I move that the Bill be now read a Second Time. The existing statutory provisions governing the Defence Forces are contained in the Defence Forces (Temporary Provisions) Acts, 1923 to 1951, of which the Defence Forces (Temporary Provisions) Act, 1923, is the principal Act. Although the 1923 Act was intended at the time of its enactment to be retained in force for a short period only, it has, as Deputies are aware, been continued annually ever since, with such amendments as were considered necessary from time to time. The Constitution of 1937, the establishment of a naval element of the Defence Forces in 1940 and the development of the Defence Forces during the emergency were responsible for most of the amendments. It may be said that the Acts operated successfully, and that the delay in the enactment of permanent legislation had the advantage of affording time to determine the type of organisation best suited to the country's requirements and of enabling use to be made of the experience gained over the years, particularly during the emergency.
The present Bill contains those provisions of the existing Acts which are considered suitable for permanent legislation, but amendments have been made as necessary to effect improvements. The Bill also includes a considerable number of new provisions giving additional powers for defence purposes and affording further safeguards for members of the Defence Forces. Certain of the provisions enacted during the emergency have been omitted, the intention being to reserve them for emergency legislation if the necessity for such legislation should arise at any time. The principal omissions are the provisions in relation to the precedence of military traffic on transport undertakings during an emergency; the adaptation of the plant of such undertakings to enable military requirements to be met, and the provisions regarding the restoration of civilian employment at the end of an emergency of members of the Reserve called out on permanent service and personnel commissioned or enlisted for the duration of the emergency.
Part I of the Bill, the provisions of which are generally similar to those in existing legislation, relates to the date of its coming into operation; its application to persons subject to military law; the declaration of a state of emergency; active service, and a number of other administrative matters. Many regulations and administrative arrangements consequent on the provisions of the Bill will require to be made before it can come into operation. Accordingly, it may not be possible to bring it into operation immediately upon its enactment.
Section 3 provides that a member of the Defence Forces remains subject to military law even though he is, for the time being, outside the State or is on board a ship or aircraft. As far as absence from the State is concerned, the intention is to cover cases such as those of a member attending a course of instruction abroad or travelling with an equitation team. Service outside the State in that sense is not a liability, because Chapter III of Part IV confines the service liability of members of the Defence Forces to service within the State unless they are employed on a State ship or a State aircraft. But even when voluntarily absent from the State, members remain subject to military law.
Section 4, which provides for the declaration of a state of emergency, is necessary because certain provisions of the Bill—for example, the power to enlist personnel for the duration of an emergency—become operative only when the existence of a state of emergency for the purposes of the Act has been declared by the Government.
In Part II, provision is made for the Council of Defence, which has, up to the present, been provided for in Section 8 of the Ministers and Secretaries Act, 1924. That section is now being repealed. The Secretary of the Department of Defence, who has hitherto been secretary to the council, is now being added to its membership. He will continue to be secretary to the council as well. The purpose of the council is stated to be to aid and counsel the Minister on all matters in relation to the business of the Department on which he may consult it. As the council's function will thus be an advisory one in relation to him, the Minister will not be a member. Under the Ministers and Secretaries Act he was a member and chairman of the council.
That Act, however, provided for a degree of collective responsibility which never operated in practice. The council has, in fact, never been anything but an advisory body, and obviously the Minister cannot be a member of a body whose function is to advise himself. While he will not now be a member, meetings of the council cannot be held unless summoned by him and the meetings will ordinarily be held in his presence and under his actual chairmanship, unless he himself chooses otherwise.
Part II also provides for the Chief of Staff, the Adjutant-General and Quartermaster-General and for the three principal military branches of which these officers are the head. Under the Ministers and Secretaries Act, the maximum continuous period of office in these appointments has been three years. Experience has shown it to be desirable that this period should be five years and Section 12 now provides accordingly. It has been the practice for the Minister to delegate to the Chief of Staff certain duties of co-ordination in relation to the business of the three principal military branches. This is now covered in Section 13. Existing legislation provides for the appointments of Inspector-General and Judge Advocate-General and provision for these appointments is retained in Sections 14 and 15 of the present Bill. There has not been an Inspector-General for many years and it is not anticipated that the necessity for one will ordinarily arise. It has, however, been thought well not to remove the power to make the appointment. The Judge Advocate-General must be a practising barrister-at-law of at least ten years' standing.
