I move amendment No. 1:
In page 2, subsection (2), line 25, to delete "reference" and substitute "references".
Ombudsman (No. 2) Bill, 1979: Committee Stage.
SECTION 1.
Amendment agreed to.
Question proposed: "That section 1, as amended, stand part of the Bill".
I want to ask the Minister of State a question which I cannot answer off the top of my head. I would be glad to be reassured by him about it. Is the expression "Department of State" defined in any statute such as the Interpretation Act in such a way as to remove any ambiguity about what it means? I guess that the answer is yes, but I would like to be assured because the definition of this section does not contain a definition of "Department of State".
We come across the definition in another section later on that will get rid of any ambiguity.
No, later on is a list of Departments of State over which the control of the ombudsman applies and a list of bodies excluded from that, but there is no definition in the Bill of a Department of State as such. I suspect that it exists somewhere else but it might be no harm if the Minister were to make that point clear or get it cleared. I do not mean off the top of his head.
Section 1 (2) should satisfy the Deputy.
I am not so sure. It is not a definition. It is circular. Section 1 (2) reads:
Save where the context otherwise requires, reference in this Act to any Department of State include references to the Minister of the Government having charge of that Department of State...
All it tells us is that this entity, for the purposes of this Bill undefined, is to include the Minister having charge of it; but as far as this Bill is concerned it remains an undefined entity. I am saying for the third time that it may well be that the expression has in another Act a statutory definition which will apply equally to this. I mention it so that the Minister can look the point up in case there is any substance in it.
I ask the Deputies to accept the section and we can move on to section 2.
I am not sure if it is done that way and I am not finished on section 1. If the Minister of State will look at section 1 (3) (a) at the bottom of page 2, he will find reference to a Department of State in which certain business and functions are comprised and to "the Minister of the Government having charge of that Department of State". I am not sure about "Department of State" but I am as near sure as I can be that the expression "Minister of the Government" has no standing in our legal system.
There is such a thing as a "Member of the Government" but the expression "Minister of the Government" is not a constitutional expression and I am not aware that it has any status which the word "Minister" by itself does not have. I think the expression "Minister of the Government" is unprecedented and I would ask the Minister to ask his advisers if I am wrong—as I well may be—because if there is no precedent for the expression "Minister of the Government" it should not be casually thrust into a Bill where it does not fulfil any special purpose.
I am not sure if the expression "Minister of the Government" occurs at all in the Constitution. If it does, it occurs only once or twice. Certainly, the designation of the 15 people who sit in the Government, everywhere in the Constitution where they specifically are referred to, is "Member of the Government" not "Minister". If what is meant here by the Minister's Department is the member of the Government in charge of that Department this paragraph should read "Member of the Government". It is bad drafting practice and will sooner or later cause trouble casually to insert phrases which have no constitutional or statutory precedent.
That is not the end of the matter as regards this paragraph because, while I see in a general sense what is meant by identifying the Minister with his Department for the purpose of the ombudsman operation, the section seems to me to leave unclear the situation where, as is constantly the case nowadays, Departments are created and then extinguished, or their titles are changed in order to make them grander, as in the case of the Department of the Environment, or sections of a Department are switched from one Minister to another as happened with the Energy section, which was until December under the control of Deputy O'Malley and since then has been under the control of Deputy Colley. I am not trying to make empty difficulties but merely pointing out to the Minister of State that if he wants a good Bill to leave this House it might not be a bad thing if an additional paragraph were inserted here to say that where a Department is extinguished, as happened with the Department of Economic Planning and Development—although I think that has not yet been given statutory force—or, if it has been given statutory force, there is another mistake, because it is specifically mentioned in the Schedule. I think it has not been given statutory force yet, and that the Schedule is right from that point of view. We should have some provision making it clear where the responsibility will now lie.
The Taoiseach when announcing his intentions originally to the House did indicate that the planning function, between which and himself he was so anxious to put a distance, since it had collapsed all around him, would now be transferred back to the Department of Finance. But it does not say in this Bill that a citizen's complaint, if such could be imagined, against the former Department of Economic Planning and Development now falls to be dealt with or becomes the responsibility for ombudsman purposes of the Minister for Finance. Commonsense tells me that it should be so, but the Bill does not say so. Nor does the Bill make specific provision for a case where either a Department in its own right is constituted out of what was formerly only a section—as is the case now with Energy—or where the reverse happens and the Department which was one in its own right is incorporated in another.
In the vast majority of cases the matter may be of no significance but it might cause a certain amount of pushing and pulling where the act complained of occurred before the change and the complaint is raised afterwards. It might very well be not just in a Coalition Government but even in a Government which consists of the uneasy factions facing us here across the floor, some of them not even speaking to each other let alone agreeing with each other. It might easily be that it did not suit Minister X any longer to be responsible for the act which at the time the complaint arose was a responsibility of Minister Y. Again, commonsense tells me that the complaint should follow the function, that a complaint raised against an old section or old official should now be dealt with by the Minister now in charge of that official whether or not he was in charge of him, or whether or not the administrative arrangements were the same, six months earlier.
If that is what is intended it should be spelled out here in so many words.
The Deputy covered many points in his submission many of which had nothing to do with the Bill. Basically, in relation to the abolition of the Department of Economic Planning and Development, any action, as the Deputy probably knows, can only be taken under this Bill from the date the Bill is passed. It cannot be taken in respect of anything that happened before the passing of the legislation.
I am only giving it as an instance. There is no guarantee that a similar instance will not arise in future. I am not sure what the status of the Department of Economic Planning and Development is. There is no longer any Minister with that title. I do not remember a Bill that disestablished the Department—there may have been one. Perhaps the Minister should be able to tell me whether there still exists a Department of Economic Planning and Development under that title. If not, and if the Minister is right in saying that complaints fit for the ombudsman can only be brought in respect of things that happened after the passage of the Bill, what is this reference to the Department of Economic Planning and Development doing in the Bill?
The Department was in existence at the time the Bill was published.
Surely it is time now to take it out. The Minister had a chance to do it now. There are amendments before the House, and there is no reference to this.
It cannot be taken out now, whatever about on Report Stage.
It can be done on Report Stage.
I do not wish to annoy the Minister of State. I am only drawing attention to points that occur to me in regard to these sections and several others also. If the Minister does not put amendments down I may do so myself.
It would have been a great help if the Deputy had put down amendments.
I appreciate that. I am sorry that I was not in charge of the Bill at an earlier stage. I appreciate it is not very helpful to the Minister to raise this now.
It is not. But, having said that, I shall try to answer some of the Deputy's queries. Any Act or orders transferring functions from one Minister or Department to another will transfer all the Minister's functions, liabilities and so on. As the Deputy said in his speech, commonsense should tell him that all these functions will be transferred. It appears to me that any complaints about the old Department could be taken to the new Minister.
We agree about the commonsense of it, but we are not talking about common sense today: we are trying to make a law which lawyers will make a living by arguing about. They will argue about every comma in it, because that is what they are there for. I do not expect the Minister to tell me offhand—I may have made a mistake myself and got the wrong end of the stick—but I am asking the Minister only to look at this particular point, that the way paragraph (a) at the bottom of page 2 is drafted does not seem to cover in such a way as plainly to identify, for example, the Minister for Finance, in a situation in which a Department has been completely wound up and its functions integrated elsewhere, perhaps not necessarily integrated into one Department.
Let us see what happened to the Department of Transport and Power which does not exist any longer. These Departments are now flying around like snuff at a wake, or atoms in a molecule. It is impossible to keep track of them. All one can see is a continuous inflation of titles going on without much activity to justify it. The Department of Transport and Power once existed. The late President Childers occupied it as Minister, and subsequently in our term Deputy Peter Barry occupied that Department. The Department was redistributed in 1977. The Power element of it was assigned to the Department of Industry and Commerce, I suppose under the name of the Energy section and the Transport section of it went elsewhere, to the Department now called Transport and Communications—I cannot even be sure of that but I think that is what it is called.
