The first item on the agenda is the minutes of the meeting of 24 March 2004 which have been circulated. Are the minutes agreed?
Business of Joint Committee
Do we have a copy of them?
Yes, they are in the pack which was circulated. Are the minutes agreed? Agreed. The next item is correspondence of which there are a number of items. I will try to conduct this in public session. A letter has been received from a correspondent who is dissatisfied with the outcome of a settlement with the Revenue Commissioners and with the role of the Ombudsman in that case. I ask members not to refer to the individual by name because he is not present. If members want to have a detailed discussion we will have to go into private session.
At our meeting on 21 January the joint committee agreed to seek information on the way in which this case was concluded by means of an informal meeting with the Ombudsman. Contact was made with the Ombudsman's office which has now written to the joint committee setting out the way the Ombudsman investigates complaints and the way in which the complaint was dealt with. This letter, which has been circulated to members, sets out thoroughly the process leading to the conclusion of the case. Members should have a copy of the letter as it was circulated yesterday in their pigeon holes.
Has the gentleman been writing to all of us?
Yes. A letter has come from the Office of the Ombudsman. In any event I shall summarise it. The letter, which has been circulated to members, sets out thoroughly the process leading to the conclusion of the case. Two matters arise from the letter from the Ombudsman's office. First, it is not the function of this committee to investigate individual cases already dealt with by the Revenue Commissioners or to initiate investigations of individual cases dealt with by the Ombudsman. I cannot see how this committee could usefully intervene in a matter which we were told was settled with the agreement of all parties and which was not the subject of a special report of the Ombudsman. I suggest the committee write to the correspondent, enclosing a copy letter from the Ombudsman's office informing him that, regrettably, the committee cannot investigate individual cases which have not been the subject of a special report by the Ombudsman to the Houses of the Oireachtas.
If I can, I want to get agreement on this approach. Essentially, what I am saying is that when a case has been dealt with by the Ombudsman and if he is not satisfied with the outcome he can, at his initiative, lay a special report before the Houses of the Oireachtas. The Houses of the Oireachtas cannot commence an investigation unless the Ombudsman requests or places a special report before us. If we were to start second-guessing decisions of the Ombudsman we would interfere with the independence of the Ombudsman. It is the Ombudsman's call as to whether the Ombudsman produces a special report for the Oireachtas. He chose not to do so in this case. If the letter was circulated, members would understand precisely what is involved. We have extra copies.
Was this an issue of process or an adjudication of the merits of a case?
It was an adjudication. I will deal with some of the points in the former Ombudsman's letter. Essentially, the Ombdusman is making the case that he has succeeded in preparing public bodies to settle their cases which, in the opinion of the Ombudsman, have not been handled fairly and that, where possible, they should try to negotiate settlement. The complainant believed that the Ombudsman had power to direct the public body to accept his decision. However, the Ombudsman has no such power. This letter states that the absence of such power is a strength rather than a weakness of the Ombudsman's office. If the Ombudsman had such legal power, every time he commenced an investigation, his recommendations could be subject to legal challenge with the result that the entire operation of the Ombudsman of voluntarily bringing matters to conclusion could be jeopardised.
The Ombudsman's office says that it does not have legal power to make directions in particular cases. However, it does have the opportunity to issue a report to a public body. The public body always has the right not to accept the adjudication of the Ombudsman. In this case, the person had sought payment of a refund of tax of approximately €600,000. The Revenue Commissioners were adamant in not acceding to that request. The Ombudsman had asked that it be acceded to but the Revenue Commissioners said "No". The Ombudsman was left in the position where even if he was to lay a special report before the Oireachtas, the Revenue Commissioners could still decide not to make any payment. A compromise figure of €300,000 was suggested on behalf of the taxpayer. The last two paragraphs of the letter deals with the detail of the case. They state:
The Ombudsman met the gentleman in question on 21 January 2003 and advised him of these developments. Two days later, the author of the letters indicated acceptance of the offer and specifically requested that the cheque be issued in settlement as soon as possible. The Office of the Ombudsman intervened on his behalf with the Revenue Commissioners and payment was issued on 29 January. Thus, the Ombudsman brought to a conclusion the process set out in section 6 of the Ombudsman Act in dealing with the Revenue's response to his recommendation.
