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Citizens' Rights and the Ombudsman (11 July 2003) (11.07.2003)

Address by Ms Emily O'Reilly (Ombudsman and the Information Commissioner) at Institute of European Affairs

I would like to begin by welcoming Professor Diamandouros to Dublin and by congratulating him on his appointment as European Ombudsman.

I know he will agree that among the ombudsman offices in all of the member states, my Office has been one of the strongest supporters of the European Ombudsman concept since its inception in 1995. I want to assure him of our continuing support in meeting our complementary objectives of improving standards of public administration both in Ireland and for citizens of the European Union generally.

I also want to mention that in his previous post as the Greek Ombudsman, Professor Diamandouros took the initiative in developing a special relationship between our respective offices, a relationship which I am keen to maintain with his successor, Mr. George Kaminis.

Professor Diamandouros has given us some useful insights into his role as European Ombudsman in relation to the E.U. Charter of Fundamental Rights. The Charter and the draft Constitutional Treaty are the fruits of new challenges for the E.U. and the European Convention is to be congratulated as its work now, hopefully, nears a successful conclusion. The principal aim of the new draft Constitution is to make the E.U. more open, transparent, accessible and efficient and these are key essentials in the smooth absorption of the accession countries. It is the intention that the scope of the Charter will be limited to E.U. institutions and member states when implementing E.U. law. It will not affect the domestic legal orders of member states. However, in this, my first public address as Ombudsman and Information Commissioner, I thought it would be useful if I were to compare and contrast some of the Charter's provisions with the statutory and non-statutory means of providing for similar rights in Irish public administration.

I will focus on Chapter V of the Charter which deals with Citizens' Rights. I want to comment on three Articles from an Irish perspective

• Article 41 - The right to good administration
• Article 42 - The right of access to documents
• Article 43 - The Ombudsman

Finally, given the overall purpose of the Charter at E.U. level, I will comment on the Ombudsman's role in Ireland in relation to the protection of social and economic rights.

The Right to Good Administration

Article 41(1) of the Charter provides as follows.

"Every person has the right to have his or her affairs handled impartially, fairly and within reasonable time by the institutions and bodies of the Union".

There is no parallel right enshrined in Irish law. But as far back as the 1980s, the Committee of Ministers of the Council of Europe formulated principles of good administration which were adopted by the member states, including Ireland. The principles underlined the need for objectivity and impartiality in decision-making, the need to avoid unfair discrimination by treating like cases in like manner, the avoidance of undue delay, the application of the principle of proportionality and the need to ensure that discretionary powers are exercised in a reasonable manner.

My predecessor, Mr. Kevin Murphy, formulated a guide to standards of best practice for public servants in order to help them to ensure that their actions in dealing with their clients do not involve maladministration. The guidance, which was updated and reissued in March of this year, is set out under four headings - dealing with people properly, fairly, openly and impartially.

It is not difficult to see how these standards, or at least some of them, might be encompassed in an Administrative Procedures Act or in the long-awaited Ombudsman (Amendment) Act. Indeed, some years ago when proposals for an Administrative Procedures Act featured in a programme for Government, my Office made suggestions along the above lines to the Department of Finance.

Another way in which the right to good administration might be enshrined in domestic law would be to amend the Public Service Management Act, 1997. Section 4 of the Act sets out the duties and responsibilities of Secretaries General and this section could be extended to include responsibility for ensuring good and sound administration in their Departments.

I note, too, that Article 41 provides a right of redress in relation to any damage caused by the Community institutions in the performance of their duties. In my capacity as Ombudsman, I have the power to recommend redress and there is no financial limit on what I may recommend in this regard. But although many public bodies have been quite positive in setting up their own internal complaints systems - some have been awarded the ISO quality standard - they are still very uncomfortable about making specific provision for redress. In order to assist them, my Office, last year, published a guidance notice on the principles of redress. There can be no doubt that the best test of whether a public body is delivering high standards of administration is the extent to which it is prepared to make adequate and appropriate redress when things go wrong.

The situation in Ireland in regard to making redress contrasts sharply with that in the United Kingdom, where those departments which have extensive dealings with the public have introduced codes of practice governing redress for maladministration. Not only do the codes incorporate the principle of compensation for direct financial loss, they also allow the payment of compensation for distress, embarrassment and the "botheration" of pursuing a complaint against continued and unjustified resistance of the public body.

