Ombudsman (Amendment) Bill 2008: Committee Stage (Resumed) and Remaining Stages

SECTION 6
Amendment No. 17 not moved.
Government amendment No. 18:
In page 6, line 25, to delete “an exempt agency” and substitute the following:
“an exempt agency, or an action taken by or on behalf of a reviewable agency excluded from review under this Act”.
Amendment agreed to.
Government amendment No. 19:
In page 7, line 17, to delete paragraph (c) and substitute the following:
“(c) by substituting for subsections (9) and (10) the following:
“(9A) Without prejudice to section 6(7), the Minister may designate a committee of the Houses of the Oireachtas to receive periodic reports from the Ombudsman and make recommendations to the Ombudsman regarding the exercise of his or her functions under this Act.
(10) (a) The Minister, after consultation with the Ombudsman, the Ombudsman for Children and such committee of the Houses of the Oireachtas as he or she considers appropriate, and with the consent of such other Minister (if any) as appears to the Minister to have responsibility for that entity, and having regard to the public interest and the need to ensure a balance between—
(i) appropriate accountability and oversight of entities subject to this Act, and
(ii) the ability of those entities to conduct adequately their affairs, may by order declare an entity—
(I) to be an exempt agency (including an entity that immediately before the making of the order was a reviewable agency),
(II) specified in the Second Schedule to be a reviewable entity, or
(III) specified in Part II of the First Schedule to be a reviewable agency on the basis of different elements of that agency’s functions to those specified in that Part.
(b) An order made under paragraph (a) may specify the inclusion or exclusion of elements of an entity.
(c) Where an order is proposed to be made under paragraph (a), a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.
(d) The Minister shall consult such committee of the Houses of the Oireachtas as he or she considers appropriate prior to taking any action under paragraph (c).
(11) Where a dispute arises between an entity and the Ombudsman as to whether an entity is a reviewable agency, the question shall be submitted to the Minister whose determination shall be binding.”.”.

This is a substituted amendment for the original amendment No. 19, which was discussed with amendment No. 13. I invite the Minister to discuss the substituted amendment.

I have made a small change to the amendment we discussed on 4 October. While the whole text of amendment No. 19 has been substituted, the only change made in the new amendment No. 19 concerns the new subsection (11). I will explain the amendment in full. There are three parts to the amendment, the first of which provides for regular reporting between the Ombudsman and Oireachtas, with the relevant committee being the Joint Committee on Public Service Oversight and Petitions. It is envisaged that the joint committee will be a formal channel of consultation and collaboration between the Oireachtas and Ombudsman for receiving and debating her annual reports and special reports to ensure her criticisms, observations and recommendations are acted on speedily. It is also envisaged that the committee may propose possible topics for the Ombudsman to examine in future, consistent with her statutory remit.

The second part of the amendment provides for the retention, in amendment form, of the power to make a ministerial order to make a public entity, including a reviewable agency, exempt in whole or in part. It provides a new power to make, by ministerial order, an exempt public entity reviewable and, where a public entity is reviewable in part, the power to amend those elements of the entity that are reviewable. A positive resolution of both Houses of the Oireachtas approving the draft orders will be required for the order to be made. The amendment also provides for consultation with the Ombudsman, Ombudsman for Children and Oireachtas committee as well as the consent of the relevant Minister and a positive resolution of both Houses of the Oireachtas in respect of such orders.

In considering whether to exclude or include a public entity within the Ombudsman's remit, which was a matter for considerable debate when I last appeared in the House, the amendment provides that regard will be taken of the public interest, the need to ensure a balance between appropriate accountability and oversight and the need for an entity to conduct its affairs.

The third part provides that, in the event of a dispute arising between the Ombudsman and any particular entity as to the factual position of whether the entity is reviewable in terms of coming under the generic definition of public bodies and, therefore, within the scope of the Ombudsman's remit, the question should be put to the Minister whose decision shall be binding.

Sinn Féin broadly welcomes the amendment. As a member of the Joint Committee on Public Service Oversight and Petitions, I had the good fortune to be present for meetings with the Ombudsman. It is important to have clarification on the role of the joint committee. My party welcomes the establishment of the committee. I had hoped the amendment would go a little further by providing that the Minister "shall" rather than "may" designate a committee. Notwithstanding this, I appreciate the general tone of the amendment and my party will work with the Minister on this issue. The role of the joint committee will be vital in giving credibility to the Houses of the Oireachtas in its dealings with matters of this nature. I will raise a number of other related issues later.

While I do not object to the amendment, I am concerned about the power to designate a committee of the Houses. The legislation should provide that the Oireachtas shall engage in a specific activity rather than allowing a Minister based in Merrion Street to retain the power to tell the Oireachtas what it should do. This goes against the grain of the stated intentions of the Government, as set out in programme for Government. It would be preferable if the relevant committee were provided for in statute and the Minister was not given powers of discretion in this matter.

As with Senator Ó Clochartaigh, I welcome the tenor of the Minister's remarks. We are all on the same side and agree that more scrutiny, checks, balances and reform of governance are required. This is the reason we have been elected to the Oireachtas and I wish the Minister well in that regard.

I thank Senators for their contributions. I was keen to ensure the establishment of the Joint Committee on Public Service Oversight and Petitions. During the negotiations on the programme for Government, it was my view that the committee should have much greater powers than is currently the case and would, if one likes, act as a clearing house for formal Oireachtas inquiries. Unfortunately, the people hesitated in giving this power to the Oireachtas and we must accept their decision in that regard.

I commend the joint committee on undertaking a careful examination of what it could do effectively. A petitions committee of these Houses, analogous to the committee of petitions of the European Parliament, will give citizens a direct input into policymaking.

I fully appreciate the comments made by Senator Ó Clochartaigh on the role of the Ombudsman. In the previous Oireachtas, there was a public dispute about the action taken by the previous Administration on foot of the Ombudsman's report. We need to ensure there is a clear vehicle to deal with recommendations from the Ombudsman. The new Joint Committee on Public Service Oversight and Petitions will assume this role.

I understand the Ombudsman, Ms Emily O'Reilly, came before the committee last week and engaged in a good exchange with members. I look forward to the development of this role not only in respect of the Ombudsman but also the other ombudsmen, including the Ombudsman for Children. This legislation will also broaden the scope of the Ombudsman for Children legislation on foot of a request from the Ombudsman for Children and Minister for Children and Youth Affairs.

That is on foot of a request both from the Ombudsman for Children and from the Minister for children, but we will deal with those amendments when we get them. I thank the Senator for his support.

As the Minister brought up this subject, we are giving more powers to the Ombudsman's office yet the Ombudsman's decisions or recommendations are neither binding nor legally enforceable. Would the Minister consider that recommendations and findings by the Ombudsman's office should be binding? I refer to the point he raised in the previous Administration in 2009 about the lost at sea scheme. On that scheme the Ombudsman stated:

I have also found that the design of the Scheme and the manner in which it was advertised was contrary to fair and sound administration. Based on my analysis of all the evidence available to me I am satisfied that these shortcomings were factors in the Byrne family not qualifying for assistance under the Scheme and that they should be granted a remedy for the adverse affect they have suffered as a result of these shortcomings in the Scheme.

I was a member of the committee that investigated this and we went through the Ombudsman's report. The Ombudsman's findings-----

We are not dealing with the role of the Ombudsman.

I ask the Cathaoirleach to bear with me because it was the Minister who made reference to it. The Ombudsman's findings came back before the House but the previous Government, in protecting one of its own, voted down the Ombudsman's recommendation.

We are not dealing with that report.

Why are we giving more power to the Ombudsman when her recommendations can be thrown out with the bath water, so to speak, and not taken on board when they come before these Houses? In 1984, John Boland, who was then Minister for the Public Service, said that he would not provide legislation for the Ombudsman's recommendations to be legally binding or legally enforceable because he found it unthinkable that a public body or any Department would not accept the Ombudsman's recommendations.

The Senator is straying from the amendment.

Would the Minister consider reopening the lost at sea scheme?

I call Senator Conway and ask him to speak to the amendment.

I welcome the amendment. It is a sound amendment and the role of the committee is being formally recognised.

On the point my colleague, Senator Sheahan, raised, we have come a long way in terms of this legislation and the number of bodies that will now be recognised by the Ombudsman. When I spoke here previously on this issue I said that the State Examinations Commission will now be governed by the Ombudsman, which will make a huge difference to people in terms of decisions that are made by the State examinations body. At least they will have the remedy of the Ombudsman.

Senator Sheahan has a fair point and if it is not possible to do what he suggests in this legislation, when we review the success of this Bill we might examine creating a situation where decisions of the Ombudsman are binding.

