Vol. 94 No. 14
Subsection (7) says:
A person shall be not more than 61 years of age upon first being appointed to the office of Ombudsman.
This could prove to be troublesome and could prevent the right person with the appropriate qualifications from being eligible for this position. I wondered why the Minister thought it necessary to insert such a restrictive clause.
As the retirement age is to be 67—and we all can argue as to whether or not there should be a set retirement age at all—and the term of office is six years, that is in subsection (3) and (4), this means that a new ombudsman cannot be appointed unless he is eligible to serve for a full six-year term. An ombudsman who has already served a full term, however, could be reappointed for a shorter term which would bring him to retirement age. This gives effect to a recommendation of the all-party committee that wished to avoid a situation in which a caretaker ombudsman would be appointed for a shorter period.
I still think it would have been possible by the use of alternative wording to permit a person who at 63 or 64 years of age might well prove to be the right person for a job demanding the utmost integrity and efficiency. If that person were an appropriate appointee at 63 or 64 the wording of the Bill could well have provided that he retire at 67 or indeed that he could go further. It is wrong that we should be restricting the appointment to a person under 61 years of age.
May I ask the Minister whether the all-party committee envisaged, or whether the Government envisage, the kind of person who is likely to be appointed ombudsman? There seems to be some notion abroad that he is likely to be drawn from, let us say, the Judiciary. There may well be a case for leaving the qualifications open-ended.
There are no set criteria for his appointment. If he is going to do all the things I have heard in the Dáil and Seanad he is going to do, he will need to be a superman—or if it is a woman, a superwoman. That being said, there is no question of his selection being from a narrow range of people. Certainly I have heard no suggestion that his selection will be confined to the Judiciary or to any other body. Consultations will be held with the leaders of the main Opposition parties to try to get a person who would have experience of administration and who would be generally suitable for the post. There are no set rules or criteria for his appointment or selection.
I do not want to labour the point at this stage. The Minister implies that somehow the nomination will be the result of a pact between parties in the House. I take it, however, that the first step would surely be that a post like this would be advertised with the particular job specifications.
No decisions have been taken as to whether or not there will be an advertisement. The final decision will be a consensus, but no definite decision has been taken as to how the preliminary lists will be drawn up. I take the Senator's point, one that was made in the Dáil also, that the question of advertisement should be considered, and it will be.
Yes, because it would certainly undermine public confidence should the first ombudsman be seen to be the result of party bosses' deliberations.
It will not be.
I know that probably this will be referred to because it will be on the record, but I should like to be on record as saying that, even though the best man should get the job regardless of professional background, we have a fair amount of input from the legal profession into the administration of the country, particularly in recent judgments and so on and I would hope he would come from somewhere else.
Very few areas are as well qualified. Could I ask the Minister in regard to subsection (6) if there would be any objection to the ombudsman being a director of a company provided there are no fees payable to him.
Not under subsection (6). I do not see any objection to that.
With regard to subsection (3), paragraph (b), where the ombudsman will be investigating a complaint otherwise than a complaint made to him by a person, will the Minister indicate to us under what circumstances he envisages subsection (3) (b) operating? How will the ombudsman be seized of the knowledge to initiate his complaint?
That is subsection (3).
Subsection (3) (b) at the top of page 5.
"It appears to him, having regard to all the circumstances...." Is that it?
Yes. What sort of circumstance? Is it that he will read something in a newspaper, he will hear a rumour, or will he hear something from within a Department even though a Department cannot officially under the Act make the complaint?
Dúirt bean liom gó ndúirt bean leí.
I hope he would not act on that principle anyway. It would lead him into all sorts of problems. Subsection (3) provides that an investigation of an action shall not take place unless a complaint is made by some individual or organisation other than a Department of State or other body listed in the First or Second Schedule and that the ombudsman is satisfied that an investigation is warranted.
My query is in what sort of circumstances does the Minister envisage the ombudsman taking cognisance of a situation, or causing himself to be seized of a complaint?
He can act on a complaint received from an individual, from a community or if he reads something in the papers and feels that there is cause therein for complaint against a Department, he can initiate the action himself.
This could theoretically be a backdoor way for a Department of State or person specified in the First or Second Schedule to get the ombudsman interested in a particular matter. There could be a planted, a leaked or inspired newspaper report subsequently drawn to the attention of the ombudsman and he could become involved. It could happen.
It could happen definitely. I suppose it has been known to happen in the past.
With regard to subsection (2) (b) the grounds given there, in most instances would also probably constitute grounds on which a citizen could take legal action. Yet under section 5, the exclusions section, the ombudsman would appear to be excluded if the action is one in which a citizen has such a right. Does the Minister see any conflict between those two situations?
The short answer is "no, I do not".
One last question on this section, subsection (5), (b), (iii): could the Minister explain the meaning of "or, if he has, has not been refused redress"?
I suppose the situation could arise where the complainant would have sought redress from the relevant Department and would not have got an answer back from them.
