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Accountability to the Citizen (7 Nov 1997)

Accountability to the Citizen (7 Nov 1997)

The following address was delivered by the Ombudsman and Information Commissioner Designate, Mr. Kevin Murphy, 7 November 1997, to the Annual Conference of the IPA on "Governance and Accountability", which took place in Dublin.

Kevin Murphy, Ombudsman and Information Commissioner Designate

Introduction

When I started to prepare this paper, I asked myself the question "What do citizens want of their Government and Public Administration?". Of course, they want a myriad of things, depending on who they are and what particular hat they may be wearing at the time. Citizens are taxpayers, mortgage holders, social welfare recipients, members of the travelling community, employees, politicians, business people, drug addicts, prison inmates; they are young, old, middle-aged, healthy, sick, disabled; they are men, women, poor, rich, informed, uninformed...one could go on indefinitely.

Just as in economics where overall demand curves are derived from the preference curves of individuals, so, it seems to me, it is possible to state generally what citizens expect of public administration. I believe that citizens want a public administration in which they have confidence because they know that, by and large, it is honest, it is fair, it is responsive to them and inclusive of them, it is efficient and gives value for money, it is effective in that it produces results or outcomes which increase the welfare of the community as a whole, economically, socially and environmentally.

This confidence, which is the lubrication which ensures a properly working democracy, can be secured only if public administration is open, transparent and accountable and if there are effective mechanisms in place to ensure this. In the Irish context, the most important mechanisms have been, and will continue to be, the Houses of the Oireachtas and the courts. Added to these is the mechanism of public scrutiny in which the media play a vital role. Shortcomings in the effectiveness of parliamentary control of Government and public administration have been evident for some time, while the expense and slowness of litigation has inhibited the effectiveness of access to the courts. A number of steps have been, and are being, taken to improve matters such as the new Committee system in the Dáil, the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 and the restructuring of the administration of the courts. While these are welcome, there is much which remains to be done. In my view, there is a need for more research and enquiry into how the two great institutions of State, the Oireachtas and the courts, can be made more effective in ensuring the greater accountability to citizens of Government and public administration. As to the media, questions have been raised concerning the suitability and the ethics of their being used (or sometimes abused) as a mechanism of accountability. This is not the occasion on which to address that complex issue nor do I claim the competence to do so.

Ad hoc Tribunals of Enquiry have, of course, been used in specific cases as a means of filling these gaps in accountability. In addition, in very many countries new independent institutions have been created operating, in a manner of speaking, in the twilight zone between Parliament and the courts. In Ireland, the Comptroller and Auditor General has been there since the beginning of the State to help the Dáil in its efforts to ensure that public resources are used correctly, properly, efficiently and, in more recent times, effectively. This office has been joined since 1984 by the Ombudsman, since 1989 by the Data Protection Commissioner, since 1995 by the Public Offices Commission and from April of next year by the Information Commissioner under the Freedom of Information Act, 1997. All these offices enjoy considerable powers both to investigate and to secure remedies. And, of course, we have also had three Ad Hoc Commissions on Referendum Information.

In this paper, I will deal mainly with my role as Ombudsman in trying to ensure accountability to the citizen. First of all, I will say a few words about the role of the Public Offices Commission in ensuring ethical accountability and about the importance of access to information in facilitating public scrutiny of Government decision making.

Standards in Public Life and The Public Offices Commission

The Ethics in Public Office Act, 1995 established the Public Offices Commission on 1 November 1995. The five member Commission comprises the Ombudsman, the Ceann Comhairle, the Comptroller and Auditor General, the Clerk of the Dáil and the Clerk of the Seanad. My Office provides the secretariat to the Commission. The Act provides for the disclosure of interests by holders of certain public offices, such as Ministers and members of the Oireachtas, and other persons holding designated positions or directorships in the public service. It also deals with gifts to Ministers and personal appointments by them. The Commission also has a role under the Electoral Act, 1997 in relation to disclosure of political donations. The provisions of these pieces of legislation are aimed at ensuring integrity in public life by requiring greater transparency in the area of interests, gifts and donations and, inter alia, the relationship between Government and business.

