Published: 2013

The Ombudsman made the following submission to the Convention on the Constitution in April this year.  The submission proposes that a new Article be inserted into the Constitution providing for recognition of the Office of the Ombudsman and making other provisions similar to those already applying to the Comptroller and Auditor General.  The role of the Office of the Ombudsman is to monitor administrative accountability by ensuring that public service activities are carried out properly, fairly and in accordance with good administrative practice.  Explicit recognition in the Constitution would ensure that administrative accountability is taken as seriously as financial accountability.

Role of the Office

The Office of the Ombudsman was established as an independent statutory body charged with the objective examination of complaints, to identify causes and instances of maladministration, to recommend redress and to suggest improvements in administration.  The Ombudsman gives the citizen the capacity to question the administrative actions of organs of the State and often represents an avenue of last resort for the aggrieved citizen.   The service is free of charge for complainants and, in many cases, is a viable alternative to the courts. In its almost 30 years of existence, it has dealt with over 80,000 complaints and assisted with several hundred thousand enquiries.

Administrative Accountability

An effective democracy requires that government (and public administration as a whole) should be held accountable for its actions.  The Constitution already recognises the Office of Comptroller and Auditor General.  The role of that Office is to monitor financial accountability by ensuring that monies raised by, or given to, public authorities are used properly, efficiently and effectively.  The role of the Office of the Ombudsman is to monitor administrative accountability by ensuring that public service activities are carried out properly, fairly and in accordance with good administrative practice.  Administrative accountability is just as important as financial accountability. An example in this regard relates to the Department of Health which presided over the illegal charging of medical card holders for long-stay care provided by the health boards between 1976 and 2004. This was despite the fact that the Department had known since 1976 that the charges were illegal. The question of the legality of these charges was raised consistently by the Ombudsman with the Department from 1988 onwards. Over 300,000 people were charged illegally during 28 years. In the end, the Health Repayment Scheme was put in place to compensate those who had been charged illegally. To date, about €500 million has been paid out. This example demonstrates the potential cost to the state of poor administration and the important role played by the Ombudsman in identifying and addressing it detailed in Chapter 3 of the report Failure to Refund Illegal Nursing Home Charges.

Protection of the Office

Commentators have, over the years, called for the Office of the Ombudsman to be given clear constitutional recognition noting that increased protection of the Office would come with explicit recognition in the Constitution. For example, Donncha O’Connell's January 2011 article in the Irish Times entitled “Constitutional protection needed for inquiry bodies”. It would also serve to ensure that administrative accountability is taken as seriously as financial accountability.

The Ombudsman must be, and be seen to be, independent of the Government or any other body or person.   Statutory independence is formalised under section 4 of the Ombudsman Act 1980 (which provides that the Ombudsman shall be independent in the performance of his functions) and through his or her appointment by the President following nomination by the Government of the day and a positive resolution of both Houses of the Oireachtas. Under the Ombudsman (Amendment) Act 2012, such nomination and resolution may also now be preceded by a transparent consultation with an Oireachtas committee.

In 1996 the Constitution Review Group recommended that a new Article should be inserted into the Constitution confirming the establishment of the Office of the Ombudsman, providing for the independent exercise of such investigative and other functions of the Office in relation to administrative actions as may be determined by law and making other provisions similar to those applying to the Comptroller and Auditor General and consistent with the Ombudsman Act 1980, as amended.  The recommended new Article would have read as follows, though it should be noted that some of these provisions may no longer be appropriate e.g the Ombudsman  now holds other offices such as the Office of the Information Commissioner.

  1. There shall be an Ombudsman who shall independently perform such investigative and other functions in relation to administrative actions as may be determined by law.
  2. The Ombudsman shall be appointed by the President on the nomination of Dáil Éireann.
  3. The Ombudsman shall not be a member of either House of the Oireachtas and shall not hold any other office or position of emolument.
  4. The Ombudsman shall report to Dáil Éireann at stated periods as determined by law.
  5. The Ombudsman shall not be removed from office except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his or her removal.
    The Taoiseach shall duly notify the President of any such resolutions as aforesaid passed by Dáil Éireann and Seanad Éireann and shall send him or her a copy of each such resolution certified by the Chair of the House of the Oireachtas by which it shall have been passed.
    Upon receipt of such notification and of copies of such resolutions, the President shall forthwith, by an order under his or her hand and Seal, remove the Ombudsman from office.
  6. Subject to the foregoing, the terms and conditions of the office of Ombudsman shall be determined by law.

Although all political parties endorsed this recommendation at the time, no further definitive action was taken to implement it.

The International Landscape

It should be noted that the majority of democracies already provide for an Ombudsman in their constitutions, sometimes with an additional role in relation to human rights. New democracies in Eastern Europe have been particularly proactive in affording constitutional status to their recently created Ombudsman Offices. Countries which contain constitutional provisions on the role of the Ombudsman include, amongst others, Austria, Estonia, Finland, Poland, Spain and Sweden.  Constitutional underpinning has been advocated by the Council of Europe.  In particular, the Parliamentary Assembly of the Council of Europe concluded that establishment at constitutional level is an essential characteristic for any institution of Ombudsman to operate effectively. Recommendation 1615 of 2003 refers.

