Vol. 713 No. 1
I move amendment No. 1:
In page 3, between lines 13 and 14, to insert the following:
"(2) The Ombudsman Acts 1980 to 1984 and this Act may be cited together as Ombudsman Acts 1980 to 2010.".
This is a technical amendment, which provides that the Ombudsman Acts 1980 to 2010 can be cited together.
I move amendment No. 2:
In page 4, between lines 18 and 19, to insert the following:
"(a) an entity established by or under any enactment (other than the Companies Acts) or otherwise an entity referred to in paragraphs (a) to (g) of section 1A, whether the entity was established before or after the passing of the Ombudsman (Amendment) Act 2010, unless the entity is declared by order of the Minister under this Act to be an exempt agency,”.
It would make sense to include all State bodies under the remit of the Ombudsman "unless the entity is declared by order of the Minister under this Act to be an exempt agency". This is a reasonable measure, which we debated on Committee Stage, and it should be considered. We are seeking to introduce inclusive measures that ensure the ordinary person on the street can avail of the Ombudsman's office to deal with a range of bodies. The amendment would result in all bodies coming under the Ombudsman's remit unless the Minister makes an order declaring an entity to be an exempt agency. The reviewable agencies to which the legislation applies are listed in Schedule 1 and the exempt agencies are listed in Schedule 2. I would like the Minister of State to comment on this proposal, which would give the public faith in the workings of the Ombudsman's office. Every State body should be included, with specific exemptions made, because many bodies fall outside the Ombudsman's remit.
I would like to address three issues. First, the Ombudsman is also the Information Commissioner. The Ombudsman's office has served Ireland well and it has helped to create a culture of increasing openness. I welcome the inclusion of additional bodies under the Ombudsman's remit but there are a number of glaring omissions. The Central Bank, the Financial Regulator, Anglo Irish Bank, which has received €22 billion in taxpayer funding, and NAMA, which will be funded by the taxpayer to the tune of €50 billion, fall outside the remit of this legislation. I acknowledge in the context of the proposed Central Bank legislation there are commercial sensitivities.
Nonetheless, the fact that these bodies are not in any way under the remit of the Ombudsman is, in democratic terms, not just an omission but a complete disgrace, given the amount of taxpayers' money these organisations are absorbing. I know it is not the intention of the Minister to make any provision for this in the current legislation, but it is important this is pointed out.
The second area with which we have difficulty is the relationship, or non-relationship, of the Department of Justice, Equality and Law Reform with the Ombudsman. The Department seems to be able to exercise a veto on what may be disclosed. On Second Stage and Committee Stage of the Bill, I referred to the issue of the Refugee Appeals Tribunal and other elements of the asylum and immigration process. The processes developed by the Department have turned out to be much more expensive than was envisaged at the time of the Refugee Act. It is difficult to know what is the advantage to the Department of hiding basic information about the appeals tribunal from people who wish to make inquiries. If the processes were subject to some level of public scrutiny, it may happen, as is often the case with the work of the Ombudsman, that their administration is improved, with gains in cost and efficiency.
As I said, it is a pity that the area of legislation regarding the financial collapse that Fianna Fáil has visited on us all is entirely outside the scrutiny of the Ombudsman, as are large sections of the Department of Justice, Equality and Law Reform, including, in particular, the Refugee Appeals Tribunal. I see no good reason these should not be subject to the work of the Ombudsman. If there are particularly sensitive areas, I am sure the Ombudsman can advise on how to address them.
The purpose of this amendment is to establish an enabling provision which could widen the remit of the Ombudsman legislation so as to exclude only those entities declared by an order of the Minister to be exempt. In other words, there would be an automatic provision to include public bodies in the Ombudsman's remit, and only those specifically exempted by ministerial order, which under the normal rules must come before the House and be debated, would be excluded.
I am not sure whether I understood Deputy O'Donnell correctly, but I was present throughout Committee Stage of the Bill.
That is correct. I was complimenting the Minister of State.
