We have disposed of amendment No. 32, amendment No. 33 has been withdrawn and we now come to deal with amendment No. 34 in the name of Deputy Ryan.
NEW SECTION.
Private Members' Business. - Defence (Amendment) Bill, 1990: Committee Stage (Resumed).
I move amendment No. 34:
In page 3, before section 7, to insert the following new section:
"7.—(1) Where the Minister proposes to make regulations under this Act subsection (2) shall apply.
(2) (a) The Minister shall consult—
(i) any existing association (or, if no association has been established under this Act, any other body established for the purpose of representing members of the Defence Forces which was in existence on the date of the passing of this Act), and
(ii) such other persons as he considers appropriate,
concerning the matters which are the subject of the proposed regulations.
(b) A draft of the proposed regulations, together with a report by the Minister on any consultations held under paragraph (a), shall be laid before each House of the Oireachtas.
(c) The regulations shall not be made until a resolution approving the draft has been passed by each House of the Oireachtas.".
Amendment put.
The Committee divided: Tá, 59; Níl, 67.
Tá
- Ahearn, Therese.
- Barnes, Monica.
- Barry, Peter.
- Bell, Michael.
- Bradford, Paul.
- Browne, John (Carlow-Kilkenny).
- Byrne, Eric.
- Carey, Donal.
- Connaughton, Paul.
- Cosgrave, Michael Joe.
- Cotter, Bill.
- Creed, Michael.
- Currie, Austin.
- D'Arcy, Michael.
- Deasy, Austin.
- De Rossa, Proinsias.
- Doyle, Joe.
- Durkan, Bernard.
- Enright, Thomas W.
- Farrelly, John V.
- Ferris, Michael.
- Finucane, Michael.
- Flanagan, Charles.
- Gilmore, Eamon.
- Gregory, Tony.
- Harte, Paddy.
- Higgins, Jim.
- Higgins, Michael D.
- Hogan, Philip.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kenny, Enda.
- McCartan, Pat.
- McCormack, Pádraic.
- McGahon, Brendan.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- Mitchell, Jim.
- Moynihan, Michael.
- Nealon, Ted.
- O'Keeffe, Jim.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Owen, Nora.
- Pattison, Séamus.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Reynolds, Gerry.
- Ryan, Seán.
- Sheehan, Patrick J.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Taylor-Quinn, Madeleine
- Timmins, Godfrey.
- Yates, Ivan.
Níl
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Browne, John (Wexford).
- Burke, Raphael P.
- Callely, Ivor.
- Clohessy, Peadar.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Lenihan, Brian.
- Leyden, Terry.
- Martin, Micheál.
- McCreevy, Charlie.
- McDaid, Jim.
- McEllistrim, Tom.
- Molloy, Robert.
- Morley, P.J.
- Nolan, M.J.
- Noonan, Michael J. (Limerick West).
- O'Connell, John.
- O'Dea, Willie.
- O'Donoghue, John.
- Dennehy, John.
- de Valera, Síle.
- Ellis, John.
- Fahey, Jackie.
- Fitzgerald, Liam Joseph.
- Fitzpatrick, Dermot.
- Flynn, Pádraig.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Harney, Mary.
- Hillery, Brian.
- Hilliard, Colm.
- Hyland, Liam.
- Jacob, Joe.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- O'Keeffe, Ned.
- O'Leary, John.
- O'Toole, Martin Joe.
- Power, Seán.
- Quill, Máirín.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Wallace, Mary.
- Wilson, John P.
- Wyse, Pearse.
Tellers: Tá, Deputies Howlin and Ferris; Níl, Deputies V. Brady and Clohessy.
Amendment declared lost.
Question proposed: "That section 7 stand part of the Bill."
I wish to give notice to the House that I propose to introduce a technical amendment to this section on Report Stage. The principal Act provides the Minister with powers to make regulations on various matters, but only in two instances does it require that such regulations be laid before the Houses of the Oireachtas. The two exceptions are regulations dealing with deductions from pay and regulations dealing with the investigation and summary disposition of charges. Section 7 of the Bill as it currently stands would alter this situation and the amendment which I propose to introduce will maintain the status quo. We merely wish to maintain consistency with the principal Act, no more no less than that. It is purely a drafting amendment which I will bring in on Report Stage but I am obliged to give notice to the House of my intention to do so.
Can the Minister say what will come before the House?
It is my intention to bring in a technical amendment to the section on Report Stage, and as a matter of courtesy I am giving the House notice of that. The Deputy should not be so suspicious. There is nothing in it.
Question put and agreed.
SECTION 1.
I move amendment No. 1:
In page 2, lines 11 and 12, to delete "under section 2 (1) of this Act" and substitute "for the purpose of representing members of he Defence Forces".
The purpose of the amendment is to address the definition proposed by the Minister in regard to "association". Section 1 states that the definition is to be applied to an association established under section 2 (1). In my amendment I am seeking to define "association" by including the words "for the purpose of representing members of the Defence Forces". That will be tied into a debate we will have later in regard to the limit the Minister seeks to impose on association, co-operation, collaboration or whatever between a representative association as formed under the Bill and any other association, either internal or external, within the State or elsewhere. It is important that we should clarify what is meant in section 1 because the consent of the Minister is required in certain circumstances in advance of any such association taking place. That will vary, depending on our success with subsequent amendments. I hope the Minister will see the reasoning behind my amendment and accept it as an exercise seeking to clarify the section. I want to make the Bill more specific.
I must emphasise that this is an enabling Bill. Earlier I outlined the step by step approach which is envisaged in it. Following that logic through, the Bill incorporates in its Title precisely what Deputy McCartan is seeking to incorporate in section 1. We are seeking to provide for the establishment of associations to represent members of the Defence Forces for certain purposes and for connected matters. That is in the Title of the Bill. The section gives a more precise definition of what is in the Title. Section 2 (1) states that the Minister may provide by regulation for the establishment of an association or associations for the purpose of representing members of such rank or ranks of the Defence Forces as may be specified in the regulations. The definition of "association" in the Bill correctly refers to an association established under section 2 (1). We tie in the general principle in the Title and the definition of "association" in section 1 in section 2 (1). What the Deputy is seeking to achieve is included in the governing Title.
If I did not tie the definition down to section 2 (1) I would be making for potential damage to the representative bodies eventually established under regulations by the Minister. I want to ensure in tying the definition into section 2 (1) that the Bill will correctly refer to an association established under section 2 (1) thus ensuring that only such associations as are established under regulations made by the Minister will be set up. I want such associations to be protected. That is the central point to my argument. I want such associations, after proper elections, after proper agreement between the men and consultations, incorporated in the regulations. That is in the interests of the associations of military personnel we are seeking to establish. It will be of great benefit and help to the members of PDFORRA or any other Army, Navy or Air Corps grouping that is not official. We will be legitimising them after the elections. We will be ensuring that this new group to be established as a result of the election and incorporated in the regulations will be protected by the Title, by section 1, which is the definition section and by section 2 (1). This is the guarantee for the association or associations. There will be one for the officers and one for the NCOs and privates. Whatever is agreed upon by them will be protected by regulation and by statute.
