1998 Annual Report of the Comptroller and Auditor General and Appropriation Accounts.

Vote 38 - Department of Foreign Affairs (Resumed)

Vote 17 - Office of the Ombudsman

Vote 3 - Department of the Taoiseach

We are resuming under the Department of Foreign Affairs. It is relevant to the Department of the Taoiseach and the Ombudsman. We will dispose of the Department of Foreign Affairs first.

Columba Peoples, who has been with us for the past six months is leaving the committee tomorrow. We thank him for his excellent work and wish him good luck in the future.


Hear, hear.

Mr. P. Mac Kernan (Secretary General, Department of Foreign Affairs), Mr. D Gallagher (Secretary General, Department of the Taoiseach) and Mr. P Whelan (Director, Office of the Ombudsman) called and examined.

We are dealing with the 1988 Annual Report of the Comptroller and Auditor General and Appropriation Accounts - Vote 38, Department of Foreign Affairs (resumed). We will later take the Department of the Taoiseach and the Office of the Ombudsman. We open formally Vote 17 - Office of the Ombudsman and Vote 3 - the Department of the Taoiseach.

Witnesses' attention is drawn to the fact that as and from the 2 August 1998, section 10 of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997, grants certain rights to persons who are identified in the course of the proceedings. The other provisions of that section are drawn to the attention of witnesses.

I welcome Mr. Dermot Gallagher, Secretary General of the Department of the Taoiseach. It is your first time to attend the PAC. Congratulations on your promotion. We will talk to you later.

Thank you.

I also congratulate Mr. Gallagher and wish him well in his Department.

You were formerly in the Department of Foreign Affairs.

That is correct, dealing with Northern Ireland. Previous to that I was in Washington for six years.

Your former Secretary General is also in attendance. He can act as your guardian angel today.

I wish to be associated with those comments. It is great to see Leitrim doing so well at present.

It is all happening for Leitrim recently. Perhaps, Mr. Gallagher, you would introduce your accompanying colleagues.

I am accompanied by Mr. Peter Ryan, assistant secretary; Mr. Martin Fraser and Ms Elaine Kelly.

Mr. MacKernan, you are welcome back. Perhaps you would introduce your accompanying colleagues.

Mr. Mac Kernan

I am accompanied by Mr. Frank Cogan and Mr. Derek Feely.

You are both welcome. I also welcome Mr. Pat Whelan, Director, Office of the Ombudsman.

Mr. Whelan

Thank you, Chairman. I am accompanied by Maureen Behan and Tom Morgan.

You are welcome. From the Department of Finance we have Mr. Niall McSweeney, Mr. Lorcan Nolan, Mr. Terry Walsh, Mr. Tony Gallagher and Mr. John White. You are all welcome. We are dealing first with an outstanding issue from the Department of Foreign Affairs which I will ask the Comptroller and Auditor General to introduce.

Paragraph 5 of the Report of the Comptroller and Auditor General reads:

5. Referendum Commissions

In March and April 1998 the Minister for the Environment and Local Government set up two Referendum Commissions, under the Referendum Act, 1998 to provide information to the electorate in respect of the referenda on the Amsterdam Treaty and on the Northern Ireland Agreements. The Commissions were chaired by a former Chief Justice of the Supreme Court and the four ordinary members were the Clerk of Dáil Éireann, the Clerk of Seanad Éireann, the Ombudsman and the Comptroller and Auditor General. The Commissioners were independent in the performance of their functions. Not later than six months after the completion of the performance of their functions the Commissions shall submit a report to the Minister for Environment and Local Government in relation to the performance by them of their functions and the Minister shall lay the report before the Houses of the Oireachtas. The Commissions stand dissolved one month after the submission of the report. In November 1998 the report was submitted and accordingly the Commissions dissolved in December 1998.

As the referenda were held on the same day there was a considerable amount of commonality in the work of the two Commissions. The Secretariat of the Commissions was drawn from the Office of the Ombudsman and the expenses incurred by the Commissions in undertaking their statutory duties were borne on the Vote for the Department of the Taoiseach in respect of the Northern Ireland Agreements Referendum (£2.137m) and on the Vote for the Department of Foreign Affairs in respect of the Amsterdam Treaty Referendum (£2.197m).

The total expenditure on both referenda of £4,334,861 can be analysed as follows:


Northern Ireland Agreements





Sub-contractor/supplier expenditure via media consultants




Media consultants management fees




Paid to media consultants




Direct expenditure through Referendum Commissions












Postal Costs


Printing and Design


Legal Fees




As I was a member of the Commissions I decided in the interest of transparency to engage the services of the auditor who audits the Appropriation Account of my Office, on my behalf, to also carry out an audit of the expenses incurred by the Commissions. His report was brought to the attention of the Accounting Officers of the Department of the Taoiseach, the Department of Foreign Affairs and the Office of the Ombudsman and their observations were sought.

The auditor prefaces his findings with the statement that it should be borne in mind that the Commission and the staff assigned to it were working under significant time pressure and had a heavy workload. This is due in part to the fact that the Commission was under-resourced from a staffing perspective. Accordingly, a number of the problems noted, in our opinion, arise from these matters.

The main audit findings were:

In the appointment of the media consultants public procurement procedures were not adhered to as:

For the Amsterdam Treaty Referendum campaign the lowest tender was not considered suitable and Government Contracts Committee approval was not sought or obtained for the award of the contract to a higher tenderer. Guidance was not sought from the Department of Finance as to whether, due to the urgency of engaging a media consultant, the publication of the tender in the Official Journal of the European Union was not necessary. The successful tenderer however, had got legal advice that there was no requirement to so advertise. As there was no time for a separate tendering process in respect of the Northern Ireland Agreements referendum the Commission sought proposals from the consultants then engaged on the Amsterdam Treaty referendum. The proposal was acceptable to the Commission and the contract was awarded accordingly. However, the approval of the Government Contracts Committee was not sought or obtained for this extension of the contract. A tax clearance certificate must be provided by the consultants before a contract is awarded. Whilst the requirement was specified in the invitation to tender, this was subsequently not provided to the Commissions. Contract documents should be signed in duplicate by authorised persons and copies retained by both parties. Draft contracts/project management agreements were prepared but were not apparently finalised and signed, due to time constraints. There was a letter of 1 April 1998 from the consultants outlining budgeted costs for the Amsterdam Treaty referendum as it was anticipated by them that it would take some time to prepare and agree a detailed contract. The consultants organised sub-contracts with expenditure totalling £3.6m. Apart from the printing element (£611,000), a tender process was not arranged by the consultants. There were deficiencies in the system of internal control for authorising and approving invoices.

I was informed that:

The Commission had to carry out a broad range of statutory functions within a predetermined time scale which was not of its own making and had to do so under the added pressure of a high level of public, media and political attention. The campaigns in respect of the referenda on the Amsterdam Treaty and the Northern Ireland Agreements, were the first such campaigns run by the Referendum Commission and as such were very much a learning experience for the Commission.

The difficulties encountered by the Commission included:

Because two important referendums were held on the same date, the time scale available to the Commission to carry out its functions was particularly tight. Furthermore, the subject matter of the Amsterdam Treaty referendum was particularly complex and presented the Commission with very formidable challenges.

While the staff resources requested by the Commission were approved by the Government without delay, there was considerable delay in filling the approved posts because of the absence of any panels of qualified people. The Commission had, therefore, to draw from the staff of the Ombudsmans Office, who had no previous experience in or expert knowledge of the Amsterdam Treaty or the Northern Ireland Agreements, with the resulting vacancies being filled later on, when staff became available from service-wide panels.

The Commission obviously had to spend considerable time initially in putting staff and an office in place, setting up payment mechanisms and other logistical arrangements as well as engaging consultants and planning a comprehensive information campaign. Almost immediately work had to start on the preparation of the initial publications on the Amsterdam Treaty and on setting up the Website, Press Office and Information Line. In respect of the Amsterdam Treaty, a period of twelve weeks was available to the Commission to carry out its functions from the date of its establishment to the date of the referendum. In the case of the referendum on Northern Ireland, the time available was four weeks and during this period the Commission was running two separate information campaigns. As a result, the work pressures on the seconded staff, especially the Secretary to the Commission, were constant and intense and quite a number of logistical difficulties arose. A series of deadlines arose in quick succession.

The Commission in its report to the Minister for Environment and Local Government agreed that it was desirable that any future Commission should have the maximum amount of time possible under the terms of the Constitution to fulfil its remit properly. Indeed some advance logistical and other work, including the putting into place of staff should be made possible even before the proposals for the referendum are settled by the two Houses of the Oireachtas, for example, as soon as the Government has publicly announced an intention to initiate the Bill concerned.

Arising from the difficulties encountered the Commission also recommended that where it is decided to establish a Commission under the Act of 1998, the minimum period to elapse between the passing of the Bill or the making of an order under Section 12 of the Referendum Act, 1994 and the polling date should be 90 days.

The matters raised on audit in relation to internal controls and procedures have been noted and appropriate measures will in future be put in place to deal with these matters. All the points raised relating to contract procedure are noted for future reference. The severe staffing and time constraints were again relevant in this regard.

The Commission had less than one month to prepare and implement a multi-faceted information campaign in relation to the Northern Ireland referendum. It would have been impossible to do this except through the consultant as it was necessary to utilise the campaign framework already put in place in respect of the Amsterdam Treaty campaign e.g. press office, production company, printers, advertising company, media monitoring etc. The fact that these were already in place meant that the Northern Ireland campaign could be managed and run at a much reduced cost than would otherwise have been the case.

When the consultants decided to submit a tender bid for the project management of the information campaign it formed a consortium to handle the advertising elements and to handle the broadcast production elements of the campaign. While it might have been more appropriate to ensure a tender process for all major elements of the services provided to the Commission these were on board from the outset as part of the consortium. The consultants did not engage in a tender process for these services. When a subsequent need for printing arose a tender process was followed at the request of the Commission. Due to the severe time constraints which the Commission operated under it was a distinct advantage in planning and implementing the campaign to have a number of service providers available at the outset. However, in future and assuming adequate notice is given of its establishment as outlined in its recommendations on these two campaigns, the Commission will seek to ensure that separate major services are contracted following a tender process.

Work has already commenced on a Referendum Commission Procedures Manual which will put in place a series of procedures for expenditure controls, internal controls and strict compliance with public procurement and tendering procedures etc. for future referendum campaigns, where such proves practicable.

Mr. Purcell

Thank you, Chairman. We have a distinguished gathering today because of the unusual arrangements for the financing of the Referendum Commissions. There were two commissions. The first, the referendum on the Amsterdam Treaty, was financed from the Vote for Foreign Affairs. The second, on the Northern Ireland agreements, was funded from the Vote for the Department of the Taoiseach. The administration of the referendum commissions' activities was undertaken by the Office of the Ombudsman. That is why the three are here today.

Paragraph five, which refers to the Referendum Commission, draws attention to the results of an audit of expenditure by the referendum commissions established to provide information on the referenda concerning the Amsterdam Treaty and the Northern Ireland agreements. A total of £4.3 million was expended. Before going into the substance of the paragraph I wish to advise the committee that I was a member of both commissions and for that reason I directed that private sector auditors be engaged to carry out the audit on my behalf in the interests of transparency and to avoid any possible perception of a conflict of interest. The fact that I was aware that short cuts had to be taken by the commissions to fulfil statutory mandates made it all the more important that my office's contact with the audit should be at arm's length. I am stating my interest in this matter.

The main deficiencies in the procedures operated by the commissions identified in the reports of the auditors are summarised in the paragraph. Most of them centre around the contracting arrangements, which did not comply with public procurement procedures. There was a failure to obtain the approval of the Government's contracts committee where appropriate, there was no competitive tendering for most of the sub-contracts organised by the consultants and there was also non-completion of contract documents.

