Tuesday, 6 May 1975
Dáil Eireann Debate
It is important that this motion be given serious consideration. It is something about which we have spoken over the years and to which we have given very little consideration. It is important also to consider the role of an ombudsman. In my view he would act as a controller of equality, a watchdog in ensuring the rights of individuals and that people with grievances would be protected.
We are entering into an era of the welfare State and all that that entails. As a result, the majority of our population come under the social welfare code and are part of the vast bureaucratic machine. In addition, there is the enactment of a large volume of new legislation providing for insurance and health benefits, pensions, family allowances and other social services on a nation wide scale. When one looks at the situation in that context alone, it is important to appoint an ombudsman to investigate complaints. Some people say there are 144 ombudsmen in this House. I suppose we are such and that some Deputies feel they can handle the situation. It is my firm belief that Deputies on all sides of the House would welcome such an appointment. I think we hear half the story only. The ombudsman would hear the whole story.
 Other aspects of modern-day life include planning legislation, the regulation of development land. With regard to house building, many people feel they are not given a proper hearing, despite the fact that resort to appeals exists.
Mr. O'Brien: There is still the need for the ultimate appeal. There is now also a vast area embracing semi-State bodies such as the Electricity Supply Board, Bord na Móna, the Sugar Company, Aer Lingus and CIE to mention but some of them. One of the problems with regard to semi-State bodies is that they exist in isolation and are not accountable to this House. In those areas also it is important that there be a person to whom the ordinary man in the street can go to have his complaint dealt with openly, fairly and impartially.
I make those points bearing in mind the fact that the standard of administration in this country is very high. But we are in the throes of a great bureaucracy which on occasion, either through lack of knowledge or indifference, can cause hardship to people. It is important that justice be done and be seen to be done. I realise that is a hackneyed phrase but, nonetheless, it remains true today. A man of substance can deal with such situations. He is near the establishment. He enjoys status and influence which will ensure for him an air of authority. He can endeavour to solve his problems by applying legal remedies. He knows his way around. Indeed, that is indicative of the whole legal system today. But too often the ordinary, humble, citizen, is slow to assert himself. He has become used to being pushed around. One of the problems in our society is that too many people take what is said at the top as being gospel and accept it without question.
I would hope that the appointment of an ombudsman would create a questioning attitude amongst people with regard to demanding their rights and  not accepting merely what is handed down because it is important that all our people be equal. All people, regardless of their income, should have recourse to justice and fair play.
It is important that the person appointed ombudsman will be one who will command the full respect of the public and the administrators. This will happen if he is a person with humanity and understanding and I hope the first ombudsman will set this trend. I am not against the legal profession but I would favour somebody outside that profession for this office. We have tended to look to that profession when we want people to arbitrate but in this case we should look over a wider range and should seek a person who has a deep insight into the problems of people. The right person will chart the course suitable for us. Every country is concerned about its own problems and the aspects of life peculiar to it. The office of ombudsman will evolve. I should not like to think that our only contribution would be to introduce legislation into this House and leave it at that. This matter should be examined to ensure we are getting the best type of service.
In this instance we cannot be accused of rushing matters. We have dragged our feet over the years for one reason or another. When we consider that Sweden instituted this office in 1809, Finland in 1918, Denmark in 1955, Norway and New Zealand in 1962 and England in 1966, we realise we are not forerunners in this area. In fact, we are coming in rather late but it is never too late. I would urge the Minister to bring legislation before the House at an early date. We often pass measures here about which the public are not concerned or even aware but they want this kind of legislation. As the bureaucratic system gets larger, many people have the impression they are getting smaller and less important and they have no means of recourse other than going to their public representative.
The ombudsman will be of great benefit to Members of this House because he will have the right to examine files in a Department, which we cannot do, and he will get information  we cannot obtain. When we write to a Minister we get a nice letter from him which we pass to our constituent involved in the case. While we hope the information we get from the Minister will be of help to our constituent, there is really little we can do if this is not the case. On the other hand, the ombudsman will be able to carry out an independent investigation and will be able to follow up matters. He will be able to highlight any grievances that exist. In many instances people consider they have a grievance but when the case is studied it emerges this is not so. However, the person concerned may not be satisfied. When the ombudsman investigates a case, at least the people concerned will know it is being pursued to the fullest extent.
