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Dáil Éireann díospóireacht -
Thursday, 8 Jul 2004

Vol. 588 No. 7

Ombudsman (Defence Forces) Bill 2002: Report Stage.

Recommittal is required as amendment No. 3, on which amendment No. 1 is consequential, does not arise from Committee Stage proceedings. Since amendment No. 1 is consequential on amendment No. 3 both amendments may be taken together by agreement.

Bill recommitted in respect of amendment No. 1.

I move amendment No. 1:

In page 5, line 7, to delete "in any case," and substitute "where subsection (8) applies,”.

The need for recommittal arises because of the recent enactment of the Public Service Superannuation (Miscellaneous Provisions) Act 2004. This Act was published and initiated after publication of the Ombudsman (Defence Forces) Bill 2002 and was still within the legislative procedures of the Oireachtas when the Ombudsman (Defence Forces) Bill 2002 was considered on Committee Stage. Accordingly the enactment of the new superannuation legislation could not be presumed at that time. The subject of both amendments is the retirement age for the Defence Forces Ombudsman. Two linked amendments are now required to sections 2(4)(c) and 2(8) to reflect the provisions of the relevant aspects of the new public service superannuation legislation.

Will the Minister please elucidate the provision in amendment No. 3: "In respect of any person who is not a new entrant (within the meaning of the Public Service Superannuation (Miscellaneous Provisions) Act 2004) the Minister may, with the consent of the Minister for Finance, prescribe the age at which such a person shall vacate office pursuant to subsection (4)(c)”? Does this mean that with the consent of the Minister for Finance the time for which a person may hold office can be extended or reduced, or that it will be possible for the Government to approve an extension of time for the incumbent, when he or she has attained a certain age, subject to the approval of the Minister for Finance? Is there a third possibility because amendment No. 1 seeks to delete “in any case,” and substitute “where subsection (8) applies,”? Has the Minister considered all the circumstances which this amendment is likely to affect?

There is no retirement age. The Minister can prescribe any age, subject to the approval of the Minister for Finance.

Why is the amendment being introduced at this stage? Is it being introduced in view of consultations within the Department or with representatives of the Defence Forces, or is it simply to accord with normal practice and procedures? It would be helpful to know the reasoning behind it.

Almost all aspects of this Bill exclusively have been agreed with the Defence Forces association and PDFORRA. This amendment, however, is a technical one arising from the passage of the Public Service Superannuation (Miscellaneous Provisions) Act 2004. It is not a question of having agreement with the associations or the Department of Finance, it is simply an essential technical change.

Amendment agreed to.
Bill reported with amendment.

I move amendment No. 2:

In page 5, to delete lines 9 to 13 and substitute the following:

"(5) subject to this section, a person appointed to be the Ombudsman shall hold office for a term of 7 years and may be re-appointed once only to that office for a second term.".

The Bill as drafted gives the Government quite a degree of control over the Defence Forces Ombudsman, including the setting of the length of his or her term of office. It might be deemed prudent to grant the ombudsman more independence from Government. The amendment does not in any way suggest that the Government is attempting to overly influence the ombudsman. It is an attempt to separate Government from control over the ombudsman in respect of a number of areas, such as, for example, the length of his or her term of office. The amendment is consistent with existing legislation and is modelled on the Ombudsman for Children Act 2002 which contains a similar provision.

It is proposed that the term of office be specified in legislation and not prescribed. As the Minister is aware, the length of the term of office could have an effect on the policy pursued by an ombudsman. That is not a reflection on the likely incumbent or the Minister, it is simply a reference to the fact that if, for example, the term of office was set at 20 years, the policy pursued by an ombudsman might well be different to that which might obtain if the term of office was reviewable on a more regular basis. The amendment seeks to address that issue. Why is the Minister seeking to depart from prescribing the term of office?

For an appointee to be entitled to hold office beyond a second term could be detrimental because the degree of independence and impartiality that is required could diminish during a longer term of office. This could happen for a number of reasons and could be to the advantage or disadvantage of either the Government or the Defence Forces. To reassure ourselves in respect of the independence and impartiality of the ombudsman, we believe it would be better to follow the route set out in the amendment, namely, that a person "shall hold office for a term of 7 years and may be re-appointed once only".

The legislation provides for a period not exceeding seven years, with provision for a possible second and subsequent term of appointment. On Committee Stage, Deputy McGinley held that the legislation should provide for a fixed-term appointment of seven years, with the possibility of one second period of appointment only, presumably also a second fixed term of seven years. His proposed amendment would potentially allow an individual to serve for 14 consecutive years in total. I undertook to reconsider this matter without making any commitment. Having done so, I must honestly state that I cannot accept the amendment.

