Joanna Tuffy (Dublin Mid West, Labour)
Link to this: Individually | In context | Oireachtas source

Seanad amendment No. 1 and amendment No. 1 to Seanad amendment No. 1 are related and will be discussed together.

Brendan Howlin (Wexford, Labour)
Link to this: Individually | In context | Oireachtas source

This is important legislation and I must acknowledge its genesis is in the term of office of the former Government. It is reforming legislation and I pay tribute to my predecessor for introducing it. It was passed in this House in 2010 and restored to the Order Paper. Since my Department was established, I have been involved in discussions with the Ombudsman to seek to broaden the scope of the Bill. That is why we are dealing with amendments from the Seanad.

Seanad amendment No. 1 is a technical amendment which provides that the Bill will commences on the date of enactment, save in respect of its application to any body which is not subject to the Ombudsman Act 1980 immediately prior to its enactment. In respect of such bodies, it will commence six months from the date of enactment or an earlier date that I may specify by order.

I have had discussions with all the agencies in question, some 140 bodies, which will be brought under the Ombudsman legislation. I have also spoken to the Ombudsman’s office which has linkages to make with these entities. This will take some time and it will not be possible to do it immediately. Six months is the standard time for enactment provisions. The additional bodies will be brought under the legislation as soon as it is practicable to do so and I get word from the Ombudsman and the entity involved that it is appropriate to do so.

Mary Lou McDonald (Dublin Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 1 to Seanad amendment No. 1:

In line 4, to delete “6 months” and substitute “immediately”.

Seán Fleming (Laois-Offaly, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I support the proposal that there be a six month timeframe for enactment. From my limited practical experience in representing people who have had dealings with the Ombudsman on complaints about the Health Service Executive, a local authority or the Department of Social Protection, I have noted that the complaint may not have not gone through the full review process within the organisation. It will take time for staff in the organisations that will come under the Bill to be trained and have a full appreciation of what is entailed. There is nothing more frustrating for the public to have a complaint sent back to the original body by the Ombudsman because procedures were not dealt with properly in the first instance. I would be worried if the legislation took effect next week as some bodies may not have had the opportunity to put their procedures in place. While the Bill dates from 2008, it would be a good autumn’s work if we were to have it up and running by next spring.

I understand Deputy Mary Lou McDonald’s point about the process dragging out too long and how she wants to have the Bill enacted immediately. However, such undue haste may cause administrative problems and I would prefer to roll it out smoothly in the months ahead.

Brendan Howlin (Wexford, Labour)
Link to this: Individually | In context | Oireachtas source

I thank both Deputies for their comments. There is no disagreement on having the legislation enacted as quickly as we can. I am advised that for the 140 bodies involved there are requirements regarding the defining of internal complaint processing procedures, the training of staff and the management of documents, while linkages are made with the Ombudsman. I have been helpfully guided in this preparation by an officer seconded from the Office of the Ombudsman who has been extraordinarily helpful. We have been tick-tacking with the Ombudsman on the timeframe which she fully supports. I will bring forward the legislation quicker than six months if I get the green light that it is ready to roll.

Joanna Tuffy (Dublin Mid West, Labour)
Link to this: Individually | In context | Oireachtas source

Amendments Nos. 2, 5, 6, 10, 12, 25, amendment No. 1 to amendment No. 25, 26 and amendment No. 1 to amendment No. 26 are related and will be discussed together.

Brendan Howlin (Wexford, Labour)
Link to this: Individually | In context | 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.

Mary Lou McDonald (Dublin Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

As there are many amendments being discussed together, perhaps it would make more sense to start with amendments Nos. 25 and 26 and work backwards.

On amendment No. 1 to amendment No. 25, there are some who argue coherently that any body which is fully funded or in receipt of substantial public funds should not be exempt from the gaze of the "Ombudswoman" or "Ombudsman". If one thinks about the purpose of an ombudsman, that logically makes a good deal of sense. If the purpose is to ensure transparency, fairness, good procedures, good decision-making and, above all, accountability, the logical position that should be adopted is that everybody should be included and that there should be no specific exemptions. In the course of the debate in the Seanad, for instance, colleagues from my party but also Senator Seán D. Barrett argued this point forcefully, logically and convincingly. However, that is not where I am coming from on this issue. My main concern is the decision that has been made to exclude the Department of Justice and Equality, in so far as it relates to an action taken in the administration of the law relating to immigration or naturalisation and in the administration of the prisons and other places of detention for persons committed to custody by the courts. I raised this issue previously with the Minister-----

Brendan Howlin (Wexford, Labour)
Link to this: Individually | In context | Oireachtas source

At Question Time.