The raising, maintenance, command and general organisation of the Defence Forces are among the matters dealt with in Part III which, generally, follows the lines of existing legislation. Authority is given to the Government to raise, train, equip, arm, pay and maintain the Defence Forces and for the exercise of the military command. The provisions in relation to command will permit, as at present, of delegation by the Government to the Minister and by the Minister to officers. The existing organisation of permanent and reserve forces is continued. Except for the formal inclusion of members of the Army Nursing Service, the constitution of the Permanent Defence Force remains unaltered. Nurses are at present employed as civilians and are not members of the forces. Their inclusion now is primarily for the purpose of their protection in wartime under the Geneva Red Cross Convention. They will not, however, be commissioned or enlisted and, under Section 288, will not be subject to the provisions of this Act except to the extent mentioned in that section. The existing classes of the Reserve will continue to be maintained, but power is taken for the establishment of new classes by the Minister for Defence, if he thinks fit, and for the abolition of any classes which at any time cease to be effective.
The absence from existing legislation of specific power to acquire lands for military purposes has at times been found to give rise to difficulties and it will be appreciated that, in certain circumstances, the lack of powers of compulsory acquisition where agreement could not be reached would be a very serious matter. Power is taken, therefore, in Chapter IV of Part III to acquire land for military purposes either by agreement or compulsorily and to enable the Minister to use any land in his possession for military purposes and for the carrying-out of firing and other practices over any foreshore, sea or tidal water adjoining such lands. In addition, power is taken for the restriction of obstructions and for the erection and maintenance of apparatus on or in the vicinity of military aerodromes. Similar powers are given to the Minister for Industry and Commerce by the Air Navigation and Transport Act, 1950.
The provisions relating to billeting both in peace-time and during a period of emergency are similar to those in existing legislation. Billeting in peace-time has, of course, never had to be resorted to since the establishment of the State and could arise only in the most unusual circumstances. As, however, the possibility exists, although only very remotely, the provision is being retained.
Part IV provides for the appointment of officers and the enlistment of men and for the conditions of their service. Generally speaking, the provisions in relation to the appointment, conditions of service, retirement, resignation and dismissal of officers are the same as in existing legislation. Save in exceptional circumstances, it is the practice to grant commissions to Irish citizens only, and this is now specifically provided for in Section 41.
Some changes from existing legislation have been made in relation to the enlistment, transfer to the Reserve and discharge of men. At present, the procedure for recruiting is set out in the Defence Forces Acts and, accordingly, is incapable of amendment, except by statue, to meet changes in circumstances as they occur. Provision is now being made for the procedure to be governed by regulations. There are new provisions permitting the transfer of a reservist, with his own consent, from one class of the Reserve to another and for the continuance in service of reservists after 21 years' service. Other new provisions give power for the retention in service for the entire period of an emergency of a man who otherwise would be due for transfer to the Reserve or to be discharged. The present Acts permit of retention for a maximum period of 12 months only, but it will be appreciated that, as a practical proposition, it may not always be possible to release men during a period of grave emergency. The new provisions will, however, apply only to men enlisted on or after the operative date of the Act. Personnel serving before that date will retain their existing rights.
It is also considered necessary that, if an emergency is impending, there should be power to enable "key" personnel of the Reserve to be called out on permanent service in advance of the general calling-out of the Reserve. Provision is, accordingly, now being made in Section 88, empowering the Minister, when so authorised by the Government, to call out on permanent service a limited number of reservists, not exceeding 1,500, in anticipation of an emergency. Only men who have agreed in writing may be so called out.
As in the case of recruiting procedure, to which I have already referred, the circumstances in which the pay of officers and men may be forfeited are specifically prescribed in the existing Acts. The Acts also specify a number of circumstances in which penal deductions may be made and authorise the Minister, by regulation, to make deductions other than penal deductions. It is now proposed, as a more satisfactory arrangement, that all pay matters should be covered by regulations, but that regulations governing forfeiture of or deductions or stoppages from pay shall be capable of annulment by either House of Oireachtas. The matter is dealt with in Chapter IV of Part IV.
The provisions of Chapter V of Part IV regarding the disqualifications, exemptions and privileges of members of the Defence Forces are generally similar to or based on existing legislation. Section 103, which deals with membership of political and secret societies, recognises the right of members of the Reserve in ordinary circumstances, to participate in political activities, but enables such activities to be restricted when they are called out on permanent service and when they are thus in the same position as members of the permanent force. Section 104, which is based on Section 142 of the Defence Forces (Temporary Provisions) Act, 1923, and certain Defence Force regulations relating to the same matter, deals with membership of local authorities by members of the permanent force and of the Reserve. The remaining provisions of this Part of the Bill call for no special comment.
