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Committee on Public Petitions debate -
Thursday, 20 Jan 2022

Annual Reports from 2017 to 2020 and Related Matters: Ombudsman for the Defence Forces

I will read out some formal notices. I remind members of the constitutional requirement that they must be physically present within the confines of the place at which Parliament has chosen to sit, namely, Leinster House, in order to participate in public meetings. I will not permit a member to participate where he or she is not adhering to the constitutional requirement and, therefore, any member who attempts to participate from outside the precincts will be asked to leave the meeting.

I will explain some of the limitations to parliamentary privilege and the practices of the Houses regarding references witnesses may make to another person in their evidence. The evidence of witnesses physically present, or who give evidence from within the parliamentary precincts, is protected pursuant to both the Constitution and statute by absolute privilege. However, they are giving their evidence remotely from a place outside the parliamentary precincts and, as such, may not benefit from the same level of immunity from legal proceedings as a witness physically present does. Witnesses may think it appropriate to take legal advice on this matter.

Members are again reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity, by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that may be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity they will be directed to discontinue their remarks. It is imperative that they comply with such a direction.

We have before us the annual reports of the Ombudsman for the Defence Forces from 2017 to 2020, inclusive, and related matters. I propose that we publish the ombudsman's opening statement and submission on the committee's website. Is that agreed? Agreed.

The Ombudsman for the Defence Forces has appeared before this committee twice, on Wednesday, 29 February 2012, when the committee met Ms Paulyn Marrinan Quinn, SC, and on Wednesday, 5 November 2014, when we met Mr. Tony McCourt. I extend a warm welcome to Mr. Justice Alan Mahon, the current Ombudsman for the Defence Forces, who is accompanied by Mr. Brian O'Neill, head of office for that body.

I suggest the witnesses make their opening statements for approximately ten minutes. We will then have questions and comments from members. Each member will have approximately five minutes, which will allow them to speak more than once. I invite Mr. Justice Alan Mahon to make his opening statement.

Mr. Justice Alan Mahon

As "the Ombudsman for the Defence Forces" is a bit of a mouthful, I will refer to the role as the ODF. I thank the Chairman for the invitation to appear before the committee to discuss the activities of the Office of the ODF over the past number of years.

I will commence by stating that the relevant legislation for the work of my office is the Ombudsman (Defence Forces) Act 2004 and the Defence Act 1954, as amended. My jurisdiction is governed by the provisions of the 2004 Act, in particular. The Office of the Ombudsman for the Defence Forces was created as a result of protracted lobbying by PDFORRA and as an acknowledgment of the need for a transparent, external, independent and rigorous procedure to deal with complaints across the Defence Forces. It provides military personnel with an independent and impartial external statutory complaint investigation system. It is entirely separate, distinct and independent of both the military chain of command and the Department of Defence and complies with the generally recognized principles of ombudsmanship. In that regard, the office is recognised by both the International Ombudsman Association and the International Conference of Ombuds Institutions for the Armed Forces, ICOAF.

On a comparative basis, I should tell the joint committee that there are three models for military ombudsmen throughout the world. The first is where the ombudsman is integrated within the defence forces, which is sometimes referred to as an inspector general. The second model is one in which the ombudsman has exclusive jurisdiction in respect of the operation of an external complaints process and the third is where oversight of the armed forces is subsumed into the functions of the general ombudsman.

In 2004, Ireland opted for the appointment of a civilian ombudsman, entirely independent of the Defence Forces and the Department of Defence, the second of the three models I mentioned. We share this arrangement with Austria, Canada, Germany, Norway, South Africa, the UK, and, more recently, Bosnia and Herzegovina, all of which have similar military ombudsmen. Independence is of critical importance for any ombudsman. International standards show that the primary indicators of independence for ombudsmen are being independent of government and of those they are appointed to oversee.

I am satisfied the 2004 Act contains appropriate statutory provisions for the independence of my office along those lines, and in my experience that independence has always been respected by the Minister for Defence, the Department and the Defence Forces.

Members of the Defence Forces who wish to lodge a complaint concerning a work-related issue are entitled to utilise the decades-old internal investigation process within the Defence Forces, often referred to as the section 114 process. That process provides for the appointment of a military investigation officer who will undertake a detailed inquiry into the matters complained of. If the matter is not resolved at that stage, it is then considered by the complainant's commanding officer, and a final determination is then made by the Chief of Staff. It is quite an exhaustive process and, in my experience, very detailed. It leads, in the great majority of cases, to a resolution. It is always preferable, for all concerned, to have complaints resolved within the organisation, if at all possible. The vast majority of serving personnel request the ODF to intervene only after the full internal investigation process, as outlined, has been exhausted. However, a complainant does have an entitlement, at any stage of the internal process, or indeed by avoiding it altogether, to request the ODF to investigate.

The referral of a complaint to the ODF must take place within 12 months of the date of the occurrence in question or within 12 months of the complainant becoming aware of it, whichever later occurs. There is no limitation period concerning complaints submitted to the Defence Forces, however.

Section 5 of the 2004 Act excludes the following from the jurisdiction of the ODF: security or military operations; organisation, structure and deployment of the Defence Forces; terms and conditions of employment; and the administration of military prisons.

Section 4 of the 2004 Act sets out the types of occurrences or actions that can be investigated. They are actions taken without proper authority; actions taken on irrelevant grounds; the result of negligence or carelessness; based on erroneous or incomplete information; improperly discriminatory; unreasonable, notwithstanding consideration of the context of the military environment; based on undesirable administrative practice; or otherwise contrary to fair or sound administration.

The ODF is not entitled to investigate complaints relating to "an order issued in the course of a military operation". It is not empowered to make an award of damages or compensation.

I should emphasise that the foregoing is simply a brief summary of the main provisions of the 2004 Act regarding the ODF's jurisdiction and is certainly not intended to be exhaustive.

I now wish to turn to some statistical data. Since my appointment in July 2018, a total of 137 complaints have been brought to a conclusion by my office. The majority of these cases dealt with complaints concerning promotion competitions or courses and general maladministration. Detailed statistics are provided in my annual reports.