In effect the new association or associations will be safeguarded against any proliferation of other bodies. We are stopping any mad gallop towards setting up two, ten or 20 other associations or bodies in opposition to them. If that happened it would be crazy. The whole purpose of the Bill is to permit the members of the Defence Forces, with the agreement of the Minister and Army Headquarters, to set up bodies to represent them and we want those bodies protected by statute. The regulations will be flexible and they can be changed or amended as the months and years go by at the request of the representative body or bodies. We would ruin everything if we had associations or bodies formed for this and that reason competing against each other. I want the definition in section 1 and section 2 (1) tied together to ensure that the associations established at the end of the process of consultation will be protected. Deputy McCartan seeks to delete a portion of section 1 which is covered in the Title.
May I ask the House if any other Member wishes to intervene at this stage; if not, Deputy McCartan will be replying to the debate on his amendment.
We are on Committee Stage.
Even so we must have finality on the matter. I am asking if other Members are anxious to offer.
While I welcome contributions from other Members I must point out that we are on Committee Stage. I would like to comment on the point made by the Minister that the Title of the Bill indicates what we are about. I accept that. It is not for the purposes of judicial construction but it may be an aid in some circumstances. The point I am trying to address is linked to section 2 (4) where the word "association", which we seek to define, emerges. In this subsection the Minister proposes to limit the number of associations a member may join. My purpose in putting in the definition is to directly incorporate into the definitions section what is the Title because the Title is not part of the Bill for the purposes of judicial construction.
I accept that there is a link between section 1 and section 2 (1) where the Minister may permit the establishment of associations for the purposes of representing members of the Defence Forces. When one comes to subsection (4) the importance of what I am talking about emerges because there the Minister indicates that a member shall not become or be a member of a trade union, or of any other body other than an association. I seek the Minister's advice on this issue. Suppose within the representative association or within the barracks of any particular command an informal committee or group was formed for the purposes of agitating within the representative body their cause for, say, the barracks' interests to be pursued, or if there was a committee, an association or a coming together of people on a command level calling themselves an ad hoc group seeking to advance, for example, a youth interest, a female interest or a welfare or housing issue, am I correct in thinking that under the current definition of “association”, in the context of subsection (4), they would be courting with illegality, being outside to the provisions of the Bill? Would the Minister not agree that it would better in the interests of clarity to give the definition of “association” in the definitions section?
In practical terms, as long as they are members of the representative body any legitimate activities such as those mentioned by the Deputy, would be part of the normal course of membership. Naturally people would agitate and put forward representations and points of view for various improvements in their welfare, etc. and form groups or committees to push a point of view within the ambit of their particular association or associations. I would see nothing wrong with that; that is a perfectly legitimate democratic activity. What I am talking about is where people would set up counter-bodies to the body which is pursuing the men's interests under the regulations. Certainly all the committees in the world can be established within the body to push for various points of view.
What is the position of members who elect not to become members of the representative body? Suppose they were to assemble for the purposes of simply calling themselves the ad hoc committee of non-representative members who, under the Constitution, have a right not to be members and would equally have a corollary right to be heard in some respect? I agree with the Minister that it is desirable — and I have a later amendment to that effect — to keep the number of associations to the minimum, for reasons which I will advance. Nonetheless, I am concerned about the position of those members of the association and representative bodies who would not be members of the formally established representative association. Where do they fit into the order of things? If the definition of “association” was amended in the way I propose, it would safeguard their interests in a limited way.
The Deputy is in danger of riding two horses at the same time; we are either concerned or we are not concerned about having a legitimate representative body established, safeguarded and protected by legislation. I will not go into the rights and wrongs of the aspirations of other people who may not agree with that — that is another day's work — but in so far as we can, what we are seeking to say in this legislation is that we are giving a chance to the majority within the Defence Forces to express their point of view and to advise us on how their representative body should be structured. We will go along with a reasonable mandate upon which we both agree but if we start writing into law opportunities for all sorts of other bodies to start, then we are getting off the main target. I appeal to the House to stay on target with what we are trying to do.
I would be deeply concerned if what Deputy McCartan is even remotely suggesting were to happen. It would not be in the best interests of the Defence Force and would be highly dangerous. I would like to see one umbrella organisation representing the Defence Forces. I would not like to see anything built into the Bill or the regulations which would allow for ad hoc groups to be set up to discuss this, that and the other. If that were to happen one could end up with an ad hoc group in every barracks and every unit in the country. I do not think the Defence Forces at large would welcome that. It would weaken the structure of any organisation which would be formed or elected, and it would get away from the idea of a democratic organisation representing the entire force. I would be totally and utterly opposed to any such development.
How stands the amendment?
In view of the observations made by the Tánaiste I do not propose to press this matter. I will come back to it later in the light of further discussions on other amendments. I withdraw it for the time being.
Amendment, by leave, withdrawn.
I move amendment No. 2:
In page 2, line 15, before "task" to insert "military".
This amendment proposes to refine the definition of "operation" in section 1. One has to see where the word "operation" appears in the body of the Bill to understand the importance of the amendment. It appears specifically in section 2 (1) at line 29. Subsection (1), while giving the Minister power to establish an association for the purpose of representing members of the ranks, goes on to state the areas where it would apply:
in relation to matters affecting their remuneration and such other matters (if any) as the Minister may specify in the regulations, but excluding matters relating to any operation and the raising, maintenance, command, constitution, organisation and discipline of the Defence Forces....
The use of the words "any operation" is imprecise and much too wide in its meaning. For that reason I suggest as a means of getting over the difficulty that we amend the definition of "operation" in section 1 to mean "any military operation". I cannot see any difficulty with that and I hope it will commend itself to the Minister.
I understand the point the Deputy is making but I must oppose the amendment on the grounds that it would introduce a very unnecessary complication. I will explain my reasons for saying that. The Defence Forces are a tremendous asset to this country and have been even more so in recent years when they have stepped into the breach in all sorts of situations, particularly in aid of the civil power. It could be argued that some of the tasks they are called upon to undertake in the national interest from time to time are not necessarily military tasks. I do not want to confuse the situation by entering into that realm. They render assistance to the community in various forms, at various times during various emergencies. The Defence Forces have rallied to the call, as it were, on numerous occasions in undertaking operations which are not normal military operations, for example, flooding, storm damage——
Bin strikes.
The Army have stepped in in a whole range of social relations, so to speak, and have been in the final group the Government of the day can rely on. The Army have stepped in during snow drifts, flooding, bin strikes, industrial strikes, natural hazards and accidents. When emergencies arise in different areas the first reaction of the Government of the day is to send for the Army, who have performed their task for society excellently over a number of years.
I do not want to insert just the word "military". Most of the tasks I have just mentioned are not, within the strict dictionary definition, military operations but command and discipline have to be maintained. In some of these cases where quick action is required more often than not command and discipline are just as important, if not more important, than during a war. Alertness, quickness and immediacy are all-important in a situation where there is a degree of urgency.
While I understand the rationale behind what the Deputy is advocating I believe it is much better to leave the word "operation" open so that it is a task undertaken by the Defence Forces in the discharge of their duties. To tie it down to a military task, as the Deputy suggests, would be very restrictive and would not cover enormous areas of beneficial help which the Defence Forces give from time to time in urgent cases.
I welcome the Minister's elaboration on the concept of what might be involved in the word "operation" as he sees it. I purposely stayed back from the issue to see how far the Minister envisaged the matter running. Having heard what the Minister has said I am convinced that my amendment should be pursued. If the matter is not pursued to the full extent proposed in my amendment, then we need to look at it again.