In essence, what I am calling for is an appreciation in statute of the importance of administrative accountability. Financial accountability is well catered for in legislation but I sometimes wonder whether, in our obsession with counting the pennies and the cents, we have lost sight of the importance of a public service which treats people properly, fairly, openly and impartially.

Right of Access to Documents

Article 42 provides that any citizen of the union and any natural or legal person residing or having its registered office in a member state has a right of access to European Parliament, Council and Commission documents.

This is an area where, up to recently, we in Ireland could have rightfully taken our place at the top of the class. The Freedom of Information Act, 1997 was acclaimed as one of the best pieces of legislation of its type in the way in which it balanced openness with necessary exemptions and the right to privacy and in providing, in the case of most exemptions, for a public interest test at initial request stage and at the appeal stages. However, in some eyes, the Government's enthusiasm for the principles of openness and transparency has waned considerably in the wake of two recent moves.

But before I elaborate on those, I would like to make some more general comments on the principle of open government. For this I would like to draw on an article published in the 1998 journal of the European Institute of Public Administration. The piece, written by an associate professor at the institute which is based in Maastricht, was called "How Open Can a Government Be", and focused on the Swedish freedom of information experience.

The article explored the positives and negatives in the system which is widely held to be one of the most open in the world, and later contrasted it with the British experience which, at the time, was not viewed as particularly open. The author then speculated,

"Although many of the documents of their government are secret, I have sometimes wondered whether the British people are not in fact better informed than the Swedes in questions regarding how the government 'really works' and how public decisions are 'actually' taken. In Britain, the extensive use of the secrecy act - although this has become less frequent in recent years - encourages the public and the media to think that the government has things to hide and that there are conspiracies galore. Consequently, one would assume that the media in Britain would be more inclined to look for problems, scandals, conflicts and corruption in the government than in Sweden. After all, who believes that anything exciting is going on in a place where the doors are wide open? The downside of the British case of course is, that, because so much is kept secret, the media tend to use rather 'dirty' techniques in order to obtain information, while in the case of Sweden there is always the risk that journalists will satisfy themselves with the version found in the official documents."

He then instances a case where the Swedish media reported on state sanctioned sterilisation of the mentally handicapped. It was then pointed out that a report on the matter had been freely available for more than a decade, but no one had noticed.

I must say I find the argument rather engaging, flood the place with so many official documents that few people will bother to dig deeper. However, recent events suggest that the Irish government is unlikely to adopt that rather innovative approach to keeping things secret by way of public exposure.

The Government's proposed Freedom of Information (Amendment) Act, 2003, which was enacted in April 2003, curtails access to non personal or "official" information. Just last week, the Minister for Finance made regulations for the payment of up-front fees for access to non-personal information. The fee for a request is ?15, ?75 for an internal review and ?150 for an application to the Information Commissioner. (Reduced fees are payable by medical card holders and their dependants). Thus, an appeal to the Information Commissioner in respect of non-personal information will cost the requester a total of ?240.

I have already publicly stated that the progressive nature of these charges may dissuade many people, on grounds of cost, from exercising their rights of appeal under the Act. In fact, I have little doubt that the scale of the charges will prove a massive disincentive to accessing what is a right - information - and if refused, further access to an independent appeals mechanism. In any event, the end of year figures for FOI requests and appeals will either support my thesis or not. My role is to implement the legislation scrupulously and impartially. It is for others to speculate on the motivation of the Government in doing what it did.

However, it is worth noting that some commentators have argued that some public bodies may be encouraged to refuse requests, otherwise than on their merits, in the knowledge that the requester may not be in a position to finance an appeal to the Information Commissioner. Of course, if a public servant were to act in this manner, his or her decision would be one which would be - in the words of the Ombudsman Act, 1980 - "contrary to fair or sound administration". And, in my capacity as Ombudsman, if I were to uphold a complaint made to me about such a decision I would be recommending redress for the complainant in question.

