We were in the middle of discussing an amendment.
Ombudsman (Amendment) Bill 2008: Report Stage (Resumed)
Debate resumed on 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 and it 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.".".
—(Deputy Kieran O'Donnell).
My understanding was that the Minister of State had concluded and Deputy O'Donnell was about to make his second contribution. Do the Deputies agree?
His third.
The advice given to the Chair is that it was his second.
On this occasion it was the second. We were discussing amendment No. 7.
For the information of the House, we are on amendment No. 7, which arises from Committee Stage proceedings, and Deputy O'Donnell is making his second contribution.
I thank the Acting Chairman, who did that in a very efficient fashion.
Another change brought about by this Bill is that the Ombudsman can make general reviews or recommendations; up to now, recommendations were specific to individual public bodies. The provisions in this amendment allow for the gradual building up of a code of practice in terms of general recommendations. The Minister of State spoke earlier about making a legal framework. The change whereby the Ombudsman can make general recommendations will enable the Ombudsman to build up codes of practice for dealing with the various bodies that fall under its remit. In that context, what we are providing is, in essence, a code of practice. The amendment is reasonable and would give a quasi-legal, if not strictly legal, weight to the recommendations.
It is with regret that we see so many of our constituents writing to the Ombudsman with queries and receiving in return excellent reports which are effectively no more than recommendations. They should be a little stronger. This amendment would facilitate, in a structured way, the building up of a code of practice. The Minister referred to this earlier. I would like to hear his views on a code of practice. Does he see merit in such a proposal to give added weight to the recommendations of the Ombudsman?
In one way the Deputy has almost answered himself. Codes of practice, by their nature, are not legally binding. However, bodies are supposed to follow them. In an effort to improve public administration standards generally and avoid the repetition of administrative mistakes, the Office of the Ombudsman has produced over the years, as the Deputy proposes, a series of guidelines or codes of practice for the public service, which serve as templates to improve the quality of specific aspects of customer service. These include The Ombudsman's Principles of Good Administration, Public Bodies and the Citizen — The Ombudsman's Guide to Standards of Best Practice for Public Servants, The Ombudsman's Guide to Internal Complaints Systems, Redress — Getting it Wrong and Putting it Right, and the Statement of Good Practice for the Public Health Service in Dealing with Patients.
Furthermore, where systemic difficulties have been identified in particular sectors, the Office of the Ombudsman has raised these with the Department centrally responsible for the sector. For example, where a problem of a systemic nature arises in one local authority, the Ombudsman contacts the Department of the Environment, Heritage and Local Government to recommend any necessary follow-up action throughout the local authority sector.
The Bill serves to strengthen the role of the Ombudsman in improving general standards of public administration even further. A new provision in section 9 of the Bill allows the Ombudsman to make recommendations in general terms, underpinning an approach the Ombudsman's office has taken in the past based on lessons learned in individual cases. The suggested amendment will provide greater authority to the Ombudsman in dealing with such matters in the future.
The merit of the Office of the Ombudsman is that it is not a court of law; nor should it be. Binding recommendations have certain advantages but, as I have illustrated and as I mentioned on Committee Stage with a quote from the Ombudsman, they also have certain disadvantages. As we know, where a Department or public agency rejects the recommendation of the Ombudsman, the Ombudsman can take action by laying a report before these Houses. This approach has worked well to date in the two cases in which this has occurred.
To continue where I left off before the debate was adjourned, the Oireachtas Joint Committee on Agriculture, Fisheries and Food has not yet finished its deliberations on the Ombudsman's report on the lost at sea scheme, nor has it made recommendations, but in all likelihood it will do so. This may assist in obtaining a resolution of the problem, as happened in the previous case.
Amendment put and declared lost.