Mary Lou McDonald (Dublin Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

-----and if I am not mistaken, perhaps within a day or two the report on St. Patrick's Institution was placed in the public domain. It writes large the reason, above all else, examination of this area should not be exempt from the jurisdiction of the Ombudsman. I hear what the Minister is saying about an alternative procedure, but let me put it to him in these terms. The experience and observations of the Irish Prison Service have been so damning for so many years and there have been so many negative experiences, including, for instance, the damning account of the Ombudsman for Children, Ms Emily Logan, of her interaction with the prison authority and staff in St. Patrick's Institution, that if ever there was a case for an institution coming within the ambit of the Ombudsman, it would be that of prisons and places of detention. I hear what the Minister is saying about flexibility within the legislation, that if he were so minded to extend its scope, he would not have to amend the primary legislation, etc., but I want him to go one better and from the get-go include these institutions, in particular, in the legislation. The Ombudsman and her predecessors have been clear on the importance of these elements of justice falling within the remit of the ombudsman. They have made this point consistently and have not resiled from that position. Our experience of places of detention should inform us that this is the sensible way to proceed.

The Minister's faith in his colleague, the Minister for Justice and Equality, Deputy Alan Shatter, may be admirable, but it is misplaced. This legislation and these reform and accountability mechanisms fall fairly and squarely within the Minister's remit. It is his responsibility to bring them home. He should not wait for a ministerial colleague to do right or introduce processes not yet clearly defined to deal with these matters. I said so to him when we debated the matter at Question Time. What are we hiding from and what are we running away from? It seems logical that the Ombudsman should have an oversight role in respect of justice matters, particularly in places of detention. I, therefore, intend to press the matter to a vote. For me, the biggest flaw in this legislation is that the Minister has not taken the necessary step by including that element.

Working backwards, I see the good sense in some of the Minister's amendments. He has given his rationale for amendment No. 12. Amendment No. 10 concerns exempted agencies. I could argue the fine detail of the precise definition of exempted agencies, etc., but my much bigger concern, as I said to the Minister previously, is that the elements of the Department Justice and Equality mentioned be included. It is welcome that the Minister has built in a mitigating measure, that, if it comes to it, he can extend the remit to capture these matters, but I press him once again to do so at this juncture rather than to kick the can down the road.

Seán Fleming (Laois-Offaly, Fianna Fail)
Link to this: Individually | In context | 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.

Brendan Howlin (Wexford, Labour)
Link to this: Individually | In context | Oireachtas source

I thank the Deputies opposite for the cogent cases they have made which I will address seriatim.

On the exclusion of the Irish Prison Service, the Minister for Justice and Equality has confirmed his intention to introduce a new and credible prisoner complaints system which will deal with complaints in an open, transparent and independent way. Robust new procedures will be implemented, with priority given to complaints which give rise to most concern, including allegations of mistreatment, the use of excessive force, racial discrimination, intimidation and threats. Such complaints will be examined by investigators from outside the Irish Prison Service. The service has already recruited a panel of 22 external investigators who will undergo appropriate training this month and the new procedures for dealing with the most serious complaints will go live from 1 November.

I share the concerns expressed by the Deputies about the recent report on St. Patrick's Institution. The Government will not tolerate the abuses disclosed in that institution. That the matters arising have been brought to light is testament to the robustness of the Inspector of Prisons and Places of Detention. We want to give oversight statutory underpinning, with a team of independent investigators. I ask Deputies to allow this to happen without interposing another body until we see how the new regime beds down. We do not want to have two State bodies doing the same thing at the same time in calling for the same papers, investigating the same matters, calling the same witnesses and, perhaps, coming to different conclusions.

The Minister for Justice and Equality has made clear his intention to establish a complaints system in a statutory framework. I have spoken to him directly about the matter and his Department is working on legislation which will be brought to the House at the earliest opportunity. Under his plans, a report will be brought to the Houses of the Oireachtas not more than three months after it is submitted by the Inspector of Prisons and Places of Detention. It is clear that the inspectorate is doing an excellent job. If there are concerns that the new regime is not sufficiently robust, I expect the Joint Committee on Public Service Oversight and Petitions will respond on the basis of its responsibility for the Ombudsman. The Ombudsman will report to that committee and I am sure she will express her opinion on such matters. I have pledged in the Seanad that I will consider the committee's views, alongside those expressed by the Ombudsman and the relevant Minister, on extending the Ombudsman's remit to include this area. That is a reasonable perspective to take at this stage and I welcome the support offered by Deputy Sean Fleming in this regard.

