The measure which I introduce here today is a far-reaching and innovative one. It provides for the establishment of an ombudsman who will investigate individual complaints against the administration.
In Ireland, as in most developed countries in recent decades, the State has moved into areas which were previously regarded as the exclusive concern of the individual. Government and citizen now have contact at every turn and the citizen is confronted by an ever-increasing array of Departments, boards and Government agencies of one kind or another. A greater volume of legislation, much of it necessarily of a complex and technical nature, is constantly being produced.
Because of these developments, citizens have gained access to a wide range of Government services and support systems but they have also become increasingly vulnerable to the decisions of public servants. Problems can therefore arise in reconciling on the one hand the efficient exercise of governmental power and on the other, the treatment of every individual case in a clearly just and fair way. Mistakes and misunderstandings whether caused by inadequate information, faulty interpretation of known facts or lack of sensitivity to personal circumstances, can sometimes occur. And even a mistake that appears in the setting of a large scale organisation to be trivial can have serious consequences for an individual.
There is really no certain way of ensuring that wrong or unfair decisions are never taken by public officials. What can be done, however, is to provide machinery whereby the individual who feels aggrieved by such action can bring the matter to light and have it speedily clarified.
The concept of the ombudsman has come increasingly to be regarded as a potentially useful instrument in helping the citizen to secure fair treatment from the modern state. As a consequence, the concept has found application in many jurisdictions, especially since the end of World War II. There are now ombudsmen in many countries, notably New Zealand, Norway, Sweden, Denmark, Canadian states, the United Kingdom and Northern Ireland. In most countries, ombudsmen deal with a wide range of complaints about the day-to-day activities of public officials—such as failure to pay grants in particular circumstances, delays or refusals in granting licences, the provision of inaccurate information by officials or simple failure to reply to letters. While the role of an ombudsman in each country differs slightly depending on the traditions, history and culture of each particular country, they all share a common objective: ultimately to serve the public, to hear complaints respecting the operation of the public service, and where appropriate, to take such steps as are available to them to remedy the consequences of a particular act or omission of the public service.
In Ireland, an all-party committee were established in 1976 to consider the desirability of the ombudsman institution. The committee consisted of 12 members drawn from both Dáil and Seanad. The all-party committee concluded that the State's sphere of activity had extended to cover a great part of the citizen's life but that there had not been a corresponding extension of redress facilities. In consequence, despite the establishment of special appeals tribunals for such matters as social welfare, over a wide area of governmental activity the aggrieved citizen was confined to ventilating his grievance through political intervention or through the courts. The committee, however, took the view that, despite their successful utilisation over the years, neither of these approaches was entirely satisfactory or suited to all circumstances. They felt also that the creation of special appeals facilities, on the social welfare model, for example, would prove both cumbersome and costly; their central recommendation was, accordingly, the establishment of a new institution—the office of ombudsman.
That report was published in May 1977. There had been general agreement among the committee members that the views of interested members of the public would be obtained before legislative proposals were prepared. Accordingly, advertisements for this purpose were placed in the national newspapers. Following consideration of the responses, preparation of the legislation commenced. The drafting of the Bill proved to be a complicated matter. The very nature of the measure and the large number of people who could be affected by its provisions necessitated careful and scrupulous drafting. At the same time we had to be careful to follow as closely as possible the recommendations by the all-party committee. The Bill which I present here today is the fruit of all that careful preparation.
Before going on to deal specifically with some detailed provisions of the Bill, I would first like to refer in general terms to the role of the ombudsman.
Above all else the ombudsman will speak and act on behalf of the individual citizen: he will in a very tangible sense be at the service of "the plain people of Ireland". On their behalf, he will examine the actions of public officials in their handling of particular cases—or of a particular type of case—and seek a satisfactory remedy in those instances where he finds that a citizen has a genuine grievance. The ombudsman will deal with a great body of day-to-day administrative decisions and actions rather than with the broad scheme of Government policy or national affairs.
Most investigations by the ombudsman will originate in complaints made by individuals—and it is important to note here that under this Bill the complaints can be made straight to the ombudsman by the interested party: there will be no need to go through an intermediary such as a Member of the Houses of the Oireachtas. It will also be open to the ombudsman to initiate an investigation himself—for example, as a result of a newspaper report. In this way, he will be in a position to look into any alleged action by a Government Department which might give rise to public concern that an injustice was being done.
