Brendan Howlin (Wexford, Labour) | Oireachtas source

I welcome the opportunity to introduce this important legislation to the Seanad. While I am sure many Senators will be aware the first equivalent to a modern-day office of the Ombudsman was established in Sweden in the 18th century, the starting point for the establishment of the Office of the Ombudsman in Ireland goes back to 1969 and the report of the public services organisation review group, better known as the Devlin report, which recommended the appointment of a commissioner for administrative justice, the theoretical prototype for the Ombudsman, which would emerge later. Six years after the publication of that report, a Dáil Private Members' motion led to the establishment of an informal all-party committee, which 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.

This Bill represents the most significant legislative development in the jurisdiction and role of the Ombudsman since that original Act came into force. In seeking to have the Second Stage debate completed in this House, I wish to highlight the role of the legislation as a key pillar of the Government's political reform agenda to strengthen the accountability of public bodies, enhance the transparency of public administration and improve the quality of decision making in the public sector. The programme for Government contains a commitment to extend the Ombudsman Act to ensure all statutory bodies and all bodies significantly funded from the public purse are covered, as well as third level institutions. The primary purpose of the Bill, therefore, is to deliver this commitment regarding public bodies and thereby ensure members of the public have recourse to the Ombudsman in respect of the administrative actions of a significantly wider range of public bodies than heretofore. The Ombudsman has expressed her own views on this matter, which have been used to inform the drafting of this legislation.

The Ombudsman is empowered to investigate complaints about the administrative actions of Departments and Government offices, a number of agencies, the Health Service Executive, including public voluntary hospitals, and local authorities. It should be noted the Ombudsman also has certain functions under the Disability Act 2005 with regard to compliance with obligations placed on public bodies by that Act. In overall terms, the Ombudsman currently has jurisdiction over approximately 35 Government Departments, offices and agencies, as well as over all local authorities and voluntary hospitals.

It is important to stress the Government's ambition for this Bill, if it is to be realised, must be fulfilled through its further amendment on Committee Stage in this House. I will explain by noting it will extend to comprehending all public bodies considered appropriate for review by the Ombudsman. My Department believes that more than 140 additional bodies, on top of the 35 bodies currently enveloped, will be brought within the Ombudsman's remit in terms of agencies and educational institutions and this will be extended further when significantly funded non-public bodies are added in due course. There has been a debate on whether bodies which get a significant chunk of money from the State also should be subject to the Ombudsman's review. More than 30 years after the enactment of the Ombudsman Act 1980, this Bill therefore provides the framework for the full realisation of the potential of the Ombudsman in providing redress to citizens in circumstances in which the system of public administration has performed inadequately. In addition to the highly significant extension in the scope of administrative review, the Bill also provides the Ombudsman with additional powers and updates various provisions in the original Act to provide the Ombudsman with strengthened and updated powers to effectively and efficiently discharge the critical functions and responsibilities of her office.

The role of the Ombudsman is not simply to examine individual complaints but also to ensure a better quality service to customers or clients of public bodies or citizens by improving the system of public administration in general.

An important part of the service is also the assistance given to members of the public on issues and areas which do not fall formally within the Ombudsman's remit. The Ombudsman's office does its best to offer advice, support and guidance in directing these inquirers to the right place to get assistance.

By the middle of September this year, approximately 80,000 complaints had been handled by the Ombudsman. Over the years, approximately 46% of complaints have been upheld in whole or in part or some assistance has been provided to the complainant. Last year the Ombudsman's office received more than 3,600 valid complaints. More than 11,500 inquiries were also received that year.

I am very conscious that the wider improvements in public administration which the Ombudsman can help bring about are often achieved through the unearthing of systemic issues which 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 to alert the public and public bodies to cases of interest which the Ombudsman deals with over the previous year.

The Ombudsman caseload can also act as a valuable mechanism for identifying where broader improvements are required in administrative systems and processes to meet the customer service objective of the public service reform plan of placing the customer, the citizen, at the core of public services. As highlighted in that plan to meet the challenge of delivering better for less, the public service must be focused on making the citizen's interaction with the State as simple and seamless as possible and improving the customer's experience in engaging with governmental systems.

Many of the public bodies which the Ombudsman deals with deliver services or administer schemes which are similar in nature. For instance, all hospitals face similar challenges in seeking to provide first-class patient care. An individual case where the Ombudsman finds fault with a particular public body and suggests improvements in practices and procedures can therefore provide a valuable learning experience for other public bodies which carry out similar work. In order to strengthen the role of the Ombudsman in this area, the Bill provides for the Ombudsman to make general recommendations to any of the bodies within her remit where, following an investigation, she considers it appropriate to do so. She can have a general application from a specific case.

A further benefit arising from the work of the office is the correction of issues which the Ombudsman identified in one case involving a public body which, in turn, leads to a retrospective review of similar cases which had arisen previously and where appropriate redress may be warranted arising from the decision reached after considering an individual complaint. This can yield benefits for a class of people who had never actually complained to the Ombudsman or were unaware of the capacity to complain.

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 standards of public administration in Ireland. Public bodies can use the outcome of an Ombudsman investigation as an opportunity to turn complaints into a positive learning experience for the benefit of their organisation and those members of the public with whom they deal.

In advance of outlining the main provisions of the Bill, Senators should note that I intend to table a series of amendments on Committee Stage. This reflects the further consideration that Government has given to the provisions of the Bill and the opportunity the legislation provides for delivering key objectives in the programme for Government. The Office of the Ombudsman has been closely consulted on these proposals and the Ombudsman's views have been taken into account in finalising them. I wish to acknowledge that the genesis of the Bill lies with the previous Government. It was introduced into and passed by the other House, but never made it to this House because of the fall of that Dáil. We want to build on that foundation and extend it further.