I thank Senators for the contributions. On the suggestion that recommendations of the Ombudsman should have statutory effect and should be binding, that is something the Department has discussed with the Ombudsman and it is her view that they should not be. There is an excellent record of compliance with the Ombudsman's recommendations. I understand that since the Ombudsman's office was established, refusals by public bodies to implement recommendations have been a very rare exception. A decision of a public body to reject a recommendation has happened only twice, believe it or not, since the Ombudsman's office was established and those refusals are reported to the Oireachtas in the annual report.

The reasoning behind the view I have taken and the view that is supported by the Ombudsman is that currently public bodies engage with the Ombudsman's office in an open and transparent way. If her recommendations had legal impact immediately the view is that they would be much more defensive in the way they deal with her office and would be much more likely to resort to litigation in defence of a position. Since it is almost inevitable that her recommendations are acted upon it was not felt necessary or appropriate that they would have mandatory effect.

We have completely reorganised the way the Ombudsman's reports will be dealt with. If there were only two refusals to carry out her recommendations since the office was established there is a likelihood that there will be even fewer exceptions in the future because there would be the full scrutiny of an Oireachtas committee as a matter of course, and the power of the Oireachtas to haul the entity in question before it to give an account of itself would be powerful.

On the specific issue the Senator referenced, the lost at sea case, I did make passing reference to it. I am on public record regarding my view on that matter but I do not propose to rake over that particular coal today.

Amendment agreed to.
Question proposed: "That section 6, as amended, be agreed to."

On the section, they tell us a week is a long time in politics and that is certainly the case because it is nearly a week since we were here discussing some of the amendments on this section. New information has come to light in the past week. The Minister alluded to meeting the Ombudsman at the Joint Committee on Public Service Oversight and Petitions, which was excellent, at which she was very clear in her view. To paraphrase her, she said that this Bill is a long time coming and that she very much welcomes it, as we would. She said it was 25 years in the offing. There was a sense of exasperation, to put it mildly, on her behalf.

I again raised the issue, and the Ombudsman had raised it, of the exemptions being included in this Bill which relate to the Irish Prison Service, the Reception and Integration Agency, RIA, the Irish Naturalisation and Immigration Service, INIS, and any agencies under the Department of Justice and Equality. My understanding from listening to the Ombudsman is that she is still very much of the opinion she held in 2008 when this Bill lapsed, namely, that those agencies should be included in this legislation and that they should be under her remit. She had grave concerns about some of the issues relating to those agencies that have come to light over the years but she does not want this Bill delayed in the future. She wants it to be enacted as quickly as possible and she believes that if she were to push for those agencies to be included at this stage it might delay it further. My understanding is that she will try to take what she can get at this stage and go back to the drawing board on those other issues. She was very clear, however, that she wants to keep that on the agenda and that she wants them included. That is important. I believe the Minister would like to have those agencies included also. I know from statements he has made previously that he would wish to have them included.

A week is a long time in politics and that was outlined this morning with the publication of the report on St. Patrick's Institution. It is important to relate to the Minister some of the points made this morning on the Order of Business. Senator after Senator rose to their feet this morning-----

There is no need for us to repeat what was said on the Order of Business.

It is relevant to this debate. On prison conditions, Senator Bacik said that based on the prisons report, which relates to the powers of the Ombudsman which are being exempted under this section, we have been aware of these issues for a long time. Senator Leyden expressed his concern also. Senator Hayden said that she felt there was collusion in the Department of Justice and Equality. Concern was expressed by Senators Keane, Mullen, Paul Coghlan, Wilson and Michael Mullins who-----

The Senator should speak to the section.

This is relevant because it relates to the powers of one of the agencies we spoke about in the section. Senator Michael Mullins referred to the culture of indifference in the Department of Justice and Equality, as mentioned by Emily Logan, the Ombudsman for Children. Senator Jim D'Arcy referred to the mention of institutionalised abuse-----

Those statements are on the record of the House. There is no need for the Senator to repeat them.

The Minister was not present when this was discussed this morning.

I am sure his officials will bring it to his attention.

In addition to Senators Bradford and van Turnhout, Senator Conway, who is present, also stated he supported the proposals and that this was a sad and sorry situation. Senators Healy Eames, O'Keeffe, Colm Burke and Ó Murchú also spoke. That is a cross-section of all Members, which shows there was serious concern regarding this agency and system under the present system. What came across strongly was there was a grave sense of a lack of trust, there was a sense of collusion with the Department of Justice and Equality, that there appeared to be a sense of cover-up and that were it not for the work of Judge Michael Reilly, who took great steps to go above and beyond the call of duty to enter this institution and to check it by day and by night and to call in unannounced, etc.,-----

We cannot have a Second Stage speech on Committee Stage.

This is what I have been calling for. This matter came to light this morning since Members discussed the amendments I tabled. It is relevant and I believe the Minister will accept that. This gives greater credence to the argument that these agencies and any other agency under the remit of the Department of Justice and Equality also should be included. It should not be exempted from this legislation, as is envisaged in this section. Members must review that amendment, as this Bill would be totally flawed, were such an exemption to be included. It would be blatant hypocrisy for such agencies to be left out and were Government Senators to vote to have them excluded, having jumped up and down this morning while expressing their concern about this issue in the Prison Service. There is a serious issue in this regard.

I mentioned the Irish Refugee Council report and there have been other reports on the prison services. I again call on the Minister as even the Leader of the House, Senator Cummins, stated what went on was absolutely shocking----

The question is whether this Senator agrees or not with this section, as amended.

----- and referred to the culture of bullying among a minority of staff. I again call on the Minister to re-address this issue. I believe the Minister wants to have these institutions included and that the Department of Justice and Equality has been applying pressure to keep them off the list and to have them exempted. What do these institutions have to hide? If they have nothing to hide, they should have no fears about being on the list. This was quite obvious from the comments of the Ombudsman when she spoke to the Joint Committee on Public Service Oversight and Petitions last Wednesday. She stated she is not investigating anyone but is looking at whether investigations have been completed properly and is reviewing all the information that has been put forward to make sure that everyone has had a fair crack of the whip and that it has been done properly. Consequently, I again call on the Minister. I believe he is on the same wavelength as me but his hands might have been tied. While I believe the pressure has come from the Department of Justice and Equality, he must stand up to it and do the right thing on this issue.

As is my normal style, I will address the issue directly. First, the Senator puts the position of the Ombudsman very fairly. We have had dialogue and in our discussions and communications, she would prefer to have every public body under her remit. This is groundbreaking legislation and the Ombudsman is very supportive of it and wants it to be enacted. It encompasses a huge swathe of new authorities and agencies that would come within her remit. It will be highly demanding for her and for her staff and as the Senator is aware, rationalisations are also being made in respect of back-office support in the Office of the Ombudsman by agreement with her. This is important legislation that goes a long way. Consequently, the net issue is whether the Prison Service should be part of the Ombudsman's remit. We debated that issue fairly last week. I would need to hear a compelling reason to exclude anyone from it and for that reason, my Department has been in dialogue with the Department of Justice and Equality, as well as every other line Departments in respect of each agency that either has been brought in or excluded and I note there are very few exclusions. On the last occasion, I explained the reason the Prison Service and the prisons are excluded and I will do so again briefly. However, I also wish to mention the report because I am as shocked as I believe was everyone else regarding the report on St. Patrick's Institution. It is quite shocking but is a testament to the effectiveness of the prisons inspectorate.

He is a good man.

Judge Reilly is a superb inspector. His perseverance ensured that this report was made and that these shocking wrongdoings were brought into the public light of day. As I explained, the Minister for Justice and Equality intends having a much more robust inspectorate system. As I also listened to "Morning Ireland" with shock this morning, I rang him immediately to discuss this particular matter. As the Senator is aware, the Minister has extended the remit of the Ombudsman for Children to include St. Patrick's Institution in respect of children. That is one of the steps he took last July. Consequently, in respect of children, the Ombudsman for Children is capable of and does review St Patrick's Institution.

The logical question then is why the prisons in general would not come under the remit of the State Ombudsman and it is a fair question to ask. As I explained on the last occasion, the Minister for Justice and Equality has asked that he be allowed to put in place a robust complaints system by way of statute and he is working on that legislation, which will be brought before this House before too long. Not only will it require detailed reports but I note some of the visiting committee reports have been suppressed in the past and never saw the light of day. This no longer will be allowable under the new legislation, nor will it be possible to bury the full reports of the Inspector of Prisons and Places of Detention. The Minister intends that such reports will be brought to the Houses of the Oireachtas at the latest three months after they are submitted to the Minister for Justice and Equality. Obviously, they must go to the Government and so on before that but at a maximum, three months after their submission. That will be a robust mechanism.

No one would deny the current prisons inspectorate, that is, Judge Michael Reilly, is anything but an excellent Inspector of Prisons and Places of Detention. However, as I indicated on the last occasion, notwithstanding having a robust complaints mechanism, if it is felt that it ultimately proves to be insufficiently robust, I have stated it would be a matter for the joint committee of which Senator Ó Clochartaigh is a member to make recommendations. Notwithstanding this mechanism, it can bring in and examine the Prison Service and if the aforementioned joint committee makes recommendations to that effect, I would be very minded to accept any such recommendations. This is what I am saying to the Senator now.

