Deputy C. Lenihan: It is not. We are talking about saving money on an election.

Chairman: The committee has no role in deciding whether a referendum should be held. That is a decision that has to be taken elsewhere. We have to ensure that when a referendum is held the money spent is used in an efficient and effective way and in accordance with due procedure. That is our job.

Deputy Durkan: The spending of money and the purpose for which it was spent is a matter which comes within the ambit of this committee. I propose - I hope the Chairman will agree - that we make contact with the Committee on the Constitution with a view to ascertaining the optimum method of dealing with these situations having regard to the fact that it is the putting of the counterpoint that has brought this about. That is what it is all about, putting the opposite view. I reiterate what has been said. One of the complaints made by the general public was that they could not understand the information. There was a greater volume of voting in the Northern Ireland referendum which was held simultaneously. The reason for that was that people complained they could not understand what the referendum was about.

I find it difficult to understand what one can do to explain the situation. It is obviously complex. One can explain it forever and spend all the money one wishes trying to explain complex issues and people will still not understand. That is not the fault of the commission or the people. We simply put the points of views and let the people make up their minds.

Chairman: I think it is probably the fault of European-----

Deputy Durkan: We are looking at that too. I suggest we make contact with the Committee on the Constitution.

Chairman: Perhaps we could invite the Chairman of that committee to come and talk to us in the autumn.

Deputy Durkan: That is excellent.

Chairman: We will invite Deputy Brian Lenihan to come and talk to the committee about the costs involved.

Deputy Durkan: Will we allow his brother to ask him questions?

Chairman: We will ask Mr. Mac Kernan to take responsibility for reporting back to us by 15 November. If you require any further clarification you may contact me.

Deputy McCormack: I think the official was preparing the figures on the percentage of voting in the Amsterdam referendum.

Mr. Whelan: The turnout was 56%.

Chairman: What was the percentage turnout in Northern Ireland?

Mr. Whelan: That figure was for both.

Deputy McCormack: No, that is not the figure I am looking for. I am looking at the number of people who voted in the Amsterdam referendum compared to the number of voted on the Good Friday Agreement. The figure is different because many people did not vote in the Amsterdam referendum.

Chairman: They spoiled their votes.

Deputy McCormack: They did not cast their votes at all. We were able to research it in the newspapers ourselves.

Chairman: We are getting a little bit flippant.

Deputy McCormack: We are not, Chairman. I resent that remark. We are not getting flippant. If we spend £4.3 million promoting referendum I am quite entitled to know what success that expenditure had in making people clear about how they wanted to vote. I do not think it had the success desired because a large number of people did not vote in the Amsterdam referendum. Despite all the publicity and literature they received they were more confused. I have heard that from voters in my own house.

Chairman: It is not a point for this committee. We have made a decision in that respect. We will note paragraph 5 and Vote 38, Department of Foreign Affairs.

Before we proceed I should like to state that I received an e-mail yesterday from your Department telling us that there are 2,768,653 Irish passport holders, worldwide, of whom only 2,023,926 live in the State. That means there are 745,000 living outside the State. Does Northern Ireland represent a very big part of that?

Mr. Mac Kernan: I would say Britain and the United States and various places like that. It would include Northern Ireland, I am sure.

Chairman: It is a very big number, 740,000. I suspect it is bigger than any other European Union state. Is it bigger?

Mr. Mac Kernan: I could not answer that. Many people in Europe do not need passports to travel so it might not necessarily be the same.

Chairman: They do not need passports to travel within the EU.

Mr. Mac Kernan: What emerges from this is that a very large number of Irish people hold passports, by comparison with citizens of other countries. For example, probably fewer than 10% of Americans have passports. It is a big country and they do not travel outside it. The number is very high for Ireland and many people who are entitled to Irish nationality, whether they are living in England or in Northern Ireland, want to have Irish passports although they are entitled to both. People in the United States who have Irish nationality have for some time been permitted by American law to travel on Irish passports when travelling abroad, but not for returning to the United States. Many of them hold Irish passports. It is a matter of sentimental attachment.

Chairman: Is there a breakdown, per country, of this 745,000?

Mr. Mac Kernan: We could probably do that but it would be-----

Chairman: I wondered if it was readily available.

Mr. Mac Kernan: I will inquire.

The witness withdrew.

Chairman: The Office of the Ombudsman includes the Public Offices Commission and the Office of the Information Commissioner. Mr. Whelan, did you want to make some opening remarks?

Mr. Whelan: No, Chairman, I have nothing to say at this stage.

Deputy Durkan: A report is published every year. We have become familiar with the number of reports published by various commissions and bodies which are now a way of life. From where does the greatest number of questions come to the Ombudsman's office?

Mr. Whelan: Until recently our major client was the Department of Social, Community and Family Affairs but that is no longer the case. The number of complaints against that Department is declining, for all sorts of obvious reasons.

The local authorities are now our single biggest client. We group all local authorities together. We get more complaints about local authorities than any other area.

Deputy Durkan: To what extent are these complaints upheld?

Mr. Whelan: About half the people who come to us are better off as a result of coming to us, which means we either fully or partially resolve their difficulties.

Deputy Durkan: What about Government Departments? I recall the Departments of Agriculture, Food and Rural Development and the Environment and Local Government featuring heavily in queries?

Mr. Whelan: The number of complaints against the Department of Agriculture, Food and Rural Development has increased in recent years. The number of complaints against the Department of the Environment and Local Government is quite small. We do not have more than 20 or so every year.

Deputy Durkan: Do references come from public representatives or from private citizens?

Mr. Whelan: In the main they are from private citizens but complaints are also referred to us by public representatives.

Deputy Durkan: I have, on occasion, referred to the Ombudsman's office and I cannot recall any query being resolved to my satisfaction. That does not mean my point of view was correct, nor does it mean the Ombudsman's view was correct. Is there a bias towards or against the categories of people who make referrals?

Mr. Whelan: Absolutely not. The Ombudsman's function is to see if any maladministration is involved. It is not his role to get things for people. He is there to ensure that public bodies have acted correctly and to see if there is substance in the complaint made by an individual.

Deputy Durkan: Do many cases end up in court after the Ombudsman's office has dealt with them?

