I welcome the Bill although it has been too long in coming to us. Like other Senators I feel it is unnecessarily restrictive in some of its provisions. It puts some limits on the powers of the ombudsman which do not appear to be justified. I welcome the fact that it appears that some of these restrictions can be removed by an order made by the Government and the order would then be laid before the Oireachtas. I will be dealing with a number of these restrictions in the hope that the Government will honour the commitment given, and repeated in this House by the Minister of State, to extend the scope of the Act when there has been further time to consider it, and in the light of experience.
I note that the Minister of State has repeated in this House the important commitment by the Government to extend the Bill to cover local authorities and health boards. Sometimes when a Minister makes a comment in the House, or says the Government will be examining the position and will certainly do something if necessary, there is a certain doubt about this commitment. Certainly is not binding. It is just a statement made in the House. The fact that the Minister of State has twice repeated it, and had given the assurance to the other House, is definite and, in that sense, is a commitment that will be fulfilled. Indeed, the Minister has set a limit on it—within three months of the date of the appointment of the ombudsman.
I should like to ask the Minister of State if he would specify precisely which bodies set out in the Second Schedule will be covered by this order? Does it include the county committees of agriculture, the vocational education committees, the old age pension committees and sub-committees, and the harbour authorities? I should like clarification of that.
Before going on to deal with some of the other aspects and restrictions in the Bill which I should like to see changed or enlarged, I should like to begin by welcoming in principle the establishment of the office of an ombudsman and to affirm the important value this office and this person will have in Irish society. I support the view expressed by Senator Hussey that the name is ill-chosen and that there has been a tendency in the Minister's speech and in contributions by other Senators to describe both the office and the person holding it in a sexist way. I do not think this was intended, but some of us are more sensitive to these matters than others.
It is important, at a time of the acceptance of the principle of equality and at a time when it is evident that the State must very positively compensate for discrimination and narrowness in the past, that every effort is made. Speech is important in these areas, and descriptions and titles of offices are important in changing attitudes and behaviour in our society. Like Senator Hussey I would have preferred if the office had a different name and I would welcome a more concerted effort to make it clear that the holder of the office may be either male or female and that the staff of the office similarily may be either male or female.
The value of the office itself in our society was recognised by other comparable societies much sooner than we have done so. It has taken us until 1980 to get a Bill actually discussed and debated in both Houses. This is the second Bill put forward this year and, as the Minister of State said, it is the result of an all-party committee which deliberated on the proposal to establish an ombudsman from 1976 to May 1977 when it reported. Other countries, notably the Scandinavian countries, New Zealand, the United Kingdom and, separately, Northern Ireland, have realised that with the expansion in the role of Government, in the Government agencies, in the functions of Government, they impinge more and more on the lives of citizens and affect every aspect of the life of a citizen from birth to death. This expansion in the role of Government has necessarily been implemented by an expansion in the function of administration at Government level, at local government level, and in agencies such as health boards, vocational committees, committees of agriculture, and so on.
Inevitably in any society when there is this very substantial expansion of the role and functions of the Government, there will be some abuse. There will be some maladministration and there will be some oppression of the individual. It would be impossible to spend any time in public life in Ireland without being aware of individual instances of maladministration and of oppression of the individual in a way which did not appear to be warranted. Any Deputy, or Senator, or any councillor, as a normal part of the advice work in an area of contact with people, would receive complaints of this sort. Very often the complaints are aggravated by the knowledge that the person has no redress. This would be the case with a number of the complaints. The complaint is not justified perhaps, but it is part of the complaint that the person has no redress, has no one to put his or her case to, has a feeling of either isolation, as has been mentioned here, or of being intimidated by this cold, faceless bureaucracy. Maybe the bureaucracy has a face but that face does not appear to be one that the individual can complain either to or about to some other authority.
