Seanad Éireann debate -
Wednesday, 2 Jul 1980

Vol. 94 No. 13

Ombudsman (No. 2) Bill, 1979: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

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

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.

Mr. Cooney

This Bill represents the culmination of a lobby which has been in existence for a long number of years requesting a measure of this kind and the appointment of an ombudsman in this country. It has been a persistent lobby, not terribly vocal or commanding tremendous depth of support all through the country, possibly because the term itself, which is Scandinavian, possibly rings a little strange to many Irish ears. The concept behind it is also not a very familiar concept. Nevertheless, from the point of view of a good many people who consider the administration of our State, the call has been made, and made persistently. I am glad to see this Bill before the House today, and to know that, very shortly, we shall have an ombudsman in this country.

The Minister has outlined the complexities of a modern State, the services it provides for so many citizens in so many different ways, the way in which the State impinges on all of us at some stage in our careers and existences. It follows, because of its increasing complexity and because of the fact that rules have to be drawn on a macro basis, so to speak, that when they come to be applied on a micro basis there will be occasional abrasions between the system and the citizen. Many of these can be resolved and some cannot be resolved because the system is not sufficiently flexible to permit of resolution. The ombudsman will now come into the scene and it is hoped, ensure that these areas of favourable contact will, or, indeed, conflict between the State and a citizen can be resolved to the satisfaction of both parties.

Possibly, the reason for so long and persistent demand for this post arises from the nature of our legal system, in that we are a common law country. Our common law, traditionally and constitutionally—with a written Constitution—has found itself unable to intervene in the area of administrative law as in some of the Roman law countries where there is a separate droit administratif, where there are separate tribunals and separate systems to deal with matters of administrative law. Our legal system did not develop in such a way as to permit this parallel system. Particularly 20 years ago, and preceding that, there was a great lack of process for citizens who wanted to complain about the administrative law of the land. That lack of process was what inspired the demand for the ombudsman. He is a Scandinavian creature, I believe, and we are inclined to look to parts of Scandinavia as being the source of much political and administrative wisdom. Without hearing in any great detail how he operated there and how effective he was, the general idea of what he represented was acceptable and attractive in this jurisdiction and the demand built up over the years. We now have the position where, at last, we are going to have this official here in our system and we shall have to wait and see—because it is novel to us—how the new procedure is going to work out in practice.

It would have been interesting to have heard from the Minister some details of experience of other countries of similar administrative and constitutional systems as ours in the operation of their ombudsmen, particularly from a country like New Zealand which is similar to us in terms of size, legal system, administrative structures and, indeed, general culture. It is always useful to learn from other peoples' experiences.

The ombudsman is in existence in Great Britain and Northern Ireland. We read, occasionally, newspaper reports of his activities and some of his findings. I get the impression that his role in those jurisdictions is confined to investigating serious matters of malpractice, whereas I read the Bill now before the House as giving a wider jurisdiction to our proposed official to investigate any area where an action has been taken which has led to an injustice to a citizen through the denial to him of his rights, or his full rights, in accordance with whichever administrative scheme is involved.

I welcome the type of office which is supposed to be set up here—if I am reading the Bill correctly—to give power to the ombudsman to intervene in practically every area of public administration. I think that is as it should be. I welcome the creation of this post for another reason. In this country, we have a written Constitution which embodies the traditional constitutional theory of the division of powers between the Executive, legislative and judicial. Each of these powers is separate in practice and in theory, so that its independence is guaranteed by its separateness but, at the same time, things are so arranged that each acts as a check on excesses committed by the other. The main check on the power of the Executive should be parliament but because of the party system—I do not say it in a spirit of deep criticism, it is the way the system has evolved—the capacity of the legislators to check the Executive is limited by the party whip. That is understandable when we consider the practicalities of our system.

