Michael McDowell (Independent) | Oireachtas source

I welcome the Minister of State, Deputy Troy. I indicate my personal support for this legislation. I understand the reasons he and the Department have been obliged to address the issue in the wake of the Zalewski decision as it applied to the ombudsman's procedures. There is a tendency now to set up specialist tribunals and to divide up what used to be the administration of justice and allocate them to bodies such as the Residential Tenancies Board or the Workplace Relations Commission, which replaced the unfair dismissals tribunal, the Employment Appeals Tribunal. Before that, it was accepted at that time that there was an appeal by way of rehearing to the Circuit Court.

By way of general observation, the Residential Tenancies Board has many good features but it has one very bad feature, namely, delay. Anybody can game the system. I know people say that law is expensive, but previously landlords could go to a Circuit Court judge and get summary justice if they were owed €10,000 or €15,000 in rent. Tenants could also go to the Circuit Court if they were being unlawfully evicted. Depending on the urgency of the case, an urgent response could be issued. While this is certainly not the case with the ombudsman, we cannot allow arrears to accumulate in these tribunals, that is, arrears we would not accept if they were happening in the court.

The Zalewski decision effectively meant that the activity of the Workplace Relations Commission amounted to the administration of justice in a limited fashion. What happens there between lawyers, employees and employers is the administration of justice in a limited way as permitted under Articles 34 to 38, inclusive, of the Constitution. That is also fine. However, in the Zalewski decision, the Supreme Court found that if it amounts to a constitutionally permissible administration of justice by a non-court body, that does not mean that the affairs of such bodies can be conducted in a manner that falls below the basic requirements that people would be entitled to if it were being decided by a court.

One of those requirements under the Constitution is that justice, in general, be administered in public. Therefore, we are entitled to know what the Workplace Relations Commission is up to. The public are entitled to see and to form their own judgments as to whether some of the cases there are fairly or unfairly decided and whether huge latitude is afforded to some employees or some employers in circumstances that raise eyebrows on occasions, when we see the money being paid to somebody who has done something seriously wrong but nonetheless the procedures were defective. The public are entitled to know that that is what is going on. The same applies to the financial services ombudsman. The public are entitled to know what is happening as between a regulated financial institution and its customers and how it is being decided one way or another and to have some capacity to appreciate whether what is happening there is fair or reasonable.

A second point arising from the Zalewski decision is this. It was found that people must have the opportunity to challenge statements made about them in these tribunals. We cannot have an adjudication where one person says something and the other person is not entitled to cross-examine or challenge that or bring evidence to say that what is being said to the tribunal is untrue. The changes in this legislation will not merely give the financial services ombudsman power to summon people but will also provide that telling an untruth deliberately to the financial services ombudsman is a criminal offence. In other words, people cannot lie with impunity just to get their side of the story over the line.

I am interested in one aspect of this. I fully accept that unfair dismissals and rows between customers and banks are not identical. However, it is notable that post the Zalewski decision, proceedings before a WRC adjudication officer "shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of a party to the proceedings, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public." That effectively means that the presumption is that these things are open to the public to see what is going on and, in particular, open to the media to see precisely what is going on.

In this case, section 16 of this Bill inserts a new subsection 4A in section 56 of the principal Act stating:

Where an investigation into a complaint made under this Part includes an oral hearing, the Ombudsman shall, on his or her own motion or upon the application by or on behalf of a party to the complaint, having consulted with the parties to the complaint and having considered the nature or circumstances of the complaint and whether it is in the interests of justice to do so, decide whether the oral hearing shall be conducted in public.

All I am saying is that we are setting a different test here, whereby the ombudsman may decide it having listened to both sides. It is interesting that in the WRC, the adjudication officers' arrangement is that the presumption is that it will be in public and the exception is that only in special circumstances is it done in private.I would like the Minister of State, maybe on Report Stage, to indicate why a lower standard of presumption is being applied to the ombudsman's obligation to conduct oral hearings in public than is applied in the WRC.

I fully accept the proposition that the role of deputy ombudsmen be recognised and that there should not just be a single office created. I am fully in favour of that, provided that there is some method of ensuring uniformity of approach between various persons looking at the same kind of issue. The Minister of State might deal with either now or on Committee Stage. In the PRTB, there is a statutory mechanism to try to have a single approach taken to a particular legal or factual set of circumstances as a general policy. We do not want to create a situation where one deputy ombudsman is known to be a softy and another is know to be pro-bank, orvice versa. We want some degree of predictability so that the ombudsman service in its entirety operates, more or less, to the same standards, the same approaches and the same policies in carrying out its functions.

I compliment the Minister of State on bringing this legislation before the House. It is good that this House is dealing with legislation, unlike a certain other place where nothing is happening at the moment. It is nice that this House conducts itself properly in a gentlemanly and ladylike manner.