Brendan Howlin (Wexford, Labour) | Oireachtas source

Amendment No. 2 is a technical amendment to amend the definition of an exempt agency to encompass non-public bodies, which, by order, are made reviewable agencies in full or with some elements excluded and exempted entities in the Second Schedule and entities with some elements excluded as set out in Part II of the First Schedule. That sounds more complicated than it needs to be but we are bringing new entities under the scope of the Ombudsman, sometimes in part rather than the entire entity. This will give the Minister the power to bring part of the remit to them. We will deal with this in detail later. This technical amendment will enable me to do that.

Amendment No. 5 amends the definition of a reviewable agency to provide that it encompasses new public entities which will be brought in automatically in future and non-public entities brought in by order as well as those entities within the meaning of the First Schedule, except to the extent that some elements of those entities are excluded, as I have already noted.

Amendment No. 6 is a lengthy one. It provides that subject to consultation with the Ombudsman, the Ombudsman for Children and the Joint Committee on Public Service Oversight and Petitions and with the consent of the relevant Minister, the Minister for Public Expenditure and Reform make may an order to bring non-public bodies, as may be considered appropriate having regard to the need to ensure appropriate accountability within the remit of the Ombudsman. I propose to extend the remit of the Ombudsman to bodies that are substantially funded by the State. Such bodies may not be public bodies but they may get substantial funding from the State in future, with the agreement of the Ombudsman. It also provides that such entitles could be brought within the remit with some elements excluded and in such cases an order should not be made until a positive resolution of the draft has been approved by both Houses of the Oireachtas.

Amendment No. 10 provides that the Ombudsman is precluded from investigating an action taken on behalf of an exempt agency and an action take by or on behalf of a reviewable agency if that action is excluded from review under Part II of the First Schedule of this Act.

Amendment No. 12 is technical. It provides that excluded bodies or functions under the justice remit, for example, bodies relating to the administration of prisons, be removed from section 5 which is the exclusion section of the original 1980 Act and instead be excluded in a schedule to the Bill. This is important to facilitate future decision making regarding the remit of the Ombudsman in consultation with the Minister for Justice and Equality. As the position stands, if the current exemption were maintained in primary legislation no future change could be made to the Bill. We held long discussions in the other House on this matter and I hold strong views on it. Certain agencies may be excluded at present but we may wish to include them in future. I am keen to be able to do that without having to bring further legislation to these Houses and the idea of the amendment is that I can simply bring them in. The proposed amendment will allow a change to be made by secondary legislation, that is, statutory instrument, subject to the processes set out in the Bill. The functions subject to these changes include the administration of the law relating to naturalisation and the administration of the prisons as well as permitting bodies such as the Refugee Appeals Tribunal and the Office of the Refugee Applications Commissioner to be brought within the remit by way of ministerial order.

A debate on these bodies took place in the Seanad and a strong and coherent case was made by the Opposition in respect of them. The Minister for Justice and Equality is committed to bringing forward the necessary legislation to ensure an effective and robust complaints system is put in place in the prison system on foot of the excellent reports of the prisons inspectorate. We can all rejoice in the robustness of the reports of the Inspector of Prisons and Places of Detention on the activities in the prisons. The Minister intends that these reports cannot be suppressed in the intended legislation and that there would be a requirement to publish them within a tight timeframe of the receipt of the reports.

The Ombudsman indicated in her recent meeting with the Joint Committee on Public Service Oversight and Petitions - I gather the two Deputies opposite are on the committee - that her priority is to ensure that independent and transparent appeals processes are put in place rather than the question of which public body should be assigned responsibilities for these areas. The view has been put to me by the Minister for Justice and Equality that on foot of the recommendations of the Inspector of Prisons and Places of Detention a coherent argument can be put for a statutory complains system in the prison system that can deal in a timely matter with day-to-day complaints. Rather than having the Ombudsman and a new statutory prisons inspectorate doing the same thing, calling the same witnesses and demanding the same papers at the same time, it is better to have a robust system in place. I have indicated that if necessary at a later date I will extend the powers of the Ombudsman to review this. One of the important, innovative measures in the legislation, a measure I imagine the Deputies will welcome, proposes to give a statutory role to the Joint Committee on Public Service Oversight and Petitions. I understand the committee is chaired by an eminent member of Deputy McDonald's party. The committee may make recommendations for bodies not within the remit of the Ombudsman to come within the remit. I assure the House that I will have careful regard to any such recommendations.