The reports also drew attention to shortcomings in the system of internal control for authorising and approving invoices, although the auditors say there is no evidence that incorrect payments were made. The accounting officer for the Office of the Ombudsman points out the difficulties which the commissions had to overcome, particularly the time frame in which they had to operate, effectively with two staff commandeered from the Office of the Ombudsman. He states that appropriate measures will be put in place for future referenda to address the shortcomings. In that context he instigated work on the preparation of a procedures manual to facilitate management and control overall financial aspects of the commission's operations in the future.

Since then there has been a referendum on local government but that did not involve expenditure or activity of anything like the scale of the two previous referenda, and I am not aware that there were significant problems regarding the operation of that particular referendum, but that would be something which would be looked at in due course.

This forms part of the Vote of the Office of Ombudsman.

Mr. Purcell

The Office of the Ombudsman was responsible for the administration of the Referendum Commission and the secretariat and the staff, such as they were, were drawn from the Office of the Ombudsman. The moneys were provided from the Vote of the Department of Foreign Affairs in the case of the Amsterdam Treaty referendum and from the Vote of the Department of the Taoiseach in the case of the referendum on the Northern Ireland Agreement.

Perhaps I should allow each of the Accounting Officers to make a brief statement first. Mr. Mac Kernan, would you like to make a brief statement?

Mr. Mac Kernan

Yes. Thank you, Chairman. First, I wish to express my gratitude to the Comptroller and Auditor General for explaining the basis of the problem which has arisen. Essentially he touched on one central aspect of the problem, and there is another one to which I will come. The central problem for the sponsoring Departments and the administering Department, if one is to describe the Ombudsman's office in that way, was the time constraints under which the whole operation had to be carried out. It was a very tight schedule and with a very small number of personnel capable of being deployed to do the job.

A second problem, which arose and which I expect will have to be put right for the future, is the fact that there are certain ambiguities and a want of precision as to the role of the sponsoring Departments or Department vis-à-vis the commission when it comes to carrying out the duties of accounting, tendering, etc. This was specifically highlighted when the issue of retention tax or withholding tax arose, and the Department of Foreign Affairs ultimately sought the advice of the Attorney General’s office in regard to this. That advice showed that there is an ambiguity in the legislation in the sense that it is not precisely clear as to the respective roles of the sponsoring Department and the commission in regard to accounting responsibilities.

There is also a paradox in that the Act setting up the commission stipulates that this is an independent body. Therefore, there is an inherent problem in a sponsoring Department micro-managing the day to day operations of a body which is, by law, independent. In any event, the view of the Attorney General's office was that if a matter like this were to be contested, it would be likely that the courts would find that the commission is the body, given its independence, etc., which has the duty of following the accounting rules.

What happened as far as the Amsterdam Treaty commission was concerned, and indeed the other one, was that the Department was supposed to advance funds, in effect, in consultation with the Department of Finance. Funds were not advanced as such but it was undertaken that the Department would pay the bills, duly checked, as they were submitted and this is in fact what happened.

Then, as the Comptroller and Auditor General has explained, when he submitted the material for checking in the private sector because of possible conflict of interest, etc., a certain number of deficiencies came to light and failures to follow proper tendering procedures. That is how the whole issue arose. It is of course regrettable that, between one thing and another, these procedures were not fully complied with although the audit indicates that everything was kosher as far as the bills, etc., are concerned.

The net situation, as far as my Department is concerned, and indeed for the future, is that on this issue it is necessary to be clear about the precise role of the commission or commissions, given their independence and given the need, of course, to have proper accounting procedures and proper tendering procedures. How that will be done is a matter for consideration and no doubt at the end of today's deliberations the Committee of Public Accounts will have a view on that.

Mr. Gallagher, do you want to say a few words on this issue?

Yes. I wish to express appreciation again to you, Chairman, and the members for their warm welcome.

In relation to the 1998 accounts, I have carefully read and studied paragraph 5 of the Comptroller and Auditor General's report and in my view it is a very fair statement of the situation. For my part, having just taken over my position in the Department of the Taoiseach, I found it very helpful, including of course its recommendation.

As regards the detail, the general position with regard to payments was that payments were made once they were duly authorised by the Referendum Commission. Clearly it was essential to the fulfilment of its remit that the commission retained its independence from the sponsoring Department and it goes without saying that the Department of the Taoiseach was anxious to respect that independence.

I should also make the point that the audit report confirms that the amounts expended from our Vote conform to authority and that moneys received by the commission were in respect of properly authorised payments. I think it was the first time the Referendum Commission had operated.

In the case of the Good Friday Agreement, I was involved in the negotiation of that Agreement and we did not know until that Good Friday, as the Deputies and the Chairman will be aware, whether it was going to be approved by the Unionist Party or not. Therefore, there was only literally four weeks and it was very important that a referendum be held on the same day in both parts of the island. It was the first occasion in over 70 years that the people of Ireland had voted on the same issue on the same day and that was a very important message to be able to convey to any organisation which opposed the Good Friday Agreement.

Given the time constraints and the staff constraints, I would like to pay tribute to the excellent work of the commission in carrying through its mandate in such difficult circumstances. There is a lesson in the report to be learnt by all us and certainly I would take it fully on board.

Mr. Whelan

I wish to point out at the outset my role in these matters. I am the Accounting Officer for Vote 17, the Office of the Ombudsman, which covers the Ombudsman, the Information Commissioner and the Public Offices Commission.

The Referendum Commission is an unusual organisation or body in the sense that the funds which are given to it in respect of any particular information campaign regarding a referendum come from the Department sponsoring that particular referendum. Having said that, the day to day expenditure of moneys in connection with both of the campaigns concerned, the Amsterdam Treaty and the Northern Ireland Agreement, was organised and administered by my office. In that respect, I acknowledge that, although I was not the Accounting Officer for moneys expended on the Referendum Commissioner's behalf, my office did have a role in ensuring the propriety of that expenditure.

There are two problems which have been touched on already which I would like to draw to the attention of the committee. The first was the extremely short timescale available to the Referendum Commission in carrying out its information campaign on these two referenda. The establishment order for the commission was signed by the Minister for the Environment and Local Government, Deputy Dempsey, on 2 March 1998, and the referendum took place on 22 May. Therefore, there was a very short timescale for the Amsterdam Treaty campaign, but of course it was even shorter in the case of the Northern Ireland campaign because, in that case, the establishment order was not signed until 22 April, leaving just one month to organise and administer a campaign.

The second difficulty was in relation to the staffing of the secretariat of the Referendum Commission. Although staff were approved by the Department of Finance on 6 March 1998, it did not prove possible to put staff in situ because there were no staff available from panels set up by the Civil Service Commission. We were faced with a crisis and our answer to that crisis was to redeploy some existing staff from the Ombudsman’s Office, to whom I would like to pay tribute in terms of the excellent job they did. It was the first time an exercise of this scale had been undertaken by the office and had circumstances been different, we probably would have sought either people with expertise in this area or to have had the time to train people in the particular skills necessary. That was not possible at the time.

I want to draw attention to another issue at this stage, which is the withholding tax issue, as raised by Mr. Mac Kernan. This was a problem at the time but it was actually sorted out later on. I do not want to go into the details of it at this stage, simply to say that there was some confusion about whether payments made to the consultants to the Referendum Commission should have been made net of withholding tax or not. The net issue here was that nowhere was the Referendum Commission specified as a body which had statutory authority to withhold tax on payments. However, that problem was sorted out to everybody's satisfaction after a period so it was not central to the issues.

Who in the Department of Finance looks after this sort of issue? Is it Mr. McSweeney or Mr. White?

Mr. McSweeney

We deal with different Departments. I deal with the Department of Foreign Affairs, some of the other people here are responsible for the Ombudsman's Vote and others for the Taoiseach's Vote - it depends on the issue. The staffing issues, for example, were handled by the people dealing with the Ombudsman's Office.

Clearly we have a problem here that may arise again and we do not know what Department might be involved in future referenda. Who can we talk to in the Department of Finance in order to get something sorted out for the future so this problem is anticipated and there is as much forward planning as possible?

Mr. Whelan

Could I interject to clarify an issue for you on this point?

Mr. Whelan

We did of course eventually get the staff we were looking for. We now have an arrangement with the Department of Finance that these staff will be kept in situ in the Ombudsman’s Office and they can be immediately deployed in the event that another Referendum Commission is established.

I know but if something is urgent, as happened in the Good Friday Agreement, the normal procedures must be short-circuited. We need a way in which permission is available or processed in advance. Will somebody in the Department of Finance think about that and I will come back to you?

Just a pragmatic suggestion, if I may. Because of this, a procedures manual is being drawn up by the Ombudsman's Office and that may be the vehicle which would highlight any deficiencies and suggest a remedy, a process——

A mechanism to deal with it.

A mechanism to deal with this even if had to be fast forwarded. I think that may be a way of handling it.

We will come back to that in a minute.

It is reasonable to assume that the commissions were brought into action urgently and that many complexities were involved. There are issues of time, staff, skills and the complexities involved. We need to establish something along the lines of what Mr. Gallagher referred to in the context of the Ombudsman's proposed manual. The commission is dissolved within one month after its obligation to report within six months. On that basis, an organisation that is dissolved is non-existent and consequently it is difficult to understand how it can be re-established with the expertise and contacts normally associated with another organisation. How do we overcome this? How do we deal with an organisation which is only put in place when it is required? In the meantime, there is the question of staff being redeployed and returning to other duties in the Ombudsman's Office. It is not something to which one can easily give an answer.

I am not too concerned about the fact that some of the obligations in relation to guidelines, procurement, etc., were not adhered to. This matter has been adequately addressed by the Comptroller and Auditor General. However, we need to find a more suitable structure. Greater continuity needs to be maintained within an organisation which does not exist. Are there any suggestions as to how we could make it more concrete and constructive? Does Mr. Mac Kernan have any particular views on this?

Mr. Mac Kernan

Deputy Doherty and Mr. Gallagher have raised two very cogent points. It may well be that the handbook or manual which is being devised by the Ombudsman's Office would be sufficient for ensuring that tendering and the usual accounting procedures are strictly followed in each case. However, the point made by Deputy Doherty is very cogent in the sense that if this body dissolves itself, it still leaves open the question of who, at the end of the day, is the Accounting Officer and who should be sitting here addressing you and your colleagues, Chairman, and responding to your queries. As I pointed out initially - I know it was a relatively minor point in terms of the substance - the query put to the Attorney General's office brought out the fact that it is not clear, there is an ambiguity, as to who is the Accounting Officer, and a problem posed by virtue of the fact that the commission is, by definition, independent and should, therefore, not be presumably interfered with it in its day to day procedures.

Perhaps it is necessary either to designate one Department - I am not trying to shove work in anybody's direction but the basic Act here comes, I think, from the Department of Local Government. It is certainly important that the issue raised by Deputy Doherty should be clarified for the future, given the fact that these commissions are set up on an ad hoc basis and dissolve themselves subsequently. If another problem arises in the future, we shall have the same difficulty about who will be responsible. Will it be the sponsoring Department, as is the case today, and, if so, which sponsoring Department? Will it be precisely the Department that has to do with the substance of the commission’s business or what? That problem is there and perhaps legal advice and legislative drafting is needed.

That very accurately highlights the difficulty. The independence of the office and the public perception of its independence cannot be fully subscribed to in the form in which it is now constituted. Public perception is important and it is not only about adhering to this but about being seen to be doing so. Regarding staffing and funding, people may wrongly conclude but rightly suspect that it is not independent. It is independent in its function but it does not have any continuity of independence. Mr. Mac Kernan is right that somebody must be in situ permanently. That person, commission or whatever must have financial independence.