The powers of the courts to check the legislative arm of the State are wide. They are not subject to any restriction and are widely exercised. Those powers are used to check the Executive arm of the State although this may not have been the original intention of the theorists who evolved the idea of the division of powers. In recent years there has been a marked tendency by the courts to expand their role in acting as a check on both the Executive and legislative arms of the State. There always has been an inherent power to the courts arising from common law to give certain reliefs by way of the traditional orders of certiorari or declaration and the like, where the citizen in not even well defined circumstances could apply to the court. It was, unavoidably, a grey legal area. A grey legal area tends to be interpreted from time to time. The very fact that the area in which the courts operate is undefined—it possibly defies definition because of its nature—means that they have a tendency at times, depending on the mood of the bench, on the social scene, and on the pattern in other similar jurisdictions, to expand into areas that were traditionally regarded as the preserve of the executive or legislative arm of the State. That jurisdiction has always been there in the courts and has been available for citizens in the theoretically comparatively narrow number of cases in which it could be called into being by a citizen. But in recent times there has been a tendency to expand the courts' operations into what is the proper sphere of the Executive or the Legislature. An impetus for some of this expansion comes from the fact that we have a written Constitution which cannot define specifically every right of every citizen; and the Constitution has been interpreted in recent times so as to find rights which are not written into it but which are implied from it. One does not know whether they were ever in the minds of the framers of the Constitution or if they ever impinged on the consciousness of the populace that voted this Constitution into being. However, that is the role that the courts adopt increasingly in modern times, inspired to some extent by constitutional practice abroad, notably from the United States.

Their method of thinking is not altogether suited to our cultural, political or social scene, but that is a tendency which has been manifesting itself in recent times.

Another aspect has been the tendency to give the traditional remedies of certiorari or declaration, two remedies which enable the courts to invalidate an action of some person, group, body or institution, or to give the traditional actions of prohibition or injunction to halt something that has been done in respect of a citizen or a group of citizens, or the traditional actions of mandamus or mandatory injunction which enable the courts to compel an institution or a State or a person to do something. There has been a tendency in recent years for the courts to grant those remedies more easily to citizens in cases where in the past the courts would have held that that person did not have any locus standi to go before the court to seek this remedy. There has been a gradual expanding of the courts' role in this area, and inevitably this has brought the courts into adjudicating on what should be matters exclusive to the Executive or the Legislature.

That is not good because it breaches the doctrine of the division of the arms of State, and the courts should be very distinct from the two other arms of State in order to preserve the respect which citizens must have for them and on which their importance is based. It is dangerous for the courts to become over involved in the area of the administration.

There has been a tendency, because of this inclination to expand these traditional orders that I have mentioned, for the courts to become more involved. Consequently, if the creation of this office of the ombudsman provides a focus for citizens to seek redress and diminish the number of applications to the courts, that tendency which has been developing may perhaps be checked.

For that reason I welcome the Bill and hope that it will prove to be of considerable practical benefit to many citizens and that it will enable citizens to go to the ombudsman and his staff for redress rather than go to the courts. The courts, in the last resort, are available for a citizen who feels aggrieved by the system and who makes the case that the system is being exercised unlawfully against him. Undoubtedly, there will be many instances in the future where a citizen will feel that the role of the ombudsman and his powers are inadequate to give him redress and he will have to go to the courts. It will be interesting to see in the matter of administration and in the matter of jurisprudence whether the tendencies to which I have referred for the courts to expand their role will continue. A very interesting and useful paper has recently been published by the Law Reform Commission dealing with the judicial review of administrative action and with the problem of remedies. That is very relevant to this Bill, which in effect is providing not for judicial review but for review by the Legislature of administrative action. On page 13 in that report an observation of a judge is quoted:

The cases in which this State-side order [of certiororari] may be granted cannot, and should not, be limited by reference to any formula or final statement of principle. The strength of this great remedy is its flexibility.

That is a positive statement by the court indicating that the courts are self conscious of their power to use this flexible remedy to the very maximum of its flexibility. As I have already indicated, this is a trend which is not without some little question marks with regard to constitutional propriety. I am not in any way advocating that the courts should not have full discretion to give a citizen justice where he comes into conflict with the State or any arm of it. That flexibility must be there so that the courts can do that. There will be instances where the ombudsman cannot give relief and where the citizen will have to go to court.

