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"Serving the Public: has the Modernisation Agenda delivered?" (25.05.2006)

Address by Emily O'Reilly, Ombudsman and Information Commissioner
at Public Affairs Ireland Conference on Public Sector Modernisation

Good morning everybody, and could I begin by thanking you for inviting me here today to this very impressive gathering. I well remember, as a political correspondent back in 1994, being invited to the launch of the Strategic Management Initiative and standing around, with other slightly bewildered reporters, wondering how we were going to turn what is now called the modernisation agenda into a story likely to attract the interest of our news editors.

The Strategic Management Initiative or Delivering Better Government as it has been called at various stages in its evolution since 1994, has had two main aims; first, to make Ireland more competitive and second, to improve the quality of public services.

Competition was to be improved by creating a public service which listened to and facilitated the needs of the business community. Service delivery to the public was to be tackled by viewing the recipients of those services as customers or clients. In other words, public bodies were to become customer focused. The means of delivering the modernisation agenda was to introduce and embed the concept of strategic planning. Flowing from this we had new financial management procedures, quality customer service action plans and performance management. An Ombudsman colleague of mine, commenting on these kinds of initiatives generally, urges people to Live it, Don't Laminate It. Clearly, from 1994, there was an awful lot of laminating going on, whether the laminators were also living out their customer charters and other feel good strategies is the subject of my address here today.

There was new legislation to underpin the reforms in the shape of the Public Service Management Act, 1997 which, among other things, and for the first time, listed the duties and responsibilities of Secretaries General and gave legal effect to the obligation to produce strategy statements. The principle of openness and transparency was identified in the 1996 Report, "Delivering Better Government" as pivotal to the modernisation agenda and so it was that the Freedom of Information Act was enacted in 1997. Another key development was "Better Regulation", which was aimed primarily at the business community, and attempted to reduce red tape associated with interactions between business and the public service and ensure proper consultation before new legislation is proposed.

Has the modernisation agenda delivered? The answer to that question depends very much on who you are. But for the sake of simplicity, let us just look again at the twin aims of modernisation - competitiveness and service delivery - and how it has impacted on people to whom these aims matter most.

Most commentators agree that the Irish Public Service has played a very significant role in the development of the Celtic Tiger Economy. True, it has been criticised for foot dragging and for major cost overruns on capital projects - and I will say more about these later. But equally most captains of Irish industry understand the complex environment in which public servants operate as compared to their private sector counterparts and fully acknowledge the role of the public service and the contribution of individual public servants in fuelling economic growth. Although even as I speak I can hear Ryanair's Michael O'Leary clearing his throat to respond!

Yet speak to any patient on a trolley in a hospital Accident and Emergency (A & E) Unit and you will get a completely different answer. But also a very sophisticated one. They will have unqualified praise and deep concern for the nursing and medical staff who have to work in such intolerable conditions. But they will be extremely critical of "the system" and, as revealed by the recent RTE Prime Time Investigation, many have vowed never to return to A & E even if it means putting their own lives at risk. Admittedly, I have picked an extreme example but one which, nevertheless, represents what can only be described as an unqualified failure in service delivery some twelve years after the launch of the modernisation programme.

There have been many successes too - for example, the Revenue Commissioners, the Department of Social and Family Affairs, the Passport Office and the Motor Taxation Department of Dublin City Council, to name but a few that have been innovative and highly efficient in dealing with large volume transactions from the public. There have also been some very good initiatives which were conceived and developed at regional level, for example, the one-stop-shop initiative in County Donegal sponsored by Donegal County Council which joins up the services provided by a range of different public bodies.

So, clearly, progress with the modernisation agenda has been somewhat uneven and I want to spend a little time exploring the reasons why this might be so. One explanation arises from how the public service is perceived, on the one hand, by those who administer it and on the other, by those who avail of its services.