When the ombudsman finalises a case he will issue a report to both parties. This is an important consideration. Public representatives have many day-to-day problems to cope with and they are not too concerned or have not the time to eliminate the causes of the problems. The ombudsman will be able to make recommendations that help in this area. Although people may have recourse to the courts, the latter are only concerned with legislation. They are not concerned with natural justice but the ombudsman must be concerned about that. He must be concerned about people. One of the important aspects of his office should be informality. That would break down people's suspicions of bureaucratic systems. People will not have great trust in the office if they see it as another form of bureaucracy. He should investigate complaints without any serious disturbance in whichever Department he is investigating. If he goes in and upsets a Department the whole thing will have a negative effect. When he is carrying out investigations in a Department he should be completely independent of the Executive. He should be his own man. He should go in and examine files and make reports. If he is not independent, facts will not be forthcoming and things may be clouded over or covered up. If the  ombudsman does not have independence we will continue on our merry way and just write letters, as we do now and get letters back without any proper investigation.
Mr. O'Brien: I do indeed. I very often go to the Departments and I find the officials first class. I think we have a very fine standard of administration. That does not mean that errors do not occur. If one looks at the Order Paper one sees the stupid questions tabled by some members of the Opposition about phones here and phones there and other fiddling things. With all due respect, I do not think the Deputy goes to Departments.
It is also important that the ombudsman should investigate local authorities because they are becoming a very important part of life. They deal with housing, compulsory purchase orders, road traffic and so on. When they make an order it affects many people. The ombudsman should have power to investigate local authorities. I say this without prejudice to any of the officials of local authorities. I think they are first class.
I believe officials will be very happy about the appointment of the ombudsman because in most cases it will be found that the Department took the right decision. This will give a greater status to officials and it will mean a greater public understanding of officials. The findings of investigations will be published and people will become aware of the high standard of administrator we have running our country.
Different countries have different ways of doing things. In Denmark and in Finland the actions of Cabinet Ministers may be examined. I personally would not be too keen on that. I believe that if we have a Government we must give the Government the power to act. In New Zealand the ombudsman cannot criticise actions of the Cabinet. In Germany, Sweden and Norway there is an ombudsman for military matters. I believe that  would be superfluous in our situation. We should stick to the ombudsman for the general public and see how that operates.
The ombudsman should furnish reports to the Government and to the public on his activities, on his ideas, on his projections and how he would see Departments operating in the future and he should make representations to the Government. There is no point in having such an office unless it streamlines the system. He should initiate his own investigations without waiting to be prodded and he should be looking for areas which he thinks should be investigated.
It is important that when complaints come in they are dealt with quickly. The big problem with most complaints is that they have been allowed to fester and to generate heat. If a person has to resort to the courts it is both costly and time consuming and for many human problems unsatisfactory. That is another reason why an ombudsman should be appointed as quickly as possible.
It is important that when a complaint is being investigated it is not seen as a witch-hunt to get at some official. That would defeat the whole purpose of the exercise. The whole idea is that constructive proposals for change, if change is necessary, should come from the ombudsman. By being able to report back in this way we could eliminate many of the problems that might arise. One wonders whether in some cases, at any rate, the problems are due to suspicion but problems that appear to be genuine should be dealt with.
It would be interesting to be able to hazard a guess in regard to the number and the types of complaints that would be received by an ombudsman. Perhaps, initially, people would be slow to bring their problems to him because they might be suspicious of the office in the early days. However, it might be worth noting the situation in this regard in Sweden where, with a population of 7,500,000, the office of ombudsman deals each year with 1,000 complaints, while in Denmark, where there is a population of 4,500,000, the number of complaints  dealt with each year is approximately the same as in Sweden. It would appear, therefore, that the Swedes, with their social security state, have a fairer system of administration than have the Danes, but I do not know what is the reason for the disparity in the proportion of complaints as between the two countries.
In both these countries the ombudsman discharges his duties efficiently and with the help of a small staff. We need not fear that the appointment of an ombudsman here would create another vast administration. That would not be so.