The question of who can approach the ombudsman is something that will cause contention in the future. It was a subject that caused the courts considerable difficulty over the years—who is entitled to complain of the grievance? It appears from the Bill that only the citizen directly involved by the action, to use the word in the Bill, will have the right of access to the ombudsman. I read the Bill as meaning that the citizen will have to be personally involved. There can be many instances where some action of the State could involve an individual not directly but as a member of a group. The question of what locus standi will be acceptable to the ombudsman in time to come in order for his jurisdiction to be invoked will have to be decided.

The courts over the years have found this difficulty and there was an interesting case quoted in the Law Reform Commission paper to which I have referred, on this point. An application was taken towards the end of the last century by a Dublin ratepayer who was aggrieved at the expense of a lunch taken by members of Dublin Corporation on a visit to the Vartry Waterworks and he decided to exercise his rights as an aggrieved citizen. The point to be decided on was did he have a legal interest? Was he a person aggrieved within the meaning of the law as it then stood? Was he entitled to take his action? The judgment is so interesting that the writer of the working paper has quoted it and the House should hear it. The judge in question was a very well known character in Irish jurisprudence, Sir Peter O'Brien, Chief Justice, who was also known as Peter the Packer. That gentleman is reported, when the jury brought in a verdict of not guilty, to have told the prisoner "You are now discharged as an innocent man but do not do it again". In his judgment in this case he says the question of the expensive lunch taken by the members of Dublin Corporation was very much an issue. He said:

I have before me the items in the bill——

I hope this does not give any ideas to the current members of Dublin Corporation——

Amongst the list of wines are two dozen , Ayala, 1885—a very good brand—at 84s a dozen, one dozen Marcobrunn hock—a very nice hock, one dozen Chateau Margaux—-an excellent claret; one dozen fine old Dublin whiskey—the best whiskey that can be got; one case of Ayala; six bottles of Amontillado sherry—a stimulating sherry; and the ninth item is some more fine Dublin whiskey! Then Mr. Lovell supplies the ‘ dinner’. (This was a dinner, not a mere luncheon!) including all attendance, at 10s. per head. There is an allowance for brakes; one box of cigars, 100; coachmen's dinner, beer, stout, minerals in syphons, and ice for wine. There is dessert, and there are sandwiches, and an allowance for four glasses broken—a very small number under the circumstances.

He went on and talked about the arguments of the Solicitor-General and how plausible they were on behalf of Dublin Corporation. When he asked with tears in his voice whether the members of the corporation should starve he drew a most gruesome picture.

He went on:

he represented that the members of the corporation would really traverse the Wicklow hills in a special condition, unless they were sustained by lunch.

The judge held in the end:

They cannot banquet at their expense in the Mansion House, and, in our opinion, they cannot lunch at their expense in Wicklow.

As far back as 1894 there was a judicial decision that a ratepayer aggrieved by an action of the corporation could proceed to have the payment disallowed.

Mr. Brennan

He must have been a Fine Gael member.

Mr. Cooney

I shall not comment on that. The point I am making is that as far back as 1894, and before it, the courts took power to intervene on behalf of aggrieved citizens who were members of a class that would suffer by reason of an administrative action. Does the role of the ombudsman, as defined in the Bill, allow such redress under the terms of the Bill or will we have to look at it and possibly amend it later on to include that role.?

I agree with the Minister that some criticisms of the exclusions are hardly justified. I agree with the exclusions which are proposed. One of them—the exclusion on the request of a Minister who has to give reasons—is something that I could see causing some difficulty. The Minister has to state his reasons why the ombudsman cannot investigate a specific action. Those reasons can then be published. The complainant will receive the Minister's request and the reasons for stopping the investigations. The complainant at that stage will still have his grievance and I can foresee litigation, by the litigant asking the court to declare that the Minister's reasons are inadequate. That could be an undesirable development but it is not something that we can stop. It is something I can see arising from the amendment that has been made and I can see the Minister's goodwill in receiving that amendment to provide for ministerial reasons being given. It might have been better, though I can see the arguments on the other side, why the simple request would not have been absolute in its respect. I mention this as a possibility but I hope it will be unlikely.