Civil servants tend to view the public service as a series of concentric circles. At the centre we have the Department of the Taoiseach and the Department of Finance - two departments with differing roles but we need not concern ourselves with that for the moment. The innermost circle contains government departments and offices that have their own vote and their own accounting officer, for example, the Revenue Commissioners, the Office of Public Works and the Public Appointments Service and, since the beginning of 2005, the Health Service Executive.

The second circle consists of non-commercial state bodies, (for example, the Environmental Protection Agency, the Health and Safety Authority), local authorities, vocational education committees, schools, third level education institutions, the Prison Service and the Gardai. The third circle contains commercial state bodies and finally, at the outer fringes we have those public services which have been fully or partially privatised, for example, privatised refuse collection services that are delivered on behalf of a local authority.

The modernisation agenda (but not only the modernisation agenda) was, as it were, pushed out in waves from the central departments, Taoiseach's and Finance. Thus, the full impact is readily felt and understood in the first circle but is little more than a ripple by the time it reaches the outer periphery. Instructions emanating from the Centre to Secretaries General always conclude in the same way: "Please ensure that these arrangements are brought to the attention of all bodies under the aegis of your department." And so we find that those bodies that reside in circle one, for example, the Revenue Commissioners and the Department of Social and Family Affairs are market leaders in customer service initiatives. But as we move to the outer circles we find lower levels of customer responsiveness and public confidence for a whole variety of reasons. These might include structural problems, culture, the protection of vested interests and, in many instances, lack of proper accountability mechanisms such as Freedom of Information, scrutiny by the Ombudsman, or indeed, political accountability to the Oireachtas.

Let me give you a few examples. In his Annual Report for 2001, my predecessor, Kevin Murphy, described the planning and development process as being "in a state of collapse". This comment was made in the light of his experience of examining complaints about the administration of the planning system. Admittedly, matters have improved to some extent since then, largely due to the enactment of the Planning and Development Act, 2000. But other problems persist in the outer circles, for example, the disquieting revelations at the Morris Tribunal are having a serious impact on public confidence in the Gardai. Similarly, while the Courts Service has made some improvements in how it conducts its business, there is still a huge need for modernised court procedures and practices. There is the inability of parents, as consumers of education services, to get meaningful comparative data about the performance of schools although I acknowledge and commend Minister Mary Hanafin's ongoing effeorts in this area.

And, of course, there are the problems in our health services to which I have already referred. At this point I should say that I recently presented a report to the Health Service Executive (HSE), based on my Office’s experience of dealing with complaints about health service matters which made a number of suggestions to the HSE on how to improve the quality of health service delivery. The most important feature of that report is "The Ombudsman's Statement of Good Practice for the Public Health Service in dealing with Patients" which attempts to assist the HSE and hospitals to become more patient focused in their service delivery.

In short, my point is that the public have a different view of the public service to the concentric model espoused by civil servants. The bodies which have the most interaction with the public, with the possible exception of the Revenue Commissioners, the Department of Social and Family Affairs and some others, reside, not near the centre, but at the periphery of this model, for example, the local council office, school, library, garda station, court house or indeed hospital or public health nurse. But these are also the bodies where the modernisation agenda has had least impact precisely because they are far removed from the central hub of activity.

But there are other threats to quality service delivery. The number of new non-commercial state bodies has increased significantly in recent years. The recent TASC publication, "Outsourcing Government: Public Bodies and Accountability", identifies a list of 482 executive agencies, advisory bodies and taskforces, up to half of which, it is believed, have come into operation in the past ten years. This so called "agentisation" has proceeded without any due regard for proper accountability mechanisms for these bodies. Many are outside my remit as Ombudsman and Information Commissioner. The Association of Chief Executives of State Agencies, consistently cites the one major and recurring frustration with the running of their organisations, namely, lack of communication with the agencies by their respective parent department. If communication, is indeed so lacking, and bearing in mind the growth in the number of bodies, then clearly, the modernisation agenda has even less chance of impacting on them under current arrangements.

