Dáil debates

Tuesday, 2 December 2008

Ombudsman (Amendment) Bill 2008: Second Stage


5:00 pm

Photo of Barry AndrewsBarry Andrews (Minister of State with special responsibility for Children and Youth Affairs, Department of Health and Children; Dún Laoghaire, Fianna Fail)
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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.

Photo of Richard BrutonRichard Bruton (Dublin North Central, Fine Gael)
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I wish to share time with Deputy Kieran O'Donnell.

Photo of Noel O'FlynnNoel O'Flynn (Cork North Central, Fianna Fail)
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Is that agreed? Agreed.

Photo of Richard BrutonRichard Bruton (Dublin North Central, Fine Gael)
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I welcome this Bill, which has been long anticipated. Over the years in which the Ombudsman has been in action, there has been a quiet revolution in the attitude within the public service to responding to needs and complaints. This is a welcome development although there are still cases — these are the ones that command headlines — in which people's needs seem to have been trampled upon. It is very important that the Office of the Ombudsman exists and that we strengthen its powers. There has been great progress since the appointment of the Ombudsman.

A number of elements of this Bill are to be welcomed. I welcome the general recommendations that can now be given by the Ombudsman. The existing power, which is essentially to provide an adverse report to the Dáil, is very limited. It is a long stop and is not likely to be used in respect of an individual agency. It is important that general recommendations can be made by the Office of the Ombudsman. The Ombudsman has been gaining considerable experience in dealing with issues of complaint and dissatisfaction. There is no doubt that the lessons being learned in her work could apply in many areas. I suspect that some of those lessons could even be applied in areas that are not considered to be within their scope, such as to clinical issues in the area of health, in respect of which the lack of a satisfactory way of dealing with complaints is not only a frequent cause of considerable disquiet but also of litigation at a later stage.

It is welcome that the Ombudsman has the capacity to require legal cases to be stated. I welcome the fact the Bill envisages that bodies under the remit of the Office of the Ombudsman will have systems for dealing with complaints promptly and that there will be a statutory power to achieve this. One could well ask why the Bill does not go a step further, for example, by giving the Ombudsman's recommendations and guidelines for bodies the legal force of a code of practice. Thus, if accepted by the body concerned, the guidelines would have legal force. Such codes of practice are now commonplace among financial regulators, including the Financial Regulator. Such codes of practice allow a regulator or ombudsman to extend the boundaries over time. This sort of growth, which would have the force of law, would be beneficial. I am interested in hearing the Minister of State's response to that idea.

Perhaps we need to examine dispute mechanisms other than the traditional ones in the public service. Perhaps the Ombudsman should be given the power to recommend mediation to a body rather than adopting the rather cumbersome approach of investigating each case and making an ultimate decision. The Minister might consider giving to the Ombudsman, as an additional option in her armoury, the flexibility to ask a body with a difficulty to proceed to mediation.

A continuing cause of unease is the very long list of bodies excluded from the Ombudsman's remit. I am surprised that regulatory boards are excluded. It is hard to understand why regulators who make decisions about institutions and their behaviour would not themselves be subject to the services of the Ombudsman. They deal with complaints and cases put to them by members of the public and the opportunity for maladministration clearly exists in the way a regulator might deal with such an issue. The basis for these exclusions is not clear and I would like to hear the Minister restate why he believes bodies with a commercial mandate should be excluded. Many bodies with commercial mandates are excluded, such as Dublin Bus, the ESB, CIE and Bord Gáis and their regulators. Can the Minister justify why he believes this should continue to be the case? There is little reason for so doing. One reason that might be offered is that some of these companies compete with private operators who would not similarly be overseen by the Ombudsman. It would be difficult to present a credible commercial case that cited the right of appeal to an Ombudsman as a burden on a commercial State body. I would like to hear the Minister justify this position.

The Ombudsman has rightly spoken about the interplay between her office and our work. Ultimately the Oireachtas is the body to which she reports. She made the point that in recent times we have created hundreds of new agencies which have not been subject to proper parliamentary scrutiny. Many on this side of the House would agree. The democratic model we must promote is that of strong parliamentary accountability, with right of appeal to the Ombudsman in cases of failings in individual cases. We must revisit this matter of the accountability to this House of many agencies. Many Members on this side of the House are driven crazy when they deal with bodies such as the Health Service Executive and try to get responses from it. Some of us were amused to hear that Cabinet Ministers find such bodies equally impenetrable when they try to get answers or discover what is happening internally in some of the agencies which we set up, all unwitting.