I am glad to see how the independence of the ombudsman is guaranteed and welcome the Minister's commitment to consult with the leaders of the Opposition parties in agreeing a name to fill this post. It is terribly important, having regard to our system and to the way in which political representations are such an accursed part of our political system at present, that this man would seem to be above politics and totally separate from the political system. I hope that from the word "go", he will discourage political representations to his office on behalf of citizens so that they would come directly to him instead of through an intervening politician. In some cases he will find malpractice, in other cases he will find none. In the case where he was introduced by a politician and finds malpractice, the credit, having regard to the way we have become corrupted by this damn thing, will go to the introducing politician.

I hope that the ombudsman will, as a matter of practice from day one, discourage and eventually refuse to treat with politicians at all. I can see difficulties there. There are instances where a person might need the help of a local public representative to make the introduction to the ombudsman's office but it is something that we should be sensitive and careful about.

Section 7, susbsection (3), provides that no person shall by act or omission obstruct or hinder the ombudsman in the performance of his functions or do any other thing which would, if the ombudsman were a court having power to commit for contempt of court, be contempt of such court. But there is no sacntion to deal with a person who does any of the things prohibited by that subsection. The Prosecution of Offences Act, in the section prohibiting representations to the Director of Public Prosecutions and declaring such representations to be unlawful, suffers also from the want of a sanction.

I readily concede that to prove interference so as to provoke the sanction would be extremely difficult. Likewise, the same might appear here. However, I think the lack of sanction in these prohibition clauses is definitely a drawback having regard to what has been the pattern of activity in this area up to now—increasing pattern, as I indicated in another Bill some days ago. It is positive slavery as far as many public representatives are concerned.

I want to refer to the exclusion of the Garda, an area which has been controversial for some time. There was a feeling on the part of some people who have criticised this exclusion that the ombudsman might somehow act as an independent complaints tribunal. This is a very desirable concept in theory but in principle it is fraught with great practical difficulties. I do not think the office of ombudsman is the one to deal with this generally contentious area. Possibly as the office develops and settles down it might be given a role in some of these excluded areas. Possibly a role in relation to the Garda might be a future extension of the role of the ombudsman when he sees how he and his staff operate and how effective they are in investigating matters. Because these particular complaints are so contentious and have so many legal tails to them, it is probably unsuitable for a purely administrative functionnaire to involve himself in them.

The provision of some method of processing complaints against the police is one that gives rise to great difficulties in every jurisdiction where it is requested. Who is to compose the tribunal? Are they to be judges or laymen, or both? Is the tribunal to sit in public? Will the ordinary rules of evidence apply to it? Will witnesses be able to claim privilege, including the privilege of silence? Will its proceedings generally be privileged? Can it make a finding? Will it find and attract any sanctions, either civil or criminal, and how do we get over the difficulty of double jeopardy? These are all very practical difficulties. If the tribunal is not a court and makes a finding that brings with it criminal or civil sanctions, is it a court and therefore unconstitutional? Some people who ask for tribunals are asking for something that is complex. It is not to say that it could not be evolved, but it is complex. Because of these complexities it is right to exclude the ombudsman from this area.

I note too that the ombudsman is excluded where there is a right of appeal to independent tribunals or referees drawn from outside the public service. I do not know what sort of scene that would be. if it is something involving a citizen in contact or conflict with the State, I do not know if that exclusion is altogether justified. The right of appeal is a simple thing to bestow, but to exercise it can often be difficult and complex for a citizen. Would it not be much simpler if an inquiry from an ombudsman were to obviate the necessity for an appeal at all? That possibility is excluded, according to the Minister's script, and I do not know if that is a good thing. But these are comparatively minor points, and as it is a totally new venture we will have to wait and see how the office evolves and operates in practice.

I welcome the Bill and I hope that all we wish for from this office will be realised.

Mr. Brennan

The Bill is extremely welcome and we all wish it well. I am particularly pleased at the flexibility the Minister has shown in the public interest in altering, amending and modifying the Bill at various stages so that we get legislation which is acceptable by the community at large. That is to be commended in the framing of legislation generally. The State touches the lives of all of us in an increasingly powerful way—our health, our education, our housing, our transport, even our food, and to an increasing extent our environment, our fresh air, so much so that at times a lot of us feel weighed down with the plethora of Government regulations, Government orders, sections and subsections and directives. The list is endless.