An ombudsman is necessary because the people need the services of such a person. Those of us who deal with constituents often hear them complain about the way they are treated by the various Departments. Regardless of whether the complaints are well-founded, very often there is a suspicion on their part that they are not getting a fair deal and, consequently, they seek the help of their Deputies. However, there is no need for any Deputy to fear that the appointment of an ombudsman would diminish him in any way. Irish people will always tend to seek the help of their Deputy. If we had an ombudsman, a Deputy who was of the opinion that he was not getting satisfaction from a Department in regard to a constituent would have recourse to the ombudsman. I would not agree, though, with the English system whereby complaints to the ombudsman must go first through a Member of Parliament. However, I understand that there are proposals there to have the complaints submitted direct from the public. This is as it should be. We are elected to legislate and not to act as general factotums on behalf of the people we represent. The availability of an ombudsman would leave us more free to study legislation, to innovate ideas and, in particular, to read the legislation that comes before the House because there are times when we are so involved with constituency work that there is not time available to read all the legislation proposed. To devote more time to legislation would make us better  Deputies in that we would be able to serve better those we represent. I am not suggesting that a Deputy should dissociate himself from the problems of his constituents. His communication with them enables him to assess better their needs and their problems. Indeed, at election time our people would reject us if we had not listened to them and tried to do our best for them.
Therefore, Deputies should not resent in any way the appointment of an ombudsman. Rather, we should welcome the change because we could approach him in respect of any difficulties we might have with Departments, with local authorities or with any semi-State body that might hide behind their board of directors. I have the greatest respect for administrators. It is easy to be critical of them but when we have good people we should appreciate them and stand by them.
The appointment of an ombudsman would make for better relations between the administration and the general public and would allay any deep-seated suspicions that people might have. That, in itself, is important. Too often we hear people knocking the establishment. They knock it because they do not know it and they feel there is a wall between them and it. With the appointment of an ombudsman there would be a breaking down of that barrier. Dialogue would be made much easier. There would be a general examination and an opening up of files. People would be able to see for the first time the reason why they did not get X, Y or Z. They would feel there was somewhere they could go to seek justice.
This was the policy of this Government on coming into office two years ago. We are in office now long enough to make a decision to bring a Bill before the House dealing with this matter. I did not go into any of the technical aspects because we can do that on Second Stage and on Committee Stage we can bring in any necessary amendments or proposals which would make it a better Bill. I am just giving the reasons why I think this motion is important and  why it is important that this appointment should be made. I earnestly request the Minister to introduce a Bill at an early date and I would ask him to indicate that when he is replying.
Mr. Moore: We cannot agree to it until we hear the Government's case. Deputy O'Brien has given us his view as to why this should be done, but surely the Government should give us their views on what they intend to do.
Mr. Kenny: I understand that. I believe there is a necessity for the appointment of somebody called an ombudsman, or whatever you like, to find out in certain cases if justice has been done or if justice has been denied to any person or association.
In Ireland seeking after justice has been left to Members of the Oireachtas. They are approached by their constituents and told about various cases of hardship, or inconvenience, or even injustice. If they are good Deputies and if they are efficient, they find out the background to such complaints and allegations. Invariably, after representations, these problems are solved some to the dissatisfaction of the constituents and more to their satisfaction. In the national sense I believe an ombudsman would be a very useful addition to the Civil Service. I suppose this would lead to extra expense because the ombudsman would have to have an administrative office and set up as a neutral civil servant.
Mr. Kenny: No. I will explain that for the edification of the Deputy. He would have an administrative office and he would act as a neutral civil servant, as a seeker of justice between the ordinary people and the Civil Service. In some cases the ordinary people do not believe they are getting justice from the Civil Service because they are not used to the technicalities and red tape which we meet in every Department and which we must surmount. To my mind that would be the duty of the ombudsman.
I want to read from a document on the problem in Ireland by Max W. Abrahamson. He said that in Ireland a convicted criminal has a right to appeal against sentence, generally to a Supreme Court judge and two High  Court judges sitting as the imposing Court of Criminal Appeal. The case is heard in public and the convict may argue in person or through a lawyer and the court gives reasons for its decision. The decision settled by the court may be mitigated by the Minister for Justice who acts in private on the advice of anonymous officials. A convict, therefore, has no right to see that his case is fairly presented to the person deciding it. We have been told by the Minister that it is not the practice to disclose the grounds on which the Minister has acted in the exercise of his statutory duties and it would not be in the public interest to do so.
