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Joint Committee on Public Service Oversight and Petitions debate -
Wednesday, 5 Nov 2014

Role and Functions of the Ombudsman for the Defence Forces

The next item for discussion is the role and remit of the ombudsman. We will have a discussion with the Ombudsman for the Defence Forces, Mr. Tony McCourt, who is accompanied by his senior colleague, Mr. Brian O'Neill. I remind everyone to ensure their mobile phones are switched off. We are very pleased to welcome the ombudsman here today. He will make a presentation on his role and remit. I invite him to make his presentation.

Mr. Tony McCourt

I thank the Chairman for the invitation to appear before the committee. I understand the committee wishes me to address it on three matters today: extending the remit of the Ombudsman Act and recommendations on the extension of powers of all ombudsmen; two particular issues which have been the subject of petitions that have already been dealt with in closed session; and the number and nature of reports being produced by my office in the context of annual and special reports issued.

I will commence by saying that the legislation underpinning the Office of the Ombudsman for the Defence Forces is the Ombudsman (Defence Forces) Act 2004 as well as section 114 of the Defence Act 1954. In my address today I will refer to the Ombudsman (Defence Forces) Act 2004 as the 2004 Act and I will refer to the Defence Act 1954 as the Defence Act.

My office was established by order of the Minister for Defence on 1 December 2005. My office provides military personnel with an independent and impartial external statutory complaint investigation authority. It is entirely separate and distinct from both the military chain of command and the Department of Defence. I believe we are fully compliant with the generally recognised principles of ombudsmanship.

The ombudsman provides an appeal from the formal internal military redress of wrongs procedure, a new direct referral complaints system for former service personnel, and a new system for complaints by serving or former service personnel against the actions of a civil servant of the Department of Defence. The outcome of investigations generally are that the ombudsman makes non-binding recommendations to the Minister.

My office produces an annual report on its activities. The most recent such report is 2012 which was published last June. The delay in the publication of that report was due to ongoing High Court proceedings which were entirely outside the control of my office. The annual report for 2013 is at an advanced stage of preparation. I intend to publish it before the end of this year. My office has not published any special reports pursuant to section 7 of the 2004 Act. I will inform the committee later on the activities during 2013 and 2014.

The ombudsman is appointed by the President on the recommendations of the Government. Open competitions were held by the Public Appointments Service in 2005 and 2012. I was appointed to the office in November 2012 for a term of three years. The Ombudsman Association, which is an international umbrella organisation for ombudsmen, has recommended consideration of a minimum term of five years for all ombudsmen. I would commend that recommendation to the committee for its consideration.

I wish to say a brief word about the internal military complaints system. A formal redress of wrongs-complaints system is provided for in the Defence Act for serving members of the Defence Forces. This has been in existence since the foundation of the State under earlier legislation. It reflects the unique circumstances of members of the Defence Forces in society. Soldiers are citizens who have volunteered to serve. They retain all their constitutional rights. By joining the Defence Forces, however, they voluntarily submit themselves to a uniquely strict code of military law and discipline. The formal complaints system provides a key component of personal rights protection for soldiers.

Complaints should be resolved at the earliest possible opportunity. Every complaint under the redress of wrongs system is notified to my office as an oversight body and recorded on our case management system. The Minister agreed earlier this year to provide me with additional information regarding the nature of each such complaint, and this will improve my oversight of the internal military system. I have also proposed a strengthening of the independence of military investigation officers appointed to investigate and report on complaints under the redress of wrongs system. I received a copy last week of draft proposals for the revision and amendment of the redress of wrongs system on which I will respond to the Department of Defence shortly. The Office of the Ombudsman for the Defence Forces was created as a result of protracted lobbying by PDFORRA and as an acknowledgment of the need for a transparent, external, independent and rigorous procedure to deal with complaints across the Defence Forces. In the case of complaints against a civil servant, I believe that there ought to be established an internal, time-limited departmental complaints resolution procedure or process with an appeal for unresolved complaints to be sent to my office.