Suppose one has a complaint against the old Department of Transport and Power and one is not able to identify easily whether any particular section in that Department is the one responsible, for example, in regard to promotions—I do not want the Minister to tell me that these are excluded from the Bill because they ought not to be excluded—or a complaint from a contractor dealing on the outside with that Department for the supply of newspapers, stapling machines or typewriters, where is he now to look for redress? In whom, for ombudsman purposes, are the functions of that Department vested? It may be that they are vested in another Minister for a different purpose, but in whom are they vested for ombudsman purposes? We should not have to look through a series of other Acts to find the answer. I mention this point so that the Minister can look at it between now and Report Stage.
I promise the Deputy I will look at it between now and Report Stage. As he is aware, Acts or orders transferring functions from one Minister or Department to another will transfer all the Minister's functions and liabilities. If, for instance, a section of a Depart-ment was transferred to another Minister, the new Minister would be responsible for any liabilities or functions. I presume the ombudsman could make his complaint to the new Minister. The Department of Economic Planning and Development have been extinguished by order and reference to it will be deleted on Report Stage.
I see the point about this, and I am sure lawyers being paid to do so would find answers to these points, probably contradictory answers, but I am pointing out that the wording of paragraph (a) does not seem to cover the contingencies I have been outlining and law, unfortunately, is a matter or words, as many a litigant has found to his cost, or to his advantage when he did not deserve it.
Section 1, as amended, agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."
I want to raise two or three points about this section. Is it the intention ultimately to invite applications for this office? In other words, will the public at large be invited to apply for appointment as ombudsman, or will it be the case that the first we will know about the ombudsman will be when his name is presented by the Government in the form of a motion for a Dáil or Seanad resolution? That point arises in connection with subsection (2) which says:
The appointment of a person to be the Ombudsman shall be made by the President upon resolution passed by Dáil Éireann and by Seanad Éireann recommending the appointment of the person.
I would like to be assured that the public will be invited—naturally only a small section of the public will be either interested or competent—to apply because any Government might be glad to have a list of the people who would be interested in appointment, and this might include people whose names would never occur to the Government. I am not in any way trying to imply that this will not be a proper appointment because I am certain every Government will do their best to produce an overall generally acceptable appointment. I do not suspect the Government's possible intentions in this regard.
I accept what the Deputy says and I am sorry I cannot give a definite answer because the modus operandi has not been decided. Taking into account the recommendations of the all-party committee and the fact that the Government could not accept fully their findings because of the Constitution, I can assure the Deputy it is the Government's intention to reach agreement with the leaders of the Opposition before a resolution suggesting a name would be put before the House.
I am aware of the feeling of the all-party committee and, as far as the Government are concerned, I want to assure him that we too would like it to be seen that the man to be appointed will be neutral and acceptable to all sides of the House within the constraints of the Constitution.
The all-party committee recommended that the appointment should have a two-thirds majority of the House and the Minister said that cannot be done for constitutional reasons. There is no reason why we should not set up an all-party committee and a two-thirds majority of that committee could make a recommendation to the House and this could be accepted. That would meet the wishes of the original all-party committee and it would be seen that the ombudsman was not a political appointment. The ombudsman could submit his reports to the all-party committee who could make recommendations to the House. A two-thirds majority of a select committee, or a committee of this House, would raise a constitutional problem, but the setting up of such a committee could lead to a very worthwhile operation.
I accept what the Deputy said. However, I cannot agree to the selection of the ombudsman by an all-party committee. I am acutely aware of the need to make certain that this is not seen as a political appointment. With that in mind, it will be the Government's intention to reach agreement with the leaders of the Opposition before any resolution is put on the floor of the House. That is going a long way towards getting over the Deputy's objections. That is all I can agree to at this stage.
I welcome what the Minister says and I agree that while a political appointment would be worse than having no ombudsman because he would not enjoy general confidence, the Government are right if they propose to consult the Opposition before any ap-pointment is made. I only wanted the Minister to consider that the list of possibilities in front of any Government might be defective. If they only make inquiries in their own circle or from their own contacts they may be missing people who would be even more suitable in that short list who, had they been invited to apply publicly or had they been encouraged to feel that a letter from them would not be regarded as something out of the way, would have applied to be considered.
Selection procedures from advertisements might not be the most appropriate way to encourage the right type of top calibre, major figure to put himself or herself forward. Let me reassure the Deputy that the Government have an open mind on the procedures. We are prepared to consult to ensure impartiality because I agree that an ombudsman who did not have full backing would be worse than no ombudsman at all.
Does the Minister propose to put that into the Bill? I accept the Minister's assurance that there will be consultation. But if we are appointing an ombudsman at another time, in view of the way the Bill is worded it could be done by a simple majority. I would like to see something in the record to provide that this could be done in future only after consultation and agreement with the leaders of the Opposition. I know that the Minister's word is accepted here but this would not necessarily apply to another Minister at another time. I would like something to be inserted to meet that.
One of the things in contention here is the procedures of the House. We cannot fetter these by amending Standing Orders in this Bill. I assure the Deputy that as far as this Government are concerned, taking into account what both Deputies have said, there will be very detailed consultation before any appointment is made. I am sorry that I do not seem to be able to meet the Deputy's wishes by writing it into the Bill but, as far as I am concerned and as far as the Government are concerned, we shall be more than willing to have consultations to ensure that the person appointed will be, as far as possible, agreed by the vast majority. There is no way that everybody will be in agreement but the Opposition will have a chance of consulting with the Government in relation to this point.
There are two more points I wish to raise on this section. Subsection (3) (b) contemplates the removal of the ombudsman by resolution of both Houses, and the grounds on which he can be removed appear to be inspired, partly at least, by the provisions in the Constitution about the removal of the President himself, stated misbehaviour or incapacity; or bankruptcy. It seems that in that provision in regard to the President himself, in article 12 of the Constitution, there is a lacuna because it makes no provision for what is to happen where the President is inadvertently absent for a prolonged period.
I am sorry that it should be possible, in the year 1980, to mention such a thing but I would ask the Minister to consider, for example in connection with the President but also in connection with the ombudsman, what happens if he is kidnapped. What happens if the ombudsman is kidnapped and disappears for a long period while work is piling up? What happens in a much less dramatic situation, where he is suffering from an incapacity but it is not such as would make it fair to remove him from office? I can see that an ombudsman who becomes very severely physically incapacitated, through a series of strokes or something like that would probably resign, if he were lucid enough to do that, and it would be no reflection on him if he had to be removed because he was physically or mentally incapable of forming the wish or expressing the wish to resign. But let us suppose he had a serious operation which knocked him out for four or six months. It would be agree that it would be hardly fair to remove him, particularly if he were a man who enjoyed a notable public confidence.
What I am putting to the Minister of State is, and he might ask his Department to advise him, that he might consider including in this Bill provision for a temporary ombudsman who would, during the duration of this incapacity, exercise the same powers as the ombudsman. To make a short end to it in regard to the rules of appointment, my own suggestion is that the President, who has very few functions of his own, might be allowed to appoint a temporary ombudsman, after consultation with the Council of State or having taken the opinion of the Council of State, for a period on which there would have to be a ceiling of perhaps 12 months. It would get over not just the outside possibility of the man being kidnapped but just absenting himself—not necessarily in a context which would make it misbehaviour—or being ill in a setting in which it would be unfair to him and perhaps undesirable in the public interest that he should actually be removed.
In general everyone would like to avoid a caretaker ombudsman but I see the Deputy's point and I will note what he said.