Of note is the fact that the significant backlog of approximately 100 cases that existed at the time of my appointment in 2018 has been dealt with. Now, in excess of 95% of new referrals are fully investigated and reported on within four weeks. Indeed, in one particularly urgent case in recent times, a complaint was investigated and reported on within 24 hours. In a small number of cases, unavoidable delays occur, primarily in circumstances where there is a need to seek additional information or documentation. It is important to provide a speedy turnaround in complaint referrals because, generally speaking, the nature of most complaints is such that they require a quick decision if justice is to be done.

More generally, with the benefit of experience gained in over three years as ombudsman, I have identified three areas in which I believe the service provided by my office to current and past members of the Defence Forces might be significantly improved. I have advised the Minister for Defence of my views, and I am aware that he and the Department are in the process of considering them. All would require amending legislation. They are as follows. First, section 6(3) of the 2004 Act provides for a limitation period of 12 months in which a complaint must be referred to the ODF in order for it to conduct an investigation. The 12 months is measured from the date of the occurrence or action complained of, as under section 6(3)(a), or 12 months from the date on which the complainant becomes aware of it, as under section 6(3)(b), whichever later occurs.

In a small number of cases over the past three years or so, I have found it necessary to decline to investigate because of these provisions. A number of cases fall foul of the 12-month limitation period because, for example, a complaint might be submitted some months after the date of the occurrence of the action giving rise to it. The internal Defence Forces investigation then takes a number of months to conclude, meaning that the referral to the ODF does not occur until after 12 months have passed. In most instances, the delay will not be the fault of the complainant or, indeed, the Defence Forces. The current legislation affords me no discretion to extend the limitation period, no matter how deserving that might be.

Second, the categories of complaint provided for in section 4 of the 2004 Act, to which I have referred, may not, in my view, adequately provide for certain types of interpersonal complaints, such as inappropriate behaviour, sexual abuse and sexual harassment, to give but a few examples. I have suggested that section 4 be amended to include additional categories.

Third, the Act of 2004 does not permit the ODF to conduct "own initiative" investigations — in other words, investigations that are not dependent on an actual complaint being referred to the ODF by an individual. Such a power, which I believe would be used sparingly, would be beneficial for Defence Forces personnel and for the Defence Forces as a whole. It would permit the ombudsman to target for investigation matters in a proactive manner, detached from any particular complaints. An example might be an investigation into an issue that repeatedly arises in individual complaints, systemic administration failures, or issues of possible gender discrimination. Such a power is being increasingly provided to ombuds-institutions around the globe and here in Ireland — for example, our own public services Ombudsman, the Garda Síochána Commission, the Northern Ireland Public Services Ombudsman, the Canadian defence ombudsman, and ombuds-institutions in Australia and New Zealand, to name but a few.

It would be remiss of me not to take this opportunity to pay tribute to the men and women of Óghlaigh na hÉireann, the Irish Defence Forces, for the work they have undertaken over almost two years in providing aid to the civil power during the Covid-19 pandemic. They have provided vital assistance in a range of activities, including transport and logistics; the provision of medical staff for both testing and vaccination delivery; contact tracing; and mandatory quarantine. They really have been a credit to their uniform. More generally, the Defence Forces are to be congratulated and are widely admired, both at home and abroad, for their invaluable work in their many areas of operation in the Army, Air Corps and Naval Service, including peacekeeping in the Middle East, Africa and elsewhere. Their dedication to duty and the skill sets are impressive. That concludes my opening statement.

I thank Mr. Justice Mahon for the presentation. There are several questions that all the members wish to ask. I will start with a couple and then let others contribute.

I congratulate Mr. Justice Mahon on clearing the backlog. It is unusual to see such a backlog being cleared in such a short space of time. Was it a case of judicial resources allocated to the office for that purpose?

Mr. Justice Alan Mahon

No, my budget is about €450,000 per year. We have operated under that budget for the past several years. There is a surplus of €40,000 or €50,000 per year, which, of course, goes back to the Department. I have not required additional resources or personnel in the office.

Congratulations on clearing the backlog without new resources.

Can we talk about lessons that may have been learned in light of the RTÉ documentary "Women of Honour"? The allegations of gender-based discrimination and violence in our Defence Forces were appalling and extremely worrying.

Without mentioning any names, did Mr. Justice Mahon ever consider or make findings of any allegations of discrimination or sexual assault or a related offence that subsequently arose in connection with Women of Honour? Has he ever met with any of these complainants?

Mr. Justice Alan Mahon

Obviously, I am restricted. I cannot discuss any individual cases.

Yes, I appreciate that.

Mr. Justice Alan Mahon

I do not know and do not have the names of people in the organisation called Women of Honour. I have dealt with only a couple of instances where the sort of complaints that it has highlighted might have been included in the referral to me. I have had very few cases, certainly in my time over the last three or so years, which would fall under the headings of bullying, harassment, sexual harassment or gender issues. I have had just a handful of cases. What has arisen in relation to the Women of Honour and what has come out there are, broadly, matters which I have not had much experience of.

I am just asking in the context of the reports before us today and also to get Mr. Justice Mahon's view on how such allegations were actually handled, in light of the matters raised by those involved in the "Women of Honour" programme and whose experiences go back decades.

Mr. Justice Alan Mahon

One other thing I should emphasise is the fact that because of the 12-month limitation period - which I mentioned in the opening statement - and because most of the allegations that have been made in the Women of Honour programmes and interviews are relatively historical in nature, these may be reasons most of them would not have been referred to my office. They would go back a number of years and I do not have the jurisdiction to deal with complaints that are more than one year old.

In Mr. Justice Mahon's report for 2020, he said that there has been an increase in the number of bullying-type complaints. He suggests that this is not necessarily because there is an increase of incidents of bullying in the Defence Forces in recent times, rather that it is because of a greater awareness generally of such activity and the availability of a more receptive and sensitive grievance process when it occurs. What leads him to believe this is the case?