Perhaps parliamentary reform is not within the Minister of State's mandate but it must be addressed. The Minister of State did not explain why he did not accept the recommendation made to include asylum and immigration matters within the remit of the Ombudsman. The Ombudsman presented a case for that seemed credible because there is such precedent in other jurisdictions. The Minister of State did not indicate the reasons for his response.

Significant public service reform is coming on to the agenda and is long overdue. There must be a serious quality assurance revolution within the public service. The Ombudsman pointed out that our endeavours must be to drive better systems of public service delivery and I believe these will be accelerated in future times. We must also be cognisant of the important values that underpin public service in the treatment of individuals. These include fairness, equality, integrity and recognition of the common good, values that got squeezed in Ireland in recent times by the economic model we pursued. As we embrace public service reform it is important to ensure that those important values remain core to the public service.

The Ombudsman cited cases of people losing right of access to waiver schemes in the privatisation of certain services. That is a fundamental part of a fair system of service charges which has been lost. As we reform public services, one of the considerable challenges we face is ensuring that stakeholders, namely the users of public services, have an enhanced role. We must see that reform does not become a top-down, HSE-style driven efficiency. The model we must adopt is one that makes agencies accountable for the delivery of performance. The agreements agencies enter into must involve a greater role for stakeholders. Why should stakeholders not be able to make choices? Why should schools not offer choices? That is the brief of the Minister of State at the Department of Education and Science, Deputy Haughey. Why should schools not be in a position to present choices to parents? In an enhanced design people might be able to design websites and teaching might involve something new. Why do we not consider after-school clubs as a way of dealing with challenges in our schools? Why are those choices not presented to parents in a systematic way? Why should we not give more authority to schools and to principals to develop options for enhancing their schools? In that way they would become more accountable to their stakeholders. The notion of top-down, one size fits all control has been a bad feature of our public service model and we must reform it.

The Minister of State, Deputy Haughey, will agree with me that when it comes to the really tough issues like the drugs problem, school drop outs and anti-social behaviour, the State models are extremely poor. We must enlist the support of communities if they are to have any impact. Our systems are often poorly attuned. We must to develop a system where it is standard that agencies funded by public money offer choices to the stakeholders. Ideally, people will be able to choose the type of service and the most appropriate service for their needs. On a broader level, there must be choices about the direction a particular agency should take in serving local community needs. We have not established that in our system and, as a result, communities get frustrated with many agencies that are seen to be insensitive to local needs. The great challenge we now face is that, unfortunately, we are re-modelling public services against a tough background and a lack of resources. We must recognise that the crucial issue is to empower those who serve. Hospitals would be run in a considerably better way if patients had a stronger stake and the ability to command the way resources are spent. That would be a great advance. I see that the Acting Chairman is getting ready——

Photo of Noel O'FlynnNoel O'Flynn (Cork North Central, Fianna Fail)
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There are only 18 minutes left in this slot.

Photo of Richard BrutonRichard Bruton (Dublin North Central, Fine Gael)
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In broad terms, I welcome this Bill. I am sure we will have the opportunity on Committee Stage to debate many of the sections in detail and I look forward to that stage.

Photo of Kieran O'DonnellKieran O'Donnell (Limerick East, Fine Gael)
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How much time do I have?

Photo of Noel O'FlynnNoel O'Flynn (Cork North Central, Fianna Fail)
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The Deputy has 18 minutes.

Photo of Kieran O'DonnellKieran O'Donnell (Limerick East, Fine Gael)
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I ask to be called after ten minutes.

I very much welcome this Bill which is opportune. The recent OECD report outlined proper reform in the public sector, particularly with reference to a customer-oriented public sector. This extension of the powers of the Ombudsman lies very much in this direction. In bringing in extra bodies, we have given power to the Ombudsman to make a general recommendation rather than merely specific ones relating to particular complaints. From now a general recommendation can be made to a body following an investigation. This is welcome and will bring about proper standards. Deputy Bruton made the point that it might lead to a code of practice or conduct for particular bodies. That is most opportune and should perhaps be put on a statutory footing.

Up to now the Ombudsman could request information during investigations but there was no legal obligation on the body under investigation to provide it. The legal route can now be taken in order to obtain that information. That is very important. If needed, recourse to the High Court on a point of law will also be possible and that is welcome.