I thank the Minister of State for being willing to bear that in mind. The last point I want to make is something which might be no harm to clear up in the Bill if the Minister of State thinks fit. Subsection (5) (b) provides that:
a person who is for the time being entitled—
(i) under the Standing Orders of either House of the Oireachtas to sit therein,
(ii) under the rules of procedure of the European Assembly to sit therein, or
(iii) under the standing orders of a local authority to sit as a member thereof,
shall, while so entitled, be disqualified for holding the office of Ombudsman.
Strictly speaking that ought to mean that the Government could decide to appoint a Member of this House with agreement between the parties. What would happen in that situation? What would be the position if, for example the Leas-Cheann Comhairle or a Member of the other House were decided upon?
I would be delighted to oblige.
The Chair would be a good ombudsman as long as people observed order in bringing their applications before him. I would not lose any sleep if the Chair were ombudsman. I would put my complaints in his hands with the utmost confidence.
I am afraid that there are limiting factors in the rules governing the appointment.
No one would ever suspect it. What is in my mind is that, while technically it is possible for the Government to say that they are thinking of offering some Deputy or Senator the post of ombudsman and that the Deputy or Senator should decide for himself whether he wished to resign his seat in the House in which he was entitled to sit and in which case the disqualification would have disappeared, I am anxious that the Bill would make it clear that somebody who was a Member of this House is not disqualified from applying or from being considered for appointment. I appreciate that the Bill as it stands does not literally exclude the appointment of someone who now is a Member of this House or the other House but I can imagine perhaps not this Government but some future Government that may be advised by attorneys general of lesser quality than those presently or lately in office, not adverting to the strict sense of the words here and more or less making up their mind that the purpose of the Act, when it becomes an Act, is to exclude from appointment anyone who is a member of a local authority or a Member of this House or the other House or the European Parliament, and that cannot be the intention. It ought to be made clear that while he may be disqualified from holding office as ombudsman he is not disqualified from being appointed, provided that on accepting appointment he is deemed to have vacated his seat in either House or in the European Assembly, if it is competent for this House to legislate for the European Assembly, or his seat on a local authority.
If the Government decided after consultation with the Opposition that a Member of either House would be a good ombudsman acceptable to all parties, that person would have to resign before he or she could be appointed.
I agree that is clear. The Minister and I have thrashed out this point and we are not in any doubt about it. However, some future Government may be advised to take the view that the Act was intended to exclude from appointment people who are at the time in positions which normally have a political complexion and it might be argued that the very purpose of the section was to keep politicians out of the ombudsman's job. That may be very desirable as far as 99 politicians out of 100 are concerned but there is probably the odd angel stashed away on the benches of this House or the other House.
Most of them are over here.
He may be down on his knees saying his prayers behind the bench. I am trying to direct the attention of the Minister of State to the possibility that a future Government may be advised to take the view that the purpose of this provision is to keep politicians of whatever colour, and in whatever assembly they sit, from the position of ombudsman. If it is our intention that this should not be the case, and that politicians in either House, in a local authority or in the European Assembly, should be eligible provided their seat is vacated, this ought to be made clear. The Minister might examine this point between now and Report Stage.
I will look at the point but I think it is clear enough. All the section states is that while a person is entitled to sit in the Dáil he is disqualified from holding the position of ombudsman. It is only a question of that man or woman resigning.
Angels do not resign.
I agree with the Minister as to the meaning of the section but in the interests of clarity I would ask him to consider the matter again.
Question put and agreed to.
Section 3 agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."
When speaking on the Fine Gael Ombudsman Bill I contrasted its provisions with the Government Bill which had just been hastily published, probably as a result of the bringing in of a Private Members' Bill at that time by Deputy Fergus O'Brien and others. I pointed out the extreme debility and feebleness of the Fianna Fáil ombudsman compared with the one we were proposing. I pointed out all the exclusions from the range of his scrutiny which the Fianna Fáil Bill envisages and in a moment of levity I described him as an "ombudsmouse" because the extent of his power will be so limited. To borrow a phrase from an English judge, he will be a mouse squeaking under the Minister's chair, and very little more, because of the range of exclusions.
I would draw attention to the ludicrous nature of some of the bodies which are included. I am not saying that some of these bodies could not be the authors of actions which would be causes of complaint from members of the public. I look down at what is supposed to be an impressive list of organs of the State, the misbehaviour of which is to be subjected to the scrutiny of the ombudsman, and I find that they include such potential ogres as the State Paper Office, the Public Records Office, the National Library and the National Museum. I am all in favour of the ombudsman having a chance to look into these dusty corners if he has to; but I contrast that solemn recital of all these bodies who in 50 years have never given cause for complaint by an individual—as distinct from complaints about the general quality of their service, which is affected by the way they have been largely starved of Government funds—with the immense list of very significant exclusions in the Second Schedule. The organs which are included in the range of scrutiny are mentioned in section 4 (2) and include such potential engines of tyranny as the State Paper Office.
When we reach the Schedule we will discuss them fully. The section deals with the functions of the ombudsman rather than the exclusions and inclusions.
The criteria on which the ombudsman is supposed to act are out-lined in paragraph (b) of subsection (2) and many of the grounds here recited would equally be grounds on which an aggrieved citizen would be entitled to have an administrative action quashed by the High Court or invalidated by one of the inferior courts. My reason for saying this is not idle, but that the impression may be created in the public mind through these criteria that the citizen has at present no redress in regard to actions taken without proper authority or taken on irrelevant grounds.
The law is that power can be exercised only for the purpose and by the means and modes which are laid down by the statute which confers the power, and any authority which steps outside those four corners or purports to do something which the Act does not authorise, or who does something on grounds which the Act does not contemplate or without taking account of grounds which the Act requires him to contemplate, or who in any way behaves unfairly or in a biased way with some ulterior motive in performing a function which the law has given him, is breaking the law. I do not mean that he is breaking the criminal law but he is breaking the law in not respecting its intention and his act may be a nullity; certainly it is capable of being annulled by the action of the courts.
In case anyone has the idea that something revolutionary is being done here today in conferring on the citizen rights which he has not previously had, I want to assert that an act done without proper authority is capable of being invalidated by the courts, as is an act done or taken on irrelevant grounds. Supposing the Minister of State in his Department has some function and the Act sets out the criteria on which that function is to be exercised but he exercises the function on some different criteria of his own—if he thinks Country Mayo has had enough and he believes something should be given to County Sligo, or the other way round—which is not cited in the law then he is outside the law. His act can and will be quashed by a court, even if this Bill never sees the light of day. The same goes for an administrative act which is defective and in which the administrative authority were careless or negligent in making up their minds, although the law about that is not quite so clear and there is not that much authority on it. The same goes for actions based on erroneous or incomplete information. That is not altogether clear but certainly an administrative decision made under a complete misconception of the facts will be set aside. Most certainly an act which is improperly discriminatory or which is contrary to fair administration in the sense of not giving the person affected a fair chance to make his case and to show how the law does not apply or should not be applied to him capable of being invalidated by the courts.
I am well aware of the fact that the ombudsman is not a court and that one will not have to pay fees to go to him.
There is no guarantee that he will be any speedier than present court procedure but it is worth saying that while an ombudsman would be no good unless he is able to pin and nail maladministration on these grounds it is not the first time that these grounds have been heard of in our legal system. As far as I can see there is only one ground out of the seven cited here which would not clearly be a ground for having administrative activity invalidated by the courts, that is the one about the "undesirable administrative practice". I say that is not clear because I do not know what it means. What is an "undesirable administrative practice?" It could be undesirable for reasons which are purely internal and personal to the Department itself, or to civil service conventions which benefit nobody but the people who take part in them. I do not know what criteria are meant and I should be glad if the Minister would give a few examples of what he understands by "undesirable administrative practice" over and above the criteria specified elsewhere in the subsection.