The Public Offices Commission has considerable powers of investigation where alleged breaches of the Ethics Act occur; these powers are comparable to those of a tribunal. Actions which took place before the commencement date of both the Ethics and the Electoral Acts are, of course, outside the Commission's jurisdiction. To date, no complaints of breaches of either Act have been received by the Commission.

A further mechanism which other countries have adopted to ensure transparency is, of course, "whistleblowing" - the disclosure by public servants of unethical activities combined with protection against retaliation for the "whistleblower". There are many difficult issues involved in such a mechanism including ethical questions and the possible divisive effects on the public body concerned. I would also pose the question, in the context of a buoyant Irish economy and greater movement from the senior public service to the private sector, as to whether we need to develop a formal code of practice to regulate such movement.

Access to Information and the Information Commissioner

In less than 6 months time, the Freedom of Information Act, 1997 will come into effect and it will confer new responsibilities upon me in my additional role as Information Commissioner. The Act aims to replace the culture of secrecy in the public service with one of openness. The purpose of the Act is to enable the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies. The Act confers the following new legal rights on members of the public:

• The right to seek access to information held by public bodies (including information in relation to themselves);
• The right to have personal information held by a public body amended where it is incorrect or misleading (and this right applies regardless of whether the material is held in a manual or a computer record);
• The right to seek reasons for decisions affecting themselves.

My job as Information Commissioner will be to ensure that the public's right to know is upheld and not hindered in any way. My functions may be summarised as follows:

• to review (on application) existing decisions in relation to FOI requests and to make binding new decisions;
• to keep the operation of the Act under review with a view to ensuring maximum compliance;
• to foster an attitude of openness among public bodies by encouraging the voluntary publication by them of information on their activities which goes beyond what they are obliged to publish under the Act;
• to prepare and publish commentaries on the practical operation of the Act;
• to publish an Annual Report which will be laid before the Houses of the Oireachtas.

Public Interest Test

Most of the exemptions defined in the Freedom of Information Act are subject to an overriding public interest test. There is no definition of the public interest in the Act and decisions taken by public bodies or by the Information Commissioner on this issue will be a matter of judgement based on the facts of each individual case. In many cases, the respective arguments for and against disclosure will be finely balanced. It will be necessary for public bodies to demonstrate to me as Information Commissioner how the public interest would be either harmed or not served by the release of the information. Without prejudice to any individual decision, I consider that such decisions should be taken against the background of the purposes of the Act. While the Act contains no specific purpose clause - unlike the position in New Zealand and Australia - there would be general agreement that the Act is designed:

• to extend, as far as possible, the right of the community to have access to information in the possession of public bodies;
• to make government more accountable by making it more open to public scrutiny;
• to improve the quality of political democracy by giving the opportunity to all citizens to participate fully in the political process including the formulation of policy;
• to enable groups and individuals to be kept informed of the functioning of the decision-making process as it affects them and to know the criteria which will be applied by government agencies in making those decisions; and
• to enable individuals to have access, except in very limited and exceptional circumstances, to information about them held by public bodies, so that they may know the basis on which decisions, which can fundamentally affect their lives, are made and may have the opportunity of correcting information which is untrue or misleading.

The Ad Hoc Commissions on Referendum Information

Before I leave the subject of information, I would like to offer a few personal comments on the activities of the three Ad Hoc Commissions on Referendum Information. These Commissions, comprised of the Ombudsman, the Clerk of the Dáil and the Clerk of the Seanad were asked by successive Governments to supervise the preparation by two Senior Counsel of statements for and against the amendments to the Constitution in relation to divorce, bail and, just last week, cabinet confidentiality. Let me say straight away that I strongly support the principle of citizens being given the maximum amount of information to enable them to make informed voting decisions. In the case of the divorce referendum, we produced a booklet which set out the case for and the case against the amendment and we sent it out to every household in the State. In the other two referenda, there was no option because of very tight time constraints but to set out the respective arguments by way of advertisements in the national and provincial newspapers. This had the merit, or demerit, depending on your viewpoint, of requiring brevity but even brevity came at a quite considerable cost - close to �400,000 in each case - and more than double the cost of the procedure used in the divorce referendum. Furthermore, the supply of information was limited to readers of newspapers. I cannot claim to be satisfied that our efforts were successful and there is clearly room for improvement but I think the general approach is right.