Good.
Not on a matter of policy but on his attendance.
I endorse Deputy Burton's remark that the Ombudsman has served us well. The office has been a valuable safety net in our administrative system. I will not deal with issues regarding the Department of Justice, Equality and Law Reform as these will be discussed in detail under amendment No. 12.
This amendment was proposed on Committee Stage of the Bill. As I stated then, it would represent a departure from the approach adopted since the Ombudsman Act, whereby each entity within the Ombudsman's remit is specified in the legislation. The current approach provides clarity for the Ombudsman and for members of the public with regard to the actions that are reviewable by the Ombudsman. To depart from this approach would have a major effect on the workload of the Ombudsman's office.
Significant preparatory work is required when new bodies come within the remit of the Ombudsman, such as the embedding of proper complaints procedures and clarification of issues of concern. The office must also ensure that prospective complainants are made aware of the aspects of public body administrative actions about which they may complain. From discussions held between the Department of Finance and the Office of the Ombudsman during the preparation of the Bill, it is understood that the Ombudsman would be reluctant to depart from this approach, for the reasons outlined.
I do not disagree with the Deputy's point that where bodies are appropriate for inclusion within the remit of the Ombudsman, that should happen as soon as possible. As outlined on Committee Stage, once the Bill is enacted and the new provisions set out in section 1A of the Ombudsman Act 1980 for adding bodies to the Schedule by order becomes effective, the Department of Finance will consult other Departments with a view to updating the Schedule of reviewable agencies more regularly than hitherto has been the case. This will ensure that a transparent and coherent approach is taken to the inclusion of appropriate entities within the remit of the Ombudsman. On that basis I cannot accept the Deputy's amendment.
I wish to deal with the question of Anglo Irish Bank and the other bodies, such as NAMA, mentioned by Deputy Burton. The exclusion of Anglo Irish Bank Corporation Limited from the remit of the Ombudsman is in line with the long-standing policy whereby commercial semi-State bodies do not come within the Ombudsman's remit. Commercial semi-state bodies operate within a different environment from non-commercial public bodies. They are governed by industry and sector specific rules and are often in direct competition with private companies. To bring such bodies within the remit of the Ombudsman while other companies in the same sector remain excluded may put such bodies at a disadvantage.
This amendment is also inappropriate for the following reasons. First, there is a framework in place for the regulation of Anglo Irish Bank which includes the Financial Services Ombudsman, the Financial Services Regulatory Authority and the Office of the Director of Corporate Enforcement. The powers and functions of these bodies are much broader than those available to the Ombudsman, whose function is to review the administrative actions of public bodies. Second, given the prominence of Anglo Irish Bank, it is important that there is clarity about its status vis-à-vis the Ombudsman. If the bank is not listed in Schedule 2 as an exempt agency, it may be unclear whether actions taken by that body could be reviewed by the Ombudsman; this could give rise to unrealistic expectations among members of the public that the Ombudsman can offer some avenue of appeal or redress with regard to the bank.
When legislation is being enacted to establish a public body, would it not make sense to include a provision that the body falls or does not fall under the remit of the Ombudsman? The Minister of State agreed that there is a need to bring bodies under the remit of the Ombudsman as quickly as possible. I suggest that this be done for particular bodies by making contact with the Parliamentary Counsel. In addition, legislation establishing a body should state whether the body is subject to or exempt from the Ombudsman legislation or, for example, the freedom of information legislation. I would like to hear the Minister's views in this regard.
I referred to financial bodies such as Anglo Irish Bank, NAMA and the new Central Bank structure currently being established. These bodies are at the heart of the financial emergency which has consumed this State and which has caused significant reductions in the wages of both public servants and those in the private sector. Pension levies have been imposed on public servants' pay.
