Monday 16 December 2019

Maurice Hayes: 'If the Oireachtas is now willing to neuter its own watchdog, it is, to put it frankly, castrating itself'

Maurice Hayes

IT IS risking the Mandy Rice-Davies riposte -- "Well, he would say that, wouldn't he!" -- for an ex-Ombudsman to argue that it is time the Government, the Oireachtas, and the general public took seriously the implications of sidelining a special report by Ombudsman Emily O'Reilly.

The report concerns the case of the family of a Donegal fisherman tragically lost at sea, with boat and crew, who had applied for compensation under a special, once-off, time-limited scheme to compensate families in similar circumstances.

Their application was rejected as having been made after the closing date. The Ombudsman found that the scheme itself was so badly framed and so poorly publicised as to fall far short of good administrative practice.

She recommended a compensatory payment to the family of €250,000. This was rejected by the Department of Agriculture and Fisheries. When the Ombudsman reported the matter to the Oireachtas in a special report (only the second since the office was established), the option of referring it to a committee for discussion was refused by a whipped vote in both houses.

It is not the purpose of this article to argue the merits of the Ombudsman's decision or to question whether the actions of the department were so flawed as to amount to maladministration.

However, the innocent bystander can only note the coincidence by which three-quarters of the available money went to only two claimants, who were both, by a happy chance, resident in the constituency of the minister most closely involved.

What is more important is that the decision strikes at the heart of parliamentary democracy. It calls into question not only the function of the Ombudsman, but the role of the Oireachtas itself. If the Oireachtas is willing to neuter its own watchdog, it is, in effect, castrating itself.

The prime function of the Oireachtas is to hold the Executive to account. It was to help parliament discharge this function that the office of Ombudsman was introduced in most modern democracies.

The Ombudsman was to be the investigating officer for parliament. He or she would burrow into departmental files, would have the power to question officials, and, where mistakes or miscarriages of administrative justice were found, to have these corrected and the rights of the citizen vindicated.

In most cases, it was assumed, this should be enough: the department would respect the Ombudsman's adjudication and act accordingly. In the unusual event that a department refused settlement, the act provided for a special report to be made to the Oireachtas.

The clear implication is that such a report would be seriously considered and debated by the Oireachtas, which would then decide whether or not the department and the Executive should be required to give effect to the recommendations of the Ombudsman.

Such is the prestige of the Ombudsman in most of the countries where the office has been established that there has been little need to have recourse to this power to make a special report.

It has happened only once before in Ireland, not more than a couple of times in Britain, and never in Northern Ireland.

In my own experience, the mere threat of a special report was enough to bring most departments into line and, where ministers were inclined to die in the ditch, they were quickly disabused by colleagues who were reluctant to go through the lobbies to defend the possibly indefensible.

The reason for all this having come unstuck in Ireland may be a change in the nature and composition of parliaments. In the simple Nordic innocence in which the Ombudsman was conceived, each member of parliament was an independent representative of his constituents, prepared to hold office-holders to account, not a member of a herd prepared to be driven through the voting lobbies by the whips.

The change in the nature of parliaments in Britain and Ireland is due to the consolidation of the power of political parties and the dominance of the payroll vote, and the virtual disappearance of independent-minded backbenchers, especially on the government side.

GOVERNMENTS of all parties have become used to imposing their will by force of numbers rather than by force of argument, and debate and democracy have suffered.

If this approach were to be applied to Ombudsman reports, it would mean impunity for departments.

Executive action could never be successfully challenged. The government will have appointed themselves as judge and jury in their own case, and the citizen, who may have suffered injustice, is left defenceless.

The Ombudsman is an officer of the Oireachtas. The least the Oireachtas can do is to respect the office and the integrity of the office-holder.

The way to do this is to allow a free vote on an Ombudsman special report. This can be done in a committee setting where both sides can be heard and a measured judgement taken. There is no argument that such a report should be inviolate, only that it should be fairly considered.

Not to do so is to hand untrammeled power to the Executive, secure in the belief that they cannot be challenged, and to diminish the Oireachtas. In this case, nobody is made responsible, because nobody can be held to account.

Irish Independent

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