Given the context of today's seminar, I thought I might refer to a dispute between the European Commission and the Irish Department of the Environment and Local Government in relation to Council Directive 97/11/EC also known as "the Environmental Impact Assessment (EIA) Directive". The Directive provides that member states shall ensure that any requests for development consent and any information gathered pursuant to Article 5 (of the Directive) are made available to the public within a reasonable time to give the public an opportunity to express an opinion before the development consent is granted. The Department has made provision for payment of a participation fee of ?20 at local authority level which, it argues, will contribute to an enhanced service under the new legislation (i.e. the Planning and Development Act, 2000).

The Commission, in a reasoned opinion of 21 January, 2003 (ref. 2000/4078) disputes the Irish Authorities' practice of imposing a fee on the grounds that it is incompatible with the Directive. It also considers that it is contrary to the Directive to make the right to express an opinion or have that opinion taken into consideration in a development consent procedure involving EIA, subject to payment of a participation fee. The Commission also makes the following comment:

"Ireland has proceeded in a manner that impedes or potentially impedes the rights given to the public concerned under .......the Directive. The Commission considers that the level of participation fees which currently obtain in Ireland are such as to inhibit the public participation foreseen by .......the Directive especially with regard to the number of categories of persons".

In a response to the Commission's reasoned opinion, Ireland has argued that the view expressed by the Commission is erroneous, that inter alia, the fee imposed is neither significant, nor onerous and that planning applications involving an EIA are a very small proportion of the total. (0.2% in 1999). The Commission is considering Ireland's response.

Returning now to FOI matters, let me make my position on the charging of fees absolutely clear. The Freedom of Information (Amendment) Act, 2003 gives the Minister of Finance the discretion to introduce up-front fees but the Amendment Act does not specify the scale of those fees. Neither does the amendment Act require that such fees be introduced nor that fees be charged for each of the separate stages in the overall FOI process, that is, at request stage, at internal review stage and, finally, at the stage of applying for review to my Office. However, the option to impose up-front charges is now provided for in law and I cannot take issue with that fact. But the Minister has taken full advantage of the enabling power in the primary Act to introduce a scale of fees which, as I have pointed out publicly, places new limits on the right of access to "official" information.

It seems to me that these recent developments may have long-term negative effects for accountability. After all, the long term objective of any FOI Act is to improve the attitude of public bodies to decision-making, the exercise of administrative discretion and to the dissemination of information, generally. But an important distinction can be made between personal and non-personal information in achieving this objective.

Essentially, personal records are part of what might be described as a "private contract" between the individual and the public body. Many of the requests for personal information in the early years of the Act might be seen as the result of "pent-up" demand and a hang-over from the era of secrecy. Other requests arise from the revelations of abuse and the trauma suffered by many while in industrial schools or in institutional care. But it might be expected that, when these cases have been dealt with, public bodies will have fewer such requests and will be more comfortable with the practice of proactively providing information without the need to resort to the legal strictures of the FOI Act.

By contrast, non-personal information or "official" information is more in the nature of a "public contract" between the public and the public body. And while the request may come from a single individual, the information sought is of interest to more than one person. It may be of interest to tax-payers, generally, in that it sheds some light on how public funds are spent by the body. It may be of interest to parents of school-going children who wish to know more about school refurbishment programmes. It may be of interest to local community groups anxious to find out about the provision of health services in their area.

The FOI (Amendment) Act and the progressive scale of charges for requests will place new limits on the degree of access to "official" information. And the danger is that accountability of public bodies to the public generally will thus be curtailed.

The Ombudsman

Article 43 gives citizens of the union the right to refer to the European Ombudsman cases of maladministration in the activities of the community institutions or bodies, with the exception of the Court of Justice and the Court of First instance acting in their judicial role.

In Ireland, the Ombudsman Act, 1980 gives a person the right to make a complaint to the Ombudsman about administrative actions of certain public bodies which may have adversely affected him or her. And while the Ombudsman's jurisdiction in Ireland, quite correctly, does not extend to the courts it is nevertheless incomplete. My jurisdiction does not extend to significant parts of the public service notably the non-commercial state bodies and public voluntary hospitals. Neither do I have jurisdiction in relation to immigration and rights of residence of non-E.U. nationals and Ireland remains the only country in the E.U. which does not have an Ombudsman with jurisdiction over the prison service.

