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"Conflict and Accountability: the Citizen and the Ombudsman" (30.11.2001)

Address by Kevin Murphy (Ombudsman) at Irish School of Ecumenics

Introduction

May I begin by saying that I was very pleased to receive the invitation to address you here this evening. I acknowledge the importance of the content of your course of studies. The dynamics of conflict, the role of the powerful and restorative justice are issues very close to my own role in public administration. There are many who would say that the role of the Ombudsman, encompassing legislative, judicial, arbitration and adjudication functions requires a basic competence in mediation facilitation and conciliation. I hope that by speaking with you and answering any questions you may have, you will gain a fuller picture of my role in this context . Conversely I hope to leave here tonight with a greater understanding based on your experiences.

Some of you will be aware of the role of the Ombudsman generally but, for those of you who are not, I will explain the background briefly. But before I do so, however, I would like to comment on the developing conflict and alienation between the citizen and the State which is evident in today's society ( witness the events surrounding the recent Nice Treaty Referendum) and the concept of accountability by which such conflict and alienation can be addressed.

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

However, from my experience I believe that citizens want a public administration in which they have confidence because they know that, by and large, it is honest, it is fair, it is responsive to them and inclusive of them. This confidence, which is the lubrication which ensures a properly working democracy, can be secured only if public administration is open, transparent and accountable and if there are effective mechanisms in place to ensure this. Failure in this regard can be the catalyst for the sense of alienation and conflict which I outlined above.

In the Irish context, the most important mechanisms have been, and will continue to be, the Houses of the Oireachtas and the courts. Added to these is the mechanism of public scrutiny in which the media play a vital role. Shortcomings in the effectiveness of parliamentary control of Government and public administration have been evident for some time, while the expense and slowness of litigation has inhibited the effectiveness of access to the courts.

The Ombudsman system provides a forum which enables citizens to have access to an independent, impartial and inexpensive dispute resolution mechanism which can resolve their grievances, protect their human rights and restore their dignity and confidence in the democratic process.

In Ireland the Office of the Ombudsman is now recognised as one of the foremost instruments of control in the field of administrative justice. The Office is established under the Ombudsman Act, 1980 and opened in January 1984. The Office is based on a model which is recognised across the world and, in very many respects, what the Office does is replicated in the work of other national Ombudsman Offices across Europe, in Australia, New Zealand and in Canada.

Characteristics of an Ombudsman

There are certain essential conditions which must be met by the Ombudsman if the use of the term Ombudsman is to be legitimate. It is generally accepted that the overriding essential for an Ombudsman is that he or she be entirely independent and impartial. Impartiality requires independence , security against arbitrary removal, the power to issue and publish reports with the protection of privilege and, finally, adequate resources to do the job. If I may quote Maurice Hayes who served with distinction as Northern Ireland Ombudsman, independence means "protection against the executive's attempts to muzzle the watchdog or induce torpor through malnutrition".

In addition to being independent and impartial, the office must be effective. What I deal with are allegations of maladministration on the part of a public body which, it is claimed, lead to adverse effects for the complainant; where this is found to have been the case, I will recommend suitable redress. The Oireachtas has given my Office quite substantial powers which include the power:

to require any person (including the public bodies in question) to provide my Office with any information, document or thing which may be of relevance;

to require any person (including officials of the public body concerned) who may have information of relevance to attend before me.

My Office does not have the power to nullify the impugned action or decision. Neither does it have the power to impose a legally binding solution. These might seem to be significant obstacles to an effective Ombudsman operation but, in fact, they are strengths. For one thing no Ombudsman recommendation, made following an investigation under the 1980 Act, has ever been rejected by the public body concerned. Another consideration is that the investigation process can also be flexible and informal rather than legalistic and adversarial.

Which Public Bodies?

The following are the public bodies subject to investigation by my Office at present:

• Government Departments and Offices (e.g. Department of Social, Community & Family Affairs, Department of Education & Science)
• Local Authorities (all county councils, corporations, urban district councils and town commissioners)
• Health Boards
• An Post

There is a proposal before Government at present to considerably expand the range of public bodies subject to the Ombudsman's jurisdiction. Amongst the bodies likely to be added are FÁS, the public voluntary hospitals, third level educational institutions and many other publicly funded organisations. In addition, the Eastern Regional Health Authority is presently examining mechanisms whereby the entire range of its service providers, including those dealing with people with intellectual disabilities, can be brought within my jurisdiction.