Referendum on the Amsterdam Treaty

I am raising this question now because I believe serious consideration needs to be given immediately to how the referendum on the Amsterdam Treaty is to be handled. This is not a single issue referendum which lends itself to a repeat of the simple procedure of brief statements prepared by Senior Counsel. There are a number of very important but also very complex issues affecting our future which will need to be explained and clarified for the public apart altogether from the merits of the issues themselves. One could envisage a series of booklets setting out in a clear and objective way the background to each issue and its rationale and then going on to give the arguments for and against the proposed amendment. I cannot see how these booklets can be successfully produced without the involvement of the civil service. Yet because of the Supreme Court's judgement in the McKenna case there is a clear reluctance on the part of the Government and the civil service to give out any information - even factual information - relating to a referendum. It seems to me that, if the final drafts of the booklets are vetted and approved by a new independent Commission with access to a broad spectrum of expertise, the objective of ensuring a balanced exposé of both sides of the argument for a change in the Constitution would be met. I have every reason to feel that the civil service would be capable of participating in this process in a constructive and neutral way. The neutrality of the civil service is recognised, for example, in briefings for political parties in the run-up to general elections and ways could be found for their participation in an objective fashion in such a process. There is, of course, the danger of information overload for citizens if the supply is not spread over a period of months. It is essential, therefore, to reach a conclusion at an early date as to how the dissemination of information is to be handled in the run-up to this important referendum. With adequate notice, it should also be possible to exploit the potential of the other mass communications technologies, including radio and television, in order to ensure that the public is well informed.

Administrative Accountability and the Ombudsman

I define administrative accountability as the process of ensuring that public service activities and, in particular, the exercise of decision-making powers, whether discretionary or otherwise, are carried out not only in a proper legal manner but in a manner consistent with fairness and good administrative practice.

In short, I am there to decide whether or not public bodies are guilty of maladministration. Just as financial auditors examine the activities of the public service against certain financial principles and criteria, I examine their activities against the background of what are commonly referred to as the principles of good administration. I outlined these principles in my Annual Report for 1994 and I also published a charter of citizens' rights in dealing with the public service. I elaborated on these principles of good administration in my 1995 Annual Report and illustrated their relevance to the individual complaints which came before me. In my 1996 Annual Report, I published a Guide to Standards of Best Practice for Public Servants setting out in plain language what needs to be done if citizens are to be dealt with properly, fairly and impartially by the public service. These "accountability parameters" are derived from the categories of maladministration given at Section 4(2)(b) of the Ombudsman Act, 1980, from the practical experiences of thousands of complainants and from Ombudsman colleagues throughout the world.

Fair Treatment

My role as Ombudsman is not simply a question of ensuring a better quality service to customers or clients. While obviously I have a shared interest with public bodies in ensuring better service, my interest goes deeper than that. If any section of the community feels that the system treats it unfairly, and that there is no accessible avenue of redress, then that confidence in public administration so essential to democracy will be missing. Greater efficiency and cost-effectiveness are, of course, key elements which the public service must pursue but it must never be forgotten that, unlike his or her counterpart in the private sector, the user of public services seldom has a choice of an alternative competitive supplier. Fair treatment is vital and must not be lost sight of when efficiency measures are being introduced. In addition, the pressures on individual public servants arising from greater commercialisation and greater personal accountability for performance must not lead to any diminution of public service values.

In trying to ensure that public servants are held accountable for their administrative decisions, the Ombudsman acts at a number of levels. At one level accountability for individual decisions is achieved by the examination and investigation of individual complaints and the provision of redress where justified. Since the Office was established, 46,000 complaints have been handled and in approximately 40% of cases some form of redress has been achieved. Examination of individual complaints often leads to the identification of systemic defects in procedures, approach or even attitudes and at this level valuable feedback can be given to the bodies within remit. Procedures and systems can then be improved in order to ensure that particular complaints do no recur. There is, however, a further level to which I attach particular importance. That is identifying, and seeking remedies for, deficiencies or injustices which have become endemic in the public service culture and which contribute to that "democratic deficit" which everyone admits exists and which alienates the citizen from the institutions of State.

