Mary Harney (Dublin Mid West, Independent)

I robustly and strongly defend the role of the Department in the investigation by the Ombudsman. Section 4 of the Ombudsman Act 1980 states:

Subject to the provisions of this Act, the Ombudsman may investigate any action taken by or on behalf of a Department of State or other person specified in Part I of the First Schedule to this Act (being an action taken in the performance of administrative functions) where, upon having carried out a preliminary examination of the matter, it appears to the Ombudsman....

Under legislation, the Ombudsman is not entitled to interpret the law or to make the law, nor is the Ombudsman entitled to the State's legal strategy. I thought it was interesting that my Department was asked for that by the Ombudsman following the enactment of the Nursing Home Support Scheme Act. She wrote to the Department on 30 July 2009 seeking certain information. The legislation had been passed in June 2009. That was refused on the strong advice of the Attorney General on the basis that the Ombudsman was outside her jurisdiction. The Department took issue with two matters on the advice of the Attorney General. I emphasise that because in her report the Ombudsman criticised the Department for failing to take the legal advice on charging medical card holders that were in public nursing homes, yet she went on to criticise the Department for being overly reliant on legal advice. You cannot have it every way.

The first point on which we took issue is that we said we could not interpret section 52 of the 1970 Act as we were not free to do that. The second point is that we could not inform the Ombudsman of our legal strategy on cases against the State. It is not just an administrative matter. The Minister, in defending actions on behalf of the State, does so in her executive capacity. Every citizen is entitled to protect their legal strategy under the Constitution. We would totally undermine our position if our legal strategy was to be the subject of an investigation by the Ombudsman. In her own report-----

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