Ombudsman for Children Bill, 2002: Committee Stage.

SECTION 1.

I move amendment No. 1:

In page 5, subsection (2), line 16, after "provisions" to insert:

", provided that no commencement date shall be later than 2 years from the day of enactment".

This amendment would ensure that the Bill, when enacted, would come into operation within a reasonable period. I realise the advice from all the different Departments will be against this move. I have a good reason for tabling the amendment as we have experience of legislation not coming into operation. This is something that has dragged the Legislature into disrepute.

As far as I am aware, many of the sections of the Bill that replaced the Children Act, 1908, did not come into operation at various stages. My experience recently has been the Education Act. When the Education Bill was going through the House in November 1998 or 1999, it was written into the Bill that all sections would be fully operational within a year. The then Minister, Deputy Martin, suggested that such a timeframe was too tight and could not be achieved. I recall that Senator Costello proposed an amendment to reduce the period of time to six months, but I supported the Minister in increasing it to two years. Looking at the complexity of the Education Bill, it seemed fair to presume that by the time consultation had finished and things began to be established, a year would have passed.

I looked at this Bill in a similar manner and I congratulate all who had an input into it, including the Minister of State, as it is an extraordinary and progressive step. It would be devastating, therefore, if the Bill were ignored and not implemented as speedily as possible. If Fianna Fáil is not returned to office, which I know the Minister of State would not wish to contemplate, and a different Minister is appointed to this area—

Perish the thought.

It is unthinkable.

Those of us with a broader view have to consider all possibilities. If it happens that none of us is here after the elections, at least we will have the satisfaction of having ensured that this Bill is operational. The Minister of State could argue that she made a decision, enacted by the Legislature, to put a commencement date into the Bill. All aspects of this Bill that support children should be brought into operation within two years of the day of enactment. Presuming that the Bill will be passed by the Seanad this week and by the Dáil in a month or so, before the general election, my amendment proposes that its provisions be commenced by mid-2004, which is not unreasonable.

I am not attempting to get at anybody, but it is important we ensure that the positive aspects of the Bill in relation to protecting and doing the best we can for children, which are supported by all Senators, come into operation as soon as possible. I have no difficulty in withdrawing my amendment in favour of one with a different period of time if the Minister of State feels that two years is unreasonable. I believe that my proposal is reasonable, but if the Minister of State considers that it will take longer to fully enact the Bill, I will accept her point of view. I am interested in anticipating closure in the sense of implementing all sections of the Bill. I do not think two years is unreasonable and I ask the Minister of State to accept my amendment.

I support Senator O'Toole on this matter. I wish I had thought of putting down similar amendments to other Bills. The Minister of State will recall that all Senators welcomed the Bill last week and she must not feel that we do not support her endeavours. In this worthwhile amendment we are trying to ensure that the Bill will not be allowed to drift if the Minister, Deputy Hanafin, is not in charge of children in the future – God between us and all harm. Both Houses pushed through the Mental Health Bill, 1999, with great haste before the summer recess last year, but not a line of it has been implemented.

I was reduced to tabling a Private Members' Bill some months ago to try to impress on the Department of Health and Children a sense of urgency by recommending that the Mental Health Act should be implemented by a date in March of this year. The courts repeatedly mention the problems they encounter because mental health legislation has not been updated. I wish I had thought of introducing an amendment similar to Senator O'Toole's when this House considered the Mental Health Bill last June. I support this amendment and hope it will be accepted.

I also support Senator O'Toole's amendment in the context of the House's support for the Ombudsman for Children Bill. We are facilitating its quick passage through the Seanad so it can be dealt with and passed by the Dáil before the general election. Like Senator Henry, Fine Gael Senators were disappointed not to have introduced a commencement date by amendment to the Mental Health Bill, 1999, which does not have such a conclusive date. I consider that two years is a realistic timeframe to allow implementation of this relatively short Bill, which is extremely important for the protection of children. I support fully the proposal in this amendment, which I hope will be accepted by the Minister of State.

May I add my voice to those of Senators O'Toole, Henry and Jackman? I have tried, since I entered this House, to ensure commencement dates are included in Bills so their measures are implemented as speedily as possible. There has been a tradition in this State of putting many items of importance on the long finger. Senator Henry is right. The Mental Health (Amendment) Bill, 2001 is an example of where there seemed to be urgency yet nothing has happened.

In practically every Bill coming through the House on State companies I have tried to ensure that reports are published. I discovered that unless that was done the reports were not published on time and sometimes drifted for a long time. This is not the same item. I am aware that the Minister's heart is behind this and the urgency is there at the moment. However, that may not be the case in the future and it is important that legislation ensures it.

I know the perspective the Senators are coming from is one of support. Not for one moment am I anticipating that this would be left to lie like other legislation. The difference between this and other legislation is that the funding has already been allocated. The funding for the establishment of this office is in this year's Estimates. We are just awaiting the passage of the legislation through the Oireachtas.

It is my expectation, rather than my hope, that the office will be fully functioning by the end of the year presuming the legislation goes through. While I am not opposed to calls to have it up and running within a year or two, I believe it is unnecessary to include this in the legislation.

The Minister's argument against the amendment is that it is unnecessary. I accept that is logical, but it does not address my point. Who knows who will be sitting in the Minister's seat, who will introduce a mini-budget before the end of the year, what different views a new Government might take on these matters, what constraints might be implemented by the next Secretary General of the Department of Finance when finances are revised towards the end of the year?

The amendment does not discommode the Minister or her Department in any way. The acceptance of this amendment would demonstrate a huge level of commitment and support behind this legislation. It would mean that the job is finished when it is enacted; it brings closure. In deference to the levels of support for what the Minister has said – she almost received a round of applause when she made her presentation here last week – we have all been genuinely impressed by the obvious commitment she has shown in dealing with this. It would be great if the Minister would respond to us on this issue. There is no additional cost to anybody as the money is already allocated. It would be an acceptable way to go forward and I appeal to the Minister to make a concession to us on that point.

I support Senator O'Toole in his remarks. The Minister's response is actually supportive of the argument on this side of the House. The fact that the funding is in place is very welcome and indicates, in theory at least, the commitment of the Government to ensure that this legislation is implemented. I do not think anybody would question the Minister's personal commitment to seeing it implemented.

However, we know from our own experience that unless something is written down and tied into legislation, it is not enough to rely on aspiration or goodwill. There have been too many examples of Bills being passed which have not been implemented, or not implemented early enough. We are all on the same wavelength on this. We all want to see the Bill enacted as soon as possible. That is the thinking behind this amendment and I support Senator O'Toole in asking the Minister to accept it.

This really is a case of praise somebody enough and they will do what you ask them to do: mol on Aire agus tiocfaidh sí. I think everyone in the House shares the same perspective on this issue. I do not in any way envisage that there will be a change of Government, attitude or anything for that matter after May this year. I accept the point in principle, but would like to examine it prior to Report Stage and fine tune it.

Thank you. I deeply appreciate that. It is a very clear and concrete signal.

Amendment, by leave, withdrawn.
Section 1 agreed to.
SECTION 2.

Owing to a printer's error, an asterisk was omitted before amendment No. 2. The asterisk indicates that the Government has also tabled this amendment.

I move amendment No. 2:

In page 5, subsection (1), lines 23 and 24, to delete "other than a person who is or has been married,".

I was rather confused when I saw yesterday that this amendment was listed under my name before subsequently appearing as a Government amendment. I am sure the Minister agrees with the point raised on Second Stage, but I reiterate that this same issue arose in relation to the case of Jamie Sinnott v. the Minister for Education and Science.

Within the context of the United Nations Convention on the Rights of the Child, there is flexi bility to allow Irish law to treat persons over the age of 18 years as adults. The issue of marriage is peculiar in this respect, in that the minimum age at which a person can marry has, since 1996, been 18, but in special circumstances younger people can marry, with the permission of the Circuit Court. Such young people are very vulnerable up to the age of 18 and I am glad the Minister saw fit to address this issue since Second Stage. It makes for a much clearer definition and is more protective of children.

