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Launch of Irish Human Rights Law Review

When Donncha contacted me a few weeks ago to ask me to launch the inaugural issue of the Irish Human Rights Law Review I immediately said "yes" and not just because of his undoubted powers of persuasion as evidenced by the contributions to the Review itself, - but principally because I see this launch today as an opportunity for all of us in the broad "Access to Justice" sector - the judiciary, members of the legal profession, academics, human rights institutions, advocates and think-tanks, ombudsmen and other complaint handling bodies, the Free Legal Aid Centre (FLAC) and last but not least, our hosts today, the Public Interest Law Alliance (PILA). And before I continue, could I commend at this point the pubishers of this book, Clarus Press, and wish them well as they move to get it on to and then off the shelves.

The opportunity that I speak of is to begin the process of not just demystifying human rights but in a sense, and ironically, humanising them - taking them from the arcane high ground of judicial interpretation and academic debate and grounding them in the real world. As Donncha acknowledges in his introduction, human rights activity is often seen as too much time spent on winning arguments about textual formulae that may or may not affect actual outcomes for actual human beings. I see the annual publication of the Irish Human Rights Law Review as an important step in that process. More particularly, in the aftermath of Colm McCarthy's report and his recommendations to turn back the tide on the proliferation of single-function state agencies, I think we all need to look at the intersections rather than the divergences in the work that we do. We live in a small country, true ideological divergences are rare, all of us wish to live in a decent, humane society - the sound of heels been dug in that one sometimes senses through the pages of the Review should be silenced and instead should emerge the harmonious working togther of all the institutions we represent to achieve, again as Donncha, put it, actual outcomes for actual human beings.

But first, a few words about the publication we are launching today. I gather from Donncha's introduction to the Law Review that, in marathon parlance, he reached a "wall" but struggled on successfully to get the Review over the finishing line while all the time trying to cope with - as he rather wistfully says - the infinite distractions of London. We are very grateful that he made it and we congratulate him. As a former editor myself I can empathise with the challenge he faced in bringing together between two covers such a rich compendium of essays and case notes. His task reminded me of that old definition of an editor:

"a person employed by a newspaper whose business it is to separate the wheat from the chaff and to see that the chaff is printed".

Clearly he failed, as the Review contains nothing but the wheat!

The Review attempts, and in my view succeeds, in that humanising of human rights that I spoke of. Eleanor Roosevelt, so involved with the Universal Declaration of Human Rights in 1948 later remarked: "Where after all, do universal human rights begin? In small places, close to home? So close and so small that they can't be seen on any map of the world. Yet they are the world of the individual person". The British Institute of Human Rights has spoken of the need to make human rights "a living, breathing tool that can be used by people who are delivering services and also people who are on the receiving end of them". And in Britain, efforts have been made to train social workers, care assistants and local authority managers in human rights principles and how they might "add value" to public service delivery.

Whether they have been successful or not is an open question. And let me tell you why. A recent conference of the British and Irish Ombudsman Association was addressed by Dame Gillian Morgan, Permanent Secretary to the Welsh Assembly and herself a former GP and Senior Health Administrator. In a presentation entitled "Learning from Complainants" she recounted the experience of a colleague of hers whose father was admitted to hospital with a recurrent cardiac condition and severe breathing difficulties. From previous experience, his family knew he would require to be propped up in bed with five pillows so that he could breath reasonably comfortably. His bed had only two pillows with the result that his breathing was difficult and he became quite distressed. From previous medical advice, his family understood that if this not addressed quickly, his condition could be fatal.He would, in effect, drown. His daughter asked the Ward Sister for more pillows and she replied as follows: "We don't have any more. What do you expect? After all, this is the NHS!". As Dame Morgan commented, what is it that led the Ward Sister, a member of a caring profession to adopt such an attitude? Pillows are not expensive but, as Dame Morgan recounted, because of other shortages throughout the hospital, pillows were used by one ward to barter for wheelchairs from another and so on.