It is interesting to note that initiatives to increase competitiveness have not suffered from these structural communications difficulties. This is because competitiveness has been driven largely by the central departments and the social partners - the latter being a very effective way of pulling all of the key actors towards the centre rather than permitting them to remain dispersed around the fringes of the public service as in the case of the service delivery objective. Also, the competitiveness agenda has been influenced quite effectively by a number of lobby groups which are either part of the social partnership process and/or enjoy access to the those departments with responsibility for economic development. Here again we can see how the Revenue Commissioners, though the Revenue On-line Service and other initiatives, have contributed to the competitiveness agenda by making it easy for the business community to use their services with the minimum of red tape. Later, I will say something about the perspective of the ordinary PAYE taxpayer on Revenue's services.

But if we are to compare the competitiveness and service delivery aspects of the modernisation agenda, the following example, admittedly oversimplified, illustrates aptly that more progress has been made with the competitiveness and business community needs. We have the Prompt Payments Act, 1997 which obliges public bodies, automatically, to pay interest on delayed invoice payments to suppliers. The Act, in every respect, is very heavily weighted in favour of the supplier of goods and services. By contrast, there is no similar legislation which entitles applicants for State benefits to automatic compensation where payments are delayed. Some public bodies do have regulations empowering them to make such payments but these apply to individual bodies and usually on a case by case basis. But they hardly could be said to be weighted in favour of the recipients of State benefits. I do not recall any debate about the introduction of prompt payments legislation or any resistance within public bodies to its provisions. However, I do encounter significant resistance to the notion of general schemes for compensating members of the public who have suffered the effects of maladministration.

Let me turn now to the number of complaints and FOI appeals received by my Office and explore whether trends there tell us anything about the modernisation agenda particularly in relation to quality of service delivery.

The following slide shows the number of valid complaints received each year by the Ombudsman's Office since 1986. The two peaks in 1986 and 1987 are explained by the large volume of complaints against Telecom Éireann which reduced considerably following the introduction of itemised billing and disappeared altogether in 1999 when the company was privatised and was removed from the Ombudsman's remit. Other than that, the Office's remit was largely unchanged over the past twenty years and there is a underlying trend of about 2,500 complaints per annum. The outcome of complaints also has been relatively consistent over the past twenty years with about 15% being fully resolved, 25% assistance provided and about 60% either not upheld, discontinued or withdrawn. Thus, the propensity to complain and the merits of individual complaints appears to be unaffected by the modernisation programme. My own view is that there are so many factors governing the incidence of complaints to my Office - and we don't have time to go into them today - that complaint levels to date do not allow us to conclude that the modernisation programme has delivered or, indeed, that it has not delivered. However, I do want to add one caveat. There is anecdotal evidence that the complaints received by my Office in recent years have increased in complexity. This may suggest that public bodies are engaging more positively with complaints that heretofore, would have been referred to my Office. To this extent there is at least anecdotal evidence of overall improvement.

I now want to look at the incidence of FOI requests to public bodies and appeals to the Information Commissioner. These are shown in the following slides and here, I think, we can be much more conclusive. You will note the sharp drop in requests and appeals from 2003 onwards which was due to the introduction of up-front fees for requests and appeals. And bear in mind also that the FOI Act now extends to a vast range of public bodies, whereas when it came into effect in 1998, it applied only to government departments, local authorities and health boards. One of the reasons given for the introduction of fees was to reduce the number of serial requests and frivolous or vexatious requests. I never accepted that the number of such requests was in any way significant but I think it is clear from the figures that fees have had a significant effect in depressing usage of the FOI Act. As I said at the outset, the enactment of FOI legislation was seen as a very important plank in the entire modernisation process. While the Act is still there - albeit diminished somewhat by the Amendment Act of 2003 - de facto accessibility to it has been curtailed significantly. The long term consequences of this reduced access are that the outcomes which one would expect to flow from FOI legislation - and which complement the modernisation agenda - will not be fully realised, or at best, realised more slowly than they could have been.

