Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach díospóireacht -
Thursday, 9 Dec 2021

Ombudsman and Information Commissioner: Commissioner Designate

Chairman

The first item on the agenda is the minutes of our meetings on 1 and 8 December 2021. The minutes were agreed and dealt with at our private meeting. Is that agreed? Agreed.

I refer to the Ombudsman and Information Commissioner. Members are aware of the announcement by the Minister for Public Expenditure and Reform, Deputy Michael McGrath, that Mr. Ger Deering was selected as the candidate to be nominated as Ombudsman and Information Commissioner following the retirement of Mr. Peter Tyndall. Formal notification of the motion to nominate Mr. Deering was referred to the joint committee, which is required to report to both the Dáil and the Seanad before 14 December 2021. I welcome Mr. Deering to the meeting, congratulate him and wish him well. I thank Mr. Tyndall for his period of office. The purpose of this meeting is to discuss the role Mr. Deering is now taking up and his ambitions for that role. We are delighted to have him with us to outline that.

I remind members and our witness of the note on privilege. As long as they are here in Leinster House, they are covered by privilege. If they are not, they may be only entitled to part privilege. I remind members of the long-standing parliamentary practice to the effect that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable.

I now invite Mr. Deering to make his opening remarks, after which members may engage with him.

Mr. Ger Deering

I thank the Chairman for his good wishes. I am pleased to have been invited to engage with the committee. I am honoured to have been selected as the Government’s nominee for appointment by the President as Ombudsman and Information Commissioner, following the competition run by the Public Appointments Service.

An effective democracy requires that the Government and public administrators are held accountable for their actions. The Ombudsman and Information Commissioner plays a vital role in monitoring administrative accountability so that public service activities are carried out in a spirit of openness and accountability and in a proper and fair manner. The Ombudsman is an important element of the checks and balances within the State and acts as a positive influence on the delivery of services and the management of complaints by providers of public services in Ireland. In addition, the role of the Information Commissioner is key in developing a culture of maximum access to information held by public bodies.

At the outset, I commend public bodies the length and breadth of the country on the work they do on a daily basis. Society simply could not function without them. Most of the time, the majority of these organisations and their staff provide an excellent service. I particularly commend public sector employees and their leaders for the flexibility, professionalism and commitment many of them have demonstrated during the pandemic. We have experienced some remarkable examples of their responsiveness and the quality of their work during the pandemic.

That said, public services are not always as good as they could or should be, mistakes are made and information is not always furnished when it should be. The role of the Ombudsman and Information Commissioner is to deal with such situations and to promote learning and improvements when and where required. In addition to delivering a robust and timely complaints management process, the Ombudsman and Information Commissioner has an important role in encouraging, assisting and requiring public bodies to improve the quality of the information they provide, the services they deliver and how they deal with complaints. This is achieved through ongoing sharing and learning based on the work of the Office of the Ombudsman and through the provision of guidance and appropriate collaboration and by demonstrating the benefits of listening to service users through feedback and complaints mechanisms. Among my key priorities will be fostering early and better resolution of complaints and ensuring timely meaningful engagement with the Office of the Ombudsman by providers. I will also continue to focus on the need to listen to people and emphasise the benefits of resolving issues in a non-adversarial way that is fair to everyone.

The Office of the Information Commissioner and the Office of the Commissioner for Environmental Information have a key role in delivering greater access to information held by public bodies. The offices also have a key role in promoting the benefits of open data and delivering cultural change in respect of access to information. I want to achieve maximum transparency in the management and dissemination of information by public bodies. I believe that much of the information currently obtained using freedom of information, FOI, and access to environmental information, AIE, should be made available as a matter of course, thereby reducing the need for FOI and AIE requests to these bodies. Furthermore, it is critical that FOI and AIE bodies have appropriate and efficient mechanisms in place for dealing with requests from the public and for responding to the Office of the Information Commissioner and the Office of the Commissioner for Environmental Information.

Empowering service users by making them aware of what they are entitled to expect and their options when things go wrong is also important. Furthermore, it is essential that all public services, including the services of the Office of the Ombudsman and Information Commissioner, are easily and readily accessible. People must have the option to engage in the manner most suited to them, whether that is online, in person when circumstances allow, or by telephone. In that regard, I note the Office of the Ombudsman continues to work on developing its technology and digital portals but, as it does so, it remains committed to maintaining accessibility and human contact for those who prefer these options. This is important to ensure maximum access.

The Office of the Ombudsman has a strong tradition of engaging in outreach activity.

This has, unfortunately, been curtailed by the pandemic. Facilities have been put in place to conduct outreach by methods other than face to face. It may be necessary to adopt a hybrid model of outreach to continue to connect with service users in the future.

An important feature of the work of the Ombudsman is the power to undertake own initiative investigations. The Ombudsman can identify areas that merit investigation irrespective of whether a complaint has been made about the particular issue or service. This is a power that has been used to great effect by the current and previous holders of the Office of Ombudsman. I will continue the use of this power in a targeted and effective manner with a strong focus on ensuring the voices of people which might otherwise be missed are heard and responded to. This involves not only responding to complaints received but also proactively engaging with advocacy groups, marginalised groups and individuals through outreach and own initiative investigations and reports. I propose to continue to monitor the implementation of the recommendations of previous Ombudsman reports and to conduct future investigations and issue further reports.

It is my intention to keep a focus on access to transport for those living with a disability. This has been an ongoing priority for the office for almost ten years now and was championed by both Emily O'Reilly and Peter Tyndall. I also propose to monitor the implementation of the recommendations contained in reports published by Peter Tyndall, including A Good Death, dealing with the very sensitive issue of end-of-life care; Learning to Get Better, which deals with health complaints; Opportunity Lost, relating to the Magdalen redress scheme; and Wasted Lives, the most recent report, which looked at the appropriateness of the placement of people under 65 years of age in nursing homes designed for older people. The improved management information systems recently developed by the office will facilitate the identification of areas that should be considered for own initiative investigations in the future. I will be happy to work with the Oireachtas, this committee and any other Oireachtas committee to maintain momentum in the implementation of the recommendations contained in these reports.

I believe a society should be judged by the way it treats its most vulnerable members. Often in this country we look back with shame on events that happened in the past. It is important we acknowledge the past and rectify and redress what we can. We must also learn from these experiences. Equally, we must focus purposefully on the services we are delivering or ought to be delivering today. We need to ensure future generations will not be forced to look back with shame on events that should not have happened or actions that should have been taken on our watch.

I welcome that jurisdiction over complaints from people living in direct provision was eventually given to the Ombudsman’s office. I am glad to note that since this jurisdiction was given, it has formed an important area of work for the office. I also welcome the fact that progress has been made on bringing complaints from prisoners within the jurisdiction of the office. However, further progress is required in this area.

I am pleased there is a commitment to bring the administration of the asylum and immigration process within the jurisdiction of the office. This commitment must be delivered as a priority. It is essential the services of the Ombudsman’s office are available to all who live in our country and not just to citizens. There is no justification for excluding any public service from the jurisdiction of the Ombudsman. This is especially so when the services are delivered to the most vulnerable in society.