The provisions of the Bill for the term of appointment were drafted to provide flexibility in making an appointment, not least from the viewpoint of potential appointees. A suitable potential appointee might be interested in filling the position for a period of three years or five years, for example, but might not wish to undertake the task for a period of seven years. We need to retain some degree of flexibility as regards the term of appointment. As a consequence, we also require flexibility as regards the possibility of any second and subsequent terms. In the context of the new Defence Forces Ombudsman, it is important that artificial restrictions which could, in practice, serve to frustrate the filling of the post by a suitable candidate for a term of less than seven years are not introduced into this primary legislation. The Bill provides that the question of the fixing of the duration of term of appointment should be left to the actual instrument of appointment, subject to the term not exceeding seven years. I remain convinced that this is the best practical operational model for the new position.

Like Deputy Durkan, Deputy McGinley made a strong case in favour of this amendment. I undertook to give serious consideration to see if I could agree to what was being suggested. We repeatedly tie our hands to an extraordinary degree and people sometimes say that we introduce too many regulations. I am seeking flexibility in respect of the new position of Ombudsman for the Defence Forces. There might be someone suitable for the position who may wish to serve for three, four or five years or perhaps longer. All we are seeking is flexibility in terms of deciding on the exact length of the term of office.

This is not a major issue and I do not believe Deputy McGinley would have pushed the matter to a vote. However, like Deputy Durkan, he believed that his view was right. I feel the same way and, therefore, am unable to accept the amendment.

Amendment, by leave, withdrawn.
Bill recommitted in respect of amendment No. 3.

I move amendment No. 3:

In page 5, to delete lines 28 and 29 and substitute the following:

"(8) In respect of any person who is not a new entrant (within the meaning of the Public Service Superannuation (Miscellaneous Provisions) Act 2004) the Minister may, with the consent of the Minister for Finance, prescribe the age at which such a person shall vacate office pursuant to subsection (4)(c).”.

Amendment agreed to.
Bill reported with amendment.

I move amendment No. 4:

In page 8, between lines 8 and 9, to insert the following:

"5.—The Ombudsman may of his or her own motion formally investigate in accordance with section 9 any action which it appears to the Ombudsman that it is desirable in the public interest to do so.”.

Deputy McGinley tabled this amendment to allow the ombudsman to decide to investigate a matter which he or she perceives as being in need of investigation without having to wait to respond to a complaint made to him or her. This power has been found to be useful elsewhere. We recognise that the role of the ombudsman may well evolve but all we can do at present in the legislation is to establish the Office of Ombudsman for the Defence Forces and set down the guidelines within which it will operate.

The Minister should accept the amendment because it will be beneficial in terms of adding strength to the role and power of the ombudsman. It would be a good development if the ombudsman were granted power to examine matters he or she may consider worthy of investigation, without having to await the making of a complaint. This would also have an impact in terms of the independence and effectiveness of the office. I do not propose that the ombudsman should replace the Minister, the Department or the various representatives. However, it might be wise to encourage the Office of the Ombudsman for the Defence Forces to develop to a point where if he or she thought a matter was worthy of or suitable for investigation, he or she could proceed to do so without awaiting a complaint.

I support the amendment for the reasons outlined by Deputy Durkan. In general, Sinn Féin welcomes and supports the Bill. However, we strongly object to the way the Government ordered Report Stage. We were only made aware of the fact that Report Stage would be taken at 9.30 p.m. on Tuesday and we were obliged to table amendments by 11 a.m. on Wednesday. The time provided was inadequate. We were informed that we could have tabled amendments on Committee Stage but our party is not represented on the relevant committee. It is unjust and unfair that matters have proceeded in this way. We have been denied the opportunity to table amendments. Having said that, we welcome and support the Bill. I fully support the amendment.

The Bill has been on the Order Paper for a very long time. We have been pressing for it to be taken in the Dáil for months and we eventually succeeded. There is considerable interest among members of the Defence Forces in having the legislation passed. It has received a broad welcome and there has been widespread support in the House for the principles enshrined in the Bill. There did not appear to be a significant number of amendments emerging from any source that would change the principles contained in it. No party has been placed at a disadvantage. The Bill has not been rushed. It has been hanging around for a long time.

Amendments are generally not tabled until a Bill is due to come before the House. However, if one is very keen, one could table amendments well in advance in the knowledge that the Bill would come up at some stage rather than waiting until the last minute. I know this from my time in Opposition. We have all done some whitewashing when visitors were coming.

At 9.30 p.m. last night?

I know, but the Bill has been there for a long time.

