I welcome Ms Paulyn Marrinan Quinn, senior counsel, Ombudsman for the Defence Forces. We will receive a presentation, followed by a question and answer session. Members of the committee have absolute privilege but that privilege does not apply to witnesses. The committee cannot guarantee any privilege to witnesses appearing before it. Further, under the salient rulings of the Chair, members should not comment on, criticise or make charges against a person outside the Houses or an official by name or in such a way as to make him or her identifiable. I invite the ombudsman to introduce herself and her colleague and to make her presentation.
Defence Forces Ombudsman’s Annual Report 2007: Discussion.
Ms Paulyn Marrinan Quinn
Thank you, Chairman. I have pleasure in introducing Mr. Patrick Mulhall, who recently joined my office as assistant principal officer. He is the investigator in the office and our most senior person. I welcome this opportunity to talk about the inception and the progress of this office, established under the Ombudsman (Defence Forces) Act 2005. I was appointed in September 2005 and the office became operational on 1 December 2005, after which complainants were eligible to come to the ombudsman with their complaints. This is a good opportunity, with two annual reports under our belts, to appraise the contribution the office has made, its significance and the contribution of the people who supported its inception. From last year's figures in the second annual report, the need for the office was very definitely vindicated.
One might ask why the need for such an office arose. It was the fourth statutory ombudsman's office in this jurisdiction. We had the first Ombudsman in 1984, then the Pensions Ombudsman, the Ombudsman for Children, the Garda Síochána Ombudsman Commission and now the Ombudsman for the Defence Forces. My office is unusual in that it serves a particular class of people, members of the Defence Forces, while the other ombudsman offices deal with complaints from the public about a body.
The reasons the office was established have a long and interesting history. This is an important opportunity to pay tribute to the late Mr. John Lucey who was the secretary general of the Permanent Defence Forces Other Ranks Representative Association, PDFORRA, for many years. He was an esteemed member of PDFORRA and campaigned for many years for the introduction of an Ombudsman for the Defence Forces in Ireland. He died tragically around 2004 and is sadly missed, but people feel he would be very pleased to see the office established. With an idea such as that and a lot of impetus and punch from PDFORRA and people of Mr. Lucey's stature, people might wonder what gave it the final impetus.
Around 2000 there was what might be called a scandal. Fears were expressed about allegations of bullying and harassment in the Defence Forces, which were made public, and Dr. Eileen Doyle was appointed to investigate those. Dr. Doyle produced her first report, The Challenge of a Workplace, in 2002 and it is safe to say her report concluded there was reason to believe there was little faith in the internal grievance procedures in the Defence Forces. As a result of that there was the final push to establish this office.
Looking through the Dáil debates when the then Minister, former Deputy Michael Smith, brought the Bill before the House for debate, it was unopposed. It is very interesting that there was no opposition to the establishment of this office and it seems to have been generally welcomed. The significance is that one provides what writers and authorities throughout the world regard as an extremely important feature of a democracy, namely, civilian oversight of the administration of the military organisations. Some commentators would say it is a democratic imperative. The Centre for the Democratic Control of Armed Forces in Geneva, in its debates on the pros and cons of having military ombudsmen around 2004, strongly urged the member countries to consider having such an office. That is not only because it provides an impartial and independent means of providing redress for members of the defence forces, the implications and benefits are far-reaching. It gives members of the public a greater confidence in the operation and organisation of the defence forces because of the transparency and accountability that comes with civilian oversight of the complaint handling and administrative matters.
Having thanked the committee for the opportunity to speak, I should have warned that when I talk on the subject of ombudsmanship I am inclined to talk for too long. I must correct myself and keep within the time constraints. I am very conscious of keeping within the committee's time constraints and I want to give members the information they need rather than wax lyrical about this office and talk about it in the way I am inclined to do.
The location of the office has been a bone of contention from the outset. As I said, I was appointed in September 2005. I worked from my home and private office until the office became operational on 1 December 2005. I took offices in the Bar Council Distillery Building in the centre of Dublin and operated from there. It was only in the following June, 2006, that the first member of staff was seconded to my office. I had looked for open public recruitment and there were difficulties about that. There were also staffing difficulties at the beginning of 2006 because of the decentralisation implications. There was a Dublin surplus and there were questions about whether the office had to take from that surplus. The first person, at higher executive officer level, was sent to me in June 2006. I had no offices, so I asked the Bar Council if I could be accommodated in its premises. Mr. Jerry Carroll was very amenable because the offices are very much in demand and I was provided with three rooms opposite my room on the corridor on a short-term ad hoc basis. One of the small rooms was for the HEO, the middle room was for meetings and there was one for the assistant principal officer, if and when such a person came on board.
It was not until the beginning of 2007 that we occupied three rooms on the first floor of a building on Hatch Street in the centre of Dublin. These are inadequate, inappropriate and do not serve the needs of the office. I can go into that in more detail but that is a matter of record. I alluded to this on a number of occasions, particularly recently. We are now in a position, as the committee will see from the figures from when we open up development of the office, where expansion is needed in order to meet the needs of the complainants in the cases with which we are dealing.
I will not speak too long and will call on Mr. Patrick Mulhall to fill in any gaps I leave in the information provided. He is welcome to make any contributions during the course of my speaking. The pack supplied to the committee includes the annual report of 2007. Mr. Mulhall and I have put together the salient facts of the operation of the office for 2006 and 2007, showing on one page how activity increased from 2006 to 2007. There was nearly a 200% increase in case loads from 2006 to 2007.