Mr. Justice Alan Mahon

I will make two points about that. First of all, I would believe it is the case that - and this is clear from what has emerged in relation to the Women of Honour - there is a greater possibility now that bullying and harassment will be the subject of complaints. There is a greater reception, generally, for such complaints. A lot of this is anecdotal, but the Defence Forces are in a better position now and are more prepared to deal with complaints of that nature that are made to them.

The Chair referenced something I said in the 2020 report. Certainly, during the latter half of 2020 there seemed to be more bullying-type complaints being referred to me than previously, hence the remark I made. In 2021, though the report from that year has not quite been concluded yet, that tendency or increase which appeared to be emerging has not followed through. There have been fewer bullying-type complaints that have come my way in 2021 than in 2020. I do not know why this is so. I would like to think that it is because there is less bullying than there had been in the past. Possibly that is the answer, but I do not know.

One quick question and then I will let in other members. It has been said that the current rate of personnel turnover in the Defence Forces will see a continued decline in numbers. Are there any issues that you have deliberated that could be active factors in this low level of uptake? Do you have any suggestions that may help to resolve that?

Mr. Justice Alan Mahon

The Chair is probably aware that I have no role, nor do I have any jurisdiction, in relation to pay and conditions in the Defence Forces. That has been the subject of many public accounts over the past 12 to 18 months. I am aware of the fact that the numbers in the Defence Forces have dropped. There has been a recruitment campaign in recent times but I do not know how successful it has been. My work would not suggest any particular reason those issues have arisen in the Defence Forces.

I welcome Mr. Justice Mahon to the meeting and thank him for his work. I commend him on his proactivity in his addressing the backlog and in his handling of his role. The civilian Ombudsman for the Defence Forces, ODF, is one that works very well.

In the context of where the Chair started from regarding the Women of Honour, I understand from Mr. Justice Mahon's presentation to us and researching that there is a 12-month window of opportunity to make a complaint. Is that within 12 months of the actual event or within 12 months of becoming aware of the action? Is there merit in changing that time period or is there a particular reason that period should remain at 12 months?

Mr. Justice Alan Mahon

I would strongly be of the view that 12 months is too short. First, making a complaint in the Defence Forces does not carry any limitation period. The limitation period applies to the time in which the complaint must find its way into my office. I would think 12 months is very short because in practice it will often be the case that an individual who wants to make a complaint perhaps takes some time to consider whether he or she will make a complaint. It is good that people would sit and think about it for a while. Perhaps they will lodge a complaint within the Defence Forces two or three months after the incident that gives rise to the complaint. The Defence Forces, particularly if it is anything complex, will take a number of months at a minimum to investigate. If the individual waits until that process has concluded and decides to then refer the complaint to my office because he or she is not satisfied with the outcome, at that stage the 12 months is probably almost up. It may well be, and it does happen in some cases, very unfortunately, that it is 15 to 18 months later. Although it is a matter ultimately for the Oireachtas, my preference would be that it should be two years rather than 12 months.

Although a matter ultimately for the Oireachtas, my preference would be that it should be two years rather than 12 months. Many of the cases I have had to reject because they exceeded the limitation period would have survived if it had between two years rather than one year.

Arising from Mr. Justice Mahon's comments, I propose that the committee meet in private session at its earliest convenience to look at the issue of extending the complaint period beyond 12 months with a view to amendment of the legislation and the process. Mr. Justice Mahon has given a very good response.

Mr. Justice Mahon's comment in regard to the Women of Honour does not necessarily address some of the issues because they are historical complaints and issues. It is not my intent to put Mr. Justice Mahon on the spot, but the issue of the Women of Honour is one that has alarmed and upset all of us. It is matter that in my opinion should not have had to be highlighted by way of an RTÉ documentary. There should be other means by which the women could come forward. In the context of the Ombudsman for the Defence Forces, should there be an avenue such as own initiative investigation, or such other wording that can be used, as part of that process or does Mr. Justice McMahon believe it would be inappropriate for the office to be part of that?

Mr. Justice Alan Mahon

It is my understanding that the Minister is in the process of setting up some type of inquiry into the Women of Honour allegations. I assume that will proceed. Obviously, I will not be on that inquiry. I am sure the inquiry, when set up, may well want to talk to me about the process I have in place and how I deal with complaints. Many of the Women of Honour allegations, which are obviously very serious, date back a number of years. I cannot see any basis on which my office would become involved in dealing with the historical cases. What needs to be looked at is whether in the future similar type claims could be referred to my office.

I have some reservations. As mentioned in my opening statement, I have some concern about the limited jurisdiction I have in terms of the categories of complaint that I can consider. For example, a complaint of sexual harassment would be one that is probably not covered by the provisions of the legislation that govern the work I do. That needs to be looked at. I have advised the Minister and the Department of my concern and I know that advice is the subject of consideration by the Minister at this time.

I will make two final points. Mr. Justice Mahon's remarks are ones that we should take cognisance of and reflect upon as part of our work programme. On the issue of complaints about Defence Forces personnel, has Mr. Justice Mahon received any complaints or made any inquiries in regard to members of the Defence Forces, retired or current, being involved in far right activities and the use of Defence Forces videos, trademarks, uniforms and insignia on social media and in expressing hate speech?

Mr. Justice Alan Mahon

I do not think so. I have dealt with one or two bullying claims, where issues were published on Facebook, but they were more of a personal nature.

If they are personal, should they be allowed given the personnel are members or former members of the Defence Forces? It is a bit like a priest in Melchizedeke of old - once a priest always a priest.

Mr. Justice Alan Mahon

Could the Senator repeat the question?

What is the position in the case of a private citizen who is a retired member of the Defence Forces? Is a retired member of the Defence Forces always a member of the Defence Forces?

Mr. Justice Alan Mahon


A personal viewpoint is not necessarily a viewpoint as a member of the Defence Forces, similar to as applies to us as politicians or applied to Mr. Justice Mahon when a member of the Judiciary.

Mr. Justice Alan Mahon

I have not had any particular issue. There was one case involving a Facebook reference by one member of the Defence Forces that had upset another member of the Defence Forces. That was simply an interpersonal issue between members of the Defence Forces.