The ombudsman will exercise influence rather than power: he will not have the authority to change administrative decisions—that would be to usurp the authority of the Government. Rather, he will be in a position to influence administrators by virtue of his ability to scrutinise matters in depth and to report his findings publicly to the Oireachtas.
Experience in other countries has shown that in many cases, even an initial display of interest by the ombudsman or his staff has the effect of putting a departmental review into motion, leading to a satisfactory outcome. However, where this does not occur, the ombudsman will be empowered to call for documents, files or other relevant material, and to examine witnesses.
Such examinations will be held in private: this is because the concept of an ombudsman is associated with a conciliatory approach, and it would not be in keeping with this to set up court-like proceedings. The vast majority of ombudsmen find that the conciliatory approach works best: after all, the ombudsman could hardly expect to make much progress in his work if he was to generate hostility among the officials with whom he will often be in close contact in the course of his work.
In fairness to the much-maligned bureaucrat, it should be pointed out that, again going on the experience of ombudsmen abroad, it can be expected that a fair proportion of investigations will show that the administrative actions complained about were fair and reasonable in the circumstances. In those cases, an explanation of the background to the decision may give satisfaction to the complainant. However, should the ombudsman be satisfied that a Department have acted wrongly and should he fail to persuade the Department to take corrective action, he will be empowered to make a detailed critical report of the matter to the Oireachtas, to whom the administrators are responsible. There can be no doubt in anyone's mind that no official will take lightly the possibility of such public criticism of his Department from such a high and independent source.
I would now like to refer to some of the issues which were raised about the Bill during its passage through the Dáil. We were criticised for not including the local authorities and the health boards in the ombudsman's remit from the outset. Let me stress straight away that they were excluded at the recommendation of the all-party committee and that we have attempted to include in the Bill all recommendations of that committee. Even then it was only a temporary exclusion as the intention was to include them by Government order at a later date. The Government had no vested interest in excluding any of these bodies.
As an elected representative, I am only too well aware of the areas about which there is most often public concern. Whether the complaints are justified or not, is not in question. Many of the complaints that public representatives get concern local authorities and health boards. We would have been happy to have these bodies included immediately but for the firm recommendations of the all-party committee. However, we are totally committed, to including them as soon as is practically possible. It would not be possible to include them immediately as there are administrative difficulties in pursuing that course. The fact is that consultations must take place with these bodies before they are included. The consultations are likely to take several months.
They will, however, be included as soon as possible. Therefore, I wish to reiterate the undertaking which I gave in Dáil Éireann. The necessary steps will be taken, as provided in section 4 of the Bill, to bring local authorities and health boards within the remit of the ombudsman within three months of the date of his appointment. The local authorities and health boards and the representatives of their staffs will, of course, be fully consulted.
The question of the right of a Minister to have an investigation stopped was raised in the Dáil on a number of occasions. The background to this is that the all-party committee recommended that certain decisions by Ministers, where they are required or allowed to make value judgments should be excluded from the ombudsman's area. They were not able to specify in detail what these decisions were. The general intention, was to provide means whereby the discretionary decisions of a Minister, for which he is answerable to the Houses of the Oireachtas should be exempted. It proved technically difficult to draft a provision which gave precise effect to the committee's recommendation. The only feasible technical way off ggiving effect to the recommendation proved to be the provision that, where a Minister or a Minister of State signs a request to the ombudsman not to investigate a specific action for a stated reason the ombudsman shall cease to investigate.
The Bill has been amended so that the complainant will now receive a copy of the Minister's request to the ombudsman to close the investigation and a copy of the statement giving the reasons for stopping the investigations. The ombudsman will also include these in his reports. I would hope that these amendments would do away with any fears of the power of veto being used to obstruct an investigation. If any Minister were to abuse this power the ombudsman would be free to make reference to it either in a special report for that purpose or in his annual report. It would hardly be in the interest of any Minister to abuse this power because of the degree of adverse publicity that would result.
The method of appointment of the ombudsman was also raised. It is proposed that the ombudsman shall be appointed by the President on the resolution of Dáil Éireann and Seanad Éireann. Some Dáil Deputies felt that his appointment and removal should require a two-thirds majority in both Houses of the Oireachtas. However, this would contravene Article 15.11.1 of the Constitution. In order to conform with the requirements imposed by this Article we provided that only a simple majority would be required.
