I welcome the Minister of State at the Department of Finance, Deputy Mansergh, and his officials. It is proposed that our proceedings will run until 1 p.m. and from 2 p.m. to 4.45 p.m. Is that agreed? Agreed.
The purpose of the meeting is to consider the Ombudsman (Amendment) Bill 2008 which was referred to the select committee by Dáil Éireann on 2 December 2008. Copies of the amendment list and the groupings relating thereto have been circulated to members for their information.
SECTION 1.
When is it proposed that the legislation will come into operation?
A decision has not yet been made in respect of that matter.
Perhaps the Minister of State might be in a position, prior to Report Stage, to provide an indication as to when it will come into operation.
I move amendment No. 1:
In page 4, between lines 18 and 19, to insert the following:
"(a) an entity established by or under any enactment (other than the Companies Acts) or otherwise an entity referred to in paragraphs (a) to (g) of Section 1A, whether the entity was established before or after the passing of the Ombudsman (Amendment) Act 2009, unless the entity is declared by order of the Minister under this Act to be an exempt agency,”.
I am moving this amendment on behalf of Deputy Burton. Perhaps the Minister of State might outline his views on it.
The amendment would represent a departure from the approach adopted since the Ombudsman Bill was enacted, whereby each entity within the Ombudsman's remit is specified in the legislation. This approach provides clarity for the Ombudsman and members of the public in respect of the actions reviewable by the Ombudsman. From discussions between the Department of Finance and the Office of the Ombudsman during the preparation of the Bill, it was understood the Ombudsman would be extremely reluctant to depart from this approach. It is important that bodies should be brought quickly within the remit of the Ombudsman, where appropriate. The Department will consult other Departments to this end, with a view to updating the schedule of reviewable agencies by order. This will ensure a transparent and coherent approach is taken to the inclusion of appropriate entities within the remit of the Ombudsman.
I would have been of the view that when a body was established, the Oireachtas would be informed as to whether it would be included or excluded from the Ombudsman's remit. It is not satisfactory that we are obliged to wait months or even years until time becomes available on the Dáil schedule to allow us to introduce legislation such as that before us. In respect of each item of legislation relating to the establishment of bodies such as the Dublin Transportation Office or any one of myriad similar organisations, the Government must order that the Parliamentary Counsel should include a provision stating a body is either subject to or exempt from legislation relating to freedom of information and the Ombudsman.
The present position is unsatisfactory. I think the Minister would agree that we could be waiting months and years for clarity in this regard. If he is not disposed to accept this amendment, which effectively means that bodies are included unless declared exempt, maybe he would at least agree that the Parliamentary Counsel would require a section to be included to that effect and therefore force the Government to make a decision at the time of the inception of legislation to indicate whether a body is either subject to or exempt from legislation relating to freedom of information and the Ombudsman.
While it might often be the case that a newly-established body would be clearly in or clearly out, I could envisage cases where the Government might not always wish to make an immediate decision on that topic and therefore I would not like to preclude an element of flexibility in that regard.
Where is the decision process? If a decision process is triggered by the establishment of an agency, it has to have a time limit. If the Government requires time, is there not time between the publication of the heads of a Bill and its enactment by the Oireachtas, which would typically take a year or a year and a half, if not longer in some cases, such as the Finance Bill? There is a long period provided for Government to make this decision in the legislative schedule. I think the Minister is fobbing us off with a Sir Humphrey clause. He, no doubt, has a deep satchel full of them under his desk. We need to be reasonable about the timeframe. If we were talking about an application for planning permission, there would be five weeks for objections and eight weeks for a decision and an appeal, which unfortunately is taking longer than it should be, but at least there is a statutory limit. I do not think the Minister of State's response is reasonable.
The Department of Finance will undertake to review the schedules of the remit of the Ombudsman on a regular basis. I persist in the point that it is not necessarily a decision one would always, and in all cases, want to make before the body is established and running, and the practical issues arising from it are known. I would not be prepared to restrict the degree of flexibility the Government needs.
While I am a great admirer of the series, I am no great admirer of Sir Humphrey.
A courageous decision.
The first instruction I gave my private secretary was that I never wanted to hear the words "Yes, Minister."
Is there a "Yes, Minister" answer?
The amendment can be resubmitted on Report Stage.
Yes.
I move amendment No. 2: In page 5, subsection (3), line 30, before ", a draft" to insert "which excludes elements of an entity".
The provisions of the 1980 Act, governing the making of secondary legislation being amended in the Bill, follow the judgment of the Supreme Court in the case of Mulcreevy v. the Minister for the Environment, Heritage and Local Government and Dún Laoghaire-Rathdown County Council. The Supreme Court held that it is not constitutional to amend the law by statutory instrument or ministerial order in the absence of principles or policies in the legislative scheme. Since that decision, a cautious view has been taken on secondary legislation and this caution has extended to any changes to schedules.
The new provisions governing the making of an order by the Government under the Ombudsman Act 1980 are set out in section 4 of the Bill. These provisions were prepared in consultation with the Attorney General, having regard to the implications of the judgment of the Supreme Court in Mulcreevy.
A new section 1A is being inserted after section 1 of the principal Act. Subsection (1) of the new section allows the Government to declare by order an entity, meeting specified criteria to be a reviewable agency. Subsection (2) provides that the specification of an entity in an order under subsection (1) may be expressed to be subject to the exclusion of elements of that entity, and that it will be necessary for each such order to be laid before each House of the Oireachtas until a resolution approving of the order in draft has been passed by each House.
The effect of the text amendment proposed by Deputy Burton would appear to be that only an order "which excludes elements of an entity" would have to be laid before the Houses of the Oireachtas or require resolutions to be passed in the Houses. It is not desirable to limit the role of the Oireachtas in this way, particularly in light of the Mulcreevy judgment. On that basis I cannot accept the amendment proposed by the Deputy.