Some 450 State agencies and bodies are now in existence. One might question the validity of many of them, which are outside the remit of Departments. Ministers are increasingly telling the House that they have no remit over a particular function and that in effect it is now the bailiwick of organisations such as the HSE and FÁS. Power must be brought back within the executive function of Departments. This debate raises the broader question, as to why we have 450 State agencies and bodies, and what they are doing. They are bad value for money for the taxpayer, doing work that Ministers and their Departments should be doing — certainly this is something that must be looked at in depth.

My second point is that Schedule 2 refers to exempted agencies. Why are such agencies exempted? If they have regulatory powers and are involved in regulation, they should be subject to some form of oversight and regulatory procedures in their own right. A typical example is An Bord Pleanála, some of whose decisions are not consistent, and that should be looked at. Every ordinary person is dealing with An Bord Gáis and the ESB on a daily basis. If a person has a query, he or she should be able to register a complaint through the Ombudsman's office. State bodies should have no concern, in the event, if they are operating proper systems in line with suitable codes of practice for dealing with customers. That should not be an issue. We are seeking to bring about a customer centred environment. At the moment a great many public bodies are not customer centred, and basically employ a top-down approach rather than dealing with the customer on a proper basis. Effectively, if a private sector concern is not performing adequately, the customer will go elsewhere. Access to a proper complaints procedure is necessary within the public sector as well. There is no reason that bodies such as CIE, Bord na Móna, the Commission for Energy Regulation and the Commission for Taxi Regulation should not be brought under the ambit of the Ombudsman, in terms of complaints procedures as well.

The Ombudsman, Ms Emily O'Reilly, has indicated that the new legislation should have within it provisions for dealing with queries as regards immigrants and asylum matters. That should have been taken on board. We have to provide a consistent system across all areas, so that people are able to make complaints, as appropriate. Overall, the thrust must be that the Ombudsman's office should be capable of providing ordinary individuals with the facility to make complaints without fear — and allow the Ombudsman to adjudicate as to whether further investigation is required. My understanding is that the Act, in a prudent manner, provides that the Ombudsman can provide formal mediation, if needed. It is a question of looking after the customer. I believe it will also have the effect of improving the quality of services being provided by State agencies, and that is the key focus here.

In summary, I welcome the legislation, which is long overdue. However, other bodies need to be brought within its ambit. The general regulations now being provided for under the legislation mean the Ombudsman can intervene as regards various bodies, rather than making specific recommendations on particular points. That should be examined in a manner that will give rise to codes of practice.

Furthermore, specific proposals that may be made in particular cases that currently have the status of recommendations should be strengthened to ensure they can be enforced. However, these are wider questions that can be looked at on Committee Stage. I welcome the Bill, but there are points that require further examination.

6:00 pm

Photo of Joan BurtonJoan Burton (Dublin West, Labour)
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Any extension of the Ombudsman's remit is to be welcomed. However, where a new body is being created that takes over the functions of an incumbent body covered by the Act, it falls outside the legislation unless there is an order, approved by both Houses. As indicated by previous speakers, it has become the practice of this Government to create and establish a whole series of bodies, taking over what used to be direct ministerial functions. As a consequence when a body comes into being, the Minister concerned frequently replies to Dáil questions to the effect that as this is a dedicated body, he or she will no longer answer parliamentary questions. Thus, the very important recourse in a democracy, namely legitimate questions about the action of a public body in regard to individuals or specific issues, is lost. This has been a very strong feature of Government over the past ten years. The principle should be that all State bodies are subject to the Act, as they are created or where they are in being, unless they are specifically excluded. That means if a new quango is created, delegating unto itself particular ministerial functions, as happened for instance with issues relating to the security industry, fresh legislation would not be needed. This means a new body, from the time of its establishment date, should be legitimately subject to inquiries by the Ombudsman, therefore rendering some degree of accountability, particularly to individuals who might have issues to pursue with it.

I welcome the extension of the remit of the Ombudsman's Act to the bodies mentioned, particularly the educational institutions. That will be important where, for instance, a student could have a difficulty with an examination result or some other element of college or university administration. The tendency nowadays is to have recourse to legal remedies and to seek injunctions and so on. It would be much better if an Ombudsman examines the issue and either directs mediation or makes a preliminary finding. In most cases, that might well settle the particular problem, because very often people want information more than anything else. This is particularly true in the medical area where often something happens to a patient or where a patient dies, and all the grieving family wants is information on what happened to their relative. At present, where people seek information in such cases, hospital and medical authorities and the HSE are legally highly defensive. Instead of giving information, they tend to clam up and basically reserve their positions, because they anticipate potential legal action.