As for doing this immediately, one job I have is to avoid duplication. For example, a state of affairs in which someone like Judge Reilly is investigating a complaint, calling in the prison staff and demanding the paperwork and access to the data, while at the same time, the Ombudsman is conducting an inquiry into the very same matter, gathering the same documentation, interviewing the same people, is a duplication and a potential clash. Consequently, we must bed down an effective system first and then ascertain whether another layer must be added on top of that. However, my honest belief is that the system that is envisaged, as I understand it from the Minister for Justice and Equality, will prove to be highly robust. I hope the Senator will accept my bona fides in this regard.

I accept the Minister's bona fides and that he is doing his utmost on this issue. However, I also note that the United Nations committee against torture has recommended that an independent and effective complaints body, such as a prison ombudsman, should be established.

Moreover, the Irish Penal Reform Trust also believes that an independent prison ombudsman should be established.

Does the Senator not consider Judge Reilly to be independent?

I do but my point is that what has come across from the report and what was stated clearly this morning was a sense that there might be a culture of collusion within the Department of Justice and Equality on these issues. The report stated that 28 complaints were made by prisoners over the course of a year, of which 13 related to alleged assaults by prison officers. The investigations carried out-----

Senator, we are not discussing the report today.

----- by the prison authorities were flawed, incomplete and could not be said to concur with best practice.

Senator, we are on section 6. We are not discussing the inspector's report.

I am speaking directly to the section. I am discussing the proposed organisation that will be carrying out a review of the prison system and the inspector's report is telling Members there is a sense there could be a culture of collusion within the Department of Justice and Equality. Consequently, even if this system has been set up under the Department of Justice and Equality, my point is the independent viewpoint of the likes of the Ombudsman is needed as the last bastion of transparency and to ensure that people get their rights. It is important to note the report stated:

In a significant number of cases, having made a complaint, prisoners then signed a form stating that they did not wish to proceed further with the complaint. I am satisfied from my investigations that threats are made to prisoners and inducements are offered in order that they would not make complaints in the first instance or, if having made them, in order that such complaints would be withdrawn.

I am satisfied from my investigations that threats are made to prisoners and that inducements are offered in order that they would not make complaints in the first instance or, having made complaints, in order that such complaints would be withdrawn. If that has occurred in St. Patrick's Institution, can we be certain that is not happening in other institutions? I am arguing vehemently because I agree that the creation of an independent prisons complaints service would be a good and positive move to deal with day-to-day issues, as the Minister noted last week. However, there may be cases in which people are not happy with the redress they receive through that service. This is the type of role the Ombudsman plays in our broader society. I do not understand how it could be a duplication because the Ombudsman would only review the process gone through by the service. It would represent another stop-gap to ensure transparency and fair play and to ensure everyone gets their rights. I hold strong views on this issue. If the Ombudsman were given the choice, she would have these agencies included in the legislation and it is remiss of us not to include them at this stage. I have referred to the prisons but it applies to direct provision scenarios as well. I have said it before but I will say it again, a State scandal is happening on our watch and we must do something about it.

The Senator is obviously passionate but he is undermining his own case. He is quoting from the inspector's report which highlights the things he claims are being suppressed. The report and the actions of the Office of the inspector of prisons have ventilated the problems. The system is working. It will be strengthened and it will be put on a structured, statutory basis with timelines such that nothing can be suppressed.

We have a different Minister for Justice and Equality now who has acted by empowering the Ombudsman for Children in respect of St. Patrick's Institution. The Minister has promised reforming legislation in both the areas to which Senator Ó Clochartaigh has referred. I call on him to take on his role as a member of the oversight committee, examine the legislation, including the immigration and naturalisation Bill and the prisons oversight Bill when they come before the Houses. Ultimately if that legislation is not robust enough we will address the matter again. I am not keen on a situation in which by popular acceptance, the office of the inspector of prisons could investigate complaints when there is another body empowered to do the same business. The Garda Síochána Ombudsman Commission and the Ombudsman do not carry out the same job. We do not have two people carrying out the same set of investigations at the same time. That is the logic of the argument put to me and it is compelling. We should let the office of the inspector of prisons which is manifestly effective, do the job, rearmed and reinvigorated by more forceful legislation. I have already said that if that does not prove to be effective we will return to it.

The Minister referred to the immigration and naturalisation Bill. We do not know when that will come before the Houses. It has been kicked to touch in recent years. My issue is that we could put this in place for people in refugee and asylum-seeking scenarios. If we must wait for that Bill to come through, how many people will have suffered injustices by the time it is enacted? If we put this in place now these people would have access to a redress system to which they do not have access at the moment. Their voices are not being heard. The Irish Refugee Council report claims there may be situations of child abuse occurring on our watch. I would prefer to err on the side of caution and at least include this form of redress such that the people in that situation have a voice. The Prison Service is one thing but the refugee and naturalisation service is altogether different. We do not know how long the legislation will take. It is years behind the expected enactment and I do not see it on the books for us to discuss in the near future. I am afraid that it will get kicked to touch for another year or so. How many abuses will have occurred in the intervening one and a half or two years? These people are not being given an opportunity for redress.

We cannot have Second Stage speeches now.

I am not making a Second Stage speech. The Minister mentioned that Bill and it is relevant to what we are discussing. That agency deals with-----

We have been on this section for more than one hour.

It is a justifiable debate because of the changes that have taken place in one week. A report came out yesterday which has had a profound impact on the opinions of people. It took over the Order of Business this morning. People were incensed by it and rightly so.

That particular prison is under the purview of the appropriate ombudsman, the Ombudsman for Children. That is not affected in any way by what Senator Ó Clochartaigh is proposing.

It is of course and the Minister knows it. In a sense this is semantics. The Minister is aware that I am referring to the culture of collusion. This was mentioned. People do not have much belief in the Department of Justice and Equality.

You have made this case about three or four times. You are repeating yourself.

I have and we will be opposing the section. It is a cop out by the Government, which is pandering to the Minister for Justice and Equality.

Is section 6, as amended, agreed to?

On a point of order, Senator Ó Clochartaigh mentioned my name and I want to clarify exactly what I said on the Order of Business. I asked for-----

Senator, that is not a point of order.

I called for a full judicial inquiry this morning about what has happened in St. Patrick's Institution.

The record of the House will speak for itself. That is not a point of order.

I wish to clarify it in the presence of the Minister, who was not here.

Question put:
The Committee divided: Tá, 31; Níl, 8.

  • Bradford, Paul.
  • Brennan, Terry.
  • Burke, Colm.
  • Clune, Deirdre.
  • Coghlan, Eamonn.
  • Coghlan, Paul.
  • Comiskey, Michael.
  • Conway, Martin.
  • Cummins, Maurice.
  • D'Arcy, Jim.
  • D'Arcy, Michael.
  • Gilroy, John.
  • Harte, Jimmy.
  • Hayden, Aideen.
  • Healy Eames, Fidelma.
  • Heffernan, James.
  • Henry, Imelda.
  • Keane, Cáit.
  • Kelly, John.
  • Landy, Denis.
  • Moloney, Marie.
  • Moran, Mary.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Noone, Catherine.
  • O'Donnell, Marie-Louise.
  • O'Keeffe, Susan.
  • O'Neill, Pat.
  • Quinn, Feargal.
  • Sheahan, Tom.
  • Whelan, John.

Níl

  • Barrett, Sean D.
  • Crown, John.
  • Cullinane, David.
  • Mullen, Rónán.
  • Norris, David.
  • Ó Clochartaigh, Trevor.
  • Reilly, Kathryn.
  • van Turnhout, Jillian.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators David Cullinane and Trevor Ó Clochartaigh.
Question declared carried.
Section 7 agreed to.
SECTION 8

Amendment No. 20 is a Government amendment which has also been tabled by the Sinn Féin Senators. It has already been discussed with amendment No. 2.

Government amendment No. 20:
In page 8, to delete lines 44 to 49 and in page 9, to delete lines 1 to 5.
Amendment agreed to.

Amendments Nos. 20a, 21a, 21b and 21c are related and may be discussed together, by agreement.

Government amendment No. 20a:
In page 9, line 6, to delete "(e)" and substitute "(d)".

These are technical amendments which simply update the lettering on a number of paragraphs, as amended, so that (e) becomes (d), (g) becomes (f), (h) becomes (g) and (e) becomes (d).

Amendment agreed to.
Government amendment No. 21:
In page 9, to delete lines 16 to 18 and substitute the following:
“(e) if the action was taken before the date on which the reviewable agency concerned first became subject to review under this Act, or was taken on a date on which the reviewable agency concerned was otherwise not subject to review under this Act,”.

