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Speeches delivered at the 20th Anniversary Conference (15.10.2004)

Address by Various at 20th Anniversary Conference

Speakers

• Mr Pat Whelan (Director General, Office of the Ombudsman)
• Ms Emily O'Reilly (Ombudsman)
• Mr Dick Roche (Minister for the Environment, Heritage and Local Government)
• Ms Ann Abraham (UK Parliamentary Ombudsman and Health Service Ombudsman for England)
• Dr Tom Frawley (Commissioner for Complaints and Assembly Ombudsman for Northern Ireland)
• Mr Eddie Sullivan (Secretary General, Public Service Management and Development, Department of Finance)
• Mr Donncha O'Connell (Law Lecturer, NUI Galway)

Introduction
Mr Pat Whelan, Director General, Office of the Ombudsman

Opening Address
Ms Emily O'Reilly, Ombudsman

"Accountability in the Irish Public Service"
Mr Dick Roche, Minister for the Environment, Heritage and Local Government

"Good Governance from a UK Ombudsman's Perspective"
Ms Ann Abraham, UK Parliamentary Ombudsman and Health Service Ombudsman for England

"The Ombudsman and the Northern Ireland Assembly"
Dr Tom Frawley, Commissioner for Complaints and Assembly Ombudsman for Northern Ireland

"Promoting higher standards of Public Administration"
Mr Eddie Sullivan, Secretary General, Public Service Management and Development, Department of Finance

"Immigrants and Asylum-Seekers - Fair and Sound Administration?"
Mr Donncha O'Connell, Law Lecturer, NUI Galway

Introduction Mr Pat Whelan

Minister, Ambassador, members of the judiciary, ombudsmen, ladies and gentlemen

Good morning everyone and welcome.

My name is Pat Whelan, Director General of the Office.

I want to extend a very special welcome to our friends and guests who travelled from abroad to celebrate with us this very special occasion. We are delighted that you are here and we intend to do all we can to ensure that your stay in Dublin will be a very enjoyable one.

I also want to welcome our many friends in the expanding ombudsman community here at home and those of you associated with dispute resolution generally whether you be members of the judiciary, or those of you working in the field of consumer protection or equality. Welcome too, to our friends from the academic community who, I am delighted to say, have been very supportive of the Office over the years.

I am also very grateful to Secretaries General of government departments, heads of offices, county managers and chief executives and their staffs for your attendance here today. Our daily work sometimes brings us into conflict with you. And we do recognise the difficult job you do in managing your organisations, implementing Government policy and, at the same time, ensuring proper, fair and impartial treatment for your clients. I think your presence here today is testimony to the trust and confidence you have in the Office and the good relations that exist between us.

I think this is probably the only occasion when we have had representatives of all the sectors of the Office's remit together in the one room and I want to take this opportunity, on my own behalf and on behalf of our staff, to thank you for your co-operation over the years in dealing with individual complaints.

Most of all, I am very grateful to our speakers who agreed very willingly and very enthusiastically to present papers. You will see that there has been a change to the original programme. Unfortunately, due to illness, the former Taoiseach, Dr Garret FitzGerald is unable to attend and I know you will join with me in wishing him a speedy recovery. But Dick Roche, the new Minister for the Environment, Heritage and Local Government who, incidentally, knows a thing or two about ombudsmen, quickly agreed to step into the breach and rescue us! Thank you, Minister,

Finally, a twentieth anniversary can be a time for looking back and celebrating past successes. There will be very little of that today. I don't need to remind you of the pace of societal and economic change in Ireland and the implications for us all in delivering high quality services to the public. Thus, our focus today at this conference is very much on the future and the challenges that lie ahead for you as service deliverers and for us in ensuring fairness in how those services are delivered to the public. I hope you find it thought-provoking and enjoyable.

It is now my great pleasure to introduce to you, Emily O'Reilly, Ombudsman and Information Commissioner to give the opening address.

END

Opening Address -Emily O'Reilly Ombudsman

Good morning ladies and gentlemen, distinguished guests, and welcome to today's conference which celebrates the 20th anniversary of the Office of the Ombudsman in Ireland. I would particularly like to welcome my Ombudsman colleagues from Northern Ireland, England, Scotland, Malta as well as officials from the Office of the European Ombudsman. It also gives me great pleasure to welcome my immediate predecessor Kevin Murphy who served the Office with great distinction from 1994 to June of last year and left me with such a difficult act to follow. I am sorry that the first Office holder Michael Mills is unable to be with us today owing to a family engagement, but I have no doubt that the work he did in the early years in establishing the Office will be reflected in today's debates.

At this point may I also express my gratitude to our New Minister for the Environment Mr Dick Roche, who stepped into the breach at such short notice this week. On Wednesday morning we learned that Dr Garret FitzGerald would be unable to attend due to illness, and we wish him a speedy recovery. By chance I had been listening to Vincent Browne's programme the evening before and heard Minister Roche speak of his long time interest in the issue of public service reform. I was also aware that he has also taken a great interest in the institution of the Ombudsman, so when the news of Dr Garret FitzGerald's inability to attend came through, I reached for the phone.

At this point I should also thank the Minister for one interesting piece of advice he gave me shortly after taking up office. He told me he had once met with one of the Canadian Ombudsmen, a former member of the Royal Canadian Mounted Police. The Ombudsman told him that he had made a point of never once reading through the legislation that governed his office. When Dick Roche asked why, the Ombudsman replied, "That way I'll never know whether I'm speaking outside of my remit or not."

As the newcomer to the Office, and as someone who has arrived at a point when the Office is not only well established but enjoys great respect within the wider public administration, it has been very instructive for me, in preparing for today, to look back and note the rather rocky start the Office experienced both in its gestation and in its infancy.

