Commencement Matters

Defence Forces Ombudsman Complaints

I welcome the Minister of State at the Department of Defence, Deputy Paul Kehoe, to the House. Senator Craughwell has the floor.

Cuirim fáilte roimh an Aire. I thank the Minister of State for taking the time to come to the House to deal with this important matter for a second time. He will recall that on 27 January, we both participated in a Commencement debate concerning a case of a former Permanent Defence Forces officer, a lieutenant colonel with a distinguished service record, and the recommendations of the Defence Forces Ombudsman. The submission was in the form of an appeal for redress of wrongs made under section 114 of the Defence Act 1954, on foot of the considered findings of the Chief of Staff that the complainant had not been wronged in the view of the Defence Forces. The complaint, as the Minister of State will know, was referred to the ombudsman and was upheld. The Minister of State will also recall that in his final report, the ombudsman concluded that the promotion competition process was administered in a procedurally unfair manner as, in his view, there was ambiguity in relation to the provisions regarding length of service marks. In addition to his findings, the ombudsman made a range of recommendations arising from this case. Last January, the Minister of State told me the following:

The recommendations of the Ombudsman for the Defence Forces are under active consideration. I am advised that the matter may require obtaining advices from the Office of the Attorney General before any decision on the matter can be made and the issue of such advice is also under active consideration.

As a former member of the PDF myself, I was not going to allow this exemplary officer's case to lie forgotten on some dusty shelf in the Department and, as such, I have maintained contact with the officer in question.

It is my understanding that the former senior Minister issued an instruction to Department officials to implement the ombudsman's recommendations on the matters we are referring to today. I was delighted to get this information and immediately passed it to the officer concerned. However, he informed me that he had not been contacted by the Department and feared nothing would happen. I contacted the Department and spoke to a principal officer. I asked him why the Minister's instruction had not been carried out and I was shocked by his answer. I was told that it was felt within the Department that the Minister was wrong and that the case was referred to the Attorney General for advice. I asked when it had been referred was told it had been referred a week or so earlier. As this was several months since the Minister of State, Deputy Kehoe, and I had spoken in this House, I decided to submit some freedom of information requests. Is it the case that officials in the Department are second guessing ministerial instructions?

I submitted seven FOI requests. I sought the date of the final report supplied by the ombudsman and was told it was 30 June 2015 so my request was granted. I asked for the date that the report of the ombudsman was brought to the attention of the Secretary General of the Department.

I was told it was brought to the attention of the Assistant Secretary on 30 June 2015 but they could not tell me when the Secretary General, the most senior civil servant in the Department, received the report. I asked when the Minister of State and his predecessor received the report and I was told they could not have it because it was a matter under active consideration. I asked for any internal correspondence and I was told I could not have it because it was a matter of internal consideration. I asked for correspondence between the Minister of State and the former Minister and I was told I could not have it because it was a matter of ongoing discussion. I asked when the final decision with respect to referring the case for advice to the Attorney General was made and I was told I could not be told when it was referred because the matter was ongoing. I asked when the final report of the Defence Forces Ombudsman on redress of wrongs in respect of the officer in question was sent to the Attorney General and, again, I was told I could not be told because the matter was ongoing.

I then found out that the Department has seconded to it a full-time member of the Attorney General's staff. The Minister of State is a reasonable man but this looks like the Department is deliberately frustrating a favourable outcome for a complainant through an ombudsman's decision. I have never heard of such a decision being challenged and I do not know what is going on in the Department. I have made a number of freedom of information applications regarding cases sent to the ombudsman over the past number of years. I would like to get to the bottom of what is going on in the Department. The Minister of State came to the House in good faith last January. I believe him to be an honest, decent man and he outlined in reply to me what he thought was the clear state of affairs. It seems to be anything but clear and somebody somewhere is frustrating this. I am sorry to drag him back to the House this morning but I look forward to his reply.

I thank the Senator. He is correct that I replied to a similar Commencement matter in January. This case involves the submission by a former officer of the Permanent Defence Forces to the Ombudsman for the Defence Forces. The submission was in the form of an appeal from redress of wrongs made under section 114 of the Defence Act 1954 on foot of the considered findings of the Chief of Staff that the complainant had not been wronged in the view of the Defence Forces. The complainant alleges that he was wronged by an administrative error in a promotion competition held in 2012 and, as a consequence, he was not promoted to the next higher rank with consequential implications relating to retirement on age grounds, gratuity and pension entitlement.