Mediation, information and no-fault information in a whole series of situations over a range of public services would both save people a great deal of anguish and much court time. It would also save a great deal in legal costs for individuals and public bodies. This is something we have not encouraged. We are very litigious and our manner of reacting to complaints or inquiries about public bodies is to up the ante and almost call in the lawyers automatically. We should consider developing procedures in this area.

I regret that a number of functions of the Department of Justice, Equality and Law Reform are excluded from the remit of the Bill. In her report last year, the Ombudsman made specific reference to the Bill. She welcomed the principle of the Bill extending her jurisdiction to bodies such as FÁS, the Health and Safety Authority and so on. However, she went on to say that she regretted the fact that decisions on immigration and asylum matters would not be covered by the Bill. She pointed out that, by coincidence, there was a Bill before the Houses dealing with significant changes in immigration, residence and protection matters which proposed further radical changes to the administration of the asylum system.

There is no provision under existing legislation for such complaints to be referred to the Ombudsman's office. I am aware the Ombudsman made a submission to the Department on the matter as long ago as July 2005 and that she has been in contact with Mr. Thomas Hammerberg, a Council of Europe Commissioner for Human Rights, and has expressed her concern about the restrictions in this area.

We need to think further about the implications. I would like to point out one area that has caused frustration for me and many other Deputies. Significant numbers of Irish people are married to people from countries throughout the world. In my constituency I frequently come across cases involving an Irish person married to someone from places such as India or Pakistan. After the birth of a child, the parents often want the grandparents to visit and it is a tortuous procedure to assist these people in getting a visitor visa. I have raised the issue with the Minister on a number of occasions.

There are ways to address this issue. I have dealt with cases where the families seeking a visitor visa were significant people investing in this country. They have lived here for a long period and are willing to go guarantor and comply with any reasonable request to confirm that their relatives, if given a visitor visa, will honour its terms and conditions. However, it is impossible to discover a defined procedure that is as fair as possible to deal with such situations so that people applying to embassy offices around the globe to visit their relatives who are settled here and married to Irish partners can do so. There appears to be no logical and transparent system for applying for visas.

We understand the examination of such visa applications must always be subject to intense scrutiny by the Department. Nobody objects to this, but the problem is that sometimes a visa is granted, but more often it is not and it is extremely difficult to understand the reasons for the rejection of the visa application. In this situation, the administration of the system could be vastly improved.

The situation could be improved even further if an attempt was made to deal with the consequence of the Government encouraging massive immigration to Ireland. In the newspapers this weekend there was mention of a visit of the former Minister for Enterprise, Trade and Employment, under FÁS sponsorship, to various job fairs in Cape Town and South Africa. The purpose of that visit and expenditure was to encourage people from South Africa to emigrate to Ireland. The Minister spent significant sums encouraging skilled workers to come to Ireland. Many came, but if they want relatives to visit, they may find that while FÁS was hiring a grand piano to draw them into its job fairs, they may not be able to get permission for their relatives to visit, despite the fact that relatives coming to visit must have a return ticket and sufficient funds to meet their needs.

Another area of asylum and immigration legislation difficult to understand is the regulations relating to work permits for people coming here to work. Last night's television programme, "Prime Time Investigates", demonstrated the arbitrary way in which employers can act. They hold the work permits and vulnerable immigrants like the lorry drivers or domestic workers mentioned in the programme have few rights. They may suffer abuse unless the light is shone on how the work permit system operates.

The Office of the Ombudsman would be a good office to investigate whether the work permit system operates fairly, both in the interest of Ireland and of the employees invited here on foot of work permits obtained by their prospective employer. Oversight by the Ombudsman of this area could result in a better system and reduce potential abuse by employers of people coming to work in such situations.

With regard to asylum provision, from the 1990s on my area received approximately 500 families from Bosnia as a consequence of the war there, some of whom had been injured in the bombings in Sarajevo. Those people are now in Ireland almost 20 years and have integrated very well into the community. They came as programme refugees and were invited by successive Governments to live here. However, the rules relating to family reunification are extraordinarily difficult to understand although they are a recognised part of refugee law for programme refugees. Allowing the Ombudsman the capacity for examination and oversight of this area would significantly improve the quality of the administration of the law in this regard. It is obvious this should be an area the Ombudsman should have the power to inquire into. I am sorry this Bill chooses to duck these difficult issues. The Department of Justice, Equality and Law Reform pretty much puts forward the theory that it is exempt from all inquiry by the Ombudsman, except with regard to the court system. The Department's approach is wrong.