Another section of the report may be of assistance when I refer to the difficulties regarding redress in general. This document is called The Life Cycle of the Complaint and it demonstrates the stages through which a grievance travels before it comes to the ombudsman. The bronze portion shows how a complaint comes to the office and the green portion demonstrates the journey taken by the case as it goes through the redress of wrongs procedure.
To give an idea of the way a member of the Defence Forces must go about putting in a complaint, the redress of wrongs procedure arises from the 1954 Act, which provided for a means for a member or officer pursuing grievances through the redress of wrongs. In essence, it is a hierarchical chain-of-command structured complaint handling process, consistent with similar organisations with similar structures. People objectively commenting on complaint-handling procedures would say they are in many ways constricted by that to the degree that the complaint keeps going up the line. The result is that when a complainant puts in a complaint, it goes up as far as the GOC.
If it cannot be resolved locally — there is a commitment from the Defence Forces to do everything possible at local level to resolve the matter — it goes to the GOC which then appoints an investigating officer who looks into the matter and produces a report and what is described as a considered ruling. If the complainant is unhappy, he or she can refer it to a higher authority and it then goes to a chief of staff. The chief of staff considers the case, reviews what has been done up to then and issues a considered ruling. That is a solemn and serious ruling or adjudication on the case.
Hitherto and prior to the initiation of the new legislation and establishment of ODF, as we call it, the complainant could then bring the matter to the Minister, which was the only course of action open. Several significant issues arose when this legislation came into force. By law, the ombudsman must be notified of every complaint made by a member of the Defence Forces. That is an extremely important and powerful part of the legislation as there is a tracking of all complaints. The ombudsman and Minister are now, by law, advised of the complaint.
At that point the ombudsman only knows there is a complaint by a particular sergeant, for example, about an alleged action which is said to have occurred on a particular date. The unit is noted and it is signed off at a senior level in the enlisted personnel office in Defence Forces headquarters. I am advised of it. This is the stage of notification of complaint, NOC, as seen in the report presented to the committee.
The matter is logged on my system and at that point, the complaint goes through the internal grievance procedure within the Defence Forces. If at the end of that the complainant is unhappy, it can be referred to me and the complainant would advise the Chief of Staff that he or she wishes to have it referred to the ombudsman. When it arrives on our doorstep it falls within our jurisdiction.
I will allude to a number of issues regarding the time taken in the complaint's journey. If it is of interest to the committee I can deal with it in more detail when members ask me about it. I have taken a random sample and I have details which I would be pleased to summarise. I can send on any further information if the committee so wishes. Based on a sample of 18 cases where I have issued a final report this year that has a response from the Minister for Defence, we did an exercise to see where delays are occurring and how long it is taking for a complainant's case to be processed.
It is approximately 130 days from date of submission of the redress of wrongs before it comes to the ombudsman, which is an indication of the kind of time it can take. The average time it is in my office until I issue a preliminary view report, which is the first document, is 100 days. This is with regard to the 18 cases which have gone through the system recently. There is an average length of time for the Defence Forces to respond to the preliminary view report, which looks for clarifications, more evidence or information. The complainant and Defence Forces make replies to that.
On foot of those replies and further information it comes back to me and I look at the case again before issuing a final report. There is an average period before it goes to the final report of 201 days. The average length of time for the Minister to respond to the final report by the ombudsman is 78 days. If the total time is calculated from the conception of the complaint, the average comes to 409 days. I am concerned about that as it is a very long period for a complaint to be in transit.
The reason I gave these figures, which only relate to 18 sample cases from this year's figures which have seen a response from the Minister, is that at the launch of the second annual report in June I put out for discussion the issue of remedy, which I should mention to the committee. As the committee can see from the figures which have emerged over the two years, most cases being put forward are connected with career advancement, dealing with promotion or career courses.
After a few months in the job it began to dawn on me that even leaving aside all other delays that may occur in the complaint's transit, by the time the case came to the ombudsman an overseas posting — if that was the content of the complaint, for example — would have happened. Similarly, somebody else may have been promoted and a career course may have been under way for some time.
I became relatively concerned about the effectiveness of the office and the question and challenge it threw up in providing a remedy from my office. I cannot demote a person who has already been promoted without creating a further wrong or indicate a person should be sent on an overseas posting because the boat would have left already. We put this out for discussion at the launch of the second annual report and I am glad that since then and relatively recently, I had meetings with a number of members of the Defence Forces at a high level and the Department of Defence to address the remedy issue and how the ombudsman can provide it for somebody who has been found to be wronged. In the course of that conversation I also wanted to address the issue of how we might speed up the process.
It would be dangerous and difficult to talk about the ombudsman's role in providing a fast-tracking process or being able to intervene in some way when there already exists a statutory framework within which the redress of wrong procedure currently operates. Nevertheless, it is an old piece of legislation and a review might be considered. This would be a positive step. The Chief of Staff was not at that meeting but I am pleased to say that just a couple of days afterwards I received a letter saying that he understood this matter had been raised and that he would welcome any opportunity to speed up the redress of wrongs process. I put this out as a point that is worth discussing.
The office has been identified as a very important model in Europe. There has been quite a lot of interest. We mentioned in the annual report for 2007 that I had meetings and given briefings to members of other jurisdictions from Asia to Europe which had expressed an interest in having an ombudsman for the defence forces. Members can see there is an opportunity here for Ireland to demonstrate a lead on this. Many of the countries in the OSCE were very impressed to see that Ireland had an ombudsman for the military.