I believe there are three separate categories which can and should be looked at within the operations of the military in aid of the civil power. I do not think any of us have difficulty in recognising the need for strict military order to apply in cases where the military power come to the aid of the civil authority in the pursuit and suppression of crime, as provided for under the Offences Against the State Act and the Criminal Law (Jurisdiction) Act, 1976. There is equally no difficulty where the military authority come to the aid of the civil authority in disasters and difficulties occasioned by acts of God, as they are so called, for example the need to clear fallen trees and snowdrifts from highways, deliver food, rescue fishermen off our coasts and the like.
However, there is need for closer examination of the instances where military personnel are called to the aid of the civil power in industrial disputes. Soldiers drove military vehicles about the city in defiance of busmen who were seeking the resolution of an industrial dispute. They also drove fire brigades during the firemen's dispute and collected bins during the binmen's dispute. This phenomenon gave rise to resentment among the workers involved in the dispute. No doubt the beleagured people who were conveyed to work and whose bins were emptied appreciated the work carried out by the soldiers but to others, particularly those seeking a resolution of the disputes on behalf of the workers, they were an annoyance. As a matter of principle I have no hesitation in advancing the case that it should be the exception rather than the rule, and that in civil disputes between the Government, a Minister or employer and employees the military should rarely, if ever, be called in aid of the civil authority.
That is my view on the matter and I want to bring it into perspective in regard to the Bill. Are we proposing that the staff representative association of the soldiers and officers should be excluded entirely from making any representations or heard in any way in the third category of strike to which I have referred? I have no difficulty about the military coming to the aid of the Garda Síochána in the pursuit and suppression of crime or their being called upon in aid of the civil authority in cases of distress or other acts of God as I have described them. Soldiers are proud to carry out that type of duty and to be able to come to the rescue of people in trouble. However, I have no hesitation in saying that they have grave doubts about being called in, as some workers have called them, as strike breakers. This matter should be addressed by the Minister.
I am not going to pursue this issue unduly but I ask the Minister to have regard to the third category to which I referred. We should at least provide in this legislation that the Army representative association should be heard and involved in discussions and decisions if they are ever called upon to act as strike breakers. As the European Parliament has told us, we are legislating to give civil and democratic rights to the protectors of the civil and democratic society. Soldiers are entitled to be given proper regard and I do not think it is asking a lot of us to ensure that they should at least be given the opportunity, when they are called upon to intervene in the third category of strike to which I referred, to make representations and/or be represented through their commanding officers. This should be a function of that association. For that reason I sought to confine their operations to "military" operations. Strikes under categories one and two would be clearly covered in that definition, but I do not agree that they should become involved in strikes under category three. It might well require military discipline in its execution but at least in that scenario the representative associations should be entitled to be heard on behalf of their members. That is why I pursue this amendment.
Having worn both hats, as a national trade union official and as a serving officer, I would have to disagree again with Deputy McCartan. My experience has been to the contrary. I am just giving Deputy McCartan the benefit of my experience; if I needed legal help I would be asking for his advice. From personal experience I am in a position to give the Minister some advice. In trade disputes it is only as a last resort that the troops are brought in, and one of their main gripes was that they were never paid the rate for the job. Under the broader terms of the section I would see the representative association being in a position to negotiate on behalf of the men providing the service so as to secure a decent payment for them in that respect. I agree that troops get a special allowance in such cases but it has never been equal to the moneys paid to the people who normally do the work.
Generally, the trade unions, the Department, the Minister and the soldiers do not want a situation where the Army have to do this work. There are times, however, when the national interest has to be put before sectional interests. As a trade union official I have had to stand up on platforms and defend that, and I would have no hesitation in doing it again. There must be a certain amount of flexibility and that will be in the interests of the troops rather than to the contrary.
It strikes me that going the route suggested by Deputy McCartan would be to narrow this down to a dangerous point. There is a great deal of common sense in what Deputy Bell said. It is true that one could categorise the three or four different things one would see the Army doing. I would not like to see the Army being retrospectively classed as strike breakers and I do not think that is what Deputy McCartan meant to do. I do not believe he meant to say that what the Army did in the past during bus strikes or refuse collection strikes was strike breaking. Those things happen in extremis, as Deputy Bell said, and only in extremis. To limit the meaning of "operation" here to "military operation" would certainly incorporate category one. It is questionable whether it would incorporate category two. For instance, in Bray we have had the Army out twice. We had them out for mopping up operations at the end of floods when the disaster was over and there was work to be done on humanitarian grounds which should have been done by council workers; but the council workers worked side by side with the troops and were pleased to do so in the interest of the greater public good. This is precisely the common-sense approach which has been adopted by Deputy Bell and, I presume, by the Labour Party. It strikes me that inserting "military" would be a mistake. I think it would be wise for Deputy McCartan to consider that and withdraw his amendment.
I strongly oppose this amendment. If we were to narrow this definition we would be doing a great disservice to our Defence Forces. Deputy McCartan supports the position with regard to support from the Garda in disasters but he has a problem with refuse collection strikes or bus strikes. My understanding is that when the associations are up and running part of their brief will be to cover pay, allowances and conditions in relation to all of these duties. Deputy McCartan's position is a negative one. It is against the positive spirit of the Bill. I would strongly urge the Deputy and, indeed, the members of the other parties, to consider their position on this. The whole purpose of the Bill is to set up associations to cover these very matters. I want to see a broad definition because that is in the interests of the Defence Forces. They are respected because of their involvement in difficult times for the State which is a very central issue. I would ask Deputy McCartan not to impinge in any way on that core issue. Narrowing this definition would greatly interfere with this and with respect for the Defence Forces.
Deputies Bell and Kitt have said precisely what I wanted to say. This definition which includes any task undertaken by the Defence Forces makes it quite clear that once these associations are up and running they can, and should, negotiate for allowances in particular situations, perhaps of undue hazard, undue hours, any one of a number of situations where urgent aid to the civil power is involved. That is precisely the type of situation for which they should be compensated to a reasonable degree. The definition will cover the whole ambit of their conditions of service and provide for negotiation on their behalf. That is one aspect that adds force to the whole idea of setting up a representative body or bodies. It is precisely the sort of work in which they would be engaged.
Let us be more positive about this Bill and let us not be restrictive. An Army is an army and they have to do work under command and discipline, all sorts of work in the national interest and in all sorts of situations. If they have to do that, let them be appropriately compensated. If we had members of the Defence Forces here, I am sure they would nod their heads and agree with me and argue as best they could for allowances or facilities for doing such work. That is the way the matter should be approached. Let us not approach it in an academic way. We are talking about a practical measure which is designed to do the right thing by the members of our Defence Forces, so let us not tie it up in knots.
The last thing I seek to do is to tie anything in knots. What I am trying to do is to clarify some aspects of the Bill and to assure myself that what we are doing here is the correct thing in the long run. I am sorry if people's patience is getting a bit strained at this hour. If that is the case let them go home and let those who are interested in teasing out this Bill get on with the job. I do not want to be lectured any more by people who say that I am being disagreeble about this or approaching it in an uncommitted spirit. What I am arguing for here is good legislation in an area which we have addressed for the first time, where we have no precedent or other debates to borrow from. For that reason I want to get it right.
With all the different hats that he wants to wear, Deputy Bell is missing the central point. I understand from my reading of section 1 (1) that a representative association once established will not have the power or authority to discuss debate or represent its members in regard to "any operation or any aspect of that operation".
