or Professor Diamandouros who will ultimately be able to opine on it. However, it is an important issue and if I do receive complaints on it I will deal with them.
The example I gave to the European Commissioner may seem a bad one, namely, if the EU implemented a directive banning the milking of cows it would be required to pay more than €2,000 in compensation to those involved. Obviously, one cannot make comparisons in some cases. However, fishermen would make the case that the banning of drift-netting, the manner in which they fished for more than 30 or 40 years, is worth more to them than €2,000. I believe that is a reasonable point which we should at the very least explore. I thank Ms O'Reilly and Professor Diamandouros for their replies.
I thank the witnesses for their presentations. My initial query related to the overlap of roles between the Ombudsman and the European Ombudsman. However, Ms O'Reilly has dealt with that issue adequately.
To the man in the street, the ultimate arbiter of most disputes is Europe. For example, members of the public will often say when the laws of the land fail, the Supreme Court and so on, they will take the case to Europe. The perception remains that Europe has the final say. One would have thought that cases which failed at Irish level would then go on to be dealt with at European level.
Ms O'Reilly mentioned that her recommendations are not binding. I accept her success rate has been quite good. However, I wonder what the experience of Professor Diamandouros has been in Europe and whether his recommendations are non-binding. That this is so results in people having to go elsewhere to have their cases dealt with. In most cases the Irish Ombudsman is the last option and to state that her recommendations are not binding is, I believe, a weakness in the system. I would be interested in hearing the comments of both ombudsmen in that regard.
Europe has served us well in terms of legislation. Many of our laws on women's rights stem from Europe. I sometimes wonder if I am part of the same Europe when I travel abroad to Greece, Spain and so on where European laws tend to be interpreted in a much different light. The witnesses might indicate if they have any references from citizens in that regard. Professor Diamandouros also stated that he can open inquiries on his own initiative. Perhaps he can tell the joint committee how often he has taken that initiative. How many individuals complain directly to the European Ombudsman?
I am interested in the rights of EU citizens in terms of health. I understand a new law will oblige health boards to inform patients of the likely waiting times for appointments and so on. I do not know if the European Ombudsman is familiar with the proposal. It is anticipated that this will provide those required to wait lengthy times for procedures and so on with access to similar treatment in another country at similar cost. Perhaps Professor Diamandouros will comment on that issue and on the possible sharing of information through health services. Is he aware of any moves in that direction?
What is Professor Diamandouros's view as regards freedom to travel from country to country and does he receive many complaints in that regard? For example, does he receive complaints from people wishing to travel to France to have cosmetic surgery or to Poland for dental treatment which is not available here?
Ms O’Reilly
On Deputy Connolly's first question as to whether the effectiveness of an ombudsman is limited by the fact that we make non-binding decisions, I believe the opposite is the case. If we could make binding decisions, we would be continuously caught up in judicial review. The whole point of having, alongside the legal system, an ombudsman system to deal with disputes is that the latter is a user friendly means of securing justice. The service is free and easily accessible and we do our business in a non-confrontational manner.
Typically, when the Office of the Ombudsman receives a complaint, we ask the appropriate public body for a report on the matter and communicate back and forth between the complainant and public body until a resolution is reached. This could mean throwing out the complaint, taking part of it on board or making a recommendation. As I indicated, the Ombudsman generally has a good record in that almost 100% of our recommendations have been agreed. The reason is that we act in a reasonable manner and have the trust of complainants and public bodies. Our role is not to represent the complainant, as would be the case with solicitors, but to stand in the middle. We are equally mindful of the rights of both sides. The success rate of the Office of the Ombudsman points to the effectiveness of the institution and the fact that the Ombudsman has traditionally made non-binding decisions.
On the health issue raised by Deputy Connolly, it will take time for people in Ireland and other European Union member states to grasp what are their rights under EU law. This is a slow burn process. As the Deputy will probably be aware, my remit in the health and disability areas has been extended. Until now, it covered only to the former health board hospitals. Now, however, every hospital and provider of services to the Health Service Executive comes within my remit.