I alluded earlier to the Centre for Democratic Control of the Armed Forces debating this matter many years ago. At relatively short notice, at the end of 2006, I was advised that the OSCE was working on a handbook — a significant piece of work — called Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel. I was asked if I would make an input into the handbook because the OSCE had only relatively recently heard that Ireland had such an ombudsman. I was happy and privileged to attend a meeting in Warsaw and join what was described as an expert group on the handbook. I reviewed a number of chapters and worked with the other members of the expert group, and I am even more pleased to say that the handbook was launched in Vienna last May and I was invited to give the keynote address at the launch.
It is important for us to note that Ireland has an opportunity here because it was one of the first common law jurisdictions to have a designated ombudsman for the armed forces. There is an opportunity for us to step up to the plate and provide the information from our experience to other jurisdictions who are considering going down this route. Our next-door neighbour, the UK, has been under quite a lot of pressure for various reasons over the last number of years to have an armed forces ombudsman and has declined to do so. However, relatively recently a commissioner for complaints was set up. It is not an ombudsman such as ours and does not have powers of adjudication or investigation.
It is interesting that the UK approach merely provides a method of monitoring, a conduit and a safeguard to see that all complaints are monitored, whereas we have that by virtue of the notification of complaints, by law, to the ombudsman. Thus, we have reason to be proud of the work of Oireachtas Members as legislators in putting the office in place and passing the legislation. There is in-built in the Act a provision to safeguard complaints in the system. The commissioner in the UK has expressed great interest in coming over to look at our systems and learn from what we have been doing.
I am also pleased to say that although I have——
I apologise for interrupting, but I would like to know how long Ms Marrinan Quinn's presentation is as I would like to allow the members to ask questions.
Ms Paulyn Marrinan Quinn
I could end it there, as we have covered the salient points. Questions may be of more benefit to the committee.
I welcome Ms Marrinan Quinn and Mr. Mulhall to the committee and congratulate Ms Marrinan Quinn and her staff on the establishment of the Office of the Ombudsman for the Defence Forces, which is highly regarded internationally. The fact that it was mentioned by the OSCE and included in its handbook indicates that it is held up as an example for other jurisdictions. The existence of the ombudsman's office ensures that those in authority are far more careful about making decisions than they may have been previously. In addition, it reassures people that decisions are being made in the right way and that people are getting fair treatment. The fact that it is there has probably influenced decisions in recent years.
My concern is that if this ombudsman's office is unique and an example to other jurisdictions, it seems a major anomaly that it is operating in the type of building in which it is currently. The building was referred to as a "sick building". That means that there are no proper air filtration systems and that it is too warm in summer and too cold in winter. It is not a healthy place for the staff. There is probably a health and safety issue that should be considered.
I am sure the OPW has the responsibility for providing the staff with an office. What is it doing about it? Surely this is a matter of major urgency. I will be suggesting that the committee issue a recommendation supporting Ms Marrinan Quinn in either upgrading the existing accommodation and making it acceptable or moving the office to a different location. I am sure there is plenty of office space elsewhere. Everywhere one looks, there are offices to let. That is an important issue from the point of view of the health and safety of not only the staff but also of visiting deputations from all over the world. Ms Marrinan Quinn may comment on this if she so wishes.
The other issue is that of staffing. Ms Marrinan Quinn has answered the questions about the delay, but a wait of 409 days from the time of making a complaint seems unfair. What is the solution? Is it more staff? If the office had a proper staff complement, could that period of time be shortened considerably? Even in the event of the office's being unable to take on staff due to an embargo, is there any possibility of using short-term contracts, for example, whereby if there was a lot of work to be done the office could take on experts in the short term and process greater numbers of cases?
We have the figures for cases in 2006-07, and there is a substantial increase. What is the trend to date? Does Ms Marrinan Quinn have figures? Are the numbers increasing?
Ms Paulyn Marrinan Quinn
My colleague Mr. Mulhall has just handed me the figures. Mr. Mulhall may wish to talk on that.
If the numbers of cases referred to are on the increase and the office does not have enough staff to process them, this period of 409 days could become longer. Perhaps Ms Marrinan Quinn might suggest a remedy. There are other ombudsman's offices in the country. Has Ms Marrinan Quinn done a value-for-money audit on the processing of cases in her office compared to these other offices? Is that possible? It could consider staffing arrangements, the number of staff available and the number of cases processed.
In previous years some of these cases would have gone through the courts system. The fact that they are going through this office means they do not have to go through the courts system. When the office finishes a report, does the individual concerned have recourse to the courts if he or she is not satisfied? If the report goes to the Minister and the Minister accepts it or not, is there then recourse to the courts? The ombudsman may already have given the figure. How many cases are involved? What percentage of decisions will the Minister uphold in terms of accepting her recommendation?
Before I return to the ombudsman, I have an addendum to one of Deputy Deenihan's questions. He asked about current office space. When she replies to that question, the ombudsman might clarify if the office is tied into a long lease.
Ms Paulyn Marrinan Quinn
I thank Deputy Deenihan for offering a number of relevant and helpful openings which the office can address. Working backwards, there is no lease on the building. We are in a building occupied principally by the Department of Finance, where we have three rooms on the first floor. We are not in any way tied into anything. When I took possession of those premises in 2007, we were advised that the Department of Finance was leaving to relocate. It later became obvious that the building is used to house a number of small bodies and people seem to come and go. Now it is stated that Department of Finance personnel are about to move in greater numbers. I wrote to the Minister about this matter recently because it is significant.
The building's health and safety, fire and other responsibilities, including security at the door, are all part of the bailiwick of the Department of Finance. Clearly, if I were to be left behind after a major evacuation of the Department of Finance personnel, those responsibilities would fall to my office and we would not have any provision or resources to cope with the situation. The building is inadequate.
