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Seanad Éireann díospóireacht -
Thursday, 4 Oct 2012

Vol. 217 No. 8

Ombudsman (Amendment) Bill 2008: Committee Stage

I welcome the Minister for Public Expenditure and Reform, Deputy Brendan Howlin, to the House.

SECTION 1
Government amendment No. 1:
In page 3, lines 16 to 19, to delete subsection (3) and substitute the following:
"(3) This Act shall come into operation on enactment save in respect of entities that were not reviewable agencies under the Principal Act immediately prior to the enactment of this Act. With respect to such entities, this Act shall come into operation 6 months from the date of such enactment or such earlier date (if any) as the Minister may by order specify.".

I am glad to be back in the Chamber. The Second Stage debate on this legislation was very informative and I look forward to answering as best I can the points raised by Senators in this committee discussion.

Amendment No. 1 is a technical amendment which provides for the commencement of the legislation on enactment save in respect of any entities that are not subject to the Ombudsman Act 1980 immediately prior to such enactment. In respect of such bodies, the Act will commence on a date six months from the date of enactment or on such earlier date as the Minister may specify by order. The amendment will ensure there is a clear start-up date for the enactment of the provisions in the Bill.

I agree with the Minister that the Second Stage debate was very useful. The observation was made during that debate that this type of legislation is necessary because Sir Humphrey is not a natural democrat. In these grim times, when so much of the reform is stymied by a regrettable lack of funding, it is important that we examine every opportunity to enhance accountability and scrutiny in the public sector. I am squarely on the same side as the Minister in these matters and acknowledge that the constraints under which his Government is operating were inherited from the previous Administration.

As the explanatory memorandum indicates, the purpose of the legislation is to extend the remit of the Ombudsman. Ms Emily O'Reilly is universally well regarded and no entity should be exempt from her powers of scrutiny. Why then are certain bodies being given a six-month grace period before coming under the Ombudsman's remit? This Bill was initiated in the Dáil in 2008 and passed in 2010. There is no slur or insult implied against any particular agency in the provisions in the Bill to extend the remit of the Ombudsman. On the contrary, the aim of the legislation is ensure that every relevant entity is accountable in the same way for its expenditure of public moneys. Citizens must be confident that any concerns they have in this regard can be submitted to the Ombudsman and that a full and frank response will be forthcoming. As I said on the Order of Business this morning, there is a view that Sir Humphrey still reigns and, moreover, that he has had a very active week in tabling amendments in his own interest as opposed to what we are seeking to achieve.

This Oireachtas has been in place for 18 months, or approximately one third of a full term. Time is moving on and a Government that was elected to be radical should consider whether it is acceptable to allow certain bodies a six-month breathing space from their obligations to citizens in terms of accountability and transparency. People are dispirited and disillusioned. Unlike many of the reforms which the Government might like to make, this particular step would have no heavy cost and will ensure that all bodies operating in the State are answerable to the citizens of this country through the agency of the Ombudsman. I will listen with great interest to the Minister's response.

Cuirim fáilte roimh an Aire arís. Táim ag súil go mór leis an díospóireacht inniu mar tá an Bille seo thar a bheith tábhachtach. Tagaim leis an méid atá á rá ag an Seanadóir Barrett. An léamh a d'fhéadfá a bhaint as an leasú áirithe seo ná go bhfuil muid ag tabhairt sé mhí breise do na heagraíochtaí eile seo an seó atá acu a ghlanadh suas, rud nach bhfuil agus nár cóir a bheith ag teastáil.

Although it is not the Minister's intention, this amendment could be misconstrued as seeking to give the specified entities an additional six months in which to clean up their act. One would hope that all of the agencies being added are already doing their work in a fitting manner which upholds the principles set out in legislation. The Ombudsman is the independent arbiter of whether or not a citizen is being treated fairly and whether public bodies are fulfilling their functions in the proper manner. As such, there is a fuzzy logic in affording these particular bodies an extra six months. While I do not intend to oppose the amendment, it seems quite strange to afford them this latitude.

I will do my best to de-fuzz the logic, as it were. This is a standard provision as a commencement date is required. The commencement date for all bodies subject to the Ombudsman under the existing legislation is the date of enactment. For all other bodies, a horizon of six months or such lesser time as I determine by order will apply. It is my intention to determine the tightest timeframe possible in each case.

I note Senator Sean D. Barrett expressed views on this matter on the Order of Business and tabled a series of amendments to the Schedule. I look forward to explaining the position in this regard. The Department was in discussions with the Ombudsman and other Departments on specific agencies until the day the amendments were tabled. Once it has been determined which bodies will come within the purview of the legislation, we must give them some notice that is consistent with good administration. In essence, the six month timeframe sets out the horizon by which everything will come into effect. It is, however, my intention to have a much narrower timeline for all the agencies specified in the Bill.

I do not propose to discuss the agencies which have been excluded from the structure of the Bill as I hope to do so when we discuss the next substantial group of amendments. However, as this is the first amendment, I will outline the principles involved. I am absolutely determined, as is the Government, to build on our previous period in government when we introduced the Freedom of Information Act, the Standards in Public Office Act and the Ethics in Public Office Act, as well as changes to the Electoral Act to provide for greater accountability. Much of this legislation was watered down in the intervening period and the Government will restore it to the position that obtained previously.

I have introduced this legislation in the House and we held a detailed seminar on the heads of a whistleblowing Bill which will be known as the protected disclosures Bill. Legislation providing for a register of lobbyists is at an advanced stage and the restoration and extension of the Freedom of Information Act are fast coming down the tracks. This Bill is part of a corpus of law that will do exactly what Senators Sean D. Barrett and Trevor Ó Clochartaigh seek, namely, greatly expand the capacity of citizens to understand how decisions are made, how public administration works and who influences decisions in our democracy and introduce the greatest possible degree of transparency.

The amendment provides simply for an enabling timeline. I will commence the legislation as quickly as I can. The six month horizon is the outer limit for doing so.

While cheerleading is not allowed in the House, the Minister would enjoy my support if he were to reduce the six month period. I suggest a period of three months should apply. Perhaps he will consider before Committee Stage whether the legislation can be commenced sooner, but we will leave the matter to his judgment.