Obviously, my amendment has the aim of ensuring that as many children as possible, married or not, will be protected by the Ombudsman for Children. The Government's and Senator Jackman's amendments are largely the same. This amendment complies with the Children Act, 2000 and with the UN Convention on the Rights of the Child.

Amendment agreed to.
Section 2, as amended, agreed to.
Section 3 agreed to.
SECTION 4.

Amendment No. 3 is related to amendment No. 4 and they may be discussed together by agreement.

I move amendment No. 3:

In page 7, subsection (1), line 17, after "established", to insert "Oifig Ombudsman do Leanaí or in the English language.".

Amendments Nos. 3 and 4 are self-explanatory. All we seek to do here is to put the Irish version of the ombudsman's office into the legislation, giving it precedence.

I would hope that the Minister, as such a great Irish speaker – I watched her on the television programme "Mná na hÉireann" the other night – would accept this amendment.

Despite the difficulties in getting any translation, or even to talk of an "ombudsperson", which is a very specific title, I certainly support the Irish language version of the title, in line with other Senators.

Mar a tharlaíonn sé, níl mé chun glacadh leis seo. The title in English is "Ombudsman for Children", and the Irish title is "Ombudsman do Leanaí". Beidh seirbhís ar fáil do leanaí as Gaeilge. When finalised, the Bill will be published in Irish, where reference will be made to the "Ombudsman do Leanaí", giving it equal status with the English title for the office. Ní dóigh liom go bhfuil gá an leasú a chur isteach sa Bhille. Níl mé chun glacadh leis.

Tá díoma orm go mbeidh mé ag caint as Béarla. I am disappointed that the Minister does not accept this amendment because it is important to put the name of the ombudsman's office as Gaeilge in the Bill.

Is the amendment being pressed?

The amendment is not being pressed as Report Stage is ordered for another day.

Amendment, by leave, withdrawn.
Amendment No. 4 not moved.
Section 4 agreed to.
Sections 5 and 6 agreed to.
SECTION 7.

I move amendment No. 5:

In page 9, subsection (1), line 44, after "promote" to insert "and protect".

I hope the Minister of State will accept this amendment as the Bill is concerned not just with promotion, but with protection. The 1989 UN Convention on the Rights of the Child recognised that children are vulnerable and in need of protection. I can envisage the promotion of children's rights in a specific area, but protection is very much part of the Child Care Act, 1991, on which I spoke in the House. That Act began the protective process for children at risk and in need of protection.

Surely one of the ombudsman's responsibilities will be to protect children's rights. This issue was commented on by the Committee on the Rights of the Child, established under the Commission on the Rights of the Child in February 1998. I have strong feelings about this issue and I do not understand why it would create a problem to include the role of protection. The protection of children's rights is even more important than the promotion of those rights. Promotion is important, but I would have thought the role of the ombudsman would be one of protecting rights.

I support Senator Jackman who has made an important point. It is fine to promote rights, but we must also protect what we have. I support the amendment.

I also support the amendment. It is important to promote the rights of children, but it is also important to include in the legislation the principle of the protection of existing rights.

By including the word "protect", would we usurp the courts and the health boards?

I do not propose to accept this amendment as the role of the ombudsman is not to protect. The role we are proposing for the ombudsman is far wider than in most other jurisdictions where such an office is being introduced. Our proposal includes promotional and investigatory roles.

The onus of protecting children cannot be placed on the ombudsman. That onus has to be on parents, the health boards, the courts and society and it would be an unnecessary burden to place it on the ombudsman. In a general sense, the ombudsman will carry out this function in promoting the rights and welfare of children, but it would not be appropriate to place the onus of protecting children on an ombudsman.

The reason for establishing the office of the Ombudsman for Children is, as the Minister of State pointed out, because of failures in the system. Such failures may be in the courts and we referred recently to Mr. Justice Kelly. The whole point of introducing this office is to provide protection. Promotion is fine, but the aspiration of the ombudsman is surely one of protection because of the failure of existing systems to do so. One can refer to health boards and courts, but they have failed. We were looking forward to the fact that there would be an independent ombudsman to provide such protection. Promotion and protection go hand in hand.

I have strong feelings about this issue as the amendment would not place an undue onus on the ombudsman in terms of the overall Bill which confers significant duties on the office. Later in this debate I will raise another issue regarding the Minister's intervention which I do not accept. The role of the ombudsman will be important in terms of the protection of the rights of children. I might have a different perspective if this legislation referred to adults, but children are so vulnerable that the ombudsman may be the only person there for the child when other bodies have failed. I regard protecting the rights of children as part and parcel of the ombudsman's responsibilities and terms of reference.

The Minister of State and Senator Jackman are referring to different things. Senator Jackman is not seeking the protection of children, but the protection of the rights and welfare of children. This issue does not specifically arise under the health boards, whatever about the courts.

Senator Henry made the point I wished to make in that there is a difference between protecting children and protecting the rights of children. This legislation was referred to on Second Stage and in the media as providing for the appointment of a children's champion. Incidents and events over the past number of years have given rise to the call for the establishment of an independent office of a champion for children because those people and agencies to which the Minister of State referred – parents, society, the health boards, the courts and other agencies – have, in some instances, failed children. There is a need for someone independent of the system to ensure that the rights of children are promoted, as provided for in the legislation, but also that those rights are protected. Hopefully those rights will also be enhanced. We will discuss this issue later in the debate when dealing with broader amendments regarding the full role of the ombudsman. Does that role go far enough to ensure that the ombudsman can be a true champion for children and the true protector of their rights? This amendment is important in terms of ensuring that the ombudsman is able to do so.

I cannot add the word "protect" to the Bill. The role of protection is understood in so far as the ombudsman can investigate matters. There is also a certain element of protection in terms of promotion. However, there are groups such as the health boards which have a statutory duty and responsibility to protect children and their welfare. By inserting the word "protect" in the Bill and placing the onus on the ombudsman, would that mean, for example, that he or she would be responsible for placing a child somewhere else if he or she discovered that a health board was failing to protect the welfare of a child in foster care? That would constitute an unnecessary burden which cannot be backed up.

In reality, the ombudsman will protect children's rights by promotion and investigation. However, to include in the legislation that the ombudsman was responsible for protecting the rights or the welfare of an individual child, or of children, could cross over other services. An additional voice would not be an additional help. Senators should bear in mind my closing comments last week to the effect that the ombudsman is not the solution to every problem in society regarding children. The ombudsman will have a particular role. We are setting out that dual role of promotion and investigation, but not protection. Those whose job it is to protect should do so. The ombudsman will ensure that they do so.

I hope the Minister of State will revisit this issue on Report Stage.

Amendment put.

Burke, Paddy.Coghlan, Paul.Connor, John.Coogan, Fintan.Cosgrave, Liam T.Costello, Joe.Cregan, Denis (Dino).Henry, Mary.Jackman, Mary.Keogh, Helen.

McDonagh, Jarlath.Manning, Maurice.Norris, David.O'Meara, Kathleen.O'Toole, Joe.Quinn, Feargal.Ridge, Thérèse.Ross, Shane.Ryan, Brendan.Taylor-Quinn, Madeleine.

Níl

Bonner, Enda.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cox, Margaret.Cregan, JohnDardis, John.Farrell, Willie.Fitzpatrick, Dermot.Gibbons, Jim.Glennon, Jim.Glynn, Camillus.Kett, Tony.

Lanigan, Mick.Leonard, Ann.Lydon, Don.Mooney, Paschal.Moylan, Pat.Nolan, M. J.O'Brien, Francis.O'Donovan, Denis.Ó Fearghail, Seán.Ó Murchú, Labhrás.Ormonde, Ann.Quill, Máirín.Walsh, Jim.

Tellers: Tá, Senators Burke and O'Meara; Níl, Senators Farrell and Gibbons.
Amendment declared lost.

I move amendment No. 6:

In page 10, subsection (6), lines 47 and 48, to delete "that is for the time being in force in the State".

