Ms Emily O'Reilly:

I thank the committee for giving me this further opportunity to discuss the Ombudsman (Amendment) Bill and my 2011 annual report.

I would like to begin by impressing upon the committee how important I consider it that this Bill is passed as soon as possible. I wish further to impress upon the committee the extent to which the people of this State have been badly served by the extraordinary, if not unprecedented, delay in extending the remit of the Office of the Ombudsman to public bodies that are central to their lives and well-being.

It is now 27 years and five months since a proposal emanated from the then Department of the Public Service inviting the Office of the Ombudsman to submit proposals for an extension of remit, following a suggestion from the first Ombudsman, the late Mr. Michael Mills. It is now 25 years and nine months since the office, delayed by a legal wrangle over remit, submitted a comprehensive set of proposals for the amendment of the 1980 Ombudsman Act.

Earlier this year, in a letter to the new Department of Public Expenditure and Reform, I described what transpired over the next quarter of a century as a farce which must end. I was pleased the Minister for Public Expenditure and Reform, Deputy Howlin, and his Department agreed with my views and their subsequent actions, plus a high level of engagement by my office with them, has now led to this day and, hopefully, to the enactment of this amended Act before the end of this month.

It is not perfect, but if I share with the committee some brief part of that 27 year history, I hope it will agree that the public interest will best be served through the passage of this Bill now. It will then be a matter for the Oireachtas, particularly for the members of this critical committee, to ensure the legislation's imperfections are remedied as speedily as possible whether through further regulation or through the passage of other legislation from other Departments which may bring independent oversight to bodies not currently under remit or not envisaged to be within remit through this amended Act.

The expectations raised in 1987 when the office issued comprehensive proposals to Government quickly disappeared. A meeting called by the Department in February 1987 was cancelled and nothing more was heard about the Bill until a full seven years later, in 1994, when it appeared on the programme for Government of the incoming coalition. In January 1995, the Department of Finance again wrote to the office citing the Government's policy statement, which declared: "A Government of Renewal envisages an extension of the powers and remit of the Office and discussions on the proposed extension are on-going." In its letter, the Department stated it was, "anxious to undertake the necessary work". What followed was a considerable amount of interaction between the office and the Department, rounds of consultation with Departments and offices and the drafting of a memorandum for Government.

In June 1996 when the then Ombudsman, the late Mr. Kevin Murphy, published his 1995 annual report, he noted that "good progress was made during the year and preparation of a draft Bill is now underway". One year later, in April 1997, when Mr. Murphy launched his 1996 annual report, a now rather exasperated Ombudsman highlighted the delays in getting the amendment Bill passed and called for the schedules to be amended in the immediate term.

Another year and another annual report later in April 1998, when Mr. Murphy launched his 1997 annual report, the Ombudsman, with hope restored, noted positively that the preparation of the Bill was reactivated in 1997. This positive trajectory ran into January 1999 when a press release by the then Minister of State indicated the Government had accepted proposals to introduce an Ombudsman amendment Bill. The press release went so far as to list the additional public bodies which would be coming under the Ombudsman.

As the winter of 1999 approached, the Minister for State responded to a letter from a very frustrated Ombudsman stating rather cryptically that he was "not without hope" that the Bill would be published by the end of the year. Alas, by the time Mr. Murphy published his final annual report in April 2003, he could say nothing positive about a possible amendment Bill being enacted and he made clear his disappointment at the lack of real progress throughout his tenure.

My first annual report as Ombudsman, which was published in April 2004, chimed yet another positive note as I referred to yet another commitment from Government to publish an amendment Bill by the end of 2004 and to have it speedily enacted. On my very first week in office, I was told by the then Minister for Finance that "the amendment Bill will be through in the next three months". I followed up my annual report remarks with a letter to the Minister for Finance, in November 2004, setting out the history of delays and calling for urgent action. The Minister wrote back and said he was "hopeful", which I read as being slightly more encouraging than the response of the Minister of State in 1999 who characterised himself as being "not without hope", that the Bill would be published by the following Easter. What, of course, was extraordinary about this was that the respective Ministers had virtually the absolute power to get the Bill through if the will and interest existed to so do. The years 2005, 2006 and 2007 saw hopes being raised and dashed. Throughout all of this time, I was attempting to manage my own office, readying it for the extension of remit and dealing with the understandable confusion and uncertainty of staff when, year after year, absolutely nothing happened.

I made a direct personal intervention with a new Minister for Finance, yet again urging action. My intervention seemed to get something rolling and in September 2007, the then Tánaiste and Minister for Finance, Deputy Cowen, wrote to me to say that the Department of Finance was "actively working" on an amendment Bill. In July 2008, the First Stage of the amendment Bill finally came before the Dail but progress after this was painfully slow. By 2010, it had reached Report and Final Stages but was not enacted by the time the Government fell. The tone set in my 2010 annual report, which I published in June 2011, was a mixture of total frustration at past failures which I felt justified in describing as "at the very least an embarrassment to all concerned", and cautious optimism at the current Government's commitment in its new programme for a national government to extend my office's remit to all publicly funded bodies. Then earlier this year, I wrote to the Department about the appalling torpor and lack of real political will around the extension of the Act in the manner I described at the start of these remarks.