Some 35 bodies, as well as local authorities and certain voluntary hospitals, come within the remit of the Ombudsman. In increasing the number by 140, we must have procedures in place in each case and the bodies in question must be given some indication of how they should deal with complaints, interact with the Ombudsman and so forth. It may be of interest to Senators to note that, unusually in the preparation of this legislation, the Department has worked very closely with the Ombudsman to the extent that the Ombudsman has kindly seconded to my office a member of her staff who is working closely with us in the drafting of the Bill. I want the legislation to be practical rather than aspirational. We will ensure it works, while also upholding the principles that are important to the House and the Government.

Amendment agreed to.
Section 1, as amended, agreed to.
Section 2 agreed to.
SECTION 3

Amendments Nos. 2 to 4, inclusive, 7 to 12, inclusive, 17, 18, 20 and 33 to 35, inclusive, are related. Amendment No. 4 is an alternative to amendment No. 3; amendment No. 8 is an alternative to amendment No. 7; amendments Nos. 11 and 12 are alternatives to amendment No. 10; amendment No. 18 is an alternative to amendment No. 17, and amendment No. 34 is an alternative to amendment No. 33. It is proposed to discuss the amendments together. Is that agreed?

I do not agree with the decision to group 15 amendments together. Amendment No. 33 amounts to three pages of legislation, while amendment No. 34 amounts to four pages. Each of the amendments in the group raises serious issues and teasing them out individually would help in the preparation of the Bill. Too much is being swept into one set of amendments in which different issues arise. If, during the course of the debate, it transpires that some of the amendments have been discussed, I will withdraw or decline to move them. However, these issues are of great importance; Irish democracy is at stake. When one considers what took place four years ago last weekend, when a large number of accountable agencies to Parliament did serious damage to this country, we must take this chance to extend control to more agencies, as the Minister proposes. While I am delighted he is working with the Ombudsman, much went wrong as a result of the role of unaccountable people.

This is probably the most important Bill to come before the House this session because it proposes to extend democracy in circumstances in which many institutions collapsed and less than two years later the country had to be rescued by the International Monetary Fund. The governance of the country requires that we discuss these amendments separately. If there is unnecessary duplication, we will quickly dispose of the relevant amendments. However, the amendments are so wide-ranging and include such a large amount of legislation that we should discuss them individually as we seek to assist the Minister. That is the spirit in which I am participating in this debate.

It is a matter for the House to decide how the legislation is to be taken.

I will respond to Senator Sean D. Barrett because I do not wish to be at odds with him. We have plenty of time to deal with the amendments. The reason we should discuss them as a group is that they overlap. In any case, each individual amendment must be disposed of separately at the end of the discussion. It is proposed, however, that we discuss them together because they overlap and it would be difficult to disaggregate the Senator's amendments from those I have tabled because a number of them are identical. If we have a general discussion on the principles - we can have a meeting of minds in that regard - we could then deal with each individual amendment. That would be the best way to proceed and I recommend that we adopt such an approach.

While I appreciate the comments of the Minister, I am in general agreement with Senator Sean D. Barrett. On a number of occasions I have experienced groups of amendments being rushed. I would much prefer if the amendments were not grouped. The Chair should use his abilities judiciously to ensure Senators do not repeat themselves when speaking on different amendments.

That will be a major challenge.

It is one the Acting Chairman is able to meet.

We will proceed with amendment No. 2.

Are the amendments being discussed together? Would it not be preferable to discuss them as a group and dispose of them individually thereafter? I propose that we have a general discussion on the group, as proposed.

As I indicated, the amendments may be discussed together, by agreement. Is it agreed that the amendments be discussed together?

It would be unwise for the House to divide on the issue.

The Minister has said he will take each amendment individually at the end of the discussion. If further debate is required, I am sure the Chair will allow for it.

Yes. There is no desire to curtail debate. The debate can be continued the next day.

I move amendment No. 2:

In page 3, lines 26 and 27, to delete “or an exempt agency”.

Seeing the two Wexford men on the other side of the House, I am reminded of the line, “To burst in twain the galling chain and free our native land”. That is the objective we all have and I am here to assist the Minister to make a major breakthrough in our democracy. No agencies should be exempt from democratic accountability. The concept is foreign to what the Minister was saying on the legislation last week. What is wrong with society in many ways is that agencies categorise themselves as exempt. The aim of the legislation is to extend the Ombudsman’s remit. The exempt agency is a null concept running against these principles.

The body of the law exempts matters before the courts, financial matters and industrial relations as the machinery is in place to deal with them. The courts will decide on issues of referral to the Ombudsman. The concept of an exempt agency that is outside the law is too much like the public administration that failed us in the past and should be part of the Minister’s reform agenda. All agencies, apart from those covered by the courts, financial and industrial relations matters, should be within the remit of the legislation. State agencies must know that if they annoy citizens, the Ombudsman will come around. In the spirit of what the Minister said to us last week, which I commend, the concept of an exempt agency is a contradiction in terms.

On a point of order, are the amendments being discussed as a group or individually? The substantive amendments are amendments Nos. 20 and 33 to 35, inclusive.

They are all interrelated.

Yes, but as Senator Sean D. Barrett said, they cover many areas. I would not have an issue if we were to have smaller groupings, say, one group up to amendment No. 18, with amendments Nos. 20, 33 to 35, inclusive, as a separate grouping.

There would be a difficulty, I am told, with amendments Nos. 34 and 35 because they are alternatives. If discussed separately, the first, if agreed to, would prevent the second from being moved.

I am suggesting we break the amendments into two groups – amendments Nos. 2 to 18, inclusive, and amendments Nos. 20 and 33 to 35, inclusive.

That will not be a difficulty.

I support the groupings arrangement because it makes common sense in dealing with them. Amendment No. 2 deals with the concept of exemption, while the others specify the exemptions. It makes sense to talk about it in the round, but I am in the hands of the House.