I am substituting amendment No. 21, as submitted to Committee Stage on 4 October, to make a technical amendment to update the lettering of paragraphs (f) and (e) in the amended section 5 of the principal Act. The paragraph itself is a technical amendment which provides that the Ombudsman shall not investigate an action taken before the date on which a public body became subject to the Ombudsman's remit or taken on a date on which the public body concerned was otherwise not subject to review. It is simply ensuring that we cannot go backwards from the date that it is commenced.

Amendment agreed to.
Government amendment No. 21a:
In page 9, line 19, to delete “(g)” and substitute “(f)”.
Amendment agreed to.
Government amendment No. 21b:
In page 9, line 21, to delete “(h)” and substitute “(g)”.
Amendment agreed to.
Government amendment No. 21c:
In page 9, line 36, to delete “(e)” and substitute “(d)”.
Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9
Question proposed: "That section 9 stand part of the Bill."

Perhaps this was already discussed, but I was not here during the last debate. Regarding section 9, the Labour Party put forward an amendment in the Dáil when Fianna Fáil was in government in 2010. That amendment proposed the introduction of a new subsection 3A, stating that, "A reviewable agency shall comply with a recommendation of the Ombudsman". There has been a change in Labour Party policy since the last Oireachtas and I am merely highlighting this fact. I have not put forward amendments to this Bill because it was steered through the Dáil by a Fianna Fáil Minister in the last Oireachtas. We were blamed last week for the Valuation Bill that was only in preparation when we were in government and which none of us knew anything about. However, many of us were here when this Bill was passed in the Dáil originally. The Labour Party had a position then which seems to have changed now. It is worth highlighting that and pointing it out. It begs the question as to why items are put forward that have no reality to them.

I try not to wear partisan political hats when I come before this House as a member of the Government but we already had the debate on this very net point today. I do not know whether the Senator was present an hour ago and that is ---

I am making the point on the section, where the Labour Party proposed ---

I explained exactly the view in relation to that, which was that we looked at the idea of having the Ombudsman's recommendations made mandatory but when we engaged on that basis, before I brought this Bill to the House, the Ombudsman's view was that it should not be done. I have explained that to the House. The view put forward was that there have been only two occasions, since the inception of the Ombudsman, where its recommendations were not implemented and that the office would have much more passive co-operation if there was not a statutory requirement to implement its recommendations. There is, of course, a huge moral suasion to implement recommendations and that is underscored by the fact that it was done in all but two cases. One of those cases was the notorious one we talked about where the last Administration determined not to do it. However, in virtually every case, the Ombudsman's recommendations are regarded as mandatory. We rehearsed the view that they should be made mandatory with the Ombudsman, debated it and I am now giving the House the reasons we are not doing it.

Question put and agreed to.
Sections 10 and 11 agreed to.
SECTION 12

Amendments Nos. 22 and 23 are related and may be discussed together, by agreement.

Government amendment No. 22:
In page 11, line 42, to delete “8A.—(1)” and substitute “8A.—”.

Issues of legal interpretation may arise from time to time in an investigation carried out by the Ombudsman. This section will allow the Ombudsman to refer a question of law arising in an investigation to the High Court for determination. The amendment provides that any such determination of the High Court is subject to the normal avenues of appeal to the Supreme Court, in line with Article 34 of the Constitution.

Amendment agreed to.
Government amendment No. 23:
In page 12, to delete lines 1 and 2.
Amendment agreed to.
Section 12, as amended, agreed to.
Section 13 agreed to.
NEW SECTION

I move amendment No. 24:

In page 12, before section 14, to insert the following new section:

14.—Section 10 of the Principal Act is amended—

(a) by substituting the following for subsection (1)(a):

(1) (a) The Ombudsman may appoint such and so many persons to be members of the staff of the Office (an adequate number of whom should be competent in the Irish language so as to provide service through Irish as well as English) as it may determine with the consent of the Minister and the Minister for Finance,

and

(b) by the deletion of subsection (4).”.

Bhíomar ag iarraidh an fhoráil chéanna a chur chun cinn maidir leis an Bhille sin agus dúirt sé liom labhairt leis nuair a bheadh sé istigh mar go mbeadh Bille eile á thabhairt aige a bhaineann le rialú na dTithe anseo agus bheadh an fhoráil chéanna á cur chun cinn ann. I bprionsabal táimid ag rá an rud céanna anseo ó thaobh Thithe an Oireachtais mar tá sé fíor-thábhachtach go mbeadh daoine anseo ag feidhmiú trí mheán na Gaeilge. Tá conspóid cruthaithe ag an Aire Stáit mar tháinig an Coimisinéir Teanga os comhair an choiste PSOP le fianaise a thabhairt faoina chuid tuairiscí bliantúla. Bhí cás ansin maidir leis an Roinn Coimirce Sóisialaí, nach raibh an Roinn ag cloí le rialachán agus luaigh an tAire Stáit dreamanna nach raibh ag cloí le rialachán de chuid an Ombudsman. Níor chloígh an Roinn Coimirce Sóisialaigh le rialachan a rinne an Coimisinéir Teanga agus níor chloígh sí le threoir ón Roinn Caiteachais Phoiblí agus Athchóirithe faoi dhaoine a earcú a raibh an Ghaeilge ar a dtoil acu.

An freagra a tháinig ar ais ón Roinn Coimirce Sóisialaí ná nach bhfuil siad chun sin a dhéanamh mar go bhfuil siad ag leanúint an Aire féin. Sin an fáth go bhfuil sé seo níos tábhachtaí ná riamh. Tá súil agam go dtabharfaidh an tAire aghaidh ar an cheist eile, maidir leis an earcaíocht agus an cás a thug an Coimisinéir Teanga. Mar an tAire a bhfuil freagracht aige do na ombudsmen, ba cheart go mbeadh sé le feiceáil go bhfuil sé ag tacú leis na moltaí atá á dhéanamh ag na ombudsmen éagsúla. Ní cheart go mbeadh treoir ar bith atá a Roinn ag tabhairt ag teacht salach ar mholtaí atá déanta ag leithéidí an Coimisinéir Teanga nó aon ombudsman eile.

Mar sin, táimid ag iarraidh na forála seo a chur chun cinn. Ní dóigh liom go ndéanfaidh sé aon difríocht. I ndáiríre, táimid ag caint faoi dhaoine nua a bheadh ag teacht isteach sa tseirbhís. Ní bheadh aon chostas breise ag baint le sin. Nuair atá próiseas earcaíochta ar bun, táimid ag iarraidh go ndéanfar cinnte go bhfuil daoine á thógáil ar bord sna Ranna Stáit, agus go háirithe sa chás seo, in Oifig an Ombudsman, atá ábalta a gcuid gnóthaí a dhéanamh trí mheán na Gaeilge. Thabharfadh sin tacaíocht do phobal na Gaeilge agus cuirfeadh sé comhartha dearfach chomh maith ón Rialtas seo go bhfuil sé dáiríre maidir leis an straitéis 20 bliain. Cuideodh sé freisin leis an Bhille seo. Thaispeánfadh sé freisin go bhfuil an ombudsman féin dáiríre faoin Ghaeilge agus faoi sheirbhís iomlán Gaeilge a chur ar fáil do na saoránaigh sin atá ag iarraidh sin. Sin an bunús atá leis an leasú atá muid ag cur chun cinn agus bheinn buíoch don Aire as é a thógáil ar bord.

Tá a fhios agam go maith céard a dúirt mo chara, an iar Aire Gaeltachta, Michael D. Higgins, anois Uachtarán na HÉireann. Tá a fhios agam go maith freisin céard atá ar intinn ag an Seanadóir ó thaobh na Gaeilge agus muintir na Gaeltachta de. Tá stádas ag an teanga agus an Ghaeilge agus tá meas mór ag an Rialtas ar an Ghaeilge. Tá sin soiléir ón méid adúirt an tAire Stáit, an Teachta McGinley, sa Teach seo an tseachtain seo caite.

In respect of the amendment proposed by the Senator, the Office of the Ombudsman is subject to the Official Languages Act 2003 which imposes a binding duty on all public bodies to enable people to communicate with agents of the State in either Gaeilge nó Bearla. It also requires public bodies to publish certain core documents simultaneously in Irish and English, including annual reports, financial statements and statements of strategy. The Office of the Ombudsman and the Office of the Information Commissioner have jointly prepared a scheme under section 11 of the Act relating to their commitments to provide additional Irish language services. I do not know whether the Senator has had an opportunity to peruse the scheme. In these circumstances, the imposition of a specific statutory requirement under this Bill in respect of competency in the Irish language could have the unintended consequence of restricting the ability of the Office of the Ombudsman to ensure it is resourced sufficiently to effectively discharge its important functions. We must disaggregate the two issues, sé sin staid agus meas ar mhuintir na Gaeltachta agus muintir na hÉireann i gcoitinne atá in ann an teanga Gaeilge a úsáid and at the same time ensure we do not place impositions on the Ombudsman that would restrict her in carrying out her duties effectively. We have discussed this issue and believe the strategy devised under section 11 of the 2003 Act meets the requirements set out in the amendment without impeding the proper functioning of the office.