The Minister has supported me in my plea to the OPW, as Deputy Deenihan rightly remarked. The OPW is responsible for the premises. The Minister for Defence, Deputy O'Dea, has strenuously supported my efforts to be rehoused and has done so as matter of urgency relatively recently. We are very frustrated. I will ask Mr. Mulhall to discuss the figures with regard to delays because we are very concerned about the delays and about the fact that the period of 100 days, or the days within my jurisdiction, clearly would be improved if we had extra staff.
Around this time last year, I raised the alarm about these matters with the Minister. As members will see from last year's annual report, we undertook an internal capacity review in the middle of that year, based on the figures to date. Given that they were rising at such an exponential rate in the first quarter of 2007, I knew I was in for trouble. We subsequently advised the Minister that trouble was on the way. He asked what the other options might be if the office could not get more staff through the normal channels, whether through tardiness or in the case that the Department of Finance is reluctant to appoint people at present.
I put to the Minister the possibility of having people brought in on a short-term stagiaire basis because I know of other colleague ombudsmen who do this. The Minister approved of this, on the basis that it was a good idea that made a lot of common sense and was also very good value for money. However, I am caught both ways. I told the Minister that the situation would be fine if I had somewhere to put extra people but we do not have desks for them and are caught in that respect.
The concerns raised by the Deputy about the delays are paramount given that I am responsible for the time that a case is within my jurisdiction. Members should bear in mind what I said about the delays which are an inherent part of the structure. I read some of the Dáil debates last night and recalled that the then Minister, former Deputy Michael Smith, in introducing the legislation, said that this would be a modernisation of the way grievance procedures are handled within the Defence Forces. It concerns me that although this may be the case in one sense, if it is then added to a redress system which itself perhaps could benefit from review then it is not serving its initial purpose as speedily as possible.
I will ask Mr. Mulhall to address the figures.
Mr. Pat Mulhall
Based on our quarterly operational reports the figures in the year to date seem to be increasing with regard to notification of complaints. In respect of queries received in the office, we appear to be on line to get more or less the same number of queries as we would have got in 2007. There seems to be a small reduction to date in notification of appeals but these are figures for three quarters and we will not really know the total figure until the end of the year.
From an operational perspective, we are ahead of our output for last year by approximately 20%, in terms of preliminary review reports and final reports. In other words, the output of the office will have increased by that percentage by the end of the year.
How many complaints have been received?
Mr. Pat Mulhall
For the first three quarters we have received 165 notifications of complaints.
I will address another point referenced by the ombudsman with respect to our current accommodation. The OPW, which has responsibility in this matter, has suggested a property which we have inspected. We are currently going through an assessment of it. On a preliminary viewing, it does not appear to suit our needs but we are awaiting queries from the OPW to confirm its suitability. The footprint seems to be smaller than our existing area and in essence it would appear that we would repeat the problems that we have at present. I stress that this is our preliminary view.
The Deputy asked about benchmarking in terms of staffing levels and output. We did an exercise that compared our staffing levels and service levels to those of our counterparts in the Canadian ombudsman's office. That office looks after the defence forces in Canada. Based on our analysis, we appear to be servicing more defence force members per member of staff than our cohorts in Canada to the order of 4:1. In other words, four times fewer members of defence force personnel in Canada are supported by staff members in their ombudsman's office. We also service twice as many complaints. In the Canadian ombudsman's office, each member of staff services 22 complaints per annum. In our office every member of staff services 42 complaints per annum. Based on that comparison, we believe our productivity is fairly good.
Ms Paulyn Marrinan Quinn
Deputy Deenihan asked about the response from the Minister to the final report. I am very conscious of time and am sorry for overrunning at the beginning. In 2007 we reported that of 29 final reports the Minister had fully accepted 59% and had refused 24%. Another 17% were cases that did not require the Minister to act on foot of a recommendation or finding from the ombudsman because they were out of the jurisdiction. I thank the Chairman.
I welcome the ombudsman and Mr. Mulhall. I do not intend to go back over ground already dealt with by Deputy Deenihan and will begin with a general comment.
I have been intrigued from the beginning with this office because the Ombudsman for the Defence Forces deals with the Defence Forces and military life and there is a specific culture there. There are issues such as national security, military intelligence and so on which may be relevant. Has the ombudsman full powers to access all information sought on any case? Are there restrictions regarding issues of national security? There were initial fears about bullying and harassment, yet the number of appeals to have reached the ombudsman appears to be very low, with none in the first year and four last year. Does this give the lie to the fact that there were many concerns initially about harassment and bullying?
Another issue is maladministration. This is an area in which complaints have grown rapidly, from five in 2006 to 29 in 2007. Is the trend continuing this year? Where is maladministration happening? Is it strictly within the Defence Forces or does it relate to the Department in any way? Another matter that intrigued me was the notable increase in the use of the office of the ombudsman by senior ranks. Some 17 of the 76 cases referred to the office concerned the rank of lieutenant or higher, which is interesting. Is this a trend and what does it signify? The bald figure does not tell the whole story.
Very few of the appeals have come from the Reserve Defence Force or from former members. Political spokespersons receive letters from former members, but it seems such letters do not reach the office of the ombudsman. How many of the complaints which initially come through from the internal complaints procedures are frivolous or vexatious in nature, or are such complaints filtered out by the time they reach the office? How many are real complaints? Is there a culture in military life whereby one does not tell, let the side down or provide the information because it would be considered disloyal? Is this a feature of complaints with which the office must deal?
I refer to the remarks of Mr. Mulhall concerning the ombudsman's office in Canada. I do not know how long that office has been in operation. There is an increase in the number of cases for the ombudsman, but it seems the numbers this year will be similar to those last year. Is there a trend whereby fewer complaints come through after several years in operation? That may be the case because of frustrated complaints which have been in the system for a while and which are worked through at the beginning? Is there any international evidence to suggest once the office of the ombudsman is working well, the number of cases referred to it tends to diminish?