I understand the passion Senator Sean D. Barrett feels about the catastrophe inflicted on the economy by bad decision-making by several agencies. People feel very raw about this, with absolute justification. Members of the Government and Senators on this side of the House feel a righteous anger as much as anyone else. However, it would not be the Ombudsman’s role to be the point person to say a wrong decision was being made by an agency. The role is to deal with cases where a class of citizens interfacing with public bodies is subject to maladministration or decision-making that affects them adversely. For example, it can involve a person allocated a house by a local authority unfairly. It is not a super regulator to regulate everything that happens in public administration. That would be a job beyond the capacity of an individual Ombudsman to take on. The Ombudsman’s remit has always been focused on public bodies which have a close interface and direct engagement with significant numbers of members of the public. The Ombudsman is entitled to intervene in cases where a citizen believes he or she has not been treated fairly or a decision made by an agency has the potential to have an adverse effect on a member of the public.

I do not agree with the general principle that everything should be subject to the Ombudsman’s remit. I also consider she would agree with this, as there are different types of watchdogs and regulators. In the case of fiscal decisions, we have the fiscal council, with which Senator Sean D. Barrett will be familiar, to give separate advice and there is oversight of banking. These are complicated structures and the Ombudsman is not a super overseer of all public administration in that sense.

I have been convinced that specialist advisory bodies which do not deal with the general public should not be within the extent of the Ombudsman’s purview such as ComReg, the Commission for Aviation Regulation and the Commission for Energy Regulation. There are some advisory or regulatory bodies which do deal with the general public which will be within the remit such as HIQA. I do not want Ryanair complaining to the Ombudsman because it did not receive a favourable decision from the aviation regulator. The same argument holds in the commercial semi-State sector. These are commercial bodies engaged in market activities, governed by industry and sector specific regulatory bodies, legal requirements and company law like any other company. They are in direct competition with companies in the private sector. This competition would be distorted if these companies were subject to an individual complaints mechanism. An individual could, for example, complain because he or she felt the Aer Lingus price structure did not suit them. Such complaints would bog down the Ombudsman.

It might suit other airlines if that was the case. Those are the sort of commercial sensitivities we must consider.

By definition, there are some bodies that are public bodies, largely owned or controlled by the State, such as commercial semi-States which operate in a different regulatory environment where the rules that apply to them are the same rules that apply to every one of their competitors in the same sector. We do not want to make it overly difficult for a State-owned company to operate and make it an uneven playing field for them vis-à-vis their competitors.

Similarly, as I stated, in the regulatory sector, these are regulators. They do not deal with individual members of the public. My view and that of the Government is that these are not appropriate ones to be brought within the remit of the Ombudsman. They do not deal with everybody in every case. The advisory bodies are there to proffer expert advice but do not deal with individual members of the public and there is no cause for complaint. Of course, anybody can complain. On the notion that people would be giving out about the fiscal council because it recommended that there should be €4 billion, there would be quite a large amount of complaints to the Ombudsman if we brought the fiscal council within her remit.

To be practical about it, it is an extraordinary extension of the remit of the Ombudsman to cover those areas where individual citizens are interacting or interfacing with agents or agencies or Departments of State and where they believe they have not been given fair treatment. That is the traditional role of the Ombudsman and we should not try to extend it beyond that because it would not be fair to the Ombudsman herself.

In general terms, where there are exemptions it is my intention that there would be inclusions in the future and that should not be a matter for me alone to determine. In the Bill, it is my intention to give a role to the Oireachtas Joint Committee on Public Service Oversight and Petitions. Where that committee believes that a body, maybe because the committee received complaints from the general public through petitions, would be appropriate to be brought within the remit, the committee can make a recommendation to me or to whoever holds my office in future. That is a good way of involving the democratic process and the elected Members in the selection process so that it can be expanded in future, if it is not exhaustive enough in this enactment.

I thank the Minister. My fear is that the broad power of the Minister under section 4(1A)(1)(b)(ii)-----

I take it the Senator is dealing with the group.

I want to get agreement on that issue.

Senator Barrett is falling into the trap. We are either speaking to his amendment or to the group of amendments.

I was asking what the Ombudsman could do if we did not have the exemption status. According to the section to which I refer, she could investigate any entity that is financed wholly or partly, whether directly or indirectly, by means of moneys provided from the Exchequer. Taxpayers have that entitlement. That is my concern about exemptions. They know where one is when they are looking for money and then they are exempt when one asks what they did with it. That can affect individuals.

On the example the Minister mentioned, of course, we would not be particularly exercised as to whether Ryanair liked decisions etc., but the airport charges were increased by 41% by that regulator at the behest of the former Minister, Mr. Noel Dempsey, which might have affected a great many in their day-to-day dealings.

Does the Senator think the Ombudsman should be setting airline charges?

The decision on that issue has to be reviewed somewhere. We are trying to develop tourism, through The Gathering etc., and in a strange process, we increase airport charges at the same time.

But should it be the Ombudsman?

The regulator in that case acted at the behest of the airport authority and to the detriment of the rest of us in the country. That is what I say to a 41% increase in charges.

If there is a general power that anybody who looks for public money under section 4 is reviewable, we should specify the exemptions - the concept of which is wrong anyway - in a section of the Act rather than have a list of exempted bodies. The general presumption should be that the law applies and if people are being disadvantaged by agencies funded from the purse, those must have redress.

I appreciate the Minister's sentiments about Parliament and its rights, but there is much behind the scenes governance in Ireland which must be opened up. I suppose I am wishing to extend the powers of the Ombudsman to try to achieve that because a great deal was going wrong for a good while in this country. I fear, I suppose, going back to the Minister's earlier statement, that we are wasting a good recession if we do not open up to scrutiny on behalf of the citizens. The citizens are very annoyed at what has happened in this country. They believe they were powerless and they need the Minister and the Ombudsman to intervene on their behalf. It is a white knight role for them both. That is why I have difficulties with bodies being exempt from the general provision. If they want public money, we want to know what they do with it. Certainly, we want to ensure that they did not do it to the detriment of the citizens who paid for this.