This is an important section in so far as it provides for exclusions. I take the point that while it excludes the ombudsman in cases where, generally speaking, litigation is pending or is possible, nevertheless there is a proviso that the ombudsman may still investigate the complaint. Am I correct in reading it that way?
The section lists three circumstances in which an investigation will not be carried out. The first is where the person affected has already initiated civil legal proceedings; the second is where the person affected has a statutory right of appeal to the courts; and the third is where the person affected has a right of appeal to an independent appeal mechanism, that is, one which is not an integral part of the organisation being complained of. The Bill has been drafted to give effect to the basic intent of the all-party committee's report in that it provides that matters which are subject to appeal only to a Minister or any other body which comes within the ombudsman's remit may be subject to investigation. A good example of the machinery would be the social welfare appeals machinery which is staffed by civil servants employed in the Department. Accordingly matters which have been processed through the social welfare appeals machinery will be still subject to further examination by the ombudsman.
Am I right in thinking that where a citizen would have a right under statute in accordance with subparagraph (ii) of paragraph (a) this right does not absolutely exclude the ombudsman because of the proviso towards the end of the section?
I take the Senator's point. He is right in that.
With regard to paragraph (c) of subsection (1) the Minister when replying to the Second Stage debate indicated that the question of recruitment, while now excluded from the ombudsman's remit, might, when his operations have been seen in action for some time, subsequently come to be included. Did the Minister say that?
No. I did say all personnel matters are excluded.
And will continue to be excluded?
I cannot say what another Minister in another Government or administration might do.
The Minister did say that many of the exclusions already listed in the Schedules will come to be reconsidered when the Act has been in operation for some time. He also said that many of the State-sponsored bodies are excluded and made the point that in many cases they are commercial and in competition with bodies in the private sector who would not be subject to any such scrutiny. They might be prejudiced if they were to be included. I would ask the Minister to consider the situation of State-sponsored bodies that have a monopoly. It is very important that bodies having a monopoly should be subject to scrutiny. I would urge when the ombudsman's functions come to be extended that priority be given to consideration of including them.
This is a point which was raised in the Dáil and put very forcibly. I take the Senator's point and I am very sympathetic to that point of view.
Are procedures in regard to personnel matters also excluded? I can understand the point about a specific case not being up for examination and investigation but what about procedures followed by the Minister's Department, for instance?
Anything in relation to personnel is excluded.
Subsection (1) concerns a case where the ombudsman has been requested by the Minister to discontinue or cease investigation. Subsection (1) says that in such a situation the ombudsman will write to the man who made the complaint in the first instance and will give such statement in writing in relation to the matter as he considers appropriate. As I said in my contribution on Second Stage, this is one of the great weaknesses of this Bill in that the ombudsman may well feel forced to write to the complainant and say: "The Minister has requested me to discontinue investigation and in accordance with the Act I have no alternative but to do so." According to the wording here he is not obliged to give any further information in a statement other than that. There is a great weakness.
Is the Senator talking about subsection (1)? This is not the subsection to which the Senator is referring. This subsection deals with the situation where the ombudsman himself decides not to continue with an investigation.
That is the point I am making. I am talking about subsection (1) of section 6, where the ombudsman must write to the complainant and say that he has to cease investigation because the Minister has requested him to do so. According to the wording of subsection (1) the ombudsman can, as he considers appropriate, supply a statement in writing in relation to the matter to the complainant. As I read that, the ombudsman may well feel forced not to give any reasons whatsoever to the complainant, apart from saying that the Minister has requested him to discontinue investigation and he is obliged to do so. That is a great defect in this Bill. For instance, what is the citizen going to say when he gets a letter in that vein? He might well ask what sort of an ombudsman is this?
In this case, not alone does the ombudsman have to tell the complainant that he has to stop because the Minister asked him to but he must also tell the complainant the reasons the Minister has given.
No. "As he considers appropriate" is the wording.
I am sure that Deputy Markey has considered the integrity of the man or woman who would be in this job. I take it that the ombudsman will give the full reasons why he has to stop an investigation.
Being a man of integrity he might feel obliged.
I do not think that any person in a job like this is going to feel obliged to anybody. I would certainly hope that no person would feel obliged.
From my reading of it the phrase "as he considers appropriate" would refer to any second or third person involved. In the case of the first person he would have to give the reasons.
He would pass on the reasons he had got from the Minister.
Yes, but the phrase "as he considers appropriate" refers only to any other person to whom the reason might be given. The first person, the person who raises the complaint, would have to be given the reason.
Has the Minister given any thought as to whether a person who requested action to be taken by the ombudsman and was refused would have any right to proceed to court to compel the ombudsman to move?
The Minister has not had any thoughts on that.
Could I direct the Minister's attention to subsection (3) of section 6 which says "Where following an investigation...it appears to the ombudsman that the action adversely affected the person concerned" and it then says the ombudsman may recommend to the Department of State certain things. Would it not be better and more consoling for the public, more confidence-making for the public that the ombudsman should recommend and that the "may" should read "shall"? The second point is in regard to the consequences of an adverse finding, can it in any situation give rise to compensation?