I thank Mr. Justice Mahon for engaging with us today. I know it is not his job or task, but the new section of the Office of Ombudsman for the Defence Forces website has not been updated since October 2019. I accept we have had a pandemic. I appreciate the work of the Ombudsman on our behalf. It is important that we have full confidence in that office and that it is properly resourced. I thank Mr. Justice Mahon for his work and public service.

I thank Senator Buttimer. The next speaker is Deputy Pat Buckley.

I thank Mr. Justice Mahon for his opening statement. As many of the issues have been already covered, I will be brief. In his opening statement, Mr. Justice Mahon mentioned that the section 114 process is limited. I heard some of his earlier comments and responses. We have engaged with a number of ombudspersons over the past 12 months. In fairness, they are exemplary in their work. The Office of the Ombudsman for the Defence Forces appears to have less power. In section 3 of his opening statement Mr. Justice Mahon mentioned the possibility of sexual or inappropriate behaviour and that he does not have the powers to investigate in that regard. I note he suggested that section 4 of the 2004 Act be amended to include these additional categories. We will certainly look at that. As I said, ombudsman offices are extremely important. They are vital. If the Office of the Ombudsman for the Defence Forces does not have the powers to investigate, it is up against a brick way straight away. The committee will certainly look into that matter.

I have two questions. I refer to the Trade Union (An Garda Síochána and Defence Forces) Bill 2017 in regard to union representation and greater say within those organisations. I would welcome Mr. Justice Mahon's opinion on those organisations getting that representation.

There is another issue that is very close to my heart, which I have dealt with previously in regard to the Defence Forces, namely, death through suicide. I recall that a number of years ago I tabled many parliamentary questions on this matter. Mr. Justice Mahon and his office probably met some bit of resistance or choice words. Unfortunately, the individual died on site. I found out that it was not deemed suicide. It was called alleged discharge. The Army does not determine how a death occurs. That is the job of the coroner. The body of the unfortunate person, therefore, is removed from the premises. It is no longer on site, but in the coroner's office. The coroner decides whether the person died by suicide. Has Mr. Justice Mahon come across any other incidences within any of the Defence Forces in regard to these issues? It is not about who is hiding it. We are trying to facilitate members of all of our Defence Forces. While they do an amazing job, they seem to be fairly restricted in themselves. Following on from Mr. Justice Mahon's opening remarks it appears that as the ombudsman for those services, he is extremely restricted in terms of what he can do. If members and the ombudsman cannot communicate, it is going to be very difficult to help each other.

Mr. Justice Alan Mahon

The section 114 process is quite an elaborate process. It is the internal inquiry process that the Defence Forces operate.

Looking at it, it is quite impressive in the way it works in the sense that there are at least three layers of investigation, with the last being the decision of the Chief of Staff. I would not think one would find that level of internal investigation process even in any other large organisation. Clearly, I do not always agree with the outcome of investigation being undertaken by the Defence Forces but it is a good process. To design it any better would probably be difficult. All these processes are ultimately dependent on who is operating them on the ground.

I have a fair degree of jurisdiction but there are some areas that perhaps, in fairness, in 2004 would not have been thought of as being terribly important. There are certain areas that really need to be updated and many of them relate to interpersonal matters, such as bullying, gender issues, sexual harassment and so on. One of the categories I can deal with, and I have done so on a couple of occasions, is where something is improperly discriminatory. I can deal with discrimination based on gender, for example, and I have had cases relating to pregnant women in the Defence Forces and women on maternity leave. Matters of that nature have arisen in a very small number of cases. I am satisfied I have jurisdiction to deal with those.

What concerns me is a case that has now become very topical with the "Women of Honour" programme, and that is a case where somebody makes an allegation of sexual harassment against another member of the Defence Forces and similar areas such as certain types of bullying. It is in that area I would like to see some added jurisdiction. Cases falling in those categories have been very few and far between to date but I expect, because of all the publicity in the past few months and particularly relating to the "Women of Honour" programme and so on, that the numbers of these cases will increase. I would like to be better able to deal with them.

I thank the ombudsman. We all know people from all walks of life within the Defence Forces and we are well aware of the all the absolutely amazing work they have done. There are ex-members who, when they left the service, were delighted with the work they did. There are, however, many examples of post-traumatic stress disorder and the supports do not seem to be there for those members. I spoke to a gentleman recently, perhaps two or three days ago, who had met a poor gentleman who had been injured very badly on one of the peace missions a number of years ago. He is homeless but falls outside this remit because he is an ex-member of the Defence Forces. I do not like using the word "power" but the Ombudsman for the Defence Forces should be given more strength in depth to investigate and assist people. Is there provision for helping such people, who might have fallen by the wayside and perhaps been forgotten about when they did so much for their country and have been proud to wear the uniform of their country? They may have participated in peace missions or whatever.

We must congratulate all members of the Defence Forces for their work during this pandemic. They have gone well above and beyond for the pennies and not the pounds they are paid to assist people. That should be acknowledged as well.

My final point concerns the reporting within the Defence Forces. I mentioned suicides on site or harassment etc. Senator Buttimer mentioned it might be no harm to have an extra meeting with the witness at some future point to formulate some recommendations for assisting and strengthening the Ombudsman for the Defence Forces under legislation. This is about assisting; in that the Ombudsman for the Defence Forces should have enough power to assist the people it represents and we, as public representatives, should also be assisting the office and vice versa. The people benefiting from this should be the members of the Defence Forces and those who have left the Defence Forces. I will leave it at that. I thank the ombudsman again for the in-depth report.

Mr. Justice Alan Mahon

I thank the Deputy.

Mr. Justice Mahon is very welcome to this afternoon's meeting. I also welcome the person in the ombudsman's office, Mr. Brian O'Neill, who prior to Mr. Justice Mahon's appointment was very responsive, together with the previous ombudsman, to any request my office put in. I am delighted to see Mr. O'Neill taking notes and keeping abreast of what goes on with the Oireachtas committee.