Mr. Whelan: Very few, to our knowledge. Sometimes we might not know if someone took a case afterwards but in general, no. If people have already been to court they cannot come to the Ombudsman. The Ombudsman cannot act as a court of appeal against such decisions.

Deputy Durkan: What is the average time taken for the consideration of a query?

Mr. Whelan: We deal with approximately 60% of our complaints within a four month period. Some of our complaints take a very long time - a year or even two. Equally, some are disposed of almost immediately by just turning them around.

Deputy Durkan: What would be the cause of a case taking a year or more to resolve?

Mr. Whelan: There can be a variety of factors. The most obvious one is that the public body refuses to accept our point of view on an issue. It might resist what we propose. In that case we might have to start an investigation, which is a lengthy process. The other cause for a lengthy timescale is that the public body is not in a position to resolve the matter very quickly. For example, last year and the year before we published reports which dealt with claims from people for full retrospection on contributory pensions, which they had not claimed in time. This issue took several years to resolve because the Department's initial position was that the matter was covered by regulation and was out of the Department's hands. Three years ago we took a fresh look at this and initiated an investigation, as a result of which the Department reviewed the regulations and the issue has been resolved. That issue called for much tenacity and effort.

Deputy Durkan: I am familiar with that file. I also assume that other contentious issues of a similar magnitude arise in the Ombudsman's office. Does the office have the resources, time and commitment to pursue every case with the same degree of investigative prowess?

Mr. Whelan: We have the resources. Any Department or office would welcome more resources but I do not make that case. The office is adequately resourced. The difficulty lies, not so much with the resources within the office as within the public bodies with which we deal. In some cases they are not adequately resourced to deal with the issues coming before them. A case in point is the planning area where, as you probably know, there are a lot of vacancies in local authorities and where we find that issues, particularly in relation to planning enforcement, are quite difficult for us to deal with. It is a question of where local authorities' priorities lie at the moment. As you know, there is a lot of development work under way. People who complain to us about lack of planning enforcement are finding that local authorities are not devoting enough time, effort and resources to the issue. It can be very distressing for people to find that a development has been put in place that it is not complying with conditions set down in the original planning permission and that they do not get a very sympathetic ear from the local authority. We, in turn, find, when we go to tackle the issue, that it can take the local authority many months to take action, if at all.

Deputy Durkan: That is about compliance.

Mr. Whelan: Of course.

Chairman: What do you do about that? Do you accept that?

Mr. Whelan: No, we do not. This is the reason some of our investigations take such a long time to complete. We look at the development, do on-site visits, talk to the complainant and explore all the options open to the local authority, including the taking of a court action. Of course we are not the ones who can initiate such an action; this has to be done by the local authority. Even if we were to recommend that a court action be taken, to some extent we are in the hands of the local authority as to when it will initiate it. It is not as simple as a case where somebody is denied a benefit-----

Chairman: Is it not open to you to make an award against the local authority for failing to discharge its duty so as to bring the matter to a head?

Mr. Whelan: It is open to us to make an award of compensation to the complainant. It is a difficulty at which the office is looking to see whether we should take a generic approach to it. As you know, we have done this in the recent reports on pensions and local authority housing loans. The Ombudsman and I are of the view that the planning area and planning enforcement are now reaching quite a serious stage and something about which-----

Chairman: Yes, but the point is that if you take an easy approach to it, from experience, local authorities will use all the excuses - lack of resources, etc. - whereas if you take a penal approach in one or two cases, they will find a method to implement the law. The ongoing DIRT inquiry is about the same issue, not implementing the law. You have a duty to ensure the law is implemented.

Mr. Whelan: Absolutely. I agree with your comments. However, we must remember that the Ombudsman's powers relate to the making of recommendations to local authorities which, as you know, they are free to accept or reject. We have never run into a situation where they have rejected a recommendation, but it is an area where it is quite difficult to get concrete results.

Deputy Durkan: To whom do you relate in the planning authority? Do you relate to the development control officer? Most local authorities have a development control officer who is responsible for this issue.

Mr. Whelan: We deal with a whole range of local authority officials, including the county manager and county engineer. We interview staff at whatever level is appropriate.

Deputy Durkan: Surely it should only be necessary to interview one person - the person with ultimate authority-----

Mr. Whelan: Yes, we do that-----

Deputy Durkan:-----the accounting officer, whoever that may be.

Mr. Whelan: We interview the people who take the decisions at the appropriate levels relevant to the complaint in question, including the county manager, planning and housing officers, as the case may be. What we try to do in a particular case is track the decision making process through the local authority. This means that a whole range of officials may have to be interviewed. We then make our report and recommendations.

Deputy Durkan: That is a laborious and inefficient way to go about it. The person you should deal with in all such cases is the accounting officer who has ultimate responsibility. That person determines what happens throughout the system.

Deputy C. Lenihan: I am glad to hear that the Office of the Ombudsman is looking at the possibility of adopting a generic approach to the issue of non-enforcement of the planning Acts, an issue which has been raised with me in my constituency also. When there is no enforcement a series of corrosive rumours starts with the person who has made a complaint. He or she begins to believe or suspect that there is corruption within public administration. At a time when confidence in the planning system is at such a low ebb it is vital that this issue is invigilated closely by your office. It starts with a series of invidious rumours and suggestions, which in some cases are utterly wrong, about what planning officials are up to, that in some way they are conniving with those building illegal developments and are not prepared to enforce the planning Acts. There is a belief that there is corruption within local government, that there is a nod and wink operation in local authorities whereby if one is a friend of an official there will be no problem in getting an illegal development through as one can seek retention within a few years and everything will be hunky-dory. If the planning Acts are not enforced, the consequence will be that public administration will be brought to a very low ebb.

Chairman: I know exactly what the Deputy is saying, that is also my experience. People in my constituency believe that officials are not the only ones who are not enforcing the law. They also believe that public representatives are not enforcing it. What I am sensing from you, Mr. Whelan, is an acquiescence and acceptance of the explanation of staff shortages, which is always given as an excuse, even when this is not the case.

Deputy C. Lenihan: This precedes the current shortage in planning departments. It goes back three or four years.

Chairman: Why do you not take exemplary action in a few key cases and make an award to members of the public to force managers to act and not lie behind the excuse of staff shortages?

Mr. Whelan: I do not accept that we are acquiescing in this matter.

