Brian Hayes (Dublin South West, Fine Gael) | Oireachtas source

I move:

"That Dáil Éireann approves the following Order in draft:Ombudsman Act 1980 (Section 4(10)) Order 2013,copies of which Order in draft were laid before Dáil Éireann on 6th September, 2013."

I seek the House's support for this order which is required to enable the Ombudsman for Children to investigate complaints concerning children in places of custody or detention. I trust it would be useful for me to set out the background to the matter.

As the House will recall, the Minister for Public Expenditure and Reform, Deputy Howlin, completed the passage of the Ombudsman (Amendment) Act 2012 through the Oireachtas this month a year ago, which significantly extended the remit of the Ombudsman.

The legislation which was supported on all sides of the House resulted in a substantial expansion in the number of public bodies, offices and agencies whose administrative actions are now subject to review, including, among others, all publicly-funded third-level education institutions, education and training boards and the State Examinations Commission. This represented the most significant extension in the remit of the Ombudsman in over 30 years of the office's operation.

In the course of the legislative process, both the Minister for Children and Youth Affairs, Deputy Fitzgerald, and the Ombudsman for Children sought that the remit of the Ombudsman for Children would be extended in a similar manner. Accordingly, the Ombudsman (Amendment) Act 2012 amended the Ombudsman for Children Act 2002 to align the remit of both ombudsmen over public bodies.

While the Department of Justice and Equality has always fallen within the remit of the Ombudsman, the Ombudsman's remit has not extended to the administration of prisons or other places for the custody of persons committed to custody by the courts. A similar exclusion was in place in the Ombudsman for Children Act 2002 other than for reformatory schools or industrial schools certified under Part IV of the Children Act 1908.

In June 2012, the Minister for Children and Youth Affairs, with the consent of the Minister for Justice and Equality, made an order under section 11(2) of the 2002 Act, with effect from 1 July 2012, which removed the exclusion which previously prevented the Ombudsman for Children from dealing with children in any institution in which children are held in custody or detention.

At the time the Ombudsman (Amendment) Act 2012 was subsequently being progressed through the Seanad, it was concluded that the legislation which retained the original exclusion in relation to places of detention would have no impact on the application of the June 2012 order. However, following concerns being raised by the Ombudsman for Children this year, and on the basis of subsequent advice from the Attorney General received following detailed consideration of what is a complex legal issue, it was concluded by Government that the amendments made in the Ombudsman (Amendment) Act 2012 had the unintended effect of precluding the Ombudsman for Children from dealing with complaints relating to children held in custody or detention.

Today's order rectifies this matter. Under section 4(10) of the Ombudsman Act 1980, as amended by section 6 of the 2012 Act, the Minister for Public Expenditure and Reform has the power to make an order to make an agency a reviewable agency. The Minister for Public Expenditure and Reform, with the consent of the Minister for Justice and Equality is, therefore, proposing to make such an order to restore the Ombudsman for Children's power to investigate complaints concerning children in custody or detention.

As required under section 6 of the Ombudsman (Amendment) Act 2012, the Minister for Public Expenditure and Reform consulted the relevant Oireachtas committee, in this case the Joint Committee on Health and Children, the two ombudsmen and the relevant Ministers on the matter prior to laying the draft order before the Houses of the Oireachtas. Recognising the importance of the matter, the Seanad approved the draft order last week. I bring this motion to this House seeking a positive resolution from it on this important matter to bring the order into effect.

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