The chairman of that State-owned bank came into an Oireachtas committee last week before he went to visit the Lemass group within Fianna Fáil. He basically gave the two fingers to the committee when asked a series of questions about the different scenarios regarding that bank. He was also asked a very reasonable question of a chairman of a bank, particularly a bank in receipt of €22.5 billion, about the appointment of several directors to the board of the bank, in particular, one individual who had previously been appointed as a Senator by the former Taoiseach, Mr. Haughey, and another individual who was heavily involved in AIB and who is now transferring to Anglo Irish Bank. The questions being asked of the chairman of the bank in the committee were absolutely reasonable. However, the chairman chose to be particularly snooty and answered us with a short quotation in French about the Bourbons and memory, which I am sure the Minister of State is familiar with.
Who is the chairman?
Mr. Dukes is the chairman. He lectured us about the Bourbons. All in all, he was extraordinarily high-handed, clearly because he believed he had about him the cloak of anonymity provided for by the fact that this bank and his operations as chairman are not subject in any way to freedom of information.
The Deputy's time has elapsed.
However lowly Senators may be, and however lowly Members of this House may be, they did not deserve to be treated in that high-handed, imperial and imperious fashion by the current and new chairman of Anglo Irish Bank. Maybe he gave the Lemass group in Fianna Fáil a more kindly lecture.
I could not answer that question as I am not generally speaking in the habit of attending the Lemass group.
I thought a lot of spies went to it.
I do not have spies.
On the core point raised by Deputy O'Donnell, the Ombudsman and her office support the current approach. We have discussed it with them and they are happy with it. Accepting the point that a decision should be made as quickly as possible, that is not quite the same thing as saying there should be an automaticity, so to speak, about it. In fundamental basics, I am not deeply disagreeing with the Deputy.
Deputy Burton ranged far and wide from the subject matter of the Bill. On the sort of responses given to the Joint Committee on Finance and the Public Service, I followed the proceedings with some interest but I do not see where the Ombudsman comes into it. As I said in my original reply, there is a financial services ombudsman and a number of bodies which can deal with specialised financial issues or complaints. It would put a totally impossible burden on the Ombudsman's office if she was taken away from dealing with complaints about administration into complaints about the management of financial issues.
The Minister of State accepts the thrust of the amendment which is that we need a situation where bodies would come under the remit of the Ombudsman as early as possible. The heads of a Bill for the establishment of a particular public body would normally take a year to a year and a half to become legislation before the House. This should provide ample time for the Government to decide whether a body should be exempt or fall under the remit of the Ombudsman. Deputy Burton's point is a valid one. If public bodies, for example, such as Anglo Irish Bank which has received taxpayers' money or Irish Nationwide, come under that remit, it would create a more transparent system.
The Minister of State agrees with the basic thrust of the amendment and he refers to the Ombudsman being happy with the current situation. It is the function of Government to make policy rather than the Ombudsman. The Ombudsman carries out Government policy; it is not the function of the Ombudsman to determine Government policy as that decision lies with the Government. The Minister of State appears to agree with the basic thrust of the amendment, in the time between the publication of the heads of the Bill and the legislation coming before the House, to decide whether a body should be exempted. This then becomes a Government policy decision.
I ask the Minister of State to elaborate on that point and to say whether there is merit in this proposal and whether it would be considered by the Government.
The basic purpose of the amendment is to include automatically bodies as they are formed and initiated into the structure of the Ombudsman and into freedom of information structures. We are in the middle of a tremendous economic emergency and a series of bodies have been created. These are hugely costly to the taxpayer. Anglo Irish Bank has received €22.5 billion; NAMA, I estimate, has received approximately €40 billion to €50 billion, by the time it is finished. Once such bodies are excluded from the remit of the Ombudsman, they are also generally excluded from freedom of information, because the Ombudsman is also the Freedom of Information Commissioner.
This is wrong policy. When the Government sold us the guarantee it suggested this was the cheapest, most effective, cost-free method of addressing the banking crisis. Other countries where there has been freedom of access to information and to the jurisdiction of an Ombudsman, are emerging from their crises while we are still mired in ours. There is a lesson for the Government. More transparency and more jurisdiction by the Ombudsman, more freedom of information provided by her in her role as Freedom of Information Commissioner, might bring us to the point where we could make decisions and exit from the crisis more rapidly. It is, if one likes, a philosophical point that the Government has been addicted to closing down information. This has not served the Government well. The Central Bank, the Financial Regulator's office and the Department of Finance should have had more access to information about what was going on.