Under section 7(6), the terms of reference of the ombudsman can only refer to protocols for the time being in force in the State, which means that any protocol not ratified by the State cannot be included. We have already debated the role of the ombudsman in promoting the rights of children and the Minister of State clearly indicated that, under this legislation, it is the role and duty of the ombudsman to promote them. However, the role of the ombudsman should not be limited to protocols currently in operation because, unfortunately, many have not been ratified by the State. This includes many protocols relating to the United Nations Convention on the Rights of the Child, such as the protocol on child soldiers. That would not have the same relevance in this country but the principle is an important one. That is the thinking behind this amendment.

I support Senator O'Meara's efforts to move this beyond the here and now.

I do not propose to accept this amendment as the ombudsman will be dealing with the Convention on the Rights of the Child in general, which is specifically referred to in the Bill, as well as those conventions which are ratified – there are two which are not ratified. If and when those are ratified by the country they will then become part of the promotional role of the ombudsman but it is designed so that only those which have the force of law in this country will be the subject of promotion by the Ombudsman for Children. I do not propose to accept this amendment.

As the Minister of State pointed out, two protocols have not been ratified but the convention is generally under the ombudsman's ambit. Maybe the Minister of State will be more specific as to what the problems would be in terms of including those protocols which are not yet ratified.

The main issue is within the convention itself which the ombudsman wishes to promote and which might impact on some of the protocols attached, but it is not limited to that – he can certainly deal with those. Where there are protocols which do not have the effect of law in this country he would not then be promoting those. If they are ratified they become part of it. Otherwise one would be extending the remit of the ombudsman to deal with issues affecting other countries and which may not apply or be relevant to children here. He will have enough to do to deal with matters which have the effect of law here.

We really do not know if that is the case. We have seen an awful lot of changes in the country in the past few years. Situations are now arising, particularly with regard to the children of immigrants, asylum seekers and refugees, which we would not have anticipated before. It might be short-sighted at this point to exclude the protocols not yet ratified. We should also remember that unfortunately we are not the fastest country when it comes to ratifying protocols.

Amendment, by leave, withdrawn.
Section 7 agreed to.
SECTION 8.

I move amendment No. 7:

In page 11, between lines 9 and 10, to insert the following new subparagraph:

"(i) taken in circumstances which gives rise to a failure to meet the fundamental rights of the child, in particular where such failure gives rise to an urgent need,".

This amendment relates to section 8, which is a very important section as it deals with complaints against public bodies, such as schools and voluntary hospitals. This is clearly a fundamental and central part of the legislation and one we all welcomed very strongly when discussing the Bill last week. It is central to the workings of the Office of the Ombudsman for Children when it is in place.

I told a class in a secondary school in Nenagh about this Bill, trying to increase our relevance to the lives of non-voters and under 18s. When I told them we were setting up this office the news was greeted very positively. They also welcomed the fact that the office would accept complaints against public bodies such as schools and voluntary hospitals. The spirit of this amendment aims to strengthen the fundamental principles of the section.

The amendment seeks to insert a new subparagraph, which states: "(i) taken in circumstances which give rise to a failure to meet the fundamental rights of the child, in particular where such failure gives rise to an urgent need," and would be inserted between lines 9 and 10. The amendment would extend the role of the ombudsman to address an issue I raised on Second Stage last week, which Senator Jackman referred to earlier.

This relates to incidents in which the State fails to meet the fundamental rights of the child, particularly where such failure gives rise to an urgent need, as the amendment states. I said last week that the failure of the State to meet the needs of children, particularly in urgent circumstances, must be seen as a basis of complaint and part of the fundamental work of the ombudsman. Otherwise we are excluding a whole area which has given rise to large scale public concern in recent years, specifically where children are involved in crises.

After debating this last week I went home and read the local newspaper. The front page story concerned what was termed an out of control child, a 13 year old who was before the courts having engaged in activities which had led to his arrest, including driving a car at 90 miles per hour through villages. Evidence was given in court that he had attention deficit disorder and his mother, present in court, begged the judge to have him taken into care, but the judge said there was nowhere to send him. We know this is not an isolated case. Some judges have been very vocal on this issue and have commented on the State's failure to provide sufficient places for children. I know the Minister of State has done Trojan work on this issue but we have some distance to go to have services put in place which meet the needs of the child to which I referred. Clearly those services are not in place.

I made the point last week and I reiterate that unless the brief of the ombudsman is extended to monitor cases where the State is not providing a service that a child clearly needs, we have to question the effectiveness of the ombudsman's office and whether that office can be the true champion of children. There are expectations abroad, particularly when communities hear stories such as the one I have instanced, that in setting up an independent body, the body would have powers not only of investigation but, in certain circumstances, to intervene and say that something must be done if a child's fundamental rights are not being upheld, if a child is in need of a particular service or of professional help or if a child's parent cannot cope and asks the State, via a judge, to provide a service. If the ombudsman does not have a role there, we are failing in our duty. I know the Minister of State will say the health board has authority here and that there are other institutions involved, but when there is a failure who has the power to intervene?

We are all familiar with the Office of the Ombudsman proper, which has been established for a number of years. A fundamental aspect of that office is the independent monitoring role of the Ombudsman, the power to say that something is not good enough, whether that relates to the Department of Social. Community and Family Affairs or another Department. The Ombudsman has the power and authority to publicly state that the manner in which the State agency is behaving, or not behaving, does not meet the standards expected by the Oireachtas or the public. I would have thought that the same principle should apply here; the expectation is that it would apply. This is the basis for this amendment and it is fundamental to the operation of the office. Without it, the office would be weaker than we want and the public expects.

The Senator's point would be covered in this case by the failure of the health board to provide a service. It would be covered by section 8(3), where the action is as a result of negligence, particularly in the type of cases the Senator raised. The example Senator O'Meara gave would be an obvious one where the ombudsman would be able to investigate the failure of the health board to provide for the child and was negligent in its statutory role, set out in the Child Care Act, 1991. It is covered because the ombudsman can investigate, carry out an examination and make recommendations. This is the type of thing he should and will do.

We should not lose sight of the principle which we agreed to last year regarding the Children Act, namely, that detention should be used only as a last resort. I am not referring to any cases in particular, but I am not happy to see people try ing to lock up 13 year olds. I fully accept that services have to be put in place for families and communities locally.

I support Senator O'Meara's amendment and relate it specifically to attention deficit hyperactivity disorder, ADHD. The Minister said that the ombudsman's remit is not confined to health boards and I know it will extend to the investigation of schools. I know two children who are serving prison sentences because this disorder was not detected. Eventually their behaviour was such that they ended up in prison. They did not understand the consequences of their behaviour. That is part of the attendant diminished sense of responsibility. Until now, the Department of Education and Science did not have any way of dealing with this problem.

I understand why the Minister would be concerned about the extended role of the ombudsman as we are talking about children. Cases will come before the ombudsman and we want to know that he or she has the power to look beyond the school at the tremendous difficulties facing parents and children at risk. The children may be aged 13 or under and their parents and social workers can see that they are on their way to prison not through their own fault, but because they suffer from a condition which is not being treated. These issues will come before the ombudsman because of the distress caused to those involved.

As Senator O'Meara said, a particular parent wanted her child placed in care because she knew she was not offering the child the best help. It would have been impossible to do so; she was not a trained expert. We will find that the ombudsman has to deal with these issues more and more. It will not be helpful for us to discover that we should have extended the remit when we were debating the issue. It is something the Minister will have to consider.

That is just one issue; we could talk about other disorders. As a teacher, I am very much aware of cases that emerge repeatedly. They are highlighted in the mid-west because of the support of parents, not the health boards, who raised the issue. The Minister of State was a teacher and I am sure that, with hindsight, she may be able to detect those who suffered from ADHD. Knowledge of the condition did not exist until recently.

It is important that we continue to remind ourselves of what the ombudsman will do. He will investigate complaints against public bodies for actions taken in the performance of their administrative functions or, as I pointed out, for negligence or carelessness. The ombudsman cannot replace the Oireachtas. He will not be responsible for policies, investment, capital expenditure or any of the things for which we in these Houses are responsible. He can highlight issues, but the Department of Education and Science is setting up the special education agency. The Govern ment will allocate resources for that; it is not the job of the ombudsman. Where people are failing in their administrative duties, as set out by legislation, the ombudsman will investigate. Let us not think that he will be the panacea for all ills because he will not.