The delay of 409 days in dealing with a case referred to is unacceptable. Does the ombudsman see any merit in seeking to agree guidelines for the amount of time in which certain functions must be performed, with the Department, the Minister and the armed forces? Unless a structure is laid down requiring a response to matters within a time limit, there may be a tendency, with the best will in the world, for matters to drag on. Does the ombudsman believe there are deliberate delaying tactics at any level within the structure with which she is dealing?
Ms Paulyn Marrinan Quinn
I thank the Deputy. I will begin by addressing the final questions. There are very strict time lines in redress and grievance procedures within the military at present. There are very strict guidelines detailing what should happen at each stage of the process. Since I began work in the office, I have examined why things take longer than they should. I plead the case that it is sometimes very difficult for the military to contact the investigating officer or the complainant, so there are inherent good reasons that delays occur. That is notwithstanding the fact that there are very strict time guidelines.
The Deputy referred to many issues and I wish we had longer to discuss all of them. However, one very important point is that within the redress of wrongs procedure, the complainants are not bound by any time lines. They can sit on a considered ruling or a decision for a very long time without doing anything about it. That is a historical fact and it is one of the very interesting areas where the establishment of an ombudsman's office with its timelines and its attendant regulations can aid, assist, improve and modernise the processes. This addresses one of Deputy O'Shea's questions about former members of the Defence Forces. Under the Act, a person must complain to the ombudsman within 12 months of the alleged action or within 12 months of becoming aware of the action. That explains why many former members find they are outside the remit of the office, as the action is long since past. Since that timeline exists for complaints, it has brought attention and focus on the fact that sometimes, because of the historical reality, members of the Defence Forces can sit on a decision from the general officer commanding, GOC, for a while without being sure what to do about it or whether to accept it. This came about following my inquiries.
In a case where I could see the one-year deadline running out, I would alert the Defence Forces that I have notification of a complaint, that the alleged date of the action is such and that if nothing comes up to me soon the person concerned will be precluded from proceeding. This was how I found out about certain military procedures. The Defence Forces would reply saying that a complainant had the considered ruling of the GOC and has not indicated whether he or she is accepting or rejecting it. That is one example where the office of the ombudsman can address the kinds of anomalies that may exist between the two offices. This covers the point about the Defence Forces Reserve and former members who have not made contact.
Deputy O'Shea's preliminary question concerned security. There are right and appropriate exclusions under the Act to prevent the ombudsman inquiring into any matters of national security or other sensitive matters. Apart from such instances the Act gives immense powers to access information. Anyone who in any way obstructs the ombudsman in the search for information is on a par with a person obstructing the High Court and such action is the equivalent of contempt of court. Therefore, there is full access to any information required.
There are other very good provisions in the Act, and the legislation is much the envy of the National Defence and Canadian Forces Ombudsman. The arrangements in place in Canada have been discussed as I have just returned from a study tour of the Canadian ombudsman and we were able to make comparisons. That ombudsman envies the fact that we have well writ legislation. The Canadian ombudsman has many good provisions in place and that office was established in 1998. It has been on the road for ten years. It is the only other country of which I know with a common law jurisdiction that has an ombudsman for the armed forces. It has a set of ministerial regulations under which it operates and for that reason it envies our legislation.
A provision is built into the Act to deal with a case whereby the Minister for Defence attempts to prevent the ombudsman from inquiring into certain areas. The Minister has such powers, but if the ombudsman considers the action unreasonable or in some way a prohibition, the ombudsman has access to the High Court to request it to determine whether it is a reasonable restriction on access to information. That is very well covered in the Act.
The issue of maladministration was raised. Many of the cases which come from the Defence Forces relate to interpretations of the Defence Forces regulations and what are termed admin instructions, which are really the work-a-day interpretations of the regulations.
Many of the anomalies that might arise regarding the provision for a substitute or acting role, whether that is paid or unpaid and whether the person was rightfully denied an opportunity to do something, concern the administration of those kinds of regulations. Rather than have a recording system of the reasons for the complaints that states, for example, "this is about administration instruction 25", they come under a general heading of "maladministration" because they concern administrative matters. We try to segregate them in that way. The other items relate to promotion and other specific categories.
Deputy O'Shea mentioned the numbers of officers who came in last year. When I looked at the figures for the appeals that came to me last year, 18 were from officers, 13 were from enlisted personnel and the bulk, 45, came from NCOs. It was a noteworthy piece of information from last year — noted in the annual report — that officers of a very high rank started to make complaints. My interpretation of that was positive. It is an indication that the office is required and long overdue; it is an endorsement for having such an office established. Very sensitive matters arose and officers who felt they were aggrieved took the opportunity of going to the ombudsman's office to have their matters determined. I was surprised because we, perhaps wrongly, considered officers would not complain.
The issue of bullying and harassment is an interesting aspect of the office. The Doyle report was established in 2000 to examine allegations of harassment and bullying that prevailed at the time. One must bear in mind that the four years before the independent monitoring group presented its report to the then Minister for Defence in September 2004 were packed with many of the recommendations the Doyle report put forward. It then did a very clever thing and did the challenge of the workplace report which made the recommendations, set up the independent monitoring group to review those, which was a wise way to do it, reviewed them and made the final recommendations to the Minister. In the interim it knew A7 was established which dealt with interpersonal relationships within the Defence Forces and it is safe to say we are seeing the benefit of those recommendations and implementations. It was a very speedy response to a very serious set of problems, had they been founded.