There must be a Vote for which they are accountable and answerable to the committee and the Comptroller and Auditor General. It would be wise if we were to conclude that the circumstances in which we find ourselves are a worthwhile learning experience. However, if the situation is not to be repeated, something more substantial and thought provoking must be undertaken in the meantime to ensure independence, continuity and some accountability in the form of one person rather than it being subjected to the influence of three Departments. This has already shown itself to be unwieldy and it is not possible to be independent as a result nor can it be perceived to be such. I am sure it is but it cannot be perceived to be such.

My comments are not a criticism of the commission or its activities. It must work within the confines and exigencies of its directions. The problem arises from the need for a referendum commission. I cannot see the purpose of the exercise. It arises from a court case where it was deemed that the Government did not have the right to spend money promoting its own issue——

Its own point of view.

——and that the counterpoint had to be made. I would have presumed and thought that, in a democratic society, the counterpoint was put by the opposition to Government. I do not understand why that was set aside. It is a waste of public money to have a commission doing a job which is already being done and for which procedures exist to do it.

This is not a criticism of the commission. It is doing the job it was given to do. I do not understand how anyone can claim that the opposition or the opposing view in the country, which exists in almost every situation, is not capable of putting the point itself. Someone decided there was an apolitical way and thinking converged in such a way as to produce an apolitical way to do the job. There is not an apolitical way to do the job. There is a view and a counterview and those views are entitled to be put to the people by the people who hold those views. If a majority exists on one side or the other, so be it. That is democracy. That is the way it works. I cannot——

Does anyone disagree with Deputy Durkan?

Everyone disagrees with me. There is a political and democratic process and legislation should be introduced to change the need for a referendum commission. The procedures exist and referenda have been held before without such procedures.

I am interested as to the views of Mr. Whelan and others regarding this commission being a permanently established body within, for example, the Public Offices Commission, which seems to be the logical place for a body of this nature to reside.

The other issue on which I wanted to take Mr. Whelan to task is that there is a long standing practice established by myself and the Chairman that if any outside consultants are hired by a State body, it should be published with the accounts when coming before the committee. The Ombudsman's accounts do not list the outside media consultants used by the referendum commission for its work. It is important information which we would require.

It is important on a number of levels. Some of the information pumped out to the public was inaccurate, exaggerated and wrong, and that was the case on both sides of the fence. I must question the validity of what the consultants and the commission were doing as regards the presentation of the arguments in the referendum. They appear to have adopted an excessively academic approach where it might have been better to divide the arguments between the political parties as opposed to the Government and the Opposition. I would be interested to see the consultants' report on this referendum and the arguments presented. I find it odd that a public body charged with presenting information in a neutral way should, for the sake of presenting opposition to the referendum on the European issue, for example, be forced into telling untruths, which appears to be the very negation of an independent public commission charged with informing public debate. It appears odd that it could hire barristers to draw up arguments about the position on certain referenda which would end up being direct untruths. I do not say that in a political way. I thought the information was bizarre.

Mr. Whelan, do you agree that your commission told untruths?

Mr. Whelan

No, and I have a difficulty in speaking on behalf of the commission. I was not a member of it so I have a difficulty on that score. To be helpful, I wish to make the following observations. The commission, in its report, when it completed its task, drew attention to the need for research and information on possible developments in the area of holding referendums to be undertaken in the period between the appointment of referendum commissions so, to that extent, there would be a degree of continuity, shall we say. Although a commission would dissolve, there would be work going on in the meantime. The type of thing I think the commission had in mind was that, were another referendum to be in the offing, as it were, but not fully decided upon, it would be an opportunity for people to carry out research on the commission's behalf around that issue so that, when the commission was established, it could get up and running reasonably quickly.

As regards the actual output from the commission and Deputy Lenihan's comments about the unsatisfactory nature of it, there are debates going on in practically every democracy in the world about how to actually organise and conduct this type of information campaign. Different countries have adopted different approaches. The Danes, for instance, have a very sophisticated system that involves funding, not only of political parties in proportion to their strengths, but also of specific lobby and interest groups. I know for a fact that the Danes are not happy with that system. I do not know to what extent one can satisfy everyone on these issues.

The third point I wished to make was to pick up on some of the debate which went on earlier around the question of the systems manual we are producing. I fully accept that this will be of great assistance within our own organisation in terms of identifying proper procedures for the future. In this respect, the auditor's report has been very useful to us. Equally, I take the point about the role of the Accounting Officer and who should be the Accounting Officer. There is a great deal of ambiguity and unanswered questions around that.

These questions are somewhat peripheral to the main issue, which has to be that a commission must be given adequate notice and time to carry out its functions as currently prescribed by law. One can have an Accounting Officer in place and one can have the most wonderful systems and procedures but, if one does not have enough time to go through the contracting procedures——

Situations may arise where the national interest demands urgent action, as in the case of the Good Friday Agreement. That could occur again in some circumstances. We must have arrangements in place which can facilitate urgent action by the State where the national interest demands it. In the normal course, there should be sufficient notice for the commission to be able to organise matters, but there may be occasions similar to what occurred. How do you propose to deal with that?

Mr. Whelan

You are right, Chairman, there could be, but I would have thought that those situations would be few and far between. How many referenda of that nature have we had that required such urgent action?

I draw to your attention the recommendations which the commission made in its report. One was that the Act should be amended to enable a commission to be set up at an earlier date relative to polling date than is possible at present; the second was that the minimum period allowed between the passing of a referendum Bill or the establishment of a referendum commission could be extended. That would go a long way towards easing the commission's difficulties in relation to the majority referendums.

I want to dispose of this quickly.

On a couple of fundamental things, we are talking about the main issue and from my position the main issue relates to who has the ultimate responsibility. There is an irony in several issues here. I am hearing that there were breaches of regulation and there were breaches in terms of the guidance from the Department of Finance; there was no tax clearance certificate supplied and there were also deficiencies in contract documents. Here are three people in the highest positions in various Departments, were they aware they were breaching the regulations? Did they take conscious decisions to go down that road? It is extraordinary to me that while there were breaches of regulations, considering the first sentence here regarding the Amsterdam Treaty referendum, someone along the line decided that the lowest tender was not considered suitable. Who did not consider it suitable? Here were people willing to take a particular decision in relation to a contract on the referendum campaign itself, but there was nobody willing to comply with the regulations as set down by them. For us the fundamental question is how that was allowed to happen in this instance.

Mr. Mac Kernan

With respect, it is quite clear that Deputies here, those of us who have contributed and the Comptroller and Auditor General have pointed to the problems that arose, partly because of timing, but also because of the fact that the commission, under the pressures of the day, did not comply fully with accounting regulations. It was not so much the case that the sponsoring Departments failed to comply, it was a problem with the commission and when the matter came to light, as I pointed out in regard to withholding tax and this matter was discussed with the Revenue Commissioners and the Department of Finance as well as the Attorney General's office, the ambiguity at the heart of the problem came to light, namely, there is no clarity as to who, ultimately, is the accounting officer. This is the issue I pointed out in my initial intervention at the invitation of the Chairman. It remains the case that this ambiguity requires to be resolved.

The generic referendum Act is an Act brought into being, put into place or sponsored by the Department of the Environment and Local Government. They are in the referendum business, so to speak. It has happened in individual cases, for a variety of reasons, the sponsoring body in the case of the Amsterdam Treaty was the Department of Foreign Affairs. The sponsoring body of the Northern Ireland Agreement was the Department of the Taoiseach. The body with executive responsibility for providing the personnel was the Ombudsman's Office. Ultimately the accounting officer issue must be resolved, it seems to me, and it might be done best by ensuring the body which first brought in the Act, namely, the Department of the Environment and Local Government and its Minister would have responsibility there. There is a franchise section in that Department that is in the business of enabling elections and so forth to be carried out. It is certainly clear for a variety of reasons, some coming out here and some coming out of Deputy Doherty's cogent points, that the fact that a referendum commission is set up and then dissolved means that the permanent problem remains - of continuity plus the problem of who is to be the accounting officer.

That needs to be clarified in legislation, it seems to me, by amendment or otherwise. It is not for me to say how that is done as I am not in the business of legislation, but it is clear this problem may arise again. Deputy O'Keeffe's quite valid concerns about a lack of proper procedures being followed may yet arise again. The manual being talked about will make sure commission officials will be able to do their job properly.

Further to Mr. Mac Kernan's contribution, while I understand where he is coming from, the responsibility still rests with people where there are regulations and procedures to be followed. As I see it, the respective Departments had responsibilities and those responsibilities, as far as I can see, were not being taken on board and regulations were not adhered to. I spoke of the irony of refusing to accept a particular contract, which begs the question as to who was able to be responsible for the decision that that tender was unsuitable while ignoring all the other regulations that have been in place over the years?

The Comptroller and Auditor General may be able to shed some light on this.

Mr. Purcell

As I said, I am in an unusual situation here in that I am reporting on accountability that in some ways would relate to me, though as an ex officio member of the Public Offices Commission I would not be involved in the administration. I can throw some light on the point raised by Deputy O’Keeffe.

Because there were no staff available to the referendum commission and because of the need to discharge their functions under the Referendum Act, the tenders were sought from seven companies - I know this - and three responded and came in to be interviewed. Because there were no staff, both the Ombudsman and myself, with the secretary to the referendum commission, who was the one member of the Ombudsman's staff at that stage assigned to the commission, interviewed and were given a presentation by each of the three groups of communications consultants. As a result of that, we decided on a particular firm, Drury Communications, which is recorded in the referendum commission report. The fact that that was not recorded or the formal evaluation that was carried out of those bids was not recorded and there was no evidence of why a particular tender was not accepted is of course a serious oversight, but I understand the circumstances in which that happened. The one member of staff who was available to the commission was being pulled in all directions at the time and clearly things like this were overlooked. That is not to excuse them. They should not happen and I am not trying to excuse them. I can reassure the committee that the evaluation of the bids was carried out in a serious way. Neither the Ombudsman nor myself should have been put in a position where we would have to discharge a quasi-administrative function in relation to this whole business and I suppose the only real answer is to say this is the first time it happened, people were not geared up and there are several reasons that was so. The important thing is to learn from the process.

If I could make a suggestion in relation to the point made by Deputy Doherty, we are not, hopefully, going to have a referendum a year, but if there is a need for a referendum commission it could be set up as a separate Vote. The accounting officer for that Vote could be the Accounting Officer for the Office of the Ombudsman. There you have a direct responsibility on the people who discharge the expenditure; there is direct accountability rather than having it at one remove with the Departments of Foreign Affairs or of the Taoiseach. There are plenty of precedents for this. It is like having a Vote for flood relief which is dealt with by the Office of Public Works, where the Accounting Officer for the Vote is the same Accounting Officer for the Office of Public Works. That seems to be a straightforward way of proceeding in future. That did not happen on this occasion and there were these ensuing problems.

I also recommend to members of the committee, and particularly Deputies Lenihan and Durkan, to read a copy of the Referendum Commission's report where some of the issues they raised in relation to putting negative and spurious arguments are addressed by the commission but I better not try to wear too many hats.

One question was omitted. I refer to Vote 17 - Office of the Ombudsman. Why have the consultancy contracts awarded by Mr. Whelan's office not been published together with the Vote?

There is an answer to that. We are discontinuing that practice. We tried for a year and we found it was not necessary to continue it. We did not ask for it in this case.

Can we specifically ask for it?

Can we make that request now?

Yes, we ask for details of the consultancy. If Mr. Whelan does not have them now, he can let us have them by note as soon as he can.

Mr. Whelan

What details is the Deputy looking for?

All the consultancy contracts awarded by Mr. Whelan's office to external bodies.

Mr. Whelan

Does the Deputy mean contracts awarded by the Referendum Commission?