Chairman: That is the perception among the public.

Deputy C. Lenihan: I think what the Chairman means is that by inference almost everybody involved in public administration is accused of failing to act. It, therefore, brings public administration, including the Office of the Ombudsman, into disrepute.

Mr. Whelan: I do not accept that we are acquiescing in this matter. I pointed to staff shortages merely as an indication of our frustration in trying to deal with it. I echo what the Chairman and Deputy Lenihan have said. People come to us and allege that the system is corrupt because neighbour A has received planning permission while neighbour B has not. It is an issue about which we are very concerned and it is being tackled. In no sense are we acquiescing or complying with the view of local authorities. It is an issue with which we are grappling and I hope we will have some announcements to make in relation to the planning issue in the coming year.

Chairman: Planning enforcement is often an urgent matter. If the law is not enforced, in many cases where something is built or knocked down or a use is established without permission one is faced with a fait accompli. The rights of neighbours are often eroded and they have no means of having them upheld. They ought to have recourse to the Office of the Ombudsman. What you seem to be suggesting is that while it does the best it can, because of staff shortages, the Office of the Ombudsman cannot uphold people's rights. This is a serious matter.

Mr. Whelan: I refer you to the Ombudsman's 1999 annual report which includes cases in which we uncovered serious planning issues and sought redress for the individual complainants. I cannot accept the assertion that we are not doing anything in this area; we are, but it is a complex area. It is not amenable to quick solutions which are available in the case of a person who has been denied a benefit and where such a benefit can be restored, which is a quick and easy solution. Planning is a different area. It is not of our making that the law in that area is so complex or that local authorities are required to take court action, which can be a cumbersome operation, but we are devoting a lot of resources to this at the moment.

Deputy C. Lenihan: The office might think of adopting a generic approach to dealing with these complaints. I would be interested in the methodology it will adopt to deal with them. When Mr. Whelan talked about adopting a generic approach to dealing with the local authorities on this specific issue, is he talking about making it a bigger priority? What does he mean by that statement?

Mr. Whelan: What I mean is that ultimately we would make recommendations covering all local authorities or a number of local authorities in the planning area and that we would also draw this to the attention of the Department of the Environment and Local Government, which has an overseeing role, with a view to trying to tackle some of the barriers, as we see them at present, to effective planning enforcement. I cannot really go further than that at present because I am only telling you how we will approach the issue. You could tackle it on a piecemeal basis, but we will not do that. We think it has got to such a stage that it would be better if we brought these issues to the attention of the Department and the local authorities with a view to getting long-term improvements.

Deputy C. Lenihan: You say it has got to such a stage, in other words, you have been dealing with these complaints piecemeal to date. Are you saying there is accumulated evidence from the caseload, on which you cannot give a percentage, that planning enforcement is a serious issue? What has made you change the approach and make recommendations to tackle the barriers to effective enforcement? Could you indicate the number of cases involved?

Mr. Whelan: I will get the figure for last year and tell you how many we got.

Deputy C. Lenihan: Specifically on planning enforcement.

Mr. Whelan: Planning enforcement is one of the major areas of complaint within local authorities and has been for a number of years. We are conscious of the issues the Deputy and Chairman have raised. People have come to us and told us they no longer have confidence in the way the system operates. While we have no direct evidence of this, there is a perception that a lot of decisions on planning by local authorities are one-sided, ad hoc or whatever. Confidence in the system needs to be restored. We are only one of a number of organs who can play a role in this, but the Ombudsman is keen to tackle this area. I will give you those figures. Last year we had a total of 737 complaints against local authorities and of those 111 were planning enforcement issues.

Deputy C. Lenihan: What is that in terms of the percentage of complaints received?

Chairman: What was the total number of complaints made to the Ombudsman last year?

Mr. Whelan: The total number was 3,986.

Chairman: Of which 737 were made against local authorities.

Mr. Whelan: Of which 111 were planning enforcement issues.

Chairman: About one-fifth.

Mr. Whelan: A total of 111 were planning enforcement issues, which is about one-seventh.

Deputy McCormack: Most of the discussion has related to planning enforcements. Does the office's jurisdiction allow Mr. Whelan to deal with discrimination in planning whereby one planning officer might interpret the legislation one way and another might interpret it in a different way, given, as Mr. Whelan said, the high turnover of staff effectively means planning officers move every few months? What other aspects of planning can he deal with besides planning enforcements?

Mr. Whelan: Can I say what we do not deal with?

Deputy McCormack: Yes.

Mr. Whelan: We do not deal with the grant of planning permissions or the failure to grant planning permission. That is an issue for An Bord Pleanála. The two main areas of planning with which we deal are planning enforcement and the administration of the planning system. We get cases from time to time where a local authority has failed to notify an objector that a decision has been made to grant planning permission with the result that the objector loses an opportunity to appeal, in the first instance, to the local authority and then to An Bord Pleanála. That is an issue in which we can and do get involved. We have recommended compensation in particular cases where individuals have lost the right to lodge an objection and those recommendations have been accepted by the local authorities concerned.

Deputy McCormack: I accept that. Mr. Whelan touched on the issue of discrimination in terms of different interpretations of planning legislation. If a person gets planning permission to build a house at the end of a road facing the sea and then a new planning officer decides that another person who seeks permission to build a house 200 yards from that house can only build the house parallel to the road, is that a discrimination with which Mr. Whelan can deal, given that those decisions were made based on different interpretations of the legislation by the planning officers?

Mr. Whelan: We deal with issues where discrimination is alleged. We get involved in cases where like cases are not treated in a like manner. In the planning context, we deal with issues that arise in relation to the areas I mentioned, planning enforcement and the administration of the planning system. The granting of planning permissions is not within our jurisdiction.

Deputy McCormack: Does the office get involved in investigating a case where discrimination is alleged even though it cannot affect the result of the planning decision?

Mr. Whelan: Yes, we could. A case like that has not been specifically put to us, but from the complainant's point of view, the problem there would be one of seeking some other form of redress because we cannot recommend the granting of planning permission as it is outside our jurisdiction.