The Minister raised that example. There are many other examples for which, when one goes through the list of bodies at the end, it is strange that we would deprive the citizen of that form of redress for which, we agree, from the former Ombudsman, Mr. Mills, through to the Ombudsman, Ms O'Reilly, the Ombudsman has been a beacon for the citizen in dealing with the many faults in the system of governance.

On a point of order, would the Acting Chairman clarify whether we are speaking on an amendment or the group?

With the permission of the House, I am grouping amendments Nos. 2 to 4, inclusive, 7 to 12, inclusive, 17 and 18 together. Is that agreed? Agreed.

As far as amendment No. 18, is it?

We will keep amendments Nos. 20 and 33 to 35, inclusive, as a separate grouping. Then amendments Nos. 13 and 19 are grouped, amendments Nos. 14 to 16, inclusive, are grouped, amendments Nos. 22 and 23 are grouped and amendments Nos. 25 to 28, inclusive, and 36 are grouped.

I welcome the Minister's comments. The list of organisations and State bodies that will be exempt makes practical sense. I have looked through the list. There are cogent arguments as to why they should be left out.

I have one question for the Minister. I note the State Examination Commission is not on the list of those exempt. Will that be within the remit of the Ombudsman?

I want to deal with the general principle. I understand why the Senator is using this legislation to address an issue it is not designed to address. There are enormous difficulties in regulation. The Senator is an expert on that area and I readily acknowledge that. One could not state objectively, if there is an aviation regulator who determines on balance an increase in landing fees at Dublin Airport, or a taxi regulator determining what taxi charges should be, that it could possibly be appropriate for the Ombudsman to state that it is an appropriate or an inappropriate fee or charge. It would be an impossible position for the Ombudsman.

It is a fair point that maybe we need to re-look at our regulators and whether they have been up to the job, but that is a different argument for a different time. This House is capable, through its committees, of calling in any of these regulators and getting explanations of their practice etc.

On the notion that one would make the unfortunate Ombudsman the final court of appeal for every decision, where the Competition Authority makes a determination on a merger it could not be sustained objectively that the Ombudsman has the right of appeal.

Objectively, this very significant expansion of the role of the Ombudsman to cover all categories where there is a direct interface with the public and agencies of the State should be welcomed. If there are lacunas in what we have done, we have the power to add on at a later stage. As we will also give a proactive role to a committee of the House to keep the matter under constant review, we are not waiting another number of years for a Minister to focus on it.

Regarding the specific question asked, any body not listed as exempt is included. Therefore, in the specific case of the State Examination Commission, it is included. Any other body that the Senator can think of which is not on the exempt list is included. This gets to the heart of the Senator's question. The old idea was that one listed the bodies that were included. My view is that every body is included except those that are exempt. It might look as if the Minister is exempting many bodies but in fact I am narrowing down the exemptions considerably. It is a different way of looking at it. I only exempted those bodies for which a coherent and logical case existed and I did that in close dialogue with the Ombudsman herself and her office.

I will start with that point. It is good that we are looking at it from a different angle rather than the standard position as we have known it. I appreciate Senator Barrett's passion for what he wants done but I do not know that this is the correct vehicle. My concept for the office of the Ombudsman was that it was for the individual citizen to use against the arm of the State. The arm of the State is practically, as the Minister has just said, going to take in just about every body except those that are prescribed and exempt, which is good.

In the days of the first Ombudsman, Mr. Michael Mills, the office was new and alien to us. On so many occasions, however, individuals took a case to the Ombudsman and a determination was made and we need to remind ourselves that this is the primary purpose of the office. It is there so that the individual citizen can take on the apparatus of the State, which can be too strong, powerful and perhaps, too dominant.

We touched on the issue of the legislation being used to the advantage of a private company against a semi-State company. It is not beyond the realms of possibility that a private company could use the legislation in this way and this becomes an unintended consequence, namely, that the semi-State company is put at a commercial disadvantage. I do not think we want to create that circumstance, as the Minister said.

One of the major questions we have about the legislation relates to the recommendation made in 2008 by the Ombudsman regarding an extension of her powers. She was critical of the previous Bill, saying: "It is my understanding that the Bill will not extend my remit to complaints regarding decisions in relation to immigration and asylum matters. I am most concerned by this." She went on to say that in most European countries, such complaints are covered. She said:

...I have stressed a number of points about this lacuna in my jurisdiction. I highlighted the fact that most Ombudsman Offices in Europe have jurisdiction in this area of administration. It is an area of administration which impacts very significantly on the lives of a very vulnerable group of people, many of whom face significant challenges...

I appreciate the principle that every body is included unless on the exempt list. I do not see the Reception and Integration Agency, RIA, the Irish Prison Service or the Irish Naturalisation and Immigration Service, INIS, on the list but I do see a reference further on to the fact that jurisdiction does not extend to the Department of Justice and Equality in so far as it relates to an action taken in the administration of the law relating to aliens or naturalisation, taken in the administration of the prisons, involving the exercise of the right or power referred to in Article 13.6 of the Constitution and so forth.

I ask the Minister to clarify if this Bill extends the powers of the Ombudsman in the way she sought in her critique of the Bill in 2008. I contend that this is one of the areas that we most need to allow her to have jurisdiction over. I have raised the issue of the Lisbrook direct provision centre in Galway on a number of occasions in this House in the past two weeks, which was in danger of being closed. I also highlighted the Irish Refugee Council's recent report during the debate on the children's referendum because there are serious issues concerning the rights of children in direct provision. During that debate, much praise was given to Mrs. Justice Catherine McGuinness, who pioneered that legislation but it relates to this legislation too in that the Ombudsman has sought the power of jurisdiction over direct provision centres. The Irish Refugee Council report is very critical of those centres. Mrs. Justice Catherine McGuinness wrote the foreword to that report, in which she says the following:

Poverty and Exclusion paints a convincing picture of the damage done to children by years of living in institutional accommodation which is so far removed from the atmosphere of a normal family home. This is rendered even more damaging by the income poverty of their parents.

She goes on to say that Ireland is in breach of the family life rights set out in Article 8 of the European Convention on Human Rights. The author of the report raises a number of very serious issues which I appreciate the Minister for Justice and Equality and the Minister for Children and Youth Affairs have said they will address.