The absence of any redress or recourse has been bad for the texture and the morale of our society. Apart from knowing of individual complaints and grievances in the electoral area I represent in Dublin, I have had a particular insight into individual complaints and feelings of oppression and hardship around the country particularly as a direct consequence of having acted for Mrs. Airey in the case that she took to the Commission and Court of Human Rights in Strasbourg. That case was quite a long time in process. It received a certain amount of publicity during the various stages before the Commission and the court. In the last four or five years I have received each week a volume of letters, not always complaints, against maladministration by Government Departments or local authorities. Sometimes the complaint is, for example, against delays in the bringing of legal proceedings, against solicitors and other professional people and so on. Very often these letters are written with a great deal of fear and the person who brought himself or herself to write a letter obviously had to work up the courage to do so.
The most general comment I would make about the complaints from letters received is the feeling of utter frustration that our society does not cater for the individual who feels oppressed, that our society does not give reasonable redress. That is not to say that there are not, both direct and indirect, tribunals, local representatives, the media, or various other checks and balances. But when the individual feels that there has been unwarranted delay or inactivity, that he or she has been discriminated against on grounds that he or she either does not understand or does not accept, that there has been rudeness and insult to an individual who may be in considerable hardship or may have difficulty in expressing himself, or that sometimes there has been a degree of bullying of the individual—in all these cases there is not any redress for the person. In so far as the office of ombudsman and the existence of an independent statutory person to hear and investigate complaints will go a very considerable way to filling that obvious gap, the value of establishing it cannot be overestimated. Therefore, the most important immediate step to be taken when this Bill is passed is to ensure that the functions and the powers of the ombudsman, and indeed the whole purpose of establishing an ombudsman, will be very widely publicised.
In that connection I would like to refer to the Annual Report of the Northern Ireland Parliamentary Commissioner for Administration for 1979. This report was published on 1 July 1980. I have been fortunate for the last number of years to be in receipt of the annual reports of the two officers in Northern Ireland—the Commissioner for Complaints and the Parliamentary Commissioner for Administration set up under the two separate Acts—the Parliamentary Commissioner Act (Northern Ireland) 1969, and the Commissioner for Complaints Act (Northern Ireland), 1969. For the last six years the two offices have been held by the same person, Mr. Stephen McGonagle, who is now retiring. In the report he refers to the need, even after ten years of existence of these two offices, which more or less cover what is brought together in the proposed ombudsman here, for an explanatory leaflet, and appendixed to this report just published is the text of an explanatory leaflet. It sets out the functions of the Commissioner for Complaints and the functions of the Parliamentary Commissioner for Administration. It sets it out in very simple, clear language the powers they have to investigate, how they investigate, and the matters that are not subject to investigation.
Also contained in that explanatory leaflet is a definition of maladministration. It is essential to have a widely-distributed leaflet with a definition of maladministration. There is not any definition in the Act itself because of the approach to the functions of the ombudsman. I will deal with this in a few moments, because to the lay reader that setting out of the actions which the ombudsman can investigate could be quite deceptive. They could underestimate totally the scope of the actions, inactions and omissions which the ombudsman can investigate. It would be useful to have a leaflet which would give a lay definition of maladministration, of what the ombudsman would be dealing with. The description in this leaflet circulated in the Northern Ireland context is quite a useful one. It is on page 92 and is as follows:
Maladministration may be taken to cover administrative action (or inaction) based on or influenced by improper considerations or conduct. Arbitrariness, malice or bias, including discrimination, are examples of improper considerations. Neglect, unjustified delay, failure to observe relevant rules or procedures, failure to take relevant considerations into account, failure to establish or review procedures where there is a duty or obligation on a body to do so, are examples of improper conduct. The Commissioner may not question the merits of a discretionary decision unless maladministration has been found related to the taking of the decision or the procedures leading up to it.