It provided designated contact persons and a means of people being able to seek assistance if they were feeling vulnerable and that contributes to the fact that there were no complaints about that in the first year I reported. In the second year complaints began to trickle in albeit a very small number. When they began to trickle in it was timely for me to reflect on the possible existence of a "fear to tell environment". It may be difficult in any organisation to put one's head over the rampart and allege one has been bullied or threatened. If what is involved is a small, closed working environment it becomes even more difficult. I noted the cases I received in 2007 that alleged bullying had occurred were made by former members — people who had left and were retrospectively alleging that they had been made to feel vulnerable or had been treated unfairly or badly.
That raised another issue. When we are protecting those who allege they have been victimised we must have due regard for the person against whom the allegation is made, particularly in a situation where the person making the allegation has left and is making the allegation retrospectively. That focused me, personally and professionally, on the sensitivity of the issues and the difficulties that might arise. We were dealing with a case at the end of last year that was reported in the 2007 annual report, and was ongoing. Regarding the point about cases taking so long, one member in that case was overseas and we had to wait for that person to return before matters could be taken to the next stage. In those kinds of cases there are necessary delays.
Another question was the issue of people joining forces and not being inclined to tell. One of the things I found surprising about the culture of the Defence Forces was that the redress of wrongs procedure is used liberally. I found myself at sessions in my first year — giving talks, briefing people or meeting them — being amazed so many people will complain about promotions or being put on a career course, which is a significant part of the career ladder. One NCO would say "I should have been ahead of person B" while prefacing the comment by saying they are good friends. I found that surprising; if it were me I would dig myself into the nearest hole and would not complain about not getting ahead of a colleague.
I wondered and asked about it, and it informed my lack of knowledge about the fact that the RoW process is seen as a right for members of the Defence Forces. They use it liberally and do not have any difficulty in claiming they should have been promoted or been on the course, notwithstanding the person is working with them. There is no element of vindictiveness which is very interesting.
I join with other members in welcoming the delegation. It has been an achievement to set up this office from a standing start a few years ago. Do we have an accurate figure for the total numbers in the Permanent Defence Force?
Ms Paulyn Marrinan Quinn
Yes, it is 11,500 and the reserve is 11,200. Altogether it comes to approximately 22,000.
Does the ombudsman have figures for their budgetary allocations for the last three years — 2006, 2007 and 2008?
Ms Paulyn Marrinan Quinn
We do. Mr. Mulhall will outline the figures. To clarify the numbers in the Permanent Defence Force there are 10,500 and 11,000 in the reserves. It comes to approximately 22,000.
Mr. Pat Mulhall
On Deputy Mulcahy's question on our budgetary provision, in 2006 our allocation was €350,000. In 2007 it was €367,000 and our provision for 2008 was €567,000.
A sum of €567,000?
Mr. Pat Mulhall
Yes. I can provide our expenditure figures.
If I could refer Ms Marrinan Quinn to the ODF Operational Activity Sheet, the first column is NOCs, and I take it from the other sheet that they are green matters and do not come before her office. Is that correct?
Ms Paulyn Marrinan Quinn
No, that is the notification of complaint, the formal document signed by a complainant and the formal record of a complaint being initiated. Once a notification of complaint is generated it goes through the chain of command and now, under the Act, must go to the Minister and the ombudsman.
Many of those are dealt with in the green box for want of a better description.
Ms Paulyn Marrinan Quinn
Yes, roughly 30% so far of the notifications of complaint are translating into appeals----
Taking the 2007 figure of 168, is the figure of 76 included in that figure?
Ms Paulyn Marrinan Quinn
They are two different years: 2006 is shown in red while 2007 is shown in blue.
I am asking about 2007 where there were 168 NOCs——
Ms Paulyn Marrinan Quinn
I beg your pardon, 76 of those——
Is the figure of 76 included in that figure of 168?
Ms Paulyn Marrinan Quinn
That is right. They go through the redress of wrongs procedure. If they are not happy, again alluding to the question of strict timeframes, the Act also has a provision which provides for a guideline of 28 days. If the case is not dealt with through the redress of wrongs process within 28 days the complainant has a right to refer it directly to the ombudsman.
I refer to the other two columns. In the column for the preliminary view reports, PVRs, is the figure of 39 also included in the figure of 76?
Ms Paulyn Marrinan Quinn
The appeal is when the case comes and the preliminary view report is the first report that I issue.
Does that refer to 39 of those 76 cases?
Ms Paulyn Marrinan Quinn
Yes.
Is that similar to the final reports? Is the figure of 29 included in the 76?
Ms Paulyn Marrinan Quinn
Yes.
With regard to the queries, are they simply queries to the ombudsman's office requesting information?
Ms Paulyn Marrinan Quinn
Yes.
Is it correct that the essential work of the ombudsman's office is contained in those two boxes, queries and ODF appeals?
Ms Paulyn Marrinan Quinn
It is queries, contacts with the office and the cases.
I am trying to ascertain whether those two issues, the queries and the ODF appeals, are the essential workload. Is that correct?
Ms Paulyn Marrinan Quinn
Yes.
Mr. Pat Mulhall
Just to clarify a matter, in regard to the notification of complaints, there is an overhead in terms of work with those in so far as we have to update our system to accommodate queries on them. We open files in respect of all the notification of complaints we receive. It does represent an operational overhead.
It is not the major part of the work of the ombudsman's office. The major part of the work is queries, which are ongoing, and the appeals which the office is hearing. I agree with Deputy O'Shea in regard to the relatively small number of bullying cases. I think this is a question for us and the Oireachtas generally. I was under the impression that the ombudsman's office was to be largely about this issue. Does the €567,000 include the rent?