I agree with the Minister that the ombudsman will not replace the Oireachtas or Departments. The role of the ombudsman is very different. It relates to accountability as well as being a championing role. I am clear on that and I do not suggest that the ombudsman should displace the role of other State agencies and institutions. The amendment seeks to underline the power and role of the ombudsman. It does not seek to alter or widen it.

I partially accept what the Minister said about section 8(3) and the results of negligence or carelessness. My amendment strengthens and underlines that aspect. It refers to the fundamental rights of the child, particularly where such failure gives rise to an urgent need. It would aid and assist the role the Bill intends the ombudsman to have.

While I understand what Senator O'Meara said, she moved into the area of definitions.

Possibly.

One would need the Law Library to rewrite this section of the Act, probably without advancing the rights of either the child or the influence or powers of the ombudsman. I do not think this amendment is feasible.

Amendment, by leave, withdrawn.
Section 8 agreed to.
Section 9 agreed to.
SECTION 10.

I move amendment No. 8:

In page 13, subsection (2)(b)(i), line 18, after “trivial”, to insert “, malicious”.

It is unfortunate to have to insert a word such as "malicious". Complaints can be trivial and vexatious, but they can also be malicious and this amendment is unfortunate but necessary. "Malicious" means trying to do harm to someone, "trivial" means of very little importance and "vexatious" means to be a nuisance. People could make complaints which attempt to do harm to the person about whom the complaint is lodged. I regret that a word like this has to be used, but unfortunately this is the kind of society in which we now live.

I do not consider "malicious" to be necessary in this context. "Malicious" is often used in complaints against an individual whereas we are dealing with complaints against public bodies. I believe "vexatious" covers that point. The same problem as in the previous amendment of defining "malicious" would arise. In whose eyes is it malicious? The word "vexatious" covers it because it is a public body, but it would be different in the case of individuals.

As we are discussing State bodies, one would have to prove conspiracy to do down the child who is the subject of investigation, which would open another can of worms.

Amendment, by leave, withdrawn.
Section 10 agreed to.
NEW SECTION.

Mr. Ryan

I move amendment No. 9:

In page 14, before section 11, to insert the following new section:

"–Notwithstanding the terms of section 11(1)(a), the Ombudsman may apply to intervene in any court proceedings involving the welfare of a child as an amicus curiae, and may furthermore initiate such proceedings as it considers necessary for the exercise of his or her functions.”.

Our concern is that, while one can understand the need to delineate between the role of the Ombudsman for Children and the operations of the courts, children should be adequately represented, as is the case in many jurisdictions. The purpose of the amendment is to allow the ombudsman to intervene in court proceedings where he or she believes that it is in a child's interests to do so. It is not prescriptive or a requirement to do so always, but to leave this possibility open. The legal profession is not perfect and sometimes a child's representation might not be adequate or the parents might not act properly.

In my native city, there was a horrific case in which an 11 year old girl was made pregnant by a local man and the child's mother did not wish to prosecute so as to spare the "poor man" a court appearance. In such a case, there is an overwhelming public need to provide further support for a child. I do not seek to make this rancorous, but suggest that the otherwise reasonable separation of the ombudsman and the courts could be breached by giving the former the right to intervene if deemed necessary.

I will not accept this amendment. There is already in place the system of the guardian ad litem to be a voice for a child in court. It has run for many years and will be reviewed under the national children's strategy. That system is there to provide a voice for children and the ombudsman should not be involved in individual cases in court.

Mr. Ryan

It was by dint of blood, sweat and tears in this House that the position of guardian ad litem was included in the Children Bill by the Minister of State, Deputy Treacy, when he was the responsible Minister. However, this position is not identical to what is being proposed. Where the ombudsman is satisfied that a guardian ad litem has been appointed and there is no need to intervene, he or she would not do so. However, why should it be excluded under all circumstances? This is a clause to enable the ombudsman, where he or she sees fit, to act. We can rely on the discretion of the person of high quality, whom we expect to be appointed, not to use this right in a way that would cause problems for the administration of justice, the rights of children or in any other way. It is a pity the Minister is reluctant to accept this restrained, limited amendment.

I can understand the Minister's point of view, but the type of case referred to by Senator Ryan illustrates his argument. How can a child in such a situation take a case at present? Cases are taken by parents on behalf of children and one must reach the court before a guardian ad litem is appointed. The Senator's proposal is that the ombudsman could initiate the case.

I am very anxious that the voice of the child is heard at all levels. It is preferable that it is done directly rather than through another legal team appearing, which would be the result of this amendment. We would have legal teams, a guardian ad litem and an amicus curiae, which would not add to the proceedings. The Senator's proposal can be viewed in the context of the review of the guardian ad litem system in which the best way to protect children will be considered. However, the ombudsman should not get involved in legal proceedings.

Mr. Ryan

The Minister of State is developing the malaise of the Minister for Health and Children, which is to establish a review body and so kick an issue to touch. A future review should not be a reason to reject an amendment which makes no fundamental change but leaves the possibility of facilitating unanticipated exceptions.

I am not using the review body as an excuse but as another indication of the range of activity undertaken by the National Children's Office. I do not accept this amendment because I do not believe that it ought to be included.

Amendment, by leave, withdrawn.
SECTION 11.

An Leas-Chathaoirleach

I draw Senators' attention to the fact that amendments Nos. 10, 11 and 12 are alternatives, so that if amendment No. 10 is defeated, the other two cannot be moved.

Mr. Ryan

I move amendment No. 10:

In page 15, subsection (1), lines 11 to 22, to delete paragraph (e).

Section 11 deals with exclusions, one of which is an action taken by a public body, school, or voluntary hospital, if taken in relation to the law relating to asylum, immigration, naturalisation or citizenship, or if the action is one involving the exercise of right or power referred to in Article 13.6 of the Constitution or taken in the administration of the prisons or other places of custody or detention of children committed into custody or detention by the courts other than reformatory schools. I do not understand why this is so. Children applying for citizenship, particularly under Articles 2 and 3 of the Constitution, have a presumption of citizenship if born on the island of Ireland and, therefore, to suggest that the ombudsman should not have a right to investigate actions which might affect the exercise of that right is extraordinary.

Children's prisons are a particularly sensitive area. A huge amount of evidence shows that society achieves very little by locking children up in prisons and that by imprisoning children, however infuriating or appalling their behaviour is, the overwhelming consequence is that they offend again. Children's prisons are academies for graduating from a child criminal to an adult criminal. That has always been the case.

It is difficult to have a rational discussion about issues to do with crime, punishment, etc., but to preclude the ombudsman from investigating issues like that is to make it even more difficult to have rational discussion because of the understandable frenzy that is sometimes whipped up about criminal activities involving children. That type of frenzy makes it impossible for the political system to deal rationally with the issue and, therefore, the role of an independent individual such as an ombudsman is even more important in the case of prisons.

Also, dare I say it, following some of the comments made by a colleague of the Minister of State on the issue of immigrants and citizenship, it is difficult for politicians in Cork to talk rationally and dispassionately about these issues. There is an urgent need to have some body or individual, independent of the political system, in a position to talk rational common sense because it is particularly scarce in my home city at present.

We touched on this issue during the Second Stage debate and I hope the Minister of State will be able to offer some clarification. The amendments propose to delete paragraphs because we are talking about discrimination against two vulnerable groups of children who are given a separate status and denied access to the Ombudsman for Children.

I understand the point about the ombudsman not having a role in the granting of status to asylum seeking children, but there are many areas in which the ombudsman could intervene in terms of provision. Excluding everything in this case is not good enough and I hope the Minister of State will reply to the effect that these children can have redress in regard to certain issues such as official decisions on their treatment, and not necessarily on the granting of citizenship.

