Ombudsman’s office should be reconfigured, law professor says

The office of Ombudsman should be "reconfigured" as a constitutional office charged with protecting human rights, NUI Galway (NUIG) law school head Prof Donncha O'Connell has proposed.

Addressing the Constitutional Convention, chaired by Tom Arnold last night in NUIG, Prof O'Connell said that a redefined ombudsman would assume the role of guardian of the public interest as currently assigned to the Attorney General.

The advantage would be that it would no longer be a “demonstrably conflicted” role, as it has been under the Attorney General’s remit, and could provide a framework for other agencies, such as the Human Rights and Equality Commission, he said.

It would be "explicity designated" as an emanation of the Oireachtas, emphasising its independence - and that of the statutory bodies within its framework - from the State Executive, Prof O'Connell said.

Such a change to the Ombudsman’s role would also serve to bring the Executive to account politically, Prof O’Connell continued. One example of this would be compliance with “core minimum obligations “ on “specified socio-economic rights”.

Prof O’Connell said he did not envisage provision of socio-economic rights at the level of the Constitution as a “panacea” - no more than he would envisage something similar for civil and poltical rights.

However, he said he did believe making provision for such rights at this level as “an indication of seriousness about certain core minimum obligations”.

The Convention had a variety of options open to it on this question, such as recommending constitutional provision for a set of specified socio-economic rights, such as education, housing and health, subject to available resources.

“Alternatively, it could incorporate by reference the various socio-economic rights enshrined in international human rights instruments ratified by the state,” Prof O’Connell said.

“This would...run the risk of perpetuating in the domestic sphere the flaws of the international system for progressively realising socio-economic rights, to say nothing of the collateral controversies that would, inevitably, ensue from any proposal to incorporate any provision of international human rights law in the Irish Constitution,” he noted.

Prof O’Connell said he believed that the “most effective and practical option” would be to “codify core minimum obligations in specified areas of socio-economic rights using the relevant international standards” - by which the state is bound as a matter of international law - as “benchmarks”.

“It would be a subtle re-engineering of the political architecture of the state that could generate a lot less disruption than something like abolition of the upper house,”he said.

“It would alter the political culture by rebalancing things as between the parliament and executive and allow for the possibility of amplifying systemic injustices as opposed to individual grievances,” he said.

“If effective it could even lessen the kind of litigation that is so feared by opponents of justiciable socio-economic rights,” Prof O’Connell added.

During public contributions, there were calls for equal access to the health service, constitutional protection of the environment and retention of the measure relating to blasphemy to ensure support for religious tolerance.

Mr John Hughes of the Second Republic group said the convention must address the fact that Article 46.2 of the Constitution stated that amendments could only be proposed by way of Bills submitted to Dáil Éireann by the Cabinet.

The convention would be “nothing but a talking shop” if this was not addressed, he said.