Before his retirement the Ombudsman responded to a letter from the individual which queried the basis for the settlement. The Ombudsman concluded the letter by saying that it might well be that the individual might consider that the Ombudsman was wrong in his assessment that the payment of €300,000 was not an unsatisfactory response to the recommendation. The Ombudsman said that however it was his decision taken after the fullest considerations of all the alternatives and he remains satisfied that it was the right decision for him to take. Finally, the current Ombudsman, Ms Emily O'Reilly, has asked to point out that having reviewed the file, she fully supports the position taken by her predecessor in this case.
As Chairman of this committee I have personally spoken to Mr. Frank Daly, chairman of the Revenue Commissioners. He has said that at all stages the individual concerned agreed to the compromise settlement and a cheque was issued promptly on the request of the person who made the complaint. What appears to have happened is that subsequent to the matter having been settled, the individual concerned became aware of a special report that was issued by the Office of the Ombudsman on different cases. He felt he was entitled to a special report of the same nature. Even when that special report was issued by the Ombudsman, the Revenue Commissioners still did not accede to the Ombudsman's request until the subsequent Finance Act made the change in legislation. Had that changed not happened, the people subject to those special reports may not have received settlement. That could have easily happened in this case.
I ask members not to refer to the individual's name. The correspondence issued here must not be published as it is private correspondence and has not been officially issued to the members of the committee. Other committees in this situation would go into private session to discuss the matter but I prefer to discuss it as much as we can in public session.
This was dealt with last year and it has been ongoing for some time. The former Ombudsman agreed that the offer of the Revenue Commissioners would not be unsatisfactory. The current Ombudsman took a similar view. My only concern centres on that part of the letter where the Ombudsman outlines that he would not consider it to be an unsatisfactory settlement if the Revenue Commissioners offered €300,000 as it makes me uneasy that he was negotiating with them at that point. At the same time this is a matter of practical politics and there is no doubt that the previous and current Ombudsmen are happy with the outcome. They have both looked at it in great detail. Only in the rarest of circumstances should we attempt to second guess what is a weighted and considered decision of the Ombudsman.
The opening page of the letter from the Office of the Ombudsman stresses that the informal process in which it engages every day entails correspondence and dialogue between the office and the public body on the merits of the complaint. The office's everyday work is toing and froing.
Is it agreed that the committee issue a letter to the complainant on the suggested lines that the committee cannot commence investigations into individual cases? Such a letter will satisfy any queries the committee has. The complainant may not be happy with the outcome but due process will have been followed by all concerned. I ask members not publish this in the interests of the complainant.
With regard to the Maynooth College Chapel, on 4 April, the committee agreed to seek from the Minister of State——
Deputy Paul McGrath is not able to attend today and this item would be of interest to him. Is it possible to adjourn consideration of it?
The item will be adjourned for the agenda of the next meeting. At a recent meeting the committee considered letters seeking changes to the tax treatment of charitable donations from the Carmichael Centre, Threshold and the Irish Charities Tax Reform Group. A detailed letter has been received from the Department and I propose a copy should be sent to these groups. Is that agreed?
The Chairman should also indicate these issues were raised by committee members with the Minister in the course of the Finance Bill.
Agreed. Three statutory instruments have been sent to the committee by the Department of Finance. Under the committee's orders of reference, the committee has the power to consider such statutory instruments made by the Minister and laid before the Houses as it may select. The time in which the Houses can annul statutory instruments is usually limited by statute to 21 sitting days after the regulation is laid down. SI No. 102 of 2004 was laid before the Houses on 23 March. I understand that this instrument amended existing regulations which provide for the payment of a constituency office allowance to Deputies who incur expenses in the provision of an office. Does the committee wish to consider this statutory instrument? I suggest we do not do so because it covers a straightforward situation where Members had jobsharing secretaries between a constituency and Leinster House. It is a minor issue that does not require any examination.
