The House may debate this Bill until 8.30 p.m. Deputy O'Brien to move amendment No. 1 in the name of Deputy Kelly.
Ombudsman (No. 2) Bill, 1979: Report and Final Stages.
I move amendment No. 1:
In page 2, line 32, to delete "of the Government".
The phrase "Minister of the Government" does not seem to appear in any other document. Has the Minister considered this point?
This point was raised by Deputy Kelly on Committee Stage. The expression "Minister of the Government" is defined in the Ministers and Secretaries (Amendment) (No. 2) Act, 1977 which provides for the appointments of Ministers of State. It was found necessary to distinguish between the two types of Ministers by using the expressions "Minister of the Government" and "Minister of State". The expression "Minister of the Government" has, therefore, standing in our legal system and is precedented. In the circumstances I do not consider this amendment is necessary.
I move amendment No. 2:
In page 3, between lines 42 and 43 to insert the following:—
"(c) The foregoing paragraph of this subsection shall not be construed so as to prevent Dáil Éireann and Seanad Éireann from recommending the appointment, as Ombudsman, of a person who, at the time of such recommendation, is disqualified from holding that office by virtue of the foregoing paragraph, but the President in such an event shall not appoint such person as Ombudsman until he is satisfied that the entitlement or entitlements mentioned in that paragraph has or have ceased.".
We are asking that the Dáil recommend the making of an appointment, which would be made by the President. The Dáil would nominate a person to be appointed and everything being in order the President would make the appointment. This would cut down on any impediment that might otherwise arise in the appointment of the ombudsman.
(Cavan-Monaghan): Section 2 of the Bill contains the machinery for the appointment of an ombudsman and specifies the term for which he may be appointed. Section 2 (5) (b) provides that
(b) A person who is for the time being entitled—
(i) under the Standing Orders of either House of the Oireachtas to sit therein,
(ii) under the rules of procedure of the European Assembly to sit therein, or
(iii) under the standing orders of a local authority to sit as a member thereof,
shall, while so entitled, be disqualified for holding the office of Ombudsman.
Deputy Kelly's amendment provides that that paragraph shall not be construed as to prevent Dáil Éireann and Seanad Éireann from recommending for the appointment of ombudsman a person who at the time of such a recommendation is disqualified from holding that office by virtue of subsection (5) (a). The amendment goes on to provide that the President in such an event shall not appoint such person as Ombudsman until he is satisfied that the entitlement or entitlements mentioned in that paragraph has or have ceased.
The amendment proposes to enable the Oireachtas to appoint a person who is a member of the Oireachtas, the European Assembly or of a local authority but it provides that the President shall not appoint that person on the recommendation of the Oireachtas until he has resigned from his seat in the Oireachtas, the European. Parliament or the local authority. That is reasonable. If a person who is a member of these Houses is recommended and elects to forego his parliamentary seat in order to take up the position of ombudsman it is reasonable that he should be allowed to do so.
As the Bill stands there is nothing to stop a member of a House of the Oireachtas, the European Parliament or a local authority from being appointed as ombudsman. What is at stake is that he may not hold the two positions concurrently. Deputy Kelly was satisfied on Committee Stage that subsection (5) (b) does not literally exclude a member. All the Deputy was trying to do was to clarify the situation. My advice is that there is no impediment on members of either House, the European Assembly or a local authority standing. The amendment is not necessary and I cannot accept it.
Deputy O'Brien to conclude. We are on Report Stage.
(Cavan-Monaghan): Is the Minister of State saying in effect that what Deputy Kelly wants to have done can be done under the Bill as it stands?
I move amendment No. 3:
In page 6, line 21, after "statute" to insert "(within the meaning of section 3 of the Interpretation Act, 1937)".
This amendment arises from Deputy Kelly's criticism of the term "statute". Deputy Kelly felt that it was too vague and I thank the Deputy for drawing our attention to the possibility of a certain ambiguity about the word. My advice is that the word "statute" in the wider sense could include the Constitution. The subsection therefore could be taken as including the very wide rights under the Constitution to take court action. This was never our intention and I propose this amendment in order to make the meaning of the word "statute" absolutely clear. The definition of statute in section 3 of the Interpretation Act, 1937, will now apply. The definition is as follows:
the word "statute" includes (in addition to Acts of the Oireachtas) Acts of the Oireachtas of Saorstát Éireann, Acts of the Parliament of the former United Kingdom of Great Britain and Ireland, and Acts of a Parliament sitting in Ireland at any time before the coming into force of the Union with, Ireland Act, 1980;
Amendment No. 6 is consequential on amendment No. 4 and amendments Nos. 7 and 8 are related. They may be discussed together.