Status of the Office of the Ombudsman

The Office of Ombudsman has traditionally been provided with a similar institutional pedestal to that occupied by the judiciary of the Superior Courts or the Comptroller and Auditor General – both of which enjoy constitutional recognition.  For example, traditionally the Ombudsman’s salary has been tied to that of a judge of the High Court.  This link was broken in recent years by the Financial Emergency Measures in the Public Interest (Amendment) Act 2011. He or she can be removed from Office either at his or her own request or for stated misbehaviour, incapacity or bankruptcy and upon resolutions passed by both Houses of the Oireachtas, as per Section 2 of the Ombudsman Act, 1980.  In a recent Dáil debate, the Minister for Finance reflected on the fact that the independence of the Office of the Comptroller and Auditor General is copperfastened by virtue of its constitutional status.  In particular, he drew attention to the fact that Article 33 provides that the Comptroller and Auditor General may be removed from Office for stated misbehaviour or incapacity which “underlines the independent status of this important Office”.  

The Ombudsman has a status akin to that of a High Court judge and can demand information, documents, or any other thing relevant to an examination or investigation.  Similar provisions and protections as apply to a High Court witness are also provided in respect of material provided to the Ombudsman.

The Ombudsman can however do much that the courts cannot do.  For example, the Office is inquisitorial in nature rather than adversarial; it can therefore act on information that may not be available to the complainant.  It can also act on maladministration that may not be unlawful and has a flexibility in identifying an appropriate remedy that is often not available to the courts – where the courts can normally award damages or injunctions, the Ombudsman can recommend an apology, an explanation or improvements to administrative systems and procedures in order to ensure that the problem does not occur again. 

Unlike the courts, the Ombudsman can also draw on the experience of dealing with individual complaints to identify and report on systemic problems within public administration.   The Office has developed a role in contributing to the elimination of what may be termed the root causes of many of the complaints encountered.  Over the years, the Ombudsman has identified and investigated many issues of systemic significance including the treatment of late social welfare pension claims, serious maladministration in nursing home subventions and the operation of waiver schemes in waste collection

Role in Reforming Public Services

It is clear that the work of the Ombudsman has impacted significantly on the mindset of public servants. It has contributed to a widespread appreciation in the sphere of public administration of the right to fair procedures, the value of learning from complaints and the need for clear communication and explanations for decisions.  While the core function of the Office continues to be protection of the individual from unfair actions of the State, its role in helping public servants improve the services they offer is of no less importance.

The Office of the Ombudsman has grown in confidence and competence over the years.  This is reflected by the Ombudsman’s reports moving from specific and individual concerns to also covering the sphere of national and central government.  Over the years, the Ombudsman has not been afraid to criticise government processes and indeed has done so explicitly in such reports as Who Cares? An Investigation into the Right to Nursing Home Care in Ireland. The evolved and strengthened role of the Office has been recognised by the development of a more structured relationship with the Houses of the Oireachtas through the Public Services, Oversight and Petitions Committee, as well as a significant expansion of her remit under the Ombudsman (Amendment) Act 2012.  It is estimated that approximately 190 additional bodies will come within the Ombudsman’s remit from 1 May 2013 including the higher education sector, statutory regulators (e.g. the Health Information and Quality Authority ( HIQA)) and other bodies with quasi-judicial functions (e.g. the Adoption Authority of Ireland).

Why Constitutional Status is Required

The Constitution confirms various personal and other rights which traditionally have been protected by the courts.   In addition, Article 45 contains directive principles on social policy, which, although non-justiciable, nevertheless set out important principles including a pledge to safeguard with especial care the economic interests of the weaker sections of the community and to ensure that the strength and health of citizens shall not be abused. 

Constitutional recognition of the Office of the Ombudsman would be an extension of all of these rights wherein the existence (and independence) of another institution tasked with the protection and realisation of these rights would be guaranteed.  After all, as commentators have pointed out, the more difficult it is to change the legal basis for the Office of the Ombudsman, the more likely that the Office will be permanently established (See Note 1).  The Ombudsman will be free to continue to comment or indeed criticise, without fear that the Office will be abolished or unnecessarily restricted. 

The enhanced independence of the Ombudsman, through constitutional recognition, will undoubtedly increase public confidence in the Office as well as requiring the public service to ensure its engagement with the Office is genuinely co-operative.  This independence (and indeed neutrality) of the Ombudsman and the fact that he or she is universally respected by both complainants and those involved in public administration, are vital to the proper functioning of the Office of Ombudsman.  (It would also appear to be anomalous that the local authority sector, which is subject to the Ombudsman’s remit, enjoys constitutional status at present whereas the Office of the Ombudsman does not. )

The symbolism of the term “constitutional” should also not be underestimated.  Whether a matter or institution has constitutional status or not can affect the behaviour and decisions of those able to make and implement decisions – be it politicians, officials or others. 

Note 1:

Dean M. Gotteher and Michael Hostina, “Essential Characteristics of a Classical Ombudsman” in Righting Wrongs : the Ombudsman in Six Continents, International Institute of Administrative Sciences, 2000