Dáil Éireann debate -
Thursday, 3 Oct 2013

Vol. 815 No. 3

Ombudsman Act 1980 (Section 4(10)) Order 2013: Motion

Minister of State at the Department of Public Expenditure and Reform (Deputy Brian Hayes)

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 of 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.

Deputy Robert Troy

The Minister of State will be pleased to hear that he has my party's support, as he had the support, as he acknowledged, of all the political parties and all Members in the House in June of last year when the original order was brought before the House.

We welcome the extension of the remit of the Ombudsman. It is something that the Minister supported. It was something that was previously called for by the Government's independent rapporteur on child protection, Dr. Geoffrey Shannon. It is to be welcomed.

However, questions must be asked about why, over 15 months later, this motion is before the House and the reason for such a protracted delay in highlighting the deficiencies in the legislation. Why has the Department let this happen? One would imagine that in framing the original amendment, due process would have been gone through, the relevant officials would have checked over it and the Office of the Attorney General would have ensured that it was correct on day one.

It leads me to ask whether the new Department of Children and Youth Affairs is adequately resourced and has adequate personnel to look after legislation. In the two and a half years that the Department has been in situ, it has not been inundated with a plethora of legislation. In fact, before last summer was only the second time a piece of legislation emanated from that Department. There is a High Court challenge to the result of the children referendum because of mistakes made by that same Department. It is something that needs to be looked at seriously.

While we have the opportunity to talk about detention centres, the Minister of State will be aware that in May of this year a juvenile court judge challenged the Minister for Children and Youth Affairs to explain the lack of spaces available to young offenders. In September last, there arose a situation in Limerick where a dangerous young criminal was placed in Limerick University Hospital among very sick patients because the State had no secure unit for him, and that youth ended up escaping from those services. This is something that I have highlighted with the Minister. It highlights, I suppose, the need to have the independent Ombudsman looking into this service. While I accept it is not directly Deputy Brian Hayes's responsibility, the reason there are such incidents, there is a chronic lack of space in the youth detention centres and there are vulnerable children, who are a danger to themselves and to society at large, who are not in a position to be detained is because of the recruitment embargo. From his own role, perhaps the Minister of State might be able to shed some light on whether the Minister, Deputy Fitzgerald, has been able to secure the additional staff to ensure the reopening of the eight-bed unit called Trinity House because she must take responsibility for young offenders, who are a danger both to themselves and to society at large.

The State is currently neglecting its responsibility. According to the Minister for Children and Youth Affairs, this is because of a lack of resources and lack of appropriate staff. Deputy Brian Hayes is the Minister of State at the Department of Public Expenditure and Reform and perhaps he can confirm whether the Minister has been successful in securing adequate additional resources to ensure that a similar situation does not arise again whereby a young criminal who had repeatedly offended was placed in University Hospital Limerick because the State had no secure unit for his detention. I support the motion.

Deputy Caoimhghín Ó Caoláin

This order is being made to rectify the unanticipated impact of the passage of the Ombudsman (Amendment) Act 2012 which to all intents and purposes nullified the order introduced by the Minister for Children and Youth Affairs in July 2012 to provide for the Ombudsman for Children having a responsibility to investigate and address issues relevant to children in places of custody or detention. The Ombudsman (Amendment) Act 2012 was subsequent to that order and all the information at that time suggested that it would have no such impact. However, it now transpires that this is not the case. The view is now strongly affirmed and also by the Attorney General, that this further order is required to correct the situation. I support the passage of this order and the passage of this motion to facilitate it. The Minister for Public Expenditure and Reform has the power to make an agency a reviewable agency. It has long been an issue of concern to me that the Ombudsman for Children had not that remit within her range of roles and responsibilities. I wish to acknowledge the role of the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, in the intent and the facilitation of the extension of this power and responsibility to Emily Logan's office.

The Minister for Justice and Equality is also consenting to this situation. The Ombudsman for Children is anxious to have the situation restored to the situation applying as of July 2012. The proposal before the House had the unanimous support of the members attending at a recent meeting of the Joint Committee on Health and Children. The committee advised the Minister for Public Expenditure and Reform, Deputy Howlin, of my proposal arising out of discussion at that time.

It is important that this matter is rectified as speedily as possible. We are all familiar with many instances and cases, some of which are high profile and others which are not in the public domain. We welcome the proposals that the Office of the Ombudsman for Children must have a particular and specific role.

I am conscious of the role of the Minister of State's office in the progressing of the arrangements for the commencement of construction of the new facilities at Oberstown. I join with the Minister in commending the Minister of State's office for the efforts in this regard. In the most recent exchange last week, we noted that BM Building Limited has been appointed as the main contractor and the subcontractors have also been confirmed. As the Minister indicated to the House last week, it was expected that construction would commence this week. I do not know if there is facilitation for the Minister of State to reply at the conclusion of this debate but I will certainly conclude a little earlier to be of assistance and to hear if he has anything to share with the House.