If the Minister accepted my proposal, that at drafting there would be a requirement to signal this and that it would be brought to the House, he would not be transgressing this judgment. That is what he is offering as a defence. It is back to where we started. The Government is not willing to make clear decisions. We are turning handstands because the Government will not make timely decisions on issues of public importance being subject to the Ombudsman and freedom of information legislation. These are basic rights in a system of open government.
I do not accept the Minister of State's stance of drawing the courts into defending his position, whereas the courts have been relentless in their criticism of the Dáil for leaving it to the courts to make interpretations on matters that should be defined in primary legislation. The Minister is falling short of what would be the proper standard of openness and transparency in government and Government bodies. Let us not forget that people are infuriated by the way the Government has created quangos that do not have a proper framework of accountability. Here is one way of making it accountable to the public, albeit in a small way. The Minister of State is turning handstands to back away from that when I would have thought his instincts were to go completely in the opposite direction. That is what Government has done.
We need to remember the context of the Bill, which is greatly extending the remit of the Ombudsman and extending the accountability of bodies. What we are discussing are issues at the margins.
I move amendment No. 3:
In page 6, between lines 23 and 24, to insert the following:
"(4A) The Ombudsman shall not investigate a complaint by or on behalf of an individual into any action of or on behalf of another person where—
(a) that action—
(i) affects such individual by virtue of being a member, officer, employee or agent of an entity or entities, and
(ii) relates to the performance by such individual, whether alone or with others, of his or her functions as a member, officer, employee or agent of such entity or entities, and
(b) any such entity is financed wholly or partly, whether directly or indirectly, by means of moneys provided by, or loans made or guaranteed by, a Minister of the Government,
but the restriction by virtue of this subsection on the investigation of that action shall only be to the extent that it relates to the performance of such functions.",".
The effect of this amendment is to prevent the Ombudsman from investigating a complaint about an action that relates to a person's performance in work, where a complainant is working in an entity that is financed directly or indirectly out of moneys provided by a Minister of the Government.
The reason for this amendment is that at the moment under the 1980 Act, an individual employed in a reviewable or exempt agency can only go to the Ombudsman if he or she has been affected by an action in his or her private capacity. He or she cannot go to the Ombudsman in relation to any work or performance-related matter. In contrast, people employed in entities which are funded in part or in whole by the State but who do not work in bodies listed in either Schedule can go to the Ombudsman with regard to an action taken by a reviewable agency which relates to their own performance at work.
A practical example of this is in the case of teachers. With the expansion of the Ombudsman's remit to include vocational education committees, teachers from VEC schools will not now be able to take complaints to the Ombudsman other than in a private capacity. In contrast, if this amendment is not made, teachers in non-VEC schools would potentially be able to take a complaint to the Ombudsman, either individually or as a group, other than in their private capacity and with regard to their own performance at work. It is not appropriate that the Ombudsman would investigate actions on behalf of a complainant where the case involves that complainant's own performance at work. This amendment will make it clear that the Ombudsman will not investigate complaints relating to matters arising from the performance of a person's official function.
Is this solely with regard to an employee within a body not being able to complain about that body? Is this to be extended to where a charity, for example, is funded in whole or in part by the State, and it cannot make a complaint to the Ombudsman about the behaviour of the Revenue Commissioners?
Will the Minister of State clarify that?
Will the Minister of State clarify how widely the net is being thrown?
The amendment states this reasonably clearly.
The Minister of State could look over it again.
The relevant sentence is "relates to the performance by such individual, whether alone or with others, of his or her functions as a member, officer, employee or agent of such entity or entities," and where "any such entity is financed wholly or partly, whether directly or indirectly, by means of moneys provided by, or loans made or guaranteed by, a Minister of the Government,". Charities are not State bodies so they would not come within the Ombudsman's remit.
Does it relate to bodies that are State-funded, either directly or indirectly?
There are many bodies around the State which are in receipt of some grants. Theatres all over the country may be in receipt of grants but the Ombudsman does not cover the administration of theatres.
The amendment refers to bodies financed either "wholly or partially, whether directly or indirectly, by means of moneys provided by, or loans made or guaranteed by, a Minister of the Government,". That is a very wide statement.
It is a question of interpretation. For example, even wholly-run and administered Government bodies may get appropriations-in-aid. There may be some entrance charge to a facility, for example, so to that extent it may be wholly-owned by the Government but not wholly funded. It only excludes people with regard to their own performance in work but the issue relates to the bodies that it applies to. It does not apply to bodies which are not State bodies but are in receipt of some Government subsidy.
A charity, for example, is an entity financed partly by moneys provided by the Government and an agent of the charity may have a complaint about its charitable status with the Revenue Commissioners. The complaint may relate to the performance of the agent, namely, whether it has fulfilled the requirements of charitable status. The Minister of State is effectively stating that this charity cannot go to the Ombudsman and indicate that the Revenue Commissioners are maladministering the rules on charitable status. The agent may argue that conditions have been fulfilled and it should be entitled to charitable status by the Revenue Commissioners.
The Minister of State appears to be indicating that this complaint cannot be taken to the Ombudsman because the body is partly funded by the Government. The issue of giving charitable status would relate to the performance of the entity in the way it does its business. The Minister of State is catching more than he is presenting.
The Revenue Commissioners are subject to the Ombudsman in terms of administration.
This is a new exclusion that is being created.
The Deputy was speaking about charities but he was not talking about the Revenue Commissioners making decisions on charities. That is different.
It was given by way of example.
There are some well known charities — I do not want to name them — that are not subject to the Ombudsman.
A charity may be challenging the Revenue Commissioners, which are subject to——
The charity may have applied for charitable status.
Yes. The Ombudsman shall not investigate the complaint because the person in question is an agent of the charity. The complaint would relate to the way the charity is run and the charity would be partly financed by the Government. Game, set and match; the agent cannot bring the case to the Ombudsman to challenge the Revenue Commissioners. That example is only off the top of my head. The drafting seems to have been thrown too wide.