With all due respect to the Minister, I do not buy his argument. One of the main issues identified in the reports of An Coimisinéir Teanga for several years is the failure of agencies and State bodies to fulfil their responsibilities under the Official Languages Act. The opt-out clause used most often is the one which concerns insufficient staff or capacity to comply with the Act. My amendment would close that loophole in the case of the Office of the Ombudsman. The Minister will be aware that when certain parts of the scheme developed by Ard-Mhúsaem na hÉireann were not in compliance with the Act, it offered the excuse that it did not have sufficient staff. In times of economic restraint this is becoming a common mantra for various agencies and Departments. They would love to do it and travel to the Gaeltacht when they can, but, unfortunately, they do not have the staff required when it comes to the Irish language. However, the State has a responsibility in this matter. I referred to another case involving the Department of Social Protection. Apparently, that Department does not need to observe the Official Languages Act when recruiting because the Department of Public Expenditure and Reform has issued guidelines which differ from those relating to the Act. This undermines the Act and I am sure An Coimisinéir Teanga has brought the matter to the Minister's attention.

President Michael D. Higgins was visionary in ensuring the Act would apply to most of our cultural institutions. The predisposition of the Ombudsman to provide a good service as Gaeilge is important because the basic aim of the Act is to cover publications, letter headings, signage and similar matters. It does not govern staffing matters, however, unless they are specifically referred to in schemes. The Ombudsman's scheme is out of date, but I understand that is because the Department of Arts, Heritage and the Gaeltacht has yet to ratify the new scheme. I, therefodre, ask the Minister to reconsider his opposition to the amendment. It would be cost neutral, but it would send a positive message that the Government was serious about promoting the Irish language.

Tá mise sásta leis an bhfreagra a thug an tAire do Sheanadóir Ó Clochartaigh. Measaim go bhfuil sé réasúnta go bhfuil Acht na dTeangacha Oifigiúla curtha i bhfeidhm ag an Ombudsman agus ag na daoine eile a luaigh sé. Ag an am céanna, tá sé tábhachtach go mbeadh daoine sna hoifigí sin in ann teagmháil a dhéanamh trí Ghaeilge. Ach, caithfidh an Rialtas na hacmhainní a thabhairt do na heagrais sin chun ranganna Gaeilge a chur ar fáil do na daoine atá ag obair ansin faoi láthair. Bheadh sé an-áisiúil dá gcuirfeadh an Rialtas ceachtanna ar fáil go ginearálta chun féachaint chuige go mbeadh Gaeilge ar a gcumas ag níos mó daoine. Bheadh sé níos fearr dá mbeadh Gaeilge ag an chuid is mó de na daoine san oifig ionas go mbeadh daoine in ann glaoch a dhéanamh agus labhairt le éinne trí Ghaeilge. Níl sin réalaíoch áfach, ach bheadh sé níos fearr. Caithfimid níos mó Gaeilge a chothú i measc an phobail sula ndéanann muid rud mar seo. Tá Acht na dTeangacha Oifigiúla curtha i bhfeidhm agus tá a lán oibre déanta maidir leis an Acht, ach níl a fhios agam an mbeadh go leor daoine oiriúnacha le Gaeilge ar fáil do na poist dá gcuirfí ar fáil iad.

I appreciate Senators' comments. Tá sé ar chumas mórán de na daoine atá ag obair in Oifig an Ombudsman an Ghaeilge a úsáid. Any complaint or written correspondence will be dealt with as Gaeilge if the complainant so wishes. The Ombudsman is anxious for me to clearly state such a facility is available and that her office is fully compliant with the Official Languages Act.

It is important to put this matter in context. Tá cuid mhaith daoine ann le Gaeilge. Dá mbeadh muid ag leanacht Acht na dTeangacha Oifigiúla, mar atá luaite ag an Seanadóir Byrne, ní bheadh an deacracht seo againn. Is léir nach bhfuil na tuairiscí cinn bhliana a bhíonn ag Oifig an Choimisinéara Teanga léite ag an Seanadóir Byrne, mar tá sé luaite ansin go bhfuil cuid mhaith de na scéimeanna imithe in éag agus-----

Ó Oifig an Ombudsman féin? An bhfuil tuairisc faoi leith ag an Seanadóir a bhaineann leis an Ghaeilge agus úsáid na Gaeilge?

Táim ag rá go bhfuil an oifig iontach dearfach don Ghaeilge agus go bhfuil foireann iontach acu agus scéim réitithe acu. Ach tá an scéim a bhí acu imithe in éag le ceithre bliana.

Tá gearáin faoi leith ag an Seanadóir mar gheall ar dhaoine-----

Sílim go bhfuil an t-úrlár agam, a Chathaoirligh, muna mhiste leis an Aire. Tá gearán déanta le roinnt blianta anuas. Bhí Oifig an Ombudsman ar an liosta des na heagrais nach raibh an scéim daingnithe acu le cúpla bliain anuas. Tá sé á dhéanamh faoi láthair. Bhí an obair réitithe ag an oifig ach ní raibh an scéim á cur i bhfeidhm.

Níor fhreagair an tAire an pointe eile a rinne mé. An bhfuil treoir tugtha ag oifig an Aire don Roinn Coimirce Sóisialaí agus do Ranna eile, gan daoine le Gaeilge a earcadh?

An bhfuil an Seanadóir ag díriú ar an mBille atá á phlé ag an Teach?

Tá. Is mar gheall ar an rud sin atá mé ag moladh an leasaithe seo. Má tá Roinn an Aire ag tabhairt treorach dos na Ranna éagsúla nach gá dóibh cloí le hAcht na dTeangacha Oifigiúla, tá gá leis an leasú. Sin bun agus barr an scéil.

Tá sé ráite ag an Roinn Coimirce Sóisialaí, i gcomhfhreagras a chuir sé ag an gcoiste fo-mhaoirsiú, nár ghá don Roinn cloí le rialacháin an Choimisinéara Teanga a bhaineann le hAcht na dTeangacha Oifigiúla, atá luaite ag an Aire. Tá an tAire ag rá gur leor Acht na dTeangacha Oifigiúla. Tá an Roinn Coimirce Sóisialaí ag rá nach gá cloí leis mar go bhfuil an tAire Caiteachais Phoiblí agus Athchóirithe tar éis a rá gur féidir treoirlínte eile, atá eisithe aige féin, a leanúint. Dá bhrí sin, níl an Roinn Coimirce Sóisialaí ag earcadh daoine le Gaeilge.

Tá sin le feiceáil i gConamara faoi láthair. Bhí an tAire Coimirce Sóisialaí ar an gCeathrú Rua le déanaí agus níl oifigeach ansin atá ábalta déileáil le daoine i nGaeilge, ar na bun seirbhísí. Níl siad ag cloí leis an scéim. Sin an fáth go bhfuil a leithéidí seo tábhachtach. Is bunphrionsabal é go mbeadh an ceart sin againn agus go mbeadh an tseirbhís ar fáil.

Faoi láthair, tá daoine in Oifig an Ombudsman le Gaeilge ach cá bhfios dúinn nuair a imeoidh na daoine sin nach dtiocfaidh daoine eile agus gan Ghaeilge ar a dtoil acu?

Tá a fhios mhaith ag an Seanadóir nach bhfuil sé ar mo chumas-sa, mar Aire, nó ar chumas mo Roinne ordú a thabhairt do aon duine gan cloí le hAcht an Oireachtais.

"Treoir" an focal a d'úsáid mé, i gcead don Aire.

Question, "That section 14 stand part of the Bill," put and declared carried.

Amendment put and declared lost.
Sections 15 and 16 agreed to.
NEW SECTIONS

Amendments Nos. 25 to 28, inclusive, and amendment No. 36 are related and may be discussed together.

Government amendment No. 25:
In page 13, before section 17, but in Part 1, to insert the following new section:
“PART 2
17.—In this Part “Act of 2004” means the Public Service Management (Recruitment and Appointments) Act 2004.”.

These amendments provide for the amendment of the Public Service Management (Recruitment and Appointments) Act 2004 and the merger of the Office of the Commission for Public Service Appointments and the Office of the Ombudsman. The merger is the subject of a recommendation made in the McCarthy report and should lead to greater flexibility in the deployment of staff and administrative efficiencies through the amalgamation of back office supports and functions. The Office of the Commission for Public Service Appointments and the commissioners are to continue, with no change in their specific statutory role. The Vote for the Office of the Commission for Public Service Appointments will be subsumed into that for the Office of the Ombudsman and a separate Accounting Officer role will be discontinued.