It goes on to say what remedies are open when the Commissioner for Complaints or the Parliamentary Commissioner investigates and the time limits on complaints. An essential part of the leaflet is how to make a complaint, containing in it a rather simple form. This also is essential because, although it is a most important part of the structure of this Bill—and one which I very much welcome—that the ordinary individual affected can make the complaint, it is necessary to ensure that the individual is in a position to be helped to know how to make that complaint. One way of doing this is to have leaflets widely available with a simple form so that the complaint can be initiated and then the staff of the ombudsman's office can follow it up and get further details, if necessary, so that it can be properly investigated and processed.
That is one important aspect of the publicity that needs to be given to the office of ombudsman, and to the kind of job he will do and to ensure that people are aware of the relevance of the ombudsman to them.
There is another aspect of the publicity needed, and this is when the ombudsman is installed and trying to carry out his tasks. It is useful to learn from the experience of an official equivalent to the ombudsman, and again I refer to the Northern Ireland context. In a report drawn up by the first Complaints Commissioner established in Northern Ireland, Dr. John Benn wrote a personal assessment of his first three years in Northern Ireland as Commissioners for Complaints. It was published on the 18 January 1973 and formed part of A New Frontiers Public Lecture presented by Social Administration at the New University of Ulster. It is a very personal assessment of the job he had to do, the way in which he approached it and his problems and achievements during that time. At page 10 of this report he turns to the question of publicity and says as follows:
The question of the degree of publicity which should attend the activities of my office is one that is affected by many complex and often conflicting factors. I take the view that my powers need to be backed up no less than by the force of law, by the weight of public opinion. I have found, as have persons performing a similar function in other jurisdictions, that while it is important to have legal powers in reserve, these are likely in practice rarely to be used, and the most effective deterrent to discrimination and other forms of maladministration is the sanction of the public conscience, the promotion of a climate of opinion in which good practice is not regarded as an ideal but as a norm, and in which there is no question of discriminatory or arbitrary action. Of its nature this is not a dramatic development but a long, slow, and essentially cumulative process. I believe that my office can contribute in two ways: first, by encouraging among officials better standards of administrative practice and a sensitivity to the needs and aspirations of ordinary people, and secondly by reassuring the citizen that he is not defenceless or unsupported in his encounter with bureaucracy, and that his just complaints will be objectively investigated and may be redressed. These activities require the support of an informed public opinion.
He then refers to the fact that he makes reports and his reports are published and that that is an important aspect of it. But he goes on to extend that and says:
I therefore think that it would be useful if at the discretion of the Commissioner and with the consent of the complainant publicity could on occasion be given to the investigation of a complaint. My office needs to have publicity on occasion if only to bring it to the notice of the public. Apart from this it could, I think, help to strengthen the deterrent aspect of the office if it were known that complaints might in certain circumstances be investigated in public. What I have in mind in this connection is that the Commissioner could be given power, with the consent of the complainant, to hold a formal hearing in public with the press present if he so thought fit in any particular case and that, again with the consent of the complainant, the Commissioner might be given power to issue his report on a particular case to the news media.
Clearly the Commissioner of Complaints in Northern Ireland with the experience of three years in office was approaching this as a complex issue, but I think to have a provision, as is contained in this Bill, that the investigations by the ombudsman would not be public is perhaps over-cautious, lending too much weight to the possible undesirable side effects of publicity in certain cases. It would be desirable to give some discretion and to have, where appropriate and with the consent of the complainant, public investigations—public hearings of complaints from time to time. The point is well made that this would have a deterrent effect and would also have a useful publicising effect of the fact that when there were complaints they were investigated by an impartial officer who was not going to do a cover up job, who was not going to hide the nature of the complaint.
When it comes to the question of publicity, I do not think it is enough that the reports will be laid before both Houses. We are all too well aware that many reports which are laid before the Houses of the Oireachtas do not receive adequate publicity. Very few of them are debated either in the Dáil or the Seanad. They tend by their very nature to be rather dry and technical documents. They are official reports to the two Houses of the Oireachtas and they do not get a coverage which would reach the people who ought to know, and may need to know, what the functions of the ombudsman are.