I refer to the Office of the Ombudsman, the Public Offices Commission and the Information Commissioner. The cost totals approximately £90,000, including administration in the Ombudsman's Office. The Public Offices Commission has dispersed £25,000. Does consultancy fee come under general administration consultancy for the Referendum Commission?

Mr. Whelan

No. This is the point we made earlier that the moneys expended by the Referendum Commission do not appear under the Vote for the Office of the Ombudsman. Ultimately, they were a charge on the Vote for the Department of Foreign Affairs or the Department of the Taoiseach, as the case may be.

Perhaps the Accounting Officer of the Department of Foreign Affairs will outline the cost of external consultancy in regard to the Referendum Commission.

Do you have that detail, Mr. Mac Kernan?

Mr. Mac Kernan

Sorry, I did not catch that question.

What was the cost of the consultancy awarded for the Amsterdam Treaty referendum——

It is in the paragraph.

Mr. Mac Kernan

It is in the Comptroller and Auditor General's report, precise answers to that.

Is the media consultant referred to Drury Communications?

Mr. Mac Kernan

I believe so, yes.

Can Mr. Whelan make any recommendation based on Deputy Durkan's proposal, which I support, regarding the discontinuation of commissions entirely? Referendums should not be promoted by any side. A referendum involves an amendment to the Constitution, which is a matter for the people. A campaign which involves the distribution of literature to households only adds to the litter problem and does not solve it. The electorate should be given more credit for making up its mind on a referendum. The electorate is the most sophisticated group one could meet in any scenario and it should be given more credit.

I am also concerned that consultants organise subcontracts with expenditure of £3.6 million, apart from printing, which gives a total of £4.3 million. The tender process was not arranged by the consultants. Did the consultants issue subcontracts to whomever they liked? I am concerned that the Office of the Ombudsman was involved in this. We depend on that Office to be the watchdog for the public yet it stood idly by when all this was happening. How did that happen?

Mr. Whelan

On the Deputy's first point, I do not feel I can deal with that here today. That is a matter the Referendum Commission addressed to some extent in its report.

I am asking Mr. Whelan deal with the matter.

I will make a proposal at the end of this discussion.

Mr. Whelan

In relation to the Deputy's second point about the Referendum Commission's consultants and the subcontracts, the PR consultants to whom the commission awarded the contract acted as a consortium for a number of other contractors as well. I accept that was not desirable in the circumstances but again I have to draw the Deputy's attention to the very short timescale under which the commission was operating. It would have been impossible for the commission within the timescale it had to subtender for these additional contracts. That was done in one particular case, namely, in relation to the printing contracts.

If time had been available it would have been done in relation to the other contracts as well but there was also - I am not making excuses on this - a certain efficiency available to the commission to the extent that dealing with one consultant meant that all these other issues could be put in place and taken care of by those consultants without the need for the commission itself to run around and deal with these other consultants on a separate basis. However, that is something we have taken on board from the auditor's report and if time allows that practice will not be followed again.

I do not accept that regulations can be breached because of pressure of time. It would be better not to do the job than to breach regulations and do a job in the manner in which it is presented to us here. Somebody should have called a halt and said it was impossible for the commission to carry out this function in the time available rather than breaching regulations as evidenced in very line of this paragraph. It would have been better if somebody in management said he was sorry but the Office could not complete its function according to regulations and law.

I agree with Deputy McCormack. At different times there will always be pressurised situations where people must work under fixed, short-time constraints. If it is a case of ignoring all regulations at such a time it sets a bad precedent. I have a question for the Comptroller and Auditor General. During the interview process three companies tendered for this. I find it hard to understand if the vetting procedure was so detailed - I accept the Comptroller and Auditor General's word that it was - that the tax clearance certificate was not obtained. One could not build a £5,000 extension to a local authority house without obtaining a tax clearance certificate. How could that arise in regard to a contract of this size?

Mr. Purcell

Certainly in the request for tenders the requirement to produce a tax clearance certificate was one of the conditions of the tenders. As I said the failure to obtain that is an administrative matter but the requirement was there in the request for specification.

Was it satisfied at the interview stage?

Mr. Purcell

It does not have to be satisfied at the interview stage. It is a condition on the granting of a contract that a current tax clearance certificate is available. That requirement was not checked when the contract was granted, as I understand it.

Is the administrative failing attributable to the staffing issue?

Mr. Purcell

I would rather let the Accounting Officer account for that. The one administrative function that I carried out in relation to this whole activity was to evaluate the tenders and hear the presentations by the various PR companies.

Why did the shortcomings occur at that stage?

Mr. Whelan

On the question of the tax certificate, it was specified in the application to tender that went out. I assure the committee that the consultants who were chosen, Drury's, had a tax certificate. It was simply an administrative oversight in omitting to ask them to furnish that. We are quite satisfied they had it. My basis for saying that is that at the time they were involved in a major contract with the Department of the Taoiseach, for which they would have had a tax certificate.

Do you know that for a fact or was it an assumption that was made?

Mr. Whelan

The auditor's report quite rightly pointed out that the tax certificate had not been furnished, but we are quite satisfied that it was there.

You say they were working as consultants for the Department of the Taoiseach. Are you sure they had presented it in that particular case or was there an assumption made there also that perhaps someone else had got it previously?

Mr. Whelan

No, we are happy that they supplied it in that case.

I am just reading the figures and I want to get it clear in my mind. In relation to the Amsterdam Treaty, is it correct that in excess of £2 million was channelled through Drury Communications for the purposes of the referendum? Was the figure of £2,052,394 paid to a PR company for a period of 12 or 14 weeks' work?

Mr. Whelan

Most of it would have gone through Drurys.

Why is the media cost so high? Was everything from mainstream media to press handling, advertising, posters and leaflets done through the PR agency?

Mr. Whelan

That is correct.

Does the fee of £199,000 for media consultants management apply to the fee they charged? Are we to assume this is all Drury Media Consultants made in terms of pure fee income out of the total of £2 million channelled through their accounts? Would their fee income in profit terms have made just £199,423?

Mr. Whelan

Yes, that was their fee income.

Is it because of the short-term argument there was a vast difference between the cost of the Good Friday Agreement and the Amsterdam Treaty referenda? Why is the cost less given that the issue is far more important and there was arguably less warning? You have advanced the argument that there was a lack of warning for your work in relation to the Amsterdam Treaty. However, there appears to have been less warning about the Northern Ireland Agreement which happened on Good Friday. Given that no one anticipated an agreement would be brokered, there was a more punishing deadline to achieve that particular result by way of referenda, North and South. Why are the costs for the Good Friday Agreement lower than for the Amsterdam Treaty given your argument about the difficulties posed by the timespan and lack of readiness of the commission? Why were the costs for the Good Friday Agreement referendum, which was much more important, cheaper? I do not understand the time argument in that context because you had less time to prepare for the referendum on Northern Ireland than for the referendum on the Amsterdam Treaty which was signalled at European Union level well in advance.

Mr. Whelan

The infrastructure was in place at that stage and we had the consultants on board. The timescale was shorter, therefore, there was not the time to undertake the same type of publicity campaign as was possible in relation to the Amsterdam Treaty. There was more publicity carried out at different intervals in relation to the Amsterdam Treaty than was possible in the case of the Good Friday Agreement referendum.

Your argument for the high cost of the Amsterdam Treaty referendum is that you did not have time to prepare. You are now saying you had even less time to prepare for the Good Friday Agreement referendum. Are you saying there is a kind of an efficiency gain in the work of your office and consultants between the two referenda?

Mr. Whelan

No, I am not saying time was a factor in pushing up the cost. The auditors picked up that the procedures were not properly followed because there was not sufficient time to go through the normal channels on tendering and contracting generally.

What is the time difference between the two referenda? What years are we talking about?

Mr. Whelan

Both referenda were held on the same day and both were running together as joint campaigns, so to speak. The order for the Amsterdam Treaty referendum was signed by the Minister for the Environment and Local Government, Deputy Dempsey, on 2 March 1998, and for the Good Friday Agreement on 22 April 1998. This latter date was one month before polling date.

I still do not understand the cost disparity.

Mr. Purcell

Part of the expenses incurred in relation to the Amsterdam Treaty included designing a lot of leaflets. Three different leaflets at different times during the campaign were sent through An Post to each household. That simply was not possible in the case of the Good Friday Agreement campaign where there was just one postal delivery. There is a breakdown in the referendum commission's report of each of these. I am sure the Office of the Ombudsman can make that available. The detail of the expenditure is set out in that report. For instance, on Amsterdam printing and design of publications amounted to over £400,000, whereas in the case of the Good Friday Agreement the same category of expenditure was merely £229,000. Radio and television broadcasts in the case of the Amsterdam Treaty amounted to almost £200,000, whereas it amounted to £158,000 in the case of the Good Friday Agreement. Ultimately the cost for the Amsterdam Treaty campaign was £2.2 million and £2.13 million for the Good Friday Agreement. There was a different emphasis on the different categories of expenditure. There were heavier advertising costs in the case of the Good Friday Agreement to compensate for not having had the time to send out leaflets to every home.

Clearly there is a lacuna which needs to be addressed.

What was the percentage turnout for the Amsterdam Treaty referendum? I want to determine if we got value for money because people were more confused after they received all the literature than they were before that.

Mr. Mac Kernan

The participation rate was lower than for the Good Friday Agreement referendum.

It was much lower.

Mr. Mac Kernan

Is the Deputy talking about the turnout or the vote?

I am talking about the percentage vote.

My argument is that the confusing outpourings from the commission were one of the reasons for the low turnout.

I thank Deputy Lenihan for making the point I was trying to establish.

One cannot make that connection. We will try to obtain that information for the Deputy. There is obviously a lacuna which needs to be addressed.

I understand the Oireachtas All-Party Committee on the Constitution is looking at the conduct of referenda, including the McKenna and Coughlan judgments. Clearly this is the right vehicle and they may be producing a report.

I suspect that some time before we get that report——

That will be in the medium term. But it is one of the issues.

As this is a constitutional matter, it is appropriate that the Department of the Taoiseach take the lead. It should also clearly involve the Office of the Ombudsman, the Department of Finance and the Department of the Environment and Local Government. A working group should be established to address the questions that have arisen today - the desirability of having a separate Vote established so that all moneys spent on future referenda will be accounted for by the Accounting Officer of the Ombudsman's office rather than accounting officers having to provide the money and not having control over its expenditure; contingency provisions should be made to deal with urgent situations in the future and whether it is necessary for the commission to spend money in a referendum such as the recognition of local government where there is no significant opposition and only invented arguments. Can provision be made whereby a judgment can be made that it is not necessary to make arguments because there is no opposition? They do not need to spend money in this area. Obviously they have to have regard to the Supreme Court ruling but there may be flexibility within the perimeters of that ruling so that expenditure on unnecessary extraneous arguments can be avoided.

Mr. Mac Kernan

There is likely to be a referendum early next year on the international criminal court. It is important that we take that into account when undertaking the work you, Chairman, have stipulated should take place.

We always put a timescale in place. I suggest the report should be with this committee by 15 November.

Mr. Mac Kernan

There is also the question of preparing estimates depending on which Government Department, local government or Ombudsman's office is the lucky recipient of the task.

As we are coming up to the holiday period we will extend the normal three month period to four months within which the report on those issues - the Comptroller and Auditor General should also be consulted - and any other issues which the group and Comptroller and Auditor General consider need to be addressed including any changes in the law that may be necessary.

What scope do we have, notwithstanding the Supreme Court ruling, to make a recommendation that we should reconsider referendum commissions?

The Deputy is going outside the scope of the committee. We have to be sure that public moneys are not being unnecessarily spent and, where they are spent, that they are being spent with due regard to value for money, efficiency and effectiveness. That is the duty of this committee. We cannot get involved in policy issues.

We would not have that problem if we did not spend the money; we would not have to decide whether it should be spent. The money should not be spent in the first instance.

