Ombudsman (Defence Forces) Act 2004

Exclusions.

5

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 F2 [ 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—

F3 [ (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.