Amendment No. 25 defines the term "the Act of 2004" to be the Public Service Management (Recruitment and Appointments) Act; amendment No. 26 amends section 28 of the Act of 2004; amendment No. 27 amends section 29 of the Act of 2004; and amendment No. 28 amends section 32 of the Act f 2004 and provides for the merging of staff of the Office of the Commission for Public Service Appointments and the Office of the Ombudsman. This will allow for their assignment between the functions of the two offices as the need arises. A saver is included in respect of the current director of the Office of the Commission for Public Service Appointments who shall be deemed as designated to be an officer of the Commission for Public Service Appointments and the designation shall not be revoked without his consent.

I found some of the mergers proposed by Mr. McCarthy strange and this is one of them. There is a body charged with recruiting, which it does very well, for which we are all indebted to it, and a body which investigates. Is there synergy between them? If so, where is it, or is this purely an administrative exercise?

The Senator makes a fair point. There is a common back office support system in place and the suggestion is it could serve more than one function. The functions of each will be as defined in the parent Acts, but there will be a common support base.

Would the Human Rights Commission not be a better fit? They are both trying to vindicate citizens' rights. However, I will not push the point.

As the Senator knows, that body is being merged, too.

Somewhere else. I thank the Minister.

I have no objection to this proposal which I support, but I wish to highlight the failures of this and the last Government in regard to mergers in general. The merger of the Competition Authority and the National Consumer Agency was announced as long ago as late 2008. It struggled under the last Government and seems to be struggling under this one. There are many other examples of agencies that could and should be merged, and some of them have been on the cards for the past four years. I would like to see much more progress being made in that regard.

I do not wish to stray beyond the remit of the Bill but, I am of the same mind as the Senator. In the programme I announced last year the Government is committed to merging, subsuming or abolishing 48 agencies this year. It is my intention to ensure, in so far as I can do so, that commitment will be fulfilled.

Táimíd ag tacú, go ginearálta, le prionsabal an Bhille, go bhfuil an leathnú seo ag cur leis an reachtaíocht chun na heagrais a chónascadh.

Bhí caint ann go raibh Oifig an Choimisinéara Teanga le cónascadh le hOifig an Ombudsman. Táimíd ag súil nach bhfuil sé sin chun tarlú. Ní léir dom go raibh aon chomhráití ar bun. Chuir mé ceist ar an Ombudsman faoi sin agus is cosúil nach raibh aon chomhráití foirmeálta ar siúl léi siúd faoi sin. Níl Oifig an Choimisinéara Teanga i bhfábhar sin, níl pobal na Gaeilge ina bhfábhar agus ní bheadh Sinn Féin ina bhfábhar agus tá súil agam nach bhfuil sé ar an mbord agus nach bhfuil sé i gceist ag an Aire dul ar aghaidh leis an gceann áirithe sin. Ní dóigh linn go ndéanfadh sé aon chiall agus nach ndéanfadh sé aon choigilt i ndáiríre.

The Senator will be aware that I made my reform announcements towards the end of last year, in which I outlined the mergers, subsumptions and abolitions envisaged. Each line Department has been working on these since, although not everything can be exactly as proposed. I will bring my proposals to the Government very shortly and they will be published for Senators' commentary as soon as possible thereafter.

When I raised that point with the Ombudsman last week, she said there had been no discussions with her about the possibility of the office of An Coimisinéir Teanga being subsumed into her office. I would like the Minister to confirm that this will not happen and that it is not on the agenda. Various cases have been made to explain why it would not make sense and there has been a huge-----

Can we keep within the scope of the Bill, please?

In fairness, the Minister brought up the point about the subsumption and amalgamation of agencies.

We are talking about a pass which is within the scope of the Bill.

The Minister might make a statement on the matter.

Can we can keep within the scope of the Bill, please? I am conscious of the need to keep within the timeframe indicated.

I have nothing further to say on the matter.

Amendment agreed to.
Government amendment No. 26:
In page 13, before section 17, but in Part 1, to insert the following new section:
18.—Section 28 of the Act of 2004 is amended by substituting the following for subsection (1):
“(1) Subject to subsection (2), the person who is designated by the Ombudsman as the chief executive officer (by whatever name called) of the Office of the Ombudsman shall be the Director of the Office of the Commission who shall be known and is referred to in this Act as the ‘Director’.”.”.
Amendment agreed to.
Government amendment No. 27:
In page 13, before section 17, but in Part 1, to insert the following new section:
19.—The Act of 2004 is amended by substituting the following for section 29:
“29.—(1) For the purposes of the Exchequer and Audit Departments Acts 1866 and 1921 and the Comptroller and Auditor General (Amendment) Act 1993, the person who stands as the duly appointed accounting officer for the appropriation accounts of the Office of the Ombudsman shall also be the accounting officer for the appropriation accounts of the Office of the Commission.
(2) Nothing in subsection (1) shall be read so as to prevent the amalgamation of the appropriation accounts and vote of the Office of the Commission and the Office of the Ombudsman into one appropriation account and one vote.”.”.
Amendment agreed to.
Government amendment No. 28:
In page 13, before section 17, but in Part 1, to insert the following new section:
20.—The Act of 2004 is amended by substituting the following for section 32(1):
“32.—(1) With effect from the commencement of the Ombudsman (Amendment) Act 2012, in so far as it relates to the Office of the Commission:
(a) the members of the staff of the Office of the Commission upon such commencement shall become members of the staff of the Office of the Ombudsman,
(b) subject to paragraph (c), such and so many officers and staff of the Ombudsman as may be designated from time to time by the Director for the purposes of staffing the Office of the Commission and any such designation may be revoked at any time,
(c) the person who immediately before such commencement had been the Director shall cease to be the Director upon such commencement and—
(i) shall be deemed to be an officer of the Office of the Ombudsman designated to the Office of the Commission, and
(ii) such deemed designation shall not be revoked without his or her consent.”.”.
Amendment agreed to.
Section 17 agreed to.
NEW SECTIONS

I tabled amendments Nos. 29 to 31, inclusive, but they have been ruled out of order.

Amendments Nos. 29 to 31, inclusive, not moved.
Government amendment No. 32:
In page 13, before section 18, to insert the following new section:
18.—The Ombudsman for Children Act 2002 is amended—
(i) in subsection (1), by substituting for the definition of “public body” the following:
(ii) in subsection (6)(c), by deleting “other than in sections 14 to 16,”,
(b) in section 9(1)(c), by deleting “specified in Schedule 2”,
(c) by repealing section 10(7),
(d) in section 15, by substituting “reviewable agency (within the meaning of that Act) concerned” for “Department of State, or other person specified in Part 1 of the First Schedule to that Act, concerned”, and
(e) by repealing Schedules 1 and 2.”.

Acceptance of the amendment will involve the deletion of section 18.

This provides for the amendments to the Ombudsman for Children's Act, as I indicated previously. It substitutes the definition of public body to provide that the jurisdiction of the Ombudsman for Children will automatically follow any changes in the jurisdiction of the Ombudsman. As entities are made reviewable or exempt, in whole or in part, the changes will apply to both the Ombudsman and the Ombudsman for Children.

The provision also makes some consequential technical amendments to the Ombudsman for Children Act, including a repeal of the schedule attached to the Act. Acceptance of the amendment involves the deletion, as the Acting Chairman has said, of section 18. This is on foot of the specific request of the Ombudsman for Children.

