Ombudsman (Defence Forces) Act 2004

1. Interpretation.

1.—(1) In this Act, unless the context otherwise requires—

“Act of 1954” means the Defence Act 1954;

“Act of 1980” means the Ombudsman Act 1980;

“action” means—

(a) any act that is carried out or any decision made by or on behalf of a person referred to in paragraph (a), (b) or (c) of section 6(1) or paragraph (a), (b) or (c) of section 6(2) , or

(b) a failure by or on behalf of a person referred to in paragraph (a), (b) or (c) of section 6(1) or paragraph (a), (b)or (c) of section 6(2) to carry out an act or make a decision,

but does not include an act or decision referred to in paragraph (a) or a failure to carry out an act or make a decision referred to in paragraph (b) that relates to or affects security or a military operation;

“civil servant” has the meaning assigned to it by the Civil Service Regulation Act 1956 but for the purposes of sections 4(7), 6(1)(c), 6(2)(c) and 9(2) a reference to a civil servant shall be construed as a reference to a civil servant who is or was employed as a civil servant in the Department of Defence and for the purposes of section 6 an action taken by or on behalf of a civil servant shall concern the performance of administrative functions by that civil servant in the Department of Defence;

“complainant” means a person who makes a complaint under section 6;

“complaint” means a complaint made in accordance with section 6;

“Defence Forces” means the Permanent Defence Force referred to in section 19 of the Act of 1954 and the Reserve Defence Force referred to in section 20 of the Act of 1954;

“functions” includes powers and duties and a reference to the performance of a function shall include, with respect to powers, a reference to the exercise of a power;

“investigation officer” has the meaning assigned to it by section 15;

“military operation” means—

(a) active service within the meaning of section 5 of the Act of 1954,

(b) active service as provided for in section 4(1) of the Defence (Amendment) (No. 2) Act 1960,

(c) operational duties at sea, or

(d) the provision of aid to the civil power;

“Minister” means the Minister for Defence;

“Ombudsman” means the person appointed as Ombudsman for the Defence Forces under section 2(2);

“security” means the security or defence of the State;

“service tribunal” has the meaning assigned to it by section 161 of the Act of 1954.

(2) In this Act—

(a) a reference to a section is a reference to a section of this Act, unless it is indicated that a reference to some other enactment is intended,

(b) a reference to a subsection or paragraph is a reference to the subsection or paragraph of the provision in which the reference occurs, unless it is indicated that a reference to some other provision is intended, and

(c) a reference to any enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment.

2. Appointment of Ombudsman.

2.—(1) There is established the office of Ombudsman for the Defence Forces and the holder of the office shall be known as the Ombudsman for the Defence Forces.

(2) The appointment of a person to be the Ombudsman for the Defence Forces shall be made by the President on the recommendation of the Government.

(3) Subject to this Act, a person appointed under subsection (2)shall hold office on such terms and conditions as the Minister may, with the consent of the Minister for Finance, determine.

(4) A person appointed to be the Ombudsman—

(a) may at his or her own request be relieved of office by the President,

(b) may be removed from office by the President but shall not be removed from office except for stated misbehaviour, incapacity or bankruptcy where there is a recommendation for removal by the Government, and

(c) shall, where subsection (8) applies, vacate the office on attaining the prescribed age.

(5) Subject to this section, a person appointed to be the Ombudsman shall hold office for such term as may be specified in the instrument of appointment which term shall not exceed 7 years and such person may be eligible for re-appointment to the office for a second or subsequent term.

(6) If the person holding the office of the Ombudsman is—

(a) nominated as a member of Seanad Éireann, or

(b) elected as a member of either House of the Oireachtas or to the European Parliament, or

(c) regarded, pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act 1997, as having being elected to the European Parliament, or

(d) becomes a member of a local authority,

that person shall thereupon cease to hold the office of Ombudsman.

(7) A person who is for the time being entitled under the Standing Orders of either House of the Oireachtas to sit therein, or who is a member of the European Parliament or a local authority shall, while he or she is so entitled or is such a member, be disqualified from holding the office of Ombudsman.

(8) In respect of any person who is not a new entrant (within the meaning of the Public Service Superannuation (Miscellaneous Provisions) Act 2004) the Minister may, with the consent of the Minister for Finance, prescribe the age at which such a person shall vacate office pursuant to subsection (4)(c).

(9) A person who holds the office of Ombudsman shall not be a member of the Defence Forces or a civil servant.

F1[(10) A person is not eligible to be appointed undersubsection (2)if he or she is or has been at any time during the period of 5 years immediately prior to the closing date to apply under a competition to be the Ombudsman—

(a) a member of the Defence Forces,

(b) a civil servant (within the meaning of the Civil Service Regulation Act 1956) in the Department of Defence, or

(c) a civilian employed by the Minister under section 30(1)(g) of the Act of 1954.]