I ask the Senator to speak to the amendment.

I am doing so. The authors of the report claim that the sustained and prolonged restriction of human rights and civil liberties inherent in the direct provision system amount to child abuse. These are very serious allegations based on numerous complaints. The Ombudsman has said that the people who made those types of complaints, which have been catalogued by the Irish Refugee Council, should be able to make their complaints to her office and she should be able to investigate them. My reading of the Bill as it stands - and I hope the Minister will clarify this - is that she will not have jurisdiction over these issues. She will not have jurisdiction over the administration of law relating to immigration or naturalisation. If that is the case, it is a very sad day and would represent a retrograde step and a reason for us not to support the Bill. One of the most important things that we must do, as Senator Barrett has said, is to open up the jurisdiction of the Ombudsman. Any organisation or State agency which is receiving money or delivering a service to the citizens should be open to those citizens being able to have redress if they felt they have not been treated properly.

I am completely confused now because Senator Ó Clochartaigh argued against discussing this amendment as part of this group. We are discussing amendment No. 34, is that correct?

It talks about exemptions. I am bringing it up in the context of-----

Which is why we should have discussed them all together. The Senator was the one who insisted that we disaggregate them. If the Chair wishes, I will deal with amendment No. 34 now. That is the amendment the Senator is talking about.

I propose we discuss them all together.

We can go back on them.

We will end up going back and forward without-----

I tried to accommodate Senator Ó Clochartaigh by splitting the group but now he is discussing the later amendment. We will go with the original proposal.

I was going to deal with it at the appropriate time but it came up through what was being said by-----

Yes, because it was logical to deal with it the way originally proposed. It is logical. That is what I was saying from the beginning.

Are we happy to discuss the group?

Yes, discuss the group and we will deal with them that way.

This is a very important point and one that I have spent a lot of time considering. The Senator has made a compelling case on this issue and I wanted to ascertain what we are doing. In that context, I have spoken at length to my colleague, the Minister for Justice and Equality, on the justice matters. To answer the specific question, the Department of Justice and Equality is included but some of its functions are excluded. We have looked at the specifics referred to by the Senator. To take the Irish Prison Service, for example, there has been a lot of interaction between my Department and the Department of Justice and Equality about that service because my instinct, like the Senator's, would be to include it. There have been a lot of independent reports from the Inspector of Prisons and there is considerable public confidence in the inspector's analysis, which is very damning.

As I noted in my Second Stage contribution in this House, the Minister for Justice and Equality has confirmed that he intends to introduce a credible prisoner complaint system that will deal with genuine complaints in an open, transparent and independent manner. The report of the inspector noted that the issues which give rise to complaints occur on an almost daily basis and indicated that an on-the-spot mechanism was needed to deal with them. It is not sufficient to write to the Ombudsman and wait while she conducts a formal investigation, writes to the Irish Prison Service and gets its response. This is a daily administrative issue and we need an efficient, on-the-spot ombudsman system. The Minister, Deputy Shatter, intends to introduce such a system and I am determined to give him the space to do so. If a view is taken subsequently that the Irish Prison Service should be part of the Ombudsman's remit, I have an open mind in this regard.

In respect to the Irish Naturalisation and Immigration Service, the programme for Government contains a commitment on introducing comprehensive reform of the immigration, residency and asylum system, including the creation of a statutory appeals system. This is intended to provide for efficient processing and determination of citizenship applications within a defined statutory timeframe. The reforms will be progressed through the enactment of the Immigration, Residence and Protection Bill 2010. Following the preparation of key Government amendments to that Bill, the Minister, Deputy Shatter, intends to return to the Oireachtas with comprehensive legislation as a centrepiece of wide ranging reform of asylum and immigration policy. The Minister's objective is to be in a position to bring this new Bill before the Government for approval later this year. On foot of his decision to introduce more effective legislation, I accept his advice against including the service entirely within the remit of the Ombudsman at this time.

I understand why the Office of the Attorney General is included in the list of exemptions but the Office of the Chief State Solicitor comes under the Attorney General. I have experience of dealing with the latter office on behalf of an individual who was looking for a matter to be concluded. The office was supposed to issue an opinion to a Minister but I could not even say that I found my interaction with it unsatisfactory because it refused to interact with me. Officials asked me why I was ringing them and told me that I should not be contacting them. Under these circumstances, I found it the most displeasing office of any with which I have ever dealt. I reached the point at which I had to down tools and tell the individual concerned that I could not advance the issue any further. I had no intention of misleading my constituent. That interaction may have been different if the Ombudsman had oversight of the office.

I speak against myself when I say the Attorney General should be exempt in nearly all cases but when this citizen learned that his solicitor was having no success in interacting with the Chief State Solicitor he approached me and other Members. The latter were no more successful in their efforts, however. I am not sure if this Bill is the vehicle for ensuring the Office of the Chief State Solicitor interacts with the public but perhaps certain parts of prescribed bodies should be subject to some form of oversight.

I thank the Minister for his reply to my question. I do not fully buy his answer, however, because, as a member of the Joint Committee on Public Service Oversight and Petitions, I understand the Ombudsman's role as the last chance saloon for people with grievances. Such individuals are directed to pursue other avenues of redress before they approach the Office of the Ombudsman. It would be a welcome development if the Minister for Justice and Equality put in place a procedure to deal with day-to-day issues but, as the Ombudsman's reports make clear, her office deals with issues that the arms of the State have failed to address.

The legislation on naturalisation has been a long time coming and while I have been critical of policies pursued by the previous Administration in respect of direct provision, these policies are still in place and they need to be addressed immediately. We are discussing an agency which does not yet exist. The Refugee and Integration Agency and the Irish Naturalisation and Immigration Service do exist and a mechanism of redress needs to be provided for those who have complaints about how they have been treated by these bodies. I see the Ombudsman as playing that role because no other mechanism is available. I do not believe the two mechanisms would clash in any way. The proposals of the Minister, Deputy Shatter, are a positive development but my understanding of the role of the Ombudsman is that she would get involved where an individual cannot resolve a complaint through the existing mechanisms. I strongly support the Ombudsman and I am interested in hearing her opinion of the Minister's advice. Do the officials seconded to the Department of Public Expenditure and Reform agree with this advice or do they believe the relevant powers should be given to the Ombudsman, as she stated in 2008? I would argue strongly for the inclusion of these agencies in the Bill.