In response to Deputy Durkan, it is an essential principle of the legislation that, subject to the provisions of the Bill, the Defence Forces Ombudsman may investigate any action that is the subject of a complaint made to him or her by a person affected by the action. That is a very significant principle in terms of ombudsman legislation, not just here but in many other jurisdictions. It is an essential condition, therefore, that there must be an identifiable individual complainant in place. The proposed amendment would depart from that basic concept. I cannot envisage how in practice the Defence Forces Ombudsman could autonomously commence an investigation into an action in the absence of either a complainant or a complaint. I must, therefore, reject the amendment.

I accept the Minister's response and I do not intend to press the amendment. However, it is felt that it might be an added strength to the ombudsman's office if it were possible, as may well become the case, that in the course of the investigation of a complaint from a third party, he or she may see an additional complaint arising from the original one. It may well be of benefit to him or her to investigate other elements other than those outlined in the complaint.

To take an example that is very current, in terms of modules being investigated by a very famous tribunal, we know the kind of culs-de-sac people can travel. This would make the ombudsman's task well nigh impossible.

Amendment, by leave, withdrawn.
Amendment No. 5 not moved.

I move amendment No. 6:

In page 9, between lines 36 and 37, to insert the following:

"(4) In this section ‘serving member' means—

(a) a person in the service of the Defence Forces, including a recruit,

(b) a former active member, including a former recruit,

(c) a retired member,

(d) applicants to the Defence Forces, and

(e) a civil servant in the service of the Defence Forces.”.

The intent of this amendment is to broaden the categories of people who may be able to file a complaint. Apparently, in the Canadian model, those eligible to file complaints include current and former cadets, members of the Canadian forces, employees, applicants to the Canadian forces and family members of any of the preceding. I understand why this might be considered useful as very often those who apply for a particular position may well have reason to disagree with a decision because it was not in their favour. It is felt that if the ombudsman is to have real impact, the category of complainants must be sufficiently broad as to encompass those persons as set out in the amendment. That would substantially increase the number of people who would be eligible to file complaints. I would like to hear the Minister's comments.

The proposed amendment concerns the prescribed categories of persons who may make a complaint to the Defence Forces Ombudsman. Having considered the matter, I cannot accept the amendment.

The published legislation provides that complaints may be made to the Defence Forces Ombudsman both by serving and former members of the Defence Forces, subject to the other governing terms of the legislation.

A complaint may be made in respect of a matter internal to the Defence Forces where the complainant feels adversely affected. The general body of serving members and former members of the Defence Forces, including recruits and cadets, will be able to utilise this legislation to access the Defence Forces Ombudsman, as provided for in the legislation.

There is no reason civilians who have never served in the Defence Forces would need to make an application to the Defence Forces Ombudsman regarding internal Defence Forces matters. Such civilians have recourse to the existing Ombudsman as regards matters relating to the Department of Defence, Civil Service secretariat and to the Minister. Typical examples would relate to civilian employee pensions, matters relating to property owned by the Department of Defence and civilian applications to join the Defence Forces. None of these matters is proper to the specific role of the new Defence Forces Ombudsman.

In particular, the Defence Forces Ombudsman legislation is not relevant to civilian employees of the Department. As I explained on Committee Stage, these individuals are non-established civilian employees of the Department of Defence. Many are craftsmen while others perform various clerical functions in stores and so on. While they work with the Defence Forces, their employment is subject to the normal body of civil employment legislation. They enjoy exactly the same employment rights as all other non-established State employees who are employed by the Office of Public Works and by certain other Departments. Their interests are represented by recognised trade unions at the joint industrial council for non-established State industrial employees of Government Departments. They are not subject to military law or military discipline. In light of the entirely comprehensive nature of the provisions of the published legislation, I must, therefore, reject the amendment.

I have some degree of experience in this matter, which I am sure the Minister will recall. I accept the point made by him in regard to the fact that such civilians are not subject to military law or rules and regulations. However, they do work with and in the Defence Forces. If they were not in those positions their places would have to be filled by members of the Defence Forces who, in turn, would have the right to make a complaint in the normal way. I accept that many of the people concerned are former members of the Defence Forces which allows them to make complaints.

A large percentage.

That is correct. It is understandable and is probably a good thing for security reasons.

They are covered.

As former members they are covered. I know that security sensitivities surround this area and that a spurious complaint could be made. However, in those circumstances, it would be the ombudsman's prerogative to make a judgment call.

Perhaps we should make provision for persons who do not have an entitlement to make a complaint by virtue of not being former members of the Defence Forces, but who may be working alongside former members of the Defence Forces who are entitled to make a complaint. Notwithstanding the trade union route which such employees can take, if they work alongside former members of the Defence Forces, in many cases doing the same job, it would be beneficial to include them.