I think Government and the public service needs to keep reminding themselves just how important FOI and other accountability mechanisms are to creating a truly effective and trusted public service. This is a point I want to develop but before doing so I need to make some general comments about the scope of the modernisation programme to date. I fully accept that many worthwhile improvements have been made and that the modernisation programme is ongoing and so, my comments relate more to what remains to be done rather than a criticism of what has been done.

Many commentators have criticised SMI for lacking a "whole of government" approach. It has focused on the implementation of government policy and improved customer service delivery. To this extent it has concentrated almost entirely on "process" but has not addressed, for example, how policy is formulated, the interaction between Ministers and their senior officials or the relationship between the Oireachtas and the Government. Its approach to accountability also has been excessively limited. While the accountability of Secretaries General was addressed in the Public Service Management Act, the accountability of state agencies - of which more and more have been created even since 1994 - has been left to one side. Many of these agencies were set up to carry out single issue functions which previously would have been the responsibility of government departments. Thus, many of them will be outside the Ombudsman's remit and not subject to FOI and because Ministers do not like to interfere in their day-to-day activities, they may be outside the scope of Parliamentary Questions. In this regard, the following quotation from the Devlin Report (Report of the Public Services Organisation Review Group 1966-69) is still relevant:

"In the state-sponsored body area the citizen is noticeably worse off in his choice of remedies against the arbitrary action of officials than in the central government sector.....his remedy of the approach to the parliamentary representative is much less effective because of the convention that Ministers do not interfere in day-to-day activities."

I speak later about the newly-created Health Service Executive. At this point. let me note in passing that while it is subject to my jurisdiction and covered by FOI, it is now outside the realm of Oireachtas scrutiny via the PQ system. Neither does it have elected local authority representation as did the former health boards. There may well be very good reasons for these changes but, from the public's perspective, one has to question whether the democratic legitimacy of health service delivery is best served by this new approach.

Returning to the other "whole-of-government" issues mentioned above, it is worth noting that some of the most serious complaints examined by my Office have arisen from deficiencies in these areas. For example, my Office's 1999 Report on Lost Pension Arrears and its 2001 Investigation Report on Nursing Homes Subventions highlighted shortcomings in the capacity of the Oireachtas to scrutinise secondary legislation. The latter Report also dealt with weaknesses at the political-administrative interface, a matter subsequently dealt with in more detail by the Travers Report. My Office's Reports on Pensions and Nursing Homes addressed fundamental systemic issues which resulted in remedies for many people other than those who had complained directly to my Office. They were also among the most intractable complaints to resolve and my Office encountered significant resistance over a long number of years before redress was eventually provided by the relevant departments, the Department of Social and Family Affairs and the Department of Health and Children.

Fast forwarding to the present day, is not the Government's decentralisation programme and the manner in which it was formulated an example of the incompleteness of the modernisation programme? Does it not point to weaknesses in the capacity of government and the civil service to tackle this major policy issue in a whole-of-government way? Let me be clear: I am not criticising the Government's policy on decentralisation but rather the manner in which it was formulated. There is an old joke about the tourist who gets lost in the wilds of Kerry and asks a local how to get to a particular town. Well, says, the local, scratching his head, I wouldn't start from here! Having said that I can appreciate the attractions of the big bang approach to the matter, with politicians perhaps feeling that the more tentative, rational, and inclusive approaches to decentralisation, that had been taken down through the years, had not been embraced as enthusiastically by the public service as they might have wished.

In essence, my point is that the modernisation programme to date has focused on the easy bits and has emulated best private sector practice by embedding the concept of strategic management. But best private sector practice alone, even when complemented with reforming legislation, will not capture all of the complexities of the public sector. Returning to the point I made a few minutes ago, not enough attention has been paid to the concepts of accountability and fairness which, in my view, are the key add-ons which the public sector has to demonstrate in addition to those private sector principles - efficiency, effectiveness and sound financial management - which are readily transferable to a public sector context.