All this suggests to me that we ought to think forward. I do not mean to delay the Bill, little though its effective value is going to be as we will show later, but we ought to have an eye to integrating the operation of the ombudsman with the operation of the courts with a view to trying to save the citizen expense and to try to expedite his remedies. To have two systems operating on very similar criteria side by side without any clear link between the two, and without showing the relationship of one to the other, is not necessarily a good practice. Subsection (4) declares that the ombudsman shall not investigate any action taken by or on behalf of a person specified in the Second Schedule. Provided I am allowed to make hay of the Second Schedule when we arrive at it I will pass from that subsection without saying anything more about it.
As long as the Deputy is relevant on that Schedule I will give him all the time he requires.
Line 27 refers to an action taken in performance of administrative functions and I should like to know if that will tend to narrow down what the ombudsman may do. How does one define "administrative functions"? Given our narrow Constitution will that provision not tend to narrow the ambit of the ombudsman? We are hoping to have an ombudsman with the broadest brief possible. We should not be tying him down to a narrow area. In my view that line could restrict an ombudsman. It is possible that it can be said that a certain matter cannot be dealt with on the basis that it was purely an administrative function. What is the reason for the insertion of that provision?
That provision is not a device to narrow the scope of the ombudsman. It is intended to mean the performance of a civil servant's official work. It is possible, as Deputy Kelly stated, that there are grounds for a court action to be taken in a number of the instances he referred to but I am sure it has been his experience that those who will avail of the services of the ombudsman would not dream of going to court. I do not think the ombudsman will require as much time as the courts. If that happens it will be defeating the object of the legislation. It will not be as expensive for people to go to the ombudsman as it would be for them to start a court action about something they were entitled to. Court actions require time and money. The idea of the ombudsman is to give a citizen quick and inexpensive redress for any wrongs done to him by the State.
In relation to court actions, the standards of proof required for success can at times be so strict that quite justifiable complaints might not get redress. Undesirable administrative practices were referred to by Deputy Kelly. I am sure he was referring to the practice of too short a period of time for application. From my experience there are other things which could be dealt with such as the carelessness of an inspecting officer in the Department of the Environment. I have often come across cases where the facts submitted to a Minister are not in accordance with the situation on the ground. While that may not be a cause for a court action it causes inconvenience and is a cause of grievance to citizens. They are examples of what is meant by undesirable administrative practices.
This legislation is not a panacea for all ills but it is a start. We all want to see these provisions in operation and we will learn from that. Deputy Kelly feels that the ombudsman will have very little power but for the vast majority of citizens he represents a quick and inexpensive way of having grievances dealt with. I make that statement taking into consideration the bodies that have been omitted from the legislation. Many of those with grievances can have them redressed if they bring them before an ombudsman. I do not agree with Deputy Kelly that this is an ombudsmouse. He should give it a chance.
I will let it run into the wainscotting and listen for the squeaks behind it. The Minister's reply was very fair and modest when he said we would have to see how it works and learn from it. I accept that. I do not think the exam-ple he gave of undesirable administrative practice is very enlightening. I will put down an amendment on Report Stage to try and make it more concrete. The instance he gave of an engineer or someone on the ground making a mistake and being careless in measurement or something of that kind presumably is already comprised in (iii) as a result of negligence or carelessness or (iv) based on erroneous or incomplete information. I am trying to see what is meant by "undesirable administrative practice" which is not comprised in the other headings.
As regards line 27, I may have a look at that again at Report Stage and put down an amendment to delete that line.
Administrative functions?
Yes. I will raise it on Report Stage.
The Deputy can raise it again but I would point out that the Minister has no powers as far as the acceptance of amendments are concerned. That would be a matter for the Ceann Comhairle.
I am informing the House that I may put down an amendment on Report Stage.
Question put and agreed to.
SECTION 5.
I move amendment No.
In page 6, subsection (1) (d) (i) (b), line 39, after "any" to insert "other".
I have no objection to that amendment.
Amendment agreed to.
Question proposed: "That section 5, as amended, stand part of the Bill."
Section 5 is the exclusions section, and they are so drastic that one can see the ombudsman shrinking away under one's eyes like the figure of Alice in Wonderland shrinking to the size where it could be got into a bottle. The ombudsman is shrinking under our eyes as we read through section 5. What is left for him to do is very trivial compared with the kind of things most people feel aggrieved about. I will come to that when we are dealing with the Schedule.
The Minister of State is a Deputy like myself and I presume he looks after his constituency and knows well the kind of things people get aggrieved about. He will know, when he compares the grievances with which people come to him with what this section and the Schedule purport to exclude, that in the vast majority of cases he will not be able to tell the aggrieved person to go to the ombudsman because the matter will be totally outside his purview. Before coming to the institutional exclusions of various Departments and functions I should like to ask the Minister a few questions arising from paragraph (a), subsection (1). I may not be reading the subsection properly but it seems to be leaving a curious possibility open. It states:
The Ombudsman shall not investigate any action taken by or on behalf of a person—
(a) if the action is one in relation to which—
(i) the person affected by the action has initiated in any court civil legal proceedings and the proceedings have not been dismissed for failure to disclose a cause of action or a complaint justiciable by that court whether the proceedings have been otherwise concluded or have not been concluded,
Unless I am completely misreading it, that appears to exclude only a situation where a person has initiated civil legal proceedings and left them hanging. It does not exclude the situation—perhaps rightly so—that somebody has begun civil legal proceedings and concluded them unsuccessfully. I am not complaining about it, but I should like to be clear as to what we are doing. It seems it is possible for someone to bring civil legal proceedings and to lose and still be able to go to the ombudsman and say: "The court threw me out but will you take a look at the case?" I emphasise I am not complaining about it. It would be a good provision if that is what is meant, but we ought to be clear about what exactly we mean.
I do not know if the expression "civil legal proceedings"—this is a technical point which the Minister's legal advisers might look at—is apt to cover what are called State side orders or applications for them such as certiorari and mandamus which are the forms in which ad-ministrative decisions are most commonly attacked. I notice two lines down there is a reference to a “complaint justiciable by the court” which appears to be something distinct from a cause of action. It may be that certiorari and mandamus are envisaged under the heading “complaint justiciable by the court”. I am not sure if those two remedies are, properly speaking, part of the category called “civil legal proceedings”.
In connection with subparagraph (ii) of the same paragraph in which:
the person affected by the action has a right, conferred by or under statute, of appeal, reference or review to or before a court in the State (not being an appeal, reference or review in relation to a decision of a court),
the expression "under statute" is vague. Does it include for example the right to habeas corpus? That expression is only a colloquial one and does not occur in the Constitution or in subsequent legislation. It can be called that for convenience. That right is conferred by a very special kind of statute, namely section 4 of article 40 of the Constitution. Is it intended that the right conferred by statute in that context, namely the right to habeas corpus or make an application for it, is to be a right of a kind which will exclude the act complained of from the ombudsman's scrutiny? I hope I am making that clear.
Take a case—I do not mean a political or criminal one although these would be included in theory—which is not confused by political or criminal dimensions, such as a person arrested by the Garda under the Act dealing with mental treatment which empowers the police to arrest someone for his own protection and that of others if they find him raving around the place, to put it in a nutshell, although the Act does not use that word. A policeman is entitled in law to take in charge someone who is raving and there is a procedure laid down by the Act where various certificates are issued and the person is committed to an institution. That is an administrative disposition. No court has been behind it, and it is an action which I imagine will fall under the heading of the definition section. The immediate remedy for a person who feels aggrieved, namely the person who appears mentally deranged or someone on his behalf, would be entitled to apply for habeas corpus, but the right to that is one conferred by statute—as I say, admittedly a special kind of statute but nonetheless statute law. The Constitution is a statute. Is it intended—or perhaps it has not occurred to anybody—that a person who has a right conferred by statute, such as the right to apply for habeas corpus here, is not entitled to go to the ombudsman and ask him to have a look at the process by which the person was taken in charge and committed to an institution? Perhaps the Minister of State would prefer me to go through my remaining points on this section, or perhaps I should stop there and come back. I will do whatever he wishes.