Anecdotes like these and the enactment of human rights legislation on both sides of the Irish Sea have led the community of ombudsmen in the United Kingdom and Ireland to ask some very serious questions about where human rights principles fit into their work. Within these islands, it is probably true to say that for many years human rights was seen by ombudsmen as "somebody else's problem". While ombudsmen in Latin America, and more recently in Spain were given titles as "Defenders of the People" the approach in this part of the world was to focus on "process" in the shape of fair and sound administration. There were many reasons for this but the absence of a properly functioning courts system in some countries was a key factor in the wider remit given to their ombudsmen. But times change. The Ombudsman Act is a living thing. And when looked at today, the concepts of fair and sound administration do not appear to preclude my Office from bringing human rights principles to bear when considering the adverse effects on a complainant of an action taken by a public body. The enactment of specific human rights legislation in both jurisdictions has led to calls for the promotion of a human rights culture. What I mean by this is that firstly, human rights should become part of the process or "rules of the game" of government and political life and secondly, that human rights should become part of public consciousness.

My UK colleague, the UK Ombudsman Ann Abraham, has said that Ombudsmen do Human Rights by stealth. I agree with her. I am sufficiently aware of the somewhat allergic reaction in certain parts of the administration to the utterance of those two words consecutively and I prefer to ground my decisions in the less threatening, less warm and fuzzy concept of maladministration.

But, in effect, what else is my Office doing, when day in and day out, we grapple with complaints about social housing, health care, disability and social services which not only raise procedural issues about the basic entitlements of individuals to monetary grants and benefits, but also the most profound issues of human dignity and respect. An example is the investigation which my Office published in 2001 about payment of nursing home subventions to patients in private nursing homes. The investigation uncovered serious maladministration resulting in refunds in excess of €12million to patients and their families and subsequently, further maladministration has resulted in further repayments estimated to date at €448million. Last year, my Office initiated an own-initiative investigation into the long-stay care treatment of patients. This investigation, which is ongoing, picks up on developments since 2001; it highlights the hardship experienced by older people and their families in funding their nursing home costs and analyses the entitlement provisions in health legislation. I intend to publish it and present it to the Oireachtas later this year.

My Office has received and resolved complaints from people with disabilities who have been refused grants, on grounds of age, to modify their homes to cater for their needs even though the relevant scheme contained no age restriction. Some years ago, an investigation concerning tax reliefs for passengers with disabilities resulted in thousands of cases being reviewed by the Revenue Commissioners and payments of approximately €900,000.

Last month I published the report of my investigation of the complaint of the husband of a 53 year old woman who died while she was being investigated for deteriorating health problems. Of key concern in the case was the fact that 10 days after her death it was discovered that test results relating to her condition were still awaiting attention in her medical consultant's postal slot in Mayo General Hospital. In the course of the investigation, my staff interviewed all the key medical and administrative personnel involved in the case, including the medical consultant. While I found no evidence that the woman's death would have been prevented had the test results been attended to speedily, the hospital and the HSE accepted my recommendations for widespread system changes in how test results are transmitted to and dealt with by the hospital and its consultants.

But despite these and some other once-off successes by my Office, the public service still has a long way to go in establishing a human rights culture. The report "Power to the People?: Assessing Democracy in Ireland" drew attention to the high levels of poverty and inequality in the following terms:

".....while internationally committed to the provision of social and economic rights, the absence in Ireland of a human-rights orientation in the framing of, and access to, public services exacerbates the inequities which arise from income inequality, which is itself an outcome of political decisions that limit redistribution. Many politicians are wary of enforcing and protecting through law those rights to public services such as health, education, housing or disability services."

While this is not the time to debate the question of a rights based approach to health and other social services, I think the above comment graphically illustrates the challenge faced by my Office and indeed, by the Irish Human Rights Commission and other similar institutions. Human rights principles are a necessary part of good public service delivery and, in turn, ought to be within the field of vision of every ombudsman as he or she goes about the daily task of investigating complaints.

This brings me to the question of the scope for greater cooperation between the players in the "Access to Justice" arena. Because of time constraints, I am going to speak only of the relationship between my Office and the courts. Many of the issues raised with my Office could, in principle, be taken before the courts. In practical terms, before my Office opened in 1984, such cases were not to any great extent being taken to court. This may be a reflection of cost considerations, access, the need for professional advice and, indeed, the procedural complexities associated with using the courts. To this extent, my Office represents an alternative to, while at the same time complementing, the work of the courts. Availing of the services of the Ombudsman does not preclude a subsequent court action. But where the complainant sees that his or her case has got full consideration from the Ombudsman, and particularly if there has been redress provided, this must reduce the demands made on the courts.