Areas of Concern

Let me deal with four areas of concern to me, each of which has a bearing on the question of accountability:

• bad communications and record keeping,
• misuse of delegated legislation,
• adversarial attitudes, and
• gaps in the protection of human rights.

Bad communications and record keeping

The public service still seems to have difficulty in providing adequate information and giving clear and simple reasons why a particular decision was taken. Deficient communications are the cause of many complaints which come to my Office. The charter of citizens' rights which I published in my 1994 Annual Report defined the following rights for citizens in their dealings with public bodies:

Citizens should have:

• the right to be heard;
• the right to receive sufficient information;
• the right to assistance and representation;
• the right to be given reasons;
• the right to be told what remedies are available to them.

I am hopeful that the Freedom of Information Act, 1997 and especially Section 18 (which gives citizens the right to look for and get reasons) will dramatically improve this area.

One example of poor record keeping is shown in a complaint against Wicklow County Council which I dealt with last year. The case resulted in changes in the information management practices of that body. The complainant claimed that a document present in a planning file was not on the file when it had been inspected earlier; as a result, a submission to An Bord Pleanála did not deal with the points raised in the "missing" document. In accordance with my suggestion, the Council agreed to number and index planning files with effect from 1 January 1997 so that callers to the planning office could be confident that they had seen all documents relating to the file. I also wrote to the Department of the Environment and Rural Development suggesting that it should issue a general circular to all local authorities on this aspect of planning file maintenance. The Freedom of Information Act at Section 15(5) provides for the enactment of regulations governing the management and maintenance of records. As the above example demonstrates, such regulations will have an important role to play in eliminating the maladministration involved in missing or incomplete records.

Misuse of delegated legislation

The second concern relates to the area of delegated or secondary legislation of which there is a vast and growing amount. Here I have found that restrictions or qualifications, not specifically provided for in the primary legislation, are often incorporated into statutory regulations which as we all know receive very little scrutiny, since most of them simply need to be laid before the Houses of the Oireachtas to have effect. I detect an attitude which sees delegated legislation as a means of fine tuning in areas which might prove controversial if included in the primary legislation. I will give you two examples:

Example 1: Claims and Payments Regulations

The Social Welfare (Consolidation) Act, 1993, provides for the making of regulations which would disqualify persons from getting a benefit if they fail to claim in time but goes on to allow the time limit to be extended. The clear intention was to get people to apply in time in the interests of proper administration and good financial management but to allow late claimants who had good reasons for not applying in time to be dealt with reasonably. Yet the regulations provided that, irrespective of the reason for the delay in claiming, arrears payments would be limited to a maximum of six months. In some cases where, for example, people did not apply because of physical or mental ill-health, they suffered considerable financial penalties which could not be justified on any notion of equity. Yet from the Department of Social, Community and Family Affairs� point of view the law was the law and they saw themselves as having no discretion. Taking to heart George Bernard Shaw's statement that "The reasonable man adapts himself to the world, the unreasonable one persists in trying to adapt the world to himself. Therefore, all progress depends on the unreasonable man", I decided to investigate. Without going into the details of my investigation into this matter - which incidentally is the first investigation report to be published in full by my Office - I can say that up to a hundred claimants have now received arrears and, in addition, the Minister has indicated that he will be amending the regulation to ensure that penalties for late claims have regard to individual circumstances. In my report I quoted the Council of Europe view on the principle of equality before the law:

"The principle of equality before the law does not mean that the administrative authorities should not carefully and fairly consider each individual case by reference to the applicable laws and rules. The law should not be drawn up so as to prevent the administrative authorities from treating every case in a manner appropriate to its circumstances."