I cannot see any other reading of it and the Minister's words in explaining the provision would seem to suggest that "operation" has the broad scope which some Deputies think is useful and better. I do not think so. One of the reasons is the issue of principle. If we are recognising the right of soldiers to establish a trade association within the Defence Forces they should be allowed to have regard to their position vis-à-vis other trade associations or trade unions. They should not be marched into a trade dispute simply on the command of a Minister of Government who thinks it is expedient to resolve a stalemate by relying on the Defence Forces, as in the past. In that one narrow area, soldiers as tradesmen represented by their trade association should have at least the right to be consulted, to be heard, and to make representations. Section 2 (1), following the definition contained in section 1, does not allow for this.
I worry that there should be respect and understanding of what a trade association of soldiers should be. I am not suggesting, nor does any member of the Defence Forces suggest, that in the face ultimately of a command being delivered they should hold up their trade association card and say "wait a minute, mate, it's down tools time". I am merely saying that in principle they should have the right to be heard if they have a point of view to state. We are legislating against that right of audience in the definition of "operation".
The second point relates to the major annoyance caused to soldiers on operations in aid of the civil power. They lie in the ditch for hours on end and watch members of the Garda Síochána — or in the prisons, members of the Prison Service — heading off for canteen facilities and other facilities which they are denied because they are not provided for under their organisational regime. They are laughed at when they compare their wage packets at the end of an exercise to those of the Special Branch men, the security policemen or the prison officers in Portlaoise. No doubt such stories have been recounted to every Deputy and to the Minister's emissaries. Under the definition section their right to negotiate and to debate remuneration in regard to such operations is excluded, as I read the Bill. If there is a doubt about it and the Minister tells me I am wrong, let us provide specifically for it.
The definition of "operation" is clear and section 2 (1) states that the representative associations may deal with matters affecting their remuneration and such other matters as the Minister may specify, but excluding matters relating to any operation. Matters relating to an operation are pay and conditions and the length of time a soldier is expected to lie in a ditch, stand in a turret or stand at a crossroads. Food, clothing and other ancillary matters such as reliefs and billeting are all matters relating to an operation. I cannot see any other construction.
We are defining "operation" as a task. Conditions and the payment of compensation are separate matters. We are talking about a task and that is the word the Deputy is seeking to restrict in his amendment by adding the word "military".
Deputy Bell clearly saw the distinction. Anybody who has any trade union background can clearly see it.
I, too, am a member of a trade union.
I am trying to be helpful.
I take the point but I must be persistent in this matter. The phrase "excluding matters relating to any operation" excludes any consideration surrounding or involving that operation. I cannot see any other way of explaining that phrase. I am simply asking the House to clear up the ambiguity by amending the phrase to read "excluding matters relating to any military operation", so that all other operations involving the Defence Forces can be dealt with by the representative associations.
There is a reference two lines before that.
Deputy Bell is on his feet.
Section 2 (1) also contains the phrase "as the Minister may specify in the regulations". I am assuming that will be part of the overall negotiation in relation to the regulations which will be ordered under the Bill. A second point is that all operations other than purely military operations are normally dealt with on a voluntary basis. No one is commanded to go out to clear up the garbage. Volunteers are asked within the military establishment or within the unit carrying out the function.
That is correct.
Deputy Bell has done us a great service by drawing attention to the fact that these are all covered by the regulations. For some reason Deputy McCartan seems to be irritated by the presence of anybody here. On other occasions Deputy McCartan and his fellow travellers have pointed to empty seats; he cannot have it both ways. Deputy Bell has covered the point with crystal clarity. Everybody other than Deputy McCartan can see the clarity. It is obvious that the insertion of the word "military" as proposed in the amendment would have a very limiting effect and could hamper us in the case of flooding or a coastal clean up. I cannot understand the logic of Deputy McCartan's point when he says he is not suggesting that somebody could produce a trade union card and refuse to carry out a task. I cannot understand how the two things lie together. Perhaps I am being dull — everybody is dull in this House but the Deputy. A far more clear and logical definition is the one suggested by Deputy Bell.
I would have to agree with Deputy Bell in the way he has addressed this amendment. I appreciate Deputy McCartan's sincerity but the introduction of the word "military" at that point could at some stage involve members of the Defence Forces in something which they would not want to become involved in, namely a non-military type of industrial dispute. The Army do not want to become involved in such matters. They are trained and have a very proud tradition in meeting emergencies and providing fire, ambulance and other services in times of distress, and they have done so on numerous occasions. Responding quickly and unequivocally is part and parcel of the proud tradition of the Army.
It would lead to a certain amount of ambiguity if the amendment proposed by Deputy McCartan were to be accepted simply because there then would be a question as to whether, in certain circumstances, they should or should not respond. The Army people I have met and dealt with do not wish to create any ambiguity, and I am sure other people have had the same response. They, and we, are all in favour of improving their conditions generally. I do not want to repeat anything that was said on Second Stage, but in this area I think they would feel strongly that they should represent them, as was said by Deputy Bell and others. I support that theory.
We are dealing with the elements that are excluded. Because of other aspects, particularly conciliation and arbitration, does the Minister envisage that areas, such as discipline, would be discussed or is he excluding principles governing discipline for consideration at any stage?
I am following the suggestion made by PDFORRA that discipline should be excluded from this legislation. That is common case right across the board. Anybody who has paid any attention or has any concern about what goes into this Bill or the regulations knows that that is out. It has to be. We are dealing with Army personnel. You join an Army for certain reasons and military personnel cover the Navy and the Air Corps. When dealing with an issue involving military personnel we are going the whole way in this Bill short of the command and discipline areas that are the essence of what a military force is all about. That is accepted by all the representatives I have met and who have made submissions to me.
I ask for clarification of that. I have read that the Garda conciliation and arbitration system allows for discussion of principles governing discipline and there is a mechanism in that conciliation system for discussing principles governing discipline as against discipline itself. I appreciate that the members do not want to be involved with discipline. I want that point clarified.
In reply to Deputy McCartan, I resent any criticism of people over here which suggests that just because we do not agree with his position we should go home. That is comical. On the point he made, I think it is legitimate to say he adopted a narrow, negative position. Consider it against the points made by Deputy Bell and others. The Bill refers in section 2(1) to ".... matters affecting their remuneration and such other matters (if any) as the Minister may specify in the regulations....". The Minister said that no Bill will be put on the Statute Book without the agreement of the representatives of the Defence Forces. Take all that in a positive manner and you see that that statement covered the points and the concern expressed, in other words, anything to do with pay, remuneration or conditions.
We know about the grievances that have been expressed by members of the Defence Forces. Taken from a positive viewpoint all those issues are covered because there would be no regulations or Bill without the agreement of the representatives. That has been stated by the Minister. I consider that a legitimate argument and I ask the Deputy to accept it. Narrowing the definition is doing damage to the Defence Forces.
In response to Deputy Kitt, I do not understand the suggestion; how you could do damage by narrowing the definition is lost on me entirely. For the benefit of Deputy Durkan, who perhaps was not here for the earlier part of the debate on this amendment——
I was listening very carefully.
I am not suggesting he might not have been, but if he fully understands the arguments being made——
Very clearly.
I am seeking this amendment only to ensure that in nonmilitary situations requiring the command discipline, representative associations will have the right to be heard on behalf of their members. For that reason I believe "operation" here needs to be clarified. I have sought to do it by confining it to military operation and I have put forward the proposition that there were different degrees and tasks required by the Defence Forces.
In the light of what has been suggested let me ask the Minister if it is proposed or suggested that there is a difference in military understanding between a task which is governed strictly by command and a task which is contributed to on a voluntary basis — say, for example, a dispute arises that needs the aid of the military and there is a procedure where members can volunteer for involvement in an action, such as clearing snow or clearing bins in an industrial dispute. Is there a difference in the concept? Is one a task and the other not?