To illustrate the road travelled, let me quote a former Minister for Finance who speaking in a Dail debate in 1966 on the role of the parliamentary representative, said, "There is hardly anyone without a direct personal link with someone, be he Minister, TD, clergyman, county or borough councillor, who will interest himself in helping a citizen to have a grievance examined and, if possible, remedied. My own experience is that members of the Dail are extremely assiduous and persistent in taking up individual cases and raising them by way of that truly democratic device, the parliamentary question. The basic reason therefore why we do not need an Ombudsman is that we already have so many unofficial but effective ones."

Commenting on the Minister's statement, the late Professor John Kelly said, "in the large perspective of European social and legal history, this utterance is a fascinating testimony to the survival in 20th century Ireland of the primitive system of clientship and patronage. This phenomenon was, in the distant past, a sure sign of a society where a weak man had no hope of justice without the aid of a strong one, and its general replacement in civilised countries by a regular, strong, and impartial process of law is a major social milestone. It is disheartening to find this primitive doctrine being not alone practised, but also blandly preached from the topmost minaret of the Irish administrative structure."

Nonetheless the view from the minaret would prevail for quite some time to come, but gradually the idea that the country needed a truly impartial, truly independent, and easily accessible official who would deal with the complaints against the public administration of all citizens and indeed non-citizens, and not just those with some sort of serendipitous political access, came to insert itself in the political thought process.

The 1969 report of the Public Services Organisation Review Group recommended the appointment of a Commissioner for Administrative Justice, the theoretical prototype for the Ombudsman who would later, much later, emerge.

Six years after the publication of that report, a Dail Private Members' motion in 1975 led to the establishment of an informal all-party committee to look into the possibility of appointing an Ombudsman.

The Committee reported in 1977 and recommended the establishment of an Ombudsman. The Bill was published in 1980 and eventually passed in July
1983, an event described by one academic commentator as "one of the most significant events in the history of Irish administration." Finally, exactly
15 years after the first tentative mooting of the idea, an Ombudsman, Michael Mills a former political correspondent of the Irish Press newspaper, was appointed in 1984.

The Office was initially located in temporary accommodation in Harcourt Road in Dublin and later settled into its permanent address at 52 St Stephens Green. It moved to its current offices in Leeson Street in 1998. The initial staff included four Investigators, one senior investigator and an Office Director. A total of 2,267 complaints were received that first year, 1,544 of which were within remit.

I don't intend to go into fine detail about those early years. A number of legal challenges to the Ombudsman's authority were made, although none ended up in court and after a few years the legal challenges dried up presumably because of the growing acceptance of the authority and reach of the Ombudsman's remit.

The two most high profile challenges for the office included a decision in the late 1980s drastically to reduce the Office budget leading to the loss of more than half its staff and the subsequent decision by Michael Mills to table a special report to the Oireachtas outlining why he was unable to carry out his statutory role. Under public pressure, the cuts were eventually overturned.

The incident might well be quoted as an example of what former Northern Ireland Ombudsman, Senator Maurice Hayes described as "the executive's attempts to muzzle the watchdog or induce torpor through malnutrition".
There was no repeat of this approach and, subsequently the Department of Finance has always been fair and reasonable in its approach to the Office's finances. The second incident concerned the failure to re-appoint Michael Mills to a second term until the very last minute. The twists and turns of that particular tale are too complex to relate here, but suffice it to say, that when public and political attention was drawn to the emerging crisis, the matter was very quickly resolved.

Twenty years later, the Office has now survived gestation, childhood and adolescence and has emerged as a mature and highly respected member of the community that includes the public and those who serve the public. The Office has dealt with over 65,200 complaints and has assisted in many ways in helping public bodies to make changes in the way they go about their business in order to provide a better public service.

At this point I want to pay tribute to the Office staff, to all those who deal with the complaints and the complainants at the coal face and to whom so much of the success of the Office is due. The staff know that we are often the last resort for people when they come to us with their problems and that in itself confers a unique responsibility in terms of how those people are dealt with. Last week, one member of staff stressed how important it was just to listen, even to those who we can't help for one reason or another.

He said, "I have overheard colleagues who take calls from people who are clearly, distressed, angry, confused about the issues or even mentally ill.
No one is dismissed as a crank and all are treated with respect. Most just want to tell you their story.

On one occasion I interviewed a family from Bosnia. The interview was conducted through a 12 year old boy who interpreted the story of how his parents, siblings and some other relatives had been murdered in Bosnia.
Those who remained were now in Dublin and had a difficulty with the Department of Social and Family Affairs. I was struck by the tragedy of their suffering, but their priority was rent allowance."

He went on, "Listening is time-consuming and may appear to be a luxury we can't afford. However I believe that through listening first and acting second we come up with better solutions. To quote Marshall McLuhan, "The answers are always inside the problem, not outside."

I want today to be as much about the future as the past. But the degree to which I as Ombudsman can develop the Office is not just dependent on my own vision but also on matters that are outside of my control, the two most important of which I wish to draw attention to today.

For many, many years promises have been made about the extension of the Ombudsman's remit to cover the voluntary hospitals and certain non commercial state bodies.

As far back as 1997, in a Dail debate on the 1996 Ombudsman's annual report, the then Minister of State for Finance said. "I wish to draw the attention of the House to An Action Plan for the Millennium, which includes the commitment that a key part of the process of institutional reform in the public service will involve expanding the remit of the Ombudsman to include legal, medical and other areas."

Since assuming office, the Minister for Finance has directed that earlier work in this area should be re-examined in light of this commitment. The work is now well advanced in relation to proposals designed to increase the powers and extend the remit of the Ombudsman to cover a number of new areas.
Our thinking is along much the same lines as has been discussed in this House on other occasions. For example, consideration is being given to extending the Ombudsman's remit over administrative matters in non-commercial State funded bodies which receive most of their funding from the Exchequer including non-medical matters of voluntary hospitals. The Minister for Finance is currently finalising specific proposals to put to Government on changes in those areas. For my own part I will ensure that appropriate legislative proposals are expeditiously before this House."