3. Remuneration and superannuation.

3.—(1) There shall be paid to the holder of the office of Ombudsman such remuneration and allowances for expenses as the Minister, with the consent of the Minister for Finance, may from time to time determine.

(2) The Minister may, with the consent of the Minister for Finance, make and carry out, in accordance with its terms, a scheme or schemes for the granting of superannuation benefits to or in respect of persons who have held the office of Ombudsman as he or she thinks fit.

(3) A scheme referred to in subsection (2) shall fix the time and conditions of retirement for persons in respect of whom superannuation benefits are payable under the scheme, and different times and conditions may be fixed in respect of different classes of persons.

(4) The Minister may at any time, with the consent of the Minister for Finance, make and carry out a scheme or schemes amending or revoking a scheme under this section.

(5) No superannuation benefit shall be granted by the Minister nor shall any other arrangement be entered into by the Minister for the provision of such a benefit to or in respect of the person who holds the office of Ombudsman otherwise than in accordance with a scheme under this section or, if the Minister, with the consent of the Minister for Finance, sanctions the granting of such a benefit, in accordance with that sanction.

(6) A scheme under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the scheme is passed by either such House within the next 21 days on which that House has sat after the scheme is laid before it, the scheme shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

(7) Where a dispute arises as to the claim of any person to, or to the amount of, any superannuation benefit in pursuance of a scheme or schemes under this section, such dispute shall be submitted to the Minister who shall refer it to the Minister for Finance, whose decision shall be final.

(8) In this section, "superannuation benefit” means a pension, gratuity or other allowance payable on resignation, retirement or death.

4. Functions of Ombudsman.

4.—(1) The Ombudsman shall be independent in the performance of his or her functions, and shall at all times have due regard to the operational requirements of the Defence Forces.

(2) Subject to this Act, the Ombudsman may investigate any action that is the subject of a complaint made by a person affected by the action if, having carried out a preliminary examination of the matter, it appears to the Ombudsman that—

(a) the action has or may have adversely affected the complainant,

(b) the action was or may have been—

(i) taken without proper authority,

(ii) taken on irrelevant grounds,

(iii) the result of negligence or carelessness,

(iv) based on erroneous or incomplete information,

(v) improperly discriminatory,

(vi) unreasonable, notwithstanding consideration of the context of the military environment,

(vii) based on undesirable administrative practice, or

(viii) otherwise contrary to fair or sound administration,

(c) the action was not an order issued in the course of a military operation, and

(d) in the case of a serving member of the Defence Forces, the matter is not likely to be resolved and a period of 28 days has expired since the complaint was made under section 114 of the Act of 1954.

(3) The Ombudsman may—

(a) decide not to carry out an investigation under this Act into an action that is the subject of a complaint, or

(b) discontinue an investigation under this Act into an action that is the subject of a complaint,

if he or she is of the opinion that—

(i) the complaint is trivial or vexatious,

(ii) the complainant has an insufficient interest in the matter,

(iii) satisfactory measures to remedy, mitigate or alter the adverse effect of the action on the complainant have been taken or are proposed to be taken, or

(iv) the complainant has not taken reasonable steps to seek redress in respect of the subject matter of the complaint or, if the complainant has taken such steps, he or she has not been refused redress.

F2[(3A) If the complaint is that a person has penalised or threatened penalisation (within the meaning of the Protected Disclosures Act 2014) against, or caused or permitted any other person to penalise or threaten penalisation against, the complainant for having made a protected disclosure (within the meaning of that Act), the Ombudsman—

(a) is not prevented from investigating any action that is the subject of the complaint, and

(b) may not decide not to carry out, and may not decide to discontinue, an investigation into any such action,

because no complaint has been made under section 114 of the Act of 1954.]

(4) It shall not be necessary for the Ombudsman to investigate an action under this Act if he or she is of the opinion that the subject matter concerned has been, is being or will be investigated in a similar manner under another investigation by the Ombudsman under this Act.

(5) A preliminary examination or an investigation by the Ombudsman shall not affect the validity of the action investigated or any power or duty of the person who took the action to take further action with respect to any matters the subject of the preliminary examination or investigation.

(6) In determining whether to initiate, continue or discontinue an investigation under this Act, the Ombudsman shall, subject to the provisions of this Act, act in accordance with his or her own discretion.

(7) A member of the Defence Forces—

(a) who makes a complaint to the Ombudsman concerning an action taken by or on behalf of a civil servant shall not, subsequently, make a complaint about the same matter to the Ombudsman appointed under the Act of 1980, or

(b) who makes a complaint to the Ombudsman appointed under the Act of 1980 in relation to an action taken by or on behalf of a civil servant shall not, subsequently, make a complaint about the same matter to the Ombudsman.