A decision has been made by Government and the commission, as appropriate, as to whether expenditure is warranted. Looking at the subheads of expenditure in the two referenda I wonder why we spent £1 million on television and radio programmes and £2 million in advertising. We must question whether we are getting value for money. We must address that issue. Perhaps we should have a retrospective look at those referenda to see if the expenditure was warranted and to see if we can learn anything about getting better value for money.

It is entirely open to this committee to make suggestions to the committee looking at the Constitution. We should put forward the suggestion that there be no requirement for a referendum in non-contentious issues and that it be weighted by majority voting in the Dáil or the combined Houses of the Oireachtas. That would represent a significant saving to the public. We are talking about genuinely non-confrontational referenda involving two changes to the Constitution, one of which could be an act of Parliament by a majority vote——

That is outside the remit of this committee.

It is not. We are talking about saving money on an election.

The committee has no role in deciding whether a referendum should be held. That is a decision that has to be taken elsewhere. We have to ensure that when a referendum is held the money spent is used in an efficient and effective way and in accordance with due procedure. That is our job.

The spending of money and the purpose for which it was spent is a matter which comes within the ambit of this committee. I propose - I hope the Chairman will agree - that we make contact with the Committee on the Constitution with a view to ascertaining the optimum method of dealing with these situations having regard to the fact that it is the putting of the counterpoint that has brought this about. That is what it is all about, putting the opposite view. I reiterate what has been said. One of the complaints made by the general public was that they could not understand the information. There was a greater volume of voting in the Northern Ireland referendum which was held simultaneously. The reason for that was that people complained they could not understand what the referendum was about.

I find it difficult to understand what one can do to explain the situation. It is obviously complex. One can explain it forever and spend all the money one wishes trying to explain complex issues and people will still not understand. That is not the fault of the commission or the people. We simply put the points of views and let the people make up their minds.

I think it is probably the fault of European——

We are looking at that too. I suggest we make contact with the Committee on the Constitution.

Perhaps we could invite the Chairman of that committee to come and talk to us in the autumn.

That is excellent.

We will invite Deputy Brian Lenihan to come and talk to the committee about the costs involved.

Will we allow his brother to ask him questions?

We will ask Mr. Mac Kernan to take responsibility for reporting back to us by 15 November. If you require any further clarification you may contact me.

I think the official was preparing the figures on the percentage of voting in the Amsterdam referendum.

Mr. Whelan

The turnout was 56%.

What was the percentage turnout in Northern Ireland?

Mr. Whelan

That figure was for both.

No, that is not the figure I am looking for. I am looking at the number of people who voted in the Amsterdam referendum compared to the number of voted on the Good Friday Agreement. The figure is different because many people did not vote in the Amsterdam referendum.

They spoiled their votes.

They did not cast their votes at all. We were able to research it in the newspapers ourselves.

We are getting a little bit flippant.

We are not, Chairman. I resent that remark. We are not getting flippant. If we spend £4.3 million promoting referendum I am quite entitled to know what success that expenditure had in making people clear about how they wanted to vote. I do not think it had the success desired because a large number of people did not vote in the Amsterdam referendum. Despite all the publicity and literature they received they were more confused. I have heard that from voters in my own house.

It is not a point for this committee. We have made a decision in that respect. We will note paragraph 5 and Vote 38, Department of Foreign Affairs.

Before we proceed I should like to state that I received an e-mail yesterday from your Department telling us that there are 2,768,653 Irish passport holders, worldwide, of whom only 2,023,926 live in the State. That means there are 745,000 living outside the State. Does Northern Ireland represent a very big part of that?

Mr. Mac Kernan

I would say Britain and the United States and various places like that. It would include Northern Ireland, I am sure.

It is a very big number, 740,000. I suspect it is bigger than any other European Union state. Is it bigger?

Mr. Mac Kernan

I could not answer that. Many people in Europe do not need passports to travel so it might not necessarily be the same.

They do not need passports to travel within the EU.

Mr. Mac Kernan

What emerges from this is that a very large number of Irish people hold passports, by comparison with citizens of other countries. For example, probably fewer than 10% of Americans have passports. It is a big country and they do not travel outside it. The number is very high for Ireland and many people who are entitled to Irish nationality, whether they are living in England or in Northern Ireland, want to have Irish passports although they are entitled to both. People in the United States who have Irish nationality have for some time been permitted by American law to travel on Irish passports when travelling abroad, but not for returning to the United States. Many of them hold Irish passports. It is a matter of sentimental attachment.

Is there a breakdown, per country, of this 745,000?

Mr. Mac Kernan

We could probably do that but it would be——

I wondered if it was readily available.

Mr. Mac Kernan

I will inquire.

The witness withdrew.

The Office of the Ombudsman includes the Public Offices Commission and the Office of the Information Commissioner. Mr. Whelan, did you want to make some opening remarks?

Mr. Whelan

No, Chairman, I have nothing to say at this stage.

A report is published every year. We have become familiar with the number of reports published by various commissions and bodies which are now a way of life. From where does the greatest number of questions come to the Ombudsman's office?

Mr. Whelan

Until recently our major client was the Department of Social, Community and Family Affairs but that is no longer the case. The number of complaints against that Department is declining, for all sorts of obvious reasons.

The local authorities are now our single biggest client. We group all local authorities together. We get more complaints about local authorities than any other area.

To what extent are these complaints upheld?

Mr. Whelan

About half the people who come to us are better off as a result of coming to us, which means we either fully or partially resolve their difficulties.

What about Government Departments? I recall the Departments of Agriculture, Food and Rural Development and the Environment and Local Government featuring heavily in queries?

Mr. Whelan

The number of complaints against the Department of Agriculture, Food and Rural Development has increased in recent years. The number of complaints against the Department of the Environment and Local Government is quite small. We do not have more than 20 or so every year.

Do references come from public representatives or from private citizens?

Mr. Whelan

In the main they are from private citizens but complaints are also referred to us by public representatives.

I have, on occasion, referred to the Ombudsman's office and I cannot recall any query being resolved to my satisfaction. That does not mean my point of view was correct, nor does it mean the Ombudsman's view was correct. Is there a bias towards or against the categories of people who make referrals?

Mr. Whelan

Absolutely not. The Ombudsman's function is to see if any maladministration is involved. It is not his role to get things for people. He is there to ensure that public bodies have acted correctly and to see if there is substance in the complaint made by an individual.

Do many cases end up in court after the Ombudsman's office has dealt with them?

Mr. Whelan

Very few, to our knowledge. Sometimes we might not know if someone took a case afterwards but in general, no. If people have already been to court they cannot come to the Ombudsman. The Ombudsman cannot act as a court of appeal against such decisions.

What is the average time taken for the consideration of a query?

Mr. Whelan

We deal with approximately 60% of our complaints within a four month period. Some of our complaints take a very long time - a year or even two. Equally, some are disposed of almost immediately by just turning them around.

What would be the cause of a case taking a year or more to resolve?

Mr. Whelan

There can be a variety of factors. The most obvious one is that the public body refuses to accept our point of view on an issue. It might resist what we propose. In that case we might have to start an investigation, which is a lengthy process. The other cause for a lengthy timescale is that the public body is not in a position to resolve the matter very quickly. For example, last year and the year before we published reports which dealt with claims from people for full retrospection on contributory pensions, which they had not claimed in time. This issue took several years to resolve because the Department's initial position was that the matter was covered by regulation and was out of the Department's hands. Three years ago we took a fresh look at this and initiated an investigation, as a result of which the Department reviewed the regulations and the issue has been resolved. That issue called for much tenacity and effort.

I am familiar with that file. I also assume that other contentious issues of a similar magnitude arise in the Ombudsman's office. Does the office have the resources, time and commitment to pursue every case with the same degree of investigative prowess?

Mr. Whelan

We have the resources. Any Department or office would welcome more resources but I do not make that case. The office is adequately resourced. The difficulty lies, not so much with the resources within the office as within the public bodies with which we deal. In some cases they are not adequately resourced to deal with the issues coming before them. A case in point is the planning area where, as you probably know, there are a lot of vacancies in local authorities and where we find that issues, particularly in relation to planning enforcement, are quite difficult for us to deal with. It is a question of where local authorities' priorities lie at the moment. As you know, there is a lot of development work under way. People who complain to us about lack of planning enforcement are finding that local authorities are not devoting enough time, effort and resources to the issue. It can be very distressing for people to find that a development has been put in place that it is not complying with conditions set down in the original planning permission and that they do not get a very sympathetic ear from the local authority. We, in turn, find, when we go to tackle the issue, that it can take the local authority many months to take action, if at all.

That is about compliance.

Mr. Whelan

Of course.

What do you do about that? Do you accept that?

Mr. Whelan

No, we do not. This is the reason some of our investigations take such a long time to complete. We look at the development, do on-site visits, talk to the complainant and explore all the options open to the local authority, including the taking of a court action. Of course we are not the ones who can initiate such an action; this has to be done by the local authority. Even if we were to recommend that a court action be taken, to some extent we are in the hands of the local authority as to when it will initiate it. It is not as simple as a case where somebody is denied a benefit——

Is it not open to you to make an award against the local authority for failing to discharge its duty so as to bring the matter to a head?

Mr. Whelan

It is open to us to make an award of compensation to the complainant. It is a difficulty at which the office is looking to see whether we should take a generic approach to it. As you know, we have done this in the recent reports on pensions and local authority housing loans. The Ombudsman and I are of the view that the planning area and planning enforcement are now reaching quite a serious stage and something about which——

Yes, but the point is that if you take an easy approach to it, from experience, local authorities will use all the excuses - lack of resources, etc. - whereas if you take a penal approach in one or two cases, they will find a method to implement the law. The ongoing DIRT inquiry is about the same issue, not implementing the law. You have a duty to ensure the law is implemented.

Mr. Whelan

Absolutely. I agree with your comments. However, we must remember that the Ombudsman's powers relate to the making of recommendations to local authorities which, as you know, they are free to accept or reject. We have never run into a situation where they have rejected a recommendation, but it is an area where it is quite difficult to get concrete results.

To whom do you relate in the planning authority? Do you relate to the development control officer? Most local authorities have a development control officer who is responsible for this issue.

Mr. Whelan

We deal with a whole range of local authority officials, including the county manager and county engineer. We interview staff at whatever level is appropriate.

Surely it should only be necessary to interview one person - the person with ultimate authority——

Mr. Whelan

Yes, we do that——

——the accounting officer, whoever that may be.

Mr. Whelan

We interview the people who take the decisions at the appropriate levels relevant to the complaint in question, including the county manager, planning and housing officers, as the case may be. What we try to do in a particular case is track the decision making process through the local authority. This means that a whole range of officials may have to be interviewed. We then make our report and recommendations.

That is a laborious and inefficient way to go about it. The person you should deal with in all such cases is the accounting officer who has ultimate responsibility. That person determines what happens throughout the system.

I am glad to hear that the Office of the Ombudsman is looking at the possibility of adopting a generic approach to the issue of non-enforcement of the planning Acts, an issue which has been raised with me in my constituency also. When there is no enforcement a series of corrosive rumours starts with the person who has made a complaint. He or she begins to believe or suspect that there is corruption within public administration. At a time when confidence in the planning system is at such a low ebb it is vital that this issue is invigilated closely by your office. It starts with a series of invidious rumours and suggestions, which in some cases are utterly wrong, about what planning officials are up to, that in some way they are conniving with those building illegal developments and are not prepared to enforce the planning Acts. There is a belief that there is corruption within local government, that there is a nod and wink operation in local authorities whereby if one is a friend of an official there will be no problem in getting an illegal development through as one can seek retention within a few years and everything will be hunky-dory. If the planning Acts are not enforced, the consequence will be that public administration will be brought to a very low ebb.