Example 2: The Nursing Home Subventions Regulations

In 1990 the Oireachtas enacted the Health (Nursing Homes) Act, 1990 which, inter alia, provided for the payment of subventions to "dependent persons" in private nursing homes. The Act, at Section 7, provided that the Minister for Health might, by regulation, prescribe the amounts to be paid by way of subvention and that the amounts "... may be specified by reference to specified degrees of dependency, specified means or circumstances of dependent persons or such other matters as the Minister considers appropriate." On the face of it, there is nothing unusual about all of this. But when the Act commenced in 1993, following the making of regulations in relation to subventions and other issues, something quite unusual emerged.

The Minister's regulation defined the term "circumstances" as the "...capacity of a son and/or daughter, aged twenty one years and over residing in the jurisdiction, ... to contribute towards the cost of nursing home care of his or her parent." On the basis of the interpretation of the regulation relied upon by most of the health boards, the practical consequence has been that subvention decisions take account of the capacity of a son or daughter to contribute to a parent's nursing home costs. The subvention otherwise payable is reduced by the amount by which a son or daughter is considered by the health board to be in a position to contribute. And this line is generally taken irrespective of whether the son or daughter wishes to contribute, is actually contributing, or is contributing at a rate less than the health board's figure. In effect, the regulation is being generally operated as if the adult children had an obligation to contribute to the parent's nursing home costs.

As far as I am aware, there is no statutory obligation on children to support their elderly parents. The Health (Nursing Homes) Act does not create any such obligation and, from my reading of it, there is nothing in that Act to suggest such an obligation. Nor is there anything in that Act to suggest that the term "circumstances" should be defined in the way it has been defined by the regulation.

It may, or may not, be desirable that children should support their elderly parents. I believe that in Germany, for example, there is some such obligation. Whether or not we should have such a provision is a matter for the Oireachtas. What concerns me here is, that the Minister, and his Department, appear to have created a de facto obligation to support as between children and their elderly parents without any discussion on this issue in the Houses of the Oireachtas thereby avoiding effective accountability.

This is an issue which I am continuing to examine.

I expressed my general concern about delegated legislation in a submission to the All-Party Committee on the Constitution established in July 1996. I referred to the Constitution Review Group's recommendation that consideration be given to an amendment to Article 15.2.1 of the Constitution so that the Oireachtas should have power to authorise, by law, the delegation of power to either the government or a minister to legislate using the mechanism of a statutory instrument. I consider that such legislative decisions would be essentially administrative in nature and, therefore, should clearly be seen to be within my remit as Ombudsman.

Adversarial attitudes

The third area of concern to me is an attitude I find prevalent among some public bodies, particularly in the local government and health areas, to complaints where payment of compensation is likely to be a factor. There is almost a knee-jerk reaction to the effect that this matter is more appropriate to the courts than to the Ombudsman. This attitude is, I suspect, influenced by their legal advisers who are steeped in the adversarial system. But there is an arrogance about the view which I find disquieting. It treats as adversaries the very citizens whom public bodies are elected or appointed to serve. It also ignores the provisions of the Ombudsman Act which permit me to recommend "... that measures or specified measures be taken to remedy, mitigate or alter the adverse affect of the (public body's) action ...". There are no financial or other limits on what I may recommend and no restriction on my dealing with complaints which could involve very large sums of damages. This adversarial view also assumes a level playing field, which clearly does not exist, between the individual complainant and a large organisation with its own legal and other expertise. As Hogan and Morgan state in their seminal work on administrative law:

"...the structure of our law on the judicial review of administrative action is - perhaps inevitably - so designed as to exclude from its scope many cases of injustice arising from maladministration. Moreover, the High Court ... is an expensive and inaccessible place. The result is that relatively few instances of maladministration surface as court cases." [Administrative Law in Ireland, Hogan & Morgan, 1991, p.279].