Seven years later, I'm afraid that those proposals are still in the pipeline and while I appreciate the many pressing legislative demands on the Government, I think that this anniversary year would be an appropriate time to expedite those relating to the Office of the Ombudsman.

The second area outside of my control concerns the Constitution. In December 1995, almost a decade ago, the provisional report of the Constitution Review Group stated that in recent years, it was clear that a consensus had emerged in both houses of the Oireachtas about the desirability of not only maintaining the institution of Ombudsman but also of strengthening and developing it. The Review Group acknowledging that independence is the foundation stone upon which my Office is based recommended that "a new article be inserted in the Constitution. This Article would confirm the establishment of the Office of the Ombudsman, providing for the independent exercise of such investigative and other functions of the Office in relation to the administrative actions as may be determined by law, and making other provisions such as those applying to the Comptroller and Auditor General and consistent with the 1980 ombudsman Act."

Now that, I humbly suggest, would be a very nice anniversary gift.

Thank you ladies and gentlemen, It is now my great pleasure to introduce to you, Olivia O'Leary, journalist, author and broadcaster who is our chairperson for the day. Olivia has presented programmes for the last three decades on both sides of the Irish Sea, including BBC2's Newsnight, and ITV's This Week, and here in Ireland Today Tonight, Prime Time and Questions and Answers. Her book Politicians and other Animals has been a best seller this year and for me personally, her wonderful print journalism was inspirational when I became a journalist.

"Accountability in the Irish Public Service"- Mr. Dick Roche, T.D., Minister for the Environment, Heritage and Local Government

The office of Ombudsman is an institution that has fascinated me for over 30 years - a passionate interest. I want to say a few words on what the history of the office says to us and to finish with a few pointers as to where it might go in the next 20 years.

Like so many other students of Irish public administration, the possibility of creating an Ombudsman in Ireland first crossed into my consciousness in the late 1960s.

Proposals for the creation of some form of a system of administrative justice were considered as part of the preparatory work for the 1969 Report of the Public Service Organisation Review Group - the Devlin Report. It will be recalled that the subgroup which examined the issue of administrative justice stopped short of recommending an Irish Ombudsman. The Committee disappointingly proposed an extension of the in-house quasi-autonomous appeals mechanisms which existed in some Departments with a Commissioner overseeing their activities. The conventional wisdom in this country at that time, and it was to remain the conventional wisdom for some time, was that an Ombudsman office was not really compatible with the "Irish administrative tradition". This of course is a very odd view to take of the office. By the time the Devlin Report was published the office of Ombudsman had already proven itself to be an institution with a remarkable capacity to transfer from one administrative setting to another.

Contrary to the conservative view taken - that the Ombudsman office was somehow incompatible with the concept of ministerial responsibility, that archaic Victorian notion on which our public administration system is built at central level - by 1969 Ombudsman Offices were up and running in New Zealand and beginning to rapidly spread first in the US, then in Australia, and subsequently around the globe.

While my interest in the office was whetted by the debate which surrounded the publication of the Devlin Report, my personal enthusiasm for the office was created by my own first-hand experience of the office in operation while I was in the United States and Canada as a United Nations human rights fellow. I met my first Ombudsmen in the Canadian provinces.

My academic interest in the Ombudsman was quickly transformed into enthusiasm for the office which I came to regard then, as I do now, as a fundamental part of any good Public Administration system. It was obvious to me from the start that the office worked.

A very wise judge in one of the Canadian provincial Courts commented that bringing the light of public scrutiny into these sometimes dark recesses of public administration could do nothing but good. If the light illuminated administrative practices which were functioning well, good public administration would benefit. If, on the other hand, it illuminated administrative practices which were not good the necessary remedial action could be taken and everybody would benefit. Public administration, in addition to serving the public, is charged with the task of guarding the public interest.

Juvenal the Roman poet posed the timeless question quis custodiet ipsos custodes, who guards the guardians. Increasingly over the last 40 years the answer has been the office of Ombudsman.

Origins - An Office That Crosses Cultural Boundaries

The origins, development and world-wide spread of the office of Ombudsman are interesting. The office has been remarkable in terms of transferability as shown by its history. Most people regard the office as an entirely Swedish innovation. It is true that the Ombudsman office as we know it has its origin in Sweden. The inspiration for the first Swedish office, however, came from elsewhere. Like so many innovations the office came into existence because of war. The King of Sweden was forced to decamp to Constantinople at the height of the war between his kingdom and Russia.

The Swedish King, at the time, had two major worries: first, the little matter of his war with the Czar of Russia, Peter the Great, and second, his concerns that the noble lords back home would have a field day in his absence. The good King needed an honest broker to keep an eye on things at home while he was trying to preserve his head in Constantinople.

In that city the King made the acquaintance with an interesting office - an office charged with the task of ensuring that those in public office behaved in a moral way. The king, indisposed as he was at that time, needed somebody to ensure that the nobles back home behaved in a moral way. Out of this inauspicious set of circumstances sprung the idea of the office of Ombudsman. The office was, initially, not intended to operate as the champion of the powerlessness citizen but rather as the champion of the King. It became the people's champion later.

Interestingly in Russia, the Czar faced a somewhat similar dilemma to that faced by his adversary, the King of Sweden. Peter, too, needed the services of a moral guardian to keep his eye on the nobles and their sometimes ignoble activities. Peter created an office, the Procuratura, which was remarkably similar to the office being established in Sweden. That office was, in some ways, the second Ombudsman. Interestingly the office, which became known as "the eye of the czar" -- was the only czarist office allowed to remain in place following the revolution. Lenin was a fan of the office. This constitutes the first lesson from the history of the institution - this office was transferable to different settings. It took a very long time for the third Ombudsman to appear on the scene. Finland created its Ombudsman in the early years of the last century when it gained nationhood. Denmark followed. Until 1962 the office remained firmly anchored on the Nordic shores. In that year the institution was successfully transplanted into the New Zealand administrative system.