Amendment agreed to.
Section 18 deleted.
Sections 19 to 21, inclusive, agreed to.
SCHEDULE
Government amendment No. 33:
In page 14, to delete lines 4 to 34, to delete pages 15 to 17 and in page 18, to delete lines 1 to 7 and substitute the following:
“ “FIRST SCHEDULE
REVIEWABLE AGENCIES
PART I
(b) an entity established by or under any enactment, statutory instrument or charter (other than the Companies Acts) or any scheme administered by a Minister of the Government;
(c) a company (within the meaning of the Companies Acts) a majority of the shares in which are held by or on behalf of a Minister of the Government;
(d) any entity (other than an entity to which paragraph (a) or (b) relates) established or appointed by the Government or a Minister of the Government;
(e) a subsidiary (within the meaning of the Companies Acts) of a company to which paragraph (c) relates;
(f) an entity (other than a subsidiary to which paragraph (e) relates) that is directly or indirectly controlled by an entity to which paragraph (b), (c), (d) or (e) relates;
(g) an entity on which functions are conferred by or under statute, statutory instrument or charter, but only in respect of those functions;
(h) a higher education institution in receipt of public funding;
(i) an entity that immediately prior to the enactment of the Ombudsman (Amendment) Act 2012 was subject to review by the Ombudsman.
PART II
Part I of this Schedule does not include a reference to—
(a) the Adoption Authority of Ireland, insofar as it relates to the making of an adoption order or the recognition of an intercountry adoption effected outside the State, within the meaning of the Adoption Act 2010;
(b) An Bord Altranais, except as it relates to an action taken in the performance of administrative functions relating to the establishment and maintenance of a register of nurses under the Nurses Act 1985 and to its role as the competent authority for the purposes of mutual recognition of nursing qualifications obtained in or recognised by a Member State;
(c) Bord na Radharcmhastóirí, except as it relates to an action taken in the performance of administrative functions relating to the establishment and maintenance of a register of optometrists and dispensing opticians under the Opticians Acts 1956 and 2003 and to its role as competent authority for the purposes of the mutual recognition of relevant qualifications obtained in or recognised by a Member State;
(d) the Courts Service, except as it relates to an action taken in the performance of administrative functions under section 5 of the Courts Service Act 1998;
(e) the Dental Council, except as it relates to an action taken in the performance of administrative functions relating to the establishment and maintenance of a register of dentists and dental practitioners under the Dentists Act 1985 and to its role as the competent authority for the purposes of mutual recognition of dental qualifications obtained in or recognised by a Member State;
(f) the Department of Justice and Equality, insofar as it relates to an action—
(i) taken in the administration of the law relating to immigration or naturalisation,
(ii) taken in the administration of the prisons or other places for the custody of persons committed to custody by the Courts,
(iii) involving the exercise of the right or power referred to in Article 13.6 of the Constitution, or
(iv) involving the remission of any forfeiture or disqualification imposed by a court exercising criminal jurisdiction;
(g) the Health and Safety Authority, except as it relates to an action taken in the performance of administrative functions under section 34 of the Safety, Health and Welfare at Work Act 2005;
(h) the Health and Social Care Professionals Council, except as it relates to an action taken in the performance of administrative functions under Part 4 of the Health and Social Care Professionals Act 2005;
(i) the Health Service Executive, insofar as it relates to an action taken –
(i) by persons when acting on behalf of the Health Service Executive and (in the opinion of the Ombudsman) solely in the exercise of clinical judgement in connection with the diagnosis of illness or the care or treatment of a patient, whether such opinion is formed by the person taking the action or by any other person; or
(ii) an action taken by the Health Service Executive when acting on the advice of persons referred to in subparagraph (i), being actions of the Health Service Executive that, in the opinion of the Ombudsman, were taken solely on such advice;
(j) the Legal Aid Board, insofar as it relates to the provision of legal services (advice or representation) by solicitors of the Legal Aid Board, or by private solicitors working under the auspices of the Legal Aid Board, to clients;
(k) a local authority (within the meaning of the Local Government Act 2001), insofar as it relates to the performance of reserved functions within the meaning of that Act;
(l) the Medical Council, except as it relates to an action taken in the performance of administrative functions relating to the establishment and maintenance of a register of medical practitioners under the Medical Practitioners Act 2007 and to its role as the competent authority for the purposes of mutual recognition of medical qualifications obtained in or recognised by a Member State;
(m) the Personal Injuries Assessment Board, except as it relates to an action taken in the performance of administrative functions under Part 3 of the Personal Injuries Assessment Board Act 2003;
(n) the Pharmaceutical Society of Ireland, except as it relates to an action taken in the performance of administrative functions relating to the establishment and maintenance of registers of pharmacists, pharmaceutical assistants and retail pharmacy businesses under the Pharmacy Act 2007 and to its role as the competent authority for the purposes of the mutual recognition of relevant qualifications obtained in or recognised by a Member State;
(o) the Pre-Hospital Emergency Care Council, except as it relates to an action taken in the performance of administrative functions relating to the establishment and maintenance of registers of pre-hospital emergency care practitioners under the Pre-Hospital Emergency Care Council (Establishment) Order) 2000 (S.I. 109 of 2000) and to its role as the competent authority for the purposes of mutual recognition of relevant qualifications obtained in or recognised by a Member State;
(p) the Private Residential Tenancies Board, except as it relates to an action taken in the performance of administrative functions under Part 7 of the Residential Tenancies Act 2004;
(q) the Property Services Appeal Board, except as it relates to an action taken in the performance of administrative functions relating to the establishment and maintenance of a register of licensed property service providers under the Property Services (Regulation) Act 2011 and to the specification of qualification and other requirements for property service providers under that Act;
(r) the Property Services Regulatory Authority, except as it relates to an action taken in the performance of administrative functions relating to the establishment and maintenance of a register of licensed property service providers under the Property Services (Regulation) Act 2011 and to its role relating to the specification of qualification and other requirements for property service providers under that Act;
(s) the Radiological Protection Institute of Ireland, except as it relates to an action taken in the performance of administrative functions under section 7 of the Radiological Protection (Amendment) Act 2002;
(t) the Veterinary Council of Ireland, except as it relates to an action taken in the performance of administrative functions relating to the establishment and maintenance of a register of veterinary practitioners and a register of veterinary nurses under the Veterinary Practice Act 2005 and to its role as the competent authority for the purposes of the mutual recognition of veterinary qualifications obtained in or recognised by a Member State.”.”.

The amendment has already been discussed with amendment No. 2. I note that if the amendment is agreed, then amendment No. 34 cannot be moved.

Amendment put and declared carried.
Amendment No. 34 not moved.
Government amendment No. 35:
In page 18, to delete lines 10 to 31, to delete page 19 and in page 20, to delete lines 1 to 17 and substitute the following:
“ “SECOND SCHEDULE
EXEMPT AGENCIES
1. Abbey Theatre
2. Aer Lingus
3. An Bord Pleanála
4. An Post
5. Army Pensions Board
6. Arramara Teoranta
7. Bantry Bay Harbour Commissioners
8. Bord Gais Éireann
9. Bord na gCon
10. Bord na Móna
11. Broadcasting Authority of Ireland
12. Bus Átha Cliath - Dublin Bus
13. Bus Éireann
14. Central Bank of Ireland
15. Coillte Teoranta
16. Coimisinéir Teanga
17. Commission for Aviation Regulation
18. Commission for Communications Regulation
19. Commission for Energy Regulation
20. Commission for Public Service Appointments
21. Commission to Inquire into Child Abuse
22. Commissioners of Irish Lights
23. Comptroller and Auditor General
24. Córas Iompair Éireann
25. Cork Airport Authority plc.
26. Coroners appointed under the Coroners Act 1962
27. Criminal Assets Bureau
28. Data Protection Commissioner
29. Defence Forces
30. Director of Public Prosecutions
31. Drogheda Port Company
32. Dublin Airport Authority plc.
33. Dublin Port Company
34. Dún Laoghaire Harbour Company
35. EirGrid plc.
36. Electricity Supply Board
37. Employment Appeals Tribunal
38. Environmental Protection Agency
39. Equality Tribunal
40. Financial Services Ombudsman
41. Galway Harbour Company
42. Garda Síochána Inspectorate
43. Garda Síochána
44. Garda Síochána Ombudsman Commission
45. Health Insurance Authority
46. Horse Racing Ireland
47. Housing Finance Agency plc.
48. Human Rights Commission
49. Iarnród Éireann - Irish Rail
50. Irish Auditing and Accounting Supervisory Authority
51. Irish Aviation Authority
52. Irish Bank Resolution Corporation Limited
53. Irish Film Board
54. Irish Financial Services Appeals Tribunal
55. Irish National Petroleum Corporation Limited
56. Irish National Stud Company Limited
57. Judge Advocate-General
58. Judicial Appointments Advisory Board
59. Judicial Studies Institute
60. Labour Court
61. Labour Relations Commission
62. Law Reform Commission
63. Marine Casualty Investigation Board
64. Medical Bureau of Road Safety
65. Mental Health (Criminal Law) Review Board
66. Mental Health Commission
67. Mining Board
68. National Advisory Committee on Drugs
69. National Asset Management Agency
70. National Concert Hall
71. National Development Finance Agency
72. National Disability Authority
73. National Economic and Social Development Office
74. National Lottery Company (within the meaning of the National Lottery Act 1986)
75. National Oil Reserves Agency
76. National Pensions Reserve Fund Commission
77. National Tourism Development Authority
78. National Treasury Management Agency
79. New Ross Port Company
80. Office of the Attorney General
81. Office of the Confidential Recipient
82. Office of the Director of Corporate Enforcement
83. Office of the Information Commissioner
84. Office of the Inspector of Prisons
85. Office of the Ombudsman
86. Office of the Ombudsman for Children
87. Office of the Ombudsman for the Defence Forces
88. Office of the President
89. Pensions Ombudsman
90. Poisons Council
91. Port of Cork Company
92. Port of Waterford Company
93. Private Security Authority
94. Private Security Appeal Board
95. Raidió Teilifís Éireann
96. Railway Procurement Agency
97. Referendum Commission
98. Refugee Appeals Tribunal
99. Refugee Applications Commissioner
100. Residential Institutions Redress Board
101. Rights Commissioners
102. Shannon Airport Authority plc.
103. Shannon Foynes Port Company
104. Social Welfare Tribunal
105. Standards in Public Office Commission
106. State Pathologist
107. Teilifís na Gaeilge
108. Valuation Tribunal
109. Voluntary Health Insurance Board
110. Wicklow Port Company”.”.
Amendment put and declared carried.
Question proposed: "That the Schedule, as amended, be the Schedule to the Bill."