The Financial Services Ombudsman is another issue entirely. This office serves people who have an argument with an individual financial services provider, not with the institutions in the context of public institutions as a whole. It concerns somebody with a problem with a loan or because of some kind of maladministration by a private banking service provider. Therefore, the Minister's reply is not pertinent to the point we are making.
While I accept a decision should be taken early, I do not accept the argument that it should be immediate and automatic. We have undertaken to ensure there will be more regular updates than hitherto. When a new body is established, it takes some time for that body to establish its organisation and complaints structures. Therefore, it may be more appropriate, once these have been established, to introduce eligibility for appeals to the Ombudsman. In some borderline cases people may not want an immediate judgment as to whether their case should or should not be in the remit.
With regard to the relationship between the Government and the Office of the Ombudsman, one can always take the formal view that it is the business of the Government to govern and to tell those in the Office of the Ombudsman and every other office what they should or should not do. However, the majority of the time better government is achieved by consultation. Therefore, when the Government legislates for bodies, it has some consultation with the bodies for which it is legislating. It is important to remember the fundamental role of the Ombudsman. It is the role of her office to investigate complaints about maladministration which members of the public experience in their dealings with the Civil Service or public sector bodies and we must prioritise the resources of her office to deal with complaints made by the general public.
I do not disagree with the end sought by Deputy Burton, simply with the means by which she hopes to achieve it. It strains things a little to suggest that how soon we emerge from the current economic situation will relate to the operation of the Office of the Ombudsman. We do, of course, need as much light and accountability as is compatible with the operability of financial institutions. However, that is not best achieved through the Office of the Ombudsman.
I move amendment No. 3:
In page 5, line 30, before ", a draft" to insert the following:
"which excludes elements of an entity".
This is a technical amendment which follows the previous amendment.
I move amendment No. 4:
In page 6, to delete lines 24 to 43.
This amendment arises from a new subsection, section 6(4A), inserted by Government on Committee Stage, which states: "The Ombudsman shall not investigate a complaint by or on behalf of an individual into any action of or on behalf of another person". We feel this amendment is too wide-ranging and has implications for people who act as agents. If, for example, a person who acts as an agent for a charity wished to bring a complaint with regard to how he was dealt with by the Revenue Commissioners, this amendment might restrict the charity from making that complaint. We could have a situation where the charitable body seeking charitable status could not make a complaint to the Ombudsman about how the Revenue Commissioners dealt with the application for charitable status made by the agent. This broad and wide-ranging measure was introduced on Committee Stage, but it is irrelevant and is a restrictive measure in terms of the role of the Ombudsman. I would like to hear the Minister's views on it.
Deputies may recall that following questions from Deputies Bruton and O'Donnell in the course of the Committee Stage debate, I undertook to consult the Office of the Attorney General and the Office of the Ombudsman on the new subsection 4A in section 6. The proposed amendment proposes the deletion of the new provision in its entirety. The purpose of the amendment is to ensure equity in the treatment of those employed directly and indirectly by the State, in respect of their entitlement to take a complaint to the Ombudsman. It has always been a fundamental principle of the way the Ombudsman operates that people who are employed in reviewable agencies should only be able to take a complaint to the Ombudsman in their personal capacity. That is why the 1980 Act and the Bill expressly exclude people working in reviewable agencies from taking a complaint to the Ombudsman other than in their private capacity.