We intended to cover people working in State-funded bodies and agencies and not charities——
The law is the law.
With due respect, if the Minister of State reads the amendment he will see that it is very broad. If it was interpreted in court——
We will reflect on the points made in advance of Report Stage and consider if there is any merit in the case being made by the Deputies that the amendment is too widely drawn.
The question is that the amendment be made.
Are we withdrawing it for resubmission on Report Stage?
We will press the amendment.
It is being pressed despite——
With due respect, the Minister of State is admitting——
I am not admitting anything. I am not satisfied——
The Minister of State can read the amendment. It is not an example of good governance to press an amendment that clearly requires further consideration. It can be brought back on Report Stage. We have put forward reasonable considerations and the question is why the amendment would be pressed if it can be brought back on Report Stage. The Minister of State is putting a provision through that could have far-reaching implications.
That is the Deputy's case.
It is there in black and white. Any such entity——
The question is that the amendment be made.
We are making a reasonable case.
The Minister of State has indicated he will reflect on this.
He is nevertheless pressing the amendment. It is a contradiction.
It will not come up on Report Stage unless we submit an amendment. If the Minister of State is to reflect on this before Report Stage, there must be a trigger mechanism for that.
That is not the case. If, on reflection and in studying the matter we feel there is any looseness in interpretation, the Government will bring forward an amendment.
The all-seeing, all-knowing Government.
That does not preclude the Opposition tabling an amendment if members wish. This does not mean that if the Opposition does not, we will abdicate our responsibility.
With due respect, the Minister of State says he will review the amendment and its implications. At the same time he will press the amendment and will consider bringing it back on Report Stage. That is a contradiction, it is bad governance and it is a bad way to introduce legislation. Fine Gael is proposing a reasonable amendment in the spirit of co-operation about which this Government is talking. It is reasonable and I would like to hear the comments of the Minister of State.
He has already responded.
On a point of order, under what procedure will this be reflected on? Will the Chairman submit a report to the Oireachtas, on behalf of the committee, saying that this section has been flagged as one that requires additional consideration so that this will arise as part of the report from the committee to the House?
Deputy Bruton was a Minister in the past. My experience is that when Ministers agree to review something——
That is not the question. I am asking if the Chairman will submit a report as Chairman of this committee, flagging that the committee has reached an impasse on this matter and the Minister of State has indicated that there will be some opportunity to reflect on Report Stage? Otherwise it will not arise on Report Stage. The Chairman has been here as long as I have and knows that the issue cannot come up for consideration on Report Stage unless it is flagged here.
I will flag other matters at the end of Committee Stage. We will bring forward further amendments on Report Stage if required. This is the responsibility of the Minister, not the Chairman of this committee, with respect to the Chairman. We will consult the Office of the Attorney General and the Ombudsman. I do not accept the argument that the section is too loosely phrased but, nonetheless, in fairness to the Deputies, I will have the arguments carefully considered. I will see if the Office of the Attorney General and the Ombudsman are satisfied that it only excludes people in the performance of their functions.
I move amendment No. 4:
In page 6, line 37, to delete "and" and substitute the following:
"(c) after subsection (5) to insert the following new subsection:
"(5A) (a) The Ombudsman may direct, in his or her sole discretion, that the person making the complaint and the reviewable agency shall attend a program of mediation as a precursor to any investigation where the Ombudsman believes that such mediation carries a reasonable prospect of resolving the dispute.
(b) Any mediation which occurs pursuant to paragraph (a) shall be conducted by an accredited mediator.
(c) Where the Ombudsman makes a direction under paragraph (a), an investigation may not commence until the process of mediation has been completed, which may not exceed a period of six months.”,
and".
The purpose of this amendment is to offer the possibility of mediation as a way for the Ombudsman's office to find solutions to the cases brought before it. It appears as though mediation offers a way forward that has been successful in other areas in which disputes have become intransigently stuck in such a way that they cannot be resolved. It seems that an alternative dispute resolution to those already provided for in organisations under the remit of the Ombudsman might be a useful way of speeding up the processing of cases. This proposal is worthy of consideration as it would offer the Ombudsman another arrow in her quiver to deal with cases. Perhaps it will be supported by the Minister of State.
Most complaints dealt with by the Ombudsman are resolved informally during the stage of the process known as the preliminary examination. It is only in the more complex cases that the Ombudsman will carry out an investigation. The preliminary examination shares many of the features of a mediation process. There does not appear to be any need to add another layer to this process by giving the Ombudsman the power to appoint an accredited mediator, which would be bound to add to costs while not necessarily assisting in the resolution of complaints. Moreover, providing the Ombudsman with the power to direct a complainant and a reviewable agency to participate could appear to be at odds with the voluntary nature of a mediation process. Rather than assisting in the resolution of the issues, the issuing of such direction could create a more adversarial relationship between the parties and delay the resolution of the complaint. Therefore, I will not accept this amendment.
Did the Minister of State seek the advice of the Ombudsman when reaching this conclusion?
Did the Ombudsman agree with this view?
Yes, the Deputy may take it that the view I am expressing is consistent with that of the Ombudsman.
The description of this section as set out in the explanatory memorandum states that a body covered by the Ombudsman must, consistent with its resources, deal with people fairly and in a timely manner. However, the section itself does not make much reference to timeliness, other than in respect of the provision of information for people regarding time limits on reviews or appeals. Is it the case that the original drafting envisaged more strict time limits regarding the conduct of cases under investigation by the Ombudsman and that there was a stepping back from what was set out in the explanatory memorandum? Alternatively, am I missing something in the section's details? It does not appear to fulfil its billing.