I will say a few words about my jurisdiction. I have jurisdiction under section 6 of the 2004 Act to hear complaints from serving and former members of the Defence Forces. The complaints must concern actions taken by either a serving or former member of the Defence Forces while serving in the Defence Forces, or by a civil servant in the Department of Defence. Interestingly, the word "action" is defined in the Act as including "a failure to carry out an act or make a decision". Complaints must be made not later than 12 months from the date of the action concerned or the date on which the complainant became aware of the action, whichever is the later. There are no exclusions to complaints under the internal redress of wrongs system except a small provision with regard to military justice decisions.

I am inclined to suggest to the committee that consideration should be given to adding some such restrictions to the redress of wrongs system to limit multiple jurisdictions dealing with the same matters. As ombudsman, for example, I am precluded from considering complaints on a list of matters included in section 5 of the 2004 Act. There is also provision in legislation to ensure complaints referred to me are not also referred to the national ombudsman and vice versa. I recommend to the committee that section 5 exclusions should be reviewed. A simpler unified system could be provided with a greater degree of consistency between the provisions of the Defence Act and the 2004 Act. Complaints regarding matters which are clearly administrative actions in some of the excluded areas could and should be included within my jurisdiction.

On a comparative basis, I should tell the joint committee there are three models for military ombudsmen throughout the world. The first one is where the ombudsman is integrated within the armed forces, which sometimes is referred to as an inspector general. This probably is the oldest form of military ombudsman extant and it still is operational in some countries. Indeed, the Defence Act in Ireland contains a provision for the appointment of an inspector general. The second such model is one in which the ombudsman has exclusive jurisdiction over the armed forces and the third is where oversight of the armed forces is subsumed into the functions of a general ombudsman. In 2004, Ireland opted for the appointment of a civilian ombudsman, entirely independent of the Defence Forces and the Department of Defence, with exclusive jurisdiction over the Defence Forces, that is, the second of the three models I mentioned. We share this arrangement with Austria, Canada, Germany, Norway, South Africa, the United Kingdom and, more recently, Bosnia-Herzegovina, all of which have similar-type military ombudsmen. Independence is of critical importance for an ombudsman. International standards show that the primary indicators of independence for ombudsmen are being independent of government and of those they are appointed to oversee. I am satisfied the 2004 Act contains appropriate statutory provisions providing for the independence of my office along those lines.

I now wish to turn to some statistical data. Since 2010, a total of 372 complaints have been notified to my office and since my appointment as ombudsman, more than 200 complaints have been notified to me and more than 70 cases have been appealed to me for detailed review and investigation by my office. I should state that the ongoing High Court proceedings throughout 2013 had an impact on the number of cases that could be dealt with by my office during that time. In November 2012, the aforementioned High Court proceedings were initiated, challenging my appointment as ombudsman and on 21 November 2013, Mr. Justice Hedigan delivered his judgment in the High Court. His judgment ran to quite a long number of pages but I will summarise it under three aspects. First, he stated that nothing precludes a former member of the Defence Forces from holding the post of Ombudsman for the Defence Forces. Second, he stated the appointment of a former member of the Defence Forces does not give rise to a reasonable apprehension of bias. Third, he held the Minister for Defence did not act ultra vires in deciding that the office of Ombudsman for the Defence Forces should be part-time. I should advise the joint committee that this decision is under appeal to the Supreme Court.

I already have made some recommendations to the joint committee with regard to the powers of ombudsmen in general. I have noted the proposal of the national Ombudsman to the joint committee that his appointment be made a constitutional one and I would support such a development in his case. As for the extension of the powers of ombudsmen generally, I have three further recommendations I could make to members if they so wish. This concludes my presentation to the joint committee.

I thank the ombudsman and will open up proceedings to members for questions.

I have a number of questions. The ombudsman mentioned that he agrees the term of office should be five years.

Mr. Tony McCourt

That is the recommendation of the International Ombudsman Association.

My question is on Mr. McCourt's own view on being able to have a further term. Is it his view that someone could be in post for five years and could be appointed again for a further five years-----

Mr. Tony McCourt

Yes.