I move amendment No. 4:
In page 7, line 33, to insert "(a)" after "(3)".
Amendment No. 6 says
(b) In any case in which a Minister has made a request under the foregoing paragraph of this section, the Ombudsman shall
(i) inform the person who has made the complaint that the Minister has made such a request, and furnish to such peson a copy of the reasons stated in writing by the Minister and attached to the request;
That is reasonable where a Minister is claiming a right not to come before the ombudsman. A Minister should not be allowed to use some subterfuge; he should have to give his reasons openly and the ombudsman should make them available to the claimant.
I have accepted Deputy Kelly's amendments in principle. However, I have been advised that, from a drafting viewpoint, it would be more correct to amend subsections (1) and (7) of section 6 of the Bill. In those circumstances and arising from Deputy Kelly's amendments I put down amendments which I trust will meet Deputy Kelly's point.
So long as the person is informed and the reasons are stated publicly.
I move amendment No. 5:
In page 7, line 34, to delete "of" and to substitute "setting out in full".
(Cavan-Monaghan): Will the Minister say what exactly he means by that?
On Committee Stage Deputy Kelly did not object so much to the Minister's power of veto if the reasons were to be stated fully. This is the only feasible way of giving effect to the recommendation. It is not envisaged that the Minister's power would be widely used. It would hardly be in the interests of any Minister to abuse this power given the degree of adverse publicity that would result. I have taken Deputy Kelly's point that in asking the ombudsman not to investigate or to cease to investigate the Minister concerned should be required to give his reasons. I am proposing this amendment to underwrite the seriousness of this power and to ensure that it cannot be lightly used. This amendment will require the Minister to state in full the reasons why he does not want a matter investigated. Taken in conjunction with the amendments which I proposed on section 6 this means that if a Minister stops an investigation he must give his reasons in full and his statement will be available to the complainant and to the Members of the House.
I move amendment No. 7:
In page 8, lines 3 and 4, to delete "not conducting or for discontinuing the investigation" and to substitute "the decision and, if the decision follows the receipt by the Ombudsman of a request under section 5 (3) of this Act, a copy of the request and of the statement in writing of the reasons for the request attached to the request".
I move amendment No. 8:
In page 9, line 8, after "fit." to insert "The terms of a request under section 5 (3) of this Act and of the statement in writing of the reasons for the request attached to the request shall be included in a report under this section.".
I move amendment No. 9:
In page 9, line 36, after "purpose" to insert ",and may require him to answer questions relating to the motives, considerations, or opinions underlying the action of which complaint has been made,".
This is a point that caused some contention during the Committee Stage and resulted in some considerable debate. I think there is agreement between us on our objective, that the Ombudsman should have power to elucidate any information of relevance from persons who attend before him for the purpose of a preliminary examination or investigation. At the time I felt strongly that the section was adequately worded to enable the ombudsman to seek all relevant information from persons attending before him. I said this more than once during that debate. In the end I bowed to Deputy Kelly's knowledge and agreed to look into the matter further in case I was missing something. I have since taken legal advice on the matter and I am assured that section 7 (1) (a) of the Bill as it stands contains nothing that would preclude the ombudsman from questioning persons who appear before him to elucidate their motives or opinions or any other relevant information. I am also assured that this subsection gives all the necessary powers to the ombudsman which he would require in order to carry out his functions in this regard. Therefore I regret to have to reject Deputy Kelly's amendment.
(Cavan-Monaghan): This section of the Bill reads:
The Ombudsman may, for the purposes of a preliminary examination, or an investigation, by him under this Act, require any person who, in the opinion of the Ombudsman, is in possession of information, or has a document or thing in his power or control, that is relevant to the examination or investigation to furnish that information, document or thing to the Ombudsman and, where appropriate, may require the person to attend before him for that purpose and the person shall comply with the requirements.
Deputy Kelly believes that that paragraph as drafted does not confer sufficient powers on the ombudsman to question the person before him fully and adequately. Accordingly, Deputy Kelly proposes to add to that paragraph the words set out in the amendment. Deputy Kelly in other words wants to give the ombudsman power to get behind the action that has been taken, to find out the motives for it and to make sure that the person being investigated, whoever he may be, acted in good faith. I respectfully submit that the amendment can do much good by spelling out clearly and putting beyond doubt the power of the ombudsman to inquire into the matter in question and it certainly can do no harm.
I move amendment No. 10:
In page 10, line 31, to delete "otherwise than in public" and substitute "in private, unless in the opinion of the Ombudsman it would be in the public interest that it should be conducted otherwise than in private, in which case he may conduct it with such limited or general access for the public as he may consider appropriate to the public interest in the particular case".