No, and I think Deputy Bell made it quite clear. It is unfair to him — he is well able to look after himself——
He is not here now.
——but he is not here now. All tasks are military tasks. That goes without saying. The Bill provides that, " `operation' means a task undertaken or intended to be undertaken by the Defence Forces in the discharge of their duties;". To that extent they can be regarded as military tasks. It is restrictive, superfluous and unnecessary to add "military". Once they volunteer, whatever they do is in discharge of their duties and they are under the command/ discipline framework.
That clarifies it. For the purposes of clarity, is the Minister's reading of section 2 (1), which includes this broader definition of "operation", that it will be open to a representative association in respect of any operations to be heard on the pay or conditions of such an operation? Will they not be restricted by the wording here?
Yes. The whole purpose of the legislation is to ensure that they can sit down and, through their association, make a decision on the types of operation they are asked to do, and if they have some complaint or a point of view as to how they should be rewarded in the sense of payment——
Or conditions?
Of course, that is a perfectly legitimate matter for their consideration. The same applies to representation regarding their pay and conditions.
While there is still an issue of principle involved, I propose withdrawing my amendment for further consideration.
Amendment, by leave, withdrawn.
Section 1 agreed to.
SECTION 2.
Amendment No. 3 is in the names of Deputies Nealon and Ryan. Amendment No. 4 is an alternative and amendment No. 30 is cognate. Amendment Nos. 3, 4 and 30 may be discussed together. Is that agreed? Agreed.
I move amendment No. 3.
In page 2, subsection (1), line 22, to delete "may" and substitute "shall".
This is an enabling section and the use of the word "may" reflects the reluctant attitude of the Government as a whole to this Bill. They had to be brought to the starting line and, even at that, they came to it very reluctantly. It reflects a very negative kind of thinking. I notice later on that where an association would have to be dissolved because of an emergency, its re-establishment is governed by the word "shall" and rightly so. The word "shall" should also be here.
This has been described by the Minister and the Chief of Staff as an historical progression. It is a very important Bill but we have a situation where the Minister of the day or his successor may bring it in more or less if he feels like it as he is governed exclusively by the word "may". We have been told that most matters will be dealt with by regulation and we also find that the major enabling section is totally at the discretion of the Minister. He may bring it in if he feels like it. I know the Minister will say that it makes no difference, that of course he will bring it in. However, it should be enshrined in the legislation that the Minister "shall" bring it in. I take it that the Minister will accept this amendment.
I hope there will not be a necessity for a prolonged discussion on this amendment, the Minister should take it on board as it is very important to the Bill and the regulations. Given the fact that the Minister has adopted a conciliatory approach he should take this amendment on board. "Shall" expresses a definite obligation on the Minister as against "may" which gives the impression that there is merely a possibility of it or that it can be delayed. We need a positive approach to this and the suggested amendments would strengthen the Bill. I hope the Minister will take them on board.
I support the proposal put forward by Deputy Nealon and Deputy Ryan. In amendment No. 4 in the name of The Workers' Party I propose a simple addendum — that the regulations not only shall be brought into being but will be brought into being within three months of the passing of this Act. A definite time should be set to exercise the minds of the Ministers and others involved in the negotiations to ensure this is back before the House and will not go on interminably.
The importance of the word "shall" as opposed to "may" might be lost on those who believe that Ministers or Governments never change and that we all go on happily here for ever. It is not long since the Minister for Defence was implacably opposed to the establishment of a representative association. The current Minister of State who, no doubt, is a prince in waiting as the Minister hopes to move on to higher and greater things in the near future, held and reiterated the view of his previous Minister for Defence no later than July last year. He said in the Estimates debate that the idea of a representative association for members of the Defence Forces was not in keeping with the traditions of command and discipline within the Defence Forces. He has not changed his views although he remains in office as Minister of State in the Department.
There is grave concern on this side of the House that if the Minister is not available — as the only Minister on record in support of the principle of representative associations — to see the negotiations through, it would be open to another Minister simply to announce at a meeting in Athlone or elsewhere his plans for the future with regard to the principle and idea of a representative association. In debating this historic time in the life of the Defence Forces we are simply asking that it should not be just enabling legislation but that it would be mandatory legislation and that whatever Minister holds office, he or she will be subject to the dictates of the word "shall". In other words, we should unanimously record the view of the Oireachtas as requiring — not hoping — that a representative association will in time be established through regulations.
The Minister said earlier that he would be back in this House in two months time to see the regulations through and to deal with the matter and I earnestly hope that he will. Nonetheless, I am not convinced that there is universal agreement among the aspirant holders of his office if, for any reason, he is unavailable to pilot this legislation through in accordance with the principles and ideas contained in it.
I propose a reasonable period to enable that to be done. A substantial amount of work has been done in the form of this document which has been circulated. It goes through the nuts and bolts of the representative structures which will be in place. The Minister indicated on Second Stage — and repeated tonight — that he proposed taking on board some of the more important principles which we advocate. A period of three months would be more than adequate, although I might be convinced that it should be longer. It is of the essence that we move as quickly as possible because the Garda Síochána have had a representative body since 1924 and the Defence Forces have waited long enough. We should be moving with all speed in this regard.
The substitution of "shall" for "may" as suggested by Deputies Nealon and Ryan is inappropriate in an enabling Bill. I remember when I was a civil servant listening to many debates and discussions in drafting legislation as to whether one put in the word "shall" or "may". In enabling legislation the word "shall" is inappropriate. I have not heard the concept of mandatory enabling legislation introduced in the House. It is a novel concept and mandatory and enabling do not seem to go terribly well together. There is a more serious problem in regard to the three months cut off point. Deputy McCartan is correct in suggesting that speed is of the essence and I hope we will get this Bill through provided that there is goodwill and that people do not interfere or introduce unnecessary hares in this issue. I hope we will have a negotiated set of regulations which will commend themselves to everybody and that the whole matter will be happily under way within three months.
It would be imprudent and unwise to insert a cut-off point because when you put people to the wall, so to speak, you produce a different reaction. I am not suggesting that the Minister, his officials or indeed the representatives of the Army personnel should be dilatory or leisurely in this matter but at the same time it would be unwise to lay down a cut-off point of three months. I would suggest that there are many precedents for the use of "may". It is fairly standard practice as anyone who has worked on drafting in the Civil Service or in a Minister's office is aware.
The Minister should consider inserting the word "shall" because it is much more positive. I think that is his intention anyway. We are only asking for an amendment to that section which would be designed to carry out what he intends to do in any case. I have reservations about the three months cut-off point. I appreciate Deputy McCartan's point of view. I hope it would not take three months, that maybe the consultations could be carried out in a month, but anything could happen in the meantime. If that provision was built into the section it would be in conflict with section 8 (3) which effectively states that the Minister has the right to put it into operation. We would be putting a clause into section 2 which would be in conflict with section 8 (3) and would nullify it.
I am also concerned that it might have the opposite effect and might react against PDFORRA or whatever group might be carrying out the negotiations. They would have to go back and have consultations and that would be a big task. There are many people all over the country who would be involved in consultation and the delay could very well be from their end rather than from the Minister's or the Department's side. I think it would be dangerous to insert that provision because it might tie the hands of the people whom we are trying to help. For that reason I oppose it.