I welcome that a review of the Freedom of Information Act 2014 is under way to strengthen and modernise the legislation. I also welcome that a review of ethics legislation is under way to ensure we have an easy to understand ethical framework that contributes to the quality and effectiveness of public administration. A similar review of the legislation underpinning the office of the Ombudsman would be beneficial. Such a review should be informed by the work of the office over the past 40 years, the changing needs of service users and the constant evolution in the delivery of public services. The review should also seek to incorporate the Venice principles, the global standard for public service Ombudsman institutions adopted by the United Nations in December 2020. It was positive that Ireland was a co-sponsor of the motion when the principles were adopted. We should now adopt and implement these principles ourselves.

The Office of the Ombudsman will receive a significant new role relating to the receipt of disclosures under the protected disclosures (amendment) Bill, which will transpose the EU whistleblowing directive and strengthen protections for whistleblowers. This will be an important opportunity to promote a culture in the country of speaking up when wrongdoing is detected and providing support and assurance to those who call out wrongdoing.

We use various tools, such as GDP, to measure the success of our economy, but society is much more than an economy. The more important question for me is how we measure societal success. I believe we should measure our success as a people by the level of openness, inclusion and access to services and opportunities enjoyed by all. We have made great progress as a nation in these areas in recent years. However, it is still the case that some people, whether born here or newly arrived, are less able to access information, services and entitlements. They need support and understanding to overcome barriers. Ultimately, we must identify and remove any barriers that exist and design our services in a way that makes them universally accessible.

We should rightly acknowledge and celebrate the many improvements we have made as a nation, particularly in recent years, in a whole range of areas. However, we should not be complacent. We still have a way to go. We should also guard against any possible regression relating to people’s rights. We can see that, internationally, there are attempts to row back on people’s fundamental human rights, even in parts of the EU. We must ensure there is no dilution of the rights of individuals or groups in our society to access information and services. We must, therefore, forge ahead and redouble our efforts to ensure every member of society has his or her rights protected irrespective of his or her background, race, gender, ability, ethnicity, sexual orientation, religious beliefs or civil status. We must ensure people are given autonomy and treated fairly and equally and with respect and dignity. People are entitled to be treated in this manner, whether they are accessing or delivering services.

I believe all the roles assigned to the post for which I have been nominated, including Ombudsman, Information Commissioner, Commissioner for Environmental Information, member of the Standards in Public Office Commission, member of the Commission for Public Service Appointments and member of any referendum commission established, are key elements in ensuring a fair and just society where a human rights based approach is adopted in the delivery of high quality and accessible public services.

A considerable body of work has been done by the Office of the Ombudsman and its various incumbents over its 40 years of existence. I pay tribute to those who have held the post in the past, in particular to Peter Tyndall for the work he has done and the excellent legacy he leaves. He will be a hard act to follow.

It is evident the office is well served by a committed management and staff, and I welcome the prospect of working with the director general, the management team and all the staff of the office as we continue to make a real and positive difference in the lives of citizens and people living in Ireland by working together with all stakeholders to ensure public services are delivered to a high standard in an accessible, transparent, accountable and fair manner.

I thank the Cathaoirleach and committee members for this opportunity to engage with them. I am happy to hear any comments or deal with any questions they have.

Deputy Jim O'Callaghan

Like the Chairman, the first thing I want to do is to congratulate Mr. Deering on his nomination to these important roles. I wish him every success in the years ahead. I also commend the Minister for Public Expenditure and Reform, Deputy Michael McGrath, on ensuring Mr. Deering was nominated on foot of an open recruitment process. Mr. Deering's position is greatly strengthened in the political and public realms because he comes before both having been selected as a result of an independent, transparent and objective process.

I agree with Mr. Deering who said at the outset of his comments, and I commend him on it, that we are lucky in this country because we have a good public service. We have excellent services that are provided but they can always be improved. There are areas within the public service that need to be improved. I am conscious and appreciate that he recognises his role is to try to assist the public by improving the quality of information and services provided by the public service.

I will ask Mr. Deering some questions in respect of what he stated in his opening statement. He made some comments that I thought interesting and of use to the political realm. In his report, he mentioned he believes that much of the information currently obtained using freedom of information and access to environmental information should be made available as a matter of course. That would mean individuals would not have to select documents they think exist but that the documents would be, in general, available. It may be the case, in fact, that certain documents would be withheld and they are the ones that would be subject to application. I ask Mr. Deering to elaborate on that point. How does he think it could operate?

What improvements would that result in?

Mr. Ger Deering

There are two types of information that can be sought under FOI. One area is public information generally and the other is personal data. Obviously personal data are something that should always have to be applied for by the person themselves. In some institutions up to 60% of the information that is sought under FOI is in fact public information. I would believe, as the Deputy has rightly pointed out, that if it is necessary to redact certain pieces of this information, then that would be acceptable. A lot of information is released under FOI, so my thinking is that if it can be released under FOI, why not put it up on the website in the first place. Almost all public bodies have very good websites with a lot of information, and I will outline what I would like to see as they develop in this area. In fact, many bodies put up on their websites the information they grant under FOI.

I appreciate that for many organisations they consider requests under FOI to be an administrative burden, but people are entitled to this information and we must resource the area. If we put the information up on the website in the first place, a considerable number of people can then access it and will not need to submit an FOI request. If people measured the amount of time it takes to deal with an FOI request as opposed to deciding to put the information up on their website, they would find that in the long run there would be an efficiency. As well as doing the right thing it could also help in terms of efficiency for the organisations and save on resources.

Deputy Jim O'Callaghan

Under that system, does Mr. Deering envisage this operating in terms of Departments such that meetings between Ministers or officials and other parties would by course go up on the website as minutes of the meetings and would be available without individuals having to request them subsequently?

Mr. Ger Deering

Yes. It will always be up to each body as to what they put on their website. Many organisations put minutes of their management meetings, boards and so on, and within Departments they put up those kinds of minutes. The maximum amount of that information that is put there will both reduce the administrative burden for the body and, more importantly, give better access to the public.

Deputy Jim O'Callaghan

That is probably not something that legislation is required to introduce because it is available to any entity at this stage to provide that information if it decides to do so without the necessity of being compelled by legislation.

Mr. Ger Deering

The Deputy is absolutely right. One of the things we suffer from sometimes is we take legislation as being the maximum we can do. It usually is the minimum we are required to do but in the vast majority of areas people can go beyond what the legislation actually requires them to do.

Deputy Jim O'Callaghan

Mr. Deering talked about own initiative investigations. What principles would guide him if he is trying to decide whether to establish an information of his own initiative? Is he going to be swayed by what is in the media? How can people interpret how he comes to his own initiative?

Mr. Ger Deering

It would be a number of things. For example, one would consider the statistics within the office itself such as whether we were receiving a lot of complaints from a particular area. It would also be the impact. It would not necessarily be the number of complaints. One might see that, even with a small number of complaints or an individual complaint, the impact for this person and, more significantly, the impact beyond that individual for groups of people could be very significant. Certainly it would be about collecting information and data from any source, whether that is public representatives, the media or the office itself. The key thing is to do the research and know the extent of the difficulty or the problem people are encountering, whether it actually requires an investigation or if it is something that could be solved by dealing directly with an individual body.

One of the areas from which I would like to see more information come is the complaints mechanisms of the public bodies themselves. If a body receives quite a number of complaints in a particular category or from a particular group of people, then there must be an issue. It could be an issue as small as or as simple as the information that is available is not clear or as good as it should be, or it might be something more systemic and difficult. I would adopt a risk-based approach where one collects the information, puts it together and sees the possible detriment in this area and, equally, the advantages and what we can achieve by doing an investigation.