Section 7 introduces a new section 4A after section 4 of the principal Act, which deals with the functions of the Ombudsman, concerning the rights of citizens in their dealings with reviewable agencies. Consistent with the resources available to it, each such agency will be required, under this new section, to give reasonable assistance and guidance to a person in any dealings the person has with the body regarding an action taken by or on behalf of the body in the performance of administrative functions that affect a right, privilege or other benefit to which a person is or may be entitled or an obligation, liability, penalty or other detriment to which a person may be subject.
Section 7 requires such an agency to ensure that the business of a person with it in respect of such actions is dealt with properly, fairly and expeditiously and in a timely manner, as well as to provide information to the person on any rights of review or appeal in respect of the action or on any time limits applying to the exercise of those rights. Individuals will have recourse to the Ombudsman in respect of the level of compliance by reviewable agencies with these requirements.
These provisions originate from a commitment in the 1994 to 1997 programme for Government agreed by Fine Gael, the Labour Party and Democratic Left, A Government of Renewal, to introduce an administrative procedures Bill with the aim of securing maximum compliance with the tenets of good public administration. As originally envisaged, the Bill would have vested monitoring and regulatory functions in the Ombudsman and would incorporate specific requirements in terms of minimum response times, etc. Following extensive consultations, it subsequently was decided that the level of specificity envisaged was not appropriate for inclusion in legislation. The provisions contained in the new section 4A ultimately aim to achieve the same goals as the administrative procedures Bill as originally conceived, while leaving the details as regards timescales, etc., to be set out in customer charters.
Has the Minister of State obtained from the Ombudsman or does he have available to him some information on the extent to which investigations have been drawn out because of a lack of timely co-operation on the part of agencies under examination? I am not claiming necessarily that the Minister of State is wrong in saying the Bill should not set out time limits, but a vague expression of the obligations to be fulfilled might not crack any problem that might arise. If he is not disposed to tightening the provision, perhaps he might provide for a situation where the Ombudsman would, in her annual report, name and shame those who had proved recalcitrant in responding to complainants.
I have statistics for case turnaround times up to 2007 that show that the majority of cases are handled within one year. At least half are handled within three months. I will cite the statistics to give the Deputy an idea of the turnaround times involved. Some 54 cases were handled within 13 weeks, 24 were dealt with in 14 to 26 weeks, 13 in 27 to 52 weeks, three in 53 to 78 weeks, two in 79 to 104 weeks and nine within 104 weeks. I have statistics dating back to 2002 that show the same pattern. Only a small number of cases take more than one year to deal with.
They amount to 10% or more of cases.
The Ombudsman has not raised this issue with us or identified lack of compliance as a problem.
Amendments Nos. 5 and 7 are related and will be discussed together. I draw the attention of members to the fact that there are two printing errors in amendment No. 7, in the name of Deputy Bruton, namely, the letter "p" appears at the end of the word "Ombudsman" in the third last line, while the letter "m" appears several times in the second last line. Members should disregard these errors.
I move amendment No. 5:
In page 10, between lines 11 and 12, to insert the following:
"(3A) A reviewable agency shall comply with a recommendation of the Ombudsman".
I will speak to amendment No. 7 which would require that a recommendation become binding after a period. A deadline brings finality to a process and clarity to the reason offered for rejection of a decision. The committee has experienced problems where a recommendation made by the Ombudsman has been turned down. We received a series of correspondence from people frustrated by an outcome in which the Ombudsman's opinion had not been accepted. Subsequent deals fell short of the Ombudsman's original recommendation. One member of the public was aggrieved by the watering down of the good thinking underpinning the original finding. It seems procedural clarity must be brought to when and where the Ombudsman's recommendations can be turned down and the extent to which the public is involved in understanding the reasons and any subsequent process to be followed. What is the Minister of State's response to the amendments?
While the amendments have some plausibility, I do not propose to accept them, as they aim to make the Ombudsman's recommendations binding. A defining characteristic of the Ombudsman Act is that the Ombudsman has the power to make recommendations, as opposed to binding decisions. The Ombudsman has been the strongest advocate of the current system and among the strongest critics of those who have called for the making of binding recommendations. Issuing recommendations rather than binding decisions means that the Ombudsman is able to recommend remedies that would not be offered by a court. The whole of a body is accountable, even where there is no legal duty of care or statutory liability. Were the Ombudsman empowered to make binding recommendations, her role would be akin to that of a court. Faced with the prospect of legal challenges, the process of investigating complaints would become more legalistic, which could result in substantial time delays in processing complaints. It is also likely that there would need to be some avenue of appeal against the Ombudsman's decisions, resulting in further delays and costs. While the amendment has a surface attraction, its knock-on consequences would be damaging to the character of the system.
I support the amendment tabled by Deputy Bruton. If the law does not require the Ombudsman's general and specific recommendations to be followed through, is her work not undermined? The amendment is reasonable. If within six months a reviewable agency does not agree with the Ombudsman's recommendation, she could reply to it. Furthermore, she could consider the complaint again and it would be for a Department to overrule her recommendation. It would not be a draconian measure. Will the Minister of State expand on his opinion? The proposal includes control mechanisms, in that it would allow a complaint to revert to the Ombudsman for reconsideration based on the reviewable agency's reply which would have to be received within six months, not overnight.
There has only been one case involving a tax issue in which a recommendation was not accepted but the matter was eventually resolved. In order that Deputies can hear from the Ombudsman, I will take two minutes to quote from an extract from an address she made on the issue:
One of the characteristics that defines an ombudsman — in particular, a national ombudsman or one whose jurisdiction covers the public sector — is the power to make recommendations as opposed to binding decisions.
