Trevor Ó Clochartaigh (Sinn Fein) | Oireachtas source

We have a saying in Irish, "Níor chuir tú fiacal ann." I commend the Ombudsman on that. Her presentation this morning was excellent. I am very alarmed by the reports and by what Ms O'Reilly has told us today. She has been very forthright and clear in what she said in her capacity as Ombudsman. Hers has probably been the most strongly worded presentation I have heard from an ombudsman since becoming a Member. I take this at the level intended.

I agree that redress for the individuals involved is very important, but the Ombudsman is pointing to a much broader issue that concerns challenging the democratic mandate bestowed on all of us, not just on the Office of the Ombudsman. It is not just a case of a Department giving two fingers to the Ombudsman stating it will not do what it says, as it is also a case of it doing the same to all elected representatives in this Parliament. We are charged with enacting legislation which becomes the law of the land. Departments are flagrantly flouting that law; that is the basic issue. This is not the first instance as we have had hearings with An Coimisinéar Teanga in respect of whom I believe there are parallel circumstances. He made recommendations in a report but the Department of Social Protection, under guidance from the Department of Public Expenditure and Reform, has flouted the laws in this regard also. Acht na dTeangacha Oifigiúla, the Official Languages Act, is the law of the land but Departments are choosing not to follow it. The issue for us as a committee is that we must say "Enough is enough" and that this should not be allowed to happen.

Where languages and the rights and obligations of State bodies are concerned, Mr. Justice Hardiman has given an opinion based on a ruling in the Supreme Court case of Ó Beoláin v. Fahy:

The modern State necessarily imposes many onerous duties on citizens in relation to various aspects of life from tax compliance to planning law. Many of these duties are irksome, time consuming and expensive to comply with, but compliance is properly required.

Equally the State itself must comply with its obligations, particularly those enshrined in the Constitution and can no more be heard to complain that such compliance is irksome or onerous than can the individual citizen. In particular, the State cannot be heard to complain that its non-compliance over a period of decades have now rendered present compliance even more difficult.

Such an eminent legal opinion needs to be taken on board in this context. I have a number of questions, however. The Ombudsman may say they are outside her remit and more for my fellow committee members. Could the opinion of the Department be seen as a challenge to the Houses of the Oireachtas to enact legislation? To put it colloquially, I suggest a Department is giving the two fingers to us, implying it is outside the law and will not follow through with it.

If we prove the State has a responsibility to act, does this create a de facto right to the relevant service, as was seen in the two cases? If so, does this give the citizen a legitimate expectation that such a right would be upheld? Do the types of reports the Ombudsman and An Coimisinéar Teanga present prove there is a responsibility? If so, does it confer a right on the citizen? If so, does the citizen have legitimate expectation to prosecute that right?

I noted a number of comments implying intentional delay on the part of the Department and that this is a risk-management strategy. The Department may be trying to ensure that the cost imposed on the State is minimised but the point the Ombudsman is raising is that the potential State liability accruing from not addressing this scenario could be much larger. I challenged the Department of Social Protection on this issue when its representatives were present to discuss the ruling of An Coimisinéar Teanga. It was hoped that the matter would be kicked to touch and kept out of the courts in any way possible. It was hoped that some of the petitioners could be sorted out by striking a deal on the steps of the courthouse, thus preventing other potential cases. If a number of landmark cases were taken and others followed suit, the potential liability of the Departments could be much greater than at present. The cost of redress could be higher.

I welcome the Ombudsman's report. It is extremely alarming. This committee should invite the Minister for Health before it to challenge him on the stance he has taken. We should be making the strongest possible statement today that we agree with the Ombudsman's findings, that her ruling should be upheld and that the Department should act immediately to secure redress. I very much thank the Ombudsman for her report.