Deputy McCormack: It would be useful for future applicants if the office could establish that such a planning authority discriminated even though the office could not affect a decision. No one, except the planning appeals board, can affect a decision and if it has gone past that time within which an appeal can be made, no one can affect a decision that has been made. The office gets the greatest number of complaints about planning on planning enforcement issues and it can deal with them directly. As public representatives, we get many complaints on planning enforcement issues, but we also get many on discrimination in planning decisions, which may not necessarily be made to the Ombudsman's office as the effect of the decision cannot be changed.

Mr. Whelan: Yes, I would say that is quite likely.

Deputy McCormack: The office can investigate such issues.

Mr. Whelan: We can investigate questions of discrimination, but we would also have to look at whether we can affect the outcome of that discrimination by way of recommending appropriate redress from the point of view of a complainant and within the limits of our jurisdiction.

Deputy C. Lenihan: That office cannot award compensation in that case, or can it? If I bought an corner site for an in-fill development and was refused planning permission for it and my neighbour across the road got permission for a similar development, would the office award me compensation? I do not know if the office has received complaints of that kind. I would be interested to hear the type of complaints it gets in this area, as I receive many such complaints from constituents. If I applied for the in-fill and I was refused, but I can prove to the office that my neighbour across the road, who was in a similar situation, got permission, can I be compensated for the costs I incurred in architects' drawings? Can the local authority be levied for the costs I incurred if I then discovered that I had been treated differently from my neighbour across the road? Can it be recommended that I get compensation for the costs? I am not suggesting that the decision should be reversed - that is obvious - but could the local authority be told to pay me compensation for the costs I incurred in seeking permission given that I was obviously treated differently? Can I get compensation?

Mr. Whelan: As a general principle, if I can talk in general terms, yes, we can award compensation where people have gone through time, trouble and effort unnecessarily in order to get a particular benefit or right. However, I will repeat my remark about the planning permission. It is not an issue-----

Deputy C. Lenihan: No.

Mr. Whelan: -----in which we can get involved. However, the secondary issues or adverse effects, if I can call them that, around the time and trouble one expends-----

Deputy C. Lenihan: What would be the situation if I asked the office to investigate a position where permission was given in one case and refused in another and I went to the expense of applying but failed? No matter what way it is presented, some administrative discrimination must be going on relative to my application compared to my neighbour's application. Can the office do anything substantive for me in such a situation? Can I get compensation because the local authority mucked me around?

Mr. Whelan: In so far as the local authority would be responsible, yes, we could look at that. We would look in particular at whatever procedural deficiencies, if any, were there in relation to how the application was handled but not, of course, the merits of the planning decision itself. If we felt that, within these parameters the complainant had suffered some adverse effect, for which the local authority was responsible, yes, we could then look at the question of compensation or some other form of redress. It is very difficult to prejudge-----

Deputy C. Lenihan: I appreciate that.

Mr. Whelan: What we are talking about here really is the administration of the planning system as opposed to the net issue of the decision itself. This is an area that we can deal with.

Deputy C. Lenihan: The office can get into that area. Can Mr. Whelan tell us typically the type of cases with which the office deals in the planning area?

Mr. Whelan: We had a very interesting case in the recently published annual report relating to Donegal County Council where planning permission was given for a particular house. The house was eventually built with substantial alterations to the original plan and there were objections from a number of people in the neighbourhood about that. Our view was that it was more than just a simple modification of the original plan and that a new planning application should have been insisted upon by the county council. As it had failed to do that, we recommended compensation to a number of people in the local area who lost the opportunity to object were such a planning application made. The house was built without any publication or recognition of the fact that it was not built as planned.

In the report, the Ombudsman said he would take a very critical approach in the future if similar cases come to light in Donegal or any other local authority. This kind of thing undermines confidence totally in the planning system where somebody does get a planning permission but then does not abide by it in building the structure.

Deputy C. Lenihan: There appears to be a particular community who specialise in building these unauthorised type of developments. However, people who neighbour this community would be refused permission for similar additions to their homes.

Mr. Whelan: Precisely - that is the perception.

Deputy C. Lenihan: That is good to hear.

Chairman: Mr. Whelan, has any issue been raised with you as to the constitutionality of the limits on election expenditure?

Mr. Whelan: No, not that I am aware of.

Chairman: Is there any process for complaining about money being spent on opposing rather than advocating a candidate?

Mr. Whelan: I do not know the answer to that off-hand. If the Chairman wishes, I will get that information for him.

Chairman: In my personal experience in the last general election, when controls did not apply, a group came out of the blue to oppose me on the issue of the route of the Luas through my constituency. It was entitled to do what it did and it spent much money opposing my candidacy. It put up posters and distributed leaflets, etc. It occurs to me that in the next election, if that happened, I would not be able to respond because of the limits and that a budget has already been prepared in terms of the items on which money will be spent. Would it be constitutional to stop them doing it? My own view is that it would not. Is there a limit?

Mr. Purcell: Again, I must wear one of my other hats as a member of the Public Offices Commission. As I understand it, it is a complex area. However, I can certainly say that the commission has not had any formal complaints of the nature the Chairman mentioned. There are limits on expenditure by candidates or organisations that campaigned what we might call negatively and they cannot incur any expenditure, as I understand it, unless they register with the commission. Their expenditure also would be subject to certain limits as laid down in the legislation.

Deputy C. Lenihan: I discussed this matter informally with the Comptroller and Auditor General previously and I am intrigued by this suggestion. Is it possible for a citizen to stand up and establish himself or herself through the commission and meet all the obligations as the Chairman suggested? If I want to stop the Chairman's campaign in the next general election, is it open to me as a citizen to spend up to £17,000, which is the limit in a four or five seat constituency? Am I totally free to spend £17,000 blackguarding the Chairman, Deputy Mitchell, in the next election? This is a serious issue. I would not even have to be a candidate.

Chairman: It is very serious.

Deputy C. Lenihan: The Chairman's occupation before he entered politics was in the brewing industry and in Guinness. Could I set up another group to start a campaign to stop Guinness employees getting into the Dáil and spend another £17,000 doing down the Chairman? This is most important and should be clarified.

Chairman: This is where I think the limits are bound to be found unconstitutional. Citizens must have the right to oppose anybody's candidature on the grounds that they do not agree with their policies, etc. I do not think it can be restricted. Anybody can set up an organisation or act as an individual. Is Mr. Whelan suggesting that an individual does not have the right to spend his or her money opposing a candidature? If so, that would be a very direct attack on freedom of expression.