Obviously, with an office of this nature a great deal will depend inevitably on the personality and commitment of the woman or man who first holds the office of ombudsman. A lot also will depend on the size of the staff that person will have at his disposal, on the kind of back-up and power through capacity that the ombudsman and his staff will have. This is becoming a very serious problem with the various posts we have created in the last few years. Not so long ago in this House—about last November—we debated the first report of the Employment Equality Agency. We saw that the agency is under-funded. We saw that it cannot carry out adequately its statutory functions. It is critical of not being able to fully discharge the very important functions it has in the area of securing the enforcement of equal pay and equality of opportunity for male and female workers, but primarily for women workers. We are also aware from recent publicity, that the director of consumer affairs is another public office that is under-funded. He is not able fully, properly or adequately to discharge his important functions and responsibilities. I do not think it would be difficult to add to that list.
Since we are, in this Bill, creating another very important and very valuable office—an office which will be to serve the ordinary citizen, as the Minister of State said—it is vital that we know when the Bill is going through the House what is intended to be the allocations for the office, the size of staff and what are the proposals. This is something which ought to be discussed on Committee Stage. Section 10 does not give any indication of what the proposed size will be. I will not be entirely happy if the Minister of State in response says that will all depend on what the ombudsman may feel, because the point I am trying to make is that the persons appointed do not have power. All they can do is use the organs of publicity or publish reports saying "we are under-funded". The responsibility for ensuring that they have adequate resources and funds and adequate staff rests with the Members of the Oireachtas. It is an essential aspect of understanding just how effective and how useful the ombudsman will be. We must have the detailed information from the Minister in his reply.
I would now like to deal with the provisions of the Bill in more detail. Section 4 relates to the functions of the ombudsman and I will make a general comment on the way those functions are set out. They do appear to be narrower than is the case. Section 4 begins by saying that the ombudsman shall be independent in the performance of his functions. It says, that subject to the schedule, he can carry out a preliminary examination of a matter if it appears to the ombudsman "that the action has or may have adversely affected a person...". that the action was or may have been taken without proper authority, taken on irrelevant grounds, the result of negligence or carelessness,...". The use of the word ‘action' could be construed more narrowly than it should be because in the definition section it is defined as including "decision, failure to act and omission". It is essential that we publish an explanatory leaflet making it clear, because very often a failure to act, or an omission is the basis of the maladministration, is the source of real complaint of the citizen. Reading the section as it stands it could give rise to confusion or to an unnecessarily narrow identification.
In another respect, it appears that the functions are very narrowly circumscribed because it does not appear that the ombudsman can receive a complaint from a civil servant. It appears that although other citizens are to be able to avail of the possibility of filing a complaint for maladministrations, a civil servant, if the complaint relates to his own terms and conditions or to his own position, cannot lay a complaint. I may be wrong in my interpretation as I read the exclusions but in section 5 (1) (c) of the Bill it is stated that the ombudsman shall not investigate any action taken by or on behalf of a person "relating to recruitment or appointment to any office or employment in a Department of State or by any other person specified in the First Schedule to this Act". Specified in the First Schedule are the Departments and staffs of the various Departments of State, relating to or affecting the terms and conditions of that person.
I would like if the Minister would clarify the point for me. May a civil servant complain to the ombudsman, in any circumstances, about being the victim of maladministration, or is a civil servant disqualified by the fact that he is a civil servant, from filing a complaint? Is that exclusion in section 5 (1) (c) and (d) confined to preventing a civil servant from complaining about his terms and conditions of employment? I would be grateful if the Minister would clarify that.
On the functions of the ombudsman, in section 4 (7) there is a provision that:
An examination or investigation by the Ombudsman shall not affect the validity of the action investigated or any power or duty of the person who took the action to take further action with respect to any matters the subject of the examination or investigation.