We have considered this very carefully. The proposal for an ombudsman for the Defence Forces has been on the political agenda for some time. I made my first announcement in this regard prior to the 1997 general election. During that time no representations have been made by any of the associations or the unions representing those about whom Deputy Durkan has expressed concern. I do not accept the principle that because an employee works alongside somebody who is subject to military law and discipline everything that applies to him or her in the Defence Forces should apply to the civilian employee. When we consider the range of services being carried out, this might arise in many circumstances.

If the Ombudsman can accept complaints from such people and at the same time we are enshrining a provision in this legislation, which also complicates the matter by enabling them to also take this avenue, what the Deputy is proposing would afford them two options. At present they can go to the Ombudsman and this amendment would allow them to go to the ombudsman for the Defence Forces also. On reflection Deputy Durkan might not want to press the amendment. I can understand the reason behind it. The Deputy's constituency contains many people who work alongside members of the Defence Forces. While this is a legitimate proposal, we cannot acceptit.

I do not propose to delay the proceedings of the House other than to ventilate the issue, as a former Ceann Comhairle used to say. I could foresee the possibility of a civilian employee working alongside a former member of the Defence Forces who would have an entitlement to lodge a complaint in the normal way. The Minister has correctly said that such a civilian employee would have the right to go to the national Ombudsman with his or her complaint. The other person with whom he or she works would have the entitlement to go to the ombudsman for the Defence Forces. I could foresee a slight problem arising there. Since this relates to activity and practice within the Defence Forces, I would prefer the ombudsman for the Defence Forces to make the decision on the complaint. This might require further amendments in other legislation to ensure only one ombudsman is referred to. We could not allow each individual to go to various and different ombudsmen to resolve a particular problem.

If the Minister is satisfied, that is fair enough. However, from my experience there will always be a certain amount of healthy competition, for want of a better description, in such circumstances, even in cases where the former members of the Defence Forces are involved. I do not want to be disruptive or to create dissension given the security point of view, but I am not certain that the two-avenue approach to resolve complaints, one to the military ombudsman and the other to another ombudsman, is necessarily the right way to go about this.

We never want to be too certain in this business. As the Deputy knows, a civilian employee has access to other forums, including the Labour Relations Commission, which are closed to members of the Defence Forces. Many compounding reasons prevent us going down that road. I have no more to say. My persuasive ability is obviously wanting in getting the honourable Deputy from Kildare to come along with me. That is our position.

The Minister's persuasive abilities were all used up on accident and emergency services in Tipperary.

I am a national politician.

Amendment put and declared lost.
Amendment No. 7 not moved.

Amendment No. 9 is consequential on amendment No. 8 and both will be discussed together.

I move amendment No. 8:

In page 16, line 4 to delete "in the Civil Service of the State".

We are concerned over the elaborate phraseology. I wonder why it might have been put this way. It obviously does not mean the "in the Civil Service". I presume it means "in the civilian service" of the State, or does it? It would appear to be an extensive description of what it is meant to convey.

There is some confusion concerning the definition of the term "civil servant". The Bill provides generally in the definitions that the term "civil servant" has the meaning assigned by the Civil Service Regulation Act 1956. This is the same definition as is provided in both the Ombudsman for Children Act 2002 and the Ombudsman Act 1980.

Section 14 relating to staff deals specifically with the civil servants who will be employed within the new office of ombudsman for the Defence Forces. The provisions here reflect the corresponding provisions of section 10 of the Ombudsman Act 1980 and section 21 of the Ombudsman for Children Act 2002 in providing that a member of staff of the ombudsman for the Defence Forces shall be a civil servant in the Civil Service of the State, as opposed to a civil servant of the Government, the latter being typically a civil servant working within a line Department under a Minister.

In this regard, Deputy McGinley's amendment would establish a different situation for those working in the Office of the Ombudsman for the Defence Forces as compared to the officers of the other two existing statutory ombudsman's offices.

Will the Minister indicate whether the reference is to the Civil Service Regulation Act 1956 or to the most recent Act of 2002?

It is to the Ombudsman Act 1980.

Is it affected by the changes in the selection process of the Civil Service and Local Appointments Commission?

There is a leaning towards recruitment by the line Ministry as opposed to the Civil Service and Local Appointment Commission, which we on this side of the House believe could have implications for the definition of the Civil Service in the future.

I do not think so. The same definition is in both other Acts. I do not think it is in any way connected with what might happen in future.

Is the Deputy withdrawing the amendment?

No, I will press the amendment.

Question: "That the words proposed to be deleted stand." put and declared carried.
Amendment declared lost.
Amendment No. 9 not moved.
Debate adjourned.