I have two concerns. First, should there be a Schedule? The Bill contains principles which deals with the law itself and relate to industrial relations and financial matters. I would leave it to the courts to decide.

Second, in the 2008 Bill there were 59 exclusions but this time the Minister has carefully numbered all 110 of them. I am worried about that development. Can a Schedule alter what is contained in the body of a Bill? In other bodies that I am associated with one cannot have something in a Schedule that is not in the body of the Bill. I do not know whether the 110 people have achieved that much by getting themselves exempt if the decision of the court was that they were not exempt under the three grounds stipulated in the Bill. I am also concerned that 59 exclusions have increased to 110 exclusions.

There are some new exclusions. NAMA is excluded now but it was not excluded in 2008. The Irish Auditing and Accounting Supervisory Authority was not exempt in 2008. We have had a lot of problems with the accounts of Irish banks since then and I do not know how they became exempt between 2008 and now. There are some peculiar things in the Bill. I am against the idea of exemption schedules in general and the way it "growed" like Topsy since 2008. I shared the Minister's objective of extending the powers of the Ombudsman then. However, 110 people do not like it now whereas only 59 people did not like it in 2008 so I propose a toast to the Minister.

I have a certain sympathy with the Senator's comments. In an ideal world we would all like for no agencies to be exempt from the oversight of the Ombudsman. I understand that a number of agencies have been included now because commercial interests must be included in the exemptions list.

It is extremely regrettable that organisations that come under the aegis of the Department of the Justice and Equality, including the Irish Nationalisation and Immigration Service, INIS, Reception and Integration Agency, RIA, and the Prison Service shall not be covered by the Bill. The Schedule does not reflect that but my party wants them covered by the Bill. I am taken aback that the Fianna Fáil Party has gone down the same route and supports the viewpoint that the Department should remain outside the auspices of the Bill. The move is very regrettable and my party will seek to have it included in future versions of the Bill.

I do not intend to re-open the debate that we had for most of the last day and today. There are coherent and good reasons for the exclusions and I hope that I have outlined them. The matter is not closed and we can revisit it.

With regard to Senator Ó Clochartaigh's comment, I try not to be partisan when I present legislation and I favour openness and transparency in all matters. His party could be more transparent about a number of ongoing public concerns that have been voiced. We can all contribute to ensuring that-----

There is no need for that comment, Minister.

Transparency should apply. I do not mean that in any other way. When we preach about something we must abide by it ourselves. I can take any fair criticism of me by the Senator here. In equal measure, if he wants to preach about transparency and scrutiny then he must subject himself and his organisation to the same rules. He cannot ask of others what he refuses to give himself and I make that point en passant. If we are going to move on to a different phase with complete accountability in public life in this country - and this legislation is part of that architecture - then everybody must march in step. Nobody can preach without abiding by it themselves.

As Senator Barrett will know, the idea behind the legislation is to greatly extend the remit of the Ombudsman to over 140 additional bodies. The Ombudsman will find it challenging but she and her staff are up to it and are capable of taking on the new role. It is a great extension of the oversight role of the Ombudsman. I do not think this is the end of it either because we are creating two new clauses in the legislation - first, automaticity for new bodies that are created which is innovative and, second, the oversight committee will now have the power to make recommendations for exclusions now or on any further extensions in the future.

I cannot leave that last contribution made by the Minister unanswered. It is regrettable that he has introduced such a tone to the debate. We have had a robust debate and I did not intend to preach to anybody. It is my job to demonstrate robust opposition and I made worthy recommendations. That is all that my party has done here. Our arguments have been backed up by statements made by public spokespeople on these issues. I regret the tone taken by the Minister. I have no qualms about transparency when it comes to the Sinn Féin Party which is the organisation that I am involved in. We have no issues with transparency and, no more than other parties in the House, we are open to any and all of the scrutiny by any arms of the State. Does the Minister wish to mention specifics?

Was the Senator ever a member of the IRA?

If the Minister has any specifics then he should raise them.

Please keep within the scope of the Bill.

If he has any specific evidence then he should bring it to the attention of the relevant bodies, as opposed to taking personal potshots at the end of the debate. We have had a constructive debate and I will defend my party's right to table any amendments that will help the people like those mentioned in the report on the Prison Service today. I will also help the asylum seekers I met in Galway who feel that they have got a very bad deal. I stand here as a public representative and my party represents their rights. I do not need to defend myself to anybody in here.

Question put and declared carried.
TITLE
Government amendment No. 36:
In page 3, line 5, after “1980,” to insert the following:
“TO AMEND THE PUBLIC SERVICE MANAGEMENT (RECRUITMENT AND APPOINTMENTS) ACT 2004 SO AS TO ENABLE FUNCTIONS RELATING TO THE OFFICE OF THE COMMISSION FOR PUBLIC SERVICE APPOINTMENTS AND TO THE DIRECTOR OF THAT OFFICE TO BE CARRIED OUT BY, RESPECTIVELY, THE OFFICE OF THE OMBUDSMAN AND BY THE OFFICER OF THE LAST-MENTIONED OFFICE WHO PERFORMS THE FUNCTIONS OF CHIEF EXECUTIVE OFFICER OF THAT OFFICE,”.
Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."

Can I speak on the Bill?

It has been agreed. We have just had a vote and the question was carried. Do you wish to comment now that the Bill has passed?

I reiterate that we welcome the Bill. I want to be clear about that, notwithstanding any debate we have had today. This is a positive Bill and a positive day. The Ombudsman made clear that it was 25 years in the coming. Numerous Administrations have promised to bring forward this Bill but the Minister is to be commended on doing so, of that there is no question. There is no question about extending the remit and we welcome it. Perhaps to some people we have gone over the point that there are deficiencies in the Bill ad nauseam. I take the Minister at his word that this is a work in progress. It is imperative for the Ombudsman to do her job properly. To ensure proper oversight in the State she must be given these powers as quickly as possible. We favour this but we believe there should be future amendments to the Bill to expand that remit to the areas she has suggested.

The introduction of the Joint Committee on Public Service Oversight and Petitions is a positive move. I am involved in that committee and I will be attending the next meeting in a couple of minutes. It is an important development and it will be beneficial to the people here.

Na pointí maidir le cúrsaí teanga, ní pointí beaga iad. Is bunphrionsabal é seo. Is ball de pháirtí é an tAire a sheasann le bunphrionsabal go rialta agus is bunphrionsabal é sin ó thaobh cearta teanga agus cearta na Gaeilge agus seasaim leis sin chomh maith céanna.

Tréaslaím leis an Aire agus gach rath ar an Ombudsman ina cuid oibre mar beidh obair mhór roimpi nuair a bheidh an Bille seo achtaithe agus nuair atá na heagrais seo ar fad faoina cúram. Tá súil agam go mbeidh mar thoradh air sin go bhfaighe saoránaigh na hÉireann cothrom na Féinne agus má dhéantar aon dochar dóibh in aon bhealach, tá córas acu faoi shúile an Stáit a dhéanfaidh cinnte go bhfaighe siad ceart agus cóir ina dhiaidh sin.

I compliment and thank the Minister on bringing this progressive legislation before the House. I call on the Minister to be mindful of the comments of the former Minister for the Public Service, John Boland, in 1984 to the effect that it would be unthinkable for an agency or Department not to take on board the recommendations of the Ombudsman.

I pay tribute to the Minister but I also claim joint credit on behalf of my party because we put the Bill through the Dáil. Unfortunately the election occurred subsequently. We have waited patiently for this Government to bring it forward almost one and a half years after it entered office. We support the Bill and the Ombudsman. The Ombudsman has received many tributes from the House in the course of the debate and they are justified and deserved. I have written two complaints to her this week and I assume they will be dealt with expeditiously.

I thank the Minister for the debates. What he is attempting to do is important. We wish him well and we wish the Ombudsman well. We should always have openness in government and that is what we have been attempting to do during these weeks. I wish the Minister well in his pursuit of that goal.

I thank Senators for the robust, good and incisive debate today and on the last occasion I was here. I am mindful of the strong views on the efficient administration of public affairs that are voiced in this House. Every time I visit that is underscored. I acknowledge the words of Senator Ó Clochartaigh in respect of staid na Gaeilge. I know he is passionate about it and I will ensure that those views are taken to heart in respect of any legislation that comes within my purview.

Question put and agreed to.
Sitting suspended at 4.05 p.m. and resumed at 4.25 p.m.