Drawing on my experience as Ombudsman and Information Commissioner I have tried to encapsulate what a truly modernised and effective public service might look like. As I see it, the public service should be a microcosm of the principles and virtues that characterise a modern and effective democratic State. The bodies that make up the public service should be held accountable by enabling and encouraging members of the public to be vigilant in following three ways:

• First, there should be transparency in the decision-making process within public bodies. Members of the public can only begin to understand and develop trust in public bodies if they can follow their actions and have access to their documents.

• Second, public bodies should have written criteria or principles of good administration to guide them in carrying out their functions. Members of the public cannot even begin to question the actions of public bodies unless the "rules of the game" are clear to them.

• Third, members of the public should have the facility to challenge the decisions of public bodies either through the courts or through alternative dispute resolution mechanisms.

Let us now take a few moments to score the Irish public service under each of these headings.

In relation to the first point, although we have a freedom of information regime, as I said earlier, its take-up by the public has been curtailed excessively by the imposition of up-front fees. Also the FOI Act does not apply to the gardai or to a wide range of state agencies (e.g. Vocational Education Committees) that have significant interaction with the public. And even where it does apply, there is public disquiet that information of interest to the public has been refused, often in order to protect sectional interests (e.g information about the performance of schools).

Another key issue under this heading is the extent to which the public can assess the value for money aspect of public service decision making. Major public capital investment projects such as Electronic Voting, Dublin Port Tunnel and the PPARS computer project in the health service have caused significant damage to the reputation of the public service and its ability to manage public funds efficiently and effectively. Having said that, let me equally acknowledge that most public capital investment projects are completed on time and within budget.

Yet another issue under this heading is the extent to which public bodies are accessible to members of the public. While reliance on internet services and centralised call centres is seen as a good thing, I wonder whether some public bodies, and again I mention the Revenue Commissioners, have gone too far with their reliance on technology. My experience is that an ordinary PAYE taxpayer who is not computer literate would find it almost impossible to speak by telephone to a relevant Revenue official.

The second heading concerns the publication of written criteria - the "rules of the game". Most public service schemes and programmes are governed by primary legislation, regulations or administrative schemes (e.g., payment of child benefit, medical card eligibility etc.) and all of this information goes some way to meeting what is required under this heading. But in my view it is not sufficient. The public also need to know what constitutes good administrative behaviour. In other words, it is not sufficient just to publish the eligibility criteria for benefits and entitlements, the public also have a right to know how public servants will interact with the public in carrying out their duties.

The Ombudsman’s Guide to Standards of Best Practice for Public Servants which was first published in 1997 and revised in 2003 goes some way to meeting this requirement. It outlines how to deal properly, fairly, openly and impartially with the public. These concepts were further elaborated in 2004 by the publication by the Standards in Public Office Commission of the Civil Service Code of Standards and Behaviour and, subsequently, the Code of Conduct for Local Authority Employees. However, I have two criticisms to make of these Codes. First, not enough has been done to bring them to the attention of the public and thus their role in facilitating accountability and in clarifying the "rules of the game" is considerably reduced. Second, the principles in the Codes are couched in general terms and, although all new recruits are required to agree to uphold the principles in the Codes, little or nothing is done to explain them or emphasise their relevance to daily work situations. Thus one can only conclude that these Codes are more concerned about appearances than reality.

One of the ways of assisting the public to engage with these "rules of the game" would be to consolidate the principles in the Ombudsman's Guide to Standards of Best Practice for Civil Servants and those in the codes of behaviour into an Administrative Procedures Act. The Prompt Payments Act, to which I referred earlier, is really an "Administrative Procedures Act" for the suppliers of goods and services to the public service. Why not have one which applies to members of the public?

The third heading deals with the facilities available to the public to challenge the decisions of public bodies, in other words, the extent to which internal complaints systems and procedures for granting redress are established in public bodies. Most government departments and offices and local authorities have non-statutory complaints systems in place. Some systems are statutory and of long-standing (e.g., the Appeals Office of the Department of Social and Family Affairs and the Appeal Commissioners of Income Tax). Again, complaints systems are less common on the fringes of the public service (e.g., in state agencies). It is also worth noting that in relation to the health services, the Health Act, 2004 provides for the establishment of a statutory complaints system. The regulations bringing this into effect have yet to be made. And while one may comment "better late than never" it is quite extraordinary that twelve years of modernisation have elapsed before a complaints system would have been established for services affecting the health and well-being of so many people.

