Ombudsman for the Defence Forces

Ombudsman for the Defence Forces makes presentation to the AGSI Autumn Seminar Series

18 October 2010

Presentation to the AGSI Autumn Seminar Series by the Ombudsman for the Defence Forces, Athlone Monday October 18th 2010

Having described how I came to be appointed as the founding Ombudsman for the Defence Forces in 2005 and the context in which there was support for the establishment of such an Office, I mentioned that this was not the first time I had addressed members of Garda Siochana on the benefits of having an Ombudsman. I recalled that I had been invited by Commissioner Byrne, in 1998, to address the Conference for Chief Superintendants in Templemore at which time I was serving as the founding Insurance Ombudsman. Having looked at their internal grievance procedures then, I had found it badly in need of reform and believed that an Ombudsman should be built into a revised structure to provide an objective and independent appeals mechanism.

By coincidence, I had also been invited that same year by the then Chief of Staff of the Defence Forces, General Gerry Mc Mahon, to address a group of Senior Command and Staff at Mc Kee Barracks on the merits of having an Ombudsman. I stood down from my role in September of that year after a difficult time of defending my Office against interference.
I referred to a call of support I had received, out of the blue, from the Garda Archivist and author, Jim Herlihy, while I was grappling with the Insurance Industry’s attempts to undermine my Office and its precious autonomy and independence. He had invited me into his office in Dublin Castle to view something which he said would cheer me up; they were records and photographs of my grandfather, Patrick Marrinan, who had gained quite a number of trophies for boxing when he was serving as an Officer in the RIC before he served as District Inspector. There was also a photograph of him with his colleagues on the occasion of their establishing the first Representative Body. When I told Jim Herlihy that my maternal grandfather, Daniel Grace, had been an Inspector in the DMP he promptly produced his records too.
So my being here with you today is not without significance and poignancy for me.

In order to provide succinct information about the function and powers of the Office of Ombudsman for the Defence Forces, I distributed copies of a power point presentation and spoke to my paper written for the occasion with a view to providing sufficient time for questions.

Allow me to begin by expressing my gratitude at having been asked to speak to you here today. It is a privilege and honour to be given this opportunity to address an organisation such as your own. Garda Sergeants and Inspectors have a long distinguished history as frontline leaders guarding the peace and protecting the public. This is a history of which you may be rightly proud and for which I congratulate you. An efficient police service is impossible without efficient management.

I am aware that I speak to you in troubling times. Representative Associations such as the Association of Garda Sergeants and Inspectors, organisations who are pledged to uphold the welfare of their members, can be forgiven for focusing on the national economic downturn and its impact. The economic crisis is rightly at the forefront of everyone’s mind.

However our national conversation cannot be dominated solely by the economy. To allow that would be short sighted and do a disservice to the many other matters which should command our attention. The matters which were important yesterday are no less important today because of the financial crises particularly those issues that go to the root of the welfare of your people.

Today I wish to address you on the protection of welfare and fairness in organisations at the front-line of public service. Those who put themselves in danger for the public good, whether they are Gardai, Fire Officers or members of the Defence Forces are unlike other professionals. They are individuals who regard their daily rota as more than simply a job. They are men and women guided by a vocation to serve and protect the people of Ireland. They are people who are willing to stand between danger and the public. You are the vanguard of our Republic.

The under pinning of dignity and fairness at work should therefore be at the forefront of any discussion on or about these occupations. Surely the protections of dignity and decency which is afforded to any other worker should be afforded to frontline services. Unfortunately this is not always the case.

It is easy to dismiss notions of fairness in the workplace as simply a human resource management problem. It is easy to assume that all that is needed is another policy document or direction. In reality the matter is far more important than that. When we talk about workplace bullying, harassment, victimisation or administrative malpractice and unfair treatment, we are talking about basic human rights and dignities being infringed. The victims of these practices may suffer from sever damage both psychological and physical. There is no place in any sector for these practices and they must be rooted out where they are found if we are to call ourselves a civilised nation.

An Garda Siochana, like police forces in other jurisdictions, is increasingly required to evaluate how it relates to the public in terms of human rights and dignity. They are expected to behave towards the public in a respectful and decent manner and human rights best practice provides the yardstick by which success may be measured. This is, of course, to be greatly commended. However it is not enough if the members of An Garda Siochana themselves are not provided with an independent Office of administrative oversight and appeal for their grievances.

The Garda Ombudsman Commission was established by the Garda Síochána Act 2005.As you are aware the Commission is primarily charged with investigating complaints made against members of the Gardai. The Commission may investigate any matter, even where no complaint has been made, where it appears that a Garda may have committed an offence or behaved in a way that would justify disciplinary proceedings. In addition, the Commission may investigate Garda policies and procedures with a view to reducing the number of complaints made.
The Commission was not established to accept complaints from members of the force.