I hope members will forgive me for dwelling so much on the past but I do so to underline that at this stage the passing of the amendment Bill as soon as possible is the number one priority for my office. I must also put on record my personal appreciation and that of the office for the recent hard work, commitment and energy of the Minister for Public Expenditure and Reform and his officials in bringing the Bill to the brink of enactment.

In terms of the most recent progress towards enactment of the amendment Bill, I understand that the hope and intent is to complete Committee and Report Stages in the Seanad on 17 October and I very much hope that the Final Stage of the Bill will be taken in the Dáil as soon as possible thereafter. The Bill, as drafted at present, provides that the additional public bodies being brought under my office's remit, of which there will be approximately 140, will fall within remit within six months of the Bill being enacted at the latest. From a practical point of view, my office will need this lead-in time to engage with the new bodies to explain the role of my office, set up formal liaison arrangements and sort out other operational matters.

The programme for Government included a commitment to extend the remit of my office to all publicly funded bodies. My office has been in close consultation with the Department of Public Expenditure and Reform on the drafting of the Bill and the scope of the extension of remit. The 1980 Act listed in Schedule 1 those public bodies subject to my remit and, in Schedule 2, those public bodies not subject to my remit. The current Bill contains a generic provision to identify in Schedule 1 those additional public bodies now coming under my jurisdiction, and this provision is broadly in line with the programme for Government commitment. The new Schedule 2 lists those bodies which will remain outside my remit. There has been some debate in the Seanad about the contents of the new Schedule 2 and I would like to clarify the rationale behind the continued exclusion of certain public bodies which, as I understand it, are publicly funded.

Both my office and the Department are of the view that the primary purpose of extending our remit is to include bodies not in Schedule 1 at present which have a high level of interface with the public and whose decisions, if taken improperly, have the capacity to affect adversely significant numbers of members of the public. This rationale would, for instance, with some exceptions, exclude certain specialist advisory bodies. We also agree that commercial semi-State bodies or highly specialised regulatory bodies are not an appropriate fit for oversight by my office. They operate in a commercial environment and are in competition with companies in the private sector. Furthermore, it would not make sense to have a further complaint appeals process to my office on decisions made by other independent complaint-handling bodies. Thus, bodies listed in the new Schedule 2 include, for example, Aer Lingus, the Commission for Aviation Regulation, ESB, Horse Racing Ireland, the National Concert Hall, the Office of the Ombudsman for Children, and the Office of the Information Commissioner.

In terms of the new bodies now coming within my remit, these will include all third level institutions, including the universities, and the vocational education committees, FÁS, the Legal Aid Board, the Equality Authority, the National Treatment Purchase Fund, the State Examinations Commission, the Central Applications Office, the Student Grant Appeals Board, the National Transport Authority, the Family Support Agency, Sustainable Energy Ireland and a range of other public bodies not included in Schedule 2.

Members are aware that section 5(1)(e)(i) of the Ombudsman Act 1980 provides that the Ombudsman shall not investigate actions taken in the "administration of the law relating to aliens or naturalisation". The current amendment Bill does not remove this restriction. My views on this restriction are well known and, indeed, in my previous appearance before the committee on 20 July 2011, I argued strongly that it should be removed. I also note that in the recent debate in the Seanad on the amendment Bill, a number of Members, including Senator Ó Clochartaigh from this committee, made strong interventions calling for my remit to be extended to these areas.

I very much appreciate the support expressed for my position on this issue. In his response, the Minister, Deputy Howlin, said he had consulted the Minister for Justice and Equality about the matter and said that a new complaints system was being introduced for prisoners which, he said, will be open, transparent and independent and will provide an immediate mechanism to deal with such complaints on the ground.

In regard to the areas of immigration, residency and asylum, the Minister indicated that a new statutory appeals system will be established through the enactment of the Immigration, Residence and Protection Bill 2010. Until we see the final shape and substance of these new complaint processes it would be premature of me to judge how effective they will be. However these processes must be robust and truly independent if they are to provide a genuine alternative to Ombudsman oversight. They should also be introduced as soon as possible. I will be watching developments in this regard and it will be interesting to see how complainants using the new systems judge their effectiveness.

I accept that my jurisdiction in this area will not expand in the immediate term and my main priority is to see the current Bill enacted as soon as possible. I do not believe it is the public interest to continue to deprive the people of this State of independent oversight in critical areas of their lives. I understand that the Minister has indicated a willingness to revisit the Ombudsman legislation if it requires fine tuning at a later stage, and prisons and asylum matters may be the subject of further consideration in that context at some time in the future. It is, however, fundamentally the business of the Oireachtas to ensure that the people of this State, including those who come to live here for whatever reason, are given the means to have independent reviews conducted on decisions made about them by the State. This committee, which has a potentially powerful and pivotal role to play in this regard, will continue to ensure that the Administration lives up to its commitments in these difficult and sensitive areas.

The Chairman indicated that he would prefer to confine the discussion to the Bill. I have some comments to make about the 2011 annual report but I am happy to stop now.