Brendan Howlin (Wexford, Labour) | Oireachtas source

I support the groupings arrangement because it makes common sense in dealing with them. Amendment No. 2 deals with the concept of exemption, while the others specify the exemptions. It makes sense to talk about it in the round, but I am in the hands of the House.

I understand the passion Senator Sean D. Barrett feels about the catastrophe inflicted on the economy by bad decision-making by several agencies. People feel very raw about this, with absolute justification. Members of the Government and Senators on this side of the House feel a righteous anger as much as anyone else. However, it would not be the Ombudsman?s role to be the point person to say a wrong decision was being made by an agency. The role is to deal with cases where a class of citizens interfacing with public bodies is subject to maladministration or decision-making that affects them adversely. For example, it can involve a person allocated a house by a local authority unfairly. It is not a super regulator to regulate everything that happens in public administration. That would be a job beyond the capacity of an individual Ombudsman to take on. The Ombudsman?s remit has always been focused on public bodies which have a close interface and direct engagement with significant numbers of members of the public. The Ombudsman is entitled to intervene in cases where a citizen believes he or she has not been treated fairly or a decision made by an agency has the potential to have an adverse effect on a member of the public.

I do not agree with the general principle that everything should be subject to the Ombudsman?s remit. I also consider she would agree with this, as there are different types of watchdogs and regulators. In the case of fiscal decisions, we have the fiscal council, with which Senator Sean D. Barrett will be familiar, to give separate advice and there is oversight of banking. These are complicated structures and the Ombudsman is not a super overseer of all public administration in that sense.

I have been convinced that specialist advisory bodies which do not deal with the general public should not be within the extent of the Ombudsman?s purview such as ComReg, the Commission for Aviation Regulation and the Commission for Energy Regulation. There are some advisory or regulatory bodies which do deal with the general public which will be within the remit such as HIQA. I do not want Ryanair complaining to the Ombudsman because it did not receive a favourable decision from the aviation regulator. The same argument holds in the commercial semi-State sector. These are commercial bodies engaged in market activities, governed by industry and sector specific regulatory bodies, legal requirements and company law like any other company. They are in direct competition with companies in the private sector. This competition would be distorted if these companies were subject to an individual complaints mechanism. An individual could, for example, complain because he or she felt the Aer Lingus price structure did not suit them. Such complaints would bog down the Ombudsman.

It might suit other airlines if that was the case. Those are the sort of commercial sensitivities we must consider.

By definition, there are some bodies that are public bodies, largely owned or controlled by the State, such as commercial semi-States which operate in a different regulatory environment where the rules that apply to them are the same rules that apply to every one of their competitors in the same sector. We do not want to make it overly difficult for a State-owned company to operate and make it an uneven playing field for them vis-à-vistheir competitors.

Similarly, as I stated, in the regulatory sector, these are regulators. They do not deal with individual members of the public. My view and that of the Government is that these are not appropriate ones to be brought within the remit of the Ombudsman. They do not deal with everybody in every case. The advisory bodies are there to proffer expert advice but do not deal with individual members of the public and there is no cause for complaint. Of course, anybody can complain. On the notion that people would be giving out about the fiscal council because it recommended that there should be ¤4 billion, there would be quite a large amount of complaints to the Ombudsman if we brought the fiscal council within her remit.

To be practical about it, it is an extraordinary extension of the remit of the Ombudsman to cover those areas where individual citizens are interacting or interfacing with agents or agencies or Departments of State and where they believe they have not been given fair treatment. That is the traditional role of the Ombudsman and we should not try to extend it beyond that because it would not be fair to the Ombudsman herself.

In general terms, where there are exemptions it is my intention that there would be inclusions in the future and that should not be a matter for me alone to determine. In the Bill, it is my intention to give a role to the Oireachtas Joint Committee on Public Service Oversight and Petitions. Where that committee believes that a body, maybe because the committee received complaints from the general public through petitions, would be appropriate to be brought within the remit, the committee can make a recommendation to me or to whoever holds my office in future. That is a good way of involving the democratic process and the elected Members in the selection process so that it can be expanded in future, if it is not exhaustive enough in this enactment.