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Accountability, Corruption and Good Government (28 April 2003) (28.04.2003)

Address by Kevin Murphy (Ombudsman and Information Commissioner) at UCD

Introduction

Since I became Ombudsman in November 1994 I have delivered somewhere between 30 and 40 public speeches on a variety of subjects. The variety is perhaps explained by my various roles as Ombudsman, as Information Commissioner, as an ex-officio member of the Referendum Commission, as Chairman of the Public Offices Commission and subsequently as an ex-officio member of the Standards in Public Office Commission which replaced the Public Offices Commission in late 2001. It is not surprising that I have sometimes been referred to as the Omnibusman.

I think I can say that all my speeches were concerned in some way with good governance and accountability. As Ombudsman I am involved in ensuring what the Ombudsman Act 1980 refers to as "good or sound administration". Good governance requires that people are treated properly, fairly, impartially and humanely in their dealings with government in its widest sense and that appropriate redress is provided when they are not so treated. I would rate accountability for good and sound administration and the creation of a sense of fairness in society as important as and, in the longer term more important than, accountability for economical and efficient administration.

When people have access to information about the activities of government, particularly about activities affecting themselves, it supports and strengthens the accountability process. It also strengthens the democratic process. Better informed citizens can more clearly articulate their concerns and views about important issues and more effectively challenge decisions which affect them. I strongly believe that freedom of information will greatly improve the decision making process in public bodies not just in relation to decisions affecting individuals or classes of individuals but in relation to policy decisions as well. And when we come to the very important process of amending our Constitution by referendum of the people, I cannot see how anyone can argue against the provision to citizens of clear and objective information by a body such as the Referendum Commission when they are exercising their sovereign right to change or maintain the basic law of this Republic.

The Ethics legislation initially sought to bring greater transparency into public life by requiring the disclosure of the interests of politicians and senior public servants with a view to avoiding potential conflicts of interests. This has now been extended to enable standards of desirable conduct by those in public life to be specified. The Electoral Acts of 1997 and 1998 were designed to bring transparency to the relationship between, on the one hand, political parties and individual politicians and, on the other, their supporters whether individual or corporate where that support takes the form of donations of money, property, goods or services and to prevent many of the abuses which have emerged in the course of the Moriarty and Flood Tribunals.

I think it would be fair to say that over the last decade there has been good progress in the task of achieving a public service that is open, fair and accountable. Whether or not we can put our hands on our heart and say Ireland enjoys good governance is still open to debate. Perhaps governance like society itself will always be imperfect but I think we must continue to address those areas where more needs to be done.

In a speech which I delivered in University College Cork last Autumn entitled "Good Governance - A Personal Perspective" I argued that there were four pre- requisites to good governance. I listed them as

• Effective Democracy
• Adherence to the rule of law
• Respect for human rights and fundamental freedoms (to which I would now add) especially in the case of minority groups
• Access to justice for all

Of course all of these essential elements interact with one another and they should not be seen as constituting separate, watertight compartments. The activities of the various offices I hold impinge to varying degrees on these elements and my experience suggests that there is still a considerable way for us to go as a country before we can claim that these prerequisites have been met.

Effective Democracy

Let me start with effective democracy. I sometimes feel that many Irish people are, to borrow and adapt a phrase used in another connection, conceptually challenged when it comes to democracy. It may be that this arises because historically our concentration has been on independence from foreign rule in the context by and large of an ethnically homogeneous population. We have not until very recently had to face the challenges which are part and parcel of other democracies.

There has been a tendency to see democracy as simply the endorsing by a majority of the electorate of the mandate(s) of a political party or of coalition of political parties and government accountability as being exacted by the electorate at a general election. But while democracy is characterised by the rule of the majority, the quality of any democracy is characterised by its respect for the views, interests and rights of minorities (and I am not speaking here of just ethnic minorities) and indeed opposing groups particularly in relation to proposed legislation and policy formulation. It also depends on the effectiveness with which the Government is held accountable on an ongoing basis and the performance in that regard of Dáil Éireann to which the Government is constitutionally responsible.

In my speech in Cork I went so far as to say:

"Despite the improvements in the Committee system in the Houses and the allocation of greater resources to them, I see neither the capacity nor the will there to hold Ministers accountable for the performance of their functions."