I wore the uniform, and I should say I wore rank while in uniform on my sleeve and not my shoulder, not that it makes much difference these days. One matter that seems to come to Mr. Justice Mahon's office is bullying in the workplace. In my later career as a teacher and trade union official, bullying was a matter that frequently came to my attention. I am acutely aware of the difference between bullying and robust management, and how one sometimes morphs into the other. When we are running potential non-commissioned officer courses or similar courses in the cadet college, should there be a module dealing specifically with bullying, how to recognise it and how to avoid being caught in a bullying argument or complaint?

Mr. Justice Alan Mahon

The Senator mentioned he was proud to have worn the uniform. To clarify, I have also worn the uniform in that I was in the Fórsa Cosanta Áitiúil, FCA, for two years in my late teens. I reached the dizzy heights of a three-star private before I left.

Bullying was almost unknown as a subject that was spoken about 20, 30 or 40 years ago. It is now a very real issue and in any large institution such as the Defence Forces, there must be a very proactive campaign and process to identify bullying where it exists and to deal with it. I have fairly limited information or knowledge about this but the Defence Forces of today are making a much better effort to deal with bullying and the issues arising from it. Certainly, the increase in bullying claims I thought were coming my way perhaps 18 months ago has not materialised. My hope is either there is less bullying or that what bullying is there is being more quickly identified and dealt with.

That is excellent. Prior to the appointment of Mr. Justice Mahon, one of the first cases I encountered as a Senator was a complaint that had been brought to the ombudsman by an officer of the Defence Forces. The who or the where is irrelevant at this point. An extremely thorough investigation was carried out. Having gone through the entire Defence Forces appeals system and failed, the case was upheld by the ombudsman. It was quite a serious case.

The Defence Forces decided to batten down and lock down, that this would go away in time. The Department and the Minister decided to ignore the really exceptionally detailed report of the ombudsman. I personally brought the case twice to the Minister by way of Commencement matters in the Seanad and failed to get any action on it. Eventually I put a legal team together for the man. He took the matter to the courts and I believe that he came out with a satisfactory settlement. This calls into question the level of co-operation the ombudsman's office gets with the Department and with the Defence Forces. From my time in the service, I remember that we tended to be rather insular in our approach to things and, for example, we did not like people from other units coming in to examine something in our unit. It is not that it ever happened that much but when I was serving we worked together and we would be slow to accept an outsider coming in to look at something. On the issue of co-operation, I wonder about the level of co-operation, with the Department, the Defence Forces' general staff, as well as the battalion and company commanders and so on. Do the witnesses find that there is an insular approach? Are they open to the ombudsman's suggestions and are they implementing them?

Mr. Justice Alan Mahon

In general, I have had excellent co-operation from the Department and from the Defence Forces. On an almost daily basis, I have been looking for information documentation from both organisations and I tend to get this very quickly. I have never been refused any co-operation. Between my office and the Defence Forces there is a Defence Forces liaison officer who deals with requests for further information that come from my office. I consider that liaison office to be highly efficient. I have never run into any difficulty in getting additional information. As the Senator is aware, the power I have is to make recommendations when I issue a report. Those recommendations lead to the Minister. In 2020 I had 12 recommendations. In that year I issued 25 reports and the 12 recommendations. All of those have been accepted by the Minister. In 2021 I made 15 recommendations and a number of those been accepted. There is a bit of time between making the recommendation and it getting accepted because often the Minister would have to discuss it with the Defence Forces, including perhaps how to implement something that I am recommending. Certainly, in 2020, which was the last full year, 12 recommendations were made and 12 were accepted. I could not expect better than that.

Absolutely, and I am delighted to hear that. Mr. O'Neill is aware of the case I refer to, and he may discuss it with the ombudsman at a later stage.

Mr. Justice Alan Mahon

I am aware of it too.

I believe it was settled before Mr. Justice Mahon's appointment or perhaps just afterwards, I cannot remember. It is always detrimental to the process if, having gone through all of the hoops and having had a favourable recommendation from the ombudsman's office, a person then must actually go through the legal system to get some sort of resolution. That is always bad and I am delighted to hear that the ombudsman's recommendations are being taken up and agreed. That is really good news. Reference was made in the presentation to the proactive nature of the ombudsman's office. I too would like to see a situation where the office could proactively engage in matters that it believes are of concern and need to be sorted out. Perhaps at our next meeting, the ombudsman might be able to bring forward amendments to the legislation that would facilitate that.

Some of my colleagues have mentioned those people who were in uniform and who now are on the far right and who say the most horrendous things online and in social media and make the most horrendous attacks, not just on the Government but also on serving members. There is another group involved in allegations who have cases before the courts. When they come to an elected representative and when we hear the case we are immediately sympathetic but then we are told that the case is before the courts and of course it is sub judice at that stage. We then come in for the most horrendous bullying and harassment online for not taking action on that person's behalf. In some ways, I wish that they had access to the ombudsman's office in order that the issues could be resolved speedily. In other way, perhaps if they did have access they may turn their ire onto that office. I will not delay Mr. Justice Mahon any longer. I really appreciate his time. I appreciate Mr. O'Neill being here also and I look forward to working with the Office of the Ombudsman for the Defence Forces over the coming years.

I thank our witnesses for their opening remarks at their responses. I apologise for my delay because I am attending another committee at the same time. I thank Mr. Justice Mahon for the presentation and for the answers he has given.

I want to touch on a few items if I may. Perhaps these questions have been answered already but I would appreciate responses to them.

I was looking at the number of complaints in the various annual reports from 2017 right through to 2020. To take one figure in isolation, which stood out to me, is the Air Corps. The figures are broken down, and maladministration is a category in the 2017 to 2018 report. There are 18 cases. I am unsure as to whether they are initial complaints or if they are complaints that went through an initial process and then went on to be investigated. In 2019, again for the Air Corps, the category of maladministration cases dropped to eight and in 2020 to two cases. Without drilling into every category in every single aspect of the Defence Forces, will Mr Justice Mahon elaborate please on why there was such a high figure? Was that report amalgamated between 2017 and 2018? Even if so, it is still higher than the previous years. I will lead with this question first please.

Mr. Justice Alan Mahon

I believe the explanation is that I started this job-----


Mr. Justice Alan Mahon

----- in 2017 had retired from the position about three quarters of the way through the year, so there was no report done. I amalgamated the 2017-18 report because of the huge numbers of cases waiting to be dealt with. This is why there are quite high numbers for maladministration for those years 2017-18.