I move amendment No. 8:
In page 11, between lines 2 and 3, to insert the following:
10.—Section 6 of the Principal Act is amended by the insertion of a new subsection (9) as follows:
"(9) Where a report has been made under subsection (5) and laid before the Houses of the Oireachtas in accordance with subsection (7), the relevant Oireachtas Committee shall, within 3 months of the report being laid before the Houses of the Oireachtas in accordance with subsection (7), hold a public debate on the contents of that report, which debate shall include an investigation of the content of the report made under subsection (5) into any aspect of that report which concerns the conduct or decisions of a Minister, public official or civil servant.".".
This is an add-on to amendment No. 7. We propose that when a Government agency rejects a recommendation from the Ombudsman, the rejection should be signed by the Minister, who must also make a statement to the Houses on the reasons for the rejection. Within three months of the report being laid before the Houses of the Oireachtas, there should be a public debate which includes an investigation of the contents of the report which concern the conduct or decisions of a Minister, public official or civil servant.
These aspects concern the conduct of decisions of a Minister or public official or civil servant. This is to do with accountability. We want a proper debate and openness and transparency. This is a reasonable amendment which adds to the quality of the work being done by the Ombudsman. The recommendations of the Ombudsman are not legally binding but at least we can have a frank and open debate on the reasons for rejection by the relevant Minister and Department and due process will be in public.
I would not necessarily disagree that the Deputy's amendment is a reasonable one but I will reason further on it and I am not in a position to accept it. The Deputy is proposing to introduce an amendment which would direct the Houses of the Oireachtas to take specific action with regard to a special report of the Ombudsman. Legal advice from the Office of the Attorney General indicates that there would be constitutional difficulties with any provision in legislation which directs the Houses of the Oireachtas to take specific action in respect of a report of the Ombudsman. Article 15.10 of the Constitution clearly sets out that it is a matter for each House of the Oireachtas to make its own rules and standing orders. This is something that could be and perhaps is being considered by the Committee on Procedure and Privileges but the correct way of dealing with this should be through Standing Orders. As stated with regard to the previous amendment and with regard to the specific issue of the Lost at Sea report, meetings between relevant parties and the Joint Committee on Agriculture, Fisheries and Food, are ongoing and the Government will take into consideration the final recommendation, if any, of the Joint Committee on Agriculture, Fisheries and Food.
Quite apart from the more general point that the level of acceptance by public bodies of the Ombudsman's recommendations is very high, under the existing legal provisions which do not specify how special reports should be dealt with, the Lost at Sea report has, none the less, been the subject of extensive debate. There have been statements and debate in the Dáil on 4 February 2010, twice in the Seanad on 18 February and 31 March 2010 and as stated, the relevant parties are in the process of meeting the Joint Committee on Agriculture, Fisheries and Food. It is not clear in the case of this practical example what a further provision in the legislation could add to the extensive debate to which the Lost at Sea report is currently subject.
The Ombudsman stated in her speech to the Joint Committee on Agriculture, Fisheries and Food, on 21 April 2010:
The Ombudsman Act does not prescribe what should happen when an Ombudsman recommendation is rejected by a public body and a special report is laid. This is not necessarily a problem. Many aspects of how the Ombudsman functions are not prescribed in law.
On that basis, I cannot accept the Deputy's proposed, albeit reasonable, amendment.
Amendment put and declared lost.
Amendments Nos. 9 and 10, in the name of Deputy Burton, are out of order. Amendment No. 11 arises out of committee proceedings. Amendments Nos. 13, 14, 27, 28, 29, 30 and 32 are related and may be discussed with amendment No. 11.
Amendments Nos. 9 and 10 not moved.
I move amendment No. 11:
In page 14, line 18, to delete "Department of Justice, Equality and Law Reform" and substitute "Department of Justice and Law Reform".
These amendments arise entirely as a result of the recent restructuring and renaming of some Departments announced by the Taoiseach in March 2010.
Amendment agreed to.
Amendment No. 12 arises out of committee proceedings.