My comments were largely influenced by the experience of the 28th Dáil rather than the 29th Dáil which commenced in June 2002. In the light of recent experience, it may be that I was too critical and too pessimistic in my comments although it is early days yet. I was particularly impressed by the way the Joint Committee on Finance and the Public Service handled my special report as Ombudsman entitled "Redress for Taxpayers" which I submitted to both Houses following the rejection by the Revenue Commissioners of a number of recommendations I had made in a formal investigation report. Since this was the first ever report of this kind, there was no precedent and, as a result, a degree of uncertainty about the outcome. But the Joint Committee met the challenge in a remarkably effective way and with a cohesiveness that crossed party political divisions. The credit for this must go mainly to the Chairman Deputy Sean Fleming. He obviously convinced the Minister for Finance that equity required the implementation of all my recommendations despite the not inconsiderable cost and by so doing established two very useful precedents, one of parliamentary support for the Ombudsman and the other of the effectiveness of parliamentary scrutiny of administration actions.

I also see some encouraging aspects in the performance of the same Joint Committee in relation to the Bill to amend the FOI Act. I got a very strong feeling during my appearance before the Committee that with one or two exceptions, even Deputies and Senators from the parties in Government began to recognise that they cannot properly fulfil their role as legislators unless they have some degree of independent and objective advice on particularly complex or technical Bills. Even if it were desirable and I am not convinced that it is, it is unrealistic to expect that the two Houses will ever enjoy sufficient resources to "mark" the Government so to speak. But it may be worth examining the possibility of some mechanism whereby Oireachtas Committees would have available to them panels of unpaid experts whose experience and expertise would assist the Oireachtas in exercising what the Constitution refers to as "the sole and exclusive power of making laws for the state".

Of course some members still see their role as acting as an appendage of Government, making up the numbers to ensure that the Government's proposals are enacted irrespective of their merits or demerits. I recognise that, when it comes to matters of important Government policy, especially policy which has been endorsed by the electorate in a general election, the Government can expect and indeed, legitimately enforce through the whip system its members' support. But if the national parliament is to be successful in fulfilling the role envisaged for it in the Constitution, there must be room for individual members of the parties in Government to express their own views outside of the privacy of party meetings in situations where there are serious issues to be teased out. Treating every piece of legislation as an issue of confidence is surely not necessary in a national parliament which is increasing in maturity and confidence. Nor should anyone assume that the party to which they give allegiance has a monopoly of wisdom.

In the Dáil with a membership of 166, the role of the backbencher, particularly a backbencher who belongs to the parties in Government, is a difficult one. With 15 Government Ministers, 17 Ministers of State and a variety of posts as Chairmen, Deputy Chairmen and Convenors of Oireachtas Committees, most Government backbenchers must have hopes of preferment. I have a jaundiced view of the proposal which surfaces every so often that the number of Dáil seats should be reduced considerably and the smaller number of Deputies should be paid considerably more. Any national parliament requires a critical mass of deputies if it is to carry out effectively its legislative role and its accountability role.

The Rule of Law

One of our great strengths as a people is our pragmatism and practicality and the public service has shown it has these strengths in abundance. Public servants in other European countries tend to be more rule bound, legalistic and rigid. A most important feature of the Rule of Law however, is the absence of arbitrariness on the part of government when determining or disposing of the rights of individuals. In a modern society it is neither possible nor desirable to define administrative powers so strictly and so rigidly by precise rules that there would be no room for the exercise of discretion. As Professor Kenneth Culp Davis Professor of Law at the University of Chicago put it in his book Discretionary Justice

"Discretion is a tool, indispensable for individualisation of justice ........... Rules alone, untempered by discretion, cannot cope with the complexities of modern government and of modern justice".

Professor Davis goes on to argue that, while recognising the need for and the benefits from discretion, we must guard against the dangers or harms from discretion.

Let me quote him again

"Let us not oppose discretionary justice that is properly confined, structured and checked, let us oppose discretionary justice that is improperly unconfined, unstructured and unchecked".

There are many examples in my Annual Reports of discretion being used in ways which adversely and unfairly affected people. My special report on Nursing Home Subventions is a classic example of a Government Department imposing obligations on individuals in an illegal manner and without legal authority. While I made some suggestions in my report for greater surveillance of certain secondary or delegated legislation by Oireachtas Committees, it is unrealistic to expect them to monitor the vast amount of such legislation which is now an essential feature of governance.

It was for this reason that I produced in 1997 my Guide to Standards of Best Practice for Public Servants to help them in ensuring that their actions, especially discretionary actions, do not involve maladministration. I have now updated and republished this guide in conjunction with my Annual Report for 2002. It would be useful, I think, if these standards or at least some of them were encompassed in an Administrative Procedures Act or in the long awaited Ombudsman (Amendment) Act. Indeed, some years ago when proposals for an Administration Procedures Act featured in a Programme for Government I made some suggestions along the above lines to the Department of Finance.