First, I take the view that we should leave the word "may" on the understanding that it is based on agreement. Deputy Bell has said the word "shall" would be more positive and I appreciate his view but "shall" has mandatory connotations whereas "may" is a word that is used when talking about reaching agreement. The commitment is there and the whole process of consultation and discussion has been initated, in that talks are taking place with Mr. Sexton. The word "may" is quite common in parliamentary language and is used by the parliamentary draftsman's office on a regular basis. I understand it is also used in the Garda Síochána Act, 1977, and throughout the Defence Act, 1954.
Deputy Nealon has said this is of major significance but I do not agree on the basis that the commitment is well and truly there and on the basis of what the Minister has said on Second Stage and so far this evening. The word "may" fits more comfortably into the whole process of consultation and reaching consensus. I support Deputy Bell's view on the question of three months. To put down a marker of that nature could run contrary to the process of agreement and reaching consensus. My view is that we will reach consensus and agreement prior to the date referred to but if we start specifiying dates it will not be helpful on the basis that we will be undertaking something that is very much in the area of consultation. I think the word "may" fits more comfortably into the whole thrust of what the Minister is trying to do.
(Carlow-Kilkenny): This is getting back to college days, where there is a debating society as to whether “may” or “shall” shall or may be used. I find it very strange that when we are setting up a very definite body, the Minister “may” do something. The last speaker has outlined that this is an agreement but if the word “may” is used I do not see that there is any agreement because obviously it is at the discretion of the Minister to decide; if he feels in the humour or if things go right he may do something. I would accept the word “shall” but to insert the word “may” would be a contradiction. I referred in my Second Stage speech to section 5, which I am not going to discuss now, and I called it the “may” section. The word “may” appears three times in that section. I think that could be taken out of the Bill because it makes no sense.
Deputy Roche has mentioned the language of civil servants. There are times when I wonder whether they are competing with the insurance advertisement on television about how complicated insurance bills are made by certain companies. It is time we came into 1990 and forgot the language of years gone by. The word "may" has been used in the past but maybe it is time we forgot what was done in the past. I do not think it would be a major problem for the Minister to accept the word "shall". The Bill would still come into force. I am sure it is only a technical dispute but it would mean the Dáil had some relevance and that the Government side did not say, as I am sure the next speaker will, that what I am saying is rubbish. It makes no sense to insert the word "may" in regard to the setting up of a new body.
With regard to the word "may" I would just make one point, PDFORRA, as is well known, regard the Garda Síochána model as the one they want to pursue. The word "may" is used in the legislation governing the Garda arrangements and as far as I know it has not presented any difficulty. The second issue is of more substance and that relates to Deputy McCartan's amendment. In terms of industrial relations practice, flexibility is of the essence. It seems that setting a time limit is precisely what PDFORRA or any other representatives do not want. What they want is the fullest possible opportunity to thrash out everything with the official side and reach agreement. If the regulations are finalised within three months, all to the good but I think this provision would remove a necessary flexibility, especially for people who are entering organisations for the first time. For precisely that reason they need more freedom and flexibility than might ordinarily apply. On grounds of logic and practicality, and the wishes of PDFORRA, I would be opposed to any time limit. At the same time both sides should work hard to achieve consensus on the regulations as rapidly as possible.
The corresponding legislation to the current Defence (Amendment) Bill, 1990, which for the first time is establishing a defence representative association, is the Garda Síochána Act, 1924. When representative associations for the Garda Síochána were established for the first time under that Act, the word "shall" was used. It states: "there shall be established, in accordance with regulations to be made under this Act, a representative body or bodies". The precedent is there and I wish people could be accurate when they make contributions to the House.
For the second time I have to say I was referring to the 1977 Act and practices since then. There is no point in putting an interpretation on something I did not say.
I was addressing the proposition Deputy Roche had made that there is no precedent. I accept that the 1977 Act substitutes a subsection that incorporates the word "shall" but in the original legislation which established Garda Síochan representative associations, as this Bill proposes to do for the Defence Forces, the word "shall" is used. It is remarkable that all the provisions in the Bill relating to the Minister contain the word "may"— the Minister may do this and the Minister may do that — but if we look at the next subsection, which refers to the association and what the association shall do, everything is in the imperative "shall". In section 2 (3) the word "shall" is used and subsection (4) states "a members shall not become ...". What is good for the Defence Forces should, I believe, be equally good for the Minister.
If the notion of the word "shall" is inappropriate to grounding legislation why should it apply to what the Defence Forces and their members should do? The importance — and it is not a play on words — is that the judicial interpreation of the word "may" is that it gives discretion, whereas the judicial interpretation of the word "shall" is that it creates an obligation. It must be acted upon. I have made the point that there will be a difficulty lest there be a change in office. In my view there is not universal agreement about the idea of a representative association either among the Government or among the higher echelons of the Department. More particularly there is no such agreement among the commanding structures of the Defence Forces. There are people in very influential positions who, if given half the chance, would tear this Bill up and would not hear of any suggestion of a representative association whatever. In amendment No. 4, my addition to the subsection is "three months". In producing that I have said I have no difficulty in accepting a good argument for extending it to six months or whatever number of months is required, but I am very firmly of the view that we must set a date by which the regulations and the associations should be in place. The reason I say that is that if one looks at how we are now operating on a single piece of historic legislation which is establishing for the first time representative associations, we are in fact giving the entire operation over to the Minister to put the regulations in place outside this House. We have, in a unique way, handed over the entire debate to other quarters and for that reason we should have some right of regulation even if at the end of the day we can do no more than set the date as to when the regulations will be brought back to the House. If the Minister who will be leading these negotiations tells me that three months is tying his hands too tightly, I will accept that by all means and I will withdraw my amendment in favour of something better on Report Stage. However, I am very firm that we should know when the finality is expected to this House.
With regard to the disingenuous suggestion that this is in conflict with section 8 (3), Deputy Nealon has an amendment down that the subsection be deleted, which I fully support as I do not see any need to duplicate it.
Deputy Browne made the point earlier that this is like a debating society, but I suppose that is what we are. We have had contributions ranging from forgetting the past in the matter of words to going back to the past to justify the words. Perhaps we might agree that we have devoted a fair amount of time to the words, "may" and "shall" and we might be aware that we have to move on to other business. However, that is merely an exhortation to anybody who will make a further contribution to be as brief as possible.
I am afraid that, on the basis of experience, I will have to come down on the side of "shall". All public representatives, and particularly members of local authorities have had countless experiences of having various sections pointed out where in one case the word "shall" is used and in other cases the word "may" is used and we are then informed that the definition of "may" is that if there is a commitment by the Government of the day the Minister "may" introduce regulations or whatever the case may be or in certain circumstances the Minister "may" carry out certain instructions or "may" respond in a certain fashion. The amendments that have been tabled are very reasonable and I think they should be accepted. I ask the Minister to accept them on the basis that they leave no grey areas. It is quite clear that the word "shall" means that the Minister is giving a commitment on behalf of the Government in relation to this section. While we could talk about it for a long time I will be brief as I appreciate the Leas-Cheann Comhairle's request for expedition. I fully support the amendments tabled by Deputy Nealon and others and I ask the Minister to take them on board.