I might just comment on some of the own initiative investigations that have been done, particularly most recently by Mr. Peter Tyndall. Let us consider the ones I have listed. I have seen on the ground the impact of some of those around people being decongregated from collective or institutional settings. That is very impactful on people's lives for the rest of their lives. What is interesting about a report like this is that one does not necessarily see or meet the people who benefit from it. The people who benefit from it themselves do not necessarily know they benefit from it because some investigation was done by the Ombudsman. I do not think it matters where the credit goes or who claims they have made something happen. The key thing is the person on the ground gets the benefit of this action or activity.

Deputy Jim O'Callaghan

Mr. Deering mentioned there is an ongoing review of the freedom of information legislation and said he thought a review of the Ombudsman legislation would be beneficial. The primary legislation dates from 1980 and we had an amending Act in 2012. In what way does he think the Oireachtas could improve the legislation for the benefit of his office?

Mr. Ger Deering

A review would look at that. For example, I mentioned the Venice Principles. Indeed, the Deputy mentioned the fact my post was advertised and went through the Public Appointments Service. That would be one of the Venice Principles. Like the Deputy, I commend the Minister and the Department because they are applying the Venice Principles and, indeed, the office is applying the principles, which are a set of 25 principles around transparency, independence, fairness and all of the things an ombudsman office should hold.

It might be said we do not need the legislation because we are already doing these things. While that is not a problem, there is an issue, which I mentioned and I hope we do not ever see it in Ireland, in that in some parts of the world and in the EU there is a rowing back in those situations. It is always good to have something as fundamental and as important as these principles enshrined in legislation so that it does not depend on the Minister or Ombudsman of the day to ensure these things happen. It is always best to have these kinds of important principles enshrined in the legislation.

Deputy Mairéad Farrell

I, too, congratulate Mr. Deering on his nomination for the position. I heard and read his opening statement with real interest because I am interested in this subject myself.

Mr. Deering said that "public services are not always as good as they could or should be ... and information is not always furnished". Does he think that is due to an internal culture or is it due to a lack of information in respect of the requirements?

We have heard from the Minister and from what Mr. Deering has said here himself that we need to reduce the need for FOI requests. We have heard about a life after FOI and that things should be made available. That is what we all want but we are very from that. Anybody who has lodged an FOI request will know how frustrating it is to have half the information is redacted. We have also seen that senior people are not aware of their FOI obligations. Indeed, there is an FOI review under way and the whole process was announced in the summer, but we saw that senior members of the Government were not even aware the review was happening until it became a news issue. I am quite concerned about the level of information and knowledge people have about FOI.

In terms of public bodies, does Mr. Deering think this is as a result of a culture? Is culture one aspect? Does he think it is because there is a lack of information? Mr. Deering made the fair point that some people see FOI requests as an administrative burden. Could that view be linked to the culture? How does he see us having a life beyond FOI? I ask because it is often mentioned in the debate that you cannot compete with that because, of course, that is the dream everybody wants, but we are nowhere near that at the moment. How does he see that happening?

Mr. Ger Deering

In terms of culture, I do not think the quality of service or where there is a poor quality of service is a cultural issue because, as has already been stated here today, there are excellent examples of really good services being provided by the public service. We saw that during Covid but we, in fact, see it many times. I think it is something a bit more basic in the sense that it really depends on people having champions and having an open mind.

It also depends upon the fact that when people design a service, it is designed from the outside in and not from the inside out. It is very tempting if one is working in an organisation to design one’s service, not necessarily to suit oneself, but where one is not thinking outwardly. In some countries there are actual designers where when a new public service is being designed, these people almost represent the consumer, that is, the person who is going to use that service.

Many public bodies have started asking what the public wants from their website and not what these bodies themselves want to achieve from it. Until all organisations consult with their consumers and customers and the people who use their service, listen to them and then design their service to suit them, we will have these problems with quality.

The reason I am saying that it is not cultural because if it was cultural, it would be across the public service. We probably have more examples of good service now than of poor service, which allows us perhaps to focus better on the areas where service needs to be developed.

Another reason services are not as good as they could be is that we often tend to tack on things. This happens by virtue of legislation. An example I mentioned in my presentation is that the Office of the Ombudsman is about to get a significant new role in respect of people being able to make protected disclosures. I am perhaps going to make a pitch here but the office needs to have the resources to do that. Sometimes we give additional functions to an office without thinking about the resources that are needed. One cannot just keep tacking on services and sometimes one needs to do a very fundamental review of the services being provided. If something is going to be added on, perhaps one needs to step back to ask that if one is designing this today, would one just add that piece or would one just do something fundamentally different?

I would say that this is more about leadership than culture. There is a great culture of innovation in many parts of the public service and I know that the Department of Public Expenditure and Reform is trying to drive a culture of innovation.

The other thing that we must link to that also is that we need to be careful about a culture of blame. By that I mean that if one is going to work in the public service and be innovative, that involves taking risks. When people take genuine risks, have measured the risks and have genuinely tried to make an improvement and it goes wrong, we need to be very careful not to demonise people when things do not go as they should do. There will be mistakes and problems in any walk of life. For me, the important part is that people learn from any mistakes like that, learn from any developments and improve their services accordingly.

On reaching the utopia in respect of FOI, where people put information up, I believe we are going to have to persuade such people from a very practical point of view. There are two elements to this. One is the ideal of what we should do and the culture of openness and transparency, which we have got to keep promoting. We also have to take, however, a very practical approach and persuade people that not giving this information is not in their best interest or the most efficient way to run their business. There are two approaches to this. It is the cultural thing of doing this because it is the right thing to do but there is also the idea of doing it because it is the practical thing to do and if we can demonstrate - and I believe we can - the amount of time that goes into dealing with a FOI request. We can ask the person who has now released all of that documentation under FOI to one person or requester, what was to stop the person who has received that request putting that information up on the website the day that that document became a document or was created, or whatever the case may be? I fully accept that there are areas such as tendering where there are measurable sensitivities and that not everything can be put on a website or made publicly available, but if it can be given out on FOI then it could have been put on the website in the first instance. I come back to the fact that I will concentrate on the areas where it is public and not obviously personal information that people are seeking under FOI.

The position is different in different bodies. FOI is around for a long time, as am I, unfortunately, and I remember when it was introduced where people saw it as a kind of intrusion into the work of that body. We have moved passed that and I certainly hope that we have. We need to get rid of any last vestiges of the notion that people asking a public body for public information is somehow an intrusion. It is not but is an entitlement, is good governance and is how we should go.

Deputy Mairéad Farrell

Mr. Deering makes an interesting point because people who regularly make FOI requests would say that there are differences in how different public bodies respond to such requests. I will not name these but this is something that is very much seen as a given.

One other thing that Mr. Deering said there is that there is the culture of champions championing the importance of FOIs, which is something that people go above and beyond in their own work to ensure that is the case. How will Mr. Deering, in a practical sense, try to move away from that culture of relying on individual champions towards it being something that people realise is very important and want to assist with? This is my first question.

My other question on the FOI issue is that Mr. Deering welcomes and was glad in respect of the eventual giving of jurisdiction to the Ombudsman’s office over complaints from people living in direct provision and that this will form an important area of work for the office. Does he have the data on how many complaints were received by this office by people in direct provision, which would be of some interest and is very important?

He stated that he wants to have a strong focus on ensuring that the voices of people who might otherwise be missed or not heard are responded to. How is he hoping to do that in a practical sense?

