Barry Andrews (Dún Laoghaire, Fianna Fail)

I move: "That the Bill be now read a Second Time."

I am pleased to introduce this important legislation. The primary purpose of the Bill is to extend the remit of the Ombudsman and thereby ensure that members of the public have recourse to the Ombudsman in respect of the administrative actions of a much wider range of public bodies than heretofore. The Bill also provides the Ombudsman with additional powers and updates various provisions in the Ombudsman Act 1980 in the light of the passage of time.

The Bill represents the most significant extension of the Ombudsman's remit in almost 25 years. At present, the Ombudsman is empowered to investigate complaints about the administrative actions of Government Departments and offices, the Health Service Executive, including the public voluntary hospitals, local authorities and An Post. The Ombudsman also has certain functions under the Disability Act 2005. When the Bill is enacted, the Ombudsman will be empowered to investigate the administrative actions of vocational education committees and higher education institutions. A range of other bodies whose administrative actions have not previously been subject to investigation are also being included.

Last Wednesday, 26 November 2008, the Taoiseach launched the report of the task force on the public service, Transforming Public Services. The task force report builds on the analysis and conclusions of the OECD review and provides the framework for a comprehensive new approach to the reform of the public service. It is particularly appropriate that the Bill is being considered at this time given the renewed focus on public service modernisation and reform and on the responsiveness of public bodies to the citizens they serve.

The term "Ombudsman" derives from a Swedish word meaning, literally, "agent" or "representative" of the people and it was in Sweden that the first equivalent to a modern day office of Ombudsman was established in the 18th century. The starting point for the establishment of the office of Ombudsman in Ireland is somewhat more recent. In 1969, the report of the Public Services Organisation Review Group recommended the appointment of a commissioner for administrative justice, the theoretical prototype for the Ombudsman who would emerge much later.

Six years after the publication of that report, a Dáil Private Members' motion led to the establishment of an informal all-party committee to consider the possibility of appointing an Ombudsman. That committee reported in 1977 and recommended the establishment of an Ombudsman's office. The Bill establishing the office was enacted in 1980 and came into operation by Government order in July 1983. Ireland's first Ombudsman, the late Michael Mills, RIP, a former political correspondent of the Irish Press newspaper, was appointed in 1984. Michael Mills served in the post until 1994 when Kevin Murphy, former Secretary General, public service management and development, in the Department of Finance was appointed Ombudsman. The development of the office continued under Kevin Murphy. He was also appointed as Information Commissioner in 1998. He was succeeded in June 2003 by Emily O'Reilly who was a well known political journalist before becoming the current Ombudsman and Information Commissioner.

The role of the office is not simply to examine individual complaints but also to ensure a better quality service to customers or clients of public bodies by improving the system of public administration. The provision of advice to members of the public on issues and areas which do not fall within the Ombudsman's remit has become a growing area of activity for the office over the years. That is an important service for people. By the end of 2007, in excess of 69,000 valid complaints had been handled by the Ombudsman's office. On average, approximately 38% of complaints have been upheld in whole or in part. The number of valid complaints received each year runs at approximately 2,500 at present. Inquiries, as distinct from complaints, are now running at a rate of approximately 10,000 a year.

I am conscious that the wider improvements in public administration which the office of the Ombudsman can help bring about are often achieved through the unearthing of systemic issues that come to light, in the first instance, through individual complaints. The positive spin-off that this yields manifests itself in a number of ways. For instance, while the primary purpose of the Ombudsman's annual report is to report to the Oireachtas on the carrying out of her functions, it also serves the wider role of alerting the public and public bodies to cases of interest that the Ombudsman dealt with during the previous year.

Many of the public bodies which the Ombudsman deals with deliver services or administer schemes that are similar in nature. For instance, all hospitals face similar challenges in seeking to provide first-class patient care and all local authorities have to apply complex planning legislation and deal with large numbers of planning applications, while the various regions of the Health Service Executive administer a variety of programmes to deliver on health and social care needs. Thus, an individual case where the Ombudsman finds fault with a public body and suggests improvements in practices and procedures can provide a valuable learning experience for other public bodies that carry out similar work. In order to strengthen the role of the Ombudsman in this area, a provision has been included in the Bill for the Ombudsman to make a general recommendation to any of the bodies coming within her remit where, following an investigation, she considers it appropriate to do so.

A further benefit arising from the work of the office is the correction of issues involving a public body which, in turn, leads to a retrospective review of similar cases that had arisen previously and where appropriate redress may be warranted arising from the decision reached in the individual complaint. That can yield benefits for a class of people who had never actually complained to the Ombudsman.

The annual and special reports published by the office of the Ombudsman show how the office can make a difference in the lives of many people while at the same time helping to raise the standard of public administration in Ireland. Public bodies can use the outcome of Ombudsman investigations as an opportunity to turn complaints into a positive learning experience for the benefit of the organisation and the members of the public with whom they deal.