Under the provisions of Section 113, dealing with the redress of wrongs, an N.C.O. or man can now have his complaint brought to the notice of the Minister, who is required to inquire into the complaint and give a direction on it. At present the appeal of an N.C.O. or man need not go further than the Adjutant-General.
Part V, which deals with discipline, differs in many respects in its form and drafting from the provisions of the existing Acts. This arises from the fact that the 1923 Act was in essence an Army Act. While it was possible to apply the disciplinary provisions of that Act to Air Corps personnel, it was found necessary, on the establishment of a Naval Service, to provide specially for certain offences by members of that Service and also to apply, by adaptation of terminology, etc., army law to naval personnel. A code of military law is now provided which will be common to all members of the Defence Forces, whether they are serving with army, air or naval components but which, at the same time, will permit of distinction being made between offences peculiar to the different services. A small number of new provisions, mainly in relation to aircraft and military transport, has been introduced prescribing additional matters which will constitute offences. This portion of the Bill can best be discussed at Committee Stage and I shall not say anything more about it now.
The procedure for dealing with the investigation of charges against officers and men and for the constitution and jurisdiction of courts-martial is practically the same as in existing legislation. The persons disqualified from acting as members of, or judgeadvocate at, a court-martial will, however, now include officers who, in an advisory capacity, have dealt with the charges or with the evidence or with the conduct of the prosecution. This provision, which, however, merely embodies what has been the practice for some time past, constitutes a very valuable safeguard for accused persons. The punishments that may be awarded by court-martial have been modified in some respects to bring them into line with civilian law. New punishments, similar to those applicable in the forces of other States, have been introduced to provide for the dismissal of an officer from his ship and for the forfeiture of seniority in rank. There is also a new provision enabling a court-martial to hold its proceedingsin camera.
A number of important new provisions is included in the proposals dealing with the action on the findings and sentences of courts-martial. Under the existing Acts, the Government is the sole confirming authority in the case of death sentence and the Minister is empowered to act as confirming authority in all other cases. It is now proposed that neither the Government nor the Minister will have any powers of confirmation, because it is considered to be incorrect that they should exercise judicial functions. Provision is, however, being made that a sentence of death shall not be carried out unless and until it has been approved by the Government.
The intention here is to ensure that no death sentence will be carried out without the fullest consideration and that the Government will be given an opportunity of recommending the President to exercise his powers to commute a sentence under Article 13 (6) of the Constitution. Apart from this change, the confirming authorities are the same as at present. They have, however, an additional power of confirmation inasmuch as they can now substitute a lesser punishment for a sentence of death. This provision is not considered to be in conflict with the Constitution because a sentence imposed by a court-martial is not valid until it has been confirmed by a confirming authority. Because of the possibility that a confirming authority may, owing to his knowledge of the case or of the personnel involved or for any other reason, feel prejudiced or be held to be prejudiced in his consideration of a finding and sentence of a court-martial, provision is made enabling him to refer the finding and sentence to a superior confirming authority.
Another new feature has been introduced which will operate in favour of persons who have been sentenced by court-martial and whose sentence has been confirmed. This is the creation of new authorities to be known as superior authorities who will have power, in cases where a sentence (other than sentence of death) passed by a court-martial has been confirmed, to mitigate or remit the punishment or to substitute a lesser punishment. A superior authority may also hold up the issue of orders for the committal of a person to prison or detention barracks until he has investigated the case and may suspend the sentence on a person, whether or not committal has taken place. The superior authorities are to be the Minister, the Adjutant-General and any general or flag officer appointed by the Minister for the purpose. A further new step for the review of sentences is contained in Section 238 under which provision may be made in rules of procedure for the presentation of petitions by or on behalf of persons sentenced by courts-martial.
In concluding my remarks on this portion of the Bill, I think I may say that the various new provisions which I have mentioned, coupled with the safeguards already in operation, constitute very valuable advantages at every stage for accused personnel on trial before courts-martial; for personnel in whose cases findings and sentences are being considered by confirming authorities and for personnel whose sentences have been confirmed. In the last-mentioned type of case, particularly, the new system of superior authorities and the powers conferred on them are most important. Hitherto, there has been no provision for the further revision of sentences, which will now be possible.
Part VI contains provisions as to offences which may be committed by persons in relation to the Defence Forces and military property generally. Apart from provisions dealing with forgery of discharge certificates, inalienation of identity and other certificates and sketching and trespassing on military fortifications without authority, the provisions of this Part are in accordance with the existing Acts.