Mr. Whelan: I can see the point.

Chairman: If several organisations or individuals do the same thing, can a candidate's right to respond be restricted?

Mr. Whelan: I am not aware that any problem has arisen. As the Comptroller and Auditor General said, no complaints have been made to date about this issue.

Chairman: It has not arisen yet. We did not have them in the last general election.

Mr. Whelan: No.

Chairman: The next general election will be the first-----

Mr. Whelan: It will be the first time.

Chairman: From my direct experience in the last election, I had to put out two or three extra leaflets that I had not planned to respond to the misrepresentations of my position on the Luas line. I am not suggesting that the people who misrepresented did so deliberately, but they perceived me as having a particular view and they thought it serious enough to campaign against my candidature. They were entitled to do that, and that is the essence of freedom of expression and democracy. However, I had to spend more than I planned because I had to put out extra leaflets to explain my position and rebut their assertions. If that happened in the next election, I would not be able to do that.

Deputy C. Lenihan: In the local elections, a particular candidate that I know was denounced from the pulpit and through a parish newsletter by a parish priest. He had to do exactly the same as the Chairman. He had to rush out a leaflet countering the parish priest's assertions which were printed in the parish newsletter. If that happened the Sunday before polling, what is one meant to do? One cannot picket the church the following Sunday because the election would be over.

Chairman: I would be strongly of the view that the legislation is unconstitutional. I cannot see how one can limit a citizen's freedom of expression to oppose a candidate. It follows from that that one cannot restrict candidates from responding. This is a major issue.

Mr. Whelan: I will bring your comments, Chairman, to the attention of the commission and perhaps it will follow them up.

Chairman: I had this experience in the last election and it affected my vote to some extent in a particular area in what was a marginal seat. I do not know if the people concerned were connected with any other candidate, although they did not appear to be. They appeared as soon as the election was called. I had not heard of them before the election and I have not heard of them since it. They spent a lot of money on three types of posters which were put up on lamp posts with my photograph and with reasons why people should not vote for me. Free leaflets were also distributed. If that happens the next time, I will not be able to respond because of the limits imposed on me by the law and my party.

Deputy Durkan: A person in such a situation should have the right to bring it to the attention of the commission at the time. It would then be a matter for the commission to take action against the perpetrators. The responsibility would fall on the commission.

Chairman: What are they doing that is illegal?

Deputy C. Lenihan: Once they register, they are all right.

Deputy Durkan: If a person is caught in a situation similar to that outlined by the Chairman and he or she cannot respond without breaking the law, it should be a matter for the commission to deal with it.

Chairman: What would it do?

Deputy Durkan: That is a matter for it. I am not suggesting what the law should be.

Chairman: The commission cannot have a role in suppressing people's right to freedom of expression in opposing a candidate.

Deputy Durkan: I agree. However, the law can also be foolish at times.

Chairman: That would attack the most fundamental rights of citizens.

Deputy C. Lenihan: That right under the Constitution has now been circumscribed by the commission because a person is not allowed to express his or her dissent against a particular candidate unless he or she registers with the commission. That could be seen as unconstitutional interference.

Chairman: That only applies to organisations. Individuals are not circumscribed. Am I right, Mr. Whelan?

Mr. Whelan: I am not sure. I can check it out because I do not have the details with me.

Chairman: We cannot limit the right of citizens to freedom of expression. I am concerned that as a result of many recent comments on all the scandals we are being pushed to tackle fundamental rights without thinking of the consequences. I do not think we can limit an individual's freedom of expression, particularly if he or she feels strongly about a particular candidate or opposes his or her views on money lending or abortion.

Deputy Durkan: I agree. However, given the situation in which public representatives are placed, the only recourse they have is to bring the matter to the attention of the commission. It is then up to the commission, given its responsibilities, to deal with it. I accept it is an impossible situation but that is the way it is.

Chairman: How long would it take the commission to deal with it? What can the commission do about a person who is exercising his or her fundamental constitutional right to oppose a candidate? Even if an organisation was breaking the law towards the end of the campaign, one is faced with a fait accompli. It may have a decisive influence on the outcome of the election. A person could lose or gain a seat. I am almost certain that a court challenge would succeed on the basis that it is unconstitutional to restrict a person's freedom of expression. It is lopsided against candidates. I can see where it would be in the interests of political organisations to have friendly names oppose another candidate without being directly attached to the party. The issue is as unsatisfactory as the referendum commission.

Deputy C. Lenihan: A person could come under friendly fire as well.

Chairman: Friendly fire is often more persistent than enemy fire in an election, given our multi-seat constituencies. I do not know if it is an issue which needs to be addressed politically or if the commission should get advice on whether expenditure of individual citizens against the candidate can be restricted.

Mr. Whelan: The Standards in Public Office Bill has been published in the past week or two. I understand it will be before one of the committees of the House. That may provide an opportunity to address that issue.

Deputy Durkan: We discussed in great detail similar legislation and we were given to understand that certain criteria would apply. However, that does not necessarily follow.

Chairman: We note Vote 17.

The witness withdrew.

Chairman: We now move to Vote 3 for the Department of the Taoiseach. Do you, Mr. Gallagher, want to say a few words on the Vote?

Mr. Gallagher: No, thank you, Chairman. I have already spoken on paragraph 5.

Chairman: As the new Secretary General of the Department of the Taoiseach, what do you see as the role of the Department?

Mr. Gallagher: There are different responsibilities. We have particular responsibilities in specific areas. The Department of the Taoiseach has an overall co-ordinating and prioritising role. We would and should not duplicate the resources elsewhere, but we would take an overview. We should have a role in prioritising. A good example of that is the European Union where there are now four European Councils per year and where more heads of state and governments have a direct role in deciding policy, setting out policy goals and strategies and dealing with the most complex and difficult issues which cannot be resolved at Foreign Minister or individual Minister level. We produced a strategy statement for the years 1998 to 2001. There is a mission statement of the mandate of the Department of the Taoiseach which provides the context for what we do.

I have just arrived in the Department. Over the past three years I have dealt exclusively with Northern Ireland and the Good Friday Agreement negotiations. I also spent a significant amount of time abroad and at home and I dealt in large part with Northern Ireland over the years. I was the only one at the Sunningdale talks in December 1973.