One of the actions I took was to draw up a series of principles of good administration in the health service. With regard to waiting lists, an issue raised by the Deputy, we all know, either from experience or anecdotally, of cases in which 200 people have been given the same 10 a.m. appointment to see a consultant. This cannot be deemed to be good administration. I imagine that, over time and as my office gets to grips with more complaints in the area of health, it will deal with the issues described by Deputy Connolly and with which Professor Diamandouros may be more familiar. I also envisage that my office may have to deal with complaints arising from the citizens learning of their right to seek treatment in other EU member states when waiting lists here are too long.
I have received a significant number of complaints from people with intellectual disabilities. Despite these being among the most common complaints I receive, I am unable to resolve them at local level. I welcome the decision to extend the scope of the Ombudsman's remit to this area and hope she will be successful in all such cases.
One of the issues I neglected to mention is health care provision to border communities. The population in border regions tends to suffer disproportionately because services are frequently centralised. I ask the Ombudsman and European Ombudsman to comment.
Mr. Diamandouros
Ms O'Reilly has touched upon a number of issues that show tangible proof of the close collaboration between ombudsman colleagues at national and European level. I will address some of the European dimensions. On the Deputy's first comment, the provision whereby citizens can either go to the national or European level, in other words, the limitation of my role to the European level, is a wise decision because it is, essentially, an application of the principle of subsidiarity. The purpose of this decision is to try to avoid every issue percolating to the top and, instead, have them resolved as close to the citizen as possible. One of the challenges for me, as European Ombudsman, and the European institutions in general is to find ways to ensure as many of the problems are solved as close to the ground as possible to reduce the sense of alienation and distance between local regions and Brussels. In principle, I am very much in favour of trying to resolve matters as close to the ground as possible, which does not preclude collaboration. Ms O'Reilly referred to transferring a case to me. When I try to get help for her, she can resolve it, rather than having overlapping competences which could create more complications than solutions.
On the non-binding nature of our mandates, what has been articulated is, in fact, a widely held position. From my point of view, the non-binding nature of an ombudsman's recommendation is, rather paradoxically, an advantage. It is an advantage from the broader perspective of democracy and the rule of law. From my perspective, a modern, liberal democracy has a higher quality if it is able to provide its citizens with alternatives on how they can exercise their rights. In my book telling a citizen that he or she can only obtain redress through the courts and that there is nothing else is a lower quality of democracy. I advise citizens that they have an option and may choose which means of redress they wish to avail of in trying to enjoy their rights. From that perspective, the ombudsman has advantages over the courts because while the recommendation is non-binding, it is much more flexible, faster and costs absolutely nothing. In addition, it allows the ombudsman to seek friendly solutions — meaning compromise or consensual solutions — which the courts, by definition, cannot do. Ultimately, this makes it possible for the ombudsman to engage in own-initiative inquiries which the courts cannot do either. Therefore, one is enriching the range of options available to citizens and potential complainants by offering them these two options which are based primarily on the distinction between a binding court recommendation and a non-binding ombudsman's recommendation.
I was asked a question as to how EU laws were interpreted at national or local level and whether there were regional variations. There is a significant variation which concerns not so much how EU laws are transposed or perceived but the extent to which we have a significant variation within member states on how the rule of law and democracy are entrenched. In deeply consolidated democracies which have a long tradition of supporting the rule of law it is much easier for EU law to be transposed and integrated into the legal and constitutional order and culture and, therefore, applied constantly and coherently both by the judiciary and public administration. Where these two conditions do not obtain — where the rule of law is more fragile and democracy more recent — one has a greater incidence of a weaker understanding and application of EU law. I have been to all 25 member states, as well as the candidate countries, and many judges have openly told me they do not know EU law and are unsure about it. Therefore, they are inclined to shove it aside conveniently, precisely because they have not been sufficiently socialised or inculcated to use EU law.
Health issues were raised. I have one major comment to make in that regard. One of the fundamental differences between the European Ombudsman and his or her national colleagues is that by definition the EU does not have a mandate in areas at the inner core of a modern state, including social security, the social role of the state generally, education, health and retirement benefits. The Union has a remit in cross-border transfers which might include, for example, the question of whether one can take one's pension from one country to another, but it does not have legislation or competence to decide who should get what type of pension. It follows that my remit does not extend to those areas, but simply to cross-border movements. In the meeting of regional ombudsmen which will take place in London this November, cross-border issues and mobility will be one of the major topics under discussion. We are aware of the problems which are arising, some of which come to me. If they involve transfers, I can handle them, but if they involve questions of national internal legal orders, they must be dealt with by my national colleagues.