In 2019, 2020 and 2021, obviously numbers-----


Mr. Justice Alan Mahon

That probably explains why the figures dropped significantly in that particular category. There is quite a variation between one year and the next.

Mr. Justice Alan Mahon

Sometimes, for example, promotion issues can be a considerable feature in one year and less of a feature the second year. That is just the way it operates.

I am going to discuss some of the statistics from the annual report in a few moments. Will Mr. Justice Mahon give the committee an overall breakdown of the complaints from a gender perspective? Have there been more complaints over the years from females than there have been from males? What about over the past 12 months? Does Mr. Justice Mahon have that figure? Does he have a breakdown of the numbers of complaints received from serving members and retired members?

Mr. Justice Alan Mahon

There are very few cases relating to retired members. What happens on occasion is that a complaint starts when somebody is serving and that person is then discharged, perhaps for a reason unconnected with the complaint. When I am starting such a case, the member is serving and when I am concluding it, the member has been discharged.

I do not have the breakdown of figures between male and female complainants. Obviously the cases involving females would be much smaller in number because they are a small percentage of the overall numbers in the Defence Forces. One of the things I noticed was a significant increase in the numbers of officer complaints from 2019 compared with previous years and that continued into 2021. I do not know why that is the case. Going back a number of years, officer complaints were small in number whereas they are now a bigger percentage of the overall.

Will Mr. Justice Mahon give a note to the committee containing a breakdown of those complaints by gender and the numbers of complainants who are retired and the numbers who are still serving? I heard what he said about the lacuna between the time a member is serving and when they transition into retirement. However, it might be of interest to the committee, particularly in the context of our report, if there were such a breakdown.

Mr. Justice Alan Mahon

I can and will give that breakdown, but retired members comprise a small percentage of complainants.

Mr. Justice Mahon answered a question from one of my colleagues a little while ago relating to the "Women of Honour" programme, which brought to light a worrying trend or culture that may have existed within the Defence Forces. I heard what Mr. Justice Mahon said about the 2004 Act, which gives him the powers to carry out his role. The customer charter quotes section 4(2)(b)(vi) of the Act, referring to an occasion where the subject of a complaint was an action that was "unreasonable, notwithstanding consideration of the context of the military environment". Section 4(2)(c) refers to an action that "was not an order issued in the course of a military operation". Section 6(3) of the Act states, "A complainant shall make a complaint referred to in subsections (1) and (2) not later than 12 months". I heard Mr. Justice Mahon say the content of "Women of Honour" fell outside of his jurisdiction unless there was legislative change. Is there a willingness or a desire on the part of serving members, in particular, to come forward or is there a reluctance to come forward to the ombudsman with complaints?

Mr. Justice Alan Mahon

I do not-----

Is there a fear factor? I am wondering if we are seeing the true volume.

Mr. Justice Alan Mahon

The vast majority of individuals who bring complaints to my office have gone through the internal Defence Forces investigation process, so they are clearly not afraid to do that. Taking the further step of coming to my office would not be a big thing for them because they have been through the process. I am aware the vast majority of cases that go into the internal Defence Forces investigation system are resolved before they would come to me. I am obviously not quite certain how they are resolved and would not have that information, but most of those cases are sorted out within the Defence Forces. It is only a small minority of cases that go through the process, and because an individual does not like the outcome, a case then comes to my office. I am not aware of any reluctance to take that final step, if that answers the Deputy's question.

It does, and Mr. Justice Mahon is right about the internal process. If people have already taken that step, it would be no harm for them to go on to the ombudsman if they are not satisfied with the internal resolution of the case. That is fine. Does Mr. Justice Mahon also look at complaints from those in the Reserve Defence Force?

Mr. Justice Alan Mahon

I do.

If Mr. Justice Mahon is going to send a note containing figures to the committee after the meeting, I would ask him to include the figures for the Reserve Defence Force. That would be of interest to me. It is an important figure.

Mr. Justice Alan Mahon

We do deal with claims from the Reserve Defence Force. I will give those figures to the committee but they are minuscule.

Would a rough estimate, to which I will not hold Mr. Justice Mahon, be that 80% of the complaints come from serving members, 10% from the Reserve Defence Force and 10% from retired members? Would retired members comprise even 10% of complaints?

Mr. Justice Alan Mahon

If I had to guess, and I will probably get this wrong-----

That is all right. We are not going to hold Mr. Justice Mahon to his figures.

Mr. Justice Alan Mahon

-----I would say that 85% of complaints come from serving members, 10% from retired members and 5% or less from the Reserve Defence Force. Those figures may be a little wrong.

Mr. Justice Mahon spoke of his recommendations a short while ago, and that the Defence Forces have taken those on board, which is good news. Is there a follow-up on the recommendations Mr. Justice Mahon makes? Are there checks and balances from his own office? Does he have the resources to do that?

Mr. Justice Alan Mahon

We can ask for follow-up. We would get some sort of feedback but it would be much further down the road. Many of the recommendations require a lot of work on the part of the Minister and the Defence Forces, so it could be a year or 18 months later by the time I could expect to find out if the recommendations have actually been implemented. Some of the recommendations might require the amendment of Defence Forces regulations or legislation. That can take much longer.

Of course it can, yes. In his opening statement, Mr. Justice Mahon mentioned the fact that in excess of 95% of new referrals are fully investigated and reported on within four weeks. When he said "reported on", did that mean those cases are investigated and a response has issued to the complainant or did it mean an internal report has been compiled?

Mr. Justice Alan Mahon

The four weeks covers the time at which the case is referred to me and I am seeing it for the very first time until the time I get a final report to the individual. A copy of that final report goes to the Minister and another to the Chief of Staff. A recommendation is made, if that arises. Not all reports include a recommendation.

That four weeks would allow a little time for getting some additional information. That is from start to finish. I think anyone can understand that the nature of most of the complaints is that they require a pretty quick turnaround. For example, it may be to do with a promotion competition that is to be held in two weeks' time, or whatever. That is why it is important to get the reports back. Occasionally, a report takes longer, because perhaps much more detailed information is necessary, or even an interview with the complainant is required.