-----or the equivalent? Does he believe there should be some limit? For instance, the President in the United States can be appointed for two terms only.

Mr. Tony McCourt

As it stands, the legislation states that an ombudsman may be appointed for any term not exceeding a term of seven years. My predecessor was appointed for three terms, namely, two terms of three years and one term of one year, making a total of seven. However, the legislation as it stands also provides that if a person had been appointed as ombudsman for the maximum term of seven years, he or she may be eligible to be reappointed. I do not have a personal view but the International Ombudsman Association sometimes is exercised by the fact that an ombudsman who is doing a good job and is not causing too much difficulty to the powers that be may be reappointed. The connection of a reappointment to the manner in which the ombudsman had performed his or her duties as the case may be always is a delicate balance. Consequently, as I stated, the appointing authorities may or may not wish to extend the term of somebody on conclusion. I do not have a personal view on the matter.

Another issue was that the ombudsman explained that members might re-examine the exclusions in the Ombudsman (Defence Forces) Act. Have such exclusions caused problems for the ombudsman's office or is it that they have caused problems for complainants in trying to get access? As a consequence, if the exclusions are causing difficulties, are those the cases that end up bypassing the ombudsman in some ways - because they cannot get there - and which end up with this committee or in the legal route of going directly to court, if those concerned believe they cannot get recourse through the ombudsman?

Mr. Tony McCourt

The position with regard to the exclusions is there are matters about which a member of the forces is entitled to submit an application or complaint under the redress of wrong system. It can be processed all the way up to the Chief of Staff and if the complainant does not get satisfaction there, he or she is perfectly entitled to ask to have it referred to the ombudsman. The first thing the ombudsman must do is to consider whether it is within his or her jurisdiction and sometimes it arises that it actually is outside my jurisdiction because it is excluded by the provisions of section 5 of the Act. I believe that if we have a complaint system that has been in place since 1922 and that if a provision for an ombudsman to be inserted between the Chief of Staff's decision and the Minister's final decision was introduced almost nine years ago, there should be the minimum of restrictions on the powers and jurisdictions of the ombudsman to deal with such complaints. Moreover, I believe that complainants may be dissatisfied, having processed a complaint all the way up to the ombudsman's office, to find that the ombudsman is not empowered to deal with it. There may be reasons he or she is not allowed to so do that are valid under the provisions of section 5 of the Act but sometimes - I refer to matters that can be perceived clearly to be administrative in nature - there should be scope for those to be dealt with, even in the areas that are excluded from the jurisdiction of the ombudsman.

I thank the ombudsman for his presentation. I note that in the ombudsman's report for 2012, he included a breakdown of the cases. For the record, can he highlight, for example, cases taken against a serving member, as opposed to cases taken against civil servants in the Department of Defence?

Mr. Tony McCourt

I thank the Deputy for his question. No complaints against a civil servant in the Department of Defence were reported in the 2012 report.

Would that be a cause of concern in the Office of the Ombudsman for Defence?

Mr. Tony McCourt

I do not know that I would deem it to be a cause of concern. It may well be that members of the Defence Forces primarily interact with each other rather than with decisions by civil servants. Therefore I would not expect there to be as many complaints against the action of a civil servant. It is not entirely unknown that there would be such a complaint, however.

Could Mr. McCourt also put on record the breakdown of complaints, and if there is anything striking about it, between the different arms of the Defence Forces? Is there anything that would give cause for concern within any particular branch, whether it is the Naval Service or the Air Corps? Is there any area in which something stands out as a particular issue?

Mr. Tony McCourt

I refer to page 19 of the 2012 report, wherein cases are recorded in one of the pie charts under "cases by military formation". In these cases, the various formations of the Defence Forces that are listed and the number of complaints recorded in each of them does not take account of the numerical strength of the formation. Therefore it may not entirely reflect the issues that the Deputy is raising. There was nothing particularly striking that came to mind in reviewing those statistics and nothing that would cause me any great alarm or concern.