Any businessman could tell us that at times they feel like walking Government officials because of the number of regulations with which they have to cope. The time has come, in a general sense, to take stock of the level of Government involvement in all of our lives. I believe that it is at saturation point and should be reassessed.

There are formal channels of appeals in all countries and we are no exception. The difficulty with these existing formal systems of appeal is that they are all seen to be arms of the State; they are all seen to be State-run appeal systems. This is why I am pleased with this legislation, because it provides us with an independent appeal system and is doing so on what is regarded as an accepted international model. It provides us with an independent mediator; but I hope that, as it evolves, the office would distinctly not be seen as part of the Establishment, but something set quite apart from it. It is the responsibility of all of us to ensure that this new office not only works, but works speedily, and that it avoids getting bogged down in a mass of statutes. If that happens it will only add to the frustrations of the complainant. It is also important to point out that the ombudsman is not there to re-assess decisions that are made, not there to reverse decisions but to investigate injustice and maladministration.

If the office of ombudsman is to succeed it has to take account of certain things. It has to enhance and add to individual rights and freedoms here. It must to a certain extent have a slight tendency, almost a bias, in favour of the individual. I hope that the view is taken that when an individual makes a complaint the State in most cases is held slightly guilty until proved innocent. That would be a healthy attitude for the holder of the office to take.

It is important that the dictum is upheld that the State exists for the individual and not the individual for the State. I would like to see the person oppointed going forward with that in mind. The office of ombudsman is a principle; it is not a mechanism for sorting out niggly problems. It is a basic principle and a fundamental and pivotal office in our democracy. It also must be seen—the Minister made this point in the Dáil debate—as just one of many steps required in an overall and major programme of public service reform. I hope that the pace at which that reform can proceed is accelerated. At an opportune time we in the Houses of the Oireachtas, should look at possible reform of the Houses to ensure that they are relevant to the needs of the eighties and that they are responsive to the people that live in the eighties.

The office of ombudsman in Britain when set up caused a lengthy debate and a number of difficulties in regard to the relationship between the office and public representatives. The only way one can get to the ombudsman in England is to go through his Member of Parliament. In this legislation we have taken an entirely different approach. That is very healthy and shows that our capacity and ability to make independent legislation is increasing. That is a welcome and a healthy sign. To a certain extent, if an ombudsman is to be successful he will take away some of the weight of what Senator Cooney called "representation" now made to Deputies and Senators. As often as not they are grievances and the people making the representations are entitled to the benefits they claim in their own right.

One of the difficulties is that, if the office is successful, then the type of representation presently flowing to Members of the Oireachtas will inevitably flow to the ombudsman. In Britain they got over this by ensuring that the correspondence and the difficulties went through a Member of Parliament. I hope we can devise a proper system as it evolves. As Senator Cooney said, we will have to watch this to see how it evolves and to ensure that there is no great duplication of effort. Investigations and representations are an expensive business on the State purse. I hope we can find a way to prevent unnecessary duplication between the work of Members of the Houses of the Oireachtas and the office of ombudsman. If the office is successful it could change somewhat the role of the TD and Senator and give him or her some extra time to deal with legislative matters for which they were principally elected.

Senator Cooney touched on the waste of time that often goes into representations made by parties from all sides of the House and which very often ends up in Members politically cancelling each other out, with no great benefit to the person who made the approach to the Deputy or Senator and a lot of headaches for the public servants involved. I hope that the office of ombudsman will streamline, rather than confuse, that system. The British got over this by ensuring people went through their MP. We have taken a different course, which is more open and more democratic; but it leaves us with the difficulty that there could be some duplication. I disagree with Senator Cooney when he pointed out that he would quite positively bar any politician introducing a person to the ombudsman or introducing a case. It has to be left open to citizens to approach the ombudsman, or, if necessary, to do so through their TD or Senator. We should not move any hard and fast rule on that. Ie would be unfair to Members of the Houses.

