Published on 17 September 2015
Thank you for the invitation to present to you today on this important topic. The Ombudsman's relationship with Parliament is a pivotal one and if that relationship breaks down or is operating in an ineffective way then it becomes very difficult for an Ombudsman to have recommendations implemented when faced with resistance from bodies under remit (known in Ireland as reviewable agencies). In the long run this would have the potential to undermine the effectiveness and authority of the Ombudsman.
I want to frame my presentation against the backdrop of the legislation under which my Office operates in Ireland and our own experience with our Houses of Parliament known as the Houses of the Oireachtas.
Under the Ombudsman Act 1980 as amended the Ombudsman is appointed by the President following a recommendation passed by the Houses of the Oireachtas. Such appointment may be preceded by consideration by a Committee of the Houses of the Oireachtas, designated by the Minister for Public Expenditure and Reform, of a person proposed to be appointed as Ombudsman. I appeared before the Oireachtas Committee on Public Service Oversight and Petitions in October 2010 prior to my appointment as Ombudsman and Information Commissioner.
Under the Irish legislation the Ombudsman may be removed from office by the President but cannot be removed from office except for stated misbehaviour, incapacity or bankruptcy and then only upon resolutions passed by the Houses of the Oireachtas.
While the legislation states that the Ombudsman shall be independent in the performance of his or her functions I am statutorily obliged to report annually to the Houses of the Oireachtas on the performance of my functions. I may also from time to time lay investigation or other reports before the Houses as I see fit. Furthermore, if, following an investigation, I make recommendations to a reviewable agency and its response is not, in my view, satisfactory then I may lay a Special Report before the Houses of the Oireachtas. However, the Ombudsman legislation does not specify what action, if any, the Houses may take following receipt of a Special Report. I will return to this issue later.
The Office of the Ombudsman has been operating since 1984 and has dealt over 90,000 complaints to date. In that period the Ombudsman has found it necessary to lay only four Special Reports before the Houses of the Oireachtas. I should say that during my own time as Ombudsman I have not found it necessary to publish a Special Report. I don't propose to cover the content and issues arising in the previous cases in any great detail here but I will give you a broad overview. I do however want to highlight some considerable difficulties which arose between my Office and the Houses of the Oireachtas arising from one of the Special Reports.
The first occasion a Special Report was laid was in 2002 in a case involving the Revenue Commissioners (Redress for Taxpayers Special Report). After the then Ombudsman, Kevin Murphy, submitted that report he was invited, along with the Chairman of the Revenue Commissioners, by the Joint Oireachtas Committee on Finance and the Public Service to brief members on the circumstances of the investigation and his recommendations. Following the intervention of the Joint Oireachtas Committee all the Ombudsman's recommendations were implemented in full.
In December 2009, the then Ombudsman, Emily O'Reilly submitted a Special Report on the Lost at Sea Scheme which was an administrative scheme that granted certain benefits to qualified members of the fishing industry to enable them to return to fishing following the loss of their boats at sea. I will come back to that case later.
In October 2012, the then Ombudsman Emily O'Reilly submitted a Special Report involving the Department of Health on the grounds that the Mobility Allowance Scheme was administered in a manner which breached Equal Status legislation. In November 2012 she submitted a further Special Report also involving the Health Service Executive and the Department of Health on the grounds that the Motorised Transport Grant Scheme was administered in a manner which breached Equal Status legislation. In both cases the reviewable agencies had acknowledged that they were acting in breach of the law but had taken no effective action to remedy the situation. I will return to these two cases later.
There is an underlying conundrum regarding the relationship between the Ombudsman and Parliament. On the one hand the Ombudsman is a creature of Parliament, he or she is obliged to report to Parliament yet he or she is independent of Parliament. An Ombudsman is expected to act without fear or favour and if the evidence of a case leads him or her to conclude that a reviewable agency has caused harm to a complainant, then he or she must seek appropriate redress. If redress is not forthcoming then he or she may seek to have his or her recommendations implemented with the assistance of Parliament. However, on occasion the Ombudsman's recommendations may reflect badly not only on the reviewable agency but also on the Government of the day which holds the majority of seats in the Parliament. In such a scenario a certain level of conflict is inevitable. Which brings me back to the Lost at Sea Special Report.
In that case the Ombudsman had recommended financial compensation to a family who had, in the opinion of the Ombudsman, been unfairly denied benefits under the Lost at Sea Scheme. Parts of the original investigation report involved scrutiny of the actions of a former Minister who was a member of the party in Government at the time the investigation report and the Special Report were published. As I said earlier, the Ombudsman legislation imposes no obligation on the Houses of the Oireachtas to consider follow up action in the case of a Special Report, although when the first such report was published by Kevin Murphy the matter was put before a Committee of Parliament which held a series of public hearings, following which all the Ombudsman's recommendations were implemented.
By contrast, following the publication of the Lost at Sea report there was no indication on the part of Government, which held the majority in Parliament, that it intended to refer the matter to a Committee. This immediately led to some considerable public controversy and the matter very quickly became a political battle. The situation was neatly summed up by one of our national newspapers, the Irish Times which published an article on one of the early debates in the Dáil in February 2010 which stated that;
"From the start it was clear there would be no agreement. But to say the Dáil debate about the Ombudsman's report on the Lost at Sea Scheme was highly charged would be euphemistic at best. It was verbal gouging at its most political, with a clear division between Government and Opposition."