I am acutely aware of the need to make certain that the appointment of the ombudsman will not be seen as a political appointment. It is essential that the ombudsman be absolutely independent if he is to be able to do a good job. The Government would not wish it to be otherwise. We are very much aware that the person to be appointed will be neutral and acceptable to all sides of the House within the constraints of the Constitution. I would like to reiterate what I said in the Dáil on this point. It is the Government's intention to reach agreement with the leaders of the Opposition before a resolution suggesting a name would be put before the House. This should go a long way towards meeting any objections or doing away with any unfounded misgivings that might exist on this issue.
There was also a suggestion that the Bill should provide for a temporary ombudsman, who would, during any period of incapacity of the ombudsman, exercise the same powers as the ombudsman. The Bill has been amended so that he may delegate to any of his officers any of his functions except those of reporting to the Oireachtas. This will enable the office to function satisfactorily on a day-to-day basis during the absence, for any reason, of the ombudsman.
Since introducing this Bill in Dáil Éireann I have been somewhat surprised by the level of criticism directed at its contents. I had expected a widespread acceptance and indeed positive welcome for the establishment of such a novel institution whose only purpose is the public good. If the detractors say they are not in dispute with the principle of the Bill but only with its detailed provisions I am still somewhat surprised. The fact is that the contents of the Bill are simply the legal expression of the combined wisdom of the Oireachtas. In other words, I accepted almost in every detail the recommendations of the all-party committee and included them in legal form in the Bill now before this House.
I think, however, that there has been too much emphasis on the exclusions from the Bill and far too little on its positive aspects. The establishment of an office of ombudsman in this country is of course in itself a huge positive step in the direction of the protection of the rights of the ordinary citizen. I want, however, to stress that the minute details of the Bill also stand-up to any positive test. There has been much talk of the bodies excluded from the Bill and very little of those included. I would like to restore the balance a little by laying some stress on the things that are included in the ombudsman's remit.
It has been alleged that his powers will be so circumscribed that he will only deal with the more innocuous State offices. In fact, as a look at the list in the First Schedule of this Bill will show, the ombudsman will have power to deal with complaints against all the Departments with which individual citizens have a lot of contact. The Department of Social Welfare, with their involvement in the personal lives of so many citizens; the Department of Agriculture who affect everyone making his living from the land; the Department of Education; the Department of the Environment—these are just examples of the major areas of administration which this Bill empowers the ombudsman to investigate. The total number of civil servants employed in all these Departments is over 50,000 and there is hardly a sphere of their activity which does not, in one way or another, touch on the life of the ordinary citizen.
Even that is only part of the picture. As I have already said, I gave an undertaking in the Dáil, and repeated it here to-day, that within three months of the appointment of the ombudsman the local authorities and health boards will be included in his remit. The number of persons employed in these bodies amount to around 75,000 people. The position, therefore, is that within the first three months of the office, about 125,000 public servants will have their work subject to the scrutiny of the ombudsman. It will therefore be true to say that any citizen who feels aggrieved at the actions of almost anybody concerned in the central or local administration will be able to have these complaints investigated by the ombudsman.
Of course, there are exclusions in the Bill. However, there are very good reasons for them. The main activities of Government which will not be subject to the ombudsman's scrutiny are the prisons and the Garda. The exclusion of the Garda was recommended by the all-party committee, after detailed consideration, for what I would have thought were logical and plausible reasons. They have been excluded because their work is mainly subject to the scrutiny of the judiciary or else related to security or subject to existing appeals machinery.
The exclusion of the prisons is due to the serious problems their inclusion would cause. Prisoners already have adequate means of redress and their rights are adequately protected under the law and the Constitution. There is also the likelihood that the facility would be abused.
It is not intended that the ombudsman should replace existing appeals procedures or interfere with the judicial process. Therefore, he will not investigate where legal proceedings have been initiated, or where there is a statutory right of appeal to a court, or where there is right of appeal to independent tribunals or referees drawn from outside the public service. Defence matters are not included as they do not greatly affect the everyday life of the ordinary citizen. Personnel matters are not included, as the ombudsman is not considered the appropriate forum for dealing with employer-employee relations.
The Bill was generally welcomed in Dáil Éireann, where it was the subject of a very comprehensive and constructive debate. On Report Stage there I was happy to incorporate a number of improvements in the measure. As I am anxious to see the office of ombudsman established as soon as possible. I would respectfully urge the House—without in any way wishing to curtail debate and discussion on its provisions—to accord the Bill a speedy passage.