I have one further question on the protected disclosures Bill, also, Chairman, if I may also have time to come in on that, please.

Mr. Ger Deering

I thank the Deputy for her question. I do not have these numbers because I am still part of the nomination process and do not have any such internal information on the office itself at this stage and, therefore, cannot answer that question.

On the question of how we move from champions to making this a daily reality, I might take a slightly different approach by saying to the Deputy that I would want to make the Secretary General of the Department, the chief executive of the council or the head of the body the champion. That is what I need to do. I will be engaging at the highest level with all of these organisations. We need to convince those people, not the FOI officer. The Deputy may be referring to the FOI officer who is the champion already and who is trying to fight this battle alone. I will be engaging at a more senior level to deal with the leaders of these organisations. I do not believe it will be solely just a matter of winning hearts and minds. If it was that easy, we would have done it already and the Deputy alluded to that earlier. It is also about providing hard evidence to these organisations, showing them the benefits and demonstrating to them that not alone is this the right thing to do but that it is also the sensible and practical thing to do.

There are two elements to the giving of a voice to those who do not have one already. One is the outreach that is done by the office. I mentioned in my presentation that the office has a very good track record of doing outreach and the office used to go to many places around the country. Sadly, that has not been possible in the past two years. When it did do this, that included going into the direct provision centres and such areas. Hopefully, there will be life after Covid-19 and we will be able to resume that. I know that the office has plans in place at the moment to do a hybrid version and outreach is one part of that. The Ombudsman’s office's own initiative investigations are also a key part of this. We should recognise that many of the people who do not currently have access to the office, for example, people going through the asylum system, even if they are given access to the office may not automatically engage because many of them will have come from a part of the world where they cannot trust the public bodies or the formal structures they deal with. We will need to be able to engage directly with those people and go to where they are rather than hope that they come to us. We will also use investigations and produce reports in this regard.

The real thing here is if we can put in place investigations and reports that benefit hundreds or perhaps thousands of people rather than just deal with an individual complaint that solves the problem for just that person or four or five other people.

Deputy Mairéad Farrell

I have one final question on the protected disclosures legislation mentioned by Mr. Deering, which is something that we have been dealing with in this committee and that I am particularly interested in. I have heard concerns from whistleblowers and academics and from transparency campaigning organisations that certain provisions in the Bill on public service disclosures could lower existing standards and that by introducing that stepped procedure for disclosure and restrictive conditionality for allowing a worker to make a disclosure to the Minister is regressive. As the Ombudsman will be aware, protected disclosures cases can take years and take a real toll on people. Going to the Minister was one way that could add pressure, raise awareness and speed up the process. That will now be much more difficult. Does the Ombudsman agree that that is a retrograde step and if he does not agree, can he outline why he thinks it is not a retrograde step? I thank Mr. Deering.

Mr. Ger Deering

First, I mention where we talked about culture earlier.

This is an area where culture is extremely important. As a nation, we have, unfortunately, a history of thinking that somehow speaking up is wrong. The new Bill and processes and procedures that are being put in place are an opportunity to develop a better culture of speaking up, and will comfort people, give them support and let them know that it is the wrongdoing that is wrong. It is right and okay to speak up when people see wrongdoing. From that point of view, it is a positive development. I do not have a firm view on the question the Deputy asked at this stage. I would like to think about it. I believe the processes that are being put in place and the additional step are positive developments.

Deputy Mairéad Farrell

I thank Mr. Deering. My concern is that we are adding to the hoops that people who are making protected disclosures have to jump through. They cannot go directly to a Minister. I appreciate that Mr. Deering wants us to have a think about it but I wanted to add my concerns so that they can be included in the thought process.

Deputy Bernard J. Durkan

I welcome the new Ombudsman and wish him well in the time ahead. I have no doubt he will give the role his best. He mentioned direct and indirect discrimination and the housing given to refugees the day they arrived in the country. There was an attempt to settle a number of families on a semi long-term basis. There were objections to that on the basis that, presumably, they were not welcome in an area. How do we deal with that? I assume from the Ombudsman's opening remarks that he intends to deal with those kinds of issues. I strongly agree with him. We should expect to be able to treat those who come here to seek help in the same way that we would like to have been treated when we had to go in the opposite direction.

Mr. Ger Deering

I thank the Deputy. The first answer to his question is that it is extremely important that people in the asylum process are brought within the remit of the Ombudsman. That has not happened yet. There is a commitment to it, but it is something that needs to be addressed. If they are not within the remit of the Ombudsman, there is very little the office can actually do. I fully agree with the sentiment the Deputy expressed. The Irish diaspora comprises something like 80 million people all over the world. We need to be able to accept people.

This morning we heard about a judge from Afghanistan who came to this country. She expressed her delight at being treated well here. She would prefer to be a judge back in her own country. It is important that we understand that when people come to us to seek refuge they have very often come through a very difficult situation and background. We need to be welcoming towards those people. The only way the issue to which the Deputy referred could be dealt with is by giving that remit to the Ombudsman so that my office can examine complaints into area. That is the solution.

Deputy Bernard J. Durkan

In terms of how we address those situations and bring the matter under the remit of the Ombudsman, can the committee assist in doing that? If so, in what way?

Mr. Ger Deering

The support of the committee will be the first thing in terms of moving that development forward. I know the commitment is there and things often take longer than we would like. Any report or assistance the committee can give in that regard in making that a priority would be very much welcome.

Deputy Bernard J. Durkan

I am delighted to hear the sentiments of the Ombudsman in that area and we look forward to progressing this in the desirable direction. In recent years, there has been an increase in the numbers of people sleeping rough on the streets, which is a terrible blight on our society and a reflection of the way we deal with people in difficulty. It is not a reflection on any individual or institution. Rather, things have drifted in that direction through a variety of circumstances. When people are found to be in that situation a method needs to be found to ensure that ample provision is made for them. We cannot force people off the streets, but we can encourage them and provide them with their own keys to their own hall doors, which is something they want anyway. There are ways and means of providing facilities to support those in such circumstances while, at the same time, society is seen to address an issue. To my mind, things that are happening are a reflection on society. Some will say this is not our business but we believe it is our business and we need to do something about it. I suspect the Ombudsman thinks likewise.

Mr. Ger Deering

Absolutely. I fully agree that how every citizen and person living in the country is treated is our collective business. I am careful to talk about citizens and people living in the country because I am conscious that there are probably half a million people living here who are not citizens and are entitled to the same rights. I agree with the Deputy that, as I mentioned in my introductory remarks, we will be judged in the future by how we deal with those who are less fortunate in society. I do not want to come here and pretend that, as Ombudsman, I will address all of the very difficult problems that have been there for some time. I hope to deal with individuals in those areas and, if necessary, examine whether our own investigative reports are required in the area and encourage public bodies to do all that they can to deliver for those people.

Deputy Bernard J. Durkan

We need more people to take up the positions available in our economy at the current time. Our economy has grown remarkably over the past 50 years. We are probably the only country in Europe to have achieved such an increase in population and economic development. That creates new openings. It also creates a better way for Irish people to consider the global situation. We live in a global economy and environment. The right to travel throughout the European Union is sacrosanct. Unfortunately, as the Ombudsman noted, that right is not entirely observed in the true letter and spirit across all European states at the current time. We need to impress upon our European colleagues in every way that we need to apply the rules as they should be applied and not as people would like to apply them in particular situations.

Mr. Ger Deering

I thank the Deputy.