The new provision in section 6(4A) closes a potential loophole in the Bill by ensuring that individuals employed in entities which are funded by the State, but not listed in either Schedules 1 or 2 of the Bill, can also only go to the Ombudsman in respect of a private issue. I will explain this further by comparing, by way of example, the treatment of teachers in VEC and non-VEC schools under the Bill. Teachers in VEC schools will automatically be excluded from taking a complaint to the Ombudsman other than in a personal capacity, as VEC schools will become reviewable agencies under the remit of the Ombudsman. If the new section 6(4A) was removed from the Bill, we could have a situation whereby teachers in non-VEC schools could potentially go to the Ombudsman on any issue, including a matter relating to their own performance and work.
Deputy Bruton raised a general concern about the scope of the provision being too wide and raised a question about whether the provision could, for example, prevent a charity that is funded in whole or in part by the Stated from taking a complaint to the Ombudsman about a decision made by the Revenue Commissioners. The amendment does not exclude bodies such as charities from taking complaints to the Ombudsman.
The provision itself is very narrow. There are only very limited cases in which complaints will be excluded from going to the Ombudsman as a result of this provision. Following the Committee Stage debate, the Office of the Ombudsman and the Office of the Attorney General gave their observations on the points raised by Deputies Bruton and O'Donnell. Both agreed that the exclusion provided for in the new section 6(4A) of the Bill would not exclude an organisation such as a charity, as was referred to in an example by Deputy Bruton, or indeed any other organisation from taking a complaint to the Ombudsman. As I stated previously, the exclusion in section 6(4A) is very narrow in scope and sets out a number of preconditions, all of which must be satisfied before a complaint can be excluded from the remit of the Ombudsman under this section.
I wish to go through each part of the provision to make it clear what is being excluded here. First, the provision states: "The Ombudsman shall not investigate a complaint by or on behalf of an individual into any action of or on behalf of another person." This means that in order for a complaints to be excluded under section 6(4A), the would-be complainant must be an individual. The use of the term "individual" refers to an individual person and is not the same as the legal term "person", which under the Interpretation Act 2005 also refers to a body of persons, either corporate or unincorporated. This means that the exclusion applies only to individuals taking a complaint and not to a company or a charity, as in the example given by Deputy Bruton.
The advice of the Office of the Attorney General and the view of the Office of the Ombudsman are clear in this regard. However, this is not the only criteria that must apply before a complaint can be excluded by this section. In addition to restricting the exclusion to individuals, the action that is the subject of the complaint also has restrictive criteria applying. Section 6(4A)(a)(i) sets out that the action must affect the individual by virtue of being a member, officer, employee or agent of an entity or group of entities. This means that the action about which the individual is complaining must affect him or her because of where he or she works and, as set out in section 6(4A)(a)(ii), the action must also relate to the individual’s own performance in work.
As I stated previously, both the Office of the Attorney General and the Office of the Ombudsman are satisfied that the parameters of this exclusion mean that only in very specific cases relating to their own performance in work will individuals not be allowed to take a complaint to the Ombudsman. On that basis, I cannot accept the proposed amendment.
I seek clarity. Clearly, when one reads section 6(4A) in respect of the individual and how it must relate specifically to his or her personal capacity, it refers to his or her work environment. However, the word "agent" was also mentioned within the section quite regularly. It refers to "a complaint by or on behalf of an individual" and then how that "action affects [such individual] by virtue of being a member, officer, employee or agent of an entity or entities". To get complete clarity in respect of this provision, the Minister of State should define what is an "agent" in the context of an entity and how it would operate in practice.
One example of an agent would be a consultant. I am sure all Members could think of other examples.
Allow me to take it to its logical conclusion. I refer to the case of a consultant, an accountant or an agent for a charitable company that is funded by the State and which has applied unsuccessfully to the Revenue Commissioners for charitable status. Under this provision, would the consultant or accountant be disallowed effectively from requesting that the Ombudsman review the decision by the Revenue Commissioners? This is the point Fine Gael made on Committee Stage. I seek clarification in respect of individuals working for particular bodies. The Minister of State should deal with the agent in that specific context. He should outline how he envisages they fall outside the remit of subsection 4A.