There are some specific exclusions from the Ombudsman's jurisdiction, the principal ones at present being:

actions taken in the administration of the law relating to aliens or naturalisation (e.g. decisions in relation to asylum seekers, work visas and citizenship);

actions taken in the administration of prisons;

issues which have already been adjudicated upon by a court or where court action has been initiated;

issues in relation to which there is a specific statutory right of appeal to an independent tribunal or appeal body (e.g. An Bord Pleanála on planning issues).

Which Issues?

My Office receives about 4000 complaints each year of which about 3000 fall within jurisdiction. Roughly 50% of the valid complaints involve civil service bodies, about 25% relate to local authorities and about 17% involve the health boards. Social welfare complaints (e.g. relating to pension entitlements, unemployment and sickness payments) account for almost half of all the civil service complaints. Complaints from farmers about various agriculture schemes and grants are next highest. In the case of the local authorities, housing complaints are the biggest single category. In the case of the health boards the biggest complaint issue is entitlement to Supplementary Welfare Allowance which is not a health service in the strict sense. I have , however, noted a sharp increase in the number of complaints received in the past year relating to the health services.

The typical complainant has been refused a payment or a grant or believes he has been paid less than his entitlement. However, not all complaints have to do with payments; issues to do with customer service (e.g. delays, failure to explain decisions, patient care in the hospital system ) and with alleged failure to fulfill a statutory function (e.g. planning enforcement) also feature regularly.

Dealing with Complaints

Procedures for taking and dealing with complaints are designed to be as user-friendly as possible. Complaints may be made in writing, by telephone or by calling to my Office in Dublin. My staff are available to the public on a monthly basis at Citizen Information Centres in Cork, Limerick, Galway as well as in Coolock, Dublin. In addition a series of visits to other provincial centres is arranged on an annual basis. My staff also pay visits to the homes of complainants where appropriate.

Details of a complaint will always be put to the public body concerned. Depending on the response, my staff may examine the body's files on the issue and also discuss the case with the relevant officials. Having heard from the body, and considered the matter, my Office will then generally discuss the case further with the complainant. To some extent, this procedure functions as a form of mediation and it can often result in a settlement acceptable all round. Only in a small percentage of cases does it become necessary to resort to a written investigation report with formal findings and recommendations. Such formal reports are necessary where the adverse effect to the complainant appears, on the face of it, to be significant and where the body is unwilling to take action to mitigate the claimed adverse effect. Formal reports are also resorted to where the issues raised are of general significance and where principles or interpretations of wider application may be developed.

I would like to return to the central theme of conflict and accountability in a general sense, and the role of the Ombudsman therein, under the following headings: Access to Justice, Comparison with the Courts Administrative Accountability, Fair Treatment and Human Rights

Access to Justice

A former Ombudsman with the Personal Investment Authority Bureau Ltd commented on the effective collapse of access to the courts by the majority of the population in the United Kingdom, with no real or lasting solution to this fundamental problem. In Ireland access to the courts is, as it always has been, open to everyone but, generally, only at a price that few can afford, due fundamentally to the very structure by which such services are delivered (primarily built around the adversarial nature of the courts) and complexities of modern law. It is not a system designed to benefit, or be used by, the ordinary member of the public. I think those observations would strike a chord with many of you and that you would agree that all citizens, not only those who are willing and able to pursue court actions, should be able to benefit from fair, open, accountable and efficient public decision making.

The assumption has also been questioned that those who suffer from erroneous decisions by public bodies in primary adjudication will complain on appeal. There is no empirical evidence to warrant such an assumption, nor is there any evidence to demonstrate that there is any substantial correlation between suffering and complaining. Consequently when decisions relate to elderly people, disabled people, single parents, small business people, immigrants, there are a large number who suffer from erroneous decisions without filing a complaint. Indeed the total volume of injustice is likely to be much greater among those who accept decisions than among those who complain or appeal. By way of example during the course of an examination of an individual complaint the Department of Social, Community and Family Affairs reviewed over 300 other cases where individuals had not complained resulting in payments totalling almost ?250,000

The Ombudsman and the Courts

Central to any comparison of the Ombudsman and the courts is the principle that the Ombudsman does not determine legal rights or make binding decisions. The Courts determine legal rights, the Ombudsman remedies injustice. One wonders if these two concepts can be mutually exclusive, however, notwithstanding this distinction the following comparison is illuminative of the contrasting approach to similar type disputes.

The Courts

Formal, Public, Costs, Legal representative generally necessary, Issue determinative, Determines legal rights, Makes decisions ( enforceability ), Orders/Damages, No systemic analysis of those cases settled out of court prior to the hearing stage.

The Ombudsman

Informal, Private, Free to user, Legal Representative not necessary, Inquisitorial, Systemic approach, Decides on maladministration/injustice, makes recommendations ( compliance ), No restriction on proposed remedies, open to systemic analysis of all cases.