It is true that some specialist ombudsmen, for example those whose jurisdiction extends to a particular industry — insurance or banking — do make binding decisions. But this is usually on the basis that the members of the particular industry voluntarily subscribe to the ombudsman's jurisdiction and in that context, agree to be bound by the ombudsman's decisions. And usually the industry ombudsman's decision-making powers are well defined and limited.... I have no doubt that, if the Irish ombudsman's office had been given the power to make binding decisions, we would have found ourselves, especially in the early days, faced with many legal challenges. Instead we are able to recommend remedies which would not have been given by a court and to hold bodies administratively liable even where there is no legal duty of care or statutory liability. Another aspect, often overlooked, is that the majority of legal claims taken to court in Ireland are settled out of court without any admission of fault or explanation. There is no assurance to the complainant that any action has been taken to prevent recurrence of the adverse action although this is often a matter of great concern to complainants. Many of the Irish Ombudsman's recommendations are aimed at improving procedures and systems for the future.
And yet, in my experience, if an ombudsman experiences difficulty in having a recommendation implemented, there are immediate calls for a review of his or her powers and demands to make the recommendations binding. For the reasons outlined above, it is important that such demands are strongly resisted.
This is an extract from the Ombudsman's 2007 address to the Tenth Round Table of European Ombudsmen and the Council of Europe Commissioner for Human Rights.
I move amendment No. 6:
In page 10, line 15, to delete "in general terms".
Perhaps the Minister of State will respond.
An individual case in which the Ombudsman finds fault with the administrative actions of a particular public body and suggests improvements in practices and procedures, can provide a valuable learning experience for other public bodies which carry out similar work. The new subsection (iii)(a) being introduced by section 9 of the Bill will enable the Ombudsman, following an investigation into an action by a body that uncovered maladministration, to make a recommendation to other bodies under his or her remit. Thus, if maladministration uncovered under the course of an investigation into one body turns out not to be confined to that body, such maladministration can be addressed through a single investigation.
The phrase "in general terms" serves to distinguish this type of recommendation from a recommendation issued by the Ombudsman to a particular reviewable agency following an investigation into the specific action of that agency. A recommendation issued to a body or range of bodies which were not the subject of the complaint to or investigation by the Ombudsman could be expected to be of a more general nature and be expressed in more general terms than a recommendation issued to a body where its actions were the subject of a complaint. There is value in retaining these words to highlight the distinction between the types of recommendations that the Ombudsman will be able to make under the Act.
In situations such as this, should we not consider giving the Ombudsman powers to issue draft codes of practice which would subsequently become binding where it is discovered that practices need to be rectified? Recommendations that are merely thrown into the ether may not be heeded, whereas codes of practices could provide for a period during which agencies can respond before they become binding.
We have already dealt with the issue of binding recommendations by the courts.
This is a different issue. If the Ombudsman makes recommendations on how complaints should be dealt with in terms of timeliness or the officers responsible for liaison, codes of practice could be established to make them binding. That would make the Ombudsman's recommendations binding in the way that the Minister of State outlined earlier.
In an effort to improve public administration standards generally and to avoid the repetition of administrative mistakes, the Office of the Ombudsman has over the years produced a series of guidelines for the public service which serve as templates to improve the quality of specific aspects of customer service. These include, for example, the Ombudsman's principles of best practice for public servants, the Ombudsman's Guide to Internal Complaints Systems and Redress, Getting it Wrong and Putting it Right. However, it would be a mistake to describe these guidelines as binding.
This section makes a new provision for general recommendations. Previously, the Ombudsman made specific recommendations on foot of investigating cases. If a recommendation is being made in regard to administrative procedures, would it not be appropriate for the Ombudsman to put in place codes of practice? We are introducing such codes for the banks and the Office of the Ombudsman possesses a wealth of expertise on these matters. It would be a logical extension to the practice of making recommendations in general terms.
I have already identified some of the principles, standards and guides that have been issued. Under the Bill, the Ombudsman can request an agency to notify him or her of its response within a specified timeframe.
It appears that the Ombudsman can make a recommendation in general terms. That could be extended to codes of practice.
The Ombudsman's recommendations would take whatever form he or she sees fit, provided they are short of binding.
I move amendment No. 7:
In page 10, between lines 32 and 33, to insert the following:
"(5) Any recommendation made under subsection (3A), and notified to the person who made the complaint under subsection (4), shall become binding on the reviewable agency and the person making the complaint on that date six months after the Ombudsman has notified both parties of his or her recommendation, unless either party submits to the Ombudsman a written statement of rejection of the recommendation, with the reasons for such rejection, within that period of six months.
(6) Where a reviewable agency submits a written statement of rejection pursuant to subsection (5), the reasons shall be reasonable and shall provide a rationale for the rejection of the recommendation of the Ombudsman.
(7) Where a reviewable agency is a Government Department and submits a written statement of rejection pursuant to subsection (5), the reasons shall be signed by the relevant Minister and that Minister shall make a statement to the Houses of the Oireachtas as to the reasons for his or her rejection of a recommendation of the Ombudsman within 21 days of such rejection.
(8) Notwithstanding the rejection of the recommendations of the Ombudsman pursuant to subsection (6), the reviewable agency shall have due regard to the tenor and spirit of those recommendations in the exercise of its functions.”.”.
I draw the attention of members to a printing error in the list of amendments. Before amendment No. 10 in the list the heading "SCHEDULE 1" appears. Before amendment No. 12 the heading "Schedule 2" appears. There should be only one heading "SCHEDULE" before all the amendments from No. 10 onwards, since there is only one schedule to the Bill.
SCHEDULE.
I move amendment No. 10:
In page 14, between lines 19 and 20, to insert the following:
"(2) The Refugee Appeals Tribunal and Refugee Applications Commissioner".
Schedule 1 refers to a large number of bodies under the remit of the Ombudsman. My proposal is to include the bodies dealing with refugee applications, the Refugee Appeals Tribunal and the Refugee Applications Commissioner.