The Garda Síochána and elements of its operations could also be the subject of legitimate inquiry by the Ombudsman. The issues relating to members of the force who have issues with the administration of the force could also be an appropriate area of inquiry. I do not believe the walls of the Department would fall down if that were the case.

I welcome the extension of the Ombudsman's powers and I understand she has agreed to appear before the Joint Committee on the Environment, Heritage and Local Government on foot of an inquiry she conducted into waiver schemes for refuse collection. A series of different schemes operates across local authorities in Ireland and my Labour Party colleague, Deputy Ciarán Lynch, has raised a number of times the need for a national waiver scheme to clarify people's entitlements, particularly those of pensioners, to reductions in the cost of their refuse charges. Having examined the issue, the Ombudsman made findings that are helpful to the administration of the Department of the Environment, Heritage and Local Government and local councils. Her appearance before the aforementioned joint committee to set out her views is a positive development.

Much of what the Ombudsman does and many of the rights of that office are paralleled by freedom of information. I wish to mention two areas that cry out to be addressed by someone like an ombudsman. The first pertains to the issue of management companies because no legislation exists in this regard other than an entitlement under company law for the formation of a management company. Tens of thousands of people, particularly young people, have found the properties they purchased at great cost are subject to control by a management company. Such companies are necessary in the case of apartments. In recent years, however, traditional housing estates have been built in which local authorities have stipulated in the planning permission that the estate or development would be subject to a management company on completion.

The idea is that the developer has the management company and that on completion of the development, it is handed over to a management company of the residents. However, this system is not working. Residents are being charged enormous fees by managing agents and management companies, often for work of a poor or non-existent quality and there is no one to whom to apply. Although a National Property Services Regulatory Authority was established approximately 18 months ago and while it wishes to be helpful, it has no legal status. Moreover, given the current climate of difficulty regarding house sales, management companies have collapsed and people in apartment developments are finding it difficult to process the sale of their apartments because the management company comprises a clause in the titles to the property. This issue affects tens of thousands of people and as public administration has almost no remedy to offer people caught in such difficulties, this must be addressed.

I refer to house repossessions. Ireland has had a Financial Services Ombudsman in recent years who has been doing some excellent work. Every Monday, however, a procession of people, whose houses are being repossessed, comes before the masters of the various courts. Some mortgage companies are very eager to repossess mortgages at the first sign of difficulty and there is no code of practice or standard as to how this is applied. For example, one half of a couple with mortgage repayments of €1,500 to €1,600 per month may lose his or her job in the construction industry and as soon as the first payment is missed, the penalty charges begin to clock up like a cash register. The case is handed over to lawyers by the third month, when three months of arrears amount to a debt of perhaps €4,000 to €5,000. Within five months, by the time such companies have finished and the legal fees have been included, the debt may exceed €20,000. Moreover, the mortgage company will only accept total payment and will not accept part-payments. The total payment includes the arrears, penalties and astronomical legal fees included by such companies. This is crazy given the present climate, because who will buy such houses after they have been repossessed? There are no purchasers in the market and in some cases, the local authorities will bear the burden when the people affected go on public housing lists or apply for rent supplements. At present, there are aspects of public administration in which people's capacity to make applications under the Ombudsman's provisions would aid public administration. More particularly, it would aid individuals and families who suffer as a consequence of the failure to legislate or even to think out regulations that would address some of the difficulties into which we now face.

I refer to small business people who are finding that banks are cutting down on their credit and overdraft entitlements. Many banks are doing this at present. For example, a business may have permission to avail of an overdraft facility of €10,000 or €20,000, which it may not use. At present however, the banks are writing to such businesses to notify them that the value of their overdraft is being reduced. This has consequences if the business's debtors are slow to pay or, for example, they ask for an additional month's credit on the basis they are known entities who always pay. In the present climate, business people may wish to be able to make an offer whereby they take 50% and extend an additional month or two of credit on the balance.

However, their banks in turn are not making any allowances for such practices. This is an administrative issue in which a response that is both business-like and fair is required because circumstances have changed so dramatically. The remit of the various ombudsmans' structures could be used to inform banks that although it is acknowledged they must be business-like and seek to avoid bad credit risks, at the same time, good businesses are experiencing difficulties and were everyone to work together and were some leeway given, people would be able to get out of this mess.