I thank the Minister and my colleagues for a good discussion on exempt agencies. As I do not want to delay the Minister in his reform agenda I suggest that the Bill list the principles rather than the agencies, provided it does not require a vast amount of work. I have been fairly hard on exempt agencies and do not wish to press the point on amendments Nos. 2 and 4. Exempt agencies have been given a good run. The fear is that a garda who knocks on a door while conducting an investigation might be told that the agency concerned is exempt. That would not make for strong rule of law or the accountability which the Minister and I desire.

In the nature of these matters, when one introduces legislation that goes beyond the current practice, the entire focus is on the step that is not being taken rather than the 140 new steps that are being taken.

I have listened carefully to the points made. The principles would not separate any of us. We want a practical Ombudsman to ensure every citizen is confident that if badly treated by an agent or agency of the State, there is an appeals mechanism that is robust enough to put that right. In essence that is what the Ombudsman is about and must have the necessary resources. Successive incumbents of that office have built up a fine reputation in vindicating its role which is now being extended. As to whether this will be the last word on it, I am not sure. The two major principles enshrined in the legislation are that new bodies will automatically come within its purview and the only bodies exempted are those listed in Schedule 2. Even where there are exemptions, if in the future the Oireachtas is minded to amend the list, it will be in a position to make recommendations. Obviously the House can make its own recommendations on a motion at any time but formally through the Joint Committee on Oversight and Petitions, which is a new device. The Bill provides that the next Ombudsman will not be the sole choice of Government but the process will involve the Oireachtas. The range of changes are very democratising.

I shall deal with the two points made by Senator Michael D'Arcy. I understand the frustrations one might have. There are principles also. We cannot have somebody guessing the role of the Attorney General as the chief law officer of the State, the legal adviser to the Government, and a constitutional office-holder with a specific role to uphold the Constitution, even though some of the subsets of that would cause its own difficulty. In my parliamentary career I am more frustrated at the role of the Director of Public Prosecutions than of the Chief State Solicitor's office, but for right and good reasons they are absolutely independent in their decision making and cannot be gainsaid.

I note the logic and passion of the argument made by Senator Ó Clochartaigh. I ask him to give us the space to see how the new regime will operate. If at the end of it, there is still good reason to revisit the Irish Naturalisation and Immigration Service or the Irish Prison Service, we will have an open mind.

I appreciate what the Minister has said. However, it would be a mistake to give the Minister the space to think about it because he will need that role for the Ombudsman. For example, if the Minister for Justice and Equality sets up a redress agency for the Irish Prison Service and the Irish Naturalisation and Immigration Service, there will still be a role for the Ombudsman in overseeing the agency as there could be issues relating to people who have been through the system who need to have redress to the Ombudsman. Surely, the role of Ombudsman is to oversee and have that independent viewpoint.

I am concerned at the speed at which the other legislation will come through and how quickly those agencies would be set up. I have visited a direct provision centre in Galway. It is a difficult situation for the people there. In opposition, the Minister was critical of the direct provision model and it was to be scrapped within six months. Some 18 months in, there is no change and we are still awaiting legislation. The people who spoke to me and who are in that limbo say that every day that goes by is another day too long to deal with the situation. The Irish Refugee Council has highlighted that many people there have issues and they want them redressed. They do not have citizenship which makes it much more difficult for them to find redress. The Minister mentioned the six-month horizon. Even if the legislation is passed there will be a six-month lacuna. I hope there will be movement before then in, say, three months or less. They will still wait a long time. From a human perspective, that is extremely difficult for them. I ask the Minister to reconsider the amendment and, perhaps, discuss the matter with the Minister for Justice and Equality, Deputy Shatter. Even if what he says will be put in place, it will take too long and there will still be a need for a role for the Ombudsman.

The Minister did not answer my question as to what the Ombudsman thinks. Is she agreeable?

If the Senator has a question for the Ombudsman I will not indicate what she might say. The Ombudsman will speak for herself and I would not purport to speak for her.

In fairness, the Minister said he was working closely with the Ombudsman, that she seconded a person to his Department, that he is in broad agreement with all the principles. In the Bills digest in 2008 on the Bill, that was her major point of contention. She said the Bill would not extend her remit to complaints regarding decisions on immigration and asylum matters and she was most concerned by this. Has her view changed? Has it been intimated to the Minister that she is happy with the legislation and, if so, will the Minister inform us accordingly? He said he has daily interactions with officials from the Ombudsman's office. If that was her main bugbear with the previous legislation, it must have been discussed and they must have come to an agreement on it. It is the nub of the legislation and is the one bone of contention we would have with the Minister.

The nub is the one issue that is not in the Bill. I thought the nub was the groundbreaking expansion of the role of the Ombudsman that she has waited for years to achieve.

If one wants to argue for a further expansion, an acknowledgement of how far we are travelling would be helpful. Of course, the Ombudsman has a view about her remit. Every agency set up by law will have a view that it should have greater powers. I am sure the Seanad has views about itself but ultimately it is a matter for the Government in respect of legislation to make a proposition to the House, in consultation with the Minister for Justice and Equality. I have outlined his views. I am minded to accept his views and recommendations and they are the considered views of the Government.

In essence, it is the Government, by and largem, that proposes legislation, individual Members can do that as well, and it is for the House to consider it. External bodies have views on it. In this case, the view of the Ombudsman is extremely important but it is for the Government to make decisions. I am minded to accept the recommendations in this instance. I understand the argument and the logic which I share with Senator Ó Clochartaigh. However, if a new regime is to be put in place, let us look at the legislation - we are waiting a long time for it - in terms of the immigration and naturalisation service and general legislation on immigration matters and also in responding to reports from the prisons' inspector, a complaints regime that is immediate and timely for the Irish Prison Service. If there is a judgment call subsequently that we need to visit, I have indicated to the House that Senators will find I have an open ear on that matter. I ask Members to give us the space to put in place what the Minister for justice intends.