The last 40 years have witnessed a dramatic growth in the institution of the Ombudsman throughout the world. Other administrative innovations have crossed borders and taken root in differing administrative cultures but none has been as successful in this regard as the office of Ombudsman.

There are now almost 110 Ombudsman offices world-wide at national level with literally hundreds of functionally focused Ombudsman type institutions at national and sub national level. Indeed one of the concerns that I have about the office is that it might well become a victim of its own success. The idea of Ombudsman, or rather the name is, in my view, being overused and is being applied inappropriately to offices which do not deserve the title.

The Irish Office

The idea of an Irish Ombudsman was first mooted in Ireland in the early 1960s at the same time as the idea was being transformed into action in New Zealand. All too typically it took Ireland almost a quarter of a century of discussion before we finally created an Ombudsman.

As mentioned, the authors of the study into a system of administrative justice appended to the Devlin report took the view that the office could not be directly translated into our administrative system and suggested a sort of halfway house instead. Their proposals were never translated into action, thankfully. The idea of an Irish office was ‘re-launched’ in a private member's debate in Dáil Éireann moved by a Government back bencher Deputy Fergus O'Brien. It is suggested that the motion was prompted by the then Minister for Finance, Richie Ryan, possibly because the Minister knew that he had little chance of selling his Cabinet colleagues on the idea. He was already struggling with the Public Service Organisation Review Group (PSORG) reform proposals.

The private member's motion led to the creation of an all-party committee charged with the task of studying the idea. The committee's report was produced in somewhat controversial circumstances of the very eve of a general election.

Examining the papers which were presented to the all-party committee it is amazing that the idea was not killed at birth. The concept had few fans in the administration at the time. The papers suggest, in contrast, that it had powerful enemies. The briefing to the Committee was, by any objective standard, questionable. In an article "The Ombudsman Proposals - a Critique" ? at the time, I suggested that those who were initially charged with the task of producing proposals for the Irish Ombudsman Act approached their task with a shock and awe mentality, normally associated with that of Victorian maidens confronted by a risqué situation.

The Irish Ombudsman legislation, the Ombudsman Act, 1980, when it finally came onto the statute book was remarkable for its conservatism. The Ombudsman's attention was focused only on central civil service administration. Jurisdiction over local authorities, state-sponsored bodies and health boards was to come later. Investigation of the police or the prison service was ruled out as was the investigation of complaints involving issues of clinical judgement. The legislation was loaded with needless - some might say mindless - constraints and limitations.

The draft legislation gave the impression that the authors were, to put it mildly, unenthusiastic. It seemed at the time, that with in political and more importantly within administrative circles there was a groundless fear as to what the office would do. Certainly few of those involved showed any of the sagacity of the Canadian judge mentioned earlier.

It is worth reminding ourselves on this somewhat congratulatory occasion of the conservatism, unnecessary conservatism, which informed the creation of the Irish Ombudsman office. I say this for two reasons. First, as already mentioned, there was a very early debate in Ireland on the creation of the office. Had the Irish administrative and political systems not been so conservative and so reactive to change, Ireland could have had a fully functional Ombudsman's office two full decades before the first Ombudsman was appointed in this country. As in so many other things we virtually debated a good idea to death before we introduced the idea in a truncated form. We also know that the office was fully translatable into our administrative system and we now know the value of the office in terms of balancing the relationship between the powerless citizen and the powerful state. The success of this office should be a lesson to us. It should teach us to be less fearful, to be more confident and to be more willing to take a risk. Those who feared that our administrative system would somehow grind to a halt because the citizens were to be given the right to plead their case to their champion were wrong. The administrative system hasn't ground to a halt. Public administration is the big winner when the interests and concerns of citizens are properly addressed. A public service which does not put the public interest to the fore is not a real public service.

Second, the office has grown and has developed. Its jurisdiction has broadened and deepened. This has happened because on the one hand there has been a good experience with the office and, on the other there have been people who have been willing to push the parameters. In this regard one must mention Ireland's first Ombudsman, Michael Mills, in particular. He not only showed that the office could work but he assuaged the baseless fears which had informed the earlier conservatism.

A Success Story

The Office of the Ombudsman has been, a remarkably successful innovation in the Irish administrative system. But it could be more successful yet. By the end of 2003 nearly 60,000 valid complaints were handled by the Ombudsman's Office. In about 40% of cases some form of redress is achieved. The office deals with up to 10,000 queries from the public on an annual basis. The role of the office is not simply to examine individual complaints but also to ensure a better quality service to customers or clients of public bodies by improving the system of public administration.

Without getting into a statistical analysis a few comments can be made and some pointers suggested. The first point is that the Office should apply to all areas of the administration - including controversial areas such as clinical judgement, police and prison services, indeed the whole gamut of public administration. Views expressed 21 years ago on the issue of jurisdiction have not changed in this regard.

Some concern can be expressed at the relatively low level of use made of the Irish office. This comment will raise an eyebrow or two. The point can be made in defence of the comment that two or three Dáil Deputies would handle the same level of queries in a twelve-month period. There are a lot more than 10,000 complaints per annum in the Irish Public Administration system. Some means must be found of encouraging citizens who have a complaint to make, to make more frequent use of the office of Ombudsman.

Another concern is the perception of the office within the Administration system. The Office must be seen within administrative and political circles as a positive player in public administration. A citizen should not have to depend on a chance political connection to access his/her rights. By investigating complaints about public administration and putting forward recommendations for changes in the administrative system the Ombudsman's office can become an absolutely invaluable instrument of reform. It is an ally in the delivery of world class public service - not a foe.

Thirdly the office has a particularly important role to play in the area of local government. By its nature local government is dispersed. Some local authorities have an excellent record of customer service - others have not. Citizens have the right to expect the same high level of service, irrespective of the part of the country in which they live. By investigating complaints and highlighting blackspots the office of Ombudsman can provide an invaluable litmus test as to the quality of service across the whole range of local authorities. The reports of the office and the insight they contain are more valuable than any consultancy study.