I am particularly concerned about the exclusion of children who find themselves in prison because there are not suitable placements for them. We may be talking about only one or two children, but it is one or two too many. These children have the right to redress, particularly as they are inappropriately placed in the first instance. They should be the first group about which the Minister of State should be concerned. As stated on Second Stage, Mr. Justice Peter Kelly has been the lone voice in terms of the treatment of these children. Where do they end up? They end up in prison. That should not be the case because they are the most vulnerable in terms of redress.

I note from research that there is a fairly strict regime in terms of the duties of the ombudsman in New Zealand which have been extended to cover children in prison, so there is precedent in other jurisdictions. I hope the Minister of State will come back positively on these issues which we raised on Second Stage.

It is difficult to understand the reason children in places of detention are being excluded. I have grave concerns about it, but I am even more concerned about children who may be asylum seekers, particularly in view of the fact that more and more unaccompanied minors are coming to this country. It is important, therefore, that they should be in a position to appeal to the ombudsman.

There may have been a misinterpretation of what is provided for the two separate groups in the Bill. In relation to the administration of the law as it affects asylum seekers, the laws we are talking about are the Refugee Act, 1996, as amended by the Immigration Act, 1999, and the Illegal Immigrants (Trafficking) Act, 2000, as commenced in full on 20 November 2000, meeting our obligations under the Geneva Convention.

The Act places the procedures for processing applications for refugee status on a statutory footing. There are two independent statutory offices for the processing of asylum applications. The refugee applications commissioner makes recommendations to the Minister for Justice, Equality and Law Reform as to whether they should be granted or refused refugee status. There is also the refugee appeals tribunal whose individual independent members deal with appeals against negative recommendations. There is also a chairperson whose role is to allocate work and develop a system of quality control as well as hearings.

What we are saying in this section is that there should not be any duplication of the appeals process or review of the decisions.

I accept that.

If, however, there are problems in relation to delays, the provision of accommodation, nutrition, housing, etc, those issues are covered. This provision is only to ensure there is not a duplication of the actual process of the administration of the law.

In relation to the unaccompanied minors, whose numbers are growing substantially, they are immediately placed under the care of the health boards, which are covered specifically as public bodies. I have checked this carefully with the Department of Justice, Equality and Law Reform. Its intention is that only the final decision is covered, in other words, the administration of the law and not the provision of services surrounding their being in this country.

In relation to children in prisons, the Senators will know that when the Children Act is enforced, it will be illegal for children to be held in inappropriate places. For example, a non-offender cannot be held in an offender's unit.

I understand that.

That would remove that issue from this section. What would be covered is the type of issue that Senator Jackman spoke about, namely, the failure of the health board which led to the child being placed in prison in the first instance. That is already covered because an action would be taken against a health board for failing to provide the suitable service. However, it would not cover young people between the ages of 16 and 18 who are legitimately in a place like St. Patrick's Institution by virtue of their being offenders, which would come under the prison system. The prison system is outside the remit of the general Ombudsman, as is the Department of Justice, Equality and Law Reform because there are statutory systems in place for dealing with complaints. There are visiting committees and there is now the inspection of prisons, which is on a statutory basis and covers complaints. That is the reason it was necessary to keep it separate and not have any duplication. That would stop the ombudsman having a strong promotional role in relation to standards or conditions generally for young people who would be in those situations, but it is specifically excluded here.

I am aware of the concerns of people in relation to this area and I am continuing to talk to the Department of Justice, Equality and Law Reform about it. I am not sure what further progress I can make but I will try to come back to the Senators on it. The point on asylum seekers is quite clear, but I will determine if we need further clarification from the Department of Justice, Equality and Law Reform on the remand centres.

Mr. Ryan

I want to explore a little of the Minister of State's logic. She is a very intelligent woman and she would want to be very wary of the Department of Justice, Equality and Law Reform. It is not a Department which welcomes scrutiny of any of its activities and it likes to have everything it does within its own compass. Many Departments are not madly keen on the Ombudsman. The evidence of the Ombudsman, and I use this merely as an illustration, on the question of nursing care for elderly people and the extraordinary delays in that regard where the Department of Health and Children effectively ignored the Ombudsman for the best part of 12 months, even though he was perfectly entitled to be involved, suggests that we ought to be careful when Departments express a benevolent reason to keep somebody like an Ombudsman out of their ambit.

I do not want to suggest that the ombudsman should take over the role of the appeals function. That is not what happened, say, in the Department of Social, Community and Family Affairs where there is a large and elaborate appeals procedure. The social welfare appeals system has been dramatically improved by a number of Ministers over the past ten to 15 years. The fact that there is an appeals system within the Department of Social, Community and Family Affairs, which is a good deal more independent in perception and reality than it was 15 years ago, does not preclude the ombudsman from investigating the way it deals with cases. The ombudsman will continue to investigate matters such as delays which are a major problem. No one is suggesting that the ombudsman in dealing with issues of immigration, naturalisation or citizenship would attempt to second-guess the procedures set down in law for dealing with these matters, which are far too generous to the Minister for Justice, Equality and Law Reform in terms of accountability.

A young Japanese man I knew in Cork waited three years to get an application for naturalisation approved and all that time he was told it was being processed and that when his case was reached it would be dealt with. In the meantime he was left hanging in mid air. He was Japanese by extraction – his first language was English and his second language was Japanese. The immigration service talked to him about his having to go home if he did not get his case sorted out. He would have had to go home to a country where the language spoken was his second language. He had been living in Cork since he was five years old. I am glad to say that he is now an Irish citizen.

There is an issue regarding the delay in dealing with cases. One cannot allow the administration of the law to proceed at the pace that suits public bodies, which is a case of the old cliché of justice delayed. Dealing with this area is an appropriate role for the ombudsman. He or she should not have to second-guess the body that is given the legal obligation to deal with a matter, but the ombudsman should ensure that the pace at which that body does its business is fair to the person awaiting the outcome. That is what the role of the ombudsman for children should be. That is where the Department of Justice, Equality and Law Reform is being disingenuous to the Minister of State.

Nobody is suggesting that the ombudsman should take over the role of dealing with appeals and other such matters, but he or she should ensure that such matters are dealt with expeditiously and that queues do not lengthen because numbers increase. If that happens, we will end up with a similar situation to the awful scene that horrified the nation, including people of all political persuasions, of a queue of people along St. Stephen's Green on a wet Saturday afternoon. That happened because somebody had not thought about the resource implications involved. It is the role of an ombudsman to make sure that the law is administered fairly, and one of the principles of doing that is to ensure that it is done expeditiously. That bears no relationship to the response the Minister of State gave, which was to do with there not being parallel jurisdictions on which we all agree.

There is a danger that we may forget we are talking about children. Asylum seekers do not have much of a voice on the issue of the lack of education, which occurs if they are held for a long time. We are talking about their future and they should have access to redress. I am concerned about their status. We are not meant to discriminate against them, but suddenly they are being excluded. Some people who read this Bill thought they were excluded. I know what the Minister of State said, but she admitted the other day that the Bill gave the impression that such a group do not have a means of redress in this regard. Asylum seekers might instantly ask how they could do something to have their application processed, but we are not talking about that. We are talking about the myriad of difficulties to which young asylum seekers are subjected.

I think the prisoner issue can be dealt with because it involves a specific number of people. The issue of young asylum seekers needs to be addressed, given that the issue of adult asylum seekers is not being addressed. The children of asylum seekers are the vulnerable group in terms of this Bill.

With regard to what Senator Ryan said, there is a distinction between the social welfare appeals system and the refugee appeals system in that one is an internal process and the other is a statutorily independent process. From my discussions with the Department of Justice, Equality and Law Reform, my understanding is that matters such as delays can be examined by the ombudsman. It has specifically said that the delays in the Department arise only due to determining the results and decisions of the process.

Mr. Ryan

I say again to the Minister of State that she should beware of the Greeks when they come bearing gifts. She should be wary of the Department of Justice, Equality and Law Reform when it is pretending to be benevolent. Most of us have unfortunate experiences of that. The Department has a view of the world that is different from that of the rest of us. If an action taken in the administration of the law is excluded, an inaction taken in the administration of the law is also excluded. By any logic or understanding of the English language, if actions are excluded, inactions are also excluded. That is what a delay is. It is not doing something that one is supposed to do.