Perhaps the Deputy would continue.
I do not quarrel with the exclusion in subsection (1) (b). The exclusion in regard to actions affecting national security or military activity, or arrangements regarding participation in organisations of states or governments is a reasonable one and I make no complaint about it.
The exclusions in subsection (1) (c) and (d) are not reasonable and, when the public realise them, will shrink the ombudsman, to begin with, to about half of the stature he should have, and he has got a long way to go before he gets into that little bottle I will put him in before I am finished.
The exclusion at subsection (1) (c) is the exclusion of an action relating to recruitment or appointment to any office or employment in a Department of State or by any other person specified in the First Schedule to the Act. If I may remind the House, that First Schedule, apart from the Public Record Office, the State Paper Office, the National Museum and the National Library, contains also bodies of appeals officers under the Social Welfare Acts, the Land Commission, the National Savings Committee, the Commissioners of Public Works, the State Laboratory, the Ordnance, Survey, the Commissioner of Valuation and Chief Boundary Surveyor and so on. I believe that recruitment to the public service here is fair and above board and I shall not qualify that. Of course, one hears complaints. People say: "Of course, you know he is a cousin of So-and-So and he is a nephew of So-and-So." One cannot persuade people. So deep is the slave mentality anchored in us that we cannot believe that this State is capable of conducting anything on any basis other than that of the old pals act. I believe that the Civil Service Commission and the Local Appointments Commission, established in this State by William Cosgrave's Government in order to put an end to jobbery at these levels and to the suspicions of jobbery, do an impartial and fair job. But, at the same time, there are constantly people who are aggrieved by the failure of the Civil Service Commission, or of the Local Appointments Commission, to recommend them for appointment. This process is a source of grievance to a lot of people. It is a source of grievance to the man who has not been made county engineer, county surveyor or whatever it may be, or who has failed a junior executive or administrative officer examination or something of that kind. It is a source of grievance to him, or it may be. I cannot see what there is so sacred about the appointment or recruitment process which should justify its removal from the purview of the ombudsman. If we are going to appoint an ombudsman who, as the Minister has agreed, will be a person so highly respected that all parties in this House will be able to agree about him, I cannot see that he should not be trusted with the details in the Civil Service Commissioners' files, or the Local Appointments Commissioners' files in regard to the appointment process. Why cannot he be allowed to conduct an investigation there? I do agree that he might perhaps not be expected to disclose to the disappointed party the details of the process and it would be intolerable if the appointing commissioners were to disclose to anybody and everybody the opinion which they had formed confidentially of the person; it might not be fair even to himself. I do not suggest that. But at least the ombudsman should be empowered to look at the appointments process and at least satisfy himself that it has been fairly conducted and to transmit that opinion then to the aggrieved party.
I am well aware that there are dimensions to this which are very sensitive. But let us pull them out from under the table and look at them. Last year I had to write a study which was intended for publication in a collection which the German Federal Constitutional Court were organising in regard to appointment to the public service and recruitment to and promotion in the public service. I shall detain the House for a moment to explain this. The reason that the German Constitutional Court has had to take an interest in this is because in Germany people of all kinds in the public service including—and this is the most sensitive part—school teachers are considered to be Beamte; they are considered to be State officials and have very well defined rights. One of these very well defined rights is that to absolute transparency in the process of their recruitment and promotion. Many of these Beamte, particularly at the school teacher level—depending on one's political viewpoint or as somebody as far Right as most people in this House are on the European spectrum would say—became infected with the extreme Left Wing ideas of the Bader Meinhof Group. People like that were in the public service at school teacher level and were sometimes propagating these ideas, or sometimes were in very sensitive jobs and so on. That accounted for the interest of the Germans in this because obviously a constitutional question is involved.
Whether it is fair to dismiss a public servant, to refuse him promotion or appointment merely because he holds very far-out political views is a serious question in any democracy. The very same question exists in an Irish guise even though it has never surfaced in such a painful way. Of course it is the case here that applicants—and this is why I say let us pull the thing out from under the table and look at it—for appointment in the public service, or in the Garda, are made the subject of a quiet couple of inquiries to see if they are all right. I do not mean to see if they are Fine Gael or Labour Party supporters. I do not even mean to ascertain if they are extreme Socialist in their views; I mean have they got connections which are subversive, which might be dangerous from that point of view. I am well aware that a process like this can verge into the objectionable—I am well aware of that—and all any government can do is behave with good faith, and try to steer a course which is not objectionable and not spill over into the other.
I quite understand that something like this may have inspired that exclusion. But what I want to know is why should the ombudsman not be permitted to know that which the Civil Service Commissioners are allowed to know? Why should he not be entrusted with a file which presumably in Grand Canal Street is available to a certain limited number of people. I am speaking now about staff, people of naturally absolutely un-suspect probity and so on, but who do not have to be recruited by resolution of this House and of the Seanad. Therefore, I cannot see what is the point in excluding this very important matter on which grievances so easily arise from the ombudsman's purview. Again I do not say, and I would not be so absurd as to suggest that he should be able to say to somebody: "Look, the Garda made a few inquiries about you. We understand that you had a suspicious connection with this or that organisation and we simply cannot take a chance on you. We are frightfully sorry." I do not say that he should go that far. All I say is that the ombudsman should be let see the file and satisfy himself, in his own conscience, that no injustice—all he can do is exercise his own discretion, as indeed the Bill says—has been done to the aggrieved party. Subject to that I do not think he should be asked to disclose all the file to anybody. But he should be allowed satisfy himself at least that no injustice has been done. To exclude recruitment or appointment to the public service and the conditions on which people hold office and so on is cutting a colossal chunk out of the potential area of citizens' grievances—a huge segment is removed from the circle.
That instantly makes the ombudsman irrelevant to an awful lot of citizens, because they may never have a grievance in their lives except in regard to the failure of the State to appoint them to a particular job, or to promote them at a time when they thought they were entitled to promotion.
There are other exclusions here I need not go into. There is a blanket exclusion which goes over and above and beyond all the exclusions mentioned in the schedule and the others mentioned individually in the section.
I will read section 5 (3):
Where a Minister of the Government so requests—
I doubt if that expression has a precedent; I may be wrong—
—in writing (and attaches to the request a statement in writing of the reasons for the request), the Ombudsman shall not investigate, or shall cease to investigate an action specified in the request, being an action of—
——a Department of State whose functions are assigned to that Minister, or a person mentioned in the First Schedule whose business and functions are comprised in such a Department. I am abbreviating the subsection a bit. In other words, when all the smoke has cleared away, and all the flummery has faded into the distance, and the beating of the drums has died to a whisper, we find that Ministers, far from subjecting themselves to the fearless scrutiny of this administrative Lancelot who rides through all the red tape, and lifts up the oppressed, and sees that justice is done to them, are entitled to require the ombudsman to discontinue an investigation.
I am not such a baby as not to understand that there may be investigations which will trench into an area of national security, or genuinely on an area of Government policy, or national policy, so sensitive that perhaps even an ombudsman, who, do not forget, is being given the same status as a High Court judge and is being made just as irremovable, in fact more irremovable, ought to be shut out from. If so, the criteria on which Ministers are entitled to require the discontinuance of an investigation, or to require that it should not take place in the first instance, should be set out in the Bill.
As the Bill now stands, for any reasons provided that he states them, a Minister can shut out or preclude the ombudsman from acting. There is no requirement that the reasons should be adequate, or that they should not be incompatible with the spirit of the Bill, or that they pertain to national security. There is nothing like that at all. There is not even a requirement that he should state his reasons with much particularity. Provided he states his reasons, that is the end of the ombudsman's activities. That is the point at which the ombudsman fits down into the bottle. He is a mouse in a bottle under the Minister's chair at that point. The Minister can take up the bottle, cork it, and put the ombudsman out on the window sill and leave him there for the winter. So far as this Bill is concerned, he is not in the picture at all.