Taking proportion into consideration, the Ombudsman for Defence is reasonably happy.

Mr. Tony McCourt

Yes.

That is not an issue.

I wish to focus on military prisons, specifically the fact that the ombudsman is precluded from looking at cases relating to them. They are the most severe cases, concerning citizens who have joined the Defence Forces, are in service, and have had their liberty denied. Is there a reason the Ombudsman for Defence cannot investigate this area? Would he have a concern about that?

Mr. Tony McCourt

My understanding is that there may be other arrangements for committees to visit prisons in general and to deal with complaints from them. However, I would include the issue to which the Deputy is referring as something that might be considered in any review of the exclusion areas. It might be something that should be revisited with a view to seeing whether it really should be excluded. That is a matter for decision by the Minister and the Department.

I commend to the committee that all of those areas should be revisited and I would engage with the Department in any such process.

Where the ombudsman's appeal is final, or he decides not to review a case, does he take the opportunity to make recommendations to the Minister for Defence or to the Chief of Staff?

Mr. Tony McCourt

If I understand the Deputy----

Where the ombudsman cannot make a review or decides not to do so, but feels that there may be a case for making a recommendation-----

Mr. Tony McCourt

If I could put it this way, if a situation arose where I decided that a particular complaint was outside my jurisdiction, but that nonetheless a recommendation might usefully be made to the Minister, I would see no reason not to do so.

I have a number of questions for the Ombudsman for Defence, beginning with the question that Senator O'Keeffe wanted to deal with earlier on. The Ombudsman for Defence made the point that there is an appeal mechanism in terms of the overall Ombudsman, Peter Tyndall, but within Mr. McCourt's own office there is no appeal mechanism. Is that something he feels should be remedied, or does he feel it is acceptable in its current format?

Mr. Tony McCourt

In circumstances where the decision is made by me, I do not think that there is any requirement for an additional right to appeal my decision to myself again. As I perhaps inadequately explained in my presentation to the committee, in any such case where the complainant was dissatisfied with my final decision and wished me to review it, provided there were just reasons for so doing and I considered that such a review was merited, I would feel that I have the discretionary power to do so. In exceptional circumstances, such as where new information became available which had not been available at the original time - as opposed to information that was available but had not been presented to me - equity would dictate that I should be prepared to review my original decision.

Mr. McCourt has made the point that his recommendations are not binding, as is the case with most of the other ombudsmen. In general, are his recommendations implemented?

Mr. Tony McCourt

I should say generally my recommendations are implemented. It would be in a very small minority of cases that the Minister for Defence would not accept my recommendations, and invariably he expresses his reasons for not doing so. Clearly, as an ombudsman I would welcome any additional measures that might be taken to increase the percentage of cases in which the Minister would accept my recommendation. That would be a matter for changes in legislation.

One of the key responsibilities that our committee sees for itself is ensuring that the recommendations of the ombudsman are implemented - that they are seen to have teeth. If they are not implemented, we would see it as our role to challenge the Minister or Department as to why not. If Mr. McCourt comes across instances in which he feels that his recommendation should have been implemented, as is the case with the other Ombudsmen, he should feel free to raise that with our committee. He can bring it to the Oireachtas and look for us to deal with the issue. We see that as a key responsibility of our work.

Mr. Tony McCourt

I thank the Chairman. As the committee will be aware, I do have the power to make a special report to the Oireachtas under section 7 of the Ombudsman (Defence Forces) Act 2004. That is a power that has not been exercised and I expect it would be reserved for special cases such as those to which the chairman is referring.

Just to make that invitation. Our committee in particular takes its responsibilities very seriously and we do not second guess any decision of any ombudsman's office. They are independent and it is not our role to do that. We want to strengthen the independence and impact of the ombudsmen by following up on any recommendations that have not been implemented with Government. We have done and will continue to do that across the board.

Mr. McCourt talked about the international examples of defence forces ombudsmen and the different types that are there. It appears that, in Ireland, the ombudsman's role is essentially to be another appeal mechanism.