I do not accept that what the Minister of State has been told by the Department of Justice, Equality and Law Reform is a valid interpretation of the matter. I predict that if the Ombudsman for Children tries to get involved in some of these matters, the ombudsman will be sent away with his or her tail between his or her legs by the Department which would say that under this section of the Bill the ombudsman has no function. If the phrase "administration of the law" was different, we could talk about it, but that is the phrase mentioned. I accept the Minister of State's bona fides. I am aware of her commitment to children, I am not arguing about that, but I do not accept that the Department of Justice, Equality and Law Reform is as benevolent as she seems to believe it is.

Amendment, by leave, withdrawn.
Amendments Nos. 11 and 12 not moved.

Amendments Nos. 14 and 15 are related to amendment No. 13 and they may be taken together by agreement.

I move amendment No. 13:

In page 15, subsection (1)(g)(i), line 28, to delete “12 months” and substitute “two years”.

My apologies for the delay. I was summoned to deal with a dramatic constituency problem.

This amendment is also to do with administration. Twelve months is quite a short time in which a person can make a complaint, from the point of view of logistics. I hope the Minister of State's officials are not offended when I say that sometimes I find it is four months, six months or longer before I get a reply from the Department. That is why I felt it was necessary to provide for two years to elapse to allow for at least two or three letters to go back and forth between whatever body or hospital is involved.

The period of 12 months is from the time of the action or from the time the child becomes aware of the action. Given that the ombudsman is the last port of call, I accept there can be circumstances where it might take quite a long time for a matter to be investigated. To accept this amendment now might involve a knock-on effect elsewhere in the legislation. I accept it in principle and I will come back to it on Report Stage.

Is the amendment being pressed?

Amendment, by leave, withdrawn.
Amendments Nos. 14 and 15 not moved.

Mr. Ryan

I move amendment No. 16:

In page 16, lines 6 to 19, to delete subsection (3).

An equivalent paragraph is contained in the Ombudsman Act. That is one line of defence from which we can move on. I did not agree with this in the Ombudsman Act, but there was an argument about the Ombudsman's role generally relating to commercial sensitivity, perhaps, or national security and, therefore, that there could be an arguable case – although I would not share it – for a Minister being in a position to direct the Ombudsman to cease an investigation.

I invite the Minister of State to give an example of where some overwhelming need would demand that a Minister should direct the Ombudsman for Children to cease an investigation. I do not believe one exists. I believe the parliamentary counsel decided to include this section because it was contained in the other Act. I cannot imagine circumstances in which a Government Minister would need to direct the Ombudsman for Children not to carry out an investigation. One can accept there could be circumstances under which a Government Department would not accept the conclusions of an investigation for financial reasons or whatever. However, I cannot accept that an Ombudsman for Children with his or her fairly clear and limited, though important, functions could ever do something which would be so inimical to some public good, such as national security, the public finances or any of the usual ones mentioned, that it could ever be possible that a Minister would give such a directive.

I invite the Minister of State not to tell me what I know already, which is that a similar provision is contained in the Ombudsman Act, but what circumstances are envisaged where such a directive might be necessary?

As it is contained in the Ombudsman Act, I checked the reason for it. Apparently its effect is twofold – to give protection to the Ombudsman and to give protection to the Minister. It provides protection to a Minister to prevent an investigation into any matter for which the Minister would be accountable to the Houses of the Oireachtas so that there would not be interference in the role of the Minister. More particularly, it affords protection to the Ombudsman in the event of a Minister interfering and seeking to have an investigation stopped. Therefore, the Bill has to provide for full and public disclosure about it. Apparently the reason for it in the Ombudsman Act and why it is included in this Bill is to prevent an errant Minister or an errant Ombudsman having unfettered influence in particular matters. Incidentally, it has never been used.

Mr. Ryan

That is another reason for dropping it.

I could never envisage a situation where I, as a Minister, would ask an Ombudsman not to investigate something. The thinking behind it was that it provided dual protection. In the event of an interfering Minister, by law, the Ombudsman would have to be able to give full disclosure as to who said what to him, who was trying to interfere with his work, who was trying to affect his statutory independence and at the same time protect any Minister of the Government in his relationship with the Oireachtas. Although the safeguard has not been used, the recommendation is that it should be provided for in this Bill also.

Is the amendment being pressed?

Mr. Ryan

It might be. At the risk of sounding very ancient, I was in the House when the original legislation was introduced, back in the mists of time when, I suspect, the Minister of State had much better things to do with her life than be here. The fact that it has never been used suggests we do not need it. The Bill specifically provides that the ombudsman shall exercise his or her functions independently. Therefore, everybody is precluded from trying to stop the ombudsman carrying out a particular investigation, particularly those in bodies other than Government Departments. For example, where the ombudsman decides to investigate a voluntary hospital, nobody in the voluntary hospital can stop the ombudsman from doing it; only a Government Minister can do so.

I accept it is much better that the Minister has to do so in writing. Most people do not think that Ireland should be a country, governed by law, where Ministers could pick up the telephone and tell the Ombudsman to stop investigations because he or she did not like them. This is not the way most of us believe the country operates. The Ombudsmen of whom I have been aware, starting with Michael Mills, are not the type of people who would have taken that from any Minister if the Minister did not have the statutory power to do so. In the case of the Ombudsman of whom I have been aware in my adult life, if any Government Minister attempted to do something like that, the issue would become a matter of public controversy so quickly that the Minister in question would retreat.

This provision gives power to a Minister which might invite interference on some occasions. This has to be viewed in the context of the almost tooth extracting painfulness of getting information from the Department of Education and Science about files on the abuse of children. The struggles of my former colleague, Pat Gallagher, to get access to Department of Education and Science files on abuse of children in County Offaly did not suggest a huge enthusiasm for investigation by anybody into past history. History is history and I do not blame anybody in Government or the Department of Education and Science for what happened 40 years ago. However, the reluctance to facilitate the investigation is encouraged by sections like this. The Minister of State should look at this again and consider if something much more focused, if anything, should be included. I do not believe there is a need, particularly when dealing with children, for a Government Minister to be able to issue a directive and stop the ombudsman from carrying out his investigation. That is the purpose of the amendment.

I sympathise with what Senator Ryan said. I could not envisage a situation where it would happen. It is interesting to note that in our discussions with the Office of the Ombudsman, it was suggested that the provision be kept for its protection also. I will certainly go back and discuss the matter with both sides but it was interesting that the Office of the Ombudsman considered its inclusion was a protection for it, which is the reason I am not accepting the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 17:

In page 16, subsection (3), line 19, after "State)" to insert "unless the Ombudsman for Children determines that to investigate or to continue to investigate an action would be in the best interest of the child".

This amendment is similar to the case made by Senator Ryan. It concerns the amount of power given to the Minister to stop investigations. The ombudsman can report directly to the Oireachtas and is independent of the Government. Ministers have a veto over investigations into public bodies, such as schools and voluntary hospitals. He or she need only send a written request to the ombudsman. I would have thought the independence of the ombudsman was the most important aspect. The Minister of State has repeatedly stated that children come first, or put simply, children matter.

As we are talking about children, should we retain the right to commence or to proceed with an investigation given that the ombudsman has had the time to investigate the particular issue and has brought it through? The Minister could step in and all the work of the ombudsman would be left aside. Since the ombudsman would be aware of the issues involved, he or she should determine whether to proceed and if it would be in the best interests of the child. That is extremely important and I am surprised so much power is vested in Ministers to stop investigations.

The principle is the same as that of the previous amendment.

I understand what the Minister of State said but I wanted to repeat it.

Is the amendment being pressed?

The Minister of State said she will look at it again.

Amendment, by leave, withdrawn.
Question proposed: "That section 11 stand part of the Bill."