While I seek imagination in this respect, unfortunately and surprisingly, the imagination to understand what people are suffering appears to have deserted Fianna Fáil almost completely. While I do not know whether the Green Party has any input in this regard, no such imagination appears to emanate from Fianna Fáil these days. The role of the offices of the various ombudsmen, which help with specific areas of difficulty by sorting out administrative rulings, making them more human, understandable and fair to the citizen or to businesses is an essential part of a modern democracy. Ireland improved dramatically in respect of its economy and everything else when we opened the door to freedom of information and let the light shine in. Ireland has nothing to lose as a country or an economy by letting in the light on how its public bodies perform. While I welcome this Bill, before Committee Stage the Minister should consider broadening its remit to include in particular the areas related to justice.

Photo of Seymour CrawfordSeymour Crawford (Cavan-Monaghan, Fine Gael)
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While I have not engaged in much preparation on this issue, I felt obliged to say a few words on this Bill because the Office of the Ombudsman has provided a tremendous service over the years. The 2,500 complaints per year and 10,000 telephone inquiries per year give an indication of how the service is respected throughout the country and how people use it. Unfortunately, up until now there were a number of areas that the Ombudsman could not cover and I welcome the fact that those areas are included in the legislation.

I was interested in the example of a complaint in Sligo General Hospital that the Minister of State, Deputy Barry Andrews, chose to use in his script. It is purely coincidental that the Minister of State, Deputy Devins, is in the House but if he reads the Minister of State's script he will find it. By dealing with the complaint in Sligo General Hospital, the hospital services improved dramatically in the subsequent period. That was a positive outcome and I was glad that the Minister of State highlighted it.

There have been so many inquiries and reports done by private groups on the hospital services. Specifically, I recall the Pat Joe Walsh report on a not dissimilar case in Monaghan General Hospital. Initially, it was used to try to close the hospital. They could not manage that at the time. The HSE and the Minister did not learn from it, as obviously happened in the Sligo case. That is an important element of what the Ombudsman has been trying to do. The Ombudsman has been trying, not only to sort out problems but to give guidance on how improvements can be made in the future. When I look at the present situation of our hospital in Monaghan and the failure of the Minister, Deputy Harney, to even meet with its personnel, the consultants or the hospital alliance to look at how things could be done better, the Ombudsman has still much to do in that area to save money and to ensure a better service.

The previous speaker, Deputy Burton, mentioned that the Ombudsman will attend the Joint Committee on the Environment, Heritage and Local Government to speak about some of the issues she has dealt with in that area. I wish to be associated with the comments on the waiver system and how the Ombudsman improved that structure. I welcome it because in my constituency there was a reluctance to give any waivers at all, no matter how difficult the circumstances. Especially in the case of the elderly or the handicapped on low incomes who would not be able to dispose of some of their waste in the way some of the rest of us would, in the garden or wherever else, the charges for waste were an imposition and the efforts of the Ombudsman in that regard were extremely important. I can see her having a much greater role in the area of local authority services. With the economic position getting much tighter, no doubt there will be efforts to cut back. It is important that the Ombudsman has the courage and the opportunity to ensure the provision of the best possible such services.

I welcome the fact that a large number of new organisations has been included in the legislation. Specifically, I welcome the inclusion of the vocational education committees. While many of these do an excellent job, no doubt, according to records from the past, there were serious problems in some of them. It is only right that a person who has a difficulty with a vocational education committee or any other such organisation using public funds has the right to bring the issue to the Ombudsman to ensure that it is properly teased out. The Minister of State, Deputy Andrews, stated the Ombudsman's remit will also now include the higher education institutions as well, and that is important.

The Minister of State went on to state that organisations such as the National Roads Authority, the National Treatment Purchase Fund, the Courts Service, FÁS, etc., are being included. One cannot help but be pleased to hear that FÁS is to be included. What has happened in FÁS in the past while is an indication of how difficult matters can be. I congratulate those in my party and in the press and elsewhere who exposed the FÁS issue. When I think back on the great work done by community organisations together with FÁS workers, people who were on social welfare who felt they had no hope were taken on by FÁS and given the opportunity to do good for their areas, and in many cases this led to employment.