Statutory instrument 124 of 2004 was laid before the Houses on 31 March 2004. The instrument appoints the 24 March 2004 for the coming into operation of section 52 of the Finance Act 2001. This section provides for an extension of the scheme of allowances in respect of capital expenditure on certain fishing boats. However, the 21 day rule does not apply in this case and the provision comes into operation on the day appointed by the Minister.
Statutory instrument 140 of 2004 was laid before the Houses on 15 April 2004. I understand the instrument appoints 1 April 2204 for the coming into operation of section 74(1) of the Finance Act 2004. That subsection provides for an exemption from stamp duty in the sale, transfer or other disposition of intellectual property. However, the 21 days does not apply and the provision comes into operation on the date appointed by the Minister. Those statutory instruments relate only to commencement dates; only the date is mentioned. The commencement date is provided for specifically in the legislation.
On the broader issue, the committee had recently requested a general note from the parliamentary legal adviser which has been received this morning. To allow Members time to consider this document, I suggest we adjourn consideration of it to our next meeting. It arrived this morning and the approach to the statutory instrument appears to be different. We will return to this.
I accept that and it is a good idea. However, I would like to add further questions. There is confusion on the difference between a ministerial order and a statutory instrument and it would be useful to make that absolutely clear in the document.
Another issue that needs to be outlined is the reason that in some legislation there is a provision that it has to be passed positively by both Houses, while in other cases it has to be laid before the Houses and, unless it is rejected either through an annulment or disapproval, it is in order. In both cases, any decision that is taken within the 21 period stands, even if it is annulled by Parliament afterwards.
I have never got a satisfactory answer as to the reason one course of action is chosen instead of the other. An Independent or Opposition Member will always be in favour of a statutory instrument which is required to be approved by both Houses, whereas the Government supporters prefer the negative one, where it is laid before the Houses. I did not look at the Order of Business in the Dáil today but I can guarantee that on a normal day there will be four pages of statutory instruments at the back of the Order Paper. How many Members take the trouble to understand what is included in them? There is also the issue of where they are available. Statutory instruments are sometimes listed with legislation on the Attorney General's website. I do not know if there is access in an orderly fashion to ministerial orders. I would like a broad response to the issues we have dealt with.
We will go through this response and if the issues the Senator raised are not dealt with, we will ask that they be covered.
I understand that statutory instruments are usually available on the counter in the general office after being issued. Ministerial orders are published in the newspaper and in Iris Oifigiúil.
When did Deputy O'Keeffe last have a copy of Iris Oifigiúil in his hands?
I often saw it in the Library.
When was the last time Deputy O'Keeffe had it in his hand?
I have to tell the truth - when I was newly appointed.
It is published on the Government website.
I know the courts have been quite critical of the Oireachtas in the way it handles some issues where, effectively by order, primary legislation is being altered. Perhaps there is a changing environment in which these orders and regulations are being tabled. Perhaps we should ask the legal adviser to consider whether those recent ruling have implications for procedure.
I have another commitment but when considering its work programme I would like the committee to move forward on the issue of decentralisation. At the previous meeting the Chairman raised the issue of a better way of considering expenditure Estimates and the committee should consider that in a formal way and come up with agreed proposals that will improve the quality of debates on the Estimates. The Chairman was right to draw our attention to this at the start of those debates. Rather than have him sound off on the issue, we should put a proposal that could be agreed by all members of the committee.
We will take account of that and I understand the Deputy has indicated he has to leave. The reason for this is the differing practices. This committee was not being sent copies of the statutory instruments as a matter of course and we have instructed the Departments of the Taoiseach and Finance to send the statutory instruments immediately on publication before the expiry of the 21 days. We are dealing only with statutory instruments that specifically come within the brief of this committee.
I think the Senator's remarks should apply across the House. This committee took the initiative. A big gap existed up to this. Members will be able to consider the report from the parliamentary legal adviser between now and the next meeting when we will be able to discuss the matter further.