Mr. Pat Mulhall
No.
Therefore, we are spending €567,000, plus rent, to adjudicate on four bullying issues, plus other promotional issues. I do not have a firm view on that because I do not know how much these things cost. I question why promotional issues, career courses and overseas service, etc., have to come before an ombudsman. Obviously these issues are related to one's career. There are many cases in society where people are aggrieved. The final appeals procedure is internal to the organisation, not external. As I understood it, the rationale for the ombudsman essentially was to deal with cases of bullying. I accept there could be bullying in the context of denying people career courses and so on. I understand that bullying per se cannot be dealt with internally. Perhaps the ombudsman would enlighten me as I presume some of these issues are quite mundane. They are obviously very important to the individuals concerned and I do not underestimate that, but they are certainly not life and death issues. Is it essential that these would be——
Perhaps there would be more bullying were it not for the ombudsman's office.
There is that issue. That is why I support the office of the ombudsman because it is a check and control on bullying. Even if there was no such case, there is an argument for an ombudsman's office in order that people know that if there is bullying, they have redress. I support that. Nevertheless we are left with the fact that there are only four cases of bullying and the State is supporting an entire office that is seeking more staff and more office space. That is worthy of discussion but maybe not today. If there is something I am missing, perhaps the ombudsman would come back to me.
In regard to the 26 and the 76 ODF appeals, are any of those appeals carried over from a previous year or are they all new cases?
Ms Paulyn Marrinan Quinn
Is the Deputy talking about the 2007——
For 2006-2007, are some of the 26 and 76 ODF appeals carried over are they all new cases?
Ms Paulyn Marrinan Quinn
They were noted on that year. They would be cases that came in on that year.
Are they new cases?
Ms Paulyn Marrinan Quinn
Yes.
Is that the same for all of those categories?
Mr. Pat Mulhall
To clarify, some of the notifications of complaints that we would have received in 2006 which would have come in under appeal in 2007 obviously would be reflected in the 2006 figures for NOC but in the 2007 figures for ODF appeals.
Yes, of course, I understand that. I do support the office of the ombudsman and it is a necessary check. There does not appear to be a whole hill of beans in this, for want of a better phrase, except with regard to issues such as promotion and maladministration. These are difficult times and we have to look at the issue of resources in this context.
Ms Paulyn Marrinan Quinn
I thank Deputy Mulcahy. Obviously, a person would feel very concerned and cautious about looking for extra resources in light of the other calls upon the public purse. Nevertheless, I have a public statutory function and a job to do and I have to discharge that function to the best standards possible. It is incumbent on me, therefore, to advocate for the resources to do that adequately. I do that cautiously and mindful of the other calls on the public purse.
Let us go back to the point the Deputy made which worries me a little. It would be wrong to assume that the Office of Ombudsman for the Defence Forces was established purely on the basis of the bullying issue. Perhaps it is my own fault for not doing the introduction correctly and wandering a little in my introductory presentation. There was a long and very substantial campaign run by PDFORRA to have an ombudsman for the Defence Forces for many reasons because it obviously felt the need to have an outside impartial and independent reviewer of the complaints process. Whenever the Dáil report issued, it was the final impetus to that and it speeded up the process. It had been debated and discussed for nearly 12 years if my memory is correct. I recall talking to John Lucey in the early 1990s and he asked me independently on my thoughts about ombudsmanship generally. This matter had been mooted for a very long time. Therefore, it would be wrong to say that we would judge whether the office had fulfilled a particular role in the context of only addressing bullying cases.
The Deputy made a very important point at the end, and I am glad he qualified his comments, that even if there were no complaints, the very presence of an ombudsman acts as a sleeping policeman and prevents abuses. It is internationally recognised — and the former Ombudsman, Kevin Murphy, is on record as saying that, and Michael Mills before him — that most ombudsmen are almost voting themselves into extinction because if the corrections are made, one does not need the office. Nevertheless, the office is fulfilling its function by creating that safeguard and that benchmark against which standards are measured. Any organisation, whenever it provides its services, looks to the precedents and the way cases are dealt with in measuring its current standards.
Perhaps I can go back to an issue on which the Deputy laid strong emphasis, that is, whether it represents value for money. Many of the administration type cases that come before the ombudsman could end up in the High Court for judicial review. If they did, we could quickly do a ready reckoner and say the office would represent good value for money but we would also be looking at it from a wider prism and say, having done the sums, it would be much more cost effective to have an ombudsman deal with this than have the parties going to the High Court to seek judicial review of a matter. In having the office established we are also widening access to justice to the whole of the constituency. We are providing them with that opportunity.
Can I come back in on that aspect? We are talking about 76 appeals, €567,000 plus rent, which is not a long way from €760,000. Even at €567,000, that is approximately €80,000 per appeal.
Ms Paulyn Marrinan Quinn
That is what I am saying.
I am sure the taxpayer would like to know that people who raise promotional, career or overseas service queries are costing the taxpayer €80,000 a time. That is what it comes to, Chairman.
I think the Deputy has added an extra nought.
Have I?
Yes. I think it should be €8,000.
Correct me if I am wrong. Is it €8,000?
Yes.
Ms Paulyn Marrinan Quinn
Can I come back to the point about value for money? An office like that is established to deal with specific cases but because it is complaint focused, it also provides a secondary public function. It can observe and monitor abuses of procedures and policies which are out of date, unfair or unjust. It can also safeguard against badly applied fair procedures. It exists to ensure the administration within the organisation is done soundly and in the interests of its members.