I think it is in the general interest that it should be public wherever possible. We are giving an option here which I think is important. I should like to hear the Minister's comments.
It has always been the intention of the Bill that the hearings should be in private. Any attempt to introduce public hearings would in my view introduce an undesirable element of confrontation. The ombudsman will require co-operation rather than confrontation. He will have a much better chance of getting co-operation from everyone if the hearings are in private. The introduction of public hearings would involve the ombudsman in a formal, judicial-type sitting. The main aim of the Bill is to provide the man-in-the-street with an independent and easily reached mediator. The keynotes of his office should be informality, speed and accessibility. Public hearings would not assist him to meet those criteria but would rather prove a hindrance. Most of the ombudsman's work will be done through meetings with Departments, Department officials, by examining files and writing to complainants rather than in formal sittings.
Deputy Kelly said he felt there was an echo of Article 34 (1) of the Constitution in the words "otherwise than in public". Presumably, this is part of his reason for putting down this amendment. If there is any echo, it is very faint indeed and my legal advice is that it is of no consequence to the wording of the Bill. I seriously considered Deputy Kelly's amendment but I do not see that it would add anything to the Bill and in fact might prove a hindrance to its operation. I am sorry that I cannot accept it.
(Cavan-Monaghan): Section 8 (1) of the Bill is a short section which reads as follows:
An investigation by the Ombudsman under this Act shall be conducted otherwise than in public.
That is another way of saying that it shall be conducted in private. The whole object of the Bill is to ensure that people will have their grievances fully investigated. There may be cases when it would be in the public interest that a grievance should be investigated in public and that not only would justice be done but be seen to be done. That is the important thing. If a matter concerning a great number of people were investigated in public I think it would have the effect of ensuring that the abuse being investigated would not recur. Deputy Kelly's amendment does not seek to provide that every investigation be held in public. It proposes to amend the subsection by deleting "otherwise than in public" and substituting "in private". In other words, under Deputy Kelly's amendment the normal procedure would still be to hold the investigation in private unless in the opinion of the ombudsman it would be in the public interest that it should be conducted otherwise than in private in which case he could conduct it with such limited or general access for the public as he might consider appropriate to the public interest in a particular case. Nothing could be more reasonable than that.
Deputy Kelly visualises a case which is of wide concern to the public and affects a great number of people. He wants to provide that the ombudsman should have the right and should be obliged to hold this investigation in public to such an extent that he thinks necessary and in the public interest. The amendment then goes on to provide that the ombudsman shall conduct it in public to such an extent that he thinks fit in which case he may conduct it with such limited or general access for the public as he may consider appropriate to the public interest in the particular case. The public interest goes through that amendment from beginning to end. This Bill is all about the public interest. I can see that if a case was once ventilated in public the ombudsman might never be troubled with the same type of case again and the public might benefit enormously.
Amendments Nos. 11 and 12 are related and we may discuss both of them together.
I move amendment No. 11:
In page 10, between lines 42 and 43 to insert the following:
"(3) In an investigation by the Ombudsman under this Act any person who in the opinion of the Ombudsman has a sufficient interest may attend during all or any part of the investigation, in person or represented by counsel, solicitor or otherwise, and shall be entitled to put questions to any other person present at such investigation but only in relation to matters in which, in the opinion of the Ombudsman, he has a sufficient interest, and to the extent of that interest.".
This amendment seeks to ensure that in an investigation by the Commission any person who in his opinion has a sufficient interest may attend or may be represented by counsel, solicitor or otherwise and shall be entitled to put questions. We are saying that once the ombudsman is satisfied that a person may attend the investigation that person may be able to put questions or be represented by counsel so that the person's particular case can be put in the best way possible and he may be able to question people attending the investigation. If we want to see justice being done we should ensure that people may attend and may put questions or may be legally represented and their legal representatives may put the questions to elicit the information which those people feel is necessary for their case. The only way the person can do this is by being present at the investigation and being able to ask questions. If this cannot be done the person involved may feel that his case was not given the kind of slant it should have been given. I ask the Minister to accept this amendment.
Deputy Kelly seems to be trying to cover two points in his suggested amendment. Firstly, he seems to be trying to establish the right of a complainant to be legally or otherwise represented without the ombudsman having any deciding powers in the matter. Secondly, he seems to want to provide for the cross-examination of officials by the complainant or his representatives.
Before replying to these points let me reiterate what the Bill at present allows. It allows the ombudsman to prescribe the procedures for investigations — section 8 (3) — so that if he wishes in a particular case to allow cross-examination he can do so if he considers this is necessary to establish the complainant's case. It also allows the ombudsman to decide if a person should be legally or otherwise represented during an investigation.