I think it is a remarkable timeframe. For 95% of the cases to be dealt with in that timeframe is very impressive, I must say. It is probably appreciated by those who are making the complaints, because they know where they stand after that investigation.

Finally, I wish to turn to the issue of Women of Honour. In Mr. Justice Mahon's opening statement, he mentioned other jurisdictions, such as Austria, Canada, Germany, Norway and South Africa. Perhaps the ombudsmen in those jurisdictions come across similar issues of serving female members of their defence forces or armies. Changes could be made to the 2004 Act to give the Office of the Ombudsman for the Defence Forces more powers to investigate those complaints or at least have another avenue for individuals to come to the office with allegations of sexual complaints, intimidation or anything else. Is that something that other jurisdictions have, or other ombudsmen have in those jurisdictions? How does the ombudsman see the best avenue for those individuals to make a complaint? Is it through an ombudsman-style office, or a different course of action that is taken in other jurisdictions?

Mr. Justice Alan Mahon

Different countries have different systems, but I know the UK Service Complaints Ombudsman has quite extensive jurisdiction in terms of dealing with, for example, bullying issues, including harassment. In Canada, the National Defence and Canadian Armed Forces Ombudsman has quite extensive powers. In fact, the Canadians have done exhaustive, detailed work on the whole area of sexual harassment and gender issues within the defence forces. They have done quite an impressive piece of work. Other ombudsman institutions have perhaps more extensive jurisdiction that we have, but if I were to look close enough, I would probably find others that do not even have the level of jurisdiction that I have.

That is something we might consider in terms of our own recommendations as a committee, subsequently. I thank Mr. Justice Mahon and Mr. O'Neill for their attendance and for their answers to the questions of the committee members.

I do not see any other hands up, so I will come back in myself. I wish to return to the issue of section 4, which was raised by Deputy Devlin. In Mr. Justice Mahon's opening address he stated that the provisions in section 4 of the 2004 Act do not go far enough to "adequately provide for certain types of interpersonal complaints, such as, for example, inappropriate behaviour, sexual abuse and sexual harassment." What types of limitations does that result in for the ombudsman? These are very serious issues. If the ombudsman is being impeded in addressing such serious allegations, that issue really needs to be addressed.

Mr. Justice Alan Mahon

Section 4 sets out the types of occurrences or actions that I can investigate. It is an important section in relation to my jurisdiction. Unless a case comes before me that I can reasonably and comfortably fit into one of the eight categories, then there is a question mark about my jurisdiction. Looking at the categories, in my view they do not adequately deal with any sort of interpersonal-type activity or misbehaviour. Therefore, I would be anxious that a number of categories would be added to that to deal with bullying, interpersonal and gender issues. There are probably five or six that could be added to it so as to give a comprehensive jurisdiction. I have dealt with bullying claims and no issue has arisen, but I do have concerns about the limits imposed by the categories in section 4.

Another issue that concerns me is the use of language in the categorisation of the nature of the complaints that are referred to the Office of the Ombudsman for the Defence Forces. I refer to the use of the term "interpersonal issues" in one category. Mr. Justice Mahon stated that this category covers elements of personality conflict, allegations of inappropriate behaviour or bullying. Allegations of inappropriate behaviour or bullying have significant potential to be very serious and have far-reaching implications. Does the language used in assigning the umbrella term "interpersonal issues" actually disguise the very serious nature of the allegation types that it covers? Does the ombudsman think that more descriptive language should be used in categorising the nature of the complaints in his reports?

Mr. Justice Alan Mahon

I think that bullying is a widely used term. It deals with a list of abusive behaviour. Obviously, if section 4 was amended-----

I think we have lost Mr. Justice Mahon.

Mr. Justice Alan Mahon

-----it would probably allow for a lot of the issues that have arisen with regard to, for example, the Women of Honour, to be dealt with by the Ombudsman. I am not suggesting that I should be given jurisdiction. I cannot award compensation. I am not looking for that additional jurisdiction. Obviously, some people who bring bullying-type claims probably want that as a possibility at the end of the day. Certainly, I would welcome some categories in addition to those that are currently set out in section 4 so that I could deal with claims of that nature.

If the Office of the Ombudsman for the Defence Forces were ever to reach a finding in relation to a matter on which another forum subsequently came to a different conclusion, would it revise its initial findings or amend the report? Is there a process there to do that?

Mr. Justice Alan Mahon

No. It would depend on the case that was made to the other forum. As a general rule, I produce the report based on the information that I have. Another forum perhaps with more extensive powers, including more extensive powers of investigation, might reach a different outcome, in the same way as courts in different jurisdictions can often arrive at different outcomes. As a general rule, I would not amend a report because a different forum arrived at a different outcome. I would not necessarily know what case was made to that other forum, even though the individual concerned might be the same.

If a Minister were to change his views on a matter, where he initially supported the findings of the ombudsman, what would be the response?

Mr. Justice Alan Mahon

I do not know because my interaction with the Minister would conclude in terms of any particular case when I would make a recommendation and he would either accept or reject it. As I have said, in almost all cases he has accepted my recommendations. The case is closed as far as I am concerned at that stage, so what the Minister would do afterwards would be a matter for himself.

Is there anything missing in terms of Mr. Justice Mahon's powers that would assist him to better carry out his work? As mentioned by Senator Buttimer and others, is there something that perhaps we could try to change in legislation? Is there any specific thing that is stopping the ombudsman-----

Mr. Justice Alan Mahon

There are the three areas I mentioned towards the end of my opening statement, namely, extending the limitation period, adding to the categories in section 4, and there is own initiative, or what is sometimes called own motion, inquiries, which would be of significant benefit. At the moment I have to get a complainant raising a particular risk for me to investigate and report on that particular issue, whereas you do see complaints which perhaps you might feel should be addressed in more general terms. I would welcome the power to conduct own initiative inquiries. The Ombudsman for public services in Ireland has it, as do the Garda Síochána Ombudsman Commission, GSOC, and the Northern Ireland Public Services Ombudsman services. It is a power that has been generally provided to ombudsman institutions around the globe, so that would be very welcome.

