Seán Fleming (Laois-Offaly, Fianna Fail) | Oireachtas source

There are two points the Minister might be able to clarify for me on this group of amendments. Amendment No. 25 states, "Part I of this Schedule does not include a reference to...". Under paragraph (k) the Minister is including the words, "a local authority (within the meaning of the Local Government Act 2001), insofar as it relates to the performance of reserved functions within the meaning of that Act...". I understand the reason but I want to tease it out with the Minister. As I read it, the Ombudsman will not have a role where the elected members of a local authority are operating in the performance of their reserved functions. These functions, as we all will be aware, include consideration of the annual estimates and the striking of the rate. One of their biggest reserve functions involves the passing of development plans and it is to that issue that I wish to specifically refer. It is one at which the Minister should look again. I will not oppose the legislation on these grounds, but I am aware that there are other issues involved. When the legislation beds down, during the lifetime of the Government I expect that the Minister will look again at it and I ask him to be conscious of this matter at that stage. I understand why this provision is included in the Bill. It is because it is deemed to be a democratic function performed by elected representatives, which is fine. I understand that is the main reason people would be happy with this provision. However, I ask the Minister to look at it in a broader sense. I refer to an instance where local authority members pass a development plan. This matter did not come up for discussion to a great extent in the context of the reform of local government, apart from the power of elected members to direct the county manager to perform a particular function.

This is often referred to as a section 4 motion and I believe the Minister for the Environment, Community and Local Government is going to remove this power, rightly so. Any councillor will testify that when one is being plagued by members of the public to sign a section 4 motion, one is in hot water before one even starts. In that context, one is better off not having to go down that route. That is one of the reserved functions covered under the Bill which the Minister for the Environment, Community and Local Government will abolish in due course.

I have some concerns about one of the reserved functions that elected members will retain, namely, that concerning the passing of a development plan. I will give an example to illustrate my concerns. Recently Laois County Council adopted its development plan; it was one of the first local authorities to do so under the new regime. A contentious issue arose concerning EirGrid pylons in the county and the elected members, having listened to the views of residents and taken stock of the cost implications of laying cables underground, as opposed to running them above ground, included a section which allowed for certain cables to be placed underground. The advice from the county manager and the Department of the Environment, Community and Local Government went against this and EirGrid which was not happy sought a judicial review in the High Court of the decision made by the local authority and its members. The High Court directed that the relevant section in the development plan which had been voted on specifically by the elected members be removed. Where elected members take an action with which other parties disagree, the only option open to these parties is to seek a judicial review in the High Court. In the example I gave that is what happened. I am not saying which side I am on, but I am merely illustrating a point. The aggrieved party won, the members' decision was overturned and the section was deleted from the development plan. All of this happened within the last 12 months.

It is unfair that the only avenue open to citizens if they are not happy with a decision of elected members of a local authority is to seek a judicial review. EirGrid which is financed by the taxpayer has immensely deep pockets and could have fought the case all the way to the Supreme Court, if necessary. Ordinary citizens, on the other hand, do not have such resources and it is unfair that the only mechanism available to them is to seek a judicial review, which costs tens of thousands of euro. There should be a mechanism in place, whereby they can appeal such decisions to the Ombudsman, the elected members can explain their decision in a forum that is not costly to the citizen and the Ombudsman can make a decision on the case. I ask the Minister to reconsider this issue at the next available opportunity.

I refer to another part of the Schedule, namely, paragraph (p)which refers to "the Private Residential Tenancies Board, except as it relates to an action taken in the performance of administrative functions under Part 7 of the Residential Tenancies Act 2004." I ask the Minister to explain precisely what "administrative functions under Part 7" means, if he has a note to hand. He may not have the information available, but if he does, I ask him to provide it for the House. A lot of people, both landlords and tenants, are very unhappy with the operation of the Private Residential Tenancies Board. I do not agree that the only matters that can be dealt with are its administrative functions but rather that all of its functions should be within the remit of the Ombudsman. I ask the Minister to consider this at some point.