I was asked how often I exercise my own initiative and the answer is "sparingly". Exercise of my office's initiative is an instrument which can be very powerful when used judiciously. If I launched inquiries on my own initiative all the time, however, I would tend to trivialise the institution. It is important for public administration that own-initiative investigations are understood to constitute a great, in-depth inquiry into potential systemic maladministration. This discretion is a complement to my ability to react to complaints and a more incisive instrument which allows me to conduct a deep investigation where I suspect there is tangible proof of systemic maladministration.
I welcome Mr. Diamandouros and Ms O'Reilly and compliment them on their work to strengthen the confidence and trust of citizens in the institutions of Europe and the State. This is a period of reflection on EU institutions, however, following the acknowledgement of a lack of trust and confidence in them. This lack of trust was exemplified in Ireland by the vote in the referendum on the Treaty of Nice and, more recently, by the votes on the proposed European constitution in the Netherlands and France. There is a perception that the EU is very remote and its institutions overly bureaucratic. The basic right to good administration to which Mr. Diamandouros referred seems to have little foundation despite the existence for the last 11 years of a European Ombudsman and other good work which has been done in this area. Are we going backwards or forwards?
The 25,000 complaints Mr. Diamandouros described appear to constitute a very small number given that there are 25 countries in the EU and that his office has been operating for 11 years. I have probably received that many complaints personally over the last 11 years in respect of the various public bodies with which I deal, including Dublin City Council and the HSE. Can Mr. Diamandouros tell the committee how many complaints he has received from Ireland and what the rate of increase in complaints is currently? Can he set out what the nature of the complaints has been? Does the European Ombudsman publish an annual report which includes the level of complaints and the rate of successful response to them? How does Mr. Diamandouros see us breaking the basic scepticism many European citizens feel about the bureaucratic and remote nature of the institutions?
While there is a network of ombudsmen in Europe, is it the case that every member state has appointed such an official? Ms O'Reilly mentioned in her contribution that her remit is quite limited compared to those of some of her colleagues in other member states. Can she provide the committee with an idea of the extent of the remit of other colleagues? She indicated that FÁS, health and safety, prisons and immigration, which is a serious matter, had been omitted from her remit. How many countries have included public bodies operating in these areas in the remits of their ombudsmen?
I heard on Joe Duffy's "Liveline" show yesterday and the day before complaints about the services provided in a particular hospital by a particular person. While the hospital in question is not a public institution, it is publicly funded. To what extent does Ms O'Reilly's office have a role in the resolution of a matter where an institution is privately run but publicly funded and prepared to take the founder of Patients Together to court for making statements on the quality of services provided while she was a patient there?
Can we hope to see some progress being made? Is there a mechanism in this period of reflection on European citizenship for proposals to be incorporated into the remits of the officials before us to improve the connection between citizens and institutions?
Mr. Diamandouros
I thank Deputy Costello for his challenging and difficult questions. I welcome the opportunity they give me to address some important issues. My sense is that we are moving forward but I will try to document my view by taking on some of the Deputy's other questions.