As everybody will be aware planning and proper planning enforcement has been something of a focal point of mine from many years. I have been to the fore in criticising a number of fundamental failures in this area: failures of consistency within planning decisions, failures of enforcement of the law particularly the law on waste management and failure to provide proper "client oriented/customer friendly" service.

Some comments made by the Ombudsman (in her last Annual report) which touches on these matters are of interest and of concern. Local government touches on the lives of every citizen in a remarkable variety of ways. One of my aims in office will be to put the citizen at the centre. I want to see an efficient service and effective use of the resources the state provides to local government. Equally importantly, I want a courteous service. I want every citizen - powerful or powerless - to feel confident that they will be treated with respect, with courtesy, with consideration and above all with equality in their dealings with each and every local authority.

We have just gone through a process of changing local government management structures from those dating from the 19th Century to a modern management system. More resources than ever have been invested in the local government system. The officers and staff of local government are now properly rewarded for the work they do. I want to be certain as the Minister charged with overseeing the system that the public is getting the benefits of that change in terms of service delivery. The reports and investigations of the Ombudsman can help in that regard.

I mentioned earlier the conservatism that first informed the political and administrative response in this country to the office of Ombudsman. The Ombudsman will find no such conservatism in the response from this office holder. I would welcome more focus and advice in local government.

The first 20 years have shown that the Office of Ombudsman is completely compatible with, and now an integral part of, the Irish administrative system. Let us hope that the next 20 years will be as fruitful and that this office will be one of the keys that open the way to providing the Irish people with the functioning, effective, modern, client-oriented public service that they pay for through their taxes.

Ms Ann Abraham, UK Parliamentary Ombudsman and Health Service Ombudsman for England
"Good Governance from a UK Ombudsman's Perspective"

Thanks for the invitation to join you today and congratulations to Emily and her colleagues and her distinguished predecessors on your 20th anniversary. Congratulations on all that you have achieved in those 20 years and I wish you every success in the many decades that are yet to come.

I've been asked to give a UK Ombudsman's perspective on good governance. I'm going to stretch my brief a little and in the course of the next half hour I'll probably switch hats in and out of three roles: as Health Service Ombudsman for England; as Parliamentary Ombudsman for the UK; and as Chair of the British and Irish Ombudsman Association, a position to which I was elected by my fellow Ombudsmen in the public and private sectors in Britain and Ireland earlier this year.

But let me start with a UK Ombudsman's perspective. My office in London is on the 15th floor of a tower block, with wide ranging views over Westminster and Whitehall. So at one level my perspective is a highly desirable one. Good for reflecting – which all Ombudsmen need to do from time to time – pondering the arguments, deciding whether or not to uphold the complaint, and if so, what might constitute an appropriate remedy. And sometimes, when I'm in reflective mode, as I look out from my window over the Palace of Westminster, up Whitehall and across to St Thomas's Hospital on the opposite bank of the Thames, I like to pose a hypothetical question to myself. Would it make any difference to the people who work in those buildings or the people who go there to use the services they deliver, if my role and the work of my Office didn't exist?

Of course, if we didn't exist, it would be bound to affect the many hundreds of people whose complaints we see at any particular moment in time. The government lawyer who wrote on one of the files we saw recently: “If the Ombudsman sees this we're sunk”, might sleep a bit more easily at night. But beyond them?

Well, thankfully, it is a hypothetical question because I passionately believe it does make a difference - and not just to those people with whom we come into direct contact. It makes a difference to every single person in the UK because every one of them is affected in some way or other by government and its actions. The quality of their lives depends upon good governance as surely as they depend upon a good economy to provide for their material needs. And I believe the role of the Ombudsman is a cornerstone in the great edifice that is governance.

Like so many things that don't feature on our radar until things start to go wrong - for the most part we don't notice good governance. We are highly unlikely to fall asleep muttering: “Well thank goodness for another day of robust good governance ensuring that the delicate balance of competing individual and public rights and responsibilities is maintained.” Well, if you do, dare I suggest that you are highly likely to be falling asleep on your own. But if governance was poor and badly managed, you would know about it fast.

In Emily's speech at the recent International Ombudsman Institute conference in Quebec, she opened with the rationale for governments, parliaments, the courts, domestic and international laws, police forces, defence forces, prisons, regulatory bodies and various types of watchdog which create a delicate ecology helping to regulate the checks and balances in a world of competing valid interests. Into this complex ecological system steps the Ombudsman with the important task of ensuring that each of these organisms are themselves healthy and able to discharge their functions in a proper manner. I couldn't agree more.

In the UK there are 16 ombudsman schemes recognised by the British and Irish Ombudsman Association. Of these 8 are public sector ombudsmen. The common factor among them all is the investigation of complaints about whether the bodies within their jurisdiction have handled things properly and fairly.

As I have said, I wear two Ombudsman hats – one as the Parliamentary Ombudsman for the UK and the other as the Health Service Ombudsman for England. As the former my remit runs across all the UK departments of state and the bodies that are sponsored by each to undertake specific actions on their behalf. This runs into hundreds of bodies whose names, structures and very existence mutate faster than a genetically modified crop in a laboratory test tube. A fact that causes us frequent problems in ensuring our stated jurisdiction is kept up-to-date as the machinery of government changes. Comparisons with the Forth Bridge come to mind …….

My statutory duty is to investigate complaints into unremedied injustice by means of maladministration - a wonderful phrase which I shall not repeat for fear of using the entire stock of English language syllable combinations. For me, in the real world, what it means is that where people have suffered some kind of wrong as a result of government not doing things in a fair and proper way, they should have it put right as far as is possible. To do this job I need clear principles of good administration that I expect government to live up to and I need a clear idea of how things should be put right. Simple concepts which are often frustratingly difficult to find consensus on in practice. A debate I will return to later.

