Mr. Tony McCourt:

I thank the Chairman for the invitation to appear before the committee. I understand the committee wishes me to address it on three matters today: extending the remit of the Ombudsman Act and recommendations on the extension of powers of all ombudsmen; two particular issues which have been the subject of petitions that have already been dealt with in closed session; and the number and nature of reports being produced by my office in the context of annual and special reports issued.
I will commence by saying that the legislation underpinning the Office of the Ombudsman for the Defence Forces is the Ombudsman (Defence Forces) Act 2004 as well as section 114 of the Defence Act 1954. In my address today I will refer to the Ombudsman (Defence Forces) Act 2004 as the 2004 Act and I will refer to the Defence Act 1954 as the Defence Act.
My office was established by order of the Minister for Defence on 1 December 2005. My office provides military personnel with an independent and impartial external statutory complaint investigation authority. It is entirely separate and distinct from both the military chain of command and the Department of Defence. I believe we are fully compliant with the generally recognised principles of ombudsmanship.
The ombudsman provides an appeal from the formal internal military redress of wrongs procedure, a new direct referral complaints system for former service personnel, and a new system for complaints by serving or former service personnel against the actions of a civil servant of the Department of Defence. The outcome of investigations generally are that the ombudsman makes non-binding recommendations to the Minister.
My office produces an annual report on its activities. The most recent such report is 2012 which was published last June. The delay in the publication of that report was due to ongoing High Court proceedings which were entirely outside the control of my office. The annual report for 2013 is at an advanced stage of preparation. I intend to publish it before the end of this year. My office has not published any special reports pursuant to section 7 of the 2004 Act. I will inform the committee later on the activities during 2013 and 2014.
The ombudsman is appointed by the President on the recommendations of the Government. Open competitions were held by the Public Appointments Service in 2005 and 2012. I was appointed to the office in November 2012 for a term of three years. The Ombudsman Association, which is an international umbrella organisation for ombudsmen, has recommended consideration of a minimum term of five years for all ombudsmen. I would commend that recommendation to the committee for its consideration.
I wish to say a brief word about the internal military complaints system. A formal redress of wrongs-complaints system is provided for in the Defence Act for serving members of the Defence Forces. This has been in existence since the foundation of the State under earlier legislation. It reflects the unique circumstances of members of the Defence Forces in society. Soldiers are citizens who have volunteered to serve. They retain all their constitutional rights. By joining the Defence Forces, however, they voluntarily submit themselves to a uniquely strict code of military law and discipline. The formal complaints system provides a key component of personal rights protection for soldiers.
Complaints should be resolved at the earliest possible opportunity. Every complaint under the redress of wrongs system is notified to my office as an oversight body and recorded on our case management system. The Minister agreed earlier this year to provide me with additional information regarding the nature of each such complaint, and this will improve my oversight of the internal military system. I have also proposed a strengthening of the independence of military investigation officers appointed to investigate and report on complaints under the redress of wrongs system. I received a copy last week of draft proposals for the revision and amendment of the redress of wrongs system on which I will respond to the Department of Defence shortly. The Office of the Ombudsman for the Defence Forces was created as a result of protracted lobbying by PDFORRA and as an acknowledgment of the need for a transparent, external, independent and rigorous procedure to deal with complaints across the Defence Forces. In the case of complaints against a civil servant, I believe that there ought to be established an internal, time-limited departmental complaints resolution procedure or process with an appeal for unresolved complaints to be sent to my office.
I will say a few words about my jurisdiction. I have jurisdiction under section 6 of the 2004 Act to hear complaints from serving and former members of the Defence Forces. The complaints must concern actions taken by either a serving or former member of the Defence Forces while serving in the Defence Forces, or by a civil servant in the Department of Defence. Interestingly, the word "action" is defined in the Act as including "a failure to carry out an act or make a decision". Complaints must be made not later than 12 months from the date of the action concerned or the date on which the complainant became aware of the action, whichever is the later. There are no exclusions to complaints under the internal redress of wrongs system except a small provision with regard to military justice decisions.
I am inclined to suggest to the committee that consideration should be given to adding some such restrictions to the redress of wrongs system to limit multiple jurisdictions dealing with the same matters. As ombudsman, for example, I am precluded from considering complaints on a list of matters included in section 5 of the 2004 Act. There is also provision in legislation to ensure complaints referred to me are not also referred to the national ombudsman and vice versa. I recommend to the committee that section 5 exclusions should be reviewed. A simpler unified system could be provided with a greater degree of consistency between the provisions of the Defence Act and the 2004 Act. Complaints regarding matters which are clearly administrative actions in some of the excluded areas could and should be included within my jurisdiction.

On a comparative basis, I should tell the joint committee there are three models for military ombudsmen throughout the world. The first one is where the ombudsman is integrated within the armed forces, which sometimes is referred to as an inspector general. This probably is the oldest form of military ombudsman extant and it still is operational in some countries. Indeed, the Defence Act in Ireland contains a provision for the appointment of an inspector general. The second such model is one in which the ombudsman has exclusive jurisdiction over the armed forces and the third is where oversight of the armed forces is subsumed into the functions of a general ombudsman. In 2004, Ireland opted for the appointment of a civilian ombudsman, entirely independent of the Defence Forces and the Department of Defence, with exclusive jurisdiction over the Defence Forces, that is, the second of the three models I mentioned. We share this arrangement with Austria, Canada, Germany, Norway, South Africa, the United Kingdom and, more recently, Bosnia-Herzegovina, all of which have similar-type military ombudsmen. Independence is of critical importance for an ombudsman. International standards show that the primary indicators of independence for ombudsmen are being independent of government and of those they are appointed to oversee. I am satisfied the 2004 Act contains appropriate statutory provisions providing for the independence of my office along those lines.
I now wish to turn to some statistical data. Since 2010, a total of 372 complaints have been notified to my office and since my appointment as ombudsman, more than 200 complaints have been notified to me and more than 70 cases have been appealed to me for detailed review and investigation by my office. I should state that the ongoing High Court proceedings throughout 2013 had an impact on the number of cases that could be dealt with by my office during that time. In November 2012, the aforementioned High Court proceedings were initiated, challenging my appointment as ombudsman and on 21 November 2013, Mr. Justice Hedigan delivered his judgment in the High Court. His judgment ran to quite a long number of pages but I will summarise it under three aspects. First, he stated that nothing precludes a former member of the Defence Forces from holding the post of Ombudsman for the Defence Forces. Second, he stated the appointment of a former member of the Defence Forces does not give rise to a reasonable apprehension of bias. Third, he held the Minister for Defence did not act ultra viresin deciding that the office of Ombudsman for the Defence Forces should be part-time. I should advise the joint committee that this decision is under appeal to the Supreme Court.
I already have made some recommendations to the joint committee with regard to the powers of ombudsmen in general. I have noted the proposal of the national Ombudsman to the joint committee that his appointment be made a constitutional one and I would support such a development in his case. As for the extension of the powers of ombudsmen generally, I have three further recommendations I could make to members if they so wish. This concludes my presentation to the joint committee.