While the number of refugee applications has fallen very severely the amount of staff resources and money spent on what is now a far smaller set of applications has grown astronomically. The whole process by which the Office of the Refugee Appeals Tribunal and the Office of the Refugee Applications Commissioner carry out their work has been reduced to an excessively legalistic process because there has been failure at the outset of the process to set down clear guidelines and markers on how applications should proceed. As a consequence, many of these cases end up in the courts. If the whole structure of the refugee applications and appeals process were subject to an oversight process by, for example, the Office of the Ombudsman, we would have a fairer, more efficient, rapid and less costly system.
The Department of Justice, Equality and Law Reform is one of the Departments which has been successful in shielding itself from the operations of the Office of the Ombudsman. While I understand it is the culture of justice departments around the world to be of that disposition, in the long run it does not necessarily help those departments, and the Department of Justice, Equality and Law Reform is wrong in not having an oversight procedure that could operate very successfully through the office of the Ombudsman. Applications for asylum are difficult and delicate matters. It is inevitable that not all applications will be successful. It is equally inevitable that, on the basis of the reason the applicants are seeking asylum, some applications will be successful in Ireland as a country that operates under the Geneva Convention. I, therefore, put this proposal forward. The Department of Justice, Equality and Law Reform or those bodies under its remit, the office of the Refugee Appeals Tribunal and the office of the Refugee Applications Commissioner, do not have anything to fear from oversight. The net result would be to vastly improve procedures from the outset and avoid the very large number of cases which end up in court, about which the Minister for Justice, Equality and Law Reform and other figures in the Department complain bitterly from time to time. There is an opportunity for the Minister to widen the remit of the office of the Ombudsman to an area that is clouded in secrecy, a secrecy which costs the State a vast amount of money on unnecessary legal procedures. If the procedures that obtained at the beginning of the process were clear and had oversight from an office like the office of the Ombudsman, we could end up with a fairer procedure which would be clear to applicants from the beginning. In the end there would be considerable savings to the State.
On the advice of the Minister for Justice, Equality and Law Reform, this amendment is not accepted. The Minister considers that extending the remit of the office of the Ombudsman to the investigation of complaints in cases before the office of the Refugee Applications Commissioner and the office of the Refugee Appeals Tribunal would have a detrimental impact on workloads in this area, affect processing time for applicants, and have vastly increased cost implications for the State.
The inclusion of complaints concerning the actions of these bodies within the remit of the office of the Ombudsman would also be at odds with provisions in the existing Act which are being carried forward in section 8 under which the Ombudsman is precluded from investigating an action taken in the administration of the law relating to aliens or naturalisation. While the office of the Ombudsman does not have the power to investigate complaints in relation to cases before the office of the Refugee Applications Commissioner and the office of the Refugee Appeals Tribunal, the Irish Naturalisation and Immigration Service receives correspondence from that office on such cases and responds to such correspondence giving the factual position of the matter complained about.
With regard to the incidence of applications, asylum application numbers are down but the numbers of immigration related applications are up significantly and staff have, to a significant extent, been redirected to deal with immigration related applications. Investigation by the office of the Ombudsman would not divert cases from court. Experience has been that applicants for asylum whose cases are rejected by the office of the Refugee Applications Commissioner seek a judicial review of that decision, even though they have an appeal through the office of the Refugee Appeals Tribunal. They subsequently appeal to the office of the Refugee Appeals Tribunal and then have that decision judicially reviewed if it is in the negative. The evidence is that it would not simplify or streamline procedures. It would draw them out further.
This is not an area in which I am fully up to speed but whenever I have had to follow up on queries from constituents it has been like entering a maze from which there is no exit. It is extraordinarily difficult to understand much of what goes on. I know these are very difficult cases with which to deal and that there is huge difficulty in extricating the facts when cases are being presented in the best possible light. Given the experience in the office of the Ombudsman, could there be scope for some general recommendations from that office which could bring greater clarity to the procedures so that people would know what fails and what succeeds, and so that this is not the sort of merry-go-round the Minister seems to be describing where, because of the lack of clarity, every decision is taken into another loop. The Ombudsman's experience might shed some light on how that could be better done.
I am acting on behalf of the Minister for Justice, Equality and Law Reform. As I indicated, there is a limited scope for correspondence on the factual state or basis of issues. I do not think I can go beyond that. The investigation is the problem.
The Department of Justice, Equality and Law Reform has a quarterly meeting with non-governmental organisations dealing with refugees, listens to their issues and, where so decided, makes necessary adjustments and clarifications.
I am disappointed by the Minister of State's response. There are two separate issues here. First, we now have an extraordinarily costly administration by the Department of Justice, Equality and Law Reform of an entire immigration system which is extremely difficult to understand. Administration of the asylum issue has grown in cost while the number of applications has fallen dramatically. In the current budgetary situation, it is difficult to understand why the Department would not seek to improve the administration of procedures, particularly at the initial stages, so that cases could be dealt with in a fair and understandable manner and with due dispatch. Oversight and independent evaluation through the office of an appropriate authority, such as the Ombudsman, would help in the reform of the administration. It would streamline it, making it work faster and it would be better understood by people involved in the procedures. That would result in a reduction in costs to the State, contrary to the opinion of the Minister for Justice, Equality and Law Reform.
Second, in recent years the former Taoiseach, Deputy Bertie Ahern, and the former Tánaiste, Deputy Mary Harney, attended FÁS job fairs around the world, particularly in countries such as India, South Africa and Poland, and begged people to come and work in Ireland as skilled immigrants. They must have circumnavigated the globe several times. People have come from India to work as highly-qualified IT technicians, from Pakistan to work in our health services and from South Africa. Many of these people have families who, from time to time, wish to visit them. Grandparents may wish to visit on the birth of a child. If an Indian person wishes, under visa visitor arrangements, to visit a son or daughter who is settled in Ireland, perhaps married to an Irish person and with an Indian-Irish grandchild, he or she will face a lottery as to whether or not he or she can get in. I have suggested to successive Ministers that many families could post a bond in relation to the behaviour of their visiting relatives and their commitment to honour the visa. My suggestions have fallen on deaf ears. From time to time, Deputies have supported applications from families in that position.
