Method of choosing Ombudsman a perfect illustration of overconcentration of power

Opinion: A more assertive approach by TDs and Senators would benefit the political system

Emily O’Reilly: herself argued for a more meaningful involvement of the Oireachtas in the choice of her successor. Photograph: Bryan O’Brien

Emily O’Reilly: herself argued for a more meaningful involvement of the Oireachtas in the choice of her successor. Photograph: Bryan O’Brien

Sun, Oct 13, 2013, 00:01

Such is the importance of the office of ombudsman that in both Wales and Ireland the appointment is formally made by the head of state after a person is nominated by resolution of parliament.

The Welsh Assembly and the Oireachtas have, however, taken a very different attitude to exercising that power.

This week Minister for Public Expenditure Brendan Howlin announced he had selected the current Welsh ombudsman Peter Tyndall as the candidate to be nominated by the Oireachtas to succeed Emily O Reilly as ombudsman here.

Peter Tyndall was appointed public service ombudsman for Wales in April 2008 after a selection process that was conducted by the Welsh Assembly itself. He was chosen by a recruitment panel for the post that was chaired by Alun Cairns AM in his capacity as chairman of the assembly finance committee, and the other members of the panel were the parliamentary and health service ombudsman for England, the chief operating officer of the Welsh Assembly and an independent assessor.

By contrast, each of the three holders of the office in Ireland has been selected by the Minister for Finance of the day and had their names presented to the Dáil and Seanad for mere rubber-stamping. Each of them – Michael Mills, Kevin Murphy and Emily O’Reilly – were fine candidates and each went on to be a fine Ombudsman but they owed their selection to the preference of a Minister and his Cabinet colleagues rather than any parliamentary selection.

While in office, Emily O’Reilly herself argued for a more meaningful involvement by the Oireachtas in the selection of her successor. Similarly, Peter Tyndall,
when giving evidence two years ago at a committee in Stormont on the reform of the office of Ombudsman in Northern Ireland emphasised the fact that the appointment process in Wales was “with the assembly rather than the administration”.


No mention of interviews
In Ireland, however, the appointment is still very much within the administration. Brendan Howlin’s department advertised for expressions of interest and received about three dozen replies. It was the Minister, however, who then selected the nominee and presumably had it approved or at least noted by Cabinet. There is no mention in the Minister’s announcement this week that any interviews were conducted with any of the candidates or that any independent assessment of their relative abilities was conducted. As it happens, the process came up with a candidate who is obviously well qualified, and he has the added advantage of being from outside our own public service. The notion, however, that the process to fill this public service oversight post should be conducted wholly within a Government department is far from best practice internationally and is a classic example of the overreach of government power in our system.

In a nod to parliamentary approval, the consideration of the nominee this time around will go to the a Oireachtas Public Service Oversight and Petitions Committee before going by way of resolution to both houses. This committee is likely to invite Mr Tyndall to make a public presentation on how he sees his role and to face questions on his plans for the office and, presumably, on his background and qualifications.


Legal basis
The amendment providing for the candidate once selected (but only the candidate selected) to go before an Oireachtas committee was introduced by Mr Howlin during the passage of the Ombudsman (Amendment) Act in 2012. It is a welcome innovation but it is a far cry from an Oireachtas-led process. One could question the legal basis for any involvement by his department in the selection process and one could certainly question the appropriateness.

I repeatedly made the point during the recent Seanad referendum campaign that any office can be transformed within the Constitution by a change of attitude on the part of the officeholder. If at some point in the early 1980s a government had held a referendum to abolish the presidency, there would probably have been an instinctive public reaction to comply with the suggestion. At that stage the Áras was (unfairly) seen as a retirement home.

Each of our three most recent presidents have adopted a more assertive approach to the exercise of their power and influence within the constitutional restraints. Nobody would dare propose to abolish the presidency now.

In all the talk about legislative or constitutional change as a means of achieving reform of the Seanad or Dáil I would argue that, similarly, a more assertive approach by TDs and Senators and by the Oireachtas generally could go along what to improving our political system. They should insist on exercising the power and functions they already have. The selection and nomination of the Ombudsman would be a good place to start.

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