I support the work of FÁS in places such as Dundalk and Drogheda in the provision of apprentice and other such services, but when one sees the Minister and chairman both involved in such wanton waste one realises that there is a dire need for the Ombudsman to be able to deal with such matters. We do not want inquiries and tribunals. We want structures like the Ombudsman to deal with such matters in a clinical and proper fashion and come up with the results in an open and transparent way.

I welcome the fact that the present Ombudsman, Ms O'Reilly, is prepared to come in to the Oireachtas to discuss the role of her office in such an open and frank way. It is important that Members of the Oireachtas and the public know exactly what services she and her office can provide.

While I have the height of respect for the great work done by many officials of the National Roads Authority down through the years, there have been major problems with cost factors on projects such as the Dublin Port tunnel. There needs to be openness and transparency in such matters and there needs to be accountability. Some of the work the NRA has done in more recent times is excellent, but it is not above the law and the fact that we cannot ask the Minister a question in this House about a road or anything to do with the NRA is not acceptable and is extremely difficult. I have raised this point on many occasions when such organisations were being set up, and I especially raised it at the time the HSE was being set up. The bottom line is that under this Bill the National Roads Authority will be included.

I also welcome the inclusion of the National Treatment Purchase Fund. I also have asked questions about the fund and been told it is a private organisation and we do not have any right to know. This is an organisation that is being paid for out of taxpayers' money. I am aware of umpteen cases where the patient concerned should have been dealt with by the public health service but because of total mismanagement of that service, for which the mangers got bonuses, they must be passed on to be dealt with by the fund.

I welcome that two of my constituents will be dealt with by the fund but this is being done because a ward in Navan hospital was closed. The theatre and staff are available for the operation but the management decided to close the doors. Many people are suffering as a result of that decision. This issue needs to be investigated at minimum cost rather than by means of big inquiries or another quango. The Ombudsman does a great job in this context.

I welcome the inclusion of the Courts Service in the remit of the Bill. A case was recently brought to my attention involving a young couple who built a house in which they intended to live for the rest of their lives. They wanted the best for their only daughter. They were assured by their architect that he was insured for €320,000 if anything went wrong. Unfortunately, things went badly wrong and the house developed cracks into which one could put one's hands. The house has not fallen down but the rear of the foundation was found to be utterly useless. I am reminded of the biblical story about whether one should build a house on sand or on rock. It appears that half of this house was built on sand. When the problem was brought to the architect's attention, he admitted that he was fully at fault. However, the insurance money also had to cover the legal costs of the case. To the best of my memory, the insurer's solicitor took €63,000 and the man who was supposed to be advising the couple and their daughter on how the system worked is seeking €137,000. Anybody who knows the law will understand that if somebody holds up his or hands and pleads guilty, there is no case. The couple is left with €120,000, which will not go far towards rebuilding their house. Will this type of situation be covered under the Bill? The case has been considered by the Law Society and it is now with the Taxing Master but it is difficult to get support from these parties. I have no doubt that the Ombudsman would take this case seriously and ensure that justice is served and the rights of people upheld. Imagine employing a solicitor who looks after his own rights instead of his clients.

I welcome the Bill and hope that it will address issues such as those which I outlined to the House. Other issues, including agriculture, also merit attention. The appeals system in the area of agriculture does not always reflect the reality of situations. I am not happy with that area and I hope the Minister can bring in further measures in that regard. I cannot overemphasise the positive impact the Office of the Ombudsman has made over the years. It has solved a great many problems and has done more than most in terms of improving administration. We have heard a lot about benchmarking. I do not want to give the impression that Sligo General Hospital is not a good facility but improvements have been made there on foot of an investigation by the Ombudsman. Similar progress was made in county councils and the Department of the Environment, Heritage and Local Government. The Office of the Ombudsman has a bright future and I welcome the expansion of its remit.

Photo of Charlie O'ConnorCharlie O'Connor (Dublin South West, Fianna Fail)
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By order of the day, I call the Minister of State at the Department of Enterprise, Trade and Employment, Deputy Jimmy Devins, to reply to the debate. The Minister of State is entitled to not less than 15 minutes.

Photo of Jimmy DevinsJimmy Devins (Minister of State, Department of Education and Science; Minister of State, Department of Enterprise, Trade and Employment; Sligo-North Leitrim, Fianna Fail)
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I thank Deputies for their contributions to the debate and acknowledge the cross-party support given to the Bill. All Deputies would agree that the Ombudsman has made an important contribution over the past 25 years in terms of promoting high standards of public administration. This Bill will enhance that contribution. It comprises a progressive series of measures which complement the recent announcements made by the Government on broader public sector modernisation and reform.