I do not need to be told that a Minister who has any self-respect will not lightly use the powers conferred by this subsection. I know that. I am willing to make that assumption in favour, needless to say, of all my own colleagues, and a fair few of the Minister's colleagues. It is inadequate in a Bill like this which will be presented to the public as a measure, on the principle of which at least, Members of the House have been agreed. It is regrettable that there should be this gaping hole torn in the Bill because of this exclusion. I would not object to it so much if the exclusion were qualified by the criteria on which the request was to be made. I would not object so much if the reasons were to be stated with full particularity. I would not object so much if it were made clear that the reasons had to relate to national security, if that is what is in the Government's mind.
Merely to be able to stop the ombudsman in his tracks with a half piece of paper on which the Minister can say, for anything the Bill says to the contrary, that he wishes the matter not to be investigated for the reason that it would be against the policy of his Department, is not good enough. That would seem to me to be a bad reason and I am sure it seems to the Minister of State to be a bad reason. In so far as the Bill says nothing to the contrary, that is a good enough reason to stop the investigation. The fact that the exclusion is so drastic and blanket-like makes the section hopelessly unacceptable to our side of the House and I would hope—assuming that the section will be passed—to introduce amendments on Report Stage to improve it.
I will take Deputy Kelly's last point first. An all-party committee sat for a considerable length of time and made recommendations on this Bill. One of the things they recommended was that certain decisions by Ministers, where they are required or allowed to make value judgements, should be excluded from the ombudsman's area. They did not specify in detail what these decisions were, but the general intention was to provide means whereby the discretionary decisions of a Minister, for which he is answerable to the Houses of the Oireachtas, should be exempted.
I am advised that it proved technically difficult to draft a provision which gave precise effect to the committee's recommendations. In law, the official actions of a civil servant are the actions of a Minister. Therefore, if discretionary decisions of a Minister were excluded, then the discretionary decisions of civil servants would also be excluded. Furthermore, much of the power of each Minister is, in legal terms, discretionary. There was simply no way, for drafting purposes, of distinguishing between the personal discretionary decisions of a Minister and the decisions of a civil servant.
The only feasible technical way of giving effect to the recommendations of the all-party committee proved to be the provision that, where a Minister or a Minister of State signs a request to the ombudsman not to investigate a specific action for a stated reason, the ombudsman shall cease to investigate. Could I make reference to Deputy Kelly's ombudsman in the bottle? We are reminded of the old story of the genie who came out of the bottle——
Sinbad had a cork in the bottle. This section is the cork.
There is no cork in this bottle because the ombudsman will be the one who will remove the cork. While I have full confidence in all Deputies on this side and I have doubts about some on Deputy Kelly's side, any Minister who would make a habit of this would leave himself open to being reported to the Dáil by the ombudsman when he made his annual report, or he might make a special report to the Dáil. This would give far more publicity to such an action than the original action itself.
The ombudsman will be independent. He will be, in no sense, a puppet of the Minister. It is not envisaged that this provision will be widely used. I repeat, should the Ombudsman feel that this provision was being abused, he would be free to make reference to it in his report or, as I said before, to make a special report. It would not be in any Minister's interest to abuse the power of veto, given the degree of adverse publicity that would result. As I have said, the adverse publicity would probably be as great as if not greater than if the Minister was found guilty after a full investigation of the case by the ombudsman.
Deputy Kelly gave an example—I hope I have not misunderstood him—and talked about Garda arrests. Arrest would be a Garda action and, as such, would be excluded. He was probably not talking about the actual arrest, but the action of the person committed to an institution.
Not the moment of arrest but the whole administrative process after which he ends up in a mental home against his own will.
A person such as that would have the right to contact the ombudsman to make representations and I should like to think that the ombudsman would go ahead and investigate such complaints. I say that from experience of cases I have come across. Under section 5(1), people who have had recourse to the courts can go to the ombudsman. However, I do not think people who have had judgements handed down by courts should be able to go to the ombudsman.
We must get this sorted out. I suggest that the Minister should take advice about this between now and Report Stage. I can see some advantages of going to the ombudsman even if a person has been thrown out by the courts. We should distinguish between two things. Most of the cases on which the ombudsman could make reports concern grounds which would support an application in the courts to invalidate a Minister's decision. I do not know what is an undesirable administrative practice or what a court would regard as information so incomplete as to vitiate an administrative decision, but there may be grounds among the ones listed here which would determine the ombudsman's jurisdiction, grounds to which a court would not have regard, which would not weigh with the courts—for example, this thing "undesirable administrative practice"—over and above a feature which a court would regard as relevant for the purpose of quashing the end result of the process. If so, clearly the fact that somebody has taken action and been thrown out by a court when the case he made to the court was that the considerations taken into account by the authority were wrong ones should not stop him from going to the ombudsman to make a somewhat different case there: that the court did not take the wrong considerations into account but that the court had worked in a way which would ensure that the person would get the wrong end of the stick. I am speaking generally. I could see an advantage in not allowing the decision of a court to close the door to the ombudsman. On balance I suggest it would be best to leave this provision open.
The Minister made a point about delays. I am sure that in the case of the ombudsman this would depend entirely on the volume of business. I would remind the Minister that the European Human Rights Commission and the European Court hear only a small number of cases and there are usually colossal delays before the cases come out at the far end. They could be numbered in dozens in the past 30 years but the number of applications made which have to be screened—that is what takes up the time—would be tens of thousands. When the ombudsman gets round to cases he will be able to deal with them quickly enough, but there will be a fair number of cases which he cannot investigate because the Act will exclude them. I am sure there will be many citizens throughout the country who will be amazed to find that we will have an ombudsman who cannot tell them why they have been refused jobs or health cards or why they have not been allocated houses. They are the things people will be aggrieved about, and in order to sort that out, in order to conduct a screening process, staff will be required and time will be required. There may be borderline cases and it all adds up to loss of time. Therefore, I would not be all that confident that the time lost before the ombudsman would be less than that lost before the courts.
The Deputy spoke about exemptions and spoke of the Civil Service Commission. I agree with him. It should be said here, of all places, that the Civil Service Commission are fair and above board without exception. However, the recommendation of the all-party committee, which sat for a considerable length of time, is that the Civil Service Commission and the Local Appointments Commission should not fall within the ambit of the ombudsman. The Bill has been drafted accordingly. That committee pointed out specifically that the ombudsman would have an interminable task if every disappointed candidate were to ask to see reassessment of results.
There may be some confusion because both commissions are listed or included among the bodies subject to investigation. The reason for this quite simply is that administrative decisions—for example, the placing of advertisements—should be subject to scrutiny. For example, if an advertisement was published in a newspaper and there was not sufficient time left for people to apply, or if they could apply only in Dublin because the post would not allow others to be in time, the applicant could go to the ombudsman and say: "I have a cause of complaint against the Civil Service Commission on the basis that the date of the advertisement did not give me enough time in which to put in my application, but not in relation to the application itself or to the fact that I was not appointed". Deputy Kelly also said that the ombudsman should have access to certain files. I feel strongly that the Minister should have access to files which he does not seem to have access to.
The Minister may feel that, but for a different reason.
It certainly does not arise on the Bill.
He feels it for the same reason the ombudsman might feel it.
I am not trying to belittle the distance the Minister has come in this respect. I am surprised at his concession a second ago that even in regard to such a humble preliminary matter as the date on which an advertisement is inserted could be a matter for scrutiny by the ombudsman in regard to applying for a civil service job. Section 5 states:
(1) The Ombudsman shall not investigate any action by or on behalf of a person—
(c) relating to recruitment or appointment to any office or employment in a Department of State or by any other person specified in the First Schedule to this Act.