Amendments Nos. 25 and 26 are full Schedules. These amendments serve to substitute retrospectively for the First Schedule and Second Schedule of the 1980 Act. The bodies that currently come within the remit of the Ombudsman and those bodies which are excluded from it are set out in the two Schedules in the 1980 Act. The amendments will delete the existing schedules and replace them with new Schedules. Part I of the First Schedule will contain a general definitional provision for public bodies. All public bodies will be automatically captured in the Ombudsman's remit through the general definition except for those specifically excluded in whole or in part. I am reversing the way it was done in the past. If one is not specifically excluded one will be included in future. We will narrow down those excluded and a coherent case will have to be made for exclusion. This process encompasses those bodies previously proposed for inclusion in the 2008 Bill but it goes a good deal further than the Bill passed by this House in that it comprehends all public bodies unless they are specifically excluded in the Schedules. All public bodies are in unless they are specifically out. This is a more comprehensive way of doing it. At present the Ombudsman has jurisdiction of some 35 Departments, Government offices and agencies as well as all local authorities and voluntary hospitals.

Drawing from a comprehensive census of the population of non-commercial State bodies, research published by the Institute of Public Administration as well as work carried out by my Department, it is now estimated that more than 140 additional bodies will be brought within the Ombudsman's remit in terms of agencies and educational institutions. This is a remarkable increase in the oversight available and charged to the Ombudsman. This will be further extended when significantly funded non-public bodies will also be brought within the remit of the Ombudsman. The proposed extension applies in particular to the education sector, in which some 40 third level institutions, 33 vocational education committees as well as several agencies proposed to come within the Ombudsman's jurisdiction for the first time. This is significant and an extension of the Ombudsman's remit on an unparalleled basis. The Ombudsman's office has been closely consulted in these approaches on a step-by-step basis. Following consultation on the matter involving my Department, line Departments and the Office of the Ombudsman it is clear that it is not appropriate or necessary to bring certain categories of public bodies or elements of public bodies within the remit. The Ombudsman's remit has always focused on public bodies that have a close interface or direct engagement with significant numbers of the public on account of particular roles or responsibilities that such bodies exercise in terms of administrative decision making. Therefore, there is no case to include expert public bodies with specialised advisory or research functions and which do not deal with the public by and large, including ComReg, the Commission for Energy Regulation and the Commission for Aviation Regulation.

Part II of the First Schedule comprises those public bodies which have been partially included within the Ombudsman's remit following consultation with line Departments. The Second Schedule lists the bodies not subject to the remit.

For example, it is now proposed to list An Garda Síochána as an exempt agency in the Second Schedule. For the most part, the bodies listed in the Second Schedule are commercial entities, have little or no interaction with the general public or are major sectoral regulatory authorities such as ComReg, as I mentioned. The Ombudsman is precluded from investigating an action taken by or on behalf of a body specified in the Second Schedule or those specified in Part II of the First Schedule regarding those elements which are excluded.

I mentioned An Garda Síochána. The reason it is exempt is that has its own ombudsman.

One of the points I have taken on board is the need to stop the proliferation of the use of the term "ombudsman" because there are now so many persons who call themselves "ombudsman". That will not be allowed in the future, although there are a number of such persons. I knew somebody who used the terms "ombudsman" and "ombudswoman", but I do not know whether that is extreme.

Deputy Mary Lou McDonald is proposing amendments to amendments Nos. 25 and 26 which I will deal with when she has had a chance to make her contribution.

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