Mr. Ryan

I ask the Cathaoirleach not to think I am being repetitious when I refer to subsection (3) again, as I want to ask the Minister about the subsection, as opposed to my earlier comments which related to the proposal to delete it. The subsection states that, at the request of a Minister, the Ombudsman for Children:

shall not investigate, or shall cease to investigate, an action specified in the request, being an action of–

(a) a Department of State whose functions are assigned to that Minister of the Government, or

(b) a public body. .

Apparently, the ombudsman can continue an investigation into a school—

That is correct.

Mr. Ryan

—or a voluntary hospital and nobody can stop it.

It is an anomaly.

Mr. Ryan

Why is this the case? It seems to me that it either should apply to all bodies or to none. The existing Ombudsman deals with public bodies, but this ombudsman's brief extends beyond public bodies. We may run into constitutional difficulties and issues of fairness may be raised. I do not suggest that we should extend this provision to schools or voluntary hospitals, but rather that to put in what looks like a protection for public bodies, while saying that no such protection will apply to schools or voluntary hospitals, amounts to an invitation to litigation.

Going back to the two reasons I gave, the difference is that while the Minister will be responsible to the Oireachtas for Departments and public bodies, he or she will not be responsible for voluntary bodies and schools. That is why such bodies are excluded. Two protections were mentioned; the protection of the accountability of the Minister to the Oireachtas and the protection of the independence of the Ombudsman for Children. The Minister is not responsible for voluntary hospitals or schools, which is why they are not included in this section of the Bill. I understand that Senators may consider that two tiers will be created,—

Absolutely.

—but the reason for that is the question of accountability.

Mr. Ryan

Let us be careful here. If I want to ask why an assistant teacher has not been appointed to a two-teacher school in a remote part of west Kerry, I can raise the matter on the Adjournment and the Minister for Education and Science, who is accountable, will have to come to the House to discuss it. I do not understand how actions which can be investigated by the ombudsman cannot be, in a similar manner, held to account before the Oireachtas. We have had many discussions in this House about the provision of facilities in voluntary hospitals, especially in relation to how they fit in to the overall provision of health care. I am not convinced we need the distinction the Minister has made. It may be that schools and voluntary hospitals were simply forgotten; it happens more and more often that we are given a post hoc justification in such cases, although I may be wrong.

I am reluctant to say that Senator Ryan is wrong, but the Minister and the Department would be responsible for the allocation of an extra teacher in the example he has given.

Mr. Ryan

Yes.

The investigation of a complaint made in such circumstances is excluded under this Bill. A school might be investigated if, for example, it had a bullying policy which was not being implemented at local level.

Mr. Ryan

That is covered under the Education Act.

It is covered by the Education Act.

Mr. Ryan

The Act provides that the Minister is accountable in the Oireachtas for such an incident.

Yes, but the funding of teachers and resources is primarily a matter for the Department of Education and Science, which is the relevant public body in the context of this Bill.

Mr. Ryan

The idea that an agent of the State, such as the Ombudsman for Children, can be stopped from investigating the State but can investigate private bodies is close to an abuse of power and we may run into problems in that regard. Subsection (3) should be rewritten to say precisely what the Minister of State says it means, to ensure that where a Minister feels something, he or she will have to make a directive. It could be rewritten in a way that reflects the Minister of State's comments and does not leave an anomaly. I do not propose to pursue this anomaly, as I would hate to preclude the possibility of raising the matter again on Report Stage.

Question put and agreed to.
SECTION 12.
Question proposed: "That section 12 stand part of the Bill."

Mr. Ryan

I am concerned that a matter which is covered by the existing Ombudsman will not be included in this Bill. Perhaps the Minister of State will explain why the Government believes section 12 is necessary and Senators can decide whether they want to pursue it thereafter.

Section 12 provides for cross-jurisdictional problems. The current Ombudsman will be allowed to complete an investigation which has commenced prior to the establishment of the Office of the Ombudsman for Children. It is a transitional arrangement to avoid duplication.

Mr. Ryan

Can I ask, as I was not here at the beginning of the debate, if the powers of the Ombudsman for Children are as extensive as those of the existing Ombudsman?

The powers of the Ombudsman for Children are more extensive than the powers of the current Ombudsman.

Mr. Ryan

I thank the Minister of State. I have no further questions.

Question put and agreed to.
SECTION 13.

I move amendment No. 18:

In page 18, between lines 41 and 42, to insert the following new subsection:

"(9) The Ombudsman for Children may as amicus curiae, on his or her own initiative, refer a case to the High Court, or the Supreme Court when exercising its appellate jurisdiction, in respect of the contravention of a right of a child in so far as it affects the rights of all children.”.

This quite specific amendment relates to an issue which came up earlier in a different guise. I do not see any difficulty in allowing the Ombudsman for Children to refer a case to the High Court or the Supreme Court if a certain matter arises, for example an important point or principle of law. The Bill should be extended to give the right of court referral to the ombudsman in important cases of policy which may affect child law.

This amendment is related to a previous one which mentioned the amicus curiae and to the argument we had about protection. I do not see the ombudsman's role as being that of a legal officer and he or she should not have to determine whether or not something should go before the courts, as there are enough bodies and groups performing that function already. I do not envisage the Ombudsman for Children having a legal wing or deciding what should go before the courts. I am content to allow each group follow its own priorities. While the ombudsman will criticise and make recommendations or proposals in relation to those not doing their jobs, he will not take over their jobs.

In many cases, the Ombudsman for Children will take over the jobs because the system has failed up to now. The structures we have put in place should be able to deal with these issues. It is almost as if the Minister of State has cut the powers of the ombudsman at a certain point, which is a shame as he or she will be au fait with the issues. The ombudsman will seek legal advice and will be aware of the legal ramifications; he or she will not refer cases willy-nilly. It may be necessary to give the ombudsman this role. We should constantly underline that we are dealing with the rights of children, who are far more vulnerable than adults who have recourse to various systems. I ask the Minister of State to consider my amendment in the light of the arguments we have made, as each one impinges on the next. The role of the Ombudsman for Children will be far more crucial than that of the current Ombudsman, as he or she will be responsible for human interaction with vulnerable children.

Our policies have to ensure that responsible bodies have the resources, ability and will to do what they should be doing. We should not remove responsibility from them by giving it to the Ombudsman for Children.

I will not press the amendment, but I hope this area can be further examined.

Amendment, by leave, withdrawn.
Question proposed: "That section 13 stand part of the Bill."

Mr. Ryan

I wish to discuss section 13(8), which, referring to publications of reports by the Ombudsman for Children, states that "for the purposes of the law of defamation, any such publication as is hereinafter mentioned shall be absolutely privileged". Is that provision widespread in legislation? I am not aware of it. I do not recall seeing the concept of absolute privilege being written down anywhere except in connection with the utterances of Members of the Houses of the Oireachtas. I wonder if this is a new thing. It may well be in the existing Ombudsman's Act. However, I have been a reasonably assiduous participant in Committee Stage debates on many pieces of legislation and do not recall every seeing the phrase before.

Apparently it is not new and is contained in other legislation. I will provide the details for the Senator.

Question put and agreed to.
Sections 14 to 17, inclusive, agreed to.
SECTION 18.
Question proposed: "That section 18 stand part of the Bill."

Mr. Ryan

Yet again we have an example of something that is beginning to arise in legislation in recent years. Section 18 deals with appearances before the Committee of Public Accounts. Subsection (2) states:

In the performance of his or her duties under this section, the Ombudsman for Children shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.

We have been through this on a succession of Bills and in most cases the Ministers involved have agreed to withdraw that provision. The ombudsman could say that the Opposition's policies were daft or that the policies of professionals in the field were daft, yet would have to remain silent about Government policy. I am not suggesting it would happen but that is what it would mean.

It is not wise for an ombudsman to put himself into a position of confrontation with the Government of the day. However, we should not silence the ombudsman. Most of our Ombudsmen have been tactful, sensible people who do not get involved in unnecessary politicised confrontations. However, that is different from saying they should be prohibited by law from expressing such an opinion. We went through this in the House with the Minister of State at the Department of Public Enterprise, Deputy Jacob, who promptly accepted that it was a silly subsection. He withdrew it on the grounds that one could not have somebody responsible for promoting sustainable energy go before a Dáil committee and be told that he or she could say nothing about Government policy.