I wish to comment on the amendment Deputy Mary Lou McDonald has tabled, specifically the section on the administration of the law relating to immigration and naturalisation, but before doing so, I will be supporting the legislation as passed by the Seanad. People may ask why and now that it appears we will be voting on this amendment, I wish to explain my position. I am speaking again, as I often do in this House, from my practical experience as a Deputy. There were two asylum centres in County Laois, but the smaller one has now closed. I have dealt with a lot of asylum applicants and must say up front that the asylum process is long and dragged out such that it defies all justice. It does not do justice to the countries from whence the applicants come and if they have a genuine case, they are being denied justice by the process followed.

Every time an asylum seeker receives a letter from the Department of Justice and Equality with which he or she is unhappy, he or she is entitled to seek a judicial review. Deputy Mary Lou McDonald might fundamentally disagree with me, but that is my experience. A letter stating asylum is not being granted is met with a judicial review which can take a few years to complete. A review takes place, the decision is upheld and the applicant lodges an appeal. A letter stating the appeal has not been upheld is again greeted with a judicial review. When that review process is exhausted and the applicant is told that he or she must leave the State, another judicial review is initiated. Sometimes there can be three or more judicial reviews as part of the process and the applicant can go to the main courts and, if unsuccessful, take a case to the European court. Some of these cases are genuine, but I do not believe that involving the Ombudsman in this process is wise. For a start, I do not know at what point the Ombudsman could get involved. Does she wait until a decision has been made by the European Court of Justice? Under current arrangements, after the initial decision on an asylum application is made, there is always a right to appeal, but a fundamental point about the Ombudsman's office is that it insists on all avenues of appeal being exhausted before it becomes involved in a case. The appeals process is not exhausted as long as judicial reviews are ongoing and the Ombudsman could always say the office is not getting involved because of the possibility of a further judicial review taking place at some point. Therefore, technically, the Ombudsman could not get involved until after the European Court of Justice has made a decision because until that time, the Department of Justice and Equality is not finished with the case. I sympathise with Deputy Mary Lou McDonald in her concern for those who are having difficulties with the process, but I do not know when, legally, the Ombudsman could get involved in an asylum application case. The Ombudsman might end up being another stalling mechanism.

Paragraph (f), subparagraph (ii) refers to "the administration of the prisons or other places for the custody of persons committed to custody by the courts". We were all moved by the report from the Inspector of Prisons last week on St. Patrick's Institution and what had happened there to children between the ages of 16 and 18 years. That report made for very grim and harsh reading and was alarming in that it did not catalogue events in the past but current practices in Ireland by State bodies. It brought to mind the fact that only one year ago the HSE could not tell the Committee of Public Accounts how many children had died in its care. It was not asked about deaths that had occurred 20 or 30 years ago but only since the HSE was established, within the past decade. The executive had never produced a report on the death of a child in its care and did not know how many such deaths had occurred. The neglect of children by State agencies and what we have seen in St. Patrick's Institution recently make the upcoming referendum all the more important. I ask the Minister to ensure that if the referendum is passed on 10 November, the Government will increase the budget for child protection measures next year. The public will be very cross if they vote 'Yes' to ensure the protection of children and then find that their wishes have not been backed up by the provision of additional resources.

Personally, I have full confidence in the Minister for Justice and Equality, Deputy Alan Shatter, surprising though that may sound to some. I met him last week and complimented him on his swift and strong action with regard to the report on St. Patrick's Institution. Several years ago he published reports on children who had died in the care of the HSE. He has form when it comes to looking after the welfare of children. In that context, I am prepared to give him the opportunity to come forward with appropriate legislation. The Ombudsman is not overly concerned about who is overseeing the institution, once there is a proper regime in place. The Ombudsman for Children, Ms Emily Logan, is also involved in the area of child protection and it would not make sense to have a possible duplication of functions between her office and that of the Ombudsman.

People will ask why we voted in a particular way if the amendment proceeds to a division. My party is satisfied with what is contained in the Bill, but if the provisions do not operate as intended, we will be seeking new legislation in due course.

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