In regard to the immigration, refugee and naturalisation agencies, the programme for Government contains a commitment to introduce comprehensive reforms to Ireland's immigration, residency and asylum system, including having a statutory appeals system that is transparent to all immigrants and asylum seekers. The intention is to provide for the efficient processing and determination of citizenship applications within a reasonable period of time. The reforms will be placed on a statutory footing through immigration, residence and protection legislation. Deputies will be aware of the Immigration, Residence and Protection Bill 2010. Following the development of key Government amendments, the Minister for Justice and Equality intends to return the Bill to the Oireachtas as comprehensive new legislation which will be the centrepiece of a major programme of reform in the area of immigration. His objective is to be in a position to bring the new Bill to the Government for approval and publication this year in order that it can be enacted as soon as possible thereafter as the Houses permit. In view of his intention to embark on such an extensive programme of reform, the Government has decided that it would be inappropriate at this stage to introduce a review mechanism or bring this area under the purview of the Ombudsman. We need to allow the system to bed down in order that we can identify what we need to review. I hope the Deputies opposite will give the Minister the benefit of the doubt in that regard.

In response to the questions raised by Deputy Sean Fleming, I have determined that the reserved functions of local authorities should continue to be excluded from the remit of the Ombudsman. Complaints about local authorities comprise a substantial proportion of the Ombudsman's work, but an issue arises in respect of reserved functions, that is, the exercise of viewpoints by elected representatives. Should we establish a system to second guess the right of an elected member to vote for or against a development plan? If corruption occurred, it would be a matter for the Garda Síochána to investigate. In the exercise of their democratic right, local authority members should be free agents in the same way as the Constitution provides that the Members of this House can exercise their democratic authority. Deputy Sean Fleming is correct to note that all such actions are subject to judicial review, but the courts would not look behind the decisions themselves. All that is considered is whether proper procedures and constitutional norms on appropriateness and fairness were observed. If the High Court found a procedure to be arbitrary, improper or not in accordance with law, it obviously would have something to say about it.

The Private Residential Tenancies Board operates a national tenancy registration system, resolves disputes between landlords and tenants and provides policy advice for the Government on the private rented sector. The PRTB's dispute resolution service replaces the courts in the majority of landlord tenant disputes. It is being brought within the remit of the Ombudsman in so far as the administrative aspects of its functions are concerned. Deputy Sean Fleming specifically asked about Part 7 which lists its functions. I will have a copy of Part 7 supplied to the Deputy.

Seán Fleming (Laois-Offaly, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

On local government, I understand elected members are entitled to make their own decisions. They are entitled to be right or wrong.

Brendan Howlin (Wexford, Labour)
Link to this: Individually | In context | Oireachtas source

Absolutely. The electorate makes its views known.

Seán Fleming (Laois-Offaly, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

However, the Minister has suggested nobody should be entitled to second guess them. The Ombudsman does not have legal authority to overturn decisions, but it would be a nice forum for members of the public who might not be happy with decisions taken by elected members. The local authority and its members are not legally obliged to accept a decision of the Ombudsman, although they normally do so.

Brendan Howlin (Wexford, Labour)
Link to this: Individually | In context | Oireachtas source

I am not sure what role the Ombudsman would play. Agreeing to the development plan is a reserved function of the local authority. Would the Ombudsman be expected to state her disagreement with a decision made? That would be improper.

Seán Fleming (Laois-Offaly, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The Ombudsman expresses a view which can be accepted or rejected.

As the Minister said, it is a democratic decision and there should be no second guessing. If the elected members do not come to a conclusion within 104 weeks, the manager has the legal power to finish a development plan over their heads. He or she is entitled to second guess something they have not concluded.

Brendan Howlin (Wexford, Labour)
Link to this: Individually | In context | Oireachtas source

It would be a very poor council that did not do it in that time.

Seán Fleming (Laois-Offaly, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I know that. Also, there have been six or seven instances where the Minister has issued a directive to local authorities to amend their development plans. In a previous Oireachtas this happened. It was a blunt instrument in that the then Minister issued a directive out of the blue, without consultation. Now, following legislation introduced by the previous Government, there is a more discursive process. The Minister can issue his views and intentions and hear the views and submissions of others and, perhaps, revise his directive. There is an option for him to second guess the council members if he chooses and an option for the courts to second guess them. The Minister believes this is a narrow point of view with regard to procedures, but the people concerned can look more widely in considering whether the development plan is in accordance with regional plans and the national spatial strategy. I will not push the issue, but there is a little more to it than the simple point made. Perhaps somewhere down the road we might revisit it.

Brendan Howlin (Wexford, Labour)
Link to this: Individually | In context | Oireachtas source

This is a technical amendment to provide for the fact that the Local Government Act 1942 has been amended by the Local Government Act 2001, since the passing of the 1980 Act.