I suggest the Minister should think about this between now and Report Stage. What it means is that the ombudsman can criticise the courts, the Opposition, statutory bodies, schools, everybody – the only body the ombudsman cannot criticise is the Government. How is that reconcilable with the fundamental principle that the ombudsman is independent in the exercise of his functions?

I support Senator Ryan. We have had this removed from other Bills. It removes a very important function of the ombudsman if it remains as it is.

It is only in his attendance before the Committee of Public Accounts that he cannot criticise. He can do it in his promotional role. I do not believe it is the function of any independent body to criticise Governments or Ministers, or indeed the policies of the Opposition. That is what we have Government and Opposition for in the Houses of the Oireachtas. We are answerable to the Houses of the Oireachtas. It serves no valuable purpose for anybody to use the opportunity to come before the Committee of Public Accounts simply for point scoring against the politicians, be they Government or Opposition. If in his promotional role he finds that there are policies in relation to children which should be criticised outside, let him do that there. However, our committee system is not there for outsiders to come in to criticise Members. That is what we have good Government and Opposition for.

Mr. Ryan

We had the experience where the then Ombudsman was starved of funds because Charles J. Haughey did not like him. If he had come before the Committee of Public Accounts he would have been asked by the members of the committee why the delays were stretching from three months to a year. Under this subsection he would not be allowed to point out that it was because the Government would not give him enough money. He or she would have to sit there and sing dumb. This is quite unnecessary.

Most of our senior public servants, either in State bodies or otherwise, have enough sense not to get involved in head to head confrontations. One would hope Governments would have the same sense, and they usually do. A ridiculous situation could arise whereby he could issue an inflammatory report outside about public policy, come before the Committee of Public Accounts, but be forced to respond to questions by saying, "You can read my report but I cannot talk about it here." It is pointless and should be withdrawn.

Question put and agreed to.
Sections 19 and 20 agreed to.
SECTION 21.
Government amendment No. 19:
In page 22, subsection (3), line 8, to delete "section 17” and substitute “section 18”.

This section allows for the delegation of functions by the Ombudsman for Children. The amendment is designed to prevent the Ombudsman for Children delegating the function of appearing before the Committee of Public Accounts.

Amendment agreed to.
Section 21, as amended, agreed to.
SCHEDULE 1.

Mr. Ryan

I move amendment No. 20:

In page 25, to delete line 3.

This concerns the bodies which are not regarded as public bodies for the purposes of this Bill. We do not understand why the Garda Síochána should be excluded from this. The way the Garda Síochána deal with children is a matter of genuine concern. I do not mean that in the sense that they are doing something wrong, but it a matter for legitimate concern. Many of the other bodies would only have a marginal role in dealing with children and therefore it is probably fair enough. To exclude the Garda Síochána, however, is to leave a large public body out of the remit.

I have a strong feeling that the Garda Síochána are excluded from the remit of the Ombudsman but this is an entirely different area. My own party's view is that there ought to be an ombudsman for the Garda. If we cannot have that then we believe there is a good case for extending the brief of the Ombudsman for Children to include the activities of the Garda Síochána. There is a need for a different kind of accountability for the Garda Síochána. A structure that was set up in 1922 and hardly changed since cannot accommodate the sort of understanding of public accountability that most citizens of a 21st century state now have.

The Department of Justice, Equality and Law Reform is up to its tricks again, as usual finding ways to exclude itself from difficult issues and excluding fiefdoms as well, as in the case of the Garda Síochána. Our belief is that there is no real reason for that. There is nothing the Garda Síochána do that would be in any way inhibited by the right of an independent figure to monitor how they do their business.

The role of the ombudsman regarding complaints is to investigate maladministration. In relation to the Garda it is difficult to see where maladministration would affect a child. A number of the issues Senator Ryan may be referring to are the types of things that are covered in the Children Act, 2001. Sections of that Act are due to be commenced about the treatment of children in Garda stations and so on. This specifically refers to maladministration The Ombudsman for Children could still use his promotional role in relation to the conduct of administration in the Garda as it relates to children. That is why it is excluded.

Amendment, by leave, withdrawn.
Schedule 1 agreed to.
SCHEDULE 2.

I move amendment No. 21:

In page 26, line 7, after "Limerick", to insert ", and other such hospitals as may be added from time to time".

I expressed my concerns on Second Stage about the fact that children in hospitals, particularly those in psychiatric hospitals, do not seem to be under the remit of the Ombudsman for Children. I know there are difficulties regarding private institutions, although such difficulties do not exist when private facilities are used by a public body, for example the Eastern Regional Health Authority.

Sometimes patients may be admitted in a private capacity to such hospitals and I have heard complaints made by young adults who were admitted to adult institutions, despite the fact that they were children. These young people felt that they had been treated badly, not in terms of the care that they received, but in terms of their overall treatment as children. The Minister for Finance, Deputy McCreevy, is encouraging the building of private hospitals and I would like to think that it would be possible to add any newly-constructed hospitals to the list that is given in this Bill. That is why I put forward this amendment.

We are talking only about those public voluntary hospitals which are outside the area of the ERHA because those within the remit of the ERHA are covered by this legislation. As things stand at the Department of Health and Children, it is not envisaged that additional hospitals within this category will be established and therefore there will be no need for them to be included in the legislation. It is likely that in the future, the voluntary bodies will be coming back into the State system, rather than remaining as private bodies. Unfortunately, there are no cir cumstances in this legislation that would include the strictly private bodies.

Mr. Ryan

I am disappointed with the Minister's response to this issue. There is nothing of fundamental importance here. The Department of Health and Children is attempting to tell us what will happen in the future, and it appears to be telling us with some certainty that it does not envisage a situation arising wherein new hospitals would need to be added to the list.

We now have the strange position where the Oireachtas wants to retain flexibility for future administrations and the Department itself is refusing to acknowledge the desirability of such a situation. How can the Department of Health and Children possibly know what will happen if my party gets into Government, as I hope it will? Under a Labour Party Government, there will be a fundamental change in the way in which the health services are run. Therefore, the Department of Health and Children would be wise to consider the possibility of people other than the present incumbents running the health service.

Apart from this, it seems extraordinary that we could not at least legislate for the possibility that a new institution might need to be added to the list. The possibility of having to return to this House with amended legislation to add in the names of other hospitals would constitute a considerable waste of parliamentary time, when a simple amendment, as proposed by Senator Henry could change all that.

I congratulate Senator Ryan on his splendid contribution to this debate. The Minister should ask the Department of Health and Children to think again, because art is long and time is fleeting and heaven only knows what will happen. I take seriously the urging by the Minister for Finance, Deputy McCreevy, to build private hospitals; great tax incentives have been given to promote such projects. In ten years' time, we might well be in a situation where hospitals exist that are not even dreamt of at this moment by the Department of Health and Children.

The Schedule refers to the public voluntary hospitals, and I think we would all accept that it is highly unlikely that any new hospitals would be established in that sector. Senator Henry is referring to private hospitals and she will be aware from my Second Stage speech that there were significant challenges involved in legislating for voluntary bodies, never mind legislating for private bodies. Private bodies are not included in this legislation at all. We would still be waiting for the legislation if we were to envisage the situation that the Senator describes, which has not occurred anywhere else in the world. Senator Henry's proposed addition to the Schedule does not enhance it, because she refers to private hospitals and there are only three remaining public voluntary hospitals in the country which are not covered by other legislation.

Suppose that the Mercy and the South Infirmary-Victoria hospitals in Cork merged and took on a different name. What would the situation be then?

Section 10(7)(b)(i) allows for changes of name and states:

The Minister may by order amend Schedule 2 and that Schedule shall have effect in accordance with the terms of any orders under this paragraph.

Therefore, changes in name can be dealt with without any need for amending legislation.

Amendment, by leave, withdrawn.
Schedule 2 agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for Thursday, 7 March 2002.
Sitting suspended at 5.30 p.m. and resumed at 6 p.m.