The distinction is whether the complaint is made in a purely personal capacity or whether it relates in any way to his or her employment or acting on behalf of a company or organisation. I will take a completely different example. While I do not know for certain that this is the case, it is quite likely that at least one or two civil servants within the Department of Agriculture, Fisheries and Food are farmers or landholders in their own right. They would not be able to go to the Ombudsman in respect of work-related issues. However, if, for the sake of argument, they had been refused the single farm payment unjustly in respect of the land they held, they could in final resort approach the Ombudsman because it would not be specifically related to their work or the relationship to their work would be entirely coincidental and personal.
I will conclude on this point. Under this section, I refer to someone who is acting as an agent for a charitable organisation that is funded by the State and who performs work on its behalf. Fine Gael used the example of seeking charitable status. If the decision received is not to that person's satisfaction, is he or she entitled to make an application to the Ombudsman to look into the matter under this provision?
Unfortunately, under the rules of Report Stage, I cannot ask the Minister of State to reply unless he goes slightly outside the rules by doing so in one word.
With the Acting Chairman's indulgence, I am prepared to utter a couple of sentences .
I will allow the Minister of State a single sentence, because I am breaking the rules.
I reiterate that no charity is refused access to the Ombudsman over this exclusion and an agent would be able to go to the Ombudsman, provided that the complaint does not refer to an issue that has arisen directly because of his or her own performance at work.
I move amendment No. 5:
In page 7, line 24, to delete "consistently" and substitute "consistent".
This is purely a typographical error in section 7 of the Bill.
I move amendment No. 6:
In page 9, between lines 37 and 38, to insert "and".
This is a technical amendment that corrects the current text by adding an "and" after the preceding paragraph because (b), which follows, is a separate amendment.
I move amendment No. 7:
In page 11, line 2, to delete "concerned.". and substitute the following:
"concerned.
(5) Any recommendation made under subsection (3A), and notified to the person who made the complaint under subsection (4), shall become binding on the reviewable agency and the person making the complaint on that date six months after the Ombudsman has notified both parties of his or her recommendation, unless either party submits to the Ombudsman a written statement of rejection of the recommendation, with the reasons for such rejection, within that period of six months.
(6) Where a reviewable agency submits a written statement of rejection pursuant to subsection (5), the reasons shall be reasonable and shall provide a rationale for the rejection of the recommendation of the Ombudsman.
(7) Where a reviewable agency is a Government Department, submits a written statement of rejection pursuant to subsection (5), the reasons shall be signed by the relevant Minister and that Minister shall make a statement to the Houses of the Oireachtas as to the reasons for his or her rejection of a recommendation of the Ombudsman within 21 days of such rejection.
(8) Notwithstanding the rejection of the recommendations of the Ombudsman pursuant to subsection (6), the reviewable agency shall have due regard to the tenor and spirit of those recommendations in the exercise of its functions.".".
This amendment is to bring clarity in respect of the rulings of the Ombudsman. It would be worthwhile to put in place a mechanism whereby once the Ombudsman issues a finding, it shall become binding on the reviewable agency and the person making the complaint on the date six months after the Ombudsman notifies both parties of his or her recommendations, unless they submit a written statement of rejection, with the reasons, within that six-month period. That would provide a structure and clarity and purpose to the ombudsman's decisions.
We all have constituents who use the Ombudsman. The Ombudsman does great work but it is important for the office to have a structured purpose. If a reviewable agency rejects the recommendation of the Ombudsman, the reason should be reasonable and a rationale should be provided for the rejection. If a Department is involved, the rejection that is sent to the Ombudsman should be signed by the relevant Minister, who should make a statement to the Houses of the Oireachtas outlining the reason for the recommendation within 21 days. If a reviewable agency rejects the Ombudsman's recommendation, it is important that it would have regard to the tenor and tone set out in the recommendation by the Ombudsman.
The reports of the Ombudsman are usually well written and much care is evident in the decisions. What we propose is a straightforward measure that would put a structure in place on recommendations of the Ombudsman whereby within a six month period a recommendation would become binding unless a reviewable agency or a person making a complaint notifies a difficulty with the recommendations. Complaints should be made on reasonable grounds.