My Parliamentary Ombudsman role was created in 1967 and was, of course, the first ombudsman role set up in the UK. At its inception, it was thought by some to be a creation of MPs who wanted some help in holding the Executive to account. It was very much about looking at individual complaints, finding individual resolution. Perhaps the idea that this was really more about MPs in their scrutiny role, rather than a service for the public in obtaining administrative justice, is best exemplified by the necessity for the public to put their complaint to me through an MP. If he or she decided that the complaint was not worth passing on - then so be it.

Difficult as it may be to believe, it is still the case that complaints to the UK Parliamentary Ombudsman must be referred by an MP (although we're working on it) and it might well be the one restrictive practice MPs have not voted on in the last thirty odd years. I am convinced we should do away with the MP filter – and I am pleased to say that, in a recent survey of Westminster MPs, two thirds of them agreed with me. It's not that I think MPs don't have an important role to play in referring cases to us. They do. It's simply that I find it hard to see how, in the 21st century, it can be argued that citizens should not also have direct access to an Ombudsman.

Going back to the early days of my office, one thing was absolutely clear, however, from the outset. My post was to be a creature of Parliament and, to be effective, completely independent of government. Thus I am an appointee of the Queen and accountable to Parliament. My funding is decided by Parliament and while I can agree to act in accordance with government rules and systems, as I have done with the Permanent Secretary at the Treasury in relation to how we keep our accounts, I can decide not to, as is the case on our pay and appraisal systems.

It's an important principle. Government rules will be applied by a government department which I may be called upon to investigate. Even if in reality I maintained lofty impartiality - in a case where I am investigating the activities of a government department – if, at the same time, that same department was bringing me to task over the failure to comply with their rules, would you, if you were the complainant, ever believe you would get a fair outcome? How could you be sure? The credibility, and therefore the effectiveness of my Office, depends as much on the perception as the reality.
This ability to stay outside of the normal bounds of government rules does place me in a position where the potential for irresponsibility is – in theory at least - that much greater. Which has important implications for our own governance arrangements – as well as the role we play in the wider governance arena.

It seems to me that the recognition of our privileged position has led, curiously enough, at times to a degree of self restraint by my office that could be positively harmful. The fear of being seen to be profligate with public money leading to lack of necessary investment or the need to be seen to act properly leading to a fear of taking any risks at all – both for ourselves and, more importantly, on behalf of our customers.

Whilst I might not actively invite it, I can think of circumstances in which I would positively welcome a challenge by way of judicial review from a party to a complaint – in order to clarify a vires issue – or to highlight some gap or deficiency in my jurisdiction. But don't worry. I am not an entirely unguided missile launching myself at any public servant – or high court judge - that moves. Accountable to Parliament, my working relationship is with the Public Administration Select Committee. Once or twice a year I am called before the Committee to be questioned on any matter relating to my work, from my view on proposed reforms of the NHS complaints procedure, to Whitehall's readiness for Freedom of Information to whether my Office's performance measures – and our published accounts - tell MPs anything at all about what we are up to. Believe me, it is not an experience to be taken lightly.

Nevertheless, it is a moot point whether one or two appearances a year in front of the Select Committee really provide the assurance to the public that they should. After all, I am pretty much immune from most of the normal government scrutiny mechanisms and I can only be removed following a vote in both Houses of Parliament. I might have done quite a lot of damage before it came to that.

I expect my Office to live up to the highest standards – and more especially given the role we play in overall state governance. But I am sure the perception of that reality is just as important. With this in mind we have recently introduced new governance arrangements and encapsulated them in a Governance Statement which will be publicly visible. And we have demonstrated our openness to external challenge and scrutiny by bringing external members on to our Advisory Board and by appointing an external chair of our Audit Committee. In the absence of statutory mechanisms to assure our own governance, we have created our own.

We have included in this the governance arrangements for my individual role. To this end my Advisory Board has spent some time recently picturing me developing an unhealthy attraction for the gin bottle, or the gambling tables – difficult to do I have to say for anyone who knows me at all well. But – imagining me slumped over my desk, in a better state for karaoke than deciding on the balance between public harm and public interest – we have asked ourselves, who should take action? My staff have no statutory lines of accountability beyond me and I am in effect the Chief Executive and Chair with my shareholders at a remove from the day-to-day business. We have addressed the issue by including a section within our governance statement placing a specific responsibility on the senior staff to act if they find me in gross violation of my duty. And lest you immediately start to fear for the reputation of my office, I think my fellow Ombudsmen in Britain and Ireland - with whom I meet regularly and many of whom are here today - will testify to the fact that it's difficult to get me to stay awake after 10 o’ clock at night, never mind persuade me to join them in the bar – or at the gambling tables – not of course that the gambling tables have ever featured in a meeting of public sector ombudsmen – or at least one that I've had anything to do with.

To go back to the wider role my office plays in governance – while the Select Committee can, and does hold me to account, it does the same job for government departments, agencies and health bodies. The role of select committees has become an essential component of the governance system in the UK. They can call Ministers, civil servants and other witnesses to question them in public or private. A select committee report is often the precursor for change.

I wouldn't say that my double act with the Committee on this is exactly good cop, bad cop but it does work. I prefer to think that we are both perfectly reasonable and empathetic cops with just a touch of menace! I can help the Committee by highlighting problem areas and providing some evidence of what is happening on the ground and how it affects the individuals they are in Parliament to represent. I have been called as a witness in their investigations into these issues and I have moved across to the other side of the table to join the committee in asking questions. Earlier this year, for example, I joined the Committee at their side of the table when they were questioning the Chief Medical Officer and the Chairman of the Healthcare Commission about reforms to the NHS complaints procedure. It is a mutually supportive relationship. I can help the Committee and they can certainly help me in defending my independence and promoting my role.

But how have the roles of the Parliamentary and Health Service Ombudsman developed over the last thirty five years? Along with the rest of Society, they have grown and changed. They play a bigger role now in the good governance of the UK and I believe they can go further. To understand this we need to look at where we have come from and where I believe we are going.