A formal proposal was put to the Dáil by the Opposition calling for the report to be referred to a Committee. This proposal was defeated by the Government side.
As debate raged back and forth the Ombudsman, Emily O'Reilly made a speech at a conference in March 2010 which was quite scathing of the Government's handling of the matter. This was followed by a hard hitting editorial in the Irish Times which, in referring to the Ombudsman's speech, stated;
"Her recent polemic at the Institute of Public Administration in Dublin raises important questions about our democracy. Most trenchantly, precisely to the issue of whether the legislature can be said to have "a will of its own". With TDs whipped willingly through the lobbies by the Government, "for all practical purposes, parliament in Ireland has been side-lined" she insists, "and is no longer in a position to hold the executive to account"...
Ms O'Reilly's more general point about a stymied legislature not fit for purpose, is well made. The Ombudsman should be heard and respected, beyond party whips, in the Oireachtas."
Eventually, the Government relented and towards the end of March 2010 it was agreed to let the matter go before the Oireachtas Committee on Agriculture, Fisheries and Food as the Ombudsman's recommendation had been rejected by the Department of Agriculture.
Unfortunately, the climate of controversy did not abate as was reflected in an article in the Sunday Independent in April 2010 which described the situation in the following terms;
"With allegations of abuse, assault and corruption flying through the air, there seems little chance of calm or unanimous agreement by deputies on the rights and wrongs of this case. But politicians could accept as final the decision of the independent Ombudsman (herself appointed by a Fianna Fail government) on the matter of compensation for the Byrne family.
A series of public hearings were held over the following months involving the Ombudsman, numerous officials and the former Minister.
On Wednesday 20 October 2010 the Committee met in private session to finalise its report on its deliberations. The Committee's report, which recommended rejection of the Ombudsman's Special Report, went to a vote with the 9 Government aligned members voting in favour of rejecting the Ombudsman's recommendation and the other 7 members attending voting against a rejection.
The public reaction to this decision was decidedly negative with the Cork Examiner publishing an editorial headed Vote Leaves A Bad Taste which stated:
"Despite the best efforts of the Ombudsman Emily O'Reilly, Fianna Fail deputies yesterday drew a line under what has been a controversial and divisive issue...
Nine of the committee's 14 (sic) members are Fianna Fail deputies and the party also controls the chairman's casting vote. If this is indeed the end of the matter, it leaves a bad taste and very many unanswered questions."
Despite this set back in the individual case there was a very positive long term development arising from the controversy which served to very much strengthen the Ombudsman's position in terms of the Office's relationship with Parliament. As a result of the fallout from the Lost at Sea case the new Government which took Office in early 2011 undertook to establish an Oireachtas Committee, which, according to the Programme for Government would, inter alia, be “a formal channel of consultation and collaboration between the Oireachtas and the Ombudsman, responsible for receiving and debating her annual and special reports and for ensuring that her criticisms and recommendations are acted upon”.
My Office has had very fruitful and positive engagement with this Committee; the Joint Oireachtas Committee on Public Service Oversight and Petitions (PSOP). Arising from the aforementioned Special Reports published by Emily O'Reilly into the Mobility Allowance and Motorised Transport Schemes, the Committee held a number of public hearings involving the Ombudsman, the Minister for Health and senior officials from the Department. The two schemes had to be closed down for new entrants and an inter-Departmental Working Group was set up to formulate new proposals. Arising from this process, plans are at an advanced stage to bring in new legislation to introduce a special travel subsidy scheme for persons with disabilities.
I have made a number of appearances before the Committee to discuss my Annual Reports and broader issues of concern relating to public administration in Ireland.
Of particular importance to me is that while the Committee's terms of reference provide that it will work closely with my Office it also recognises the Ombudsman's statutory independence. So, for example, in exercising its role in considering petitions from members of the public the Committee will not accept petitions from members of the public about decisions already made by my Office.
Crucially, the Committee itself has flagged at an early stage its commitment to avoid party political pressure being brought to bear in its consideration of recommendations or reports of the Ombudsman which come before it. One of the members of the Committee summed it up as follows;
"I am conscious that I speak as a member of a Government party with a large majority. However, if the committee is to work to its potential - and supporting the Chairman will be vital in that regard - we should be less swayed by the rigorous application of the party whip. If there was ever an opportunity for any Oireachtas committee to be less dependent on the rigours of the whip, this committee may most appropriately take that approach. I welcome the Ombudsman’s observations in this regard, as contained in a report published earlier this year. I hope we will work together on an all-party basis, arriving at decisions by way of consensus rather than taking positions along narrow, partisan and party political lines."
Generally speaking, there needs to be clarity around the processes which should be followed when an Ombudsman lays a Special Report before Parliament and clear ground rules as to how the process can reach finality. All in all I believe that my Office's current relationship with Parliament is mature, positive and mutually respectful. An Ombudsman should not be above scrutiny by Parliament but any such process should not be tainted by narrow political considerations. If an Ombudsman makes recommendations which are objective, supported by the evidence of the case and the law and he or she recommends redress which is appropriate and proportionate then Parliament should bring its authority to bear on behalf of the complainant in order to overcome any resistance to full implementation of the Ombudsman's recommendations.