Part VII, which relates to military manoeuvres, contains no departure in principle from existing legislation. The powers of the military and the offences which may be committed by the public are, however, now specifically prescribed.
Part VIII provides for the making of by-laws in respect of lands used for defence purposes. Except for the provisions relating to roads crossing or running near such lands, which are continued from the 1949 Act, the provisions in this Part are new. The powers now being taken are considered necessary, primarily to ensure legal authority for the Minister to control the lands and the foreshore in their neighbourhood with a view to the protection of the public against injury when firing or bombing practices or other exercises are taking place.
Part IX contains specific provisions for the organisation and control of the Army Nursing Service. I have already stated in my references to Part III that members of the Army Nursing Service are included in the Permanent Defence Force to secure their protection in war-time under the Geneva Red Cross Convention. It is not proposed to make the members subject to military law in peace-time, but in order to ensure that it will be possible to do so in the event of their being engaged on active service, power is being taken for the Minister to extend, by Order, the application of the Act to members of the Army Nursing Service. Any Order made by the Minister will require confirmation by resolution of each House of the Oireachtas before it can come into operation.
Part X contains the provisions necessary to apply the Act to the personnel of the Defence Forces established under the Temporary Provisions Acts. This part is intended to secure generally that any member serving, either in the permanent Defence Force or the Reserve, immediately before the operative date of the new Act, will retain, notwithstanding its provisions, certain rights and privileges which he held under the former Acts.
Part XI contains provisions to secure the necessary adaptation of legislation arising from the repeal of the Temporary Provisions Acts and the enactment of the Defence Bill. Part XII contains miscellaneous provisions not appropriate to other parts of the Bill. The provisions of this new part are substantially the same as in existing legislation.
The First Schedule simply sets out the enactments to be repealed.
The Second Schedule specifies the commissioned Army ranks and naval ranks and the Third Schedule the Army and naval non-commissioned ranks. Two naval non-commissioned ranks additional to those in the present Acts are proposed, namely, senior chief petty officer and senior petty officer. These naval ranks would correspond for status and disciplinary purposes to the Army ranks of battalion-quartermaster-sergeant and company-quartermaster-sergeant, respectively. Hitherto there have been no naval ranks corresponding to these Army ranks.
The Fourth Schedule indicates the principal matters in respect of which the Minister may make general regulations and the Fifth Schedule contains the forms of commission to be issued to an officer. The Sixth to the Tenth Schedules set out the forms of oath to be taken by officers and men of the Permanent and Reserve Defence Forces.
Generally speaking, the present measure does not differ greatly from that introduced by my predecessor as the Defence Bill, 1949, the Second Reading of which was commenced in May last but which was not concluded owing to the dissolution of the last Dáil. Most of the amendments since made are of a drafting nature. I may particularly mention, however, that I have omitted from the present Bill a provision of the 1949 measure which prescribed that a person who had completed his period of office as Chief of Staff, Adjutant-General or Quartermaster-General would not be eligible for re-appointment to the same office within the next 12 months. I expressed disagreement with that provision for a number of reasons when I spoke on the Second Reading of the 1949 Bill and I have now provided for re-appointment on the termination of a period of appointment if the circumstances should render such a course desirable.
I hope that the outline of the Bill which I have given, coupled with the particulars furnished in the explanatory memorandum which has been circulated with it, will have given Deputies a foundation for their consideration of its provisions. I think that what I said in the House in relation to the 1949 Bill, namely, that it could not be described as a very controversial one, continues to apply to the present Bill. It is, in fact, a measure which does not involve any big principles. It is largely concerned with questions of detail which can best be dealt with when it comes to be considered in Committee.
I might say, for the benefit of Deputies who, perhaps, would not be aware of the fact, that this Defence Bill has already been introduced on no less than three occasions, and that this is a second effort which is being made to have the Bill enacted. I do not have to tell Deputies who are conversant with the situation, as most Deputies are, of the extreme difficulty entailed in the administration of the Acts, as they are at present, so far as the administrative officers are concerned. The present position is that I might almost describe these Acts as being a matter of shreds and patches. They represent practically every Act passed since 1923. I think it is a great tribute to the persons concerned with their administration that they have been administered so effectively, so efficiently and so justly, I might say, in view of the fact that their administrators have to be continually referring back from one Act to another. It is, therefore, naturally my hope that this particular attempt will be successful in providing the personnel referred to with a Bill which will co-relate all these Acts and give them something which it will be possible for them to handle more easily, more effectively and more efficiently than the number of Acts they are dealing with at the moment.