Senator Alice-Mary Higgins

I congratulate Mr. Deering and look forward to his service in this important role. I begin by acknowledging his predecessor, Mr. Tyndall. I also sit on the Joint Committee on Disability Matters and we recently had a strong engagement with Mr. Tyndall in respect of his report on those aged under 65 being placed in nursing homes and the very incremental movement on that. I would like Mr. Deering to elaborate on that. He expressed an interest in following up on the recommendations that have been made, and I would love to know what form that would take. I will let him address that and then look forward to new areas.

Mr. Ger Deering

I thank the Senator. In terms of the follow-up, I am conscious that a lot of what I am talking about here is work that is ongoing in the office and is not something new that I will introduce. I am very conscious that staff in the office follow up. For example, they work with people in the HSE. We are all conscious of the situation the HSE finds itself in at the moment. Staff will follow up with the HSE on the work being done to deal with sensitive areas where people are at the end of their lives.

We know from the report that in the past conditions were not optimal in hospitals and places like that. It is reassuring that quite a few hospitals and similar organisations have put in place a number of steps so that people can have the dignity they need at such a difficult time.

The Senator mentioned the report on people aged under 65 living in institutional settings. I am involved in a charity where there was a congregated setting of people. We had been working very hard to try to get those people out into the community but the impetus required just was not there. All of those people have recently taken up their own homes. There was no reason for the vast majority of them to be in a congregated setting other than this is what happened traditionally over the years. It is about engagement. My office will constantly engage. I will endorse and support that. We will not let them go off the boil, for want of a better way of putting it. We will be seeking reports from those public sector bodies as to what they are doing to implement these reports.

Senator Alice-Mary Higgins

I thank Mr. Deering. I would like to speak to a number of the cross-cutting areas and then I will finish with a number of specific issues I hope Mr. Deering might consider. I am sure there are many issues coming his way. A concern I have heard a lot from very different areas and places is in regard to the information component of Mr. Deering's role, including that in the move to gov.ie a lot of information has been vanishing. In parallel with some Departments moving over to gov.ie, sources of information, documents, explainers and so on that were previously available are vanishing such that people, in particular civil society, and individuals are finding it much harder to source documents. They are getting only an oversimplified summary. Finding out where something is coming from, the policy on it, what it tracks back to or the meeting where this or that happened is becoming harder. This relates to a general issue around the digitalisation of the archiving as a public information source and right in terms of accountability of Government and departmental information. That is a cross-cutting piece, but a really serious concern. I hope Mr. Deering can address it.

Related to that, I want to highlight another issue. We have talked about hoping to move past the point of always having to use freedom of information. FOI will always be needed, but we might not need it as much. Another area where people are having to use a long, cumbersome process, unnecessarily, is in regard to data subject access requests. This is about the difficulties that people are facing in accessing their own information. I will not go into the detail of GDPR. I am aware of the existence of the Data Protection Commissioner. Data subject access requests are tools under that data protection process. It strikes me that in respect of a lot of those issues, there is a pattern of people having to use this methodology to access this information they should be able to freely access on request and, as such, not overburden the Data Protection Commission, which we know is under pressure at EU level. That strikes me as another area of concern. There are two areas where I can see that as being very relevant, that is, in the engagement with Tusla in regard to the 1989 directives that are superseded by GDPR and in regard to the autism files in respect of families with autism that were held in the HSE. That damaged a lot of trust.

I ask Mr. Deering to address those two cross-cutting issues and then I will come to my final questions.

Mr. Ger Deering

As the Senator has rightly identified, a number of the areas she has spoken about are in regard to data and access. As such, they are matters for the Data Protection Commissioner, but there is an overlap. Individuals can also get some of their personal information under FOI. This is a bit like an issue we discussed earlier. There is a need for a cultural change, but also a practical change in terms of realising that this is information that people are entitled to. The more difficult one makes it for them to get that information, the more difficult one makes it for the public body and the more resources everybody will expend on the area.

In terms of the overall openness, I am glad to note that there is some work happening on OpenGov and that a new consultative group is being created in that regard. I welcome that. I would be very willing and happy to work with that group. The Ombudsman and Information Commissioner has a very real role, as does the Commissioner for Environmental Information, in deciding what can and cannot or should or should not be released. I take the Senator's point that we are almost losing when we are getting to that stage. Bodies should not have to be dragged through that in order to get them to release information that should be released. To return to what I was talking about earlier, I believe there is a body of work that we can do around persuading public bodies that have that information of the benefits of releasing it. They need to do it because it is what they are supposed to do, but there are benefits to them in the long run in doing that. As I mentioned, I will be engaging with the heads of the various bodies to try to achieve that.

Senator Alice-Mary Higgins

The area of gov.ie is one that might need work in terms of that argument. Mr. Deering mentioned that he will be focusing on information that will be public information. However, I believe that in his role as Ombudsman there is other information that he should or might need to have access to, including in regard to tendering and commercial sensitives. I am conscious that there are areas, for example, in regard to direct provision, where access to financial information might be important in terms of the Ombudsman properly exercising his role. Is Mr. Deering confident that as Ombudsman he will be sufficiently empowered to access that information, when it is relevant? That leads to a wider question on procurement. Mr. Deering mentioned public bodies. We know that the public duty on equality and human rights applies to procurement and to those who are delegated or given a contract to perform and deliver public services. As Ombudsman, Mr. Deering's access in those situations is really important. I ask him to elaborate on whether that right of access is sufficient. Does it need to be strengthened or is it about exercising it in a very strong way?

I mentioned direct provision. I want to highlight a particular area. Mr. Deering mentioned asylum seeking and that process. An issue that has been coming to my attention a lot recently, and in respect of which there have been a lot of publicised cases, is that of LGBT asylum seekers who are facing impossible burdens of proof. The UN High Commissioner for Refugees has rightly said that the expression of sexual identify is not homogenous. People are being told that because they did not attend a gay club in a country in which to be gay is a criminal offence they have not demonstrated their sexuality. That is a pattern. I ask Mr. Deering to comment on his role in, for example, those areas where we are seeing very poor practice not only for individuals but poor practice of support in terms of appropriate and inappropriate burden of proof. LGBT is one area that has come to the fore in that regard. I had many more issues I wanted to highlight, but that is probably enough for now.

I welcome that Mr. Deering will be working with those harder to reach groups. Prisons and homelessness services, as highlighted by Deputy Durkan, are areas where investigation can be really important because the power dynamics can be significant. I add my voice to the calls for greater resources to ensure that protected disclosures move rapidly through the Ombudsman's office. I concur with the concern expressed. I agree that the ministerial route should still be available because those are situations wherein when somebody has made a disclosure he or she is not in a neutral position after doing so. That person can be in a vulnerable position and so a delay in action is not simply a delay in the positive; it creates a negative potential space.

Mr. Ger Deering

I thank the Senator. In terms of the access to the information as in the Ombudsman or the Information Commissioner having access, the legislation provides that the information must be given to the Ombudsman. It would not be sufficient for a body to say to the Ombudsman that particular information is sensitive commercial data. It would be for the Information Commissioner to decide that. That information would have to be furnished and the Information Commissioner can decide whether it is commercially sensitive and whether it should be released beyond that. This is a matter which, if the legislation was being reviewed, I would be happy to consider further and to offer further comments on. I am satisfied that power is there at the moment.

The Senator mentioned asylum seekers and, in particular, LGBTQ asylum seekers.