Could the Senator repeat that, please?
First of all, I am suggesting that the Bill would be strengthened if the ombudsman had a specific obligation to make recommendations following an adverse finding. Secondly, I ask the general question, in the event of an adverse finding, can the ombudsman recommend or can there be any payment of damages to a citizen where damages would be appropriate, or would the citizen have to finish out a complaint, so to speak, by taking action in the courts to get damages?
I take the point about "should" or "shall" rather than "may". I feel that it is just a question of a choice of words. The ombudsman will make any recommendations that he feels are necessary to the particular Department of State. In relation to compensation, he can make a recommendation to the actual Department that compensation should be made to the individual, if he finds that as result of the action of that Department an individual has suffered financially.
He can provide for the payment of damages?
He can make a recommendation.
Where does that arise with reference to paragraph (b) of subsection (3)?
"...that measures or specified measures be taken to remedy, mitigate or alter the adverse effect of the action..."
It could include damages.
With regard to section 8 (4), where the ombudsman may determine whether any person may be represented by counsel, solicitor or otherwise in investigations, two questions arise from that. The first—do I take it that there is no automatic entitlement to be represented by counsel, solicitor or a third party on investigation? Secondly, there is a reference to "any person". Could that include a member of the civil service whose actions may be under scrutiny? Would that person, having regard to the possible serious degree of consequences for that person, be entitled as of right or at the discretion of the ombudsman to be represented by counsel?
There is no automatic entitlement. As the subsection says, it empowers the ombudsman to decide whether any person may be represented by counsel, solicitor or otherwise—that is a trade union representative—or, in the case of, say, a civil servant or anybody where the ombudsman feels it would be necessary to decide the investigation. What was the Senator's second point?
Could the ombudsman permit in his discretion the civil servant, who is actually under scrutiny to be represented by counsel?
That subsection covers that. The ombudsman can decide whether any person may be represented by counsel.
Having regard to the definition of "person" earlier on, would there be any doubt that the "person" could refer only to the complainant?
I do not think so. My understanding is that any person can be represented. There is no automatic entitlement. It is up to the ombudsman.
I just want to intervene to ask the Minister was I not right in reading subsection (2) (b) which refers to the person alleged to have taken or authorised the action as very definitely in this particular section covered by the word "person" in subsection (4)? Therefore, that would for me clinch the argument that the civil servant who was alleged to have taken the action could be allowed to have legal aid if the ombudsman so decided.
Yes, any person and that includes a civil servant, can be represented. There is no automatic entitlement. It is at the discretion of the ombudsman.
Has the Minister considered if it would be constitutional for the ombudsman to refuse this representation bearing in mind that the career prospects of a civil servant could be adversely affected and the redress being sought could be substantial and that if the ombudsman made a determination against legal representation he could possibly be prejudicing the successful conclusion of it from either party's point of view? Would there be any constitutional implications if he were to refuse legal representation or third party representation? I do not know if there is a finding by the courts that there is a constitutional right to legal representation in such a situation but having regard to the tenor of court decisions in that general area, I would be surprised if the court did not find that such a right would be a constitutional right?
No, I do not think that any serious thought was given to that matter. We all know that a considerable number of the complaints that the ombudsman is going to get will be the normal ones. Where a situation arises in which there could be considerable compensation to be paid, that case will stand out and I think that the ombudsman himself will take into account the particulars of each case when he is thinking about giving representation by counsel or solicitor.
Has the Minister a moment to spare to explain for the second time the functions of the ombudsman following which there would be a review? Would the Houses of the Oireachtas have any part in the subsequent deliberations in relation to the possibility of including any of those under the Second Schedule?
I have an open mind. I want to see the office in operation. We will have to wait and see what evolves after that. I would hope that within a year of the ombudsman being in existence there would be a general review of the office to see how he has got on. At that stage we can look at the bodies in the Schedules. I have an open mind completely on the matter.
May I raise a point that the Minister made when concluding his Second Stage speech? I gather it referred to matters which were raised by colleagues of mine concerning a certain practice which is taking place in a Department whereby letters from my colleagues in the other House got one reply and another reply went to a Government Deputy. I want to make it clear that it is not this Department that was being referred to; it is the Department of the Environment. The Minister was obviously shocked by the disclosures. I propose to ask my colleagues to send him the necessary correspondence for action.
Would it be in order for me to congratulate the Minister on the finest reply to a Second Stage debate I have experienced in this House for a long time?
I would like to thank the Senators for their contributions, for the manner in which they made their contributions and for the speed with which they passed the Bill. Senator Harte said it will not be a panacea for all our ills but it will be another step in legislation that will, and is, looking at the rights of the individual.
I understand there is agreement that it would be possible and desirable to take the Committee Stages of Nos. 1 and 2 by sitting somewhat longer than we had intended. I propose that we sit until all Stages of Nos. 1 and 2 have been concluded.
Agreed.