The former Taoiseach and Tánaiste invited these people to come to Ireland. They are not lacking in any legal status. We recruited them at job fairs in cities such as Johannesburg and Mumbai. We begged them to come.
Deputy, those people would not be refugees.
The Minister of State referred to the Department of Justice, Equality and Law Reform and the immigration process. It was he who raised this issue.
In a country which also depends on tourism, the Minister must be aware of the rise in the number of unfortunate episodes at airports, involving people who are legitimately coming to the country. There is no question of them seeking asylum. The issue is one of administration, which is the remit of the Ombudsman. This is why the Ombudsman's remit should include some of the operations of the Department of Justice, Equality and Law Reform.
I am aware that the Department's remit includes the security of the State but that must be balanced with good, fair administrative procedures. Ireland also depends on tourism and will do so even more in the future. When people from particular parts of the world come to Ireland or request a visitor's visa they are often viewed with grave suspicion. They cannot get clarity as to how they can legitimately acquire a visa, visit under its terms and conditions and return home.
Deputy, that matter should be taken up with the Minister for Justice, Equality and Law Reform. It has nothing to do with the amendment or this section of the Bill.
May I continue, Chairperson?
Not if you are making a tour of the world.
It was your Taoiseach who went on a tour of the world to bring people here.
That is irrelevant to the Bill or the amendment.
It was your party that made this a country of mass immigration.
Deputy, are you moving the amendment?
I am moving the amendment.
Then please speak to the amendment.
It was your party that made this a country of mass immigration. We are now talking about establishing procedures for oversight of asylum application procedures by an ombudsman. Many people who come as visitors are treated as though they were asylum seekers when they are perfectly legitimate visitors who will honour visa conditions. There are two separate issues which, unfortunately, merge in the way the Department treats travellers. Making the Department subject to the advice and oversight of the Ombudsman would do the name and reputation of the country a power of good and would help significantly to reduce public administration costs.
Deputy Burton is touching on an issue which warrants a huge debate. Much of what she describes has come to the door of every Deputy and Senator in recent years.
Until 2002, I accompanied the previous Taoiseach on many visits. He was not heavily involved in encouraging people to come but some Ministers were. This was in a context before the ten accession countries joined the EU in 2004. I have met people from South Africa and other places who were encouraged in this way around the turn of the millennium.
Asylum numbers are down to 4,000 from around 12,000. On the other hand, immigration numbers are up from 50,000 to 150,000. Citizenship which, incidentally, is administered about a mile from where I live, in the decentralised offices in Tipperary town, has risen from 2,000 to 10,000. Visas are up from 30,000 to 80,000.
I am well aware of what Deputy Burton has said on the importance of tourism but we must be sure, as must every country, that visitors return home when their visas expire; in developed countries many do not. Some 20 million people pass through our airports each year, most of whom are Irish. I gather the current annual figure for people refused entry at the airport by immigration officers is around 4,000. This occurs when the immigration officer is not satisfied with the explanation given.
The nub of the amendment is to extend the Ombudsman's remit. Deputy Burton has made the case for this but the Minister for Justice, Equality and Law Reform feels this would add to costs, rather than reduce them. I cannot accept the amendment.
I move amendment No. 11:
In page 16, between lines 15 and 16, to insert the following:
"(47) Central Applications Office (Universities and Other Higher Education Institutions)".
This amendment will make it clear that the administrative actions of the Central Applications Office, CAO, will be reviewable by the Ombudsman when the Ombudsman Act is extended to higher education institutions. The Attorney General has advised that the nature of the CAO's relationship with the higher education institutions means its administrative actions will be reviewable when the Act is extended to the latter. This amendment provides clarity for the Ombudsman and members of the public that the CAO's administrative actions will be reviewable by the Ombudsman from that time.
I move amendment No. 12:
In page 18, between lines 15 and 16, to insert the following:
"Anglo Irish Bank Corporation Limited".
This amendment will make Anglo Irish Bank Corporation Limited an exempt agency, thereby making it clear that the Ombudsman will be precluded from reviewing actions taken by or on behalf of the bank. The exclusion of Anglo Irish Bank Corporation Limited from the remit of the Ombudsman is in line with long-standing policy whereby commercial semi-State bodies do not come within the Ombudsman's remit. Commercial semi-State bodies operate in a different environment to non-commercial public bodies; they are governed by industry and sector-specific rules and are often in direct competition with private companies. To bring commercial semi-State bodies within the Ombudsman's remit while other companies in the same sector remain excluded may put such bodies at a disadvantage.
This amendment is also appropriate for the following reasons. There is a framework in place for the regulation of Anglo Irish Bank Corporation Limited that includes the Financial Services Ombudsman, the Financial Services Regulatory Authority and the Office of the Director of Corporate Enforcement. The powers and functions available to these bodies are much broader than those available to the Ombudsman, whose function is to review the administrative actions of public bodies.
Given the prominence of Anglo Irish Bank Corporation Limited it is important that there is clarity about its status vis-à-vis the remit of the Ombudsman. If Anglo Irish Bank Corporation Limited is not listed in the second schedule as an exempt agency it may be unclear whether actions relating to it can be reviewed by the Ombudsman. This could give rise to unrealistic expectations among members of the public that the Ombudsman could offer an avenue of appeal or redress regarding the bank.
The remarkable swiftness of the Minister's action in bringing this body outside the remit of the Ombudsman is in stark contrast to the slow bicycle race that is occurring in bringing agencies that ought to be under supervision into scrutiny. We must wait years for action in such circumstances. As we discussed with regard to other amendments, the Government does not seem to be in any rush to make up its mind in such cases. The Government has been very quick to make up its mind in the case of Anglo Irish Bank Corporation Limited.