The Bill is being introduced at a time when we are facing a number of significant challenges. We are currently experiencing such severe economic and fiscal challenges that it is critical our public services are organised and delivered in as efficient and effective a manner as possible. The economic environment has deteriorated sharply and the turnaround is occurring with unprecedented speed and severity. Our focus must be on positioning the economy to take advantage of the upturn in the global economy when it eventually emerges. In other words, enhanced competitiveness in all sectors of the economy, including greater efficiency in the public sector, is imperative in returning to more normal rates of growth once the current difficulties recede. It is appropriate that our public service is subject to scrutiny if we are to ensure that it continues to contribute to national development, provides excellent services to the public and makes effective use of resources. This is even more critical in view of current economic circumstances.

Significant progress has been made in reforming and modernising the public service since the strategic management initiative was launched some 14 years ago. During that time, our public services have undergone a major transformation and substantial improvements have been made in many areas, such as the delivery of quality customer services, regulatory reform, financial management and human resource management. However, if are to continue to remain competitive and support the growth of the broader economy, then we must ensure that our commitment to reform is ongoing. The programme of public service modernisation must be constantly updated.

The current partnership agreement, Towards 2016, builds on the progress made under previous agreements and ensures continued co-operation with change and modernisation initiatives, as well as improvements in productivity right across the public service. It provides an important framework for meeting the economic and social challenges ahead and, critically, sets out a mechanism for the verification of progress in the public service through the performance verification groups for each of the sectors. The recent review and transitional agreement under Towards 2016 recognises that the public service must review continuously its systems, processes and procedures to ensure that it is responsive and efficient and that it provides high quality, value for money services.

The OECD review of the Irish public service acknowledged the central role played by the public service in our national development by ensuring the right economic, regulatory, educational and social conditions are in place. At the same time, however, it stated there is a need for a more integrated public service with a greater performance focus. It also acknowledged that in a tighter fiscal environment there is a need to prioritise spending within budget frameworks.

The House is of course aware of the range of other recent initiatives which have been focused on ensuring public bodies deliver the highest standards to citizens and that the public sector is positioned to respond effectively to the challenges which we now face. Last Wednesday, 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.

The pilot phase of the organisation review programme, ORP, which was also published last week, underlines the need for real, immediate and meaningful action to modernise the public service. Like the task force, the ORP highlights the need to put the citizen at the centre of our public services, manage performance better, address cross-cutting issues, and be flexible across traditional organisational boundaries as priorities emerge.

The task force report and ORP were published as part of a major Government policy statement on transforming our public services which sets out how the recommendations of the task force will be implemented. That statement contains details of a number of initiatives to address public service numbers and expenditure and achieve value for money. The Government is also continuing to drive forward the programme aimed at securing increased value for money in public spending through the value for money reviews. The first round of these were scheduled to be carried out between June 2006 and December 2008 and the Government has recently decided that a new round covering the three year period, 2009-11 should be undertaken.

The Government is making a number of improvements to the process which will ensure a greater focus on the biggest spending Departments, more independent reviews, and a more direct role for the Department of Finance in carrying out the most significant reviews. The findings of these reviews are considered directly as part of the annual Estimates process.

Deputies have raised many issues in their comments and these will be subject to more in-depth debate on Committee Stage. With regard to the reasons the recommendations of the Ombudsman are not technically binding, it is clearly the case that when she does issue a finding or recommendation, it is virtually always taken on board by the relevant body. Her position and the respect which that position commands are taken very seriously by public bodies. In discussions between the Department of Finance and the Office of the Ombudsman, it is not the view of the office that the recommendations are not taken on board.

A point was made on bodies excluded from the remit of the Ombudsman. It is important to take into account that we have sought in this Bill to prioritise those bodies which have a significant interface or interaction with citizens and whose administrative actions affect large numbers of people. Commercial State bodies do not come within the remit of the Ombudsman, and this has always been the approach of an Ombudsman Bill. It is not seen as appropriate that bodies subject to commercial pressures and which operate in a commercial environment should be included.

This Bill complements these measures and comes at an appropriate time. As the Taoiseach has said on a number of occasions, public service modernisation is about placing the public at the centre of our public service. The Ombudsman (Amendment) Bill does precisely that.

Question put and agreed to.