Deputy Costello is quite correct to say that 25,000 complaints in eleven years is a very small number. By that criterion, one could ask how successful and capable the institution of European Ombudsman is in the context of reaching out to European citizens. Deputy Costello asked if we were moving backwards and forwards, which prompts the question of whether the glass is half full or half empty. From a very low starting point, we have doubled the number of complaints over the last two years. When I took office in 2003, we received approximately 2,000 complaints a year, but we are about to break 4,000 a year. That said, it is important that the basis for comparison is clearly understood. Given that there are 500 million citizens in the EU, 25,000 complaints might indicate that things are hopeless. I argue intuitively, however, that of the 500 million citizens in the EU, no more than 4% or 5% at most will have over their lifetimes a reason to make contact with European institutions. We could have an argument about the farmers who receive grants; their payment usually involves national institutions. Once we cut the numbers to that level, we are talking about a much smaller number of 10 or 12 million and, while we may not be doing fine, we are in a manageable universe. In that universe, the European Ombudsman can significantly increase his efforts to reach out and work with colleagues to resolve issues
I am encouraged by the fact that we have been able to double the number of complaints over the last three years but note that the growth in complaints has not necessarily meant a deterioration in the quality of services provided by the European institutions. I can make that assertion based on my outreach and communications activities which take two forms. I reach out to citizens by touring member states and systematically holding sessions at which I try to explain national obligations under the code of good administrative behaviour vis-à-vis the European Ombudsman and the institutions. I have, therefore, developed a sense of the pulse and the problems. I have also seen in concrete terms an improvement in the compliance rate to greater than 94% at European level in cases where we have determined the existence of maladministration. This represents a very small number of complaints that reach me as many involve matters outside my mandate and a good number lead to no finding of maladministration in the institution complained of. Where I find maladministration, compliance is very high. There is an increasing awareness of the onus on the EU institutions to reach out to citizens and inform them
European institutions are in a period of significant historical transition. The institutions were built in the 1950s at the height of the Cold War and based on a system of public administration designed to be inward looking, protective and secretive. With the end of the Cold War and the accession of the Nordic countries and new member states, including Ireland, in which the Anglo-Saxon tradition of greater openness was part of the culture, the notion of transparency was introduced into the European discourse. What has been for 50 years a civil service groomed in a very different tradition is being confronted with a political command to change its outlook. The service is trying to do so with a considerable degree of strain which is why the challenge for institutions like mine is to explain to civil servants why it is in their interests to comply. We are making significant headway. I spoke to the Ceann Comhairle earlier today who said he hopes to have the Vice President of the European Commission, Margot Wallström, visit Ireland to speak about communications. The European Ombudsman has very close relations with Ms Wallström with whom we work very closely to promote the same agenda.
I issue an annual report each year and would be happy to send each member a copy. An executive summary of the report is also produced as we are mindful that many parliamentarians are busy and do not have the time or inclination to invest in reading 200 pages. They might be interested in reading 20 pages, ten of which are pie charts and statistics. We have a differentiated communications strategy of trying to reach out to various constituencies, including the public administration, political class and parliament of each country
To partly answer a question Deputy Costello addressed to Ms O'Reilly, my comparative study of the 25 member states indicates that many of our colleagues have a very broad mandate. The breadth of the mandate of an ombudsman is a function of the extent to which the rule of law and democracy are entrenched in a country with the slightly paradoxical twist that late-comers may leap-frog into the future. As a result one has a case like Poland which came out of communism under rather unique circumstances, having established the ombudsman before the fall of communism in 1987. In the case of Poland, the ombudsman has extraordinarily wide powers which were granted so that he or she would be able to address virtually everything under the sun. The ombudsman in most mature democracies has a broad mandate that would include prisons and the health sector.
The issue of publicly-funded private institutions varies from country to country. Finland boasts the second oldest ombudsman in the world and the office has a broad mandate. The Finns recently introduced a specific provision whereby the criterion is not public ownership, but rather the actual performance. Therefore, if a private institution is providing goods that are the equivalent of a public service, then that institution comes under the remit of the ombudsman.
Does Ms O'Reilly want to respond to Deputy Costello's comments?
Ms O’Reilly
I think that Germany and Italy are the only countries that do not have a national ombudsman.
Mr. Diamandouros
That is correct. Germany has a federal system and uses committees on petitions which it regards as the functional equivalent of an ombudsman. Four German states use an ombudsman rather than a petitions committee. Germany also has an ombudsman specifically for the armed forces. This was established in 1950 for historical reasons I need not go into.
There is now a movement afoot in Italy to introduce legislation to create a national ombudsman. Each of the other 23 member states and the candidate countries has an ombudsman. Turkey enacted a law creating an ombudsman two weeks ago.
Ms O’Reilly
In relation to my remit, Professor Diamandouros has explained that there is a wide variation between the European ombudsmen in terms of the extent of the various remits. Typically, in the newer democracies the remit is very wide. Many of them have a fundamental human rights function, not even second or third generation human rights. As Professor Diamandouros has pointed out, most of the older democracies extend the remit of the ombudsman to cover prisons, immigration, asylum issues and so on. The rationale for that is that everybody is entitled to the protection the ombudsman can provide. If the ombudsman is supposed to be the watchdog of public administration, then all elements of public administration should come within its remit.
Even though the services the European Ombudsman provides extend to all members of the community, we have a particular interest in vulnerable and marginalised people, for instance, people who are in prison and who are involved in asylum cases or immigration cases be they migrant workers or asylum seekers. They have a right to the protection an ombudsman provides. To date, there has been no give in Ireland on either of those areas. We have been promised an amendment to the Ombudsman Act since 1997 which would bring some of the non-commercial semi-state bodies within our remit. This has not yet happened.