(8) Nothing in subsection (2)(a) or section 6 shall be construed as prohibiting the investigation by the Ombudsman of—

(a) an action that is the subject of a complaint by a complainant which, in the opinion of the Ombudsman, has or may have affected the complainant other than in an official capacity, or

(b) an action that is the subject of a complaint by a complainant which was carried out, or may have been carried out, by a person acting other than in an official capacity.

(9) The Ombudsman shall furnish to the Minister such information regarding the performance of his or her functions as the Minister may from time to time request.

5. Exclusions.

5.—(1) The Ombudsman shall not investigate any complaint concerning an action referred to in section 6(1) or 6(2)—

(a) if the action is one in relation to which—

(i) the complainant has initiated legal proceedings in any civil court and the proceedings have not been dismissed for failure to disclose a cause of action or a complaint justiciable by that court whether the proceedings have been otherwise concluded or have not been concluded, or

(ii) the complainant has a right, conferred by or under statute, of appeal, reference or review to or before a court in the State (not being an appeal, reference or review in relation to a decision of a court),

(b) if the action has been or is the subject of an investigation under F3[Chapter IV of Part V of the Act of 1954] of the Act of 1954 or by a service tribunal and is not an action concerning delay or any other matter concerning the administration of such investigations,

(c) if the Ombudsman is satisfied that the action relates to or affects security or a military operation,

(d) if the action concerns—

(i) any matter relating to the terms or conditions of employment in the Defence Forces, including any matter relating to the negotiation and determination of the rates of remuneration or allowances, which is within the scope of a conciliation and arbitration scheme referred to in section 2(6) of the Defence (Amendment) Act 1990, or

(ii) any matter concerning the organisation, structure and deployment of the Defence Forces,

(e) if the action is one—

F4[(i) involving the exercise of the right or power referred to in Article 13.6 of the Constitution or the remission of any forfeiture or punishment awarded under Chapter IV of Part V of the Act of 1954, by a court-martial or by the Courts-Martial Appeal Court, or]

(ii) that concerns the administration of military prisons or places of detention for the custody of members of the Defence Forces committed to custody by a service tribunal or otherwise,

(f) if the complaint concerned has not been made within the period specified in section 6(3), or

(g) if the action is taken before the commencement of this Act.

(2) Where for security reasons, the Minister so requests in writing (and attaches to the request a statement in writing setting out in full the reasons for the request), the Ombudsman shall not investigate, or shall cease to investigate, an action specified in the request.

(3) Where the Ombudsman receives a request under subsection (2), he or she may apply to the High Court for a declaration that the matter concerned is not of such gravity to warrant such request.

(4) If the High Court is satisfied that it is appropriate to do so it shall make the declaration and the Minister shall withdraw such request.

6. Complaint to Ombudsman.

6.—(1) A serving member of the Defence Forces may, subject to this Act, make a complaint to the Ombudsman concerning an action if it has affected that member and was taken by or on behalf of—

(a) another serving member of the Defence Forces,

(b) a former member of the Defence Forces while he or she was a serving member of the Defence Forces, or

(c) a civil servant.

(2) A former member of the Defence Forces may, subject to this Act, make a complaint to the Ombudsman concerning an action if it has affected that former member and was taken while he or she was a serving member of the Defence Forces by or on behalf of—

(a) a serving member of the Defence Forces,

(b) a former member of the Defence Forces while he or she was a serving member of the Defence Forces, or

(c) a civil servant.

(3) A complainant shall make a complaint referred to in subsections (1) and (2) not later than 12 months from—

(a) the date of the action concerned, or

(b) the date on which the complainant became aware of the action,

whichever is the later.

7. Reports.

7.—(1) Where, following the making of a complaint, the Ombudsman decides not to carry out an investigation or to discontinue an investigation, he or she shall notify the complainant and any person concerned with the complaint, stating the reasons, in writing, for the decision.

(2) Where the Ombudsman conducts an investigation under this Act into an action that is the subject of a complaint, he or she shall send a statement in writing of the results of the investigation to—

(a) the Minister and to all persons concerned with the complaint, and

(b) any other person to whom he or she considers it appropriate to send the statement.

(3) Where, following an investigation under this Act into an action that is the subject of a complaint, it appears to the Ombudsman that the action adversely affected the complainant and is an action falling within subparagraphs (i) to (viii) of section 4(2)(b) he or she may recommend to the Minister—

(a) that the action be further considered,

(b) that measures or specified measures be taken to remedy, mitigate or alter the adverse effect of the action, or

(c) that the reasons for taking the action be given to the Ombudsman,

and, if the Ombudsman thinks fit to do so, he or she may request the Minister to notify him or her within a specified time of a response to the recommendation.

(4) Where the Ombudsman carries out an investigation under this Act into an action that is the subject of a complaint he or she shall notify the complainant of the result of the investigation, the recommendation (if any) made under subsection (3) and the response (if any) made by the Minister.