This provision is similar to the provision which applies in the Northern Ireland context. It has been referred to by the Commissioner for Complaints or the Parliamentary Commissioner for Administration, depending on which office is concerned, as sometimes leading to unnecessary difficulties in both investigating the complaint and seeking some resolution of it. If there is a complaint of maladministration where a licence was refused and the particular official against whom the complaint was laid pays no attention to the investigation and issues the licence to another person and there is only one licence in question, this could make it very difficult to undo the wrong if the complaint is upheld. I can see certain difficulties here. I think it would be going too far to say that in any case where the ombudsman had received a complaint and decided to investigate it, instantly all activity had to stop, the action had to be terminated or nothing could be done in relation to it. That would be going too far. This would appear to be an area where it would better that there be some discretion or, better, that there be some way in which the ombudsman could seek to ensure that while the investigation was taking place the action would not either continue or be terminated in such a way as to render the complaint useless and to make it impossible to remedy the particular defect.
There are one or two other points that are very much Committee Stage points that I would like to come back to. There is a point on which I seek clarification in relation to the conduct of investigations—this is under section 8. I have already referred to the fact that it is going too far to require that in all circumstances an investigation by the ombudsman would be conducted otherwise than in public, that there ought to be circumstances where there can be publicity because there is a value in having publicity in a particular case, where the complainant does not object to publicity. In subsection (4) of section 8 there is a provision stating that the ombudsman may determine whether any person may be represented by counsel, solicitor or otherwise in an investigation by him under this Bill. I would like to have some clarification of precisely what is intended there. If the ombudsman determines that a person may be represented is it intended, that civil legal aid will be provided for them, for example, and on what criteria would the ombudsman determine that in some cases legal representation would be afforded and in other cases it would not? I would like to have that section clarified.
I turn to the schedules which have already been commented on by a number of Senators as appearing to be much more restrictive than is warranted. The most serious criticism that could be made is the one of the exclusion of local authorities and health boards and that the Minister has undertaken will be amended by a Government order within three months of the appointment of the ombudsman. There are other exclusions.
One of them is a very serious exclusion and one which may undermine some public confidence in the office, as genuinely intending to enable citizens who feel aggrieved, who feel that there has been an act of maladministration of which they are the victims, and that is the exclusion of prisons from the scope of the Bill. This also is the paragraph in the Minister of State's opening speech with which I take very serious issue. He said: "The exclusion of the prisons is due to the serious problems their inclusion would cause". It may not be easy to include prisons, but that is not the reason to exclude them.
There is another sentence I also query very basically. It is as follows: "Prisoners already have adequate means of redress and their rights are adequately protected under the law and the Constitution." Is this information coming from prisoners? Who has provided this global and rather complacent statement? I suggest that the contrary is the case, to a degree that does not reflect well on us as a society. We do not ensure that prisoners have in all circumstances genuine access to adequate means of redress and that their rights are fully and adequately protected. If an ombudsman is to be at the service of the people, to be an outlet for a complaint against maladministration, all the more should the ombudsman be at the service of anybody who is incarcerated, who is deprived of his or her liberty, a person who is in prison or, indeed, in a mental institution or any other place where they are not in full control of their situation, where they depend totally on the way in which others administer the place in which they find themselves. It is essential that these be included.
In the final sentence of this brief paragraph, the Minister of State said in relation to prisoners: "There is also the likelihood that the facility would be abused". I do not accept that that is a good reason not to include prisons within the scope of the ombudsman and allow prisoners to complain. It is fair to say that this procedure will be abused. There will be vexatious complaints. The ombudsman, however, has the power to rule out complaints that are vexatious, unfounded, or unwarranted. Surely that is how we deal with unwarranted complaints.