Perhaps such legislation should also provide that administrative rules governing the exercise of discretion under particular pieces of legislation on schemes and programmes should be drawn up in consultation with interested parties. I have also suggested to the High Level Group on Regulation that the duties and responsibilities of Secretaries General which are set out in the Public Service Management Act, 1997 should be extended to include responsibility for ensuring good and sound administration in their Departments.

FOI is also hugely important in combating arbitrariness as it enables members of the public to access information about decisions affecting them including the reasons for those decisions. Of particular importance are what are known as the section 16 manuals which set out the rules and practices which govern how a particular public body conducts its business. These manuals are required to be updated every three years or sooner if significant alterations or additions occur. Their preparation presented an opportunity for public bodies to rationalise and revise their existing "internal law" and present it in a more customer friendly format. The first iteration of these manuals clearly showed that there is still some considerable distance to go before these objectives are realised. We need a public service which is not only strong on consistency of treatment across the board but also one in which the "rules of the game" are evident and accessible to everyone. Until we reach that position we cannot hope to counteract the generally held belief that "those in the know" get better treatment and that administrative rules can be manipulated at will by politicians.

Human Rights and Access to Justice

Time does not permit me to explore in any depth the areas of human rights and access to justice for all. Even in the most developed European countries there are still concerns about basic human rights especially in the area of policing, prisons and institutions for the mentally ill. I am pleased that steps are being taken to set up an independent mechanism for investigating actions by members of the Garda Síochána and a strengthening of the inspectorate role in relation to mental institutions. We remain the only country in the European Union which does not have an Ombudsman with jurisdiction over the prison service.

In relation to what are referred to as human rights of an economic, social and cultural nature, I noted with interest the distinction drawn in a recent speech by the Minister for Justice, Equality and Law Reform between social and economic rights and civil and political rights. As Ombudsman I have accepted the reality that rights to housing, healthcare and education are subject to resource constraints. My concern has been to try to ensure that the queuing or rationing which is inevitably necessary should be on a fair and objective basis. But even with that restriction, there is plenty of room for argument. If public housing is to be rationed on the basis of criteria designed to assess the need of the family or individual for housing, should public healthcare not also be rationed on the basis of clear criteria related to medical need? The reference in the newspapers to the Minister for Justice, Equality and Law Reform seeing price as a rationing mechanism seems more appropriate to private sector provision of services than to services provided out of the public purse.

I will watch with great interest the developing role of the Human Rights Commission in this area especially in relation to groups such as travellers, children, the elderly and those with disabilities. Already the special position of children has been recognised with the legislation for a Childrens' Ombudsman and we await revised legislation on people with disabilities. The definition of "human rights" in the Human Rights Commission Act 2000 includes rights conferred on, or guaranteed to persons by any agreement, treaty or convention to which the State is a party. From my contacts with other European Ombudsmen including Ombudsmen in the new EU entrant states, I sense a growing momentum towards greater harmonisation in social security and healthcare and a more specific definition of the term "the European model of society". As I said in my Cork speech the real debate about Boston versus Berlin goes much deeper than economic and taxation policy. I have little doubt that in the context of the future of Europe the debate has only just begun. And there is a wider dimension emerging with the World Commission on the Social Dimension of Globalisation established by the International Labour Office in February 2002 and whose report is due in November 2003.

The wide ranging functions of the Human Rights Commission include

• the facility to act as amicus curiae in proceedings before the High Court or the Supreme Court that involve the human rights of any person
• the power to provide legal and other assistance to persons who wish to take legal proceedings relating to the protection of human rights
• the power to institute legal proceedings itself in certain circumstances.

Access to Justice

Taken together with the wider range of access which the citizen will have to Ombudsmen as well as to information about matters affecting their interests, it seems to me that we are making progress towards the goal of greater access to justice for those adversely affected by the actions of public bodies. People who hitherto had neither the resources nor the knowledge to pursue their cases through the courts will have other non-judicial avenues open to them but much remains to be done to increase their awareness of these avenues.

I welcome in particular the growing interest of the academic community in this whole area of good governance. There are many areas where analysis and research into the complex and evolving relationships between what used to be termed governors and governed will help to achieve the transparency and accountibility which is an essential ingredient of good governance. We need to move beyond the concepts of democracy inherited from the 19th and 20th centuries but it is clear that we can only do so in the context of our partnership with other European Union countries and in a world where the effect of globalisation on social, employment and environmental policies will be of increasing importance and concern.

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