In his final report, the ombudsman concluded that the promotion competition process was administered in a procedurally unfair manner as, in his view, there was ambiguity in respect of the provisions regarding length of service marks. In addition to his findings, the ombudsman made a range of recommendations arising from the case, some of which may have wider implications for the defence organisation. While, under statute, I am not bound to accept the ombudsman's findings, I am keen to ensure a conclusion to this matter is reached shortly. Given the complexities involved, it is right and proper that the Department fully deliberates on the potential implications of the findings.

As acknowledged to the Senator earlier this year, the Department has sought and has now received legal advice on the matter. I am aware that the Senator has been in discussions with my officials and has been advised that the matter is under active review. I am sure he will appreciate that given the complexities of this case, the Department must exercise due diligence in its approach. However, I acknowledge his concern that this matter be resolved as soon as possible and I will bear this in mind when I receive the Department’s report. In light of this, the House will appreciate it would be not appropriate for me to comment further on this case at this point in time.

The reply is very much in line with the reply I received last January. At the end of the day, it is outrageous to think the Secretary General of the Department, from what I can gather, has not seen the ombudsman's report. It is even more outrageous that a junior official would take it upon himself to countermand a decision by a Minister, albeit that it was verbal, to decide to send the case to the Attorney General. Why send it to the Attorney General's office when one of her staff members is on site? What is going on? I acknowledge the Minister of State cannot watch everything that is going on all day, every day but this is an affront to the governance of the Department itself and to the political system that manages the Department. I feel strongly that I must get an answer to this case within a set timeframe. If the Minister of State has the legal advice, I am sure his officials can advise him immediately. I would like him to outline a timeframe in order that I can give this man some peace of mind or are we to wait until he dies before we sort it?

We received the report from the ombudsman and there was nothing wrong with seeking legal advice upon receipt. It is right and proper for the Department to do so. We have received the legal advice. I am not aware of anyone from the Attorney General's office based in our offices.

I can give the Minister of State the name.

The person might be in the office for different reasons-----

No, the person has been seconded to the Department.

-----and not particularly to deal with this case. I do not believe a full-time member of staff from the Attorney General's office has been seconded to the Department's office in Newbridge specifically to deal with this case.

I do not believe that.

The Department has received the legal advice. A report is being put together for me to consider. As soon as I have it, I will consider its findings and I will make a recommendation to the Department. The gentleman in question has written to the Taoiseach who has given me the correspondence. He also wrote to the other Members of the Oireachtas, in particular, two Members of the Lower House, and they have also been in contact with my office. I understand the gentleman has distinguished service in the Defence Forces and I respect him for that, as I do every member of the Defence Forces. This case is being dealt with at a senior level within my Department and it will not go unnoticed. As soon as I have received the full report and the legal advice, I will make a decision on it and I will bring the case to a conclusion as soon as possible.

Copyright Legislation Review

I welcome the Minister to the House. I congratulate her on her appointment, about which I was delighted. I wish her the best with it and I look forward to working with her in this House in her new role.

This question concerns a matter which I know has been the subject of ongoing communications with the Minister's predecessor and with herself. It is the need for her to inform the House when she proposes to implement the recommendation of the Copyright Review Committee in its report, Modernising Copyright, published in October 2013, concerning the extension of the small claims procedure in the District Court to include intellectual property claims up to the value of €15,000 as provided for in the draft statutory instrument prepared by the committee. This matter concerns the ability to enforce intellectual property rights before the courts in Ireland and, in particular, the ability for companies to represent themselves before the courts in lower-value intellectual property claims.

As stated, this matter has been the subject of correspondence with the Minister's predecessor, Deputy Bruton, as well as the Minister for Justice and Equality, Deputy Fitzgerald. I know colleagues, including Senator Kevin Humphreys, then a Deputy, as well as Deputies Simon Harris and Eoghan Murphy, corresponded with the Minister, Deputy Bruton, last year in respect of the matter. I have seen a response dated 1 June this year from the Minister's private secretary on the matter. While she recognises there is a wider issue concerning access to justice which falls within the policy responsibility of the Department of Justice and Equality, she states that nonetheless this also impacts on the area of intellectual property for which she has policy responsibility. I was delighted to see in the correspondence from her private secretary to this particular individual, who has raised the matter with me also, that officials from her Department are actively examining options to improve access to justice.

This raises a number of different issues and the individual who has brought the matter to my attention as well as the current and former Ministers' attention has a meritorious point. He points out that the Government encourages the creative industries to produce in Ireland and offers many incentives to boost the number of jobs in the economy but still has not implemented a clear recommendation from the Copyright Review Committee of 2013 concerning the need to improve access to a mechanism for enforcing intellectual property claims.