It is important to point out that even when those areas come within the remit of the Ombudsman, the Ombudsman cannot substitute his or her decision for that of the Minister or the competent authority. The areas the Senator describes are grey areas. They may fall within the competence of the Ombudsman or they may fall within the decision. I take the Senator's point that it is not realistic to have a list of requirements that are very easily achieved in this country for somebody who lives in a regime where something that is perfectly legal, right, moral and acceptable in this country is deemed, for some reason, to be illegal in another country. You cannot expect people to have the same evidence or documents. The reality is that people living in some of these countries have to hide whatever the issue is that causes them to leave the country. It is therefore very difficult to have documentation to prove that. That is an area you would have to look at carefully to see if it is part of the decision-making process or maybe maladministration. I will give the Senator an on the one hand and on the other hand answer to that.

Senator Alice-Mary Higgins

On procurement, Mr. Deering might follow up on another point to confirm that he can investigate procured services as well as direct services.

Mr. Ger Deering

Yes, if there is a complaint in that area. I want to stress that there is a whole legal framework around procurement and there are challenges people can take in that area. Maladministration is a broad concept. It is not, as of itself, ruled out under certain circumstances.

Deputy Pearse Doherty

Cuirim fáilte roimh an Uasal Deering chuig an gcoiste. We are used to Mr. Deering being a guest of our committee, but today he is with a different hat on, and I look forward to working with him in that new capacity. I take this opportunity to thank him for the engagement we have had during his role as the Financial Services and Pensions Ombudsman, particularly in the passage of my legislation where we got rid of the seven-year rule and allowed people to access the office of the ombudsman, be that in regard to insurance or other financial banking products. That was a successful engagement and good legislation that has had a good effect since. I thank him for his personal engagement and the engagement of the office.

A lot of ground has been covered. I have some specific questions to ask Mr. Deering and then I will make a more general point. We have a situation where public bodies often cite the low level of appeals in freedom of information, FOI, cases and they signpost that this suggests the regime is working well. All too often, when appeals are taken to the Information Commissioner, as Mr. Deering will be aware, those decisions are overturned, and this would indicate the regime is not working as properly, in the first step, as it should. In the event that an appeal is successful, should the application fee be refunded to the applicant? Should the Department or public body be required to publish information on FOI appeal refunds? This would bring more light to the fact that a certain body that is refusing FOI requests is having them subsequently overturned. It would also be an incentive to individuals to take an appeal if they believed the fee would be refunded by the Department.

Mr. Ger Deering

I have not given any thought to the refunding of the fees and it is something I am happy to think about and come back to the Deputy on. I agree that we cannot necessarily make assumptions about the low level of appeals. It comes back to some of what we talked about earlier. We have to try to get these bodies to put the information on their website in the first instance. I agree with more information being available and there being more transparency in the number of decisions refused and the reason for that. All that information needs to be available. When I take up office, I hope to be looking at whether there are trends and bodies that are refusing more than others, as the Deputy referred to. The office will have a lot of information and detail in that regard that we can examine and see where the problems are. Honestly, I am not informed enough to give the Deputy specific answers to those particular points until I get my feet under the desk.

Deputy Pearse Doherty

That is fair enough. I am signalling an area at which we would like Mr. Deering to look. I welcome his comments that he will take that matter under consideration. It also seems strange to me that public bodies go to great lengths to gather data. They get those data, collate them, clean them and prepare them in a publishable format, but often they do not maximise this by bringing all the different data sets together. It is fine if a person knows where to look and where to go and all the rest, but we do not have joined-up data in this State. A concrete example of this would be the public procurement data on etenders.gov.ie. If these data were connected to other publicly available data, for example, company information contained in the Companies Registration Office, CRO, ownership data in the register of beneficial ownership, court data such as judgements, bankruptcy, and data published by the Central Bank on disqualified directors, it would make it far more accessible to the public in relation to information.

We have a new data sharing service Act that was passed but has not yet been enacted. We know the Government got money from the recovery and resilience fund from the EU that will go towards a shared government data service centre. Many companies in the private sector are already creating this service for individuals. They are using the public data sets that are available in different places and doing as I suggested. Should the State not also be doing this kind thing? It does the heavy lifting but does not reap the benefit. We got frustrated in Leinster House. We could not access kildarestreet.com. I do not know if the site was down or if it was blocked here or whatever. The Oireachtas has its own website, but most Deputies use kildarestreet.com because it is more user-friendly, and it is not publicly funded. The point is that the information is available but it needs to be collected, joined together and presented and made available to the public in an easy to use way. Is this something that Mr. Deering, as the Information Commissioner, would look at not just in making the data sets available but joining them and, crucially, making them available in an easy to use format that is searchable and accessible to the public and that you do not need a masters degree to figure your way around it.

Mr. Ger Deering

That is the ultimate area we need to get to and it is certainly something I will be encouraging. The problem we suffer from is that so many different organisations have grown up with different systems and legacy systems. There is a world of difference between where some public bodies are in terms of the IT and data management systems they have. It would be ideal if all those systems would talk to each other. It is a big project. Everybody will know that any IT project undertaken will be a big project. There have been developments in recent times with central management of information. The Department of Public Expenditure and Reform now has an information officer for the entire Civil Service and public service generally. There are moves in that area and there are major projects.

The simple answer to the Deputy's question is that I would like to see it happen. In practical terms, a lot of work needs to be done, but we need to agree that is where we need to go. Anybody developing a new system or doing work in the area of information management can aspire to move into that space. The issue is a bit like what I talked about at the start regarding the quality of services people deliver sometimes. It is not necessarily always a cultural thing. It is to do with when that service was developed and whether it was added to piecemeal. Part of the problem with the public service and some of the private sector as well is that they are dealing with legacy systems that cannot talk to each other. It will take a considerable amount of investment, but that does not mean we should not be aspiring, planning and aiming to get there.

Deputy Pearse Doherty

I take Mr. Deering's point about when we are dealing with systems that speak to each other and information management. It can be a big project. I also know from the commentary of those behind kildarestreet.com that they are not doing it at a huge cost. There are fundraising efforts and all of the rest of it. The Oireachtas website has improved in the last period, but it would be interesting to know for how many Deputies the Oireachtas website is their first port of call as opposed to kildarestreet.com.

This is about the information that is already there and joining the dots. There has to be a starting point.

Just to tie this up, I put in FOI requests quite regularly. I would usually send in one each week. There is no doubt that there has been a change in terms of FOI requests over the last period. My colleague, Deputy Mairéad Farrell, talked about the frustration in terms of getting documents back that have been redacted. The most frustrating thing is when you have to wait six weeks, maybe an extension of time, and then you just get blacked-out sheets back, which is just taking the piss to tell you the God's honest truth. If they are not releasing any information because it has not been provided, then they should tell you straight away and indicated that there are other ways to pursue the information.

There is another matter to which I wish to refer. This is not a Covid issue because it was happening before Covid. I do not have any data and am just going on the basis of my own situation in this regard. It is very rare that FOI requests are dealt with within the original timeframe. Extensions of time are usually applied in respect of requests. In some cases, they are being extended over and over again. That is extremely frustrating. What can be done in this regard?