If a Department is involved the rejection of the recommendation should be signed by the relevant Minister who should make a statement to the House as to why such a position has been taken. This House is the proper democratic forum for such a statement. In the case of a reviewable agency rejecting the recommendations of the Ombudsman, it should have due regard to the general tenor of the recommendations within the Ombudsman's report.
The amendment is a reasonable one which would help to deal with the lost at sea scheme concerning the tonnage of vessels lost at sea which concerned Deputy Fahey during his time as Minister. There was a case involving the Ombudsman's report previously where there was a difference of view which was referred to the relevant committee, in that case the Joint Committee on Finance and the Public Service. In the latter case an agreement was reached on an all-party basis and the Ombudsman's ruling was accepted. There is a difficulty in that regard for the Government. The Ombudsman is an important, independent office and when maladministration has been identified it should not be a matter of what appears to many of us to be one of political convenience or role-playing for party political reasons, in this case by a former Minister to defend his position. There is a potential to seriously damage the Office of the Ombudsman.
The proposals that have been put forward are reasonable. If there are objections, which can arise, by an agency or an individual concerned by the Ombudsman's ruling who, for example, is the Minister responsible for the body or agency, it is reasonable that he or she should make his or her position known. However, the Government must strive to uphold the importance of the Ombudsman's office and to make provisions for mechanisms which clearly provide for that. In that sense, this reasonable amendment should be supported.
I accept that in terms of general principle the Ombudsman's recommendation in this and in all other jurisdictions in which the office operates should be accepted. There have been a couple of instances where that has not happened. One was mentioned which related to the Revenue Commissioners and the other case relates to the lost at sea scheme, which is still being considered by a different Oireachtas committee, namely, the Joint Committee on Agriculture, Fisheries and Food. It is only fair to state that I had a look at the report this morning in anticipation that it would arise in the debate. The then Secretary General of the Department responsible for marine matters strongly rejected the political interpretation of the decisions taken under that scheme.
The issue was dealt with at some length on Committee Stage. I do not propose to accept amendments aimed at making the recommendations of the Ombudsman binding. The defining characteristic of the Ombudsman Act is that the Ombudsman has the power to make recommendations as opposed to binding decisions. The Ombudsman has been the strongest advocate of the current system and among the strongest critics of those who have called for the recommendations of the office to be made binding. Issuing recommendations rather than binding decisions means that the Ombudsman is able to recommend remedies that would not be offered by a court. That means a body can be held accountable even when there is no legal duty of care or statutory liability.
I put on record on Committee Stage a substantial extract from the Ombudsman's address in 2007 to the Tenth Round Table of Ombudsmen and the Commissioner for Human Rights where she argued strongly and cogently that if her decisions were binding, then all sorts of legal challenges would obstruct the making of recommendations by her office. We must respect that view. Were the Ombudsman empowered to make binding recommendations, her role would be akin to that of a court. Faced with the prospect of legal challenges, the process of investigating complaints would become more legalistic which could result in substantial not to say interminable time delays in processing complaints. We all know how slow legal procedures can be. It is also likely to be the case that there would need to be some avenue of appeal against the Ombudsman's decisions resulting in further delays and costs and thus threatening the informality of the Ombudsman process. Binding recommendations would also interfere with the Ombudsman's relationship with the Legislature. In the event of a recommendation being rejected, the Ombudsman's ultimate power is the right to lay a special report before the Houses of the Oireachtas.
To return to the specific issue of the lost at sea scheme report, meetings between the relevant parties and the Oireachtas Joint Committee on Agriculture, Fisheries and Food are ongoing. The Government will take into consideration the final recommendation, if any, of the joint committee. The level of acceptance by public bodies of the Ombudsman's recommendations is clearly high given that this is only the second time the Ombudsman has ever laid a special report before the Houses of the Oireachtas.