For example, in her 2005 annual report, the Ombudsman reported on an investigation into a complaint against Sligo General Hospital from the members of a family, whose father died in January 2000, two days after he had been admitted to Sligo General Hospital. The Ombudsman's investigation identified a number of failings in the standard of patient care which the hospital had afforded the patient in that case. In a follow-up article in her 2006 annual report the Ombudsman singled out the hospital for praise for a range of initiatives it had taken in response to the investigation. Among those initiatives was a philosophy of care which was drawn up by the nursing staff working on the ward in which the patient at the centre of the complaint was treated. A steering committee was also established to drive new initiatives in regard to patient autonomy, integrated care, communication skills and dignity and design. The committee was also charged with ensuring those initiatives are acted upon, and are continuously evaluated within the hospital itself.

Most recently, in October 2008, the Ombudsman published a systemic investigation report into the operation by local authorities of waiver schemes for refuse collection charges. That investigation was prompted following a complaint to the Ombudsman by a public representative on behalf of a number of low-income householders who had been refused waivers by Waterford County Council. The Ombudsman subsequently decided to carry out a general investigation into waste charges waiver schemes, as operated in a representative sample of 23 local authorities.

The investigation identified a range of inconsistencies and differences of approach by local authorities. For instance, a total of seven local authorities had no waiver system at all in place, on the grounds that the service was provided exclusively by private operators, others only gave waivers for refuse not collected by private operators, one county had three different waiver schemes in place, while the average value of an annual waiver varied from €40 to €357.

Given the responsibilities of the Department of the Environment, Heritage and Local Government in local government matters, the Ombudsman recommended that the Department would take a lead role to help and encourage local authorities by carrying out a review of the administrative inconsistencies and anomalies that exist in waiver schemes throughout the country; devising guidelines for local authorities that would assist them in achieving fairness, equity and consistency in the administration of waiver schemes; addressing the legal position relating to the provision of waiver schemes where the waste collection service has been fully privatised; expediting consideration of the regulation of the waste management sector with particular reference to the needs of low-income households with a view to ensuring that all households availing of such services, from whatever source, are facilitated with a waste waiver scheme.

The Department of the Environment, Heritage and Local Government, welcomed the report and accepted that the existing regulatory framework required modernisation. The Department also assured the Ombudsman that it would give the report and her recommendations the fullest consideration, in the context of the ongoing review of the regulation of the waste management sector.

The main change introduced by the Bill relates to the Ombudsman's remit. Her remit will now include vocational education committees and higher education institutions. In addition, many agencies which, until now, have not come within the remit of the Ombudsman will be included. Organisations such as the National Roads Authority, the National Treatment Purchase Fund, the Courts Service, FÁS and many other State bodies whose activities affect the daily lives of citizens are being included.

The bodies which are reviewable by the Ombudsman are set out in the First Schedule. The 1980 Act has two Schedules. The First Schedule has two parts. Part 1 lists bodies that are subject to investigation by the Ombudsman. Where certain functions or elements of the bodies listed in Part 1 do not come within the remit of the Ombudsman those are listed in Part 2 of the First Schedule. An example of that is the Department of Justice, Equality and Law Reform, which comes within the remit of the Ombudsman and, accordingly, is listed in Part 1 of the First Schedule. However the Garda Síochána, which is excluded from the remit of the Ombudsman, is listed in Part 2 of the First Schedule.

For the most part the Bill retains the approach taken in the original Act. However, as well as considerably extending the number of bodies listed in the First Schedule we have also deleted Part 2 of the First Schedule. Any exemptions, which are limited, are now listed as part of the public body with which they are associated. The intention is to make the Ombudsman's remit as clear and concise as possible. The Second Schedule lists bodies that are excluded from investigation. Generally those are commercial bodies, although the Schedule also includes, for example, the Attorney General's office and the Director of Public Prosecutions. Again, we have retained that approach and the Second Schedule has been updated to take account of a number of commercial State bodies that have been set up since the office of Ombudsman was established.

I will briefly outline the remaining sections of the Bill. Section 1 contains the Short Title and provides for a commencement date to allow some time for the office of Ombudsman to prepare for the significant expansion in her remit. Section 2 is a standard provision defining the term "Principal Act" for the purposes of the Bill as the Ombudsman Act 1980. In dealing with the remaining sections of the Bill, I will refer to that Act simply as "the 1980 Act".

Section 3 amends section 1 of the 1980 Act by introducing a number of definitions of particular terms which are used throughout the Bill. The terms "reviewable agency", "entity", "eligible person" and "exempt agency" are introduced and defined to clarify which bodies and which elements of bodies come within the remit of the Ombudsman, who may complain to the Ombudsman and the bodies, or elements of bodies, which are not subject to investigation.

Section 4 amends provisions in the 1980 Act whereby the Government can add to or remove bodies from the Ombudsman's remit by order.

Section 10 of the 1980 Act contains a provision that allows the Government to amend the First and Second Schedules to the Act after consultation with the Ombudsman and the relevant Minister. Following the Supreme Court judgment in the Mulcreevy case and on the advice of the Attorney General, specific criteria are being introduced which bodies must satisfy before they can be brought within the remit of the Ombudsman by order of the Government. The criteria are very similar to those contained in the FOI Act and each such order must be approved by both Houses of the Oireachtas. Moreover, under section 6 of the Bill, provisions whereby the Government could, by order, remove bodies from the First or Second Schedules to the 1980 Act are being removed.