I wish to refer to a particular case and I am only raising it because it was a public issue. I refer to when FOI requests went to a certain Minister looking for a particular document that we knew said Minister had because it related to the leaking of documents by the Tánaiste in respect of the GP contract. The reply stated that the document did not exist. We then had the situation where, in a separate scenario, a request was submitted and the relevant Deputy got a response back saying that the document did not exist. It was a reasonable request looking for information on mobile phone communications. After details of the matter were put on the floor of the Dáil, the Minister in question released the document two days later.

There is a big issue regarding public documents. This is my big concern. There is a back channel operating in the State. We have FOI in respect of documents that are controlled by the Department. That is fine. We know that documents and communications between Ministers on mobile phones are subject to FOI. The reality is, however, that they are not being sent on to the Department as they are supposed to be. If officials are able to communicate with whomever without forwarding that communication to the Department, this means that a horse and cart has been driven through the freedom of information legislation. Whether the communication is for good or bad, it does not matter. The public has a right to know. If they have that kind of channel, which is outside of their official Oireachtas or ministerial communications through Departments' official email systems, it can be an issue.

Now, we can send direct messages via Twitter, Facebook Messenger and WhatsApp. I do not know if you can send messages on TikTok. God knows how many other ways people have of communicating. If these messages are not being captured by the relevant Department, then there is a back channel that means that the public, even when requests for information are made, will never have access to the communications between a senior lobbyist for X, Y or Z and a senior Minister. How can that be dealt with? There are already guidelines in place that are supposed to capture this information. However, when we ask the Department, basically it has no robust ways of actually collecting that information, which is not personal information. If the information were in an email, it would be subject to FOI.

Mr. Ger Deering

The two issues the Deputy raised are linked. He will probably appreciate that I will not comment on any individual case because it is something that could come before me that I might have to make a decision on at a later stage. I will talk in general terms. The issues the Deputy raised are linked. They revolve around resources and taking the FOI function seriously within an organisation. One can measure an organisation's seriously, as it were, about a function by the resources it puts into it. If there is a very large Department and a person spends half their time dealing with FOI, one will probably not get the output and outcome one needs. More than that, the training and the information that are provided within that organisation will determine the quality of the way the information is presented and made available and the way it is actually made available under an FOI request.

The important that I can do as Information Commissioner is to draw attention to any areas where I believe that bodies are not properly resourcing, are not reacting properly and are not dealing requests in time. Then, obviously, there is the appeal process, where it will ultimately be decided whether something that was not released should have been. It is not a coincidence that area of most litigation involving the office is where the Information Commissioner would have determined that information should be released. Then we find that the matter was ultimately appealed to the High Court for decision.

The Deputy rightly pointed out that FOI was designed in a different time. It started with documents and technical documents that were created in soft copy. We also had hard copy at that time. However, we have moved on so much now. The communication methods that we are dealing with have moved on light years from that. The legislation being reviewed gives an opportunity to tighten up the areas that the Deputy talked about. It is a double-barrelled approach. It may be that there is a need to tighten the legislation and the requirements relating to it - in addition to the role of the Information Commissioner - and ensuring that everything is adhered to.

Deputy Pearse Doherty

Forget about any individual case. Hypothetically speaking, let us say there is communication by text message - which has been around for many years - between a Minister and a fracking company that is lobbying about a licence to frack. That is an official document of the Department and it should be passed on. All Ministers are aware of that. The problem is that we have FOI requests going in and we get the answer back to the effect that after reasonably conducting a search of all of the various documents, the Department in question has found that no document exists. What will the Mr. Deering do in a hypothetical scenario such as that, particularly in circumstances where that a Minister then produces the relevant document after public pressure or we find out that it actually exists? What can the Information Commissioner do? That is the issue.

I can appreciate the large amount of communication that people are getting and then perhaps not knowing what to send on, what not to send on and all of that. How can that be tightened up? As I said, not everybody communicates by email anymore. There is also the situation where it is just a phone call and you are never going to be able to record that. How will the Information Commissioner be able to capture that?

It is four weeks for a response, is it not? However, I do not think I have ever gotten a response sooner than four weeks. Four weeks should not be the target, as in, at four weeks exactly a Department will give a response. If the information is readily accessible within the Department, it should be provided within a couple of days.

We are seeing a good example in the Houses of the Oireachtas at the moment on foot of emails we received in recent days regarding information that was previously provided under FOI. A good example of this relates to former office holders and ministerial pensions. This matter has been well played out in the public domain and the information relating to it has always been made available. I have tabled parliamentary questions in respect of this matter in the past and I received the relevant information. That information was also made available through FOI. However, now it is not being made available anymore. We are in a situation where instead of improving transparency, we are in a rearguard action trying to fight for the existing level of access that we had but that we cannot get anymore.

Chairman

Would Mr. Deering like to comment or is he okay with that?

Mr. Ger Deering

There are many issues the Deputy raised that I could probably only deal with on an individual basis when I am in the role. Obviously, I will be looking at it and dealing with it.

Chairman

Does the Deputy have another question before I move on?

Deputy Pearse Doherty

I am finished, thank you.

Chairman

Earlier, Mr. Deering stated: "I believe a society should be judged by the way it treats its most vulnerable members." Society includes Government as well. Government has a duty of care to its people, which it does not exercise very well. That brings me to culture. Mr. Deering stated that he does not believe it is an issue solely to do with culture.

I happen to disagree with that. I will start on that point. I believe there is a serious problem with culture in the Civil Service and public service. Quite frankly, it shocks me. It is a culture in which the person or individual is easily disposed of in the most awful of ways. I will give the examples of former garda sergeant, Maurice McCabe; Julie Grace, who worked in local government; the Grace case in the HSE; Sean O'Brien and Noel McGree in the Prison Service; the former garda, John Wilson; Jonathan Sugarman and Shane Kavanagh, who worked in financial services; the females in the Defence Forces; and, most recently, the legacy case in Cork Institute Technology, CIT. The new president of Munster Technological University, MTU, has refused to meet two Members of these Houses to discuss an issue relating to protected disclosures. I can name all of those people because these cases are in the public domain. All of those people represent lost opportunities. In each of those cases, the individual is no longer with the Department, agency or organisation they complained about. That reflects awfully on the apparatus of the country, the Government and the Civil Service.

Let us look at the cases involving the HSE, including the Grace case. Mr. Deering will be familiar with that scandal. There are good people in the HSE. There are good people within all of the organisations I have mentioned. However, there seems to be an ability to trample over the rights of individuals at the cost of their mental health, lives and so forth. There is very little being done about it. I do not want Mr. Deering to comment on these individual cases but I want to outline what I have learned from them. There was a commission of inquiry in the case of Maurice McCabe. Julie Grace's case is ongoing in local government. She is being stonewalled. The answers to parliamentary questions and her efforts to get at the truth and get a decision have been nothing short of deplorable. Sean O'Brien's case with the Prison Service again involves a family and individual destroyed by the inaction of the State. It is the same for Noel McGree. He won his case but the Department has refused to honour the outcome. John Wilson was destroyed within the Garda. Jonathan Sugarman never worked in financial services again after coming forward in line with legislation. The legacy case I mentioned involving CIT, and now MTU, again involves another career that was absolutely destroyed. All of these people and more made use of the legislation on protected disclosures.

I believe that to be a culture. Anyone rocking the boat is resented and those involved will do anything to protect the status quo. That is the culture Mr. Deering is up against. The chairman of the Top Level Appointments Committee, TLAC, and Dr. Eddie Molloy have written about this extensively. Dr. Molloy holds the same position but the chairman has now changed his. It is also interesting that all of this continues. Is Mr. Deering confident that he can deal with the culture that has caused all of these lives to be absolutely ruined?