The Deputy raised a specific case about a hospital. While I did not hear the "Liveline" programme, I read something about it. I gather it relates to an alleged slander or libel made by a woman in a book she wrote about her experience in hospital. This is a matter that may be before the courts and I therefore cannot get involved in it. However, even if it were not before the courts I am not sure what the complaint might be. If it involved a private hospital I could not deal with it. I could deal with it if it involved a public hospital. The rule of thumb should be that the ombudsman should have jurisdiction wherever public funds are expended — that is part of public administration.
The Deputy asked if we were going backwards or forwards. I feel we are moving very slowly forward. Whether they are drift-net fishermen or pig farmers, people are slowly becoming aware of the impact of the EU on them. The problem for the public is how people can, in turn, engage and interact with EU institutions. This is particularly the case in Ireland where, because of our geographical location, Europe seems further away.
The Irish people are also becoming more conscious of their rights and role in the EU as a result of our incorporation of the European Convention on Human Rights. This is slowly becoming a feature of the legal system, with various articles of the convention being invoked in the courts. The European Convention on Human Rights is also becoming central to the work of European ombudsmen. We are beginning to discuss among ourselves the implications of the convention as it relates to our own work and are moving outside the purely domestic jurisdiction and seeing where that takes us. While a reasonable case might be made that we are not moving forward very fast, change is happening and will accelerate over time as people begin to engage and are shown ways of engaging with the EU.
I join you, Chairman, in welcoming the delegation. This discussion provides us with an opportunity to tease out many areas which cross the paths of public representatives on a daily basis.
Are the staffing levels in the Ombudsman's office adequate?
I would like to come in on that question. I had intended asking it at the end of the discussion.
Can an individual make an oral presentation to the Ombudsman? If a person wishes to elaborate on a written submission is a facility available to come to the Ombudsman's office for an oral hearing?
With the expansion of the economy, the operation of county development plans is vitally important. Planning has become a significant issue. For example, a number of years ago a major industry was proposed for County Louth. Some local people, including a particular group, objected to the development. One could call the objection vexatious or strategic. As a result of the objection to Louth County Council and the subsequent appeal to An Bord Pleanála, the promoters of the industry decided they were no longer interested in locating in County Louth. The area was deprived of an economic boost from a worthwhile industry, which transferred to a turnkey facility in Puerto Rico. Our lethargic, or perhaps meticulous, system of dealing with planning applications at local authority level and by An Bord Pleanála persuaded the promoters of that project to move on.
Does Ms O'Reilly see a potential for her office to fast-track the consideration of individual cases? For example, if a concerned person or public representative asked the Ombudsman's office to consider the implications of a negative decision by An Bord Pleanála in advance of the decision, could her office consider such a submission from a local community and make a recommendation to An Bord Pleanála in those circumstances? Does she think it would be desirable? Would her office consider such cases only retrospectively when all has been lost, as far as the local community is concerned? I think of the old adage, justice delayed is justice denied. This would expand the operation of the office and extend its potential. It is an area which the Ombudsman's office might examine, for everyone's benefit and for the common good.
Serious difficulties arise from vexatious or commercially strategic objections to worthwhile economic developments throughout the country. Individuals and entire communities can be deprived of enhanced economic prospects because the planning process is inadequate or too slow in dealing with individual matters. Due to the operation of the planning system, a vexatious objection has the same status as one which is worthwhile and justifiable. Does Ms O'Reilly think her office should look at this area and begin to make recommendations to the Department of the Environment, Heritage and Local Government or directly to An Bord Pleanála for consideration?
Ms O’Reilly
The net issue is the common good. In the case cited by Deputy Kirk, with which I am not familiar, there were two views of what the common good was. Deputy Kirk had a particular view of it. An Bord Pleanála and not the Office of the Ombudsman is the ultimate arbiter of where the common good lies. I cannot intervene there, and certainly not in advance. I can look at the administration of the planning process but I cannot second guess or overturn a decision of An Bord Pleanála, which exists precisely to decide and make adjudications on such issues. If the planning process is carried out correctly, whereby everyone is informed of what is happening, planning notices are put up, sufficient time is given for people to make objections, everyone is notified that objections are being made, time limits are correct and everything is done properly, the next step is for An Bord Pleanála and not for me. In planning terms, the board is the arbiter of the common good.