The first point I want to make, then, is that Deputy Kelly's amendment does not add at all to the powers of the ombudsman already contained in the Bill in relation to investigations. If I follow Deputy Kelly's line of thought correctly, he is anxious that it would not be the ombudsman who would decide if a person should be represented in an investigation. He also argues that if he does so decide he would be open to challenge in the courts.
My legal advice on Deputy Kelly's suggested amendment is that it does not improve matters. The ombudsman would still have to decide who has sufficient interest in the matter under investigation and the extent of that interest and such decisions would be equally open to challenge in the courts.
I am also advised that if Deputy Kelly's amendment were to be accepted it could lead to the appearance before the ombudsman of complainants or their representatives during most investigations. This would arise because in order to investigate in the first instance the ombudsman must establish that the person making the complaint has sufficient interest in the matter. Under Deputy Kelly's amendment once the ombudsman had established this interest he would have no other say in whether the person was represented or not or whether he would put questions to officials. This would arise irrespective of whether the case was one that could be settled quite simply by the ombudsman through his examination of files, correspondence or whatever.
If this were to be the case the whole system would become cumbersome and probably unworkable. I'have been looking at Deputy Kelly's amendment as a whole with an open mind. I am receptive to anything which will improve the Bill. I can indeed see the basis on which he put forward this amendment. I would, however, ask him, Deputy O'Brien and Deputy Fitzpatrick to consider the logical conclusion of what he is suggesting. We are trying to establish a system whereby the aggrieved citizen can have recourse to an appeal system which will, hopefully, bring him a speedy and satisfactory response if his complaint is justified.
There are, to my mind, two fundamental prerequisites for the success of such a system. First, it must be a system that operates, other than in exceptional cases, in an informal way, that is, without the necessity by and large for formal hearings. Secondly, it must have the confidence and goodwill of the officers whose actions are being complained against. I keep coming back to this point and, while I do not wish to labour it, I make no apologies for stressing it.
I am, therefore, satisfied that it is best to leave the decision on procedure and representation with the ombudsman himself. If we cannot accept that he will take such decisions to best suit the circumstances of each case in accordance with the principles of constitutional and natural justice, then there is nothing we can write into the Bill which would make the system workable. I, therefore, have to reject the amendment.
(Cavan-Monaghan): The whole basis of the ombudsman procedure is to give confidence to the citizen, to convince him that he has a right to go beyond the Department, the executive or beyond whoever else comes within the ambit of the Bill and whom he wants to complain against. Unless the citizen sees that the investigation is fair and open and that he has the opportunity to ask the questions he wants and, if he is not able to put those questions himself, that he is in a position to have a solicitor or barrister present to do that, he may not believe that he is getting a fair crack of the whip. He will end by saying that this is like going to law with the devil and holding the court in hell. He will not be satisfied with the procedure.
The phrase, "in the opinion of the ombudsman" leaves the control with the ombudsman but if the amendment is not accepted an aggrieved person or a person with an interest must only be given an opportunity to comment on the action and if a complaint in relation to the action is made to the ombudsman the complainant will only be able to go in and make a statement whereas the acceptance of Deputy Kelly's amendment would enable that person to participate, that is, if the ombudsman is satisfied that the interest is sufficient to enable him to do so. If the Minister wishes to simplify the matter further he could use the words, "and shall put questions to the other person through the ombudsman."
I did not take part in the various stages of this Bill but I am aware that there is much criticism of the Bill throughout the country and that it is regarded by many as being a piece of machinery without teeth, a piece of machinery which can be negatived by Ministers or by others at various stages. If the person who is aggrieved or who is the complainant is to be excluded from taking any part in the investigations, either through a counsel or solicitor or through his own person or even to the extent that he is not going to be allowed suggest to the ombudsman questions which should be put to the person against whom a complaint has been made, there will be even less respect for this Bill and it will be regarded as a charade and a piece of window-dressing or make-believe.
Amendments Nos. 13 and 15 are cognate while Nos. 14 and 16 are alternatives. All four amendments may be debated together.
I move amendment No. 13:
In page 11, line 21, after "disclosure" to insert "(other than to the Ombudsman or officers of the Ombudsman)".
Deputy Kelly's amendments are helpful in that they clarify the position that it is not intended to prevent the disclosure of documents to the ombudsman. However, I have tabled my own amendments because of my legal advisors telling me that it should be clear also that there is no intention of preventing the disclosure of documents to any of the officers of the ombudsman. I am merely adding a little to Deputy Kelly's amendments.