Therefore, where the relevant member of the Defence Forces has gone through all the various complaint handling processes and has appealed them up through the various stages, the Defence Ombudsman is then the ultimate office of appeal. Would the ombudsman like to see his office broadened to fit what would internationally be regarded as the role of an ombudsman, to look at, for example, inspection, efficiency, oversight, and more of those types of roles?

Mr. Tony McCourt

The Inspector General role is more appropriate to this kind of inspection and internal operation within the Defence Forces. In my own career, I do recall one officer being appointed as Inspector General. I am not sure he was assigned by the Government. He was a very senior officer, who had recently returned from a very senior UN command role. I think shortly before he was due to retire he was appointed as Inspector General. However, I do not think he was given that sort of inspection role one would expect an Inspector General to have. With regard to extending my role, as ombudsman, in that area, I am not sure about general inspections but I do have power in my investigative role to go to barracks, seek documents, examine records and so on. Perhaps one of the powers that needs to be strengthened concerns access to documentation. That might be an area that needs to be further strengthened.

We have an excellent system in the redress of wrongs system within the Defence Forces. It has been there since 1922. However, we should explore the possibility of the ombudsman having some involvement in that at an earlier stage rather than the final appeal stage. I would be glad to see the good offices of my office being made available to assist at a much earlier stage so that complaints could be resolved more swiftly than they are at the moment. That would be possible, in a review of the two systems; the redress of wrongs system under the Defence Act and the ombudsman regime under the 2004 Act. There are possibilities there to bring a more unified system of complaint investigation. There would be a lot of interest groups who would need to have an input and agree on that before it could be implemented.

To finalise the matter, after today, in terms of your experience to date and in terms of your team, we would appreciate a follow-up submission from the ombudsman identifying areas where it would be very useful to have strengthened powers to strengthen the role of the office and to ensure it can fulfil as much as possible its responsibilities. That goes for all the ombusdmen. The Garda Ombudsman will have strengthened powers. Legislation is currently being moved through the Houses. That legislation, in draft format, may be strengthened by the time it goes through all the various stages. There is a desire to strengthen and enhance the offices of the ombudsmen across the different sectors. They have captured the imagination of the public; an independent adjudicator, a final arbiter on behalf of the citizen and the relevant public servant or, as in this case, member of the Defence Forces. That is the intention of this series of engagements with the current ombudsmen. At the end of that series, we will publish a report with our recommendations to strengthen powers and ensuring that the Offices are fit for purpose and can fulfil the roles that the citizens or the servants of the people desire.

Mr. Tony McCourt

I have three additional short recommendations which I could make to the committee at this stage. First, I am mindful of representations which have been made to my Office by families of members or former members of the Defence Forces which I was satisfied were related to genuine concerns but which were clearly outside my jurisdiction under the statute as currently drafted. I would suggest my Office should have a discretionary authority to undertake in exceptional circumstances own-initiative investigations. This, of course, could be subject to prior agreement with the Minister, on a case-by-case basis. Such investigations should also be allowed to include historic matters and not be subject to the 12 months rule applicable in the Act at the moment.

Second, I would suggest that section 8 of the 2004 Act should be amended in line with the provisions of section 10 of the Ombudsman (Amendment) Act 2012 together with any future amendment to the Ombudsman Act to provide my office with improved procedures for compelling the production of documents and information. That would be a very important provision.

The third additional recommendation I would make is that there is a need for the establishment of a mechanism for the provision of independent legal advice and services to my office from time to time. Clearly, that is based on my experience since I came into office. I do not think I need to elaborate further on that.

If any other additional recommendations occur to the Ombudsman, he should feel free to draw them to the committee's attention. This process will continue for quite a number of months more.

I thank the ombudsman and his senior colleague, Mr. O'Neill for coming in today. It is greatly appreciated by our committee in terms of our own deliberations. I propose that the joint committee stand adjourned until Wednesday, 12 November 2014.

The joint committee adjourned at 5.50 p.m. until 4 p.m. on Wednesday, 12 November 2014.

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