Brendan Howlin (Wexford, Labour)
Link to this: Individually | In context | Oireachtas source

Again, this is a technical amendment which provides that the term "Minister" where it appears in the Bill should be taken to mean the Minister for Public Expenditure and Reform, not the Minister for Finance.

Ciarán Lynch (Cork South Central, Labour)
Link to this: Individually | In context | Oireachtas source

Seanad amendments Nos. 7 and 11 are related and will be discussed together.

Brendan Howlin (Wexford, Labour)
Link to this: Individually | In context | Oireachtas source

There are two parts to this amendment. Paragraph (a) provides for the consultation of a committee of the Houses before making any proposal to appoint an ombudsman. In order to strengthen the Ombudsman's relationship with the Oireachtas, I propose that the Ombudsman's role be enhanced by allowing the Oireachtas to have a view pre-appointment. Therefore, in the future, before the next Ombudsman is appointed, it is intended that the views of the Oireachtas Joint Committee on Oversight and Petitions will be ascertained.

Ciarán Lynch (Cork South Central, Labour)
Link to this: Individually | In context | Oireachtas source

Seanad amendments Nos. 8 and 9 are related and will be discussed together.

Brendan Howlin (Wexford, Labour)
Link to this: Individually | In context | Oireachtas source

This is a technical amendment which clarifies the existing practice of the Ombudsman, that a complaint can be made by a person or a person acting on his or her behalf who is authorised to make the complaint.

Ciarán Lynch (Cork South Central, Labour)
Link to this: Individually | In context | Oireachtas source

Seanad amendments Nos. 13 to 17, inclusive are related and will be discussed together.

Brendan Howlin (Wexford, Labour)
Link to this: Individually | In context | Oireachtas source

Seanad amendments Nos. 13 to 17, inclusive, are technical amendments which update the lettering of a number of paragraphs in the amended section 5 of the principal Act as a consequence of amendment No. 12 which deleted the original paragraph. Seanad amendment No. 14 is a further technical amendment arising from which the Ombudsman shall not investigate an action taken before the date on which that body became subject to her remit.

Ciarán Lynch (Cork South Central, Labour)
Link to this: Individually | In context | Oireachtas source

Seanad amendments Nos. 18 and 19 are related and will be discussed together.

Brendan Howlin (Wexford, Labour)
Link to this: Individually | In context | Oireachtas source

Issues of legal interpretation may arise from time to time in an investigation carried out by the Ombudsman. This section will allow the Ombudsman to refer a question of law arising from an investigation to the High Court for its determination. The amendment provides that any such determination of the High Court is subject to the normal avenue of appeal to the Supreme Court, in line with Article 34 of the Constitution. The old line of appeal was to the High Court, which was binding. I am now allowing for an appeal to the Supreme Court to follow.

Ciarán Lynch (Cork South Central, Labour)
Link to this: Individually | In context | Oireachtas source

Seanad amendments Nos. 20 to 23, inclusive, and Seanad amendment No. 27 are related will be discussed together.

Brendan Howlin (Wexford, Labour)
Link to this: Individually | In context | Oireachtas source

These Seanad amendments provide for the amendment of the Public Service Management (Recruitment and Appointments) Act 2004 and the merger of the Office of the Commission for Public Service Appointments with the Office of the Ombudsman. This merger is recommended and should lead to greater flexibility in the deployment of staff in administration. The Commission for Public Service Appointments and the commissioners are to continue with no change to their statutory role. The Vote for the Office of the Commission for Public Service Appointments will be subsumed into the Office of the Ombudsman and a separate Accounting Officer role will be discontinued. This is agreed with the Ombudsman.

Brendan Howlin (Wexford, Labour)
Link to this: Individually | In context | Oireachtas source

Seanad amendment No. 24 provides for an amendment to the Ombudsman for Children Act. The Minister for Children and Youth Affairs and the Ombudsman for Children asked me to make this amendment. In essence, it substitutes the definition of "public body" to provide that the jurisdiction of the Ombudsman for Children will automatically follow any changes to the jurisdiction of the Ombudsman as entities are made reviewable or exempt in whole or in part. It also makes some consequential technical amendments to the Ombudsman for Children Act 2002, including repeating the Schedule to that Act. In essence, the Ombudsman for Children asked for the same extensions as the Ombudsman and that is what I am providing for.

Mary Lou McDonald (Dublin Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 1 to Seanad amendment No. 25:

In Part II, paragraph (f), to delete subparagraphs (i) and (ii).

Mary Lou McDonald (Dublin Central, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 1 to Seanad amendment No. 26:

To delete paragraph 100, “Residential Institutions Redress Board”.

Ciarán Lynch (Cork South Central, Labour)
Link to this: Individually | In context | Oireachtas source

A message will be sent to the Seanad acquainting it accordingly.