As can be seen, the Commission is active and diligent in the investigation of complaints. The existence of the Commission is crucial not only for civilian oversight of the Gardai but also for the maintenance of public confidence in a force which may be damaged by well publicised scandals from time to time. I am sure you will agree that good policing depends on and is sustained by a relationship of trust with fellow citizens whom it serves; it is a delicate balance...

The international scholarship on human rights and policing is almost exclusively focused on the exercise of police powers. This is, in a way, understandable given the cruel abuses of authority that occur in police forces around the world on a daily basis but too little attention is paid to the protection of the fundamental rights of police officers themselves. Human rights principles must not just inform how police officers relate to the public but how they relate to one another and how they are protected within their organisation. May I refer to a piece of work I did in my current role which may be of interest to you. I was invited, in 2006, to join an Expert Group charged with drawing up a Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel under the direction of the OSCE/ODIHR and DECAF - The Geneva based Centre for Democratic Control of Armed Forces. I was inspired to get involved in this work when I read one of the reasons proffered as to why such a Handbook was necessary; if you send forces out to protect the human rights of others you must first provide them with a true understanding of the values espoused and the first step in that direction is to ensure that the force is a beneficiary of those rights.

The independent Human Rights audit commissioned by the Garda Siochana in 2006 provides troubling, if familiar, reading. The Report pointed to a high level of dissatisfaction with the promotion and assessment procedures within the service and noted a “worryingly high” number of respondents complaining of bullying and harassment.

There is no doubt that action has been taken since the publication of this Report, however the question is still sufficiently current to have been mentioned by your Commissioner Fachtna Murphy in his speech to the GRA Annual Conference in April last. On the issue of bullying and harassment he spoke of the need for a mechanism which has the confidence of all within the service. He indicated his openness to an independent appeals mechanism if that is what is required.

Both the GRA and the AGSI have called in the past for the establishment of an Ombudsman to oversee complaints made by Gardai about welfare and conditions. At your conference last year a motion was passed directing the Garda National Executive to seek from the Department of Justice the establishment of an independent Ombudsman's Office to probe and adjudicate on all complaints of bullying and harassment within An Garda Siochána. I note, with a mixture of humility and pride, that my office was mentioned during the debate as a possible model.

The call for an independent Ombudsman was perhaps put most forcefully in 2006 by former GRA president Dermot O’Donnell. He said:

“We have no independence in our industrial relations mechanism and that is really a big problem. Many victims of bullying are out there suffering silently and not only them but their husbands, their wives, their children.”

He estimated that 1000 members of the service were suffering from some degree of bullying. Shockingly, he stated that some of these individuals were being driven to suicide.

I spoke of the problems highlighted by the Human Rights audit as being familiar because it was the existence of very similar problems within the Defence Forces which prompted the establishment of my Office. I am happy to report that in the four years of its existence my Office has made very substantial progress in creating a presence and providing oversight these systemic problems. While risks of these problems remain, as they always will in every organisation particularly those with a hierarchical structure and operational pressures, I have witnessed the beginnings of a cultural shift within the Defence Forces. I believe there has been a move away from a practice where complaints were merely contained within existing procedures to one where they are accepted as a legitimate barometer of the health of the organisation.

This shift could not have occurred without the support of those in leadership positions within the Defence Forces. The moral courage required of leaders willing to open up their organisations to scrutiny for the good of their fellow servicemen cannot be underestimated.

My office was established on the 1st of December 2005 by the Ombudsman (Defence Forces) Act 2004. It was established in response to a growing demand from a number of sources, not least the members of the Defence Forces themselves, for a transparent and fair complaints procedure, a procedure which was independent from the Defence Forces’ chain of command and from the Minister for Defence and the Departmental Secretariat. Chief among the organizations who campaigned for the establishment of a Defence Forces Ombudsman were the military Representative Associations, in particular PDFORRA.

My Office exists to investigate complaints from members of the Defence Forces about alleged unfair treatment. Unlike the Garda Ombudsman Commission, I do not receive complaints from members of the public. My remit is strictly limited to the wrongs which are alleged to have adversely affected serving or former personnel. I have no role in operational matters or in matters of policy. My Office is responsive, not proactive; it is the members of the Defence Forces who bring their grievances to me usually by way of an appeal from the Considered Ruling issued by the Chief of Staff.

Ombudsman for the Defence Forces is a remedy of last resort for members of the Defence Forces who feel that they have been the subject of maltreatment. My Office was intended to supplement, rather than replace, the existing internal complaints structure – the Redress of Wrongs established under the 1954 Defence Act. Every member of the Defence Forces has a legal right to make a complaint to a superior officer. While there is a commitment to try to resolve the matter locally at Unit level, there is a right, on the part of the complainant, to have the matter referred to a higher authority, moving upwards ultimately to the Chief of Staff, who is the operational head of the Defence Forces.