I am pleased with the Minister's assurance that within three months local authorities, health boards and so on will be brought within the umbrella. That is a welcome commitment by the Minister. When the office was created in Great Britain the same steps were taken in that at first those bodies were not brought in until the administrative structures were set up. I understand that that is all that is happening here. I should like to mention to the Minister that it is also suggested that some non-commercial State-sponsored bodies might at some stage be included under the umbrella. I do not think that is urgent or necessary, but in the future it might be extended to all State-sponsored bodies. It could be curtailed or tied into areas in those bodies which would not compromise the financial management of those companies. I should like to refer to the excellent work of the new Joint Committee on State-sponsored Bodies. The State-sponsored bodies that have been looked at by the Joint Committee have already reaped some benefit from that independent consultation. In the same way access by an ombudsman's office to State-sponsored bodies would also allow a little extra fresh air in there which would help the State-sponsored bodies as well as those who deal with them.

I should like to deal with the question of access to the ombudsman, one of the difficulties that will affect us, because we have taken this independent stand of it not being necessary to go to one's TD or Senator. It is important that the ombudsman's office be available to the much maligned man in the street. Whether this will entail branch offices or centres at which the ombudsman's staff will operate, all this has to be given a lot of consideration. There are still many people throughout the country who have a certain fear and reluctance to write to an office in Dublin and hope to get some kind of satisfactory response. They still regard it as writing off to central Government in some way. It would be wrong for us to over-centralise this. I hope that in due course the staff could be provided so that there could be some kind of a spread throughout the country when the things gets going. I do not expect this to happen overnight. It takes time.

I should like to mention the title we have adopted of ombudsman. This is one we should keep under review as the years roll by because it is a cumbersome title. In England they have taken the title of parliamentary commissioner and in Northern Ireland when it started they took the title of complaints commissioner. It seems to me to be more explanatory to the people who have to deal with the office. It should be looked at. I also suggest that the title might be in our first official language.

I warned of the dangers of duplication. I would like to finish on that note and to mention to the House and particularly to the Minister that in Britain the procedure has been that when the ombudsman's report comes in once a year it is examined in full by a select committee and the ombudsman discusses with that committee the broad general approaches taken throughout the past year. In doing that the committee get a certain feel for it and then it goes on to the main Houses. Perhaps at some stage we could look at the establishment of such a committee which would allow us all to get more involved in the workings of the Houses of the Oireachtas and be of considerable assistance to the ombudsman as well.

I welcome the Bill. The Minister has done a good day's work for the nation in introducing it. I see it as not just a mechanism, not just a piece of legislation, but as a genuine advance of the democratic principle.

Mr. Harte

This is my first opportunity to welcome the Minister to the House. I wish him every success in his office in the future. It is very satisfactory to see him coming in with this type of legislation on this occasion.

Any step to help people to air their grievances must be welcomed. I do not think we will have any problem in that respect. This is particularly so if the steps taken are seriously concerned with the question of pursuing justice. While the Bill is welcome and is going to do a very effective job, it would be crazy to suggest that it will be the panacea for all ills. It would be a mistake if it were to become the panacea for all ills relating to the whole question of human rights. From the tone of some of the contributions in the Dáil I feel that quite a lot of people may have that mistaken belief. Certainly the appointment of the ombudsman is an absolute necessity. I will not say that it was overdue because I realise there was great difficulty in framing the Bill. At the same time, I do not believe the problems of public servants and representatives will be actually eased to any great extent as some people have suggested. In circumstances such as this, where people are given an opportunity to process their grievances through extended procedures there is a tendency for more grievances to crop up; people will be made aware that they can complain; the idea will take hold and TDs and Senators and public representatives generally will have the same number of problems to deal with as they had in the past. The number of problems requiring the attention of public representatives will not ease to any great extent. The opposite might in fact be the case. It could make people more conscious of the availability and benefit of political advice centres and so on.

Human rights will always need protection, particularly where the proliferation and expansion of governmental units have increased bureauracy. This has been the cause of a lot of frustrations for people. Bureauracy has got to the stage where the bureaucrats believe that people love to fill out forms and keep records and obey regulations. The bureaucrats never advert to the fact that these forms intimidate certain people, people who are not totally literate. Other people believe it is harassment and some of them feel that some of the forms are very unreasonably set out; some would even go as far as to believe that some of the forms have a stigmatising effect.