No public body ever says it has sufficient staff. As a result of the extension of my remit into the areas of health and disability, I requested an additional 28 staff and that has been agreed to. I look forward to welcoming new staff to the office as we get to grips with the extension of the remit.
The facility for an oral hearing is in place. People who use the office know that much work is done by e-mail, telephone and so on. If necessary, we can meet people face to face and discuss issues with them. The term "oral hearing" sounds legalistic. I like to think the office works on a more informal level. Occasionally we have a quite formal interview if the issue is vexed or difficult to adjudicate on. It does not tend to happen often. Most of the complaints can be dealt with at a lower level and in a much more informal way.
It is my interpretation of the Ombudsman's brief that if, for example, a complaint is made regarding maladministration by a local authority or An Bord Pleanála, her office has the power to look into it. Is that a reasonable interpretation?
Ms O’Reilly
If there is maladministration through the planning process.
If a third party objector avails of a weakness in the planning system to achieve an objective contrary to the common good, the Ombudsman's brief does not extend that far.
Ms O’Reilly
That is a matter for the Legislature.
I accept that but does Ms O'Reilly accept my point?
Ms O’Reilly
I can examine complaints of maladministration by local authorities. An Bord Pleanála is not within my remit. Such a case would have to go to the courts and not to me. My involvement in the planning process is limited to maladministration on the way up to An Bord Pleanála and stops at that point. If An Bord Pleanála makes a decision that people believe is against the common good they may appeal to the courts but not to my office.
I was going to ask the question asked by Deputy Kirk. My secretary has been doing her job for 18 years and was employed by my father before me. She knows more about government than I ever will and is a big fan of the Oireachtas. We use the office quite regularly. Ms O'Reilly has requested that her office's remit should expand into the area of justice and administration. Has there been progress in this regard?
Ms O’Reilly
No, that area is closed off.
That is it as far as health and disability are concerned.
Ms O’Reilly
Health and disability are the areas to which the remit has been extended. There is no suggestion that the Administration is open to it being extended to sensitive areas such as asylum, immigration, prisons and son on.
Our only complaint with the Office of the Ombudsman is the length of time it takes to get a response in some cases.
Ms O’Reilly
I am hopeful that the additional staff will help cut down on such delays.
I believe the Office of the Ombudsman has a remit in the administrative area of pre-planning. This relates to the practice of planners meeting and giving information to applicants on planning applications that have been made. I have come across many cases where people have spent €10,000 to €15,000 as a result of such a meeting only to be refused subsequently. Planners may give people reason to spend money, carry out drawings, make applications and so on.
Ms O’Reilly
Is the Chairman referring to local authority planners?
Yes, and I have often raised this issue with local authorities. They put a disclaimer in planning applications as a result of this practice but it has not worked. In many cases meeting planners in pre-planning meetings is financially detrimental as the wrong messages may be conveyed and a great deal of money may be wasted on an application which is subsequently refused. This can be a case of maladministration. We were to write to the Office of the Ombudsman on this issue but I felt I should raise it while I am here since Deputy Kirk mentioned it.
Ms O’Reilly
This is interesting because people in my locality have gained confidence in the success of a planning application based on pre-planning meetings, only to be gravely disappointed. The only way I can investigate such issues and explore how the process arises in the first instance is if I receive a complaint. This is the only avenue I have to study the relevance, importance and status of the disclaimer and the redress open to people who receive a negative response to a planning application. I would welcome such a complaint if the Chairman considers this an important issue.
I have about ten outstanding complaints and I will send in a couple.
Ms O’Reilly
I hope I will get my staff soon.
Mr. Diamandouros
I suppose the wise course of action for me is to keep out of an area that has nothing to do with my remit. However, since I am here and can profit from this discussion I will give the comparative perspective, though I can say nothing on the Irish context.
These issues exist everywhere and all ombudsmen must deal with the dilemma of deciding what is maladministration and what is, to use a term that does not exist in the English language, "mal-legislation". We have no remit to address bad legislation, all we can do is draw attention to it and ask that it be changed. What has been described is experienced by all of my colleagues at national level and often it is evident in the environmental impact assessment exercises which relate to EU environmental law. An obstreperous citizen may identify a moment in the administrative phase of an application where something went wrong and invoke it to block the system. The ombudsman can intervene, as Ms O'Reilly said, to the extent that it concerns the administrative phase of planning. Sometimes it is difficult to make a distinction between the realm of political discussion of the deciding authority and the administration.