An Leas-Cheann Comhairle

Tá nóiméad amháin fágtha.

Deputy Caoimhghín Ó Caoláin

I will be very happy to conclude my contribution with some little time left for the Minister of State to reply if he is in a position to confirm that the works have indeed commenced this month. We recognise that the provision of appropriate facilities, as against the situation that has applied heretofore at St. Patrick's Institution, is totally and absolutely inappropriate and that is where we need to start. I hope the Minister of State will be able to provide that confirmation before the conclusion of this short exchange.

Deputy Mattie McGrath

I am delighted to support this motion. I note that the order was brought to the Seanad last week for its approval. That in itself is an important statement, on this eve of polling day. I agree that a child must be protected no matter where he or she resides, no matter who purports to have care of the child. Difficulties have arisen with regard to the remit of the office in the past but it would be criminal to leave any child unprotected and to protect the abusers, whether the State or any other perpetrator. It is disappointing that this provision was not included in the amended legislation. As a humble backbencher of the Opposition I ask why this was the case. I have no doubt it is a very complex legal area but we are supposed to have employed all these complex legal experts in the Office of the Attorney General and many advisers in the public service. I am appalled to think that this provision was removed or fell through the hoops. It took pressure from the Ombudsman and other concerned people to persuade the Government to make this very necessary change. We must ask why it was not included in the amended Act and why these things happen.

I refer to the wrong information about voting and the franchise being interfered with in Dublin which was corrected subsequently. However, the welfare of children is a much more serious matter. The protection of her children by the State was somehow negated, overlooked and dropped from the legislation with the passing of a Bill. This must be of significant concern, in particular, in view of the proposal to dispose of the Seanad. That House has more time for debating issues and it has legal experts among its Members. Senator Jillian van Turnhout is a children's rights campaigner and she is aware of these issues. This motion was intended to be passed without debate and now the House has only 20 minutes in which to discuss it. However, I support the motion.

It may be necessary to review how, on occasion, the Ombudsman interprets the remit of the office. Concerns have been raised with the Ombudsman, Ms Emily O'Reilly, to explain her assertion that she had no remit in some matters in the past. I was involved with some of those cases and there was a strong argument to show that the Ombudsman had a remit in this regard. Ms O'Reilly has never answered several questions, some of which I brought to the attention of the Minister for Children and Youth Affairs. There is a need for the Office of the Ombudsman to be accountable. It is not good enough to say that the office has no remit; it needs to have teeth and its decisions need to be respected. The Government and Departments must take notice of decisions of the Ombudsman and answer the questions. The citizens place great store and faith in the Ombudsman. They can come to us and we can raise matters by way of parliamentary questions but many cases are lost and the Ombudsman is the final arbiter. Where an appellant has not received a satisfactory response to persistent pleas to the Ombudsman I am not aware that Ms Emily O'Reilly has fully answered questions in some cases. She has come back with watery answers and that is not good enough.

I refer to the Garda Síochána Ombudsman. Some people say that office is too intrusive but I disagree. People must have justice administered fairly and that is why the Office of the Ombudsman was established. I support this motion. The Ombudsman must be given the resources and the office must have zeal and a desire to find out the truth to ensure that it represents the downtrodden citizens who are denied their rights or who perceive that they have been denied their rights. I am not saying they are always right but there has to be fairness and understanding.

When people go to the Ombudsman, they do not do so lightly, although there may be some crank issues I do not know about. They can occur with everything and we get them ourselves. There must be an independent and objective office to examine fully the file, carry out a proper investigation and reassure the citizen making a complaint to the Ombudsman that it is acting on the citizen's behalf, without frustration, impedance or bias. It should deal with the question in hand.

It is paramount that we protect children. A person contacted me last night regarding a convicted paedophile who had been released to the community without anybody knowing. That person is living next door to the victim's family. We must consider such cases, although they may be outside the Ombudsman's remit. Victims must be informed if convicted people are to be released having served a sentence, and they must not be allowed near the people who have been offended grievously or hurt, which would put fear into them again.

An Leas-Cheann Comhairle

Is the motion agreed?

Deputy Caoimhghín Ó Caoláin

Could the Minister of State use the 30 seconds I left to answer my question?

Deputy Brian Hayes

To be fair to Deputy Ó Caoláin, he asked a straight question and I am delighted to be able to answer it. This came from a decision in last year's budget to proceed with Oberstown, which is really important given the work we are trying to do in this area. The total bill is approximately €50 million and I am glad to inform the Deputy that construction began on 9 September.

Question put and agreed to.