The Ombudsman Act gives the necessary statutory underpinning to the Irish Office in relation to all matters except the provision of resources. However, its independence would be fully copperfastened if it had constitutional status. Given that the E.U. Charter is intended to form part of the draft Constitution, the effect of Article 43 will be to confer constitutional status on the Office of the European Ombudsman. Ireland is also one of the few member states which has not enshrined the Ombudsman in its Constitution. In 1996, the Constitution Review Group recommended that a new Article be inserted in the Constitution confirming the establishment of the office of the Ombudsman, providing for the independent exercise of such investigation and other functions of the office in relation to administrative actions as may be determined by law.

In making this recommendation the Review Group commented that:

"a constitutional guarantee for this independence (of the office) would reinforce freedom from conflict of interest, from deference to the executive, from influence by special interest groups, and it would support the freedom to assemble facts and reach independent impartial conclusions".

In April 1997, the All-Party Oireachtas Committee on the Constitution endorsed the Review Group's recommendation, but it has yet to be implemented.

The Ombudsman's Role in protecting Social and Economic Rights

Ireland's hosting of the Special Olympics has fuelled a debate about the rights of people with special needs. The Government's proposed Disabilities Bill has also generated public comment about the extent to which rights of this nature should be provided for in legislation and thus enforceable through the Courts. This, in turn, has led to wider discussion on the entire subject of social and economic rights and the question of whether it is appropriate to have enforcement of these rights determined by the Courts or whether the allocation of these rights should be a matter for resolution by the democratic political process.

Some interests groups have argued that an Ombudsman is not an effective mechanism in the area of social and economic rights because he or she makes recommendations only and not binding decisions. Others have called for the creation of a Disabilities Ombudsman with enforcement powers which, of course, is at odds with the basic role and functions of an Ombudsman, and primarily impartiality.

The Ombudsman, in making recommendations, relies on persuasion, criticism, publicity and moral authority to have them accepted and this, I believe, is one of the great strengths - and not in any way a weakness - of the Office. It allows the Ombudsman to operate pragmatically and flexibly and to avoid the legalistic and adversarial approach of the courts and, unfortunately, of many administrative tribunals. I have no doubt that, if my Office had been given the power to make binding decisions, it would have found itself, especially in the early days, faced with many legal challenges. Instead we are able to recommend remedies which would not have been given by a court and to hold bodies administratively liable even where there is no legal duty of care or statutory liability. Another aspect, often overlooked, is that the majority of legal claims taken to court are settled out of court without any admission of fault or explanation. There is no assurance to the complainant that any action has been taken to prevent recurrence of the adverse action although this is often a matter of great concern to complainants. Many of the Ombudsman's recommendations are aimed at improving procedures and systems.

Like my predecessor, I accept the reality that rights to housing, healthcare and education are subject to resource constraints. And, of course, if I am not satisfied with the response of a public body to a recommendation, I may make a special report to each House of the Oireachtas. Thus, the matter comes for resolution before the democratic political process and not the courts.

The process was seen to good effect when my predecessor submitted his special report "Redress for Taxpayers" to both Houses following the rejection by the Revenue Commissioners of a number of his recommendations in an investigation report. The matter was considered by the Joint Committee on Finance and the Public Service which convinced the Minister for Finance that equity required the implementation of all the recommendations despite the not inconsiderable cost claimed by Revenue.

There were two very positive outcomes to the process, It demonstrated parliamentary support for the Ombudsman and the effectiveness of parliamentary scrutiny of administrative actions.

I fully appreciate the arguments on both sides of the debate about the "rights-based" approach to social policy, and there are no easy answers. Indeed, the NESC report, "An Investment in Quality: Services, Inclusion and Enterprise" makes the point that "complex social and economic problems require complex solutions, many of which can only be discovered in practice". However, there are alternatives to the courts and the Office of the Ombudsman has had an outstanding record of success in securing redress for members of the public who have suffered wrong-doing by public bodies. It is my objective to build on that successful record during my term of office.

Equally, I can well understand the calls by certain interest groups for a "rights-based" approach to social policy which would be enforceable through the courts. At one level, it reflects a lack of confidence that the Government is capable of delivering on this agenda without an enforceability mechanism. And, of course, many of the complaints which my Office receives do highlight deficiencies in the existing procedures in public bodies. I can further understand the frustration of those with disabilities and those caring for people with disabilities at the apparent capriciousness of government in relation to providing them often with core services. They feel that when the economy undergoes a downturn, they are the first to feel the pain. If I can make a very human analogy, if the Department of Education is forced to cut its budget, my children are not going to be told that they can't go to school tomorrow. Yet time and time again, we hear of equivalent services for disabled children and young adults, be it in training or primary education, being cut for financial reasons.