I wanted to give you a sense of the overview in my own words. It is reflected a little in the proposal you made earlier to unblock the difficulty that you, the committee and the Comptroller and Auditor General identified in the case of referenda. You correctly suggested that the Department of the Taoiseach should play the lead role in producing that report for the committee.

Chairman: Do you see the Department having a lead role in co-ordinating activities which affect a number of Departments?

Mr. Gallagher: Yes, I do. I am not talking about duplicating or co-ordinating where it is not necessary. I come back to the European Union. The Cabinet committee is chaired by the Taoiseach and we chair a committee of senior officials. Likewise on Northern Ireland, to give another example, we have a lead role there with the Department of Foreign Affairs. The Department of Foreign Affairs has direct and ongoing daily and hourly contact with the Northern Ireland Office, but we are very much in touch with Downing Street. We co-ordinate policy and chair policy groups in relation to Northern Ireland.

Chairman: It just occurred to me that, as a former Minister in a number of Departments, nobody from the Department of the Taoiseach ever came to my Department on any sort of a regular basis - or any basis - to ask what the agreed objectives for the Department were and how they were being met. In Guinness, which was the only other place I worked, one would have a meeting with the director in charge at the beginning of the year to agree objectives and one would report to him on those objectives on a quarterly basis, to see if the objectives were being met and adhered to, if there were any changed circumstances and so on. No Department does that. I would have thought it was the role of the Department of the Taoiseach to check if Departments are meeting Government objectives, as sort of the head office of Ireland Incorporated.

Mr. Gallagher: I think you are right. The role of the Taoiseach's Department has changed very considerably over the years, from at one stage just being there as a secretariat for the Government to, in more recent years, having a distinctly more directional and prioritising role. That is reflected in, for instance, the fact that twice yearly the Taoiseach gets together separately with each Minister and his team of senior officials. They go through the objectives of the individual Departments - the mission statement - for the past six months, what they achieved and what their strategic objectives are for the coming six months. There is more and more of that.

Chairman: Is the Secretary General also involved in that?

Mr. Gallagher: Yes. We prepare the Taoiseach's brief for that meeting. We are in constant contact with other Departments on a regular basis. The Taoiseach is briefed in preparation for that meeting, where Ministers and their senior officials have to set out what they achieved over the previous number of months and what their strategies and objectives are for the coming period. Of course, each Department has now produced a strategy statement and individual divisions have produced business plans. It is obviously not possible for the Taoiseach's Department to co-ordinate all Government activities and priorities, nor should it because that would be a duplication and a waste of time and resources. However, I feel we have a co-ordinating and a prioritising role. That is reflected at the highest level in those meetings which the Taoiseach has individually twice a year.

Chairman: I am glad to hear that now happens, at least on a six monthly basis. My instinct on how things should be run is that the Secretary General and his management team should appear once a quarter before the Taoiseach and you to answer a number of questions and account for themselves. There are 13 weeks in a quarter and almost the same number of Departments. You could spend one half day per week on it. This is with a view to ensuring and achieving greater efficiency, standards and co-ordination and also learning.

This is the only committee that goes across all Departments and we see that some Departments are far ahead of others in different respects. The innovations and strengths of some Departments could usefully be imported to others. That is something that might be picked up by a central Department like yours.

Mr. Gallagher: I think that is very valuable and sensible advice. For example, we have a monthly meeting on Europe of the senior level officials of Departments. There is probably a monthly meeting of the Cabinet committee on Europe. Other areas on which we take a very lead role and get together regularly with Departments are infrastructure, SMI and economic and social policy, which is an obvious example. However, I think your advice is very good, wise and sensible.

Chairman: The Department of Finance plays a central role, in the sense of approving expenditure and so on. However, there are matters other than expenditure control, such as performance, efficiency, innovation, being up to speed on the latest available technologies, etc.

We discussed earlier with the Office of the Ombudsman the problems in the local authorities. That, ultimately, gets blamed on the Government and, in a sense, rightly so. It is like litter on the streets. People ultimately blame the Government because the Government is doing nothing to get the local authorities to do what they are supposed to do. I would have thought there was a particular role for the Department of the Taoiseach in areas like that, to ensure the law is observed and implemented and that the Departments are as effective and efficient as they should be and are constantly updating themselves.

Mr. Gallagher: That is a very fair point. We have to concentrate on key priorities. However, ultimately, we are in a unique position to take an overview because, sooner or later, everything comes to Government.

Chairman: You agree with everything I say, so maybe my ideas will be implemented.

Mr. Gallagher: Another area in which we take a lead role is the information society. Since coming into the position, and allowing for the fact Northern Ireland has taken up a disproportionate amount of time since I took over a few weeks ago, particularly with the confidence building measure, I have been giving a lot of thought to this.

Chairman: Are there ever meetings of all accounting officers?

Mr. Gallagher: Yes, there is an annual conference. We get away from Dublin and go to Carrickmacross in County Monaghan. I forget the name of the hotel.

Chairman: The Nuremore.

Mr. Gallagher: The Nuremore - it is on the way into Carrickmacross. There is a two day conference of Secretaries General.

Chairman: Of the permanent Government.

Mr. Gallagher: Of dedicated officials who serve the rotating Government.

Deputy C. Lenihan: Is the Department of the Taoiseach well enough resourced to handle the centralising and overview role it now has? It is taking on the information society. One or two Taoisigh had junior Ministers in that Department, which underlines the centralising and co-ordinating role the Department exercises. I am interested to know if the Department has enough resources to do the job, given that the role of Taoiseach is becoming more a presidential, executive one, albeit imposed on a cabinet government system. Does the Department of the Taoiseach have enough resources to fulfil that mandate or role?

Mr. Gallagher: To be honest, I cannot answer that. I am very loathe to go into a new Department and immediately start looking for staff or resources. I would need two or three months before I took a view on that.

Deputy C. Lenihan: Fair enough.

Mr. Gallagher: I have very strong views about places being overstaffed. One of the advantages of the SMI is that everybody will clearly have a full sense of what their job is and what their objectives are. I will come back to that in two or three months time. It would be wrong of me now to-----

Chairman: I agree with you. There are as many dangers with overstaffing as with understaffing. People become very lethargic and bad habits develop. This committee always looks askance when the excuse of understaffing or lack of resources is offered, although sometimes that is justified.