I move amendment No. 12:
In page 14, between lines 19 and 20, to insert the following:
"(2) The Refugee Appeals Tribunal and Refugee Applications Commissioner".
I have already spoken about this amendment so I will be brief. The purpose of the amendment is to extend the remit of the Ombudsman and to include in the reviewable agencies the Refugee Appeals Tribunal and the Refugee Applications Commissioner. I believe it would be an important opportunity to improve the administration of the State and in particular these two institutions to have them included in the remit of the Ombudsman. There are a great many such cases and very rarely are decisions or information given. It would significantly improve public administration if both of these offices were subject to the Ombudsman's actions, particularly given the fact that cases often end up, as the Minister for Justice and Law Reform, constantly bemoans, in the High Court and further courts. If proper administration were applied from the outset, there would be a reduction in the number of court cases and the consequent cost to the Department. There would be an improvement in public accountability and most of all, there would be a significant improvement in public administration and the speed of public administration in these important areas.
While I am not in a position to accept the amendment at present that is not to say that the point Deputy Burton is making does not have some merit. Currently, section 5(1)(e) of the Ombudsman Act 1980 provides the Ombudsman shall not investigate any action taken in the administration of the law relating to aliens or naturalisation. On the advice of the Minister for Justice and Law Reform, I am not in a position to propose any change to this position.
However, it is worth noting that while the Ombudsman's office does not currently have the formal power to investigate immigration and naturalisation matters, the Irish Naturalisation and Immigration Service corresponds with that office on such cases and sets out the factual position on the matter complained of and co-operates fully with the Ombudsman's office in that regard.
The Immigration (Residence and Protection) Bill which the Minister for Justice and Law Reform has indicated will be republished shortly, will change the delivery of immigration and asylum services and is aimed at making these services more efficient and effective. The renewed programme for Government makes reference to the role of the Ombudsman in immigration matters and states: "Following commencement of the Immigration (Residence and Protection) Bill, we will consider the extension of the Ombudsman's remit in relation to specified immigration matters, having due regard for the need to avoid systemic delays". Given that the Immigration (Residence and Protection) Bill will fundamentally change the delivery of immigration and asylum services, any suggestion to extend the remit of the Ombudsman to the immigration area until after the commencement of the new Bill would be premature. On that basis, I cannot accept the Deputy's amendment.
Amendment put and declared lost.
I move amendment No. 13:
In page 15, line 3, to delete "Department of Education and Science" and substitute "Department of Education and Skills".
Amendment agreed to.
I move amendment No. 14:
In page 16, between lines 19 and 20, to insert the following:
"(48) An Foras Áiseanna Saothair".
Amendment agreed to.
Amendment No. 15, in the name of the Minister, arises out of committee proceedings. Amendment No. 16 is related. Amendments Nos. 17 to 21, inclusive, are consequential on amendment No. 16, therefore, amendments Nos. 15 to 17, inclusive, may be discussed together by agreement.
I move amendment No. 15:
In page 16, lines 21 and 22, to delete all words from and including "(excluding" in line 21 down to and including "Commission)" in line 22.
These amendments reflect changes in the broadcasting framework introduced by the Broadcasting Act 2009.
The Broadcasting Act 2009 sets out the regulatory framework for the broadcasting industry in Ireland. It consolidates all Irish broadcasting related legislation in a single Act and provides for an increased level of regulation in the broadcasting industry in Ireland. The Act dissolved the Broadcasting Complaints Commission and the Broadcasting Commission of Ireland and provided for the function of these agencies to be taken over by the Broadcasting Authority of Ireland. The effect of the proposed amendments Nos. 15 and 16 will be to delete the dissolved bodies from Schedule 1. Amendments Nos. 17 to 21, inclusive, are consequential amendments arising from the deletion of the Broadcasting Commission of Ireland. The effect of the amendments will be to renumber correctly the bodies listed under the aegis of the Department of Communications, Energy and Natural Resources that are being brought within the remit of the Ombudsman.