Like other speakers have said, we will work closely with Mr. Justice Mahon's office.

The ombudsman referenced the special reports that may be done by his office and they perhaps come from the route from the Minister's office. How many special reports has the ombudsman's office completed since its foundation in 2005? Does Mr. Justice Mahon know how many special reports have been completed or have there been any?

Mr. Justice Alan Mahon

Not in my time, but I do not know and I would have to look for that information.

Mr. Justice Mahon might send a note on that, please, if he would not mind. Sticking with the December 2005 date from when cases could be taken, were there any cases that pre-dated 2005? I accept this pre-dates Mr. Justice Mahon's time. If there were such cases and assuming they would have fallen into the scope of the work of the ombudsman had they been post December 2005, what happened to those individuals, have they been left in limbo, and have there been many of them?

Mr. Justice Alan Mahon

That is an interesting question. I do not have the answer to it. There was a process before my Act where individuals could bring their complaints to the Minister. In fact, I think part of the idea behind the creation of the Office of the Ombudsman for the Defence Forces was to create a separate independent means of dealing with appeals from the section 114 internal investigation process. I imagine the type of claims that now come to the ombudsman would have gone directly to the Minister before 2005. That is probably the answer to that question.

If the office has any information on that, it would of interest to me. I say that because if we are looking at legislation and the power that gives the office that right, we need to be sure about this issue. I would not like to think there are cases from before 2005 that have been declined on the basis of the date of the complaint.

I note the ombudsman said he is excluded from investigating certain matters such as structures, the deployment of Defence Forces, and terms and conditions of employment. Why is the conciliation and arbitration scheme specifically excluded or is that just something Mr. Justice Mahon highlighted in his presentation?

Mr. Justice Alan Mahon

No. The Act specifically excludes me dealing with complaints relating to pay and conditions in the sense of the adequacy of pay or an increase in pay. I can and do deal with and I do get a certain number of cases where an individual would complain that an allowance, which he or she thinks he or she is entitled to, is not being paid. I am entitled to investigate that and make a recommendation that he or she be paid the allowance. I can only deal with pay in terms of the established categories of pay. I cannot interfere in the sense of finding that the weekly wage of a corporal is not sufficient, or things of that nature.

That is fine. I thank Mr. Justice Mahon and look forward to his note.

Does Mr. Justice Mahon believe the redress of wrongs system is an effective process? Does it need modification or reform? PDFORRA, which represents enlisted personnel, has urged the commission to bring forward recommendations to speed up the Defence Forces internal mechanism for the so-called redress of wrongs. It wants cases to be sent immediately to the Ombudsman for the Defence Forces. Some of those involved in the Women of Honour have also expressed dissatisfaction with the redress of wrongs system. What are the views of the ombudsman on that?

Mr. Justice Alan Mahon

An individual who wishes to bring a complaint directly to me can do so but, of course, when or if he or she does so, it does mean he or she does not get the benefit that may flow from an involvement in the internal investigations system, which may lead to a resolution of that individual's complaint. I think that is why the vast majority go through that process, because a lot of the issues are resolved, and often at a very early stage of the internal investigation.

My own view is the internal investigation system is quite efficient, but some complaints can be complex and may have eight or ten components that require separate investigation.

As a general rule, the internal process, I would think, is quite efficient and it has the benefit of possibly arriving at a resolution. I am aware, as I have stated previously, that the great majority of complaints are resolved in that internal process.

I have two quick questions only for Mr. Justice Mahon. He referred in his report to the systematic administration failures. Can he give a couple of examples of what these may be?

Mr. Justice Alan Mahon

They can arise, maybe, in relation to the way promotion competitions are organised, the rules that denote the criteria for eligibility for promotion, for certain courses or for going overseas. You can get these issues in almost all aspects of the Defence Forces.

Finally, has the Minister or the Minister of State given any indication that there will be a review of the legislation, and if there is, have they given any timeline for it that we could work with Mr. Justice Mahon on, as Deputy Devlin and others have said, to put in recommendations or amendments to it?

Mr. Justice Alan Mahon

I have put the same issues I raised in my opening statement, probably in somewhat more detail, to the Minister. I have correspondence from the Minister, and confirmation from the Secretary General of the Department, that these matters are under consideration. Beyond that, I cannot give a timeline as to how quickly things will happen. My hope would be that there would be some move, say, in the months ahead, because the sooner some of these things happen, the better for all concerned.

If there are no other members wishing to come in, I would ask Mr. Justice Mahon to make his closing remarks.

Mr. Justice Alan Mahon

I do not particularly want to say an awful lot more. I am grateful to the committee for its time. Obviously, the various questions that have been asked are very useful in the sense that it provides an opportunity for everybody to consider how things might be improved.

I would be anxious to impress on the members that the very important issue of my independence has been fully respected by the Department and by the Defence Forces. That is the backbone of any Ombuds institution.

I am hopeful that there will be some changes to the legislation which would perhaps allow me to deal more comprehensively with particularly interpersonal issues, particularly in the light of what we know from the "Women of Honour" programme. Obviously, it would be useful to have a means of investigating issues of the nature that these individuals have brought to our attention. My hope would be that there would be amendments to the legislation in the not-too-distant future.

I am sure I speak for everybody in saying that Mr. Justice Mahon has given a very comprehensive report to us today. We have been interested in his views on the changes that need to be made to the 2004 Act which would enable and improve the service to be provided by your office, such as, as you said yourself, to allow discretion to exceed the limitation period up to 12 months, to clearly provide for certain types of interpersonal complaints and to allow the ODF to conduct the own-initiative investigation like other Ombudsman.

I thank Mr. Justice Mahon of the Defence Forces' Ombudsman and Mr. Brian O'Neill, head of office of the Defence Forces' Ombudsman, for coming here today, even only virtually. It would be helpful if we keep in touch and have another meeting in the not-too-distant future, and, hopefully, we will get to meet again in person. Thanks for appearing in front of our committee and stay safe.

Mr. Justice Alan Mahon

Okay, thank you very much.