I would like to come back to that issue. It is important to note that as the Minister has said, we are speaking to the amendments which refer to the exemptions. It will be noted from my contribution on Second Stage that we certainly congratulated the Minister for bringing the Bill forward and noted the extension of powers. It is important to say that as the Minister has raised the issue. This is about getting down to any particular areas of the legislation that we consider will not do what is best in the common good. I appreciate what the Minister said about the Minister for Justice and Equality.

Our experience is that most complaints were made where people believed they had not experienced transparency or an openness to redress and relate to particular services of the Irish Prison Service, naturalisation and asylum seekers. It would be remiss of us not to address this issue.

Ministers come and go but I hope that the Minister for Justice and Equality introduces legislation as quickly as possible. I would place great weight on the comments of the Ombudsman as somebody independent of the Government. The general public would do the same. Any citizen would believe Ombudsman is doing an extremely good job and that she has been forthright in her opinions when she gives them. She does not express them lightly and the weight of her opinion must be taken on board. We cannot allow such an area to go unaddressed and I ask the Minister to reconsider the measure. It is a retrograde move and I disagree with his analysis of the matter.

We have given the matter a good airing.

Amendment, by leave, withdrawn.
Government amendment No. 3:
In page 4, to delete lines 8 to 16 and substitute the following:
“ ‘exempt agency’ means—
(a) an entity specified in the Second Schedule,
(b) an element of a reviewable agency that is excluded from review by—
(i) Part II of the First Schedule, or
(ii) an order under section 1A or 4(10);”.”.
Amendment agreed to.
Amendment No. 4 not moved.
Government amendment No. 5:
In page 4, paragraph (a), between lines 16 and 17, to insert the following:
“(ii) in the definition of “local authority”, by deleting “Local Government Act, 1941” and substituting “Local Government Act 2001”.”.
Amendment agreed to.
Government amendment No. 6:
In page 4, line 20, to delete “Minister for Finance” and substitute “Minister for Public Expenditure and Reform”.
Amendment agreed to.

I move amendment No. 7:

In page 4, lines 21 to 30, to delete all words from and including “means—” in line 21 down to and including “excluded.”,” in line 30 and substitute “as is defined in section 4;”.

Amendment put and declared lost.
Government amendment No. 8:
In page 4, to delete lines 22 to 25 and substitute the following:
“(a) an entity (whether established before or after the enactment of the Ombudsman (Amendment) Act 2012) within the meaning of Part I of the First Schedule, except to the extent that any element of that entity is expressed by Part II of that Schedule or an order under section 4(10) to be excluded from review, and”.
Amendment agreed to.

I move amendment No. 9:

In page 4, paragraph (b)(i), lines 33 and 34, to delete “or an exempt agency”.

Amendment put and declared lost.
Section 3, as amended, agreed to.
SECTION 4
Government amendment No. 10:
In page 4, to delete lines 40 to 45 and in page 5, to delete lines 1 to 33 and substitute the following:
“ “1A.—(1) Subject to subsections (2) and (3), the Minister may, after consultation with the Ombudsman, the Ombudsman for Children and such committee of the Houses of the Oireachtas as he or she considers appropriate, and with the consent of such other Minister (if any) as appears to the Minister to be responsible for the entity in question, and having regard to the need to ensure appropriate accountability and oversight of entities referred to in this subsection, may by order declare to be a reviewable agency—
(a) an entity, being—
(i) a company established under the Companies Acts in pursuance of powers conferred by or under another enactment, or
(ii) any other entity, whether financed wholly or partly, or directly or indirectly, by means of moneys provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government,
(b) any other entity on which functions in relation to the general public or a class of the general public stand conferred by any enactment (but only in respect of those functions),
(c) a subsidiary (within the meaning of the Companies Acts) of a company to which paragraph (a)(i) relates, or
(d) an entity (other than a subsidiary to which paragraph (c) relates) that is directly or indirectly controlled by an entity to which paragraph (a)(ii) or (b) relates.
(2) An order made under subsection (1) may exclude certain elements of that entity from review.
(3) Where an order is proposed to be made under subsection (1) and such order excludes certain elements of an entity from review, the proposed order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.”.”.
Amendment agreed to.
Amendments Nos. 11 and 12 not moved.
Question proposed: "That section 4, as amended, stand part of the Bill."

We did not reach some of the issues but I appreciate the Minister's sentiments.

Discussion on the amendments has been concluded but the Senator can speak on the section.

The Acting Chairman says that we discussed them but, with respect, we did not.

My amendment deals with lobbying - a cause that is dear to the Minister's heart - where one considers that one has been damaged by the activities of lobbyists. That is what they are about and let there be no doubt about it. The lobbyist makes his client, the person himself or herself better off but who loses? Are there losers as a result of lobbying? I know that the Minister shall soon address the matter with legislation and I will strongly support him. Does the legislation strengthen his intention to deal with the activities of lobbyists? There are losers and that is why lobbyists engage in the activity. Do the losers have a right to lodge an appeal with the Ombudsman? Failed regulators damage people. We have probably discussed it but we have not discussed lobbying.

Public private partnerships can also damage people, yet they have managed to escape scrutiny on the basis that they are in some way confidential. Some of them were raised in the House, including confidential agreements on drug prices and tolls on motorways. I put those forward because the issues require scrutiny, particularly lobbying which is close to the Minister's heart. I am simply making suggestions. Does he think that they contain anything that he can use to prise open some activities and subject them to scrutiny? Is this the appropriate place to raise the matter? During the course of his political career he expressed an interest in such matters and that is why I raise them now. Is there a link?

We have discussed those amendments collectively and I shall not reopen the discussion. Perhaps the Minister wishes to reply directly to the Senator.