I know exactly what the Deputy is saying, that is also my experience. People in my constituency believe that officials are not the only ones who are not enforcing the law. They also believe that public representatives are not enforcing it. What I am sensing from you, Mr. Whelan, is an acquiescence and acceptance of the explanation of staff shortages, which is always given as an excuse, even when this is not the case.

This precedes the current shortage in planning departments. It goes back three or four years.

Why do you not take exemplary action in a few key cases and make an award to members of the public to force managers to act and not lie behind the excuse of staff shortages?

Mr. Whelan

I do not accept that we are acquiescing in this matter.

That is the perception among the public.

I think what the Chairman means is that by inference almost everybody involved in public administration is accused of failing to act. It, therefore, brings public administration, including the Office of the Ombudsman, into disrepute.

Mr. Whelan

I do not accept that we are acquiescing in this matter. I pointed to staff shortages merely as an indication of our frustration in trying to deal with it. I echo what the Chairman and Deputy Lenihan have said. People come to us and allege that the system is corrupt because neighbour A has received planning permission while neighbour B has not. It is an issue about which we are very concerned and it is being tackled. In no sense are we acquiescing or complying with the view of local authorities. It is an issue with which we are grappling and I hope we will have some announcements to make in relation to the planning issue in the coming year.

Planning enforcement is often an urgent matter. If the law is not enforced, in many cases where something is built or knocked down or a use is established without permission one is faced with a fait accompli. The rights of neighbours are often eroded and they have no means of having them upheld. They ought to have recourse to the Office of the Ombudsman. What you seem to be suggesting is that while it does the best it can, because of staff shortages, the Office of the Ombudsman cannot uphold people’s rights. This is a serious matter.

Mr. Whelan

I refer you to the Ombudsman's 1999 annual report which includes cases in which we uncovered serious planning issues and sought redress for the individual complainants. I cannot accept the assertion that we are not doing anything in this area; we are, but it is a complex area. It is not amenable to quick solutions which are available in the case of a person who has been denied a benefit and where such a benefit can be restored, which is a quick and easy solution. Planning is a different area. It is not of our making that the law in that area is so complex or that local authorities are required to take court action, which can be a cumbersome operation, but we are devoting a lot of resources to this at the moment.

The office might think of adopting a generic approach to dealing with these complaints. I would be interested in the methodology it will adopt to deal with them. When Mr. Whelan talked about adopting a generic approach to dealing with the local authorities on this specific issue, is he talking about making it a bigger priority? What does he mean by that statement?

Mr. Whelan

What I mean is that ultimately we would make recommendations covering all local authorities or a number of local authorities in the planning area and that we would also draw this to the attention of the Department of the Environment and Local Government, which has an overseeing role, with a view to trying to tackle some of the barriers, as we see them at present, to effective planning enforcement. I cannot really go further than that at present because I am only telling you how we will approach the issue. You could tackle it on a piecemeal basis, but we will not do that. We think it has got to such a stage that it would be better if we brought these issues to the attention of the Department and the local authorities with a view to getting long-term improvements.

You say it has got to such a stage, in other words, you have been dealing with these complaints piecemeal to date. Are you saying there is accumulated evidence from the caseload, on which you cannot give a percentage, that planning enforcement is a serious issue? What has made you change the approach and make recommendations to tackle the barriers to effective enforcement? Could you indicate the number of cases involved?

Mr. Whelan

I will get the figure for last year and tell you how many we got.

Specifically on planning enforcement.

Mr. Whelan

Planning enforcement is one of the major areas of complaint within local authorities and has been for a number of years. We are conscious of the issues the Deputy and Chairman have raised. People have come to us and told us they no longer have confidence in the way the system operates. While we have no direct evidence of this, there is a perception that a lot of decisions on planning by local authorities are one-sided, ad hoc or whatever. Confidence in the system needs to be restored. We are only one of a number of organs who can play a role in this, but the Ombudsman is keen to tackle this area. I will give you those figures. Last year we had a total of 737 complaints against local authorities and of those 111 were planning enforcement issues.

What is that in terms of the percentage of complaints received?

What was the total number of complaints made to the Ombudsman last year?

Mr. Whelan

The total number was 3,986.

Of which 737 were made against local authorities.

Mr. Whelan

Of which 111 were planning enforcement issues.

About one-fifth.

Mr. Whelan

A total of 111 were planning enforcement issues, which is about one-seventh.

Most of the discussion has related to planning enforcements. Does the office's jurisdiction allow Mr. Whelan to deal with discrimination in planning whereby one planning officer might interpret the legislation one way and another might interpret it in a different way, given, as Mr. Whelan said, the high turnover of staff effectively means planning officers move every few months? What other aspects of planning can he deal with besides planning enforcements?

Mr. Whelan

Can I say what we do not deal with?

Mr. Whelan

We do not deal with the grant of planning permissions or the failure to grant planning permission. That is an issue for An Bord Pleanála. The two main areas of planning with which we deal are planning enforcement and the administration of the planning system. We get cases from time to time where a local authority has failed to notify an objector that a decision has been made to grant planning permission with the result that the objector loses an opportunity to appeal, in the first instance, to the local authority and then to An Bord Pleanála. That is an issue in which we can and do get involved. We have recommended compensation in particular cases where individuals have lost the right to lodge an objection and those recommendations have been accepted by the local authorities concerned.

I accept that. Mr. Whelan touched on the issue of discrimination in terms of different interpretations of planning legislation. If a person gets planning permission to build a house at the end of a road facing the sea and then a new planning officer decides that another person who seeks permission to build a house 200 yards from that house can only build the house parallel to the road, is that a discrimination with which Mr. Whelan can deal, given that those decisions were made based on different interpretations of the legislation by the planning officers?

Mr. Whelan

We deal with issues where discrimination is alleged. We get involved in cases where like cases are not treated in a like manner. In the planning context, we deal with issues that arise in relation to the areas I mentioned, planning enforcement and the administration of the planning system. The granting of planning permissions is not within our jurisdiction.

Does the office get involved in investigating a case where discrimination is alleged even though it cannot affect the result of the planning decision?

Mr. Whelan

Yes, we could. A case like that has not been specifically put to us, but from the complainant's point of view, the problem there would be one of seeking some other form of redress because we cannot recommend the granting of planning permission as it is outside our jurisdiction.

It would be useful for future applicants if the office could establish that such a planning authority discriminated even though the office could not affect a decision. No one, except the planning appeals board, can affect a decision and if it has gone past that time within which an appeal can be made, no one can affect a decision that has been made. The office gets the greatest number of complaints about planning on planning enforcement issues and it can deal with them directly. As public representatives, we get many complaints on planning enforcement issues, but we also get many on discrimination in planning decisions, which may not necessarily be made to the Ombudsman's office as the effect of the decision cannot be changed.

Mr. Whelan

Yes, I would say that is quite likely.

The office can investigate such issues.

Mr. Whelan

We can investigate questions of discrimination, but we would also have to look at whether we can affect the outcome of that discrimination by way of recommending appropriate redress from the point of view of a complainant and within the limits of our jurisdiction.

That office cannot award compensation in that case, or can it? If I bought an corner site for an in-fill development and was refused planning permission for it and my neighbour across the road got permission for a similar development, would the office award me compensation? I do not know if the office has received complaints of that kind. I would be interested to hear the type of complaints it gets in this area, as I receive many such complaints from constituents. If I applied for the in-fill and I was refused, but I can prove to the office that my neighbour across the road, who was in a similar situation, got permission, can I be compensated for the costs I incurred in architects' drawings? Can the local authority be levied for the costs I incurred if I then discovered that I had been treated differently from my neighbour across the road? Can it be recommended that I get compensation for the costs? I am not suggesting that the decision should be reversed - that is obvious - but could the local authority be told to pay me compensation for the costs I incurred in seeking permission given that I was obviously treated differently? Can I get compensation?

Mr. Whelan

As a general principle, if I can talk in general terms, yes, we can award compensation where people have gone through time, trouble and effort unnecessarily in order to get a particular benefit or right. However, I will repeat my remark about the planning permission. It is not an issue——

Mr. Whelan

——in which we can get involved. However, the secondary issues or adverse effects, if I can call them that, around the time and trouble one expends——

What would be the situation if I asked the office to investigate a position where permission was given in one case and refused in another and I went to the expense of applying but failed? No matter what way it is presented, some administrative discrimination must be going on relative to my application compared to my neighbour's application. Can the office do anything substantive for me in such a situation? Can I get compensation because the local authority mucked me around?

Mr. Whelan

In so far as the local authority would be responsible, yes, we could look at that. We would look in particular at whatever procedural deficiencies, if any, were there in relation to how the application was handled but not, of course, the merits of the planning decision itself. If we felt that, within these parameters the complainant had suffered some adverse effect, for which the local authority was responsible, yes, we could then look at the question of compensation or some other form of redress. It is very difficult to prejudge——

I appreciate that.

Mr. Whelan

What we are talking about here really is the administration of the planning system as opposed to the net issue of the decision itself. This is an area that we can deal with.

The office can get into that area. Can Mr. Whelan tell us typically the type of cases with which the office deals in the planning area?

Mr. Whelan

We had a very interesting case in the recently published annual report relating to Donegal County Council where planning permission was given for a particular house. The house was eventually built with substantial alterations to the original plan and there were objections from a number of people in the neighbourhood about that. Our view was that it was more than just a simple modification of the original plan and that a new planning application should have been insisted upon by the county council. As it had failed to do that, we recommended compensation to a number of people in the local area who lost the opportunity to object were such a planning application made. The house was built without any publication or recognition of the fact that it was not built as planned.

In the report, the Ombudsman said he would take a very critical approach in the future if similar cases come to light in Donegal or any other local authority. This kind of thing undermines confidence totally in the planning system where somebody does get a planning permission but then does not abide by it in building the structure.

There appears to be a particular community who specialise in building these unauthorised type of developments. However, people who neighbour this community would be refused permission for similar additions to their homes.

Mr. Whelan

Precisely - that is the perception.

That is good to hear.

Mr. Whelan, has any issue been raised with you as to the constitutionality of the limits on election expenditure?

Mr. Whelan

No, not that I am aware of.

Is there any process for complaining about money being spent on opposing rather than advocating a candidate?

Mr. Whelan

I do not know the answer to that off-hand. If the Chairman wishes, I will get that information for him.

In my personal experience in the last general election, when controls did not apply, a group came out of the blue to oppose me on the issue of the route of the Luas through my constituency. It was entitled to do what it did and it spent much money opposing my candidacy. It put up posters and distributed leaflets, etc. It occurs to me that in the next election, if that happened, I would not be able to respond because of the limits and that a budget has already been prepared in terms of the items on which money will be spent. Would it be constitutional to stop them doing it? My own view is that it would not. Is there a limit?

Mr. Purcell

Again, I must wear one of my other hats as a member of the Public Offices Commission. As I understand it, it is a complex area. However, I can certainly say that the commission has not had any formal complaints of the nature the Chairman mentioned. There are limits on expenditure by candidates or organisations that campaigned what we might call negatively and they cannot incur any expenditure, as I understand it, unless they register with the commission. Their expenditure also would be subject to certain limits as laid down in the legislation.

I discussed this matter informally with the Comptroller and Auditor General previously and I am intrigued by this suggestion. Is it possible for a citizen to stand up and establish himself or herself through the commission and meet all the obligations as the Chairman suggested? If I want to stop the Chairman's campaign in the next general election, is it open to me as a citizen to spend up to £17,000, which is the limit in a four or five seat constituency? Am I totally free to spend £17,000 blackguarding the Chairman, Deputy Mitchell, in the next election? This is a serious issue. I would not even have to be a candidate.

It is very serious.