The point I want to make is that a lot of problems will arise for the ombudsman as a result of forms having to be completed. There may be errors or oversights and other difficulties for people presenting their problems. It is a good thing to see people who may be aggrieved as a result of such circumstances getting an opportunity to process their claims without the intimidatory completing of very difficult forms or the fulfilling of some very difficult regulation. It is as well to mention those points on the Ombudsman (No. 2) Bill because that is how a lot of people get caught up, particularly people who have not had the benefit of a good education. Even people who have had an education sometimes find the forms as presented rather difficult to comprehend. Many problems will arise because of these forms and the type of regulations that exist.

I do not want to go too far into the question of human rights. If I did I would be raising the whole matter of human rights and the Bill is not really about that matter. I feel that some comment has to be made in this direction, whether or not this will, in fact, take us in the direction of protecting human rights. The ombudsman's job is to satisfy grievances. He certainly will not have the real scope to go into the question of human rights. But in relation to intimidatory forms I feel that it would be well within the scope of the ombudsman to have a look at these forms if people complain about them. That is well within his ambit and he might make some recommendations for modifying those forms. I do not know whether a ministerial order would be necessary for that. It is a very serious problem for a lot of people. I put it to the Minister that this is one thing that would fall within the ambit of the ombudsman. I hope that some day the situation will be eased for those people who are confused and intimidated by these forms and regulations.

I can see that the ombudsman is going to hear some great cries for social justice from vested interests, both in the private and the public sectors. The ombudsman would not be very wise to rely for his success on the sensitivity of vested interests. I have no doubt that the type of man who will be appointed will not be taken in by the cry for social justice from vested interests, but he should watch out for it. Inevitably pressures build up no matter what your job is, and I have no doubt this cry will come.

We have a good record on the question of protecting human rights. It is as good as it is in any other country. That does not mean there is no need for developments in the matter of human rights. The ombudsman's job can be examined later to see what part he can play. When we have a full debate on all aspects of human rights I am sure we will find that our record is as good as that in every other country. That will not be the issue because we are not in the game of international competition. To be as good as most may not be the answer. We may have to ask ourselves is that enough. We may even have to ask ourselves are the terms of reference of the ombudsman broad enough, apart from the question of human rights. In the long term they may not be.

Many people have made the point to me that the appointment of the ombudsman will not change the situation to any drastic extent for those people who feel deeply aggrieved by the absence of full human rights. In fairness we must look at the appointment as a good innovation which will make many of the problems less acute. In time we will know whether we are doing as much as we should, and whether any new form of protection is necessary.

If the ombudsman's responsibility is solely to appease the aggrieved, a sense of futility will develop in his office and will manifest itself not only in the incumbent but also in his staff. We will have to wait and see. If his terms of reference need to be broadened we should not hesitate to do so. As reports are made to both Houses we will find out whether the existing safeguards for citizens are adequate.

It is difficult to talk about an ombudsman without talking about human rights. Traditionally human rights have been protected through the Dáil, the Seanad and the courts. Very often I am critical of the media but we must compliment them on having highlighted many human rights problems. The general public also have given great support in this respect. Remedies for human rights problems lie in legal action. Sometimes a test case is taken to establish what the law is. Sometimes we have to do it through legislation. Sometimes a letter to a TD will solve the problem. Now, hopefully, applying to the ombudsman to put things right will do the trick.

We must recognise that all of these methods have their shortcomings. Theoretically the Dáil and Seanad are geared to deal with any problem. Of course we are limited by certain considerations, especially by shortage of time. There are many more problems waiting for legislation than there is time available. The courts have their own problems because of the existing state of the law. If the law is not clear, it is possible for judges to suggest what it means, except where there may be a binding precedent. Where the law is clear there is no room for manoeuvre, but that does not imply that justice has been applied. An innovation like the setting up of the ombudsman's office may generate some activity on the whole question of whether we enjoy full human rights.