Surely the manner in which the Bill is being debated is evidence of the commitment on the part of the Government to this measure. There is no question about that. It is what has been communicated to the representatives of the Defence Forces, who are fully aware of that commitment and are now engaged in discussions with a view to having elections to get the whole procedure going in the manner I envisage. There is no going back on that. I am acting on behalf of the Government. Collective responsibility is involved and there is no question of what this Minister or that Minister thinks. It is a Government decision that will be implemented through legislation in this House. I want to make that quite clear. Whether I am here or somebody else is here, that is the fact of the matter. It is what was envisaged by my colleague, Deputy Vincent Brady, Minister of State at the Department of Defence who, in regard to this point of Defence Forces representation said, as reported at column 760 of the Official Report for 20 July, 1989:
.... I intend to have the situation examined in a thorough-going way and to do so as quickly as the complexity of the subject will allow.
I mentioned that to show there is an ongoing progression in this matter and to show what we are determined to do. Otherwise we would not be here with this Bill which marks a new departure in the attitude to the Defence Forces so far as all Governments since the formation of the State have been concerned. It is an historic occasion in that respect. This is serious business.
The reasons that "may" is used instead of "shall" are very simple: first this is enabling and not mandatory legislation. I am advised by the draftsman that the language used is in keeping with the standard correct legal drafting practice for such a Bill and that "may" is the word used in the Garda Síochána Act, 1977 and throughout the Defence Act, 1954. Changes from that legal usage only raise questions in the eyes of the legal profession and in the courts who interpret these matters. They would be likely to ask why "shall" is used while "may" is used in similar sections in the Acts of 1954 and 1957. We in this Oireachtas or people in any parliament have to have regard to the consistency of phraseology in drafting. We are not engaged in a literary exercise, sometimes drafting can be ugly but it is precise in terms that it follows precedents from Act to Act. That is the way it works and I want to emphasise that point here. The word "may" is most appropriate here because this is enabling legislation. If, for instance, we use the word "shall" and we do not get agreement, and the whole essence of this enabling Bill is to get the agreement of the representatives of the military personnel——
The Minister has said already that he has the agreement of 99 per cent of the Defence Forces.
That is my opinion but I am not pre-empting discussions. The Deputy should not put words into my mouth. That is my opinion and that is what I would say if I were sitting across the table in discussions with the duly elected representatives. However, they may not agree with me.
What were the two stooges up to?
It is for that reason also that the amendment put down by the Deputy proposing a limit of three months would be prejudicial to the interests of the representatives of military personnel, as was pointed out by Deputy Bell. One of the reasons the Gleeson committee have until next June to report is that the men, through their various teams, in their representations to the committee asked for time to prepare their case. When it comes to discussing the nitty gritty and the details of the regulations, I am sure that many points which neither I nor anyone else in this House has yet considered will be raised by the elected representatives of the military personnel and they may wish to see them incorporated in the regulations. I may not agree with them but if there is something in their case we should incorporate it in the regulations.
There has to be flexibility and the essence of this legislation is its flexibility. To ensure that this legislation will be as flexible as possible I have embodied a provision in section 8 under which the coming into operation of the Bill can be postponed to allow for delays, making representations or suggestions on the nitty gritty and what should be incorporated in the regulations so that they can be teased out fully.
If the word "shall" was included in the legislation it would, to some degree, pre-empt the ultimate decision on what should be incorporated in the regulations. It would also carry the implication that the Minister must bring in regulations irrespective of the views of the representatives of Defence Forces personnel. I do not want that to be the case. I want to be in a position where I can tease out the matter in the greatest possible detail and obtain agreement on what should be incorporated in the regulations. At that stage they would come before the House. I do not want to be mandated to bring in regulations.
Deputies cannot have it both ways. They cannot expect to have a provision which would make it mandatory on the Minister to bring in regulations and have the maximum amount of consultation at the same time. What I want is the maximum amount of consultation to take place with the representatives of the men; and I want the legislation coming from this House to be as flexible as possible to ensure that the maximum amount of consultation will take place and that the fruits of that consultation, an agreement, are incorporated in the regulations. That is the spirit in which we should be debating this legislation.
I have to disagree with the Minister. There is no conflict between what we have been saying since the introduction of this Bill on the necessity for consultation on what should be included in the regulations and what we are proposing in this amendment. This is the first debate on a Bill to which I have contributed and I feel it is up to us, in the Opposition, to try to convince the Minister on Committee Stage of the necessity to take on board the points being made by us. Having listened to the contributions from the other side of the House this evening, I regret to say that they came into this House with preconceived ideas and not prepared to move on this amendment.
The Deputy is learning fast.
The argument has been made that we need the word "may" in the legislation to allow us enter into consultations but we should remember that it is we who decide what legislation is passed. In relation to this historic legislation, the strongest possible wording should be inserted and in this case the word "shall" should be included. There would then be a responsibility on the Minister to negotiate and to come up with an agreement. If there is no argument about the terminology why, as Deputy McCartan asked earlier, is there inconsistency in the wording in the Bill? There is no point smiling——
The Deputy's argument does not stand up.
Let us be honest and take on board some of the points being made. Are the views being expressed by this side of the House going to be cast aside as being irrelevant?
We are prepared to listen.
I will keep contributing until I feel the best and most logical definition is included in the Bill. Notwithstanding what the Minister said I ask him to take cognisance of what the Opposition are saying here tonight.
This is not a literary exercise or a debating point but rather the central point on the central section of this Bill. The reason I put down my amendment is that I wish to make it mandatory on the Minister to bring in regulations. The Minister is relying on two arguments, the first of which is that if we press ahead and insert the word "shall" this would be to the detriment of the members of the associations. However, if we leave the word "may", this would be far more detrimental. His second argument is that the draftsman so advised him. The draftsman looks up legislation going back to the foundation of the State to see what is contained in it and then advises the Minister on the way it should be done. Everyone in this House knows the meaning of the words "shall" and "may" and logic says that we should opt for "shall". We owe it to the Defence Forces to do this. This is an important and historic Bill and the very least we should do is ensure that there will be a Bill. I will certainly be pressing my amendment.
There is a stalemate, and it seems to me that the only way to resolve the matter is to put the question.
(Carlow-Kilkenny): Let me make one small point. The Minister has argued that much discussion and debate are needed but this shall still take place regardless of which word is inserted. If the Minister got a note from the Taoiseach saying that the Tánaiste may resign he would be very happy but if he got a note saying that the Tánaiste shall resign he would sit up and take notice. The Minister cannot play around with words and while I accept he has far more experience than I have, he should accept the amendment.
Will the Minister compromise?
How does one compromise between the words "may" and "shall"?
Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 67; Níl, 58.
Tá
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Browne, John (Wexford).
- Burke, Raphael P.
- Callely, Ivor.
- Clohessy, Peadar.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Daly, Brendan.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leyden, Terry.
- Martin, Micheál.
- McCreevy, Charlie.
- McDaid, Jim.
- McEllistrim, Tom.
- Molloy, Robert.
- Morley, P.J.
- Nolan, M.J.
- Noonan, Michael J. (Limerick West).
- O'Connell, John.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Ellis, John.
- Fahey, Jackie.
- Fitzgerald, Liam Joseph.
- Fitzpatrick, Dermot.
- Flynn, Pádraig.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Harney, Mary.
- Hillery, Brian.
- Hilliard, Colm.
- Hyland, Liam.
- Jacob, Joe.
- Kelly, Laurence.
- Kenneally, Brendan.
- O'Dea, Willie.
- O'Donoghue, John.
- O'Keeffe, Ned.
- O'Leary, John.
- O'Toole, Martin Joe.
- Power, Seán.
- Quill, Máirín.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Wallace, Mary.
- Wilson, John P.
- Wyse, Pearse.
Níl
- Ahearn, Therese.