Lobbying is one issue that we did not discuss. As the Senator will know, we have published extensive heads of a Bill to regulate lobbyists. People involved in lobbying were strongly at pains to underscore to me that the business of lobbying is perfectly legitimate and that virtually every citizen engages in it. Whether it is the Children's Rights Alliance - perhaps I should not use it as an example in the presence of the Acting Chairman - the agricultural community or the IFA, lobbying is part of the democratic process. The objective is to conduct it in a transparent and open manner and to ensure that there are not fellas whispering into important ears at the back of a tent in Galway. There are consequences when a lobbyist gets their way. It is not a matter for the Ombudsman to deal with no more than I would regard it legitimate for the Ombudsman to deal with the adverse impact of a regulatory decision from, for example, the Competition Authority, ComReg or anybody else.

We will have a chance to discuss in some detail the robust mechanisms that deal with the regulation of lobbyists in the House. I do not foresee a particular role for the Ombudsman in that regard.

I thank the Minister.

Question put and agreed to.
NEW SECTION

Is it agreed to discuss amendments Nos. 13 and 19 together? Agreed.

Government amendment No. 13:
In page 5, before section 5, to insert the following new section:
5.—Section 2 of the Principal Act is amended—
(a) by inserting after subsection (2) the following:
“(2A) Such appointment may be preceded by consideration by a committee of the Houses of the Oireachtas as may be designated by the Minister of a person proposed by the Government for such appointment.”,
and
(b) in paragraphs (a) and (b) of subsection (5), by substituting “European Parliament” for “European Assembly” in each place where it occurs.”.

There are two parts to the amendment. Paragraph (a) provides for consultation with the committee of the House before making any proposal to appoint an Ombudsman in order to strengthen the Ombudsman's relationship with the Oireachtas. The Ombudsman supports the enhanced role for the Oireachtas in terms of pre-appointment scrutiny and regular reporting.

The purpose of the amendment is to make the appointment process more transparent, to recognise the legitimate interests of the Oireachtas in the selection and appointment of an Ombudsman, and to encourage and support the ongoing involvement of the relevant Oireachtas committee with the Ombudsman. Senators will be aware that part of the role of the new oversight and petitions committee is to be a vehicle where reports of the Ombudsman can be properly dealt with. A lacuna in the past sometimes existed where the reports of the Ombudsman were not properly dealt with. It is important for the Oireachtas to play a role in the pre-selection process before a new Ombudsman is appointed.

It is also envisaged that the consultation process will allow the general public the opportunity to understand the approach the Ombudsman designate would take to the role he or she would perform in the future.

I welcome this as it is a progressive move and something the current Ombudsman has sought. She has sought more transparent procedures for appointing ombudsmen and has argued for some kind of a confirmation hearing before an Oireachtas committee charged with monitoring and supporting the work of the office.

Perhaps we should consider changing the wording from "may" be preceded by consideration to "shall" be preceded by consideration. This would give a sense of compellability and demonstrate it needs to be done, rather than that it may be done at the behest of a Minister. What is the Minister's thinking on that aspect? As somebody who sits on the committee, I welcome this and see it as a good move. We support this amendment.

I support the amendment.

I apologise for arriving late to the Chamber. I welcome the Minister to the House. Following our really good debate on Second Stage of this Bill, I welcome this amendment. We spoke on Second Stage about the importance of having Oireachtas supervision of appointments such as this. I mentioned at the time the proposed merged Human Rights and Equality Authority on which we had hearings before the Oireachtas Joint Committee on Justice, Defence and Equality. It is appropriate that amendment No. 13 provides for such a committee "as may be designated by the Minister". Given the changes we have seen in committee structures, even in the past 12 months, it is more appropriate to say that rather than specify a particular committee at this stage. I welcome the amendment and the principle behind it.

Amendment agreed to.
Section 5 deleted.
SECTION 6

Amendments Nos. 14 to 16, inclusive, will be discussed together. Is that agreed? Agreed.

I move amendment No. 14:

In page 5, line 40, to delete “may” and substitute “shall”.

This concerns the use of the words "may" and "shall". Indecisiveness or conditionality surrounds the word "may". We are talking about an officer of the State charged with most important duties which are being exercised expeditiously. Why, therefore, do we use the word "may"? Why is there doubt or conditionality about the issue. If it appears to the Ombudsman her investigations are needed, she has the full authority of this House to carry them out. There should be no unnecessary indecision.

It is to give discretion to the Ombudsman rather than tie the hands of the Ombudsman that the Bill is drafted in the way it is. The effect of Senator Barrett's amendment would be that the Ombudsman, having carried out a preliminary examination, would not be able to exercise any discretion over whether to continue on to a full investigation. She would be obliged to always investigate administrative actions taken by or on behalf of a reviewable agency, even where she felt such an investigation was unwarranted. I do not believe that is the Senator's intention. We must leave the discretion to the Ombudsman to carry out a preliminary investigation and, at her sole discretion, to determine whether a full investigation is merited by that case, rather than let her carry out an investigation and even where a full investigation is not merited, be obliged by law to continue with one. That would be wasteful.

I support the current wording and the use of "may". When one reads the entire section, one sees there are quite a number of provisos in terms of when the Ombudsman "may" investigate or "shall not investigate unless" and so on. To include "shall" as suggested by this amendment would be unduly prescriptive in terms of the Ombudsman's powers.

We are debating three amendments together. Amendment No. 16 is very helpful as it clarifies that the Ombudsman, in deciding whether to have an investigation, may do so "on her own motion or on foot of a communication from a person who is not, in respect of the complaint, an eligible person or a person referred to". This clarifies that the Ombudsman can make this decision on her own motion or on foot of a communication from another person. This broadens the scope. Therefore, we are better off leaving the discretion less fettered and retaining the careful circumstances in which the Ombudsman may or may not investigate.

My concern was that the word "may" could have provided a loophole by which people could escape scrutiny. I accept the response of my learned legal colleague and the Minister.

Amendment, by leave, withdrawn.
Government amendment No. 15:
In page 6, line 18, after “by” to insert “or on behalf of”.
Amendment agreed to.
Government amendment No. 16:
In page 6, line 20, to delete “the Ombudsman,” and substitute the following:
“the Ombudsman (on his or her own motion or on foot of a communication from a person who is not, in respect of the complaint, an eligible person or a person referred to in subsection (4A)),”.
Amendment agreed to.
Progress reported; Committee to sit again.
Barr
Roinn