If an ombudsman was acting in such a case all the evidence would be made public. It would then be a matter for the person before the court to hear the evidence being put forward on his behalf and make up his mind as to whether he is getting justice or not.
I do not think anything could be more out of balance than this. A person on trial should be satisfied that his case has been fairly presented and be able to make up his mind whether he is getting justice or not. In my view we should have some person like an ombudsman to present a case, especially for the poor people and that service should be free to those people. In European countries some years ago after people were convicted, and in some cases executed, examinations were carried out and those concerned were found to be innocent. Such cases would have been better presented by an ombudsman than a lawyer.
Mr. Crinion: We are in agreement with the suggestion but we have reservations. It was discourteous of the Government not to give their views on this matter until they were pressed to do so by Deputy O'Brien.  We are grateful to the Parliamentary Secretary for stepping into the breach when other Ministers did not see fit to be present to explain the case. An ombudsman should not become another civil servant caught up in bureaucracy. Would the appointment of an ombudsman curtail the powers of this House? This House should be above everything.
Mr. Kelly: No muzzling takes place. I never gave any such direction and I have never heard of such a direction. I am sure the Whip of the Deputy's party, when they were in government, never gave such a direction.
Mr. Crinion: The reason the Deputy wants the ombudsman is to cover up for the Ministers. This afternoon we saw an example of this type of cover up when the Taoiseach had to cover up for the Minister for Posts and Telegraphs.
Mr. Crinion: Because Deputy O'Brien is not getting satisfaction from his own Ministers he is seeking to have an ombudsman appointed to get at them. The Deputy told the House that when he wrote to Ministers he received a nice reply but no satisfaction. He could not go anywhere else. He could put down a question but he is muzzled. If we are dissatisfied with a reply from a Minister or his Department, we table a question.
Mr. Crinion: We put down questions and Ministers have to answer those questions. They might answer for their own actions and the actions of their Departments. How often have we put down a question about non-payment of a pension and the pension goes out the day before the question is answered?
Mr. Kenny: The only reason why Fianna Fáil Deputies put down questions was that they knew the answers the week before. They were asked by the Ministers to put down the questions and that is the reason, and the only reason, they put down questions.
Mr. Crinion: We are not. How often has a Minister come in here and apologised for his Department? I knew the Minister for Justice to come in here and apologise. When we were in office the Minister would get his walking papers straight away.
Mr. Crinion: A Minister can be made to answer for his Department here. If a Deputy is not satisfied with a Minister's reply, he can ask supplementary questions. If he is still not satisfied, he can, with the permission  of the Chair, raise the matter on the Adjournment. That is a half-hour debate in which the Deputy has 20 minutes and the Minister has ten minutes in which to reply. That is a fair deterrent to any civil servant or to any Department, having his boss answer for his wrongdoings or its wrong decisions. Parliament must be supreme. It is our duty to work for our constituents. Mention was made of Sweden; there the ombudsman got only 1,000 cases in a year.
Mr. Crinion: In a population of 7½ million in Sweden there were only 1,000 cases in a year. In Denmark, with a population of 4 million, there were only round about 1,000 cases also. What really makes me a little suspicious is remembering that the British Government, under extreme pressure, appointed an ombudsman in the North of Ireland, where there certainly was victimisation. If any memory serves me correctly, in the first year only 25 cases came before him. It is rather strange that in the countries cited he should get so few cases.
Mr. Crinion: Where was the Parliamentary Secretary? He should have been here giving the Government's view. He was off at some meeting or other. This is the most important assembly in the State. What can one expect from a Government that will not support their own motion?
Mr. Kelly: For the Deputy's information, I am not in charge of this motion. The Minister for the Public Service is and he will reply tomorrow. I propose to contribute, if I am let, as an ordinary Deputy. I protest at the way this motion is being treated by the Opposition and I commend the dedication Deputy O'Brien has shown in putting it down and advancing it. I protest at the Opposition turning it into a farce and that is what is being done by the three Opposition Deputies present who are making a joke of it.
Mr. Kelly: This is Private Members' time. There will be a Minister here to reply. He has the option of doing that this evening or tomorrow and he will do it tomorrow. He is at a meeting now. He will be back in 20 minutes and he will be still here at half past ten tonight.