Section 5 updates the reference to "European Parliament" in section 2 of the 1980 Act.

Section 6 replaces a number of provisions contained in section 4 of the 1980 Act and deletes others as consequential amendments. Section 4 of the 1980 Act sets out the functions of the Ombudsman. The purpose of the amendments to this section is primarily to take account of the new definitions of "eligible person", "reviewable agency" etc., that are being introduced in section 3 of the Bill.

Section 6 will allow the Ombudsman to investigate a failure by a body to comply with the provisions being introduced in section 7 of the Bill. The relevant provisions in section 7 require bodies under the remit of the Ombudsman to give reasonable assistance and guidance in dealings they have with members of the public. Section 6 also provides additional grounds for the Ombudsman to decide not to undertake an investigation, or to discontinue an investigation. The additional grounds are where she is of the opinion that satisfactory measures to remedy the cause of a complaint have been, or are proposed to be, taken.

Section 7 introduces a new provision in regard to the rights of citizens in their dealings with public bodies on administrative matters. This section sets out the entitlement of citizens to a high level of service from those bodies that come within the remit of the Ombudsman. Consistent with the resources available to them, public bodies will be required to give reasonable assistance and guidance in their dealings with the public; ensure that the business of individuals is dealt with properly, fairly and impartially; and provide information on any rights of appeal or review that people have. Individuals will have recourse to the Ombudsman in regard to compliance by public bodies with these new provisions.

Section 8 amends section 5 of the 1980 Act, which concerns matters excluded from the Ombudsman's remit. For the most part, the excluded areas are the same as those contained in the 1980 Act. One notable change concerns the exclusion of matters relating to recruitment or appointment and the terms and conditions according to which a person in a reviewable agency is employed. The limitation in the 1980 Act, which excludes these matters for people working in a reviewable or an exempt agency only, will no longer apply.

The Bill now provides that, in respect of these types of employment-related issues, the Ombudsman will have no jurisdiction regardless of the organisation concerned. The rationale for this is clear: the role of the Ombudsman is to safeguard the rights of individuals and society in dealing with public bodies and not to investigate issues concerning terms and conditions of employment.

Section 9 of the Bill will strengthen the powers of the Ombudsman. At present, following an investigation, the Ombudsman may recommend that a body take a particular course of action but she is not empowered to make general recommendations to other public bodies. Section 9 provides that the Ombudsman can make general recommendations to such bodies within her remit as she considers appropriate. The Ombudsman will also be empowered to request bodies to notify her within a specified timeframe of their response to her recommendation.

Section 10 also strengthens the powers of the Ombudsman. At present, the Ombudsman can require a person who is in possession of information relevant to a preliminary examination or an investigation to provide it to her office. The Ombudsman will now be enabled to apply to the Circuit Court for an order directing the relevant person to comply should this prove necessary. Section 11 of the Bill is a consequential provision.

Section 12 reflects the fact that legal issues may arise from time to time in an investigation or an examination by the Ombudsman. Based on similar powers available to the Office of the Information Commissioner under the FOI Act, this section will allow the Ombudsman to refer a question of law arising in an examination or an investigation to the High Court. The decision of the High Court will be final and conclusive.

Section 13 amends section 9 of the Ombudsman Act 1980 to align the latter with the Freedom of Information Act 1997. At present, under section 9 of the 1980 Act, a Minister or the Revenue Commissioners may notify the Ombudsman that the disclosure of a document, class of document, or information, would be prejudicial to the public interest. The Ombudsman is not authorised to reveal any such document or information. Section 13 of the Bill will bring these provisions into line with the Freedom of Information Act in providing that only an "exempt record" within the meaning of the FOI Acts can be the subject of such a notice.

Section 14 deletes subsection (4) of section 10 of the 1980 Act. The latter provides that the Minister for Finance can delegate powers exercisable by him under the Civil Service Regulation Acts 1956 to 2005. This provision is no longer necessary as the Civil Service Regulation (Amendment) Act 2005 provides that the Ombudsman is the appropriate authority for staff, within that office, at the grade of principal officer and above, and the head of the office is the appropriate authority for staff below that grade.

Section 15 limits the use of the title of "Ombudsman" to positions that are either authorised to use the title by an Act of the Oireachtas, have obtained the consent of the Minister for Finance to do so on foot of consultation by the Minister with the Ombudsman and relevant Ministers, or had commenced using the term before 9 July 2008. The purpose of these provisions is to prevent a proliferation of entities using the term "Ombudsman" and safeguard the position and status which the Ombudsman and related offices hold in society.

Sections 17 to 21 of the Bill contain a number of consequential amendments to other Acts to take account of the definition of "reviewable agency" introduced by the Bill.

I trust Deputies will strongly support this Bill and will welcome the new powers being given to the Ombudsman and the significant expansion of her remit. The Bill comprises a positive set of measures which will empower citizens in their interaction with public bodies and help further to improve standards of public administration. I commend it to this House.

See this speech in context