Defence (Amendment) No. 2 Bill 2006: Second Stage.

I move: "That the Bill be now read a Second Time."

I am very pleased to present this Bill to the House. The Defence Forces are a fundamental pillar of a democratic society. Every member of our Defence Forces has volunteered to serve the State. They also undertake to obey all lawful orders issued to them and to submit to the unique code of discipline, which is an essential part of military life. From time to time we ask them to undertake dangerous and difficult missions on our behalf, both within the State and while engaged in peace support or humanitarian missions abroad. Over many years the Defence Forces have rightly earned the very high respect and regard of the people of Ireland. Around the world Irish military personnel are widely admired for their outstanding commitment and professionalism. Our Defence Forces are highly trained and well equipped. Military personnel have consistently shown the highest standards of courage and discipline in responding to the call of duty. The ability of the Defence Forces to continue to maintain this high standard demanded of them requires complete clarity with regard to the exercise of command authority whether at home or abroad. For challenges and dangerous missions to succeed, the chain of command must be clear and unambiguous at all times. This is critical to the maintenance of unit cohesion and operational effectiveness.

Discipline is of the essence in a military force. Commanding officers are responsible for discipline within their units. They exercise authority primarily through leadership and by inspiring the confidence, loyalty and trust of their subordinates. Officers and non-commissioned officers receive a world class military education which emphasises leadership, teamwork and a sense of responsibility for the welfare of the individual soldier. As a result there is a very high standard of discipline and offences are rare. The Defence Forces must, however, also have the ultimate power to enforce discipline through their own unique code of discipline within the Irish military justice system. The disciplinary code must support operational effectiveness. It must be efficient and effective. Above all, it must be fair to the individual.

The primary purpose of this Bill is to modernise the code of discipline by amending and updating the provisions of Part V of the Defence Acts, having due regard to prevailing human rights norms. The Bill provides for new structures, scope, procedures, punishments and appeal processes governing both summary investigations and courts martial. New measures in the Bill include the establishment of an independent military prosecuting authority and an independent military judicial office, the appointment of a court martial administrator, the establishment of a new summary court martial, and the restructuring of general and limited courts martial.

In modernising the disciplinary provisions of the Defence Act, regard was had to recent developments in the military law of other common law jurisdictions and in the ordinary criminal law. Most important, it is necessary to ensure the Irish military disciplinary system is fully compliant with modern European and domestic human rights norms.

Part V of the Defence Act 1954 provides for disciplinary procedures under military law for members of the Defence Forces. Apart from the establishment in 1983 of the Courts Martial Appeal Court, the introduction of a legal aid scheme and some updating of punishments for breaches of military law, the system has remained largely unchanged since then. During the past 50 years, however, there have been several important developments which potentially impact on