Amendment agreed to.
I move amendment No. 16:
In page 16, to delete line 23.
Amendment agreed to.
I move amendment No. 17:
In page 16, line 24, to delete "(3) Sustainable" and substitute "(2)Sustainable".
Amendment agreed to.
I move amendment No. 18:
In page 16, line 25, to delete "(4) Mining" and substitute "(3) Mining".
Amendment agreed to.
I move amendment No. 19:
In page 16, line 26, to delete "(5) Central"" and substitute "(4) Central".
Amendment agreed to.
I move amendment No. 20:
In page 16, line 27, to delete "(6) Regional" and substitute "(5) Regional".
Amendment agreed to.
I move amendment No. 21:
In page 16, line 28, to delete "(7) An Post" and substitute "(6) An Post".
Amendment agreed to.
Amendment No. 22 arises from Committee proceedings. Amendments Nos. 23 to 25, inclusive, are consequential on amendment No. 22. Amendments Nos. 22 to 25, inclusive, may be discussed together.
I move amendment No. 22:
In page 17, to delete line 6.
Amendment No. 22 arises following the dissolution of the Dublin Transportation Office on 1 December 2009. As the body no longer exists, this is a technical amendment to reflect this. Amendments Nos. 23 to 25, inclusive, are consequential amendments arising from the deletion of the Dublin Transportation Office. The effect of the amendments will be to renumber correctly the bodies listed under the aegis of the Department of Transport that are being brought within the remit of the Ombudsman.
Amendment agreed to.
I move amendment No. 23:
In page 17, line 7, to delete "(3) National" and substitute "(2) National".
Amendment agreed to.
I move amendment No. 24:
In page 17, line 8, to delete "(4) Road" and substitute "(3) Road".
Amendment agreed to.
I move amendment No. 25:
In page 17, line 9, to delete "(5) Railway" and substitute "(4) Railway".
Amendment agreed to.
I move amendment No. 26:
In page 17, to delete line 18.
The Health (Miscellaneous Provisions) Act 2009 provides for the transfer of the National Cancer Screening Service, NCSS, into the Health Service Executive. The order giving effect to the transfer has been signed and the NCSS has been integrated into the HSE's national cancer control programme with effect from 1 April.
Amendment agreed to.
I move amendment No. 27:
In page 17, to delete lines 19 and 20 and substitute the following:
"10. Department of Enterprise, Trade and Innovation but excluding—".
Amendment agreed to.
I move amendment No. 28:
In page 17, to delete line 25.
Amendment agreed to.
I move amendment No. 29:
In page 17, line 26, to delete "Department of Arts, Sport and Tourism" and substitute "Department of Tourism, Culture and Sport".
Amendment agreed to.
I move amendment No. 30:
In page 18, line 4, to delete "Department of Social and Family Affairs" and substitute "Department of Social Protection".
Amendment agreed to.
I move amendment No. 31:
In page 18, line 8, to delete "Combat Poverty Agency" and substitute "General Register Office".
From 1 July 2009, the Combat Poverty Agency and the Office for Social Inclusion have been integrated to form a new division within the Department of Social Protection. The integration of both bodies is in accordance with the Government decision announced in budget 2009. As a division within the Department of Social Protection, it automatically comes within the remit of the Ombudsman. I signalled on Committee Stage of the Bill that I would introduce an amendment to put beyond any doubt that the administrative actions of the General Register Office, GRO, are within the remit of the Ombudsman. Because of its close relationship with the Department of Social Protection, the GRO operates on the basis that its administrative actions are reviewed by the Ombudsman even though it is not explicitly listed in Schedule 1 of the Act. For the purpose of ensuring clarity with regard to its inclusion within the remit of the Ombudsman, it is proposed to make explicit reference to the GRO in Schedule 1 of the Bill. This amendment will not result in any practical change with regard to the policy of the Ombudsman vis-à-vis the GRO, but will serve to ensure there is no room for doubt about its inclusion.