There are two rules of thumb. The ombudsman must make an assessment as to how much discretion is reasonable and does not involve abuse or manifest error. We must adhere to legislation which gives planning boards, selection boards, recruitment competitions and so on a significant degree of discretion and has been supported by case law in the courts of most EU countries. Our remit is confined to determining whether there was manifest error in the decision of the political body concerned or an abuse of discretion because it exceeded the terms of the competition. In those countries where the rule of law is entrenched, this area is clear and the ombudsman may not become involved. In those countries where it is not, the ombudsman may verge into these uncharted waters. Whether this is good or bad for democracy, the ombudsman and the rule of law is for another discussion.
I thank the Chairman and apologise for leaving for a vote. The issues I am about to raise may have been mentioned in my absence.
In the past 20 years or so almost every citizen has become aware of the existence of the Office of the Ombudsman. We all deal with people in our clinics who have gone through the system, the Department of Social and Family Affairs, the Department of Agriculture and Food and so on, and many know that the Office of the Ombudsman represents a court of final hope. It is generally used to good effect and I congratulate Ms O'Reilly and her predecessors on their work.
The challenge facing the European Ombudsman is not only to progress from 25,000 to 50,000 cases but also to ensure the citizens of Europe are aware of the existence of the office. I do not think the level of awareness is reasonable, although it is no reflection on the work of Mr. Diamandouros or his staff. Fortunately, the European Ombudsman did not embarrass each of us by asking if we were aware of the existence of his office, as I would have been forced to lie.
My colleague, Deputy Costello, spoke about public cynicism relating to the entire European project and its institutions. I do not think this is a case of cynicism but rather a lack of awareness that extends to the Office of the European Ombudsman. He might inform the committee of how he intends to remedy this situation.
Ms O'Reilly spoke of our failure to provide for the constitutional status recommended but this does not appear to deter those people who contact the Office of the Ombudsman seeking help. Would constitutional status add significantly to the office's ability to respond or to public awareness of the office? Is there something the committee or the body politic should do to help take this final step? Is dialogue taking place on this issue?
Ms O’Reilly
This has been an issue for a while. As Mr. Diamandouros has stated, many EU member states give constitutional status to the ombudsman. The purpose is to emphasise the importance of administrative accountability. Most people can understand financial accountability, which is the purview of the Comptroller and Auditor General, a constitutional officer. People put administrative accountability in second place, perhaps because they do not fully understand it. However, they do understand money. Administration, specifically public administration, is a slightly more woolly concept which they do not quite grasp. They may grasp it through the case in which my office, my predecessor in particular, was involved, the one relating to nursing home charges. My office pointed to what it saw as the illegality of the charges. The situation was clear to us. That was an administrative matter. What was happening through various Governments and Ministers was that, for whatever reason, everybody was refusing to see the regulations did not match the law, effectively making them illegal. Eventually, the matter went all the way to the Supreme Court which ruled on it. The end result is a very large bill for the taxpayer. That is my point — in many ways administrative accountability is just as important as financial accountability. In the end it all comes down to money and finances. If the office was given a constitutional focus, it would highlight how important good administration is, as well as the value of good administration. If we had a sharper focus on this issue, it could only benefit administration and people who live here. Clearly, I would welcome the support of the committee. I welcome the comments made.
Mr. Diamandouros
I thank the joint committee for asking a very difficult question. I am not ill at ease in telling it I take it for granted that the majority do not know of the existence of the European Ombudsman. That is the great challenge for me, notwithstanding the fact that I have travelled to all 25 member states, some more than once. There has also been a significant increase in the number of complaints.