Mr. Ger Deering

May I make a clarification? The question I was asked was about the quality of services and whether variance in this quality and poor services were down to culture. I made the point that, with regard to the delivery of services, I did not believe the issue was entirely cultural because I believe that leadership is also an issue. I said that the quality of service delivery varies. I took a different approach with regard to protected disclosures. I direct the committee to page 6 of my presentation where I said that the changes that are happening "will be an important opportunity to promote a culture, in the Country, of speaking up when wrongdoing is detected and provide support and assurance to those who call out wrongdoing." In answer to a question, I said that we unfortunately have a culture in this country of thinking that it is wrong to call out wrongdoing. I believe this has to do with our history. I made the point that it is actually right to call out wrongdoing. The organisation I am running before moving to this job was one of the first to introduce an external confidential system and service for people who wanted to call out or identify wrongdoing in the organisation. We will not get where we want to be until people are able to call out wrongdoing and to be seen as doing something positive when they do so.

I spent considerable time in various different organisations in the public service and I agree that there is and has been a problem but I do not subscribe to the idea that it is endemic and everywhere. There are really good people across the public service. Things have been done wrong and we need to deal with that. We certainly need to nurture people who are willing to call that out as wrong. I welcome the fact that the Office of the Ombudsman and Information Commissioner has been given a role in respect of protected disclosures. As the Chairman will probably know, I have a background in employment rights. It is absolutely correct for employees who point out wrongdoing to be protected. Lest I give the impression that I was saying that this is not an issue, it is. The Chairman has mentioned high-profile cases in which it has been an issue. It is wrong for anyone to be in any way disadvantaged for doing the right thing and pointing out wrongdoing. We should actually thank these people because they solve a lot of problems. If we listen to them, engage and hear what they are saying at an early stage, it can be of great benefit to an organisation in avoiding serious detriment arising from wrongdoing.

Chairman

I thank Mr. Deering for that response. It will be a comfort to those listening in today to know that at least someone recognises this. I hope that those within the service that inflict pain on and disrupt these people's lives will recognise that change is absolutely needed and is being encouraged. In Mr. Deering, we have someone who will champion the change that is necessary to bring about a situation in which these people are acknowledged as being helpful rather than obstructive. I thank him for that.

In terms of resources, while I know Mr. Deering is not in the job yet, I am sure he has examined the issue. I have followed his career. He is thorough and forensic in what he does. I admired him in his previous position because he showed great humanity and compassion and was willing to go the extra mile. People know that about him. With regard to his leadership role, looking at the Office of Ombudsman and Information Commissioner and all of the other responsibilities attached to it, does he believe he has sufficient resources? In restructuring the office, will he be able to live within what he has? Given the new additional responsibilities, increased investment in the office may be needed.

Mr. Ger Deering

At the moment, the answer is that I do not know and that I will have to do some more work.

However, one of the first things I will do when I am appointed to the job is work with the director general responsible for that area of the work in the office. Looking at it, it is a very broad office, with not many staff at the moment. We will have to look at resources, particularly now given the new responsibility the Chairman just mentioned in respect of protected disclosures. I mentioned that we cannot keep giving responsibilities to organisations that are already stretched and hope they can do more with the same resources. People have come through a very difficult time when there were cutbacks, which were necessary and essential, but if we want quality we are going to have to resource it. It will take me a little time to figure out what the proper resourcing level is.

Chairman

With regard to the asylum and immigration processes, again reflecting on my work as a constituency representative, I have monitored a number of cases that have been just allowed to linger on within the system with opportunity lost, and a life poorly spent because of the State not being efficient enough to allow the individual to work at whatever age that person might be. I have seen another case where the family came to Ireland in 2000 and all the family members now have naturalisation certificates and are Irish citizens, except the father, after 21 years. Somebody said something about him. Nobody will tell him what was said about him, so there is a lack of information in terms of that individual trying to deal with his case. That is wrong. If there is something there, individuals like him should be told. He or she should be given the information so that at least he or she can prove it to be wrong, or accept it and move on, but to leave somebody in limbo with the statement "I know something about you" is truly the wrong way to do business and is a reflection on the state that we are in. I hope that in dealing with that area, Mr. Deering will deal with the most vulnerable cases, the ones that are outstanding and need to be checked on.

To return to a question that Deputy Doherty asked, it is a question of the Ombudsman's office being able to hold to account on issues Secretaries General and Ministers who are heads of their Departments. I encourage Mr. Deering to be fearless in that. He is at a point in his career where he can be fearless. He has built up a degree of respect that I do not think anybody will challenge. There are times when individuals such as him have an even greater contribution to make to the State because of the length of time he has been around. That is a positive. He knows where the graveyards are, where the bodies are and the attitudes of people, and if any one man knows what needs to be done it is his good self. With those few comments I want to end on a positive note and repeat that his work on financial services is noteworthy and has been very positive for many people. He has been a breath of fresh air in that area. He is bringing a new dynamic to this particular office. In line with his opening statement and the discussion we have had, he will certainly be supported in the course of his duties, but be not afraid.

Mr. Ger Deering

I thank the chairman and members. I have no doubt that we will have future interactions.

Deputy Bernard J. Durkan

I have one last question. The Chairman awakened some memories that I forgot to whinge about first time around. I could write books about the number of cases where refugees have been put on the long finger and tagged along with bits of information here and there. I have a particular gripe about one issue and that is GDPR insofar as it applies to directly elected Members of Parliament. I objected to it on the first day it was announced and introduced. I have no problem with people who are not elected Members of Parliament, For instance many of the parliaments throughout Europe have members who are appointed to parliament, and that is fine. However, I object to people who go before the electorate and get directly elected by the public, who then find themselves questioned as to whether they have the permission of the constituent to ask the question. I reject that out of hand. The sooner we can do something about it, the better, because we got the global permission of the public on the day of the election to ask any question we like. In actual fact, to show how ridiculous the situation is, if I wanted to write to complain about somebody, would I have to go back to the person concerned and ask permission to make representation against him or her? I find it frustrating and annoying on a regular basis. It was not supposed to happen in regard to Departments but occasionally it pops its head up there as well. It is not at all unusual to be questioned, in the very first instance that you make the call, as to whether you have the permission of the individual concerned to raise this question. I answer that by saying I do not need the permission, nor does any other publicly elected representative. I hope Mr. Deering will bear that in mind. It happens to be my gripe.

Another issue the Chairman referred to is officials within the system who actually watch parliamentary questions when they come in and say we will give that Member the old long-haul dragged out reply that is not answered. I will regale Mr. Deering some other time, when we have more time, with some of those. It infuriates some of us who know that within the system is a pot of information that an official will not give out and will not respond under any circumstances to the question being raised. That is my gripe; I do not require an answer.

Chairman

I thank the Deputy. The committee has now had a fulsome engagement with Mr. Deering and will now send a message to the Clerks of the Dáil and the Seanad indicating that the Joint Committee on Finance Public Expenditure and Reform, and Taoiseach, has completed its consideration of the motion and recommends Mr. Ger Deering for appointment by the President, to be the Ombudsman and Information Commissioner. Is that agreed? Agreed.

Under Standing Orders this will be deemed to be the report of the committee to both Houses.

The joint committee went into private session at 3.08 p.m. and adjourned at 3.10 p.m. until 1.30 p.m. on Wednesday, 15 December 2021.