Mr. Crinion: He should be here to give the Government's view. We are in favour of the motion subject to certain conditions. There should be no interference with the rights of Deputies to look after their own constituents. Appeal could be made to the ombudsman when every other process failed. We do not want to be in the position in which, when we raise a matter here, we are told that it is sub judice. It could easily happen that if we are working on a case which has gone to the High Court for a decision and although the ombudsman might know the result we could be told that it is sub judice. That would be a very serious matter. Deputy O'Brien did not spell out in any detail what way the ombudsman would work. He said he was leaving it to the Second Reading, or to the Minister, to show what way he intended to do it.
Mr. Crinion: We are agreeing to it but I am also pointing out that we do not want to see the facilities we have interfered with. It would be a very serious thing if an ombudsman was dealing with a case and it became sub judice in the House. I also mentioned that in the countries that have an ombudsman they have not the parliamentary question system that we have.
Mr. Crinion: That is not much good because a Minister can say what he likes in a written answer. It is when questions are answered in the House and supplementary questions are asked that you get the information.
Mr. Crinion: In Sweden and Holland, in order to get questions answered, it is something like an adjournment debate. Each debate takes 45 minutes and only one question is dealt with every day. They naturally want some person to look after their problem. If only one question was answered on each day the Dáil sits it would take a very long time to deal with problems. I am pointing out the weakness in the countries which have brought in an ombudsman and the reason why countries like ours have been a little bit slow in bringing it in. We have parliamentary Question Time when we can ask questions, ask supplementaries and if we are not satisfied with the replies we receive we can ask the Chair to bring the particular Minister back on the Adjournment when we have a half-hour debate on the matter.
We want something to help our existing system. If an ombudsman could do something like that it would be a great help to Deputies. We would like to ensure if an individual goes to an ombudsman it will not prejudice our parliamentary system and will not ensure that any case we are working on is sub judice. When we go to discuss cases with civil servants they open the files for us and show us the reason why they made particular decisions. It would be of some help if we could look at those files by right. Deputy O'Brien did not say how the ombudsman would work. He mentioned the rights of the individual and the man-in-the-street but we did not get any details on how the ombudsman would work.
Mr. Crinion: We should have got more details from Deputy O'Brien when he introduced the motion. If he was unable to give the information to us some Minister should have come in and given us the Government's view of what they intend to do. We would then know what would be the best type of ombudsman which would be suitable for us. We would like to know what his functions would be with Ministers and civil servants. We have been told he can look at the files. Will he be able to tell a civil servant that he made a wrong decision and tell him to change it?
Mr. Crinion: What good is it having him completely independent of the Executive if he has no function to go and tell a civil servant to change a decision? It is all right being independent but what teeth will he be given? If he feels a wrong decision has been made or a decision has been covered up by a civil servant he should be able to tell that official to change the decision. If a mistake has been made on behalf of a Minister will he be able to tell that Minister to reverse his decision? That is what we want. He should be able to have decisions reversed if they are wrong.
Mr. Crinion: We want to know what powers such an ombudsman would have. We should like to see him being able to tell a Minister here that he made a mistake in a particular case of, say, social welfare, local government, agriculture, and so on. We should like to see him being able to tell a Minister he had made an incorrect decision and ask him to reverse it. We want to see the ombudsman having teeth with which to do that.
Mr. Crinion: I am glad to hear Deputy O'Brien say so because he did not spell that out in his speech. We got the feeling that Deputy O'Brien was becoming somewhat frustrated with his own Ministers and the way they were treating him.
Mr. Crinion: We should like to see an ombudsman in the position of being able to assist me, any Deputy of this House, or any individual who elected us here, in seeking justice or in speeding up decisions in cases where grievances are felt. Heavens knows, some of the Departments over there are particularly slow in making decisions. Deputy O'Brien mentioned the Department of Social Welfare as being one in particular——
Mr. Crinion: One thing that Deputy O'Brien could ensure is that at least another 100 lines are installed into that Department. At present one cannot ring the Department until after 5 o'clock because the lines are always engaged. That is what I should like to see him doing.