Administrative Accountability and the Ombudsman

I define administrative accountability as the process of ensuring that public service activities and, in particular, the exercise of decision-making powers, whether discretionary or otherwise, are carried out not only in a proper legal manner but in a manner consistent with fairness and good administrative practice. In short, I am there to decide whether or not public bodies are guilty of maladministration. Just as financial auditors examine the activities of the public service against certain financial principles and criteria, I examine their activities against the background of what are commonly referred to as the principles of good administration. I outlined these principles in my Annual Report for 1994 and I also published a charter of citizens' rights in dealing with the public service. I elaborated on these principles of good administration in my 1995 Annual Report and illustrated their relevance to the individual complaints which came before me. In my 1996 Annual Report, I published a Guide to Standards of Best Practice for Public Servants setting out in plain language what needs to be done if citizens are to be dealt with properly, fairly and impartially by the public service. These "accountability parameters" are derived from the categories of maladministration given at Section 4(2)(b) of the Ombudsman Act, 1980, from the practical experiences of thousands of complainants and from Ombudsman colleagues throughout the world. These rights and standard may be useful to you as a reference point when you are considering conflict involving elements of the public service

Fair Treatment

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

In trying to ensure that public servants are held accountable for their administrative decisions, the Ombudsman acts at a number of levels. At one level accountability for individual decisions is achieved by the examination and investigation of individual complaints and the provision of redress where justified. Since the Office was established, 50,000 complaints have been handled and in approximately 40% of cases some form of redress has been achieved. Examination of individual complaints often leads to the identification of systemic defects in procedures, approach or even attitudes and at this level valuable feedback can be given to the bodies within remit. Procedures and systems can then be improved in order to ensure that particular complaints do no recur. There is, however, a further level to which I attach particular importance. That is identifying, and seeking remedies for, deficiencies or injustices which have become endemic in the public service culture and which contribute to that "democratic deficit" which everyone admits exists and which alienates the citizen from the institutions of State.

Examples of the consideration which I have given in this context include, the treatment of old age pensioners, the elderly in nursing homes, cares of handicapped individuals and local authority mortgage holders

Human rights

Because the treatment of persons by the administrative branch of government is under scrutiny, human rights issues may be implicated in a complaint to the Ombudsman. Depending on jurisdiction an Ombudsman can often be, in part, a domestic human rights defensive mechanism. In general the areas involved concern basic human rights in relation to an individuals dealings with the police, prisons, mental institutions or refugee agencies.

The developing body of human rights law may well be of relevance, and of use, to an Ombudsman because it may be possible for these norms to be applied to internal issues that raise human rights concerns. In particular such norms could prove to be an interpretative guide to the interpretation of relevant domestic law and legal principles, or as clarification of what is fair and equitable in the context of the Ombudsman role in identifying administrative wrongdoing. An Ombudsman can also act in a diffuse manner to promote human rights norms by reason of his/her mandate- exposing injustice in the administration of government affairs and recommending corrective action . One example of such diffuse action can be seen in an investigation completed by my Office concerning the provision of school transport for a child with disabilities. I found that the existing scheme made no provision for such children living in isolated areas, with the resulting possibility of improper discrimination, and was inadequate to avoid hardship in the case of particular children. I recommended that the Department should devise and publish a school transport scheme for children with special needs which would include a provision that such children should not be disadvantaged by their distance from schools and that cases involving exceptional circumstances should be dealt with on their merits and not by reference to arbitrary restrictions.

I accept that the utility of human rights law will vary from one country to another. In some countries the Ombudsman will serve as one component of a complex domestic institutional framework for the enforcement of human rights broadly conceived, whereas in others the office will play a more central role in human rights protection.

This is an area which will receive considerable debate in Ireland in the immediate future. One of the provisions contained in the recent agreement reached in the multi party negotiations on Northern Ireland calls for the establishment of Human Rights Commissions on both sides of the Border, having a joint committee of representatives as a forum for consideration of human rights issues in the island of Ireland. This committee will consider the possibility of establishing a charter reflecting and endorsing agreed measures for the protection of fundamental rights of everyone living on the island of Ireland.

May I conclude by returning to my reference earlier to the importance of the course material

which you are studying. The peaceful resolution of disputes, and the conditions of peaceful

change, are fundamental to Irish society as we move into the post Good Friday Agreement period. As can be seen from the recent events in North Belfast this is not going to be an easy process. The more that individuals such as yourselves are equipped with the skills for the effective practice of conflict resolution the more confident we can be that the process will have a successful ending. I wish you well in your present studies and your future work in this vital area.

Thank you
Kevin Murphy
Ombudsman

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