Indeed, recent experience should suggest to public bodies that an adversarial approach may be very costly in the longer term. It is for these reasons that I have included in my Guide to Standards of Best Practice the admonition that public bodies should not adopt an adversarial approach as a matter of course where there may be a fear of litigation. One such case, which I describe in more detail in my 1996 Annual Report, illustrates my point. The complaint came from a couple whose house had been flooded; they said that they had spoken to Galway County Council on a number of occasions about the risk of flooding from surface water running from the nearby road and that they had asked that steps be taken to rectify the situation. No preventative action had been taken, however, and the ground floor of their house was flooded. The complainants contended that the Council had failed in its obligation to maintain a blocked roadside culvert and drainage pipe near their property, that this failure resulted in the flooding of their home causing damage estimated at �3,000. In response to the complainants' claim for compensation, the Council said that as there was no negligence on its part, it would not pay compensation. The Council maintained throughout that the claim should have been dealt with through the courts. Following an examination of the complaint by my Office, the Council reviewed its decision at my request and concluded that it had a bona fide defence to the claim on the following grounds:

• there had been exceptionally heavy rain at the time and the Council had successfully defended all resultant claims through the courts (this latter claim subsequently turned out to be incorrect);
• the flooding, or most of it, had been due to internal drainage;
• the complainant may have made an unauthorised connection to the roadside culvert.

I was not satisfied with the Council's response and decided to investigate; my recommendation was that the Council pay the complainants half the cost of restoring the house and the Council accepted this.

Gaps in the protection of human rights

The final area of concern to me is the area of human rights. At European level there are now regular meetings and contacts between Ombudsmen and the institutions of the Council of Europe concerned with human rights. It now appears likely that a Council of Europe Commissioner for Human Rights will be appointed. There is also growing co-operation at world level between Ombudsmen and the United Nations High Commissioner for Human Rights (Mrs Mary Robinson) and her staff. The Ombudsman institution is increasingly recognised as an effective instrument for the protection and promotion of human rights especially in Latin America where the Spanish model of Defensor del Pueblo is used but also in the new democracies of Eastern Europe.

In Ireland, the institution of Ombudsman is not generally perceived as being involved with the protection of human rights possibly because of the strong provisions in the Constitution governing personal rights and the active role played by the courts in their enforcement and development. I have tried, since taking up office, to stress that citizens have rights vis-à-vis governmental and public bodies and that these bodies often, consciously or unconsciously, deny people their human rights in social, economic, health and property matters. People particularly at risk would include members of the travelling community and people with disabilities as well as refugees, asylum seekers and immigrants who, while not yet citizens, still have human rights. Property owners too can be affected and my Office has received complaints from householders who have been unable to sell or develop their property due to the long term road plans of local authorities. As the law stands, there is nothing I can do to assist these complainants; there is clearly a need, however, for a mechanism whereby compensation for the loss in market value caused by the action of the local authority could be considered.

In my contacts with the Council of Europe, I have been taken with the growing importance for all my colleagues of the rights of refugees, asylum seekers and immigrants as well as of persons deprived of their liberty whether it be in custody, in prison or in mental institutions. Among the immigrant/refugee population, my Ombudsman colleagues tell me that the single biggest source of complaint is the question of delay in dealing with their applications. Other complaints relate to the manner of interviewing applicants, the provision of interpreters and natural justice considerations. Of course, all of these complaints can be construed as maladministration, but under Section 5(1)(e) of the Ombudsman Act, 1980, I am precluded from examining complaints concerning the administration of the law relating to aliens or naturalisation.

In their consideration of whether we should have a Human Rights Commission in Ireland, a majority of the Constitutional Review Group came down in favour of a statutory Commission without any adjudicative role. Complaints of human rights violations should continue, in their view, to be determined by the courts. I am not convinced that this is necessarily the right course and I feel that much more debate and analysis of developments elsewhere in Europe would be desirable before conclusions are reached at political level.

Conclusion

In conclusion I must emphasise that external review bodies such as the Ombudsman or the Public Offices Commission are not a substitute for proper values and mechanisms "in house". There is a continuing need for standards to be set from the top down and for proper internal appeal and audit systems. Finally, and in anticipation of the question: "What do citizens want of their Ombudsman?", could I answer that they expect him - or her - to be:

• clearly independent in doing the job,
• accessible to the public with as few formalities as possible and at no cost to them,
• fair in dealing with complainants and also with the public bodies which are investigated, and
• effective in securing appropriate redress when justified.

I am delighted that in the last few weeks my Annual Report has been the subject of debate in both Houses of the Oireachtas by the elected representatives of the people and that there was a clear consensus that the Office of the Ombudsman continues to be a worthwhile addition to the mechanisms of accountability.