In handling complaints we have gone from the reactive, handspun, tailor-made individual investigation with individual resolution through to the more proactive and strategic casework which can look at small numbers of cases as exemplar for wider issues. The highly topical and controversial example of this is NHS funding for continuing care – cases investigated under my jurisdiction as the Health Service Ombudsman for England. In the UK public policy has made a distinction between those requiring clinical - nursing/medical care - and those requiring personal or social care such as help in getting out of bed, dressing and feeding themselves etc. The distinction matters. Clinical care is entirely funded by the NHS whereas personal or social care is means tested and often for those requiring such support for any significant period of time, it means selling their home to pay for the costs. A number of complaints from patients about their assessments refusing NHS funded care suggested to me that there was a widespread problem in the application of the criteria and rules in making these judgements.

We used a selected number of cases to demonstrate the point to Parliament through a special report. In that report we called for a review of all existing cases to reassess them in a consistent and fair manner. Over 11,000 cases have been reviewed in the last year and over £180 million of wrongly recovered costs will be returned. And the reviews are continuing.

But we are not just working on our exclusive patch. As government gets more joined up, so must Ombudsmen. We have launched two joint investigations with the Local Government Ombudsman in recognition of the joining up of a national health service with locally funded and delivered social services. We will work across national borders with our colleagues in Scotland and Wales on tax and benefit issues. I have no doubt that this will happen more and more.

But how else should we change? My Office has taken a long hard look at itself over the last year or so. What should be the job of the Ombudsman in the 21st century? What place does it hold in modern government? Why not leave it to Parliament and the courts to hold government to account? What's the best way to undertake that job?

To answer these questions we've had to ask ourselves what unique value we add to public life. We've taken a long hard look at our place in the wider world and within the administrative justice system. For the first time in its history my Office thought it had better ask those we serve, what value they thought we added. That's real risk taking for you!
Fortunately for us, everyone we spoke to thought the Ombudsman was the proverbial ‘good thing’. We were praised for being independent and impartial. We are thorough and free. But not everyone wanted the same thing from us. Some complainants questioned how effective we were and whether we really could hold government to account. Advisory bodies wanted us to be much stronger in saying what was wrong and what should be done about it - and not just on the individual cases but in public services in general. But leaders in Whitehall were just a little more reticent about how proactive and recommendatory we should be.

I have a wonderfully telling visual representation of where our stakeholders sat on our future role which our researchers prepared for us. They developed a grid showing who in our survey were keen for us to play a more proactive role, looking at systemic problems and making recommendations for change and those who were keener on us keeping to a more reactive, case by case approach. Complainants, advice agencies and the Select Committee supported a proactive, more radical role for us. Complaint handlers were a bit less enthusiastic but were keen for us to take on a diagnostic function, analysing problems and giving feedback about systemic issues. But it was the senior civil servants – permanent secretaries (your secretaries general) and chief executives of government agencies and senior managers in the NHS who were the most cautious. They thought a reactive approach was fine thank you – and advised us very politely to stay inside that particular box. Well there's a surprise.

I'm afraid I couldn't resist taking the opportunity to show that page from the survey report to some of our permanent secretaries when I was invited to speak to them recently by the Cabinet Secretary - and rather teased them about just how dynamic they thought they were.

What I, and my staff, are now utterly clear about is that our work is about providing a service to all of the public in two ways. First by achieving administrative justice for them as individuals in a way which is accessible and effective. And secondly, by improving public services for everyone by sharing what we have learnt as widely and as vigorously as possibly.

We have enshrined this approach in our new role and purpose statement which also includes the values we are going to operate by.

We aim:

to make our services available to all

to operate open, transparent, fair, customer-focused processes

to understand complaints and investigate them thoroughly, quickly and impartially

and to share learning to promote improvement in public services.

All of this is underpinned by four sets of key values – excellence, leadership, integrity and diversity.

This role and purpose statement highlights for me the reasons why the ombudsman role is unique and why we don't just leave it to tribunals or the courts to protect the citizen from the state's mistakes. We are accessible, particularly by virtue of being a free service. We are inquisitorial rather than adversarial, which allows us to assess facts and test what is fair and reasonable in a way the adversarial system never can.

And then comes the raison d’etre for me. It is inherent within what we do that we improve public services on the basis of learning from what went wrong – something the courts and tribunals do not. We are about creating a virtuous circle not a vicious circle. This is something our stakeholders have said they are interested in just as much as the individual resolution of a complaint.

And to do all of this effectively in the 21st century we cannot be inward looking nor self referencing in the way that perhaps all public institutions were in the past. When I look out of my Office window, I don't only see the national institutions of Whitehall and Westminster, I see the effects of globalisation. I look across to Wapping and the City of London with international institutions located in Canary Wharf and our famous gherkin building. We live in a world influenced as much by the global norms of human rights, as the national norms of free healthcare.

I see my role as Ombudsman living up to the challenge of the 21st century only if we engage positively with this new world. When making our judgements we must look at the world we live in and ask what is acceptable and fair within such a world. I agree with what Emily said in her speech in Quebec about the inevitability of human rights forming part of the framework of judging if governments are acting in a fair and proper way - because inevitably it is part of the public's test of what is proper and fair.

But taking the broader perspective is not only about receiving messages from the external environment, it's about sending them back. To do the thing that many of our stakeholders want most – that is make sure that what happened to them never happens again – we must engage much more proactively with the people who deliver the services that people experience. Producing a few beautifully crafted reports, which sit on the shelves of the House of Commons library, is not enough. We need to make recommendations in our reports that can be translated into action. We must follow up to make sure that individual institutions have complied with those recommendations. But most importantly we must do more to ensure that the wider lessons are learnt across the public sector which means gaining the support of leaders across government and the NHS.