While I accept that the rationing of resources is necessary, it is important that this be administered on a fair and objective basis. For example, in a complaint which I am currently examining I have found that many local authorities do not have schemes of letting priorities which allocate points to housing applicants. Thus, it is difficult for applicants to have confidence that schemes are administrated fairly and equitably and on the basis of objective merit.

My Office's report on Nursing Home Subventions described how the Department of Health and Children, when faced with resources constraints, had imposed obligations on individuals in an illegal manner and without legal authority. And in a recent report commissioned by the Human Rights Commission into older people in long-stay care, it expressed its concern that there are not clear rules about access to health board long-stay places and that the admissions system lacks transparency. A separate review of the nursing home subvention scheme commissioned by the Department of Health and Children noted that the absence of consistency and standardisation in the application of the Nursing Homes (Subvention) Regulations had led to inequity in the operation of the scheme within and across health boards. The report noted differences across the regions in the manner in which dependency, social circumstances and means testing are used to assess older people for nursing home placement.

My Office has received complaints from people with disabilities who have been refused grants, on grounds of age, to modify their homes to cater for their needs, even though the relevant scheme contained no age restriction. We are successful in resolving these cases to the satisfaction of the complainants, but they surface time and time again when resource constraints lead public bodies to ration entitlements in a manner which is not in keeping with the regulations. And following my Office's investigation of a complaint from a parent who had to make a 36 mile journey daily to transport her child with special needs to and from school, the Department of Education and Science agreed to devise and publish a school transport scheme for children with disabilities. An investigation concerning tax reliefs for passengers with disabilities resulted in thousands of cases being reviewed by the Revenue Commissioners and payments of approximately ?900,000 being made to some 100 carers.

My Office works hard to address problems of this nature on a systemic basis. However, despite our best efforts, some of these problems can and do recur because of certain basic features of our system of public administration. These features which are described in the Office's Report on Nursing Home Subventions, are as follows:

"the difficulties that the Houses of the Oireachtas face in attempting to monitor the growing mountain of regulations and other secondary legislation by which policy is implemented;

the weakness in the links between two separate legislative processes, the process whereby the Houses of the Oireachtas create new entitlements or benefits for the public and the process by which Dáil Éireann allocates resources annually to facilitate the actual provision of these entitlements or benefits;

the difficulties faced by members of the Houses of the Oireachtas in feeding into the Administration, in a formal and transparent way, their concerns and those which are brought to their attention by their constituents, or indeed by the Ombudsman's Annual Report, in a way which ensures an effective response"

It seems to me that international human rights instruments will increasingly represent a significant influence in the State's approach to service provision. Other issues of relevance here are the establishment of the Human Rights Commission and the recent enactment of the European Convention of Human Rights Bill, 2001. We have already seen the enormous influence which the European Union has had on our development, not just economically, but in the area of social policy also. And although the E.U. Charter applies only to European Law and not to domestic law it is further evidence of the evolution of a "European Model of Society" and the move towards greater harmonisation among member states of social security, healthcare and freedom of movement of workers.

I see the debate on social and economic rights as an evolving one which increasingly will be influenced by the effects of globalisation and the E.U. agenda. Our partnership with the other E.U. member states will inevitably lead to an increased importance for these policies. This, is turn, will pose fresh challenges for us all - Ombudsmen of the member states and the European Ombudsman.

In conclusion, and in acknowledgement of my Greek colleague here today, I would like to paraphrase from a report on Ombudsman practice, drawn up by Sir William Reid, the former and very distinguished Parliamentary Ombudsman for the United Kingdom. Sir William, in order to make a point about the demand for healthcare, drew upon Greek mythology and the story of Erisychton. Erisychton was punished by the Goddess Demeter for his insolence by being given an uncontrollable appetite, the more he drank, the greater grew his thirst.

There are those who believe that the same is true of human rights. The role of Ombudsmen everywhere is to help reassure governments and others that the heavens will not fall if fundamental rights such as those outlined in the EU charter do eventually become a norm of all of our lives.

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