Quite arguably that would exclude even such a humble preliminary act as examining the adequacy of notice which the advertisement in the newspaper represented. If it was in The Irish Times in such a way that people had two days' notice but was in the Connacht Telegraph on the Thursday after the closing date, I agree that would be an unfair way of doing business.
This section has disappointed everyone in the number of exclusions that have been inserted. People relate the Government, local authorities and health boards on the one level in that all of the bodies mentioned are administrators. People will not understand why they may not go to the ombudsman with a complaint. We are starting off on the wrong foot. The Minister said that he can rectify this by order at a later stage, but that is not good enough. By having such exclusions in the Bill we are acting as if there was a fear to investigate certain areas. I should like to quote a paragraph from a statement by C.J. Milvain regarding the Ombudsman Act in the Western Weekly Reports, 1972:
"...can bring the lamp of scrutiny to otherwise dark places, even over the resistance of those who would draw the blinds. If his scrutiny and observations are well founded, corrective measures can be taken in due democratic process; if not, no harm can be done in looking at that which is good".
We should not have any fears about the matter and we should not allow any exclusions. It is wrong to insert a provision stating that the Minister will write to the ombudsman saying that he cannot investigate certain areas. The words "shall not investigate" are used in the Bill and that is wrong. If the Bill stated that the ombudsman "may not investigate", at least that would be some help. The provisions in the Bill mean that we are giving less power to the ombudsman and this should not be allowed to happen. It is all right for a Minister to say he has confidence in his colleagues but in certain circumstances Ministers may deem it prudent to tell the ombudsman that he shall not investigate a complaint. That is dangerous and it defeats the whole purpose of the Bill. The local authorities, semi-State bodies and health boards are being excluded and we are also proposing to insert in the Bill the provision that the Minister will write to the ombudsman telling him he cannot investigate a complaint. That is making a joke of the Bill.
The all-party committee wanted to keep the whole area as broad as possible. If Ministers want to exercise their prerogative, one can fairly ask why are we appointing an ombudsman. Is it to give respectability to this area, to tell people that they may refer their complaints to the ombudsman and, if they are lucky, that he will accept them? That was not the spirit in which we approached this Bill. All of us wanted a good Bill. We wanted the ombudsman given as much power and independence as was possible to investigate all complaints.
The paragraph I quoted from the statement by Mr. Milvain spells out clearly what people have in mind. In my view section 5 has ruined this Bill. It is totally against the spirit in which people approached this area. This is not a political ploy and we are not trying to be obstructive. We wanted a Bill that would give autonomy and independence to the ombudsman but we regard section 5 as totally restrictive and unacceptable to this side of the House.
When we come to the Schedules we will go through them line by line. If the Minister inserted the word "may" rather than "shall" in section 5 that would give some discretion to the ombudsman. As matters stand, there is no leeway or outlet given to him and I oppose that very strongly.
In reply to a point raised by Deputy O'Brien and myself with regard to the power of the Minister to exclude the investigation of a particular matter, the Minister said that one control would be the fact that this exclusion would become public knowledge. The Minister as I understand it, said that the ombudsman would publish a report on the Minister who used his powers in this way and that the Minister would then be subject to public criticism. That is not written anywhere into the Bill.
Section 6 subsection (7) speaks about the duty of the ombudsman to lay a report on his performance before each House of the Oireachtas annually and may
from time to time cause to be laid before each such House such other reports with respect to those functions as he thinks fit.
That is fine but in view of this very drastic exclusion it would be as well if the Government insisted on this. At the very least the ombudsman should have a mandatory duty to include in his annual report a statement which would represent verbatim, the directions he had received from the Minister or Ministers under section 5 of this Bill in relation to any requirement to hold or not to hold an investigation. However, it would be more satisfactory for the public if the ombudsman were required to make known immediately at least to the party affected the fact that he had been required either not to investigate something or to discontinue to investigate something by the Minister and to recite verbatim to the complaining party the reasons why the Minister had made such a request. The ombudsman should be required to include in his annual statement a list of the occasions with a quotation of the grounds on which this exclusion was invoked, and for ordinary purposes and for political use the ombudsman should be required to tell the complainant at once why an investigation has been discontinued or why it cannot be implemented. This Bill will not work with this exclusion in it. This at least would give the complaining party a chance to go to his public representative and publicise how he has been treated by any particular Minister. That would give public representatives here and elsewhere the press a chance to ask the Minister why he has refused to allow something to be investigated. That is the least that should be done. I hope to put an amendment to that effect later on.
An alternative that would be reasonably satisfactory would be to amend subsection (4) of the next section so as to require the ombudsman where he is not able to investigate to tell the complaining party immediately the reason why he is being stopped.
I wish to apologise for misleading Deputy Kelly some time ago. An applicant, as the Deputy said, cannot complain about any question of recruitment as such. An applicant for a civil service job cannot complain to the Civil Service Commission. The position is that a newspaper could complain in relation to advertising or something but the applicant cannot.
Deputy Kelly suggested that the ombudsman's report should quote verbatim the terms of a Minister's request not to investigate. This is acceptable to me and I presumed that the ombudsman would do that anyway. I will look at it between now and Report Stage to see if we can facilitate the Deputy. One could say that it could be left to the discretion of the ombudsman but if the Deputy insists I will see how we can accommodate him.
I thank the Minister for that and while he is doing so will the Minister also look at the point I made in regard to the value of requiring the ombudsman to let the aggrieved or complaining party know at once because otherwise the immediacy is gone. The Minister may not be here next year and he might find himself very anxious to discover why a Minister had refused to allow something to be investigated. A Deputy will not have a chance of doing this at the right time if he has to wait for the annual report of the ombudsman to surface.
Deputy O'Brien referred to the number of exclusions but I would point out that this is in accordance with the recommendations of the all-party committee. The all-party committee recommended the exclusion of health boards and local authorities initially but they can all be taken in by order. If I am here in a year's time I will have a look at the operation of the ombudsman to see what improvements should be made and to see after consultation, what bodies in Part II can be taken in. There is no reason why a lot of them cannot be included once we get the things working. To take all of these in at the start would inundate the ombudsman with work and he would not be able to deal expeditiously with the complaints, which is the purpose of the Bill.
There were no Fianna Fáil members at the last meeting of the all-party committee when the recommendations were finally drawn up. We tried to meet the views of the all-party committee in this Bill and both sides of the House agree with the principle of the Bill. I will certainly look at all the points raised by Deputy Kelly and Deputy O'Brien.
The question is that section 5 as amended——
This is——
This ombudsman would like to make a little progress at this stage.
With the greatest respect——
(Interruptions.)
When I pass on if anybody likes to do a dissection on me there will be——
It could be interesting.
——an epitaph about single amendments put in by the Fianna Fáil Party on which three days were spent in the last Dáil.
Deputy O'Brien, please.
We will not apologise for spending not quite half the day yet on this important amendment.
The Chair has given the Deputy plenty of latitude.
This exclusion section is the most important section. We have not been long given the length of the section and the number of exclusions.
Deputy Vivion de Valera would have spent three weeks on it had he been let, if he was on the other side.
Not if I were in the Chair.
The Chair was suffering too as Whip. I know that that Deputy was not the Chair's favourite man either.
While the all-party committee made certain recommendations we all reflect on things with the passage of time. There was broad agreement between the parties but there was disagreement in relation to certain areas. The health boards should be included under this Bill. They are little empires as the Chair knows.
We will be discussing that fully on the Schedule.
The health boards are two years behind in relation to matters involving large sums of money and it is impossible to get a statement from them. What chance have the public of getting any satisfaction from a faceless board like that? I wish the local authorities were included but at least there is a mechanism where one can get down to the nitty gritty of local authorities. When it comes to the health boards one cannot. While we are spending a little time on this we are putting the Minister on notice that when we come to the Schedules a fair length of time will be spent on them.