My Office differs from the courts in a number of important respects. Perhaps the main differences are:

  • the Ombudsman's method is usually inquisitorial rather than adversarial.
  • the Ombudsman's service is relatively informal and does not give rise to any costs for the complainant.
  • the Ombudsman is often able to invoke a wider set of decision-making criteria, and may often have more flexibility and discretion, than is the case with the courts.
  • the Ombudsman's recommendations are not legally binding but they have a strong moral and persuasive status; in addition to redress for the complainant, they often focus on procedural changes within public bodies.

Many jurisdictions have considered ways of improving, for the benefit of members of the public, the degree of cooperation between the Ombudsman and the courts. Often this is set in the wider context of promoting or facilitating greater use of alternative dispute resolution (ADR) mechanisms – in particular, mediation and conciliation – by the courts. The relative informality of ADR as an alternative to the adversarial nature of traditional court processes, began to attract attention in the United States in the 1960s and 1970s. At a conference held in 1976 entitled the "National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice" - a conference now recognised as the birthplace of the ADR movement, an American academic, Professor Frank Sander, criticised lawyers for tending

"to assume that the courts are the natural and obvious dispute resolvers, when, in point of fact there is a rich variety of different processes…that may provide far more effective conflict resolution."

ADR initiatives are in place in many jurisdictions, and, closer to home, the matter has received considerable attention in the United Kingdom, commencing, perhaps, with the publication of Lord Woolf’s reports on "Access to Justice" in the mid 1990s. More recently, the Law Commission in its 2008 Consultation Paper, "Administrative Redress: Public Bodies and the Citizen", made two key recommendations. First, the court should have the power to stay proceedings where it appears that the matter in question might be more amenable to resolution by the Ombudsman. Second, it recommended that the Ombudsman should have the power to state a case to the courts. The latter is one of the provisions included in the Ombudsman (Amendment) Bill.

Here at home, the Law Reform Commission’s 2008 Consultation Paper on Alternative Dispute Resolution examined the main processes associated with ADR and made a number of provisional recommendations relating to mediation and conciliation. Specifically, it recommended that

"mediation and conciliation should be seen as very different from litigation but should also be considered as part of a fully integrated civil justice system that includes litigation. Each process plays its appropriate role in meeting the needs of the parties involved and fundamental principles of justice."

The report describes the work of the Ombudsman (and its sister Offices, including, among others, the Ombudsman for Children, Pensions Ombudsman and Financial Services Ombudsman) and gives examples of specific complaints which service to illustrate the ADR nature of the work of those offices.

The benefits of this all inclusive approach to access to justice are fairly obvious and I believe our respective institutions should now begin to explore the modalities for increasing cooperation between the Ombudsman and the courts. I will be the first to admit that the concepts for cooperation are relatively easy to articulate, but putting them into practice – and here I am influenced by the UK Ombudsmen’s experience with Lord Woolf’s recommendations – is somewhat more difficult. However, that should not deter us from the goal of a more accessible and user friendly justice model which points people, from the outset, toward the most appropriate and timely access to justice channel best suited to their circumstances.

To reference the Review again, and particularly an article on Local Authorities and the European Convention of Human Rights. Many of the cases referenced there, which went before the courts and where breaches of the ECHR were claimed, could very easily have also been remedied through my Office. The case of Traveller family with several disabled children, seeking basic bathroom and other amenities in order to give the children a modicum of dignity and comfort, mirrors many of the cases my Office deals with. That particular case went to the High Court where it was claimed and accepted that Article 8, the right to privacy and family life, had been breached. Two observations. In the first instance, that case I believe could have been dealt with in a less high end and less high cost way through my Office; secondly, I have to ask, how in God's name did we come to a point in this country where the rights of disabled, impoverished children to a toilet and running water, had to go all the way to the courts for resolution, where no doubt the finest of legal minds argued those rights not with reference to some sense of basic humanity, but rather by way of reference to what the outside world might see as obscure legal argument.

And, finally, let me again congratulate Donncha and all the contributors on this splendid piece of work which I hope will become a key influence in informing debate on Human Rights in Ireland. I also congratulate the plain vanilla human rights activists who continue to push their agenda forward. As Conor Gearty is quoted as saying, pityingly, in the Review,

"They are the disciples of an idea, rather than a sacred text, or even a holy, much less a divine person, and the closest they get to congregational worship is the occasional drinks party after a human rights lecture. They are usually too polite for the solidarity that comes from public protest."

Well, this Review might not change that, but at least this launch, I hope, is indeed ending with a drinks party.