So much for complaints systems but what about the provision of redress? First, let me backtrack a few years. In 2003, my predecessor addressed a conference in Dublin Castle on the Quality Customer Service Initiative. He was critical of the principles of quality customer service which had been devised centrally for stopping short of any mention of provision of redress. The principles only went as far as to say that departments should have appeals systems in place. As a result of his comments and indeed, his special report to the Oireachtas at about that time ("Redress for Taxpayers") the Department of the Taoiseach undertook to come up with proposals for redress. A report on redress systems in other countries was commissioned by the Department, a High Level Interdepartmental Group on Redress was established and, indeed, I have met the Group to assist it with its work. I look forward to the publication of the Group's report in due course.

There is an urgent need to address this issue. I have found it extremely difficult to get public bodies to address this issue positively. From the giving of apologies right up to the granting of compensation, public bodies are reluctant to engage with complainants on this issue. Public bodies still tend to see every aggrieved complainant as a potential litigant. However, time and time again research has shown that complainants are interested in just three very basic issues - an explanation for what went wrong, an apology and an assurance that matters have been put right so that the same thing will not happen to other people. And they would like a speedy response to their complaint as close as possible to the point of service delivery.

In cases that come to my Office, I sometimes end up recommending a compensatory payment because the public body has adopted an adversarial approach and has failed to engage with the complainant and has frustrated his or her efforts to progress the complaint. Let me give you a recent example. I received a complaint from a man in which he alleged errors had been made by a particular local authority in dealing with a planning application. The local authority accepted that it had made a mistake and I asked it to rectify the matter and apologise to the complainant. The local authority agreed in principle to do so but then it took legal advice on the matter and refused to apologise on the grounds that it was against its policy to do so. After some discussion between my Office and the local authority it finally agreed to issue an apology. I am confident that this is not an isolated incident. I ask you to pause for a moment and imagine that you were the complainant at the centre of this case. Picture, if you will, his profound sense of frustration - and all this after twelve years of modernisation!

So much for apologies; there is also some evidence to suggest that my staff are finding public bodies less amenable than heretofore to granting redress where it involves payment of compensation. Why this should be so is not entirely clear to me. But two things remain clear. The promise made in 2003 to introduce redress mechanisms remains unfulfilled and public bodies do seem more reluctant than ever to grant redress. So, in relation to our third principle - facilitating people to challenge the decisions of public bodies either through the courts or through alternative dispute resolution mechanisms, I am afraid that the public service still has considerable work to do in order to provide meaningful redress on its own initiative. There is a need for clear policy directives to deal with this issue.

And so to conclude: the modernisation programme has helped to establish a public service which has facilitated Ireland's economic interests but it has moved more slowly in delivering on quality public services. The point is neatly captured in the latest Irish Times TNS MRBI poll which shows that in terms of issues determining voting intentions at the next general election, 60% of respondents, list improvement in public services such as health, education and transport as their top priority but only 10% list continuation of Ireland's economic success as their top priority. Second, the modernisation programme has succeeded in importing and embedding some examples of best practice from the private sector, most notably strategic planning. However, it is now time to focus on those issues which define and differentiate the public sector from the private sector, namely, accountability to the public and to the institutions of the State and fairness in how people are treated by public bodies "when things go wrong". These aims are achievable through

• transparency in decision-making and an FOI regime which does not seek to impede that process through excessive up-front fees;

• publication of the "rules of the game" through developing principles of good administration, introduction of administrative procedures legislation and public awareness of the codes on standards and behaviour for civil servants and local authority employees and

• effective complaint systems and a positive approach to appropriate redress

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