The Chair would like that we would not do it now and later.
The Chair may be occupied by somebody else.
In relation to the point made by Deputy Kelly that the claimant should be told immediately the reason for not investigating, this is in the Bill. There is no question of having to wait for an annual report.
Where is that?
It is in the next section, section 6 (1).
We have not come to section 6 yet. We will dispose of section 5, as amended, first.
Question put and declared carried.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
I would like to take up the point which the Minister introduced. Subsection (1) of this section does not bear on this exclusion power of the Minister. My reason is a lawyer's one and I hope the Minister of State will not despise it for that reason. The subsection reads:
In any case where a complaint is made to the Ombudsman in relation to an action and the Ombudsman decides not to carry out an investigation under this Act into the action or to discontinue such an investigation....
It could not be cleared by the use of the word "deciding" that what is happening here is that the ombudsman is exercising his judgement and his discretion on whether to investigate and his decision is not to investigate. It is envisaged by section 5 (3) that that power should be mandatory and that there power should be no element of decision or discretion whatever left to the ombudsman. If there were it would be a different day's work. If the ombudsman were allowed to decide for himself, having had the Minister's request, whether he would acquiesce, it would be a different story. The words of subsection (3) of section 5 are mandatory. I cannot read them otherwise. It says that the ombudsman shall not investigate or shall cease to investigate. That seems to me to be a scenario which is excluded by the ordinary use of language from the scope of subsection (1) of section 6. The reference to "decides not to" clearly envisages that it is a decision taken in any other circumstance than the one where the Minister has forbidden him to go ahead. Here his discretion has free play.
I thank the Minister for a good try, but I do not think he will find that any of his legal advisers will agree with him that section 6 (1) plainly carries the effect of subsection (3) of the previous section. Naturally one lawyer's opinion is as likely to be as wrong as another's. I may be wrong about this, but it certainly seems to me not to accord with the ordinary use of language. Lawyers may be a very contemptible crew but oddly enough they start out from language and its ordinary use. It is litigants who try to get them to twist something else out of it.
I take Deputy Kelly's point and I assure him that this subsection was intended to cover the case he has cited. We will look at it and we will ensure that it will do so.
I thank the Minister.
Question put and agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."
I have a technical point here which the Minister might look at. It has one dimension which is not technical but is of some substance. If I am right about this it may be an oversight. Subsection (1) deals with the conduct of the ombudsman's investigation and states:
The Ombudsman may, for the purposes of a preliminary examination, or an investigation, by him under this Act, require any person who, in the opinion of the Ombudsman, is in possession of information, or has a document or thing in his power or control, that is relevant to the examination or investigation to furnish that information, document or thing to the Ombudsman and, where appropriate, may require the person to attend before him for that purpose and the person shall comply with the requirements.
That is fine but there are elements in an administrative process which are not as palpable as a document or as the contents of a document or even as palpable as information which is non-documentary, information transmitted by word of mouth. There are such things as motive and judgement that cannot be elicited from an official without interrogating him. I do not mean putting him on the rack but asking him: "Why did you do this, why did you do that, why did you not do the other?" It may be that some other part of the Bill implicitly empowers the ombudsman to interrogate an official in that sense of the word, not in a hostile way but to question him. It does not seem to me to result from anything in section 7.
Section 7 defines the powers of the ombudsman in respect of examinations and investigations. All the first paragraph of subsection (1) does is to empower the ombudsman to get the files and to ask an official: "Have you any information bearing on this matter over and above the files which you have brought along with you?". If the answer is no, that is the end of the ombudsman's powers so far as conducting his investigation of this official is concerned. He is not apparently specifically allowed to ask about the official's motives, modes of operation or methods, but these matters are highly relevant to several of the criteria listed in section 4. That section, unless I have missed something in it, ought to be amended in order specifically to empower the ombudsman to question a Minister or any of his subordinates in regard to the motives or circumstances of a particular administrative action.
That brings me to another matter, although this may arise more directly under section 8. The ombudsman, who I am sure will be absolutely honest and who will have to know at least something about how government works, might find in the course of conducting an investigation a case being made by an official or by a Department which was prejudicial to the complaining party. I do not mean a case that would reflect morally, for instance, on him; but the ombudsman might find an official saying that a decision not to grant planning permission, for instance, had been made because the road concerned was very narrow and there would not be access for fire engines. In saying that I am aware that An Bord Pleanála are excluded from the Bill. But let us suppose that the reply from the applicant was that there was that there was access from some other place or that adequate fire protection was available without the fire engines having to travel along the roadway concerned. It might not occur to the ombudsman to make that point. He would have many other cases to deal with but had the complainant known in advance that the point about access would be raised against him, he would have wanted to rush in and say before the case got to the ombudsman that there was another means of access.
Therefore, while it would be unreasonable to ask the ombudsman to hold a kind of court with the complainant present and brow-beating officials, there should be some access for the complainant to meet face to face with the officials who had decided his case and there should be some possibility for him to cross-examine them. I do not mean necessarily to examine them in a hostile sense. In my reasonable experience of administrative activity in this country I do not ever recall being confronted with a case of deliberately malicious, dishonest or disreputable behaviour on the part of an official either at national or local government level. I have come across cases of people not getting their rights as a result of their being insufficiently understood, but I have never heard any suggestion that anything other than that is much of a feature of our system. Consequently, when I use the phrase "cross-examine". I do not mean putting an official in a corner and subjecting him to rigorous questioning. Instead, I am using the phrase in the lawyer's sense of testing the reasons for someone having reached certain conclusions. Having regard to what is now the conception of the courts in regard to constitutional justice, cross-examination is almost a necessary part of a fair procedure. A person should be given the chance of testing what is being raised against him.
The powers of the ombudsman should be stated more clearly. It should be stated clearly that he is entitled to question or interrogate an official and that in any case in which he would consider that fairness to the applicant so requires the applicant, whether acting on his own behalf or through a solicitor or counsel, should have access to the inquiry so as to test, by cross-examination if necessary, the points being put forward against him by a Department.
I take the phrase, "who in the opinion of the ombudsman is in possession of information" in section 7 as meaning that, if a person is in possession of information as to the reasons why he did or did not do something and that if in the opinion of the ombudsman that information is relevant, the applicant can be summoned by the ombudsman to appear before him. In other words, I understand the section as empowering the ombudsman to summon witnesses and to question them and also to request the production of documents and so on.
The Minister agrees, then, with what I am trying to establish, but this does not come through in the Bill. I will give the Minister an instance from the Irish Jurist Reports of 1945 in which is cited the case of O'Mahony against the then South Cork Board of Health. That case concerned an old lady who was the tenant of a labourer's cottage provided under the Labourer's Act, 1936, the cottage being owned by the local board of health. The old lady had made a nuisance of herself to the board by forcing them to carry out repairs to the cottage. They had dragged their heels about doing the work but she took them to court, where it was decided that they had to pay for the repairs. It transpired in the course of the court hearing thereafter that the board of health felt badly about being taken to law by this old lady. Later she applied, as she was entitled to apply, under the 1936 Act to buy out the cottage but her application was turned down by the board. It transpired that they were actuated, not by any of the considerations which the Statute recognised, namely, whether she was within the qualifications outlined by the Act for acquiring the labourer's cottage of which she was a tenant, but by a mere pique, their reaction being “We will show this old one who is boss”. I mentioned that as a very rare case. I doubt if one would find a similar case in the Irish Law Reports, but such a case would not respond to the exercise of the function which section 7, subsection (1), paragraph (a) contains. An ombudsman might have requested documents and so on but it would have been very difficult for him to ascertain the motive which lead to the board's refusing to vest the cottage in the old lady.
Progress reported; Committee to sit again.
Business suspended at 1.30 p.m. and resumed at 2.30 p.m.