The Chairman's occupation before he entered politics was in the brewing industry and in Guinness. Could I set up another group to start a campaign to stop Guinness employees getting into the Dáil and spend another £17,000 doing down the Chairman? This is most important and should be clarified.

This is where I think the limits are bound to be found unconstitutional. Citizens must have the right to oppose anybody's candidature on the grounds that they do not agree with their policies, etc. I do not think it can be restricted. Anybody can set up an organisation or act as an individual. Is Mr. Whelan suggesting that an individual does not have the right to spend his or her money opposing a candidature? If so, that would be a very direct attack on freedom of expression.

Mr. Whelan

I can see the point.

If several organisations or individuals do the same thing, can a candidate's right to respond be restricted?

Mr. Whelan

I am not aware that any problem has arisen. As the Comptroller and Auditor General said, no complaints have been made to date about this issue.

It has not arisen yet. We did not have them in the last general election.

Mr. Whelan


The next general election will be the first——

Mr. Whelan

It will be the first time.

From my direct experience in the last election, I had to put out two or three extra leaflets that I had not planned to respond to the misrepresentations of my position on the Luas line. I am not suggesting that the people who misrepresented did so deliberately, but they perceived me as having a particular view and they thought it serious enough to campaign against my candidature. They were entitled to do that, and that is the essence of freedom of expression and democracy. However, I had to spend more than I planned because I had to put out extra leaflets to explain my position and rebut their assertions. If that happened in the next election, I would not be able to do that.

In the local elections, a particular candidate that I know was denounced from the pulpit and through a parish newsletter by a parish priest. He had to do exactly the same as the Chairman. He had to rush out a leaflet countering the parish priest's assertions which were printed in the parish newsletter. If that happened the Sunday before polling, what is one meant to do? One cannot picket the church the following Sunday because the election would be over.

I would be strongly of the view that the legislation is unconstitutional. I cannot see how one can limit a citizen's freedom of expression to oppose a candidate. It follows from that that one cannot restrict candidates from responding. This is a major issue.

Mr. Whelan

I will bring your comments, Chairman, to the attention of the commission and perhaps it will follow them up.

I had this experience in the last election and it affected my vote to some extent in a particular area in what was a marginal seat. I do not know if the people concerned were connected with any other candidate, although they did not appear to be. They appeared as soon as the election was called. I had not heard of them before the election and I have not heard of them since it. They spent a lot of money on three types of posters which were put up on lamp posts with my photograph and with reasons why people should not vote for me. Free leaflets were also distributed. If that happens the next time, I will not be able to respond because of the limits imposed on me by the law and my party.

A person in such a situation should have the right to bring it to the attention of the commission at the time. It would then be a matter for the commission to take action against the perpetrators. The responsibility would fall on the commission.

What are they doing that is illegal?

Once they register, they are all right.

If a person is caught in a situation similar to that outlined by the Chairman and he or she cannot respond without breaking the law, it should be a matter for the commission to deal with it.

What would it do?

That is a matter for it. I am not suggesting what the law should be.

The commission cannot have a role in suppressing people's right to freedom of expression in opposing a candidate.

I agree. However, the law can also be foolish at times.

That would attack the most fundamental rights of citizens.

That right under the Constitution has now been circumscribed by the commission because a person is not allowed to express his or her dissent against a particular candidate unless he or she registers with the commission. That could be seen as unconstitutional interference.

That only applies to organisations. Individuals are not circumscribed. Am I right, Mr. Whelan?

Mr. Whelan

I am not sure. I can check it out because I do not have the details with me.

We cannot limit the right of citizens to freedom of expression. I am concerned that as a result of many recent comments on all the scandals we are being pushed to tackle fundamental rights without thinking of the consequences. I do not think we can limit an individual's freedom of expression, particularly if he or she feels strongly about a particular candidate or opposes his or her views on money lending or abortion.

I agree. However, given the situation in which public representatives are placed, the only recourse they have is to bring the matter to the attention of the commission. It is then up to the commission, given its responsibilities, to deal with it. I accept it is an impossible situation but that is the way it is.

How long would it take the commission to deal with it? What can the commission do about a person who is exercising his or her fundamental constitutional right to oppose a candidate? Even if an organisation was breaking the law towards the end of the campaign, one is faced with a fait accompli. It may have a decisive influence on the outcome of the election. A person could lose or gain a seat. I am almost certain that a court challenge would succeed on the basis that it is unconstitutional to restrict a person’s freedom of expression. It is lopsided against candidates. I can see where it would be in the interests of political organisations to have friendly names oppose another candidate without being directly attached to the party. The issue is as unsatisfactory as the referendum commission.

A person could come under friendly fire as well.

Friendly fire is often more persistent than enemy fire in an election, given our multi-seat constituencies. I do not know if it is an issue which needs to be addressed politically or if the commission should get advice on whether expenditure of individual citizens against the candidate can be restricted.

Mr. Whelan

The Standards in Public Office Bill has been published in the past week or two. I understand it will be before one of the committees of the House. That may provide an opportunity to address that issue.

We discussed in great detail similar legislation and we were given to understand that certain criteria would apply. However, that does not necessarily follow.

We note Vote 17.

The witness withdrew.

We now move to Vote 3 for the Department of the Taoiseach. Do you, Mr. Gallagher, want to say a few words on the Vote?

No, thank you, Chairman. I have already spoken on paragraph 5.

As the new Secretary General of the Department of the Taoiseach, what do you see as the role of the Department?

There are different responsibilities. We have particular responsibilities in specific areas. The Department of the Taoiseach has an overall co-ordinating and prioritising role. We would and should not duplicate the resources elsewhere, but we would take an overview. We should have a role in prioritising. A good example of that is the European Union where there are now four European Councils per year and where more heads of state and governments have a direct role in deciding policy, setting out policy goals and strategies and dealing with the most complex and difficult issues which cannot be resolved at Foreign Minister or individual Minister level. We produced a strategy statement for the years 1998 to 2001. There is a mission statement of the mandate of the Department of the Taoiseach which provides the context for what we do.

I have just arrived in the Department. Over the past three years I have dealt exclusively with Northern Ireland and the Good Friday Agreement negotiations. I also spent a significant amount of time abroad and at home and I dealt in large part with Northern Ireland over the years. I was the only one at the Sunningdale talks in December 1973.

I wanted to give you a sense of the overview in my own words. It is reflected a little in the proposal you made earlier to unblock the difficulty that you, the committee and the Comptroller and Auditor General identified in the case of referenda. You correctly suggested that the Department of the Taoiseach should play the lead role in producing that report for the committee.

Do you see the Department having a lead role in co-ordinating activities which affect a number of Departments?

Yes, I do. I am not talking about duplicating or co-ordinating where it is not necessary. I come back to the European Union. The Cabinet committee is chaired by the Taoiseach and we chair a committee of senior officials. Likewise on Northern Ireland, to give another example, we have a lead role there with the Department of Foreign Affairs. The Department of Foreign Affairs has direct and ongoing daily and hourly contact with the Northern Ireland Office, but we are very much in touch with Downing Street. We co-ordinate policy and chair policy groups in relation to Northern Ireland.

It just occurred to me that, as a former Minister in a number of Departments, nobody from the Department of the Taoiseach ever came to my Department on any sort of a regular basis - or any basis - to ask what the agreed objectives for the Department were and how they were being met. In Guinness, which was the only other place I worked, one would have a meeting with the director in charge at the beginning of the year to agree objectives and one would report to him on those objectives on a quarterly basis, to see if the objectives were being met and adhered to, if there were any changed circumstances and so on. No Department does that. I would have thought it was the role of the Department of the Taoiseach to check ifDepartments are meeting Government objectives, as sort of the head office of Ireland Incorporated.

I think you are right. The role of the Taoiseach's Department has changed very considerably over the years, from at one stage just being there as a secretariat for the Government to, in more recent years, having a distinctly more directional and prioritising role. That is reflected in, for instance, the fact that twice yearly the Taoiseach gets together separately with each Minister and his team of senior officials. They go through the objectives of the individual Departments - the mission statement - for the past six months, what they achieved and what their strategic objectives are for the coming six months. There is more and more of that.

Is the Secretary General also involved in that?

Yes. We prepare the Taoiseach's brief for that meeting. We are in constant contact with other Departments on a regular basis. The Taoiseach is briefed in preparation for that meeting, where Ministers and their senior officials have to set out what they achieved over the previous number of months and what their strategies and objectives are for the coming period. Of course, each Department has now produced a strategy statement and individual divisions have produced business plans. It is obviously not possible for the Taoiseach's Department to co-ordinate all Government activities and priorities, nor should it because that would be a duplication and a waste of time and resources. However, I feel we have a co-ordinating and a prioritising role. That is reflected at the highest level in those meetings which the Taoiseach has individually twice a year.

I am glad to hear that now happens, at least on a six monthly basis. My instinct on how things should be run is that the Secretary General and his management team should appear once a quarter before the Taoiseach and you to answer a number of questions and account for themselves. There are 13 weeks in a quarter and almost the same number of Departments. You could spend one half day per week on it. This is with a view to ensuring and achieving greater efficiency, standards and co-ordination and also learning.

This is the only committee that goes across all Departments and we see that some Departments are far ahead of others in different respects. The innovations and strengths of some Departments could usefully be imported to others. That is something that might be picked up by a central Department like yours.

I think that is very valuable and sensible advice. For example, we have a monthly meeting on Europe of the senior level officials of Departments. There is probably a monthly meeting of the Cabinet committee on Europe. Other areas on which we take a very lead role and get together regularly with Departments are infrastructure, SMI and economic and social policy, which is an obvious example. However, I think your advice is very good, wise and sensible.

The Department of Finance plays a central role, in the sense of approving expenditure and so on. However, there are matters other than expenditure control, such as performance, efficiency, innovation, being up to speed on the latest available technologies, etc.

We discussed earlier with the Office of the Ombudsman the problems in the local authorities. That, ultimately, gets blamed on the Government and, in a sense, rightly so. It is like litter on the streets. People ultimately blame the Government because the Government is doing nothing to get the local authorities to do what they are supposed to do. I would have thought there was a particular role for the Department of the Taoiseach in areas like that, to ensure the law is observed and implemented and that the Departments are as effective and efficient as they should be and are constantly updating themselves.

That is a very fair point. We have to concentrate on key priorities. However, ultimately, we are in a unique position to take an overview because, sooner or later, everything comes to Government.

You agree with everything I say, so maybe my ideas will be implemented.

Another area in which we take a lead role is the information society. Since coming into the position, and allowing for the fact Northern Ireland has taken up a disproportionate amount of time since I took over a few weeks ago, particularly with the confidence building measure, I have been giving a lot of thought to this.

Are there ever meetings of all accounting officers?

Yes, there is an annual conference. We get away from Dublin and go to Carrickmacross in County Monaghan. I forget the name of the hotel.

The Nuremore.

The Nuremore - it is on the way into Carrickmacross. There is a two day conference of Secretaries General.

Of the permanent Government.

Of dedicated officials who serve the rotating Government.

Is the Department of the Taoiseach well enough resourced to handle the centralising and overview role it now has? It is taking on the information society. One or two Taoisigh had junior Ministers in that Department, which underlines the centralising and co-ordinating role the Department exercises. I am interested to know if the Department has enough resources to do the job, given that the role of Taoiseach is becoming more a presidential, executive one, albeit imposed on a cabinet government system. Does the Department of the Taoiseach have enough resources to fulfil that mandate or role?

To be honest, I cannot answer that. I am very loathe to go into a new Department and immediately start looking for staff or resources. I would need two or three months before I took a view on that.

I have very strong views about places being overstaffed. One of the advantages of the SMI is that everybody will clearly have a full sense of what their job is and what their objectives are. I will come back to that in two or three months time. It would be wrong of me now to——

I agree with you. There are as many dangers with overstaffing as with understaffing. People become very lethargic and bad habits develop. This committee always looks askance when the excuse of understaffing or lack of resources is offered, although sometimes that is justified.