Mr. Crinion: We would like to see the individual better protected, being sure that his rights were looked after and that things are not forgotten in Departments. If an individual did not want to come to us, at least he could go to the ombudsman who would deal with his case. Certainly, I should like to see him handling much more cases than has been the experience in other countries. I should like to see him getting, perhaps, 20,000 or 30,000 a year——
Parliamentary Secretary to the Taoiseach (Mr. Kelly): The movement to make an ombudsman, as he is called, a familiar feature of administration in Western Europe got a lot of impetus in this part of the world in the late 1950s and early 1960s in consequence of a couple of very celebrated instances of maladministration in Britain. The people in Britain who were interested in trying to correct maladministration in a simple and direct way looked over their shoulders at the institution which was familiar in Scandinavia and in New Zealand and said: “We ought to have something like that here too.” What they had in mind chiefly was a paid official, of high standing, recruited, so far as possible, in such a way that his independence and impartiality would be beyond question; that he would be in a position, as Deputy O'Brien and others have said, to go in, take out files, comb through a particular case from its origin to a final decision being challenged and make  up his mind whether or not the administration had functioned well or badly. At the root of this agitation was the idea that bad administration was fairly common and that the ordinary citizen was fairly powerless to do anything about it unless he went to law, and law is expensive, wearisome and uncertain. It seemed unfair that his rights, in a matter which might affect his property, prospects and business should be left dependent on the outcome of a legal trial.
The reason I give this introduction to what I have to say is that I do not think that kind of approach is appropriate in Ireland. I do not want merely to pay an empty compliment to the Public Service when I say this, but I do say it sincerely. I think there is very little maladministration here in the sense which led to the institution and maintenance of the office in other countries. I am very far from believing that things are better here generally or that we are perfect here in contexts where they are imperfect abroad. I consider that humbug. But I do think, perhaps because of the relatively small scale of the country, because it is, as is commonly said, a country where everyone knows everyone else, there is very little maladministration in the strict sense of the word. I would think the number of cases in this country in which anything like bribe, prejudice, personal bias or gross personal incompetence on the part of an official resulted in a bad decision being taken or a bad piece of administration are terribly rare. I would not put a figure on them but I would say they are so rare and so few as scarcely to be worth bothering about. That does not mean that wherever such a thing might occur or might be said to occur it is not important to have some way of remedying it. Even were Deputy O'Brien to put his case on that basis—that even in these rare cases there should be somebody who can make sure that justice is seen to be done, and justice seen to be done cheaply and quickly for the aggrieved citizen—it would still be worthwhile.
I do think that the agitation which proceeded in other countries on the basis that a lot of maladministration took place would be quite out of place  here because I do not believe there is any significant incidence of maladministration, of dishonest, grossly incompetent or neglectful administration here. Anyway, that has not been my experience. On the contrary.
Therefore, if we are to have an ombudsman, and I would support Deputy O'Brien's motion, the reasons for so doing must be sought elsewhere. I believe there are strong reasons for having such a person in our administrative and political structure but they are not reasons of trying to correct flagrant or frequent abuses. I do not think we suffer from flagrant or frequent abuses in the Public Service. Certainly, I have not run across them and very seldom have I heard allegations of them. If we are to have such a person we must look for the reasons for him elsewhere. Apart from that, the kind of ombudsman who has been adopted in England would not suit us at all. I have often had cause to complain in this and the other House, and outside of both Houses, of the terrible Irish habit which I regard as slavish, of waiting until the English do something before we do it. We did not have warnings on cigarette packets before the English had them; we did not have yellow cross-hatched boxes at road junctions until the English had them; we did not have parking meters until the English had them; we did not have a Workmen's Compensation Act until the English had it.
Mr. Kelly: We did not have seven-cornered 50p pieces until the English had them. I am afraid we are winding ourselves into the situation now where we are all steamed up about the appointment of an ombudsman——
Mr. Kelly: Although I respect and admire Deputy O'Brien's dedication in putting down this motion and pursuing it, I suspect that a lot of the attention given to it by the Devlin  Committee and others in recent years never would have been given to it had it not popped up in the neighbouring island as well. Why cannot we look around us, see what needs to be corrected here and go and correct it without reference to what happens in England? If we find a different type of ombudsman from that existing in England would suit us better, let us have that different type and construct that office fearlessly. I do not think the English type would suit us because it can only be activated through the intervention of an MP in the first instance. There is no direct access by the ordinary citizen. In addition, the ombudsman is prevented from looking at local government matters or at matters where a pure discretion on the part of the Administration is concerned. In other words, a very large range of decisions about which Deputies on all sides were concerned would be outside the purview of this official.
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