In the coming years I would like to see us being looked to as a positive source of help in developing good standards of service and not a negative force simply pointing out where things go wrong. I have no doubt that we will be working more and more with others who have an interest in improving standards. One example of such a strategic alliance is our developing relationship with the National Archives. We have a strong mutual interest. In my work poor record keeping is at the root of many complaints. The National Archives are determined to improve standards of record keeping and records management. Together we can create a strong alliance against those who take the view, as one government body did with one of my Directors of Investigation: “It is unfair to describe losing papers as maladministration as we do it all the time.” Engaging creatively with the outside world has great potential to improve governance and improve people's everyday experience of government.

Putting all of these elements together makes for a powerful rationale for the role of the Ombudsman. But there is something else which becomes apparent when you take a look at the wider administrative justice landscape. What you find is a rather confused and confusing place. One where the routes to redress can appear rather haphazard and rocky. If I find it a bewildering place after all these years of navigating the maze of public service providers, of regulators, commissioners, Ombudsmen, courts and tribunals - goodness only knows what the average complainant approaching all of this for the first time manages to make of it.

Too often the design of the individual components, or even the periodical reviews of large swathes of the landscape, have missed the opportunity of creating something which is harmonious and integrated in a way which works for the complainant. After all it is the complainant we should start with. What are their needs and how can they best be satisfied? I am convinced that for different complainants and complaints a one size fits all solution will not work. Local resolution in the vast majority of cases will be best.

In others the nature of the complaint and the likely resolution can only realistically be met in the courts. But for others the ombudsman provides an essential mechanism to resolve their complaint – filling a middle ground between local and legal. With a plurality of mechanisms to fulfil the different aspirations of the complainant it is essential that those mechanisms articulate together seamlessly and the complainant can easily find the one that suits them best.

Sadly, I cannot report that is the case in the UK today, although there are frequent attempts to improve one bit of the system or other – we seem to be unable to do it in a way that looks across the piece. The current legislative paradox for ombudsmen is an uneasy fit with what is required and the recent White Paper produced by our Department of Constitutional Affairs on Administrative Justice fails to take the opportunity to make the changes. Its very title - Transforming public services: complaints, redress and tribunals – demonstrates the confusion in the minds of the officials who wrote it.

Finally, I would like to pick up on the debate I referred to earlier around principles of good administration and redress. You may have noticed that we avoided the terms maladministration and unremedied injustice in our role and purpose statement. We have done so not just to avoid death by syllable overload, but also because I believe strongly in turning around what I do into positive action and not simply defining what is wrong. Indeed – despite various attempts over the years – none of my predecessors has produced a lasting definition of what is maladministration anyway. So I want to turn this on its head and – following the examples here and elsewhere – see if we can better define the principles of good public administration – to give a positive benchmark against which the bodies within jurisdiction can measure their performance. I know there are examples on which we can draw, such as your own recently reissued Standards of Best Practice for Public Servants.

But, as I said earlier it is surprisingly difficult to achieve consensus on an apparently simple concept. First, there is the rather alarming theoretical banana skin thrown my way by one permanent secretary who professed to be unable to distinguish between what constitutes good administration and good policymaking. Then there is the rather more prosaic what's in and what's out of the list of principles.

Some might be obvious - unreasonable delay for one. I presume we all regard the approach taken by one government body of: “two years delay can't be classed as maladministration because it normally takes us three years to decide on cases”, as unacceptable. But the same treatment might be regarded as fair in one case but not another. So how can you define fair practice?

I believe that a positive statement of the common principles of good administration – including good complaint handling – has the potential to be a remarkably powerful tool in our work. With my hat on as Chair of BIOA, I can see the immense value of the cross fertilisation of ideas that such an association can create on these kinds of issues.

Similarly I think the issue of redress is overdue a statement of principles by my Office. I know you have Redress: getting in wrong and putting it right. And I was very interested to hear that the Taoiseach’s Department has commissioned comparative research on international approaches to redress. Again a statement of redress principles, signed up to by public sector ombudsmen, could prove immensely powerful. Within the UK a number of currents in public sector policymaking are swirling around to make this highly topical and coincidentally illustrates again how we struggle to devise a system whose component parts sit happily together.

We have recently been consulted on redress in the NHS from two different perspectives. One is a consultation paper which looks at the legal aid budget and its use in obtaining redress through the courts from the Legal Services Commission. Their statutory intention is to ensure that costs do not escalate and that the legal aid budget is focused on the most deserving cases. Unfortunately the system being advocated appears to be completely at odds to that being proposed by the DOH for the NHS redress system. I think neither do the job they should and together they will produce an unworkable system.

I have described a big agenda for the ombudsman's role – one which I think will add to effective governance within the UK. Over the last 18 months or so, my Office has taken a deep breath and asked some pretty searching questions of itself. How can we best add value to our role of resolving complaints? What place should we take in the administrative justice landscape? Do we have any role at all? We have found answers which clearly describe our wider contribution to good governance and set us some real challenges in working with others to improve governance as a whole.

Without the Ombudsman thousands of people would be cut off from administrative justice and public institutions would lose a vital means of self correction.

For now at least, that's sufficient to reassure me as I look out from my tower block window.

So – it only remains to thank Emily again for the invitation to join you today – and for the opportunity to take part in today's celebration of the Office's achievements over the past 20 years.

Congratulations on all you have achieved – and the role you have played in contributing to good governance – long may it continue.

Thank you.

“The Ombudsman and the Northern Ireland Assembly” A speech by the Northern Ireland Ombudsman, Tom Frawley

I would like to begin my remarks by thanking Emily O’Reilly for inviting me to join you for this conference – an important one for a number of reasons. Firstly, as the 20th anniversary conference, it marks a milestone in the life and development of the office of the Ombudsman here in Ireland. Secondly, it is an important event because in selecting the theme of the conference you have chosen an issue which is important to all of us, but particularly apposite for me as I seek to develop both the role of the Ombudsman’s Office in Northern Ireland and, wearing another hat, p

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