The October 2013 report of the Copyright Review Committee, Modernising Copyright, makes a clear reference to the reforms in England which established the special jurisdiction of patents county courts, now renamed the intellectual property enterprise courts. In Britain, these procedures have been streamlined to save parties time and money. The report went on to recommend that the small claims procedure in the District Court be extended to include intellectual property claims up to the value of the standard limit of the District Court jurisdiction. The committee proposed certain amendments to existing legislation as well as a draft statutory instrument to bring such claims within the remit of the small claims procedure. The recommendation seems a sensible one which would improve on the current difficulties with access to the courts in respect of this sort of claim.

In terms of our obligations under EU law, it also appears that the current regime whereby companies must be legally represented must be complemented by some mechanism to improve access to the courts, particularly in respect of small intellectual property claims. The sort of reform proposed by the Copyright Review Committee offers us a way forward. It is a solution that would offer easier access and an easier method of resolution to companies and individuals with intellectual property claims. It would also enable us better to ensure compliance with EU law.

I look forward to the Minister's response.

I thank Senator Bacik for her warm welcome. I am delighted to see her, as an elected Senator, here too. I am also delighted to see Senator Victor Boyhan, my constituency colleague from Dún Laoghaire. Senator Bacik has raised an important matter. An independent Copyright Review Committee was established in May 2011 with the objective of examining copyright in the Irish context. This included considering the need to review and modernise existing legislation. The committee held a consultation to help gauge stakeholder opinion and this led to a series of recommendations by the committee. The committee then held a second consultation on those ideas. Its report, entitled Modernising Copyright, was published in October 2013 and contains in excess of 60 recommendations.

My Department has conducted extensive analysis of the committee’s recommendations. This includes an assessment of the complex legal issues involved. Advice was obtained from the Office of the Attorney General, and relevant Departments were consulted to develop proposals. One recommendation relates to improved access to justice before the courts, a point raised by the Senator. This included extending the small claims procedure to intellectual property claims. The small claims procedure operates in the District Court and currently excludes intellectual property claims. My officials examined this recommendation with the Department of justice, which has policy responsibility for the Courts Service. Meanwhile, I have policy responsibility for intellectual property issues. We looked at enforcement of lower-value intellectual property claims and together we examined the potential for improvements in this area.

The issue of access to justice is important and I am anxious that rights holders can enforce their intellectual property rights. We conducted an analysis of the recommendations in the report. This included any constraints imposed by EU law and involved considering potential impacts on all Irish stakeholders. It also involved considering costs and benefits for Government. My Department is currently finalising legislative proposals for Government consideration and I expect to bring these proposals to Government before the summer recess. Meanwhile, the EU Commission has continued its work on copyright. A number of consultations have been undertaken by the Commission which are used to gauge stakeholder views on copyright modernisation.

Copyright is a priority also in the digital single market strategy. We have already agreed a proposal on portability of content which allows EU consumers to access subscription services while travelling. We expect the Commission to make further proposals in September. Ireland supports greater harmonisation of copyright at EU level. Proposals creating opportunities for education and research are particularly welcomed. We support access to copyrighted material for people with disabilities. Overall, we want to ensure balanced solutions for all stakeholders. I look forward to the Senator’s support for my Bill.

I welcome the Minister's full response to my question and thank her for it. I am particularly grateful to her for stating her own anxiety that rights holders will be able to enforce their intellectual property rights. As I have indicated, the current legal position amounts to a serious obstacle to the enforcement of intellectual property rights, particularly for small companies and independent individuals. This is the difficulty the copyright review committee has so clearly addressed in its recommendation. I am also grateful to the Minister for her statement that the Department is finalising legislative proposals for Government consideration based on the 2013 report and that she expects to bring the proposals to Government before the summer recess. I will be happy to support those proposals if they address the issue I have raised.

By way of follow-up, will the Minister state at this point whether the proposals will include implementation of the recommendation that I have focused on, namely, the reform of the small claims procedure to cover intellectual property claims? Will the Minister state whether that particular recommendation will be addressed in the proposed legislation? I welcome the announcement that we will, hopefully, see this legislation, at least in draft form, before the summer recess. I would be grateful for a response on that specific point.

I am bringing the memo to Government before the summer recess. I do not want to pre-empt the discussion that will take place in Cabinet. This will be the Government's opportunity to consider the committee's recommendations. I have heard the Senator loud and clear today. The memo will seek approval for legislative proposals to modernise copyright.

I thank the Minister.

Sitting suspended at 11 a.m. and resumed at 11.30 a.m.