I cannot accept any of the three grounds on which the Minister has excluded prisons—the first being because of the serious problems their inclusion would cause. It is much more important that we provide a legitimate outlet and expression of complaints of maladministration, whatever the difficulty, than that we use some unspecified difficulties as a reason for not doing so. I find it very hard to see what the unique difficulties are. If there are explanatory booklets, leaflets and forms available in prisons, there is no reason, from the point of view of the prisoner, why they would not have the possibility of making a complaint. They are in the prison, so the complaint can be investigated without much difficulty.
This procedure would not cut across the role of the visiting committee because the complaint of maladministration affecting them would come within the province of the ombudsman. Even if there was a certain duplication between the role of visiting committee and the possibility of access to the ombudsman, this could be a good thing. The visiting committees have not performed the role of an ombudsman in so far as prisons are concerned and do not purport to. Citizens who perhaps in some instances more than others, because they are trapped in their situation, would have a legitimate complaint to make, ought to be in a position to make it. I do not accept that they have adequate redress at the moment. Prisoners, in general, in Ireland would not accept that and they, after all, are in some respects the best judges of whether or not they have adequate redress for their rights. I do not accept that it is a legitimate objection that there might be some abuse. The system is already set up to cater for and weed out any abuse.
I would also like to see included complaints against the Garda. The general and broader issue of the need for independent investigation of complaints against the Garda has been the subject of considerable debate. In a number of other countries the ombudsmen have power to investigate complaints against the police. This would be good, both for the Garda and for the individuals complaining of maladministration. It would be well within the competence of an ombudsman to sort out complaints which should not properly come before the ombudsman, either because they should form the basis of a civil action or because they do not involve maladministration of the type set out in section 4.
The exclusion of the possibility of complaining against the Garda could suggest a reluctance to establish any independent investigation of the activities of the Garda, particularly because this has been a subject which has come up a number of times in recent years and there appears not to be a willingness to establish a separate independent complaints machinery. I would have thought that this was an opportunity to include the Garda within the general scope.
Finally, I cannot see either the logic or the sense of a number of other exclusions. I will take a few at random from the Second Schedule, persons not subject to investigation: the Dental Board, the Electricity Supply Board, the Pigs and Bacon Commission. Interesting enough, in the 1979 report of the Northern Ireland Parliamentary Commissioner for Administration, one of the complaints lodged was against the Pigs Marketing Board of Northern Ireland. Why are these boards—and I am not singling out the Pigs and Bacon Commission—excluded from the scope of the ombudsman? We have a very large number of State-sponsored bodies and agencies in this country. They represent a very important, wide sweep of activity which affects the citizen. It will be confusing for people that in some instances where they are the victims of maladministration, they have the possibility of investigation, and in other instances where there does not seem to be any logic to it, they will not have.
Knowing that the Government have power to enlarge the scope of the powers of the ombudsman, it would be desirable to look at the experience in other countries, look at the kind of complaints that ombudsmen and parliamentary commissioners have handled, and cast the general net as wide as possible. To do so will enhance the standing of the office of ombudsman and will prevent people from feeling that there is a discrimination built into the system, that there are only some kinds of maladministration against which one can complain. However, I would put that kind of extension on a different level from the inclusion of the prisons and the Garda. As a matter of fundamental principle these ought to be included in the scope. If it were feasible to do so, I would put down an amendment to that effect in this Bill. Given that the other House is no longer sitting, there is not much sense in attempting it at this stage.
This Bill is rightly criticised as being over-restrictive. It has a number of very positive features, the fact that the individual can complain directly, the flexibility in relation to the time limit which would normally be one year but can be waived or extended if the circumstances warrant it. On the whole the structure is a fairly good one. I would hope that either when the Minister is extending the scope to include local authorities and health boards that he may continue that and include other bodies at that stage, or that the scope will be kept under very constant review, that, as the ombudsman and his staff, or her staff, gain experience they will themselves be in a position to comment on and perhaps recommend an extension of their functions.