I will now briefly outline the main provisions of the Bill. Section 4 amends provisions in the 1980 Act whereby the Government can add or remove bodies to the Ombudsman's remit by order. It is important that we will not be required to formally change the law to add a new body to the oversight of the Ombudsman. On Committee Stage, I propose to ensure that there will be automatic application of the Ombudsman to any new public body created thereby not requiring an order or legislation. I will also be proposing to allow for further extension of the application of the Act to non-public, significantly funded bodies on a case-by-case basis. I will be interested to get the views of the Senators on this matter. There are a number of significant non-public bodies that are largely funded by the State and the Government believes they, by and large, should be under the remit of the Ombudsman.

Section 5 updates the reference to "European Parliament" in section 2 of the 1980 Act. I also propose to amend section 5 further on Committee Stage to provide for a consultation for a committee of the Houses of the Oireachtas before making any proposal to appoint the Ombudsman. This is in line with what is happening generally with incoming heads of semi-State bodies appearing before committees. I want to go somewhat further in this case requiring a consultation in advance of any proposal to appoint the next Ombudsman.

Section 6 updates section 4 of the 1980 Act to allow the Ombudsman to investigate a failure by a body to comply with the provisions being introduced in the Bill requiring bodies under the remit of the Ombudsman to give reasonable assistance and guidance in dealings they have with members of the public. The section also clarifies that the Ombudsman may, in her general discretion, continue to investigate actions by bodies within her remit on her own initiative - an "own-initiative" investigation - without formal complaint being made. This allows the Ombudsman to be a self-starter and would not be required to be triggered by a formal complaint.

Section 7 introduces a new provision on the rights of citizens in their dealings with public bodies on administrative matters. The section sets out the entitlement of citizens to a high level of service from those bodies which 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 the person is dealt with properly, fairly and impartially; and provide information on any rights of appeal or review that people have.

Section 8 amends section 5 of the 1980 Act which excludes matters relating to the recruitment or appointment and the terms and conditions on which a person in a reviewable agency is employed. The Bill now provides that, on these types of employment-related issues, the Ombudsman will have no jurisdiction, regardless of the organisation concerned. The rationale for this is clear, namely, the role of the Ombudsman is to safeguard the rights of individuals and society in dealing with public bodies and not to investigate issues relating to terms and conditions of employment, for which there are already very well established and elaborate State procedures.

Section 9 amends section 6 of the 1980 Act to provide that the Ombudsman can make a general recommendation to public bodies within her remit as she considers appropriate following an investigation. Sections 10 to 14, inclusive, provide for the strengthening of the powers of the Ombudsman as well as making some technical amendments. 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 Public Expenditure and Reform to do so on foot of consultation by the Minister with the Ombudsman and relevant Ministers, or had commenced using the term before the publication of this Bill in 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.

Section 16 provides for the replacement of First and Second Schedules to the principal Act. As I have emphasised, the Bill deals primarily with the remit of the Ombudsman. Listed in the current Schedule of the Bill are, for example, the vocational educational committees, higher education institutes, organisations such as the National Roads Authority, the Central Applications Office, the Sustainable Energy Ireland Authority, the National Treatment Purchase Fund, the Courts Service, the Family Support Agency and many other semi-State bodies the activities of which affect the daily lives of citizens.

I will be proposing a further amendment on Committee Stage, to delete Part I and Part II of the First Schedule of the 1980 Act and to replace them with a general definitional provision in the First Schedule, with a list of specific bodies whose functions are to be partially brought within the Ombudsman's remit as "reviewable agencies". This will ensure that the Ombudsman's remit will automatically extend to all public bodies by way of a general definition of such bodies, except those bodies that are to be specifically excluded in whole or in part.

The Second Schedule to the Bill lists the bodies which are not subject to the Ombudsman's remit. The Ombudsman is precluded from investigating an action taken by or on behalf of a body specified in the Second Schedule. Bodies which are to be specifically excluded from the Ombudsman's remit include commercial State bodies; regulatory agencies operating in the commercial domain; bodies involved in the legal and criminal justice system or with closely analogous functions and research and advisory bodies with little or no direct interface with members of the public. The final list of exempted bodies is currently being compiled for Committee Stage on the basis of the advice of Government colleagues.

Sections 17 to 20 currently contain a number of consequential technical amendments to other Acts. I will be proposing further amendments on Committee Stage to provide for the merger of the Office of the Commission for Public Service Appointments with the Office of the Ombudsman. This merger is a recommendation of the McCarthy report and should lead to greater flexibility in the deployment of staff and administrative efficiencies through the amalgamation of back office functions. The Commission for Public Service Appointments and the commissioners are to continue with no change to their statutory roles.

I also advise the House of my intention to propose an amendment on Committee Stage to the Ombudsman for Children Act 2002. The amendment provides that the jurisdiction of the Ombudsman for Children will automatically follow any changes to the jurisdiction to the Ombudsman in order that, as the Schedules are amended, the change will apply to both.

The work of Transparency International highlights the Office of the Ombudsman as an important pillar of what is called "Ireland's national integrity systems", the key institutions, sectors, culture and activities that contribute to integrity, transparency and accountability in a society. Transparency International in its 2009 Country Study on Ireland observed that the Office of the Ombudsman was widely respected, has grown in confidence in recent years and is seeking to be more proactive in addressing more issues of public concern. It is essential that the continued effectiveness of the Ombudsman is secured by ensuring that the Ombudsman exercises oversight over the administrative decision making of all appropriate public bodies and that the Ombudsman's governing legislation is appropriately reformed and updated. This Bill achieves these dual objectives.

I trust Senators 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 introduces a positive set of measures which will empower citizens in their interactions with public bodies and help to further improve standards of public administration. I commend it to the House.