- Barry, Peter.
- Bell, Michael.
- Bradford, Paul.
- Browne, John (Carlow-Kilkenny).
- Byrne, Eric.
- Carey, Donal.
- Connaughton, Paul.
- Cosgrave, Michael Joe.
- Cotter, Bill.
- Creed, Michael.
- Currie, Austin.
- Deasy, Austin.
- Deenihan, Jimmy.
- Doyle, Joe.
- Durkan, Bernard.
- Enright, Thomas W.
- Farrelly, John V.
- Ferris, Michael.
- Finucane, Michael.
- Fitzgerald, Liam Joseph.
- Flanagan, Charles.
- Gilmore, Eamon.
- Gregory, Tony.
- Harte, Paddy.
- Higgins, Jim.
- Higgins, Michael D.
- Hogan, Philip.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kenny, Enda.
- McCartan, Pat.
- McCormack, Pádraic.
- McGahon, Brendan.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- Mitchell, Gay.
- Mitchell, Jim.
- Moynihan, Michael.
- Nealon, Ted.
- O'Keeffe, Jim.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Owen, Nora.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Reynolds, Gerry.
- Ryan, Seán.
- Sheehan, Patrick J.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Taylor-Quinn, Madeleine.
- Timmins, Godfrey.
- Yates, Ivan.
Tellers: Tá, Deputies V. Brady and Clohessy; Níl, Deputies J. Higgins and Howlin.
Question declared carried.
Amendment declared lost.
I am asking that amendment No. 4 be put. It contains an important addendum principle as regards the time within which the regulations should be introduced by the Minister. For that reason I would ask that the question be put.
I am not certain if the question can be put now, Deputy, by reason of the decision already arrived at.
In that case I ask to have it withdrawn.
I will see about the possibility of assisting the Deputy on Report Stage.
Amendment No. 4 not moved.
We come now to amendment No. 5. Amendments Nos. 6 and 7 are alternatives and I suggest, therefore, that we discuss amendments Nos. 5, 6 and 7 together by agreement. Is that satisfactory? Agreed.
I move amendment No. 5:
In page 2, subsection (1), line 27, after "remuneration" to insert", welfare, schemes of medical benefit and family support systems".
In the definitions section the word "remuneration" means pay, allowances, gratuities or grants payable by the Minister to a member or any pension, retired pay or gratuity for which a member may be eligible in respect of or arising out of his service as such a member.
As you will see, a Cheann Comhairle, the word "remuneration" deals exclusively with money matters, but these, as all of us will agree, are exceedingly important to members of the Defence Forces as well as to Members of Dáil Éireann or to any other person. The wording of this section indicates the Government's thinking on all the sections in the Bill. It is very much a limiting section. The word "remuneration" deals exclusively with money matters. There is the addendum — but it is not a clear cut addendum: "and such other matters (if any) as the Minister may specify in the regulations". This is a confining provision seeking, in every line and in every section to curtail the exposure of the Government.
My amendment suggests the addition of the words — Deputy McCartan and Deputy Ryan have suggested other excellent wording in their amendments —"welfare, schemes of medical benefit and family support systems" in section 2 (1). The document entitled Permanent Defence Force Representative Groups with contains the Government proposals, as conveyed by the Minister — one could not have any greater authentication of a document than that — is excellent in this respect. In defining welfare, the document mentions such matters as saving schemes, assistance funds, recreational facilities and educational facilities aimed at developing the individual socially and culturally, including courses to aid adjustment to civilian life. All these are very laudable matters and would be covered by the word “welfare” in my amendment. My amendment also proposes the inclusion of “schemes of medical benefit and family support systems” in section 2 (1).
I know the Minister will say that these matters will be included, that they have been specified in the Government's proposals — which we found very inadequate and threatening in other respects — and that it is not necessary for us to write them into the legislation, but I believe we should copperfasten these elements in order to give proper scope to what is intended here. If it is intended to include these matters why not put them in the Bill so that, irrespective of who is the Minister this is the Bill the Defence Forces will have in the future so that they can say "this is our Bill and these are the matters covered in it". The Minister could include the words "and such other matters (if any) as the Minister may specify" after elaborating further and dealing with matters other than remuneration.
I believe my amendment is very reasonable. The Minister has so far shown himself to be in a very unreasonable mood and he should make a readjustment as early as possible by accepting what will not only be good so far as he is concerned but what will be a major addition to this Bill. I know the Minister would like to have as perfect a Bill as possible and I am seeking to help rather than frustrate him in this respect.
I support the amendment moved by Deputy Nealon. My amendment and Deputy Ryan's amendment on behalf of the Labour Party seek to work towards the same end. We are seeking to include in the Bill a broader base upon which the Defence Forces representative association will be able to operate and organise. It is clear from the Bill that the Minister is fully committed to the concept of remuneration and all that it involves under section 1. He believes it is an important and central role of the representative association but curiously subsection (1) says "... and such other matters (if any) as the Minister may specify in the regulations..." and what I can only describe these as infernal regulations in view of the fact, that they have been removed completely from the ambit of our consideration as a result of what happened on the earlier debate on section 7.
If we go along with the Minister's proposals and if he decides to establish the regulations, we will not have the opportunity to discuss them and, in so far as we are dealing with enabling legislation, we will for the time being be enabling the representative association to work in the area of remuneration as defined in the Bill, but nothing else. So far as this House is concerned remuneration is being provided for explicitly in the Bill and everything else will depend on what the Minister deems to be relevant as time goes on.
Members on the Government side have quoted the Garda Síochána Act, 1977, to their benefit and advantage on numerous occasions and said this is the precedent on which we should be proceeding. This Act incorporates additional wording to the narrow remuneration concept. The Garda Síochána Act, 1977, provides that the representative association can deal with all matters "affecting their welfare and efficiency". That is a repeat of the wording in section 13 of the 1924 Act which refers to welfare and efficiency. The question has to be asked: why we are not providing a similar formula in this legislation?
I fear that the Bill has been drafted in a different context entirely and is a response to the representations and campaign on pay and other issues taken up on behalf of the Defence Forces, and now before the Gleeson Commission. There is a suggestion that the Defence Forces are concerned only with the rate for the job. It has emerged during many debates in this House that there are wider issues of equal importance to the Defence Forces than pay and remuneration, which we seek to cover in our amendments.
My amendment proposes the inclusion of the words "welfare, health, education, housing and all related matters" in section 2 (1). It is important that this House, which has been denied an input into the regulations which will eventually be put in place, should at least have some opportunity to identify areas in which we believe the representative associations, as eventually established, will have a role to play. I say that on the basis that these have been active issues not only by the soldiers but by the National Army Spouses Association who have argued that these issues have to be dealt with and addressed. During the last general election these issues were raised on the doorsteps with candidates from the National Army Spouses Association and other parties. These issues were not picked from the air. They are very real issues and I will deal with them one at a time.
I have raised at Question Time the issue of welfare and schemes of welfare, such as psychological and psychiatric schemes, which are needed for those soldiers who have been in the long-term employment of the Defence Forces and who are now returning to the community. I have also referred to the fact that the provisions of the Health Acts and the medical card scheme are not available to members of the Defence Forces. The fact that they are not entitled to access to a doctor of their choice under the general medical scheme is a burning issue. There is nothing more urgent than housing. There must be vast areas of the barrackland accommodation of the Defence Forces needing the urgent attention of the bulldozer. There are many other related matters.
Progress reported; Committee to sit again.