In regard to relations between Government and the Oireachtas and the running of the State generally, does the Department of the Taoiseach have a particular role in the reform of the Oireachtas and improving the effectiveness and efficiency of Parliament in the performance of its role?

Mr. Gallagher: I think in so far as we support the Chief Whip or offer supporting services for him, he has the lead role there. I may be wrong, but I think he may have appeared before this committee recently.

Chairman: He did.

Mr. Gallagher: In so far as we offer support and back-up to him, he would ask for advice, yes, but he is very much the lead player there. Of course, it is something that is very dependent on all-party support.

Chairman: The Taoiseach is Leader of the House. Is there anyone in your Department who looks strategically at the way the country is being run, including the way in which the Oireachtas is run? Do they say, "We are not at the races in some respects and we ought to be modernising or changing these things"? Following the DIRT inquiry it was the conclusion of this committee that all the recent scams, going back to the beef scandal, were contributed to, in part at least, by the lack of performance by the Oireachtas itself in obtaining accountability from the Government and State agencies. There does not seem to be any strategic plan to approach the Taoiseach to inform him that there is a problem which the Government should examine. I am not just talking about the current Taoiseach.

Mr. Gallagher: No, I know exactly.

Chairman: We have a difficulty. Who does one talk to about Oireachtas reform? We know who to talk to about what money we are getting out of the banks as a result of the DIRT inquiry. We know who to talk to about public service reform and auditors, but when it comes to Oireachtas reform we do not know who to talk to. Is it the Ceann Comhairle, the Taoiseach, the Chief Whip or the Whips? Nobody is in charge of it, yet we see this as one of the fundamental problems. I would have thought that maybe your Department would do some thinking on this matter and come up with some suggestions for the Taoiseach, and say, "Look, the general administration of the country needs some revision in this respect and that respect".

Mr. Gallagher: As far as I know, there is an Oireachtas committee on Dáil reform, or a sub-committee of the Committee on Procedure and Privileges.

Chairman: Does anyone know how often it meets? Does anyone remember the last bit of reform that ever came out of it?

Mr. Gallagher: It is a fair question. In the first place, I can best be of help by talking to the Chief Whip to get an overall sense of where things are and what the role of the Department of the Taoiseach might be.

Chairman: I have a particular view that one of the reasons why Parliament is not performing as effectively as it used to, or as it should, is that over the years the Whips have gained excessive control. Things are done for the convenience of the Whips and, although I am not saying that is deliberate, the overall effect is to stifle Parliament. It is not intended, but that is the overall effect.

I will give you some examples. For instance, the Whips submit lists of speakers in every debate to the Ceann Comhairle. I may be told that I am on at 7.10 p.m. so I will go into the Chamber at 7.08 p.m. to speak. I do not listen to the debate and as soon as I have finished I leave the Chamber. That situation has been brought about by the Whips and it is stifling Parliament. The level of debates has fallen because nobody is listening to them. The public see three Deputies in the House, with empty seats and of course the level of cynicism about public life is further enhanced.

There are all sorts of other examples, including rushing legislation through the Houses for the convenience of the Whips. This would only happen rarely in the past when there was an urgent Bill, but now Bills are constantly being timed by a motion which states, "Notwithstanding anything in Standing Orders, the following rules shall apply ..." In other words, Standing Orders - put there to protect the rights of Parliament and to provide scrutiny and accountability, which is necessary in a democracy - are being set aside every day.

If you go back to the Chief Whip to ask him about this you will not get an objective view because the Whips have a particular view. The current system suits them but the good of the country is not the measure against which these things are judged.

Deputy C. Lenihan: An example is that the Taoiseach is far too accountable in our system. Despite his responsibilities in Europe, he has to appear in the Dáil three or four times a week-----

Chairman: Five times a week.

Deputy C. Lenihan: -----to answer brickbats and bouquets alike. It is ridiculous that a chief executive has to spend so much time accounting to Deputies.

Chairman: It is ridiculous. The Taoiseach is in the Dáil five times a week - three times on the Order of Business and twice for Question Time. Should there not be proposals for change in this respect?

Mr. Gallagher: I have been giving quite some thought to the role of the Department of the Taoiseach and my own role, but I had not thought in terms of the organisation of parliamentary business. I thought that was a matter for the Whips and for the sub-committee on Dáil reform, but if you suggest it, I am certainly-----

Chairman: The sub-committee on Dáil reform comprises the Whips, so you will get the Whips' perspective. The Whips are a little club with their own joint needs. I mean no disrespect to them, but Whips do that sort of thing because they have to run the House. Whatever makes it easier for them to run the House will happen, but it disregards the need for accountability, proper processes, and checks and balances in the system.

As a result of the lack of accountability and scrutiny, one will get the sort of scandals that are repeatedly arising in our country. We see this as one of the most urgent necessities to have emerged from the DIRT inquiry and all the other tribunals, if we really want to restore politics and public service to the position they should enjoy in a democratic society.

Mr. Gallagher: Looking at it from outside for a second, if I may, my perception as an ordinary citizen is that there has been significant reform and that the role of committees has been strengthened considerably. The public perception of that has been very positive. That is my own perception and I know many of my friends feel the same way.

Chairman: Leaving aside the Committee on Public Accounts.

Mr. Gallagher: No, I did not specify any.

Chairman: I know, but tell me the notable things that have happened in committees.

Mr. Gallagher: It is an overall perception. I have the sense, to take one example, that the Committee on Justice, Equality, Defence and Women's Rights is very active. The Committee on European Affairs is extremely active. I may be wrong, but I think the Hamilton investigation into the Dublin and Monaghan bombings is likely to go to the Committee on Justice, Equality, Defence and Women's Rights. That is something that would not have happened previously.

Chairman: This committee is in a unique position because we have the agency of the Office of the Comptroller and Auditor General and we span all Departments. Therefore, we are in a privileged position compared to other committees. Where other committees are doing valuable work, very often it goes unreported. That is a wider area, however. Our concern is that something should be done to address the accountability deficit that has arisen, or is now evident, in the Oireachtas. Some driving force should examine the matter. Outside the remit of the immediate problems of Government versus Opposition, which is inevitable, where should we be looking to get to in two years time, given the deficiencies that have been identified?