Amendment agreed to.
I move amendment No. 32:
In page 18, lines 12 and 13, to delete "Department of Community, Rural and Gaeltacht Affairs" and substitute the following:
"Department of Community, Equality and Gaeltacht Affairs".
Amendment agreed to.
I move amendment No. 33:
In page 20, lines 8 to 10, to delete ", the National Economic and Social Forum and the National Centre for Partnership and Performance".
As part of the Government's rationalisation programme, a decision was taken to amalgamate the three constituent bodies of the National Economic and Social Development Office, by absorbing the National Economic and Social Forum, NESF, and the National Centre for Partnership and Performance, NCPP, into the National Economic and Social Council, NESC. The NESF and NCCP have been dissolved with effect from 1 April 2010, by orders made under section 34 of the National Economic and Social Development Office Act 2006.
Amendment agreed to.
I move amendment No. 34:
In page 20, to delete line 16.
The Postgraduate Medical and Dental Board is listed as an exempt agency in Schedule 2 of the Bill. It is now appropriate to delete the reference to that board, since it was abolished and its functions transferred to the HSE with effect from 1 January 2009 under the Medical Practitioners Act 2007.
Amendment agreed to.
I move amendment No. 35:
In page 20, line 18, to delete "Radio Telefís Éireann" and substitute "Raidió Teilifís Éireann".
RTE is currently listed as an exempt agency in Schedule 2 of the Ombudsman (Amendment) Bill 2008. This amendment reflects the slight change to the title of RTE made by section 113 of the Broadcasting Act 2009.
I undertook on Committee Stage to indicate the position with regard to commencement of the legislation. I propose a commencement date of 1 January 2011, provided the Bill has been enacted. The resource issue has been addressed in the context of the 2010 Estimate for the Office of the Ombudsman. Despite the emphasis on reducing public service numbers and expenditure across the board, the Minister has proposed an employment control framework ceiling of 93 for the Office of the Ombudsman for each of the years 2010, 2011 and 2012. The office currently has 89.6 whole-time equivalent staff members. On the issue of resources, I can confirm that the potential to merge the Office of the Commission for Public Service Appointments with the Office of the Ombudsman is being explored and the indications are that this will yield administrative advantages for both offices, which would make additional resources available for the new work of the Ombudsman.
I appreciate the need to resource the office adequately to implement the provisions of this Bill and the position can be reviewed within the context of the overall Civil Service employment control framework later in the year. Mindful of the current Exchequer situation, I understand that the Ombudsman is engaging in a strategic review of the office and the deployment of resources.
When does the Minister of State expect the amalgamation of the two bodies will take place and will it involve a reduction in staff between the two? He has indicated the current employment figure for the Office of the Ombudsman is the equivalent of 89.6 whole-time staff. What is the situation in the other body? The Minister of State has indicated a commencement date of 1 January 2011. Effectively, a commencement date of 1 January 2011 is six months off. Is there a particular reason it will not take place before that date?
The Government will be in a position to bring forward possible further amendments to the Bill relating to this situation in the course of its passage through the Seanad, which of course will come back before this House. There also is the question of the Health Information and Quality Authority, HIQA, and the National Treatment Purchase Fund. The present position is that HIQA and the National Treatment Purchase Fund are listed in Schedule 1 as reviewable agencies and as such are being brought within the remit of the Ombudsman. However, given ongoing changes to bodies listed in the Schedules due to the Government's rationalisation programme, the Government will continue to review the bodies included within the Ombudsman's remit during the passage of this legislation through the Oireachtas. The Government is still addressing and discussing the merger of the two offices and it will require some time to work out the precise details with both, but naturally the Government is anxious to further this as quickly as possible.
Amendment agreed to.
Bill reported with amendment, received for final consideration and passed.
The Bill will be sent to the Seanad.