In regard to relations between Government and the Oireachtas and the running of the State generally, does the Department of the Taoiseach have a particular role in the reform of the Oireachtas and improving the effectiveness and efficiency of Parliament in the performance of its role?

I think in so far as we support the Chief Whip or offer supporting services for him, he has the lead role there. I may be wrong, but I think he may have appeared before this committee recently.

He did.

In so far as we offer support and back-up to him, he would ask for advice, yes, but he is very much the lead player there. Of course, it is something that is very dependent on all-party support.

The Taoiseach is Leader of the House. Is there anyone in your Department who looks strategically at the way the country is being run, including the way in which the Oireachtas is run? Do they say, "We are not at the races in some respects and we ought to be modernising or changing these things"? Following the DIRT inquiry it was the conclusion of this committee that all the recent scams, going back to the beef scandal, were contributed to, in part at least, by the lack of performance by the Oireachtas itself in obtaining accountability from the Government and State agencies. There does not seem to be any strategic plan to approach the Taoiseach to inform him that there is a problem which the Government should examine. I am not just talking about the current Taoiseach.

No, I know exactly.

We have a difficulty. Who does one talk to about Oireachtas reform? We know who to talk to about what money we are getting out of the banks as a result of the DIRT inquiry. We know who to talk to about public service reform and auditors, but when it comes to Oireachtas reform we do not know who to talk to. Is it the Ceann Comhairle, the Taoiseach, the Chief Whip or the Whips? Nobody is in charge of it, yet we see this as one of the fundamental problems. I would have thought that maybe your Department would do some thinking on this matter and come up with some suggestions for the Taoiseach, and say, "Look, the general administration of the country needs some revision in this respect and that respect".

As far as I know, there is an Oireachtas committee on Dáil reform, or a sub-committee of the Committee on Procedure and Privileges.

Does anyone know how often it meets? Does anyone remember the last bit of reform that ever came out of it?

It is a fair question. In the first place, I can best be of help by talking to the Chief Whip to get an overall sense of where things are and what the role of the Department of the Taoiseach might be.

I have a particular view that one of the reasons why Parliament is not performing as effectively as it used to, or as it should, is that over the years the Whips have gained excessive control. Things are done for the convenience of the Whips and, although I am not saying that is deliberate, the overall effect is to stifle Parliament. It is not intended, but that is the overall effect.

I will give you some examples. For instance, the Whips submit lists of speakers in every debate to the Ceann Comhairle. I may be told that I am on at 7.10 p.m. so I will go into the Chamber at 7.08 p.m. to speak. I do not listen to the debate and as soon as I have finished I leave the Chamber. That situation has been brought about by the Whips and it is stifling Parliament. The level of debates has fallen because nobody is listening to them. The public see three Deputies in the House, with empty seats and of course the level of cynicism about public life is further enhanced.

There are all sorts of other examples, including rushing legislation through the Houses for the convenience of the Whips. This would only happen rarely in the past when there was an urgent Bill, but now Bills are constantly being timed by a motion which states, "Notwithstanding anything in Standing Orders, the following rules shall apply . . . " In other words, Standing Orders - put there to protect the rights of Parliament and to provide scrutiny and accountability, which is necessary in a democracy - are being set aside every day.

If you go back to the Chief Whip to ask him about this you will not get an objective view because the Whips have a particular view. The current system suits them but the good of the country is not the measure against which these things are judged.

An example is that the Taoiseach is far too accountable in our system. Despite his responsibilities in Europe, he has to appear in the Dáil three or four times a week——

Five times a week.

——to answer brickbats and bouquets alike. It is ridiculous that a chief executive has to spend so much time accounting to Deputies.

It is ridiculous. The Taoiseach is in the Dáil five times a week - three times on the Order of Business and twice for Question Time. Should there not be proposals for change in this respect?

I have been giving quite some thought to the role of the Department of the Taoiseach and my own role, but I had not thought in terms of the organisation of parliamentary business. I thought that was a matter for the Whips and for the sub-committee on Dáil reform, but if you suggest it, I am certainly——

The sub-committee on Dáil reform comprises the Whips, so you will get the Whips' perspective. The Whips are a little club with their own joint needs. I mean no disrespect to them, but Whips do that sort of thing because they have to run the House. Whatever makes it easier for them to run the House will happen, but it disregards the need for accountability, proper processes, and checks and balances in the system.

As a result of the lack of accountability and scrutiny, one will get the sort of scandals that are repeatedly arising in our country. We see this as one of the most urgent necessities to have emerged from the DIRT inquiry and all the other tribunals, if we really want to restore politics and public service to the position they should enjoy in a democratic society.

Looking at it from outside for a second, if I may, my perception as an ordinary citizen is that there has been significant reform and that the role of committees has been strengthened considerably. The public perception of that has been very positive. That is my own perception and I know many of my friends feel the same way.

Leaving aside the Committee on Public Accounts.

No, I did not specify any.

I know, but tell me the notable things that have happened in committees.

It is an overall perception. I have the sense, to take one example, that the Committee on Justice, Equality, Defence and Women's Rights is very active. The Committee on European Affairs is extremely active. I may be wrong, but I think the Hamilton investigation into the Dublin and Monaghan bombings is likely to go to the Committee on Justice, Equality, Defence and Women's Rights. That is something that would not have happened previously.

This committee is in a unique position because we have the agency of the Office of the Comptroller and Auditor General and we span all Departments. Therefore, we are in a privileged position compared to other committees. Where other committees are doing valuable work, very often it goes unreported. That is a wider area, however. Our concern is that something should be done to address the accountability deficit that has arisen, or is now evident, in the Oireachtas. Some driving force should examine the matter. Outside the remit of the immediate problems of Government versus Opposition, which is inevitable, where should we be looking to get to in two years time, given the deficiencies that have been identified?

The Secretary General is in an awkward position. He is new to the job and perhaps he is wondering if there is not an in-built conflict in having the Taoiseach involved in the rights of Parliament. There is an internal creative tension there anyway. As the Chairman said, what the committee is trying to convey is that there needs to be a co-ordinated Government view of reform, not just of e-business and making Government more friendly to the public. There is an argument for a co-ordinated approach from the Department of the Taoiseach, or some other Department, from the top down, taking a co-ordinated view of how they will reform how the House works. That should be done in conjunction with other Departments, in the same way that the information society initiative was co-ordinated. At the apex of the information society is the alleged Parliament which is meant to represent all the information and the grand inquest to the nation, or whatever you want to call it. While your Department is co-ordinating the function in relation to the information society extremely well, nobody is looking at co-ordinating the issue which is at the apex of that, which is the Parliament itself and, as a result, perhaps we are suffering Executive tyranny of one kind or another - I do not know.

That is a philosophical question but the point is nobody is co-ordinating the reform agenda in relation to this House, least of all the House itself. Nobody can pinpoint a Department where this is happening or where there is some element of co-ordination. I am putting it up to the Secretary General.

I take the argument. The Deputy spoke about philosophy. Philosophically, from where I would come is that the House would regulate its own business and that the Executive, a bit like the Referendum Commission, would stay back from it. I think the arguments that have been put are worth reflecting on seriously.

What is disappointing is that nobody - this is what is emerging from this conversation - in any Department is looking strategically at the way the country is run and at the respective roles of the different pillars and at whether they should be reformed in the light of the awful scandals and terrible depression among the electorate about by those scandals. There is no sense of urgency from anywhere that there is a need for reform despite the 11 tribunals, the 16 inquiries being carried out by the Department of Enterprise, Trade and Employment and the DIRT inquiry. Parliament trundles on doing the same thing.

Although it is seven months since the DIRT inquiry reported, the only area in which there is no significant progress is the area of Oireachtas reform. In five months time, we will have a further progress report on several areas and we will see that the DIRT inquiry is achieving things. The law officer is in place, we will have the audit review group's report this week, payments have been made by one of the banks already and we will have a report from the Attorney General on comparing tribunals with parliamentary inquiries and what that holds for the future in terms of more effectiveness, less cost, etc., and more speed in addressing these issues. There is no progress, however, on Oireachtas reform. It would appear that nobody on the Government side, above the Whips, is thinking strategically about this. This committee sees this as very urgent.

I would be very happy to talk to the Taoiseach. There are major questions there on which we need to reflect but I think the points were very cogently put.

Chairman, I think the points you have made are very relevant and now is as good a time as any to deal with it. It was dealt with, as the Chairman has said, in the DIRT report. Somebody must be the driving force, somebody somewhere must take responsibility for it. There is a number of problems which need to be addressed. It is a question of making the House relevant.

And effective.

It must first be relevant to the Members before the public because if it is not relevant to Members and if it is not important for Members to go into the House and to participate in a debate, they will not go into the House and will have no reason to do so. There is a number of reasons for that and they are short and simple and Governments of all persuasions have been responsible. Using facilities outside the House to make major announcement is one of the main factors in reducing the relevance of the House - it is not a primary body. Ms Betty Boothroyd in the UK Parliament called the Government and the Prime Minister to task on that issue a couple of years ago, and she was quite right. She reformed that parliament considerably and attempted to make the House of Commons more relevant. I am not suggesting she succeeded in all she tried to do but she brought about some reform there.

There is another element which needs to be addressed and the Ceann Comhairle's office and Departments have a responsibility in this regard. There is nothing as frustrating to a Member than to put down a series of parliamentary question only to find they are refused for spurious reasons. There is no reason to refuse a parliamentary question unless national security is involved. If the information is available in the Department, why not give it? It may be embarrassing to give it but why not give it anyway? It is information which applies to the Minister and it is important from the Minister's point of view that the information is given. The Chairman referred to the series of tribunals. There are many instances over the years where if parliamentary questions had been answered, the House and the public would have been able to get information and there might have been no need for a tribunal.

The last point I wish to make relates to a particular bugbear of mine. I find it an indignity to go into the House and to listen to a series of speeches produced by scriptwriters. To be relevant and to be a participant, the Member should be able to put into words their thinking on an issue. If they are not able to do that, then they should not be here in the first place. All parties do it. A number of Members stand up and read a script which is prepared. The same person prepares the script for everybody. I cannot understand how that improves the standing of Parliament or the participation and contribution of Members to parliamentary business.

Apart from the standing of Parliament, it relates to the effectiveness of how our country is run and accountability in the system to avoid the scandals which so corrode public confidence. Despite the plethora of scandals and the obvious effect they are having on the public, there is no official reaction worth talking about. Does any other Department have a role in this to the extent to which the Department of the Taoiseach should have a role in how we make sure the apparatus of the State is up to the rightful expectations of the people?

I think there is a very clear message very fairly and cogently put. It is something about which I will talk to the Taoiseach and the Chief Whip in the next couple of days.

I would be happy to share some of my more detailed points.

I would appreciate that because it is clearly a matter of concern.

I thank Mr. Gallagher and wish him luck. I hope he will be as successful - I am sure he will be - in his new post as he was in the various posts he has held to date.

I would like to be associated with those comments.

We note Vote 3 - the Office of the Taoiseach.

The witness withdrew.

The meeting next week will be the last of the current year, that is, the year that commences on 1 September and ends on 31 July. We will deal with the Office of the Revenue Commissioners - 1998 Appropriation Accounts (resumed) - Vote 9; Department of Finance - 1998 Appropriation Accounts - Votes 1, 4, 6, 7 and 12 - Contingency Fund Deposit Account/Finance Accounts; and the National Lottery Fund Annual Financial Statements 1994, 1995, 1996, 1997 and 1998. We will deal with other items which were not dealt with in private session today.

The Committee adjourned at 12.50 p.m. until 10 a.m. on Thursday, 20 July 2000.