It is not very nice to be envious of the committee's colleague, but it would be very nice if I received at the level of the European Union which is somewhat larger than the Republic of Ireland the recognition enjoyed by Ms O'Reilly. Having said that, what measures are we taking to rectify the situation? Essentially, I am trying to reach out to citizens in multiple ways, including physical information tours which take up a great deal of my time; the creation of a variety of printed materials which can be disseminated widely; and changing and significantly overhauling my website to make it interactive and much easier for citizens to become informed about the European Ombudsman. I also work very closely with my national and regional colleagues in trying to mobilise knowledge of the ombudsman institution in general, irrespective of the level within the union about which we are talking, be it regional, national or European. Ultimately, the citizens are the beneficiaries of the institution when it functions well everywhere. It is a combination of strategies involving the resources of my office, collaboration with my colleagues, reaching out to the press, and travelling a great deal. What I am trying to do is draw a distinction between targeting the general public and specialised target audiences.
Clearly, reaching the general public is an absolute necessity. However, the general public is likely to generate very high levels of inadmissible complaints because most people do not understand the difference between European law being violated at the national level or European level. Therefore, what I am trying to do now is identify particular constituencies of likely complainants, such as small and medium-size enterprises, chambers of commerce, and industry and non-governmental organisations specialising in the environment.
There is also the issue of invoking the principle of subsidiarity and the logic that, within member states, European law is being applied on a daily basis, primarily by the judiciaries and public administration. In this respect we will target judges, schools of judges, judiciaries, public administrations, national schools of public administration and faculties of universities involved with public administration, law and political science. We explain to them what the European Ombudsman is, the purpose of the ombudsman's institutions and the differences between them.
There is a wide range of instruments being used currently in trying to reach out and identify potential complainants, so as to be able to increase both awareness and the number of admissible complaints that come to us. I am relying on co-operation from my own colleagues in doing this, and that is the reason I have meetings with my national colleagues every two years. In alternate years I have meetings with my regional colleagues. The European Ombudsman meets with colleagues every year, either at national or regional level, with an eye to reaching out and using them as multiplier mechanisms for reaching other citizens.
I wish to comment on the constitutional status from a comparative perspective. I do not want to address matters particular to Ireland. According constitutional status to an ombudsman has two major positive implications. The ombudsman is an institution which stands or falls on its moral authority. The higher its moral authority, the greater its capacity to convince and persuade. In those countries where it is being accorded constitutional status, its moral authority is commensurately enhanced.
This may not be very important in countries such as Ireland, where the rule of law is deeply entrenched and democracy is thriving. It is much more important in countries where that is not the case, and where a simple legislative majority could change the law, thus disempowering the ombudsman. If the power is in the constitution, that cannot be done. It is therefore extremely important that the ombudsman has the additional authority and security that will allow him or her to be able to act independently and not be fearful of potential modification of the legislative mechanism or structures affecting his or her job. This is a reason it is important to have the ombudsman enshrined in the constitution.
I know the witnesses have to leave. I have just looked at the geographical origin of complaints, to follow up on Senator Bradford's question. If a person is from an island nation in the Mediterranean, that person is five or six times more likely to have made a complaint to the European Ombudsman. Malta and Cyprus, for some reason, are way ahead of everybody else. Is there a reason for this?
Mr. Diamandouros
It has nothing to do with the European Ombudsman coming from the Mediterranean. I do not wish to be facetious. The table being looked at by the Chairman has a column on the far right indicating the rate. The explanation is that the statistics we have produced have a double potential. We take the number of complaints and see what percentage that is of the total number of complaints, and then it is calculated per population. Very small countries will inevitably have a higher percentage. There are 40 complaints from Malta, with a population of 250,000, which is a very high percentage compared with 1,000 complaints in Germany. That is the reason.
Mr. Diamandouros mentioned that, in his opinion, judges in many cases do not understand or are not trained in European Union law. How widespread is that? Should judges be better trained, and should all member states take that on board? Is this problem evident in most member states? It is an important comment.
Mr. Diamandouros
I hope I do not sound like a broken record. It is very much a function of the degree of infringement of the rule of law and democracy in a given country. Where there is rule of law, judges are, by definition, better informed and better trained. Where there is no long tradition of the rule of law and familiarity with democracy and fundamental rights, there is a certain degree of lack of familiarity. Therefore, the post-Communist democracies face much greater challenges as they try to incorporate these values. How this is played out remains to be seen in the European Union, as the more recent democracies, as opposed to the older ones, also face similar problems.
I thank the delegation for attending.
Sitting suspended at 3.50 p.m. and resumed in private session at 3.53 p.m. The joint committee adjourned at 3.55 p.m. until 3 p.m. on Wednesday, 15 November 2006.