Deputy C. Lenihan: The Secretary General is in an awkward position. He is new to the job and perhaps he is wondering if there is not an in-built conflict in having the Taoiseach involved in the rights of Parliament. There is an internal creative tension there anyway. As the Chairman said, what the committee is trying to convey is that there needs to be a co-ordinated Government view of reform, not just of e-business and making Government more friendly to the public. There is an argument for a co-ordinated approach from the Department of the Taoiseach, or some other Department, from the top down, taking a co-ordinated view of how they will reform how the House works. That should be done in conjunction with other Departments, in the same way that the information society initiative was co-ordinated. At the apex of the information society is the alleged Parliament which is meant to represent all the information and the grand inquest to the nation, or whatever you want to call it. While your Department is co-ordinating the function in relation to the information society extremely well, nobody is looking at co-ordinating the issue which is at the apex of that, which is the Parliament itself and, as a result, perhaps we are suffering Executive tyranny of one kind or another - I do not know.

That is a philosophical question but the point is nobody is co-ordinating the reform agenda in relation to this House, least of all the House itself. Nobody can pinpoint a Department where this is happening or where there is some element of co-ordination. I am putting it up to the Secretary General.

Mr. Gallagher: I take the argument. The Deputy spoke about philosophy. Philosophically, from where I would come is that the House would regulate its own business and that the Executive, a bit like the Referendum Commission, would stay back from it. I think the arguments that have been put are worth reflecting on seriously.

Chairman: What is disappointing is that nobody - this is what is emerging from this conversation - in any Department is looking strategically at the way the country is run and at the respective roles of the different pillars and at whether they should be reformed in the light of the awful scandals and terrible depression among the electorate about by those scandals. There is no sense of urgency from anywhere that there is a need for reform despite the 11 tribunals, the 16 inquiries being carried out by the Department of Enterprise, Trade and Employment and the DIRT inquiry. Parliament trundles on doing the same thing.

Although it is seven months since the DIRT inquiry reported, the only area in which there is no significant progress is the area of Oireachtas reform. In five months time, we will have a further progress report on several areas and we will see that the DIRT inquiry is achieving things. The law officer is in place, we will have the audit review group's report this week, payments have been made by one of the banks already and we will have a report from the Attorney General on comparing tribunals with parliamentary inquiries and what that holds for the future in terms of more effectiveness, less cost, etc., and more speed in addressing these issues. There is no progress, however, on Oireachtas reform. It would appear that nobody on the Government side, above the Whips, is thinking strategically about this. This committee sees this as very urgent.

Mr. Gallagher: I would be very happy to talk to the Taoiseach. There are major questions there on which we need to reflect but I think the points were very cogently put.

Deputy Durkan: Chairman, I think the points you have made are very relevant and now is as good a time as any to deal with it. It was dealt with, as the Chairman has said, in the DIRT report. Somebody must be the driving force, somebody somewhere must take responsibility for it. There is a number of problems which need to be addressed. It is a question of making the House relevant.

Chairman: And effective.

Deputy Durkan: It must first be relevant to the Members before the public because if it is not relevant to Members and if it is not important for Members to go into the House and to participate in a debate, they will not go into the House and will have no reason to do so. There is a number of reasons for that and they are short and simple and Governments of all persuasions have been responsible. Using facilities outside the House to make major announcement is one of the main factors in reducing the relevance of the House - it is not a primary body. Ms Betty Boothroyd in the UK Parliament called the Government and the Prime Minister to task on that issue a couple of years ago, and she was quite right. She reformed that parliament considerably and attempted to make the House of Commons more relevant. I am not suggesting she succeeded in all she tried to do but she brought about some reform there.

There is another element which needs to be addressed and the Ceann Comhairle's office and Departments have a responsibility in this regard. There is nothing as frustrating to a Member than to put down a series of parliamentary question only to find they are refused for spurious reasons. There is no reason to refuse a parliamentary question unless national security is involved. If the information is available in the Department, why not give it? It may be embarrassing to give it but why not give it anyway? It is information which applies to the Minister and it is important from the Minister's point of view that the information is given. The Chairman referred to the series of tribunals. There are many instances over the years where if parliamentary questions had been answered, the House and the public would have been able to get information and there might have been no need for a tribunal.

The last point I wish to make relates to a particular bugbear of mine. I find it an indignity to go into the House and to listen to a series of speeches produced by scriptwriters. To be relevant and to be a participant, the Member should be able to put into words their thinking on an issue. If they are not able to do that, then they should not be here in the first place. All parties do it. A number of Members stand up and read a script which is prepared. The same person prepares the script for everybody. I cannot understand how that improves the standing of Parliament or the participation and contribution of Members to parliamentary business.

Chairman: Apart from the standing of Parliament, it relates to the effectiveness of how our country is run and accountability in the system to avoid the scandals which so corrode public confidence. Despite the plethora of scandals and the obvious effect they are having on the public, there is no official reaction worth talking about. Does any other Department have a role in this to the extent to which the Department of the Taoiseach should have a role in how we make sure the apparatus of the State is up to the rightful expectations of the people?

Mr. Gallagher: I think there is a very clear message very fairly and cogently put. It is something about which I will talk to the Taoiseach and the Chief Whip in the next couple of days.

Chairman: I would be happy to share some of my more detailed points.

Mr. Gallagher: I would appreciate that because it is clearly a matter of concern.

Chairman: I thank Mr. Gallagher and wish him luck. I hope he will be as successful - I am sure he will be - in his new post as he was in the various posts he has held to date.

Deputy C. Lenihan: I would like to be associated with those comments.

Chairman: We note Vote 3 - the Office of the Taoiseach.

The witness withdrew.

Chairman: The meeting next week will be the last of the current year, that is, the year that commences on 1 September and ends on 31 July. We will deal with the Office of the Revenue Commissioners - 1998 Appropriation Accounts (resumed) - Vote 9; Department of Finance - 1998 Appropriation Accounts - Votes 1, 4, 6, 7 and 12 - Contingency Fund Deposit Account/Finance Accounts; and the National Lottery Fund Annual Financial Statements 1994, 1995, 1996, 1997 and 1998. We will deal with other items which were not dealt with in private session today.

The Committee adjourned at 12.50 p.m. until 10 a.m. on Thursday, 20 July 2000.

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