A complaint to the Ombudsman must first have been made through the Redress of Wrongs (RoW) process. If after 28 days there has been no resolution of the matter, or reasonable efforts to progress the complaint, the Complainant may approach me directly. The Office of the Ombudsman exists as a failsafe where the usual channels have not provided satisfaction. My Office does not investigate every dispute which arises in the general course of military life, nor is it desirable that it should. But the presence of my Office in tandem with the legislative powers ensures that every complainant is notified to me.

Military life, like service in an Garda Siochana, brings with it certain obligations which are not demanded of the ordinary citizen. Primary among these obligations is the requirement that subordinate members should obey legitimate orders given to them by superiors. These orders may involve hardship or discomfort which could not be expected of an employee in other walks of life.

There is an understandable concern among those charged with giving these orders that operational effectiveness could be undermined if any aspect of the complaints procedure is moved outside the organization. Put simply that there could emerge a “barrack room lawyer” culture of members complaining to the Ombudsman every time they are told to do something they don’t like which could be seen to undermine the existing systems.

This concern, while understandable, is in my experience misplaced. The job of the Ombudsman is not to second guess those in a leadership role. Neither is it to deal with complaints of a trivial or vexatious nature. The Ombudsman exists to address serious complaints, which if left unchecked can lead to profound difficulties for the organization as well as the individual member. The legislation under which I operate makes it very clear that I must have regard for the overriding operational needs of the Defence Forces and clearly my jurisdiction does not extend to operational matters.

However, the reaction to the establishment of ODF from the Defence Forces was positive; as early as March 2006 there was a swift response by the D.F Director of Human Resource Management Section (D HRMS) to some of the first cases I adjudicated, in which I had found that there was a lack of consistency in the criteria set out in promotion processes and that Selection or Promotion Boards were not using consistent criteria in assessing the candidates. Changes were promulgated by D HRMS. In addition, the causes of the early cases referred to me were swiftly noted by the then Deputy Chief of Staff (Support) who put in place New Interim Selection Procedures for Career Courses and Overseas Postings with immediate effect from July 2006...

As evidence of the value of this response, it is worth noting that in 2006 cases arising out of complaints about the selection process for career courses comprised 31% of cases. In 2007, this number had dropped to just 13%.

It has also been most reassuring that my Office has won the trust and confidence of Defence Force personnel of all ranks. In 2007, the second year of operation, more than 20% of cases eligible for investigation and review came from the rank of Lieutenant, Commandant and Lt Colonel.

The legislation which established my Office provides that the Ombudsman will be independent in the performance of her function of both the Minister for Defence and the Defence Forces. Independence is the single most important factor determining the effectiveness or otherwise of an Ombudsman’s Office. Independence allows members of the Defence Forces, who come forward with complaints to have confidence that the Ombudsman is distinct from the military hierarchy. An effective Ombudsman must be independent from both the State and the Sector which they oversee.

The presence of a properly empowered Office of independent oversight can influence how an organization conducts the management of its people and promotes acceptable standards in the treatment of its members.
I want to emphasize properly empowered because to be effective the Ombudsman must be supported by sufficient powers and resources to thoroughly investigate complaints. This requires that the Office is adequately staffed and enough resources are allocated to its work. It also requires that the Ombudsman be granted certain powers such as the right of access to documents, installations and the power to require witnesses to attend to give information.

I want to assure you that such powers are necessary if there is to be proper independence and impartial investigation of complaints. Whereas the exercise of such powers is a matter for the particular circumstances of a case and they should certainly be exercised with the greatest respect and understanding, they are vital if an Ombudsman is to function effectively.

For an Ombudsman’s Office to be effective it must have the support and trust of those it is there to serve. Accepting change in the approach to handling interpersonal disputes or grievances within an Institutional workplace, particularly those with a distinct culture, requires leaders with vision, fore sight and moral courage. Without a commitment to change in the long- term interest of an organisation little would ever change for the better. My own experience can safely attribute a significant part of the progress of the work of my Office to the leadership in the Irish Defence Forces.

Discussions of Human Rights and policing generally begin and end with a discussion of how Police Officers should interact with the public. There is little discussion, even academic discussion, of Human Rights within Police Forces. This is a major deficit in our approach to an important subject. How can we expect our Police to behave with dignity and respect if we remain indifferent to their having the same degree of respect and safeguards in their working lives?

Speaking from my own experience working as the founding Ombudsman for the Defence Forces, I believe it is safe to say that the establishment of the Office of ODF has been an agent of change for the better. I hope this belief is shown to be correct.
I therefore commend the efforts you have made to acquire the necessary safeguards in your grievance procedures. Of course, having an independent appeals Office such as an Ombudsman for An Garda Siochana would go towards restoring confidence but taking such a step exhibits the courage of an organisation and reflects it concern for its members in a meaningful way.

AGSI website report of Ombudsmans Presentation