The office was established on 1 December 2005. By March 2006, the then head of the human resource management services in the Defence Forces issued a directive to the whole of the Defence Forces to the effect that on foot of the cases going through so far, there was a need for consistency in the selection criteria. By July of 2006, the then deputy Chief of Staff support issued a letter of instruction to review all matters regarding career course applications and overseas postings. The office contributed at that point to the opportunity for the Defence Forces to review and revise the fundamental procedures they were using. There is tangible evidence of reforms and PDFORRA would have said at the time that those reforms were long overdue. To say that those were just about petty matters with regard to promotion is not seeing the full picture.
There is a difficulty in recruiting staff currently, regardless of the problem with premises, and the decentralisation has been stalled for a while. We have the central applications facility in Dublin and there are a number of people in the system who might be available. Has Ms Marrinan Quinn examined that as a possible option in terms of increasing staff numbers where necessary?
Ms Paulyn Marrinan Quinn
That would be a very positive way of looking at it. If we could accommodate those people, that would be a prudent way of——
It is not something Ms Marrinan Quinn has examined.
Ms Paulyn Marrinan Quinn
We have considered among ourselves that these people would be available. We have people coming from other agencies who might be appropriately skilled who could be available.
It might be something worth pursuing.
Ms Paulyn Marrinan Quinn
Yes.
On two points of clarification, first, when a case is determined and Ms Marrinan Quinn's recommendations are either accepted or not accepted by the Minister, does that individual have recourse to the court?
Ms Paulyn Marrinan Quinn
I apologise to the Deputy because I forgot to answer that question. As the ombudsman proceedings would be without prejudice, they could go to court if they had the wherewithal to do that.
Has Ms Marrinan Quinn dealt with a case where, following a complaint being made and it being processed, that person came back to her to complain that he or she feels discriminated against or pressurised in his or her job because he or she made a complaint?
Ms Paulyn Marrinan Quinn
One of my primary roles and one of the responsibilities of the office is to safeguard the people and ensure there are no reprisals against them. It is an intangible aspect of the work. It is very difficult to determine that. In interviews with people I have heard them express the view that it is because they took the redress course and one would always tell people that if they have any evidence of that or if there is any evidence of that, they should come back to me or if they want to substantiate that in any way, they should do so, but there have been no tangible cases.
Ms Marrinan Quinn referred to the legislation. Is she in a position to make recommendations on improving the legislation? Can she recommend to us a way that we can make proposals to improve legislation?
The Chairman made a sensible suggestion about staffing. I suggested on a previous occasion that we write to the Office of Public Works and to the Minister about accommodation. I suggest also that this committee, through the Chairman, might convey both those suggestions to the Minister and the OPW if that is acceptable to the committee.
I am sure that is in order.
Will Ms Marrinan Quinn respond to the legislation question?
Ms Paulyn Marrinan Quinn
There is no provision in the legislation to allow the officeholder do that but consistent with all other ombudsman offices, both here and abroad, if an ombudsman notices there is something in the legislation that needs to be expanded or improved, one provides a service by perhaps putting that out for debate. Other than doing that, there is nothing specific in the Act to allow for that.
I wish to make two brief final points. Regarding taking a decision of the ombudsman to the court, is Ms Marrinan Quinn's legislation different from the legislation of the Ombudsman? My recollection is that one cannot contest a decision of the Ombudsman in court. Am I correct in that? One can go to court on a point of law but not on the actual decision.
Is there a case for extending the time limits in which cases can be brought? I refer to cases in which the time has now run out. Is there a case for examining that aspect again?
Ms Paulyn Marrinan Quinn
I made the point earlier to the Chairman that there is no time ban on the people who are in the Defence Forces sitting on their redress of wrongs, RoWs. I have suggested that at meetings with the Defence Forces. We have alerted them to the fact that this creates difficulties for us because it does not tie in with our timeframes. I am not aware that a great amount would be achieved in that regard in that I believe justice done is justice quickly done. I recall the previous Chief of Staff, in a case that had come forward, referring to matters in the past. He sent out a directive to members telling them that if they had a complaint, they should put it in quickly because it provided us with additional difficulties trying to find witnesses and deal with the issue. I would support that.
The Act refers to within a year of the alleged action or becoming aware of the alleged action. That is safe enough for the complainants. My role is somewhat tangled in the sense that I do not have any direct relationship with a complainant until the person sends in the case to me. I cannot tell them that time is running out in their case. If I write to the Defence Forces stating that I note this case is in the system and that in three months from now the period of eligibility will have expired, the Defence Forces could rightly respond that it is not up to us to remind them to bring in the complaint. The person is left in some jeopardy in that respect. We still mark that, however. We write to the Defence Forces and to the enlisted personnel manpower office, EPMO, informing them that we notice the time limit is about to run out on this complaint and it would be helpful if the person could be advised of that. They do not have any responsibility or obligation to do that.
In terms of contesting a decision of the ombudsman's in support of——
Ms Paulyn Marrinan Quinn
No, it would not be to contest; I apologise if I was obscure in that respect. A person would have a right to go to court de novo. If a person had a case he or she wanted to bring to court, he or she could do that, but could not go to court to appeal my decision, as it were.
That is fine.
I thank Ms Paulyn Marrinan Quinn for an informative presentation and I also thank Mr. Mulhall for his assistance in replying to the questions raised by the members. The discussion has been of major assistance to the committee in considering the issues at play in regard to our Defence Forces. I thank the members for their co-operation and again thank the two witnesses for attending here this afternoon.
Ms Paulyn Marrinan Quinn
Thank you, Chairman.
As there is no other business, the joint committee is adjourned sine die.
The joint committee adjourned at 5.01 p.m. sine die.