A TD can ask a question but, if the Minister so chooses, he can be unco-operative or unresponsive. In this situation the ombudsman will have certain powers. He will not be in a position to do very much and we still have the problem of aggrieved people. This is what it is all about, trying to solve human problems and protect human rights. Many cases will have to go to court. The ombudsman will not be involved in that, because the remedies will have to be sought in the courts. He cannot do much about unco-operative answers from Ministers either.

The more you examine it the more you realise that the ombudsman's role is limited to dealing with questions of maladministration in the broadest sense. My hope is that it can be extended to a greater degree to protect the processes of democracy. If it does that, and we are heading in that direction, then the whole innovation must be welcomed and encouraged to develop in a progressive way. Anybody who deals in reality can look at the processes under which the Bill allows the ombudsman to function as anything other than dealing with maladministration. Earlier there was talk of it easing all our problems or being the panacea here for all our ills in this question of human rights or of easing the work of the public representatives, but that is an exaggeration.

In order to give real effect to that and to solve those problems you have to be able to give a new means to the citizen whereby he can air his grievances, particularly the citizen who believes that he has been done a very grave injustice. The only method that the ombudsman will have to offer is his own office. The grievances are so vast, the problems of human rights are so vast, that he will not be able to adopt new methods. He may, on the evidence coming before him, be able to make reports that would indicate quite clearly that new methods of airing grievances will have to be evolved.

We are again back into the field of human rights and I find it difficult when I talk about an ombudsman to steer very far away from the question of a charter of human rights. That is the only way in the long run that we can eliminate a major portion of the problems that exist in our society. The setting up of the ombudsman is an inevitable step in that direction even though it may not be a conscious decision of the people who suggested it or the people who have decided the best way to set it up. At least it will set the climate for the whole question of human rights to be dealt with and I look forward to the day when we will see on the Order Paper some motion dealing with that.

It is not a question of being sarcastic, but the employment of an ombudsman is not going to introduce a new social order. It is not going to remove hunger and want. If we acknowledge the limitations of the ombudsman we must accept that his appointment is a very well worth while innovation which in the long term will lead to good things for people who feel genuinely aggrieved. Acknowledging all of that, our aim should be to pass the legislation as quickly as possible and to seek an orderly and progressive development of the ombudsman's role not only for the ombudsman but for his staff also.

As public representatives we should encourage the citizens to make good use of this provision in the hope that some of the activity of the citizens in general will influence the ombudsman to head in the direction of having more Ministerial Orders introduced. That would be doing a good turn not only for themselves but also for other people who have not yet seen any effective measures that will ease the major problems concerning human rights. The process of dealing through the ombudsman if it is used correctly by the citizens will lead to a process of a diversion into new channels. This process should not be very precipitate. The ombudsman has to be appointed and he has to find his bearings.

There are difficulties but I am talking about the long term and I advise citizens who have problems or grievances which come within the scope of the ombudsman to press their cases as hard as possible. In that way, as well as having their own grievances aired and their problems dealt with, they will sow the seed for better things for other people who have problems and may not yet have acquired the knowledge or the confidence to deal with their grievances. People have that obligation, particularly when an awful lot of the problems that come to people are a result of maladministration. That is only one aspect of the ombudsman's role which through cause and effect will necessitate eventually an examination of this whole question of human rights in the broadest sense.

One or two things are a little bit puzzling to me, or perhaps annoying would be a better word to use. For example, many of the underprivileged in society have to rely on gas for cooking. If the State decided that the Gas Company are not paying their way—and they are in particular trouble at this time—what will the situation be? I hope that is relevant. How will the underprivileged, the old, the social welfare recipients and so on fare if the company are in such difficulties that the two-shilling meter has to be done away with in the interest of economics? Would that be within the ambit of the ombudsman if those people were deprived of that service because the Gas Company were not making sufficient money?

Dr. West

Does the Senator recognise the pipeline in Cork?

Mr. Harte

I did not intend to say that but I thank the Senator for saying it for me.

An Leas-Chathaoirleach

Before I call on Senator Martin on the motion for the Adjournment, could the Chair have an indication of when it is intended to resume the debate?

Ruairí Brugha

Tomorrow at 10.30 a.m.

Debate adjourned.