I accept that this case involves different issues and that the Financial Services Ombudsman can investigate individual queries but I am sceptical of the defence relating to competitive disadvantage. To say that commercial bodies in State ownership are at a commercial disadvantage because they must respond to the Ombudsman is pushing it. What cost implications are there? Does the Minister of State have in his deep satchel cost assessments of the huge burden that could be imposed on commercial bodies? The defence given for this is not credible. We have many more gripes about the management of Anglo Irish Bank Corporation Limited and we could spend all day discussing them but I will not ask the Minister of State to do that.
Why should we decide that commercial bodies in State ownership should not be subjected to the scrutiny of the Ombudsman? This is beginning to look unreasonable. Should regulators be subjected to the supervision of the Ombudsman? They are also excluded. The appropriateness of the principles mentioned by the Minister of State must be re-examined.
I concur. Anglo Irish Bank is not even a semi-State body; it is fully owned by the taxpayer. Agencies such as An Bord Pleanála have also been exempted and I do not understand this as many constituents approach us with queries on such bodies. This also goes for semi-State bodies such as Bord Gáis, CIE and the ESB; why are they exempted? They are supposed to operate in a commercial world; this is about ordinary people being able to raise issues that arise. Whether a company is private or semi-State it may provide State services. The Government has commissioned various reports and there have been OECD reports on a charter of consumer rights. If we want the public to believe in this the semi-State bodies proposed should not be exempted; certainly, Anglo Irish Bank should not be exempted as it is now fully State-owned through taxpayers' money. Given that €7 billion of taxpayers' money is being used to recapitalise the two main banks — AIB and Bank of Ireland — people should be fully entitled to make complaints regarding issues that are of concern to them. An Bord Pleanála, Bord Gáis Éireann, the ESB and CIE should not be included as exempted agencies.
Anglo Irish Bank tends to provoke Pavlovian responses.
The Financial Regulator should — to an even greater degree than Anglo Irish Bank — be the subject of oversight on the part of the Ombudsman. The critical point is that the Ombudsman has the power to review the efficient operation of public policy and to consider whether such policy is fair and whether it is implemented in a timely and efficient way. The Financial Regulator should be the subject of oversight on the part of the Ombudsman because taxpayers are liable for the €440 billion guarantee in respect of institutions such as Anglo Irish Bank.
Essentially, the Ombudsman acts as a guardian of taxpayers' interests. I no longer know what is the function of the Financial Regulator. That organisation appeared to be out to lunch when it came to our major banks and the damage they did to the economy. During the past ten to 15 years, increasing levels of power relating to the setting of prices, the supervision of markets, etc., have been conferred upon various regulators. In recent months, difficulties have arisen for both the taxi and energy regulators. However, the problems surrounding the Financial Regulator are those with which most people are familiar.
I am of the view that it may be time to develop a new function for the Ombudsman and confer upon him or her responsibility for high-level oversight in respect of particular matters. If and when we emerge from the mess caused by Anglo Irish Bank, there will be a need for such oversight. Does the Minister of State propose to exclude Irish Nationwide or are we just being somewhat previous in that regard?
The Deputy should confine her remarks to the amendment.
The damage these institutions have caused to the economy is simply staggering. I can understand, from a technical perspective, why the Minister of State proposes to exempt them. However, they do not deserve such treatment. The more oversight there is with regard to these institutions, the more chance there might be that citizens will enjoy some return in respect of all the sacrifices they are going to be obliged to make.
I would not be far behind Deputy Burton in voicing my indignation with regard to some of the practices that have been revealed and the fact that certain standards have not been adhered to. However, the issue that arises relates to the form of oversight that should obtain. The Ombudsman operates primarily as an agent of the public in respect of public administration. I would not be in favour of muddying the waters by extending the remit of the Ombudsman into quite specialised areas where particular forms of regulation already or should exist. As already indicated, Anglo Irish Bank was subject to scrutiny by the Financial Services Ombudsman, the Financial Services Regulatory Authority and the Office of the Director of Corporate Enforcement.
It would not be sensible to attempt to centralise all forms of recourse within the Office of the Ombudsman. It is a good principle that the Ombudsman should deal, as a last resort, with complaints arising from public administration and not those relating to commercial practice and enterprise.
I move amendment No. 15:
In page 19, line 4, to delete "Office of" and substitute "The".
I move amendment No. 16:
In page 19, line 7, to delete "The Equality Tribunal" and substitute "The Director of Equality Investigations".
This is a purely technical amendment, which suggests that it would be more appropriate to use the title "The Director of Equality Investigations".
The Equality Act 2004 amended the Employment Equality Act 1998 and the Office of the Director of Equality Investigations is now known as the Equality Tribunal. In such circumstances, the title "Office of the Director of Equality Investigations" is no longer legally correct. Under section 75 of the Employment Equality Act 1998, the Office of the Director of Equality Investigations consists of the director and the staff of that office. It is appropriate that the office, including the director and his or her staff, come within the remit of the Ombudsman. Therefore, the reference to the "Director of Equality Investigations" is insufficient. On that basis, I cannot accept the amendment.
I signal my intention to bring forward certain amendments on Report Stage. I propose to table amendments to reflect the up-to-date position in respect of the ongoing programme of rationalisation of State agencies. These amendments are intended to cater for bodies such as the Postgraduate Medical and Dental Board, which is listed in Schedule 2 but which was dissolved on 31 December 2008.
I also propose to bring forward an amendment to make it clear that the administrative actions of the General Register Office, GRO, are reviewable by the Ombudsman. The GRO is not listed as a body subject to investigation in the Ombudsman Act. It has, however, operated on the basis that its administrative actions are reviewable by the Ombudsman. For the purpose of achieving clarity regarding its inclusion within the remit of the Ombudsman, it is proposed to table an amendment on Report Stage in order to make it clear that the administrative actions of the GRO are reviewable.