I move amendment No. 15:
In page 11, line 30, after "disclosure" to insert "(other than to the ombudsman or officers of the Ombudsman)".
I move amendment No. 17:
In page 11, line 50, after "conferred by" to insert "subsections (5) and (7) of".
Mr. T.J. Fitzpatrick
(Cavan-Monaghan): Perhaps the Minister would say something about this amendment.
This amendment will allow the ombudsman very wide powers of delegation. It arose on foot of a question raised by Deputies O'Brien and Kelly on Committee Stage. The amendment will enable the ombudsman to delegate to his officers all his powers except the power to make reports, either annual or special, to the Oireachtas. His officers will be able to issue statements, investigate complaints, notify complainants of the results of investigations and make recommendations to the Department and so on. In short, the ombudsman will be able to delegate to his officers all the normal everyday work of the office. Apart from facilitating the everyday operation of the ombudsman's work these wide powers will have the added beneficial effect that if the ombudsman should be ill or should he be abroad or absent from his duties for any other reason, the office would be in a position to function satisfactorily until his return. The only hold up during his absence would be the making of reports to the Oireachtas.
Perhaps, at this stage, I might be allowed move a minor amendment. I move:
On Page 12, line 15, to delete (No. 2).
Amendments Nos. 18, 19, 20, 21, 24, 29 and 31 are related and may be discussed together.
I move amendment No. 18:
In page 12, 37th line, to delete "Department of Economic Planning and Development".
I move amendment No. 19:
In page 13, 5th line, to delete "Energy" and to substitute "Tourism".
I move amendment No. 20:
In page 13, between the 8th and 9th lines, after "Registrar of Friendly Societies", to insert "Department of Energy".
I move amendment No. 21:
In page 13, 11th line, to delete "Tourism and".
As amendment No. 32 is consequential on No. 22, both amendments may be discussed together.
I move amendment No. 22:
In page 13, between the 15th and 16th lines, after "Department of Health" to insert the following:—
"Bodies set up under the Health Acts
Local Authorities within the meaning of Section 2 (2) of the Local Government Act, 1941
County Committees of Agriculture
Vocational Education Committees".
We discussed this matter on Committee Stage. The amendment is designed to ensure that the scope of the ombudsman be broadened to include the bodies referred to. We would hope that this would be a start and that his scope would be extended further as time passes.
The only reason for excluding these bodies in the first instance was that the all-party committee recommended that they should be excluded. However, I have an open mind on the matter. On Committee Stage I indicated that I would like these bodies to be included but there are certain problems involved. In these circumstances consultations would have to take place and these consultations would involve a matter of some months. While I cannot accept the amendment I am giving a guarantee to the House that I will take the necessary steps, as provided for in section 4, to bring the bodies mentioned in the amendment within the remit of the ombudsman within a period of three months from the date of his appointment. The local authorities, the health boards and the other bodies concerned together with the representatives of their staffs, will be consulted fully in this regard.
(Cavan-Monaghan): The more I hear of this Bill, the more convinced I am of how right the general public are in regarding it as a piece of machinery without teeth. Under the Bill as drafted the ombudsman is not to be permitted to investigate any complaint against the chief executive or any officer of the health board. Neither is he to be permitted to investigate any complaint against the county manager, against any officer of a local authority, against any chief agricultural officer, against any officer of a committee of agriculture or against a chief executive officer or any officer of a vocational education committee. Is not a Bill of this kind of very little use to the people in general who are being affected every day in the week by actions or decisions of a county manager and by the actions or decisions of any of these other officers referred to? I am glad to learn that the Minister can include these bodies in the legislation by way of order.
I have guaranteed to do that within three months of the date of the appointment of the ombudsman.
We must leave it there because I must deal with the remainder of the ministerial amendments.
(Cavan-Monaghan): This is very important. If the bodies in question are not included, the Bill will be meaningless.
I move amendment No. 24:
In page 13, 42nd line, to delete "Energy" and to substitute "Tourism".
I move amendment No. 25:
In page 14, between the 8th and 9th lines, after "Arramara Teoranta" to insert "The Attorney General".
I move amendment No. 26:
In page 14, 21st line, to delete "Broadcasting Complaints Commission".
I move amendment No. 27:
In page 14, between the 37th and 38th lines, after "The Dental Board" to insert "The Director of Public Prosecutions".
In accordance with the order of the House, I now put the question: "That all amendments set down by the Member in charge of the Bill, including any requiring Recommittal and not disposed of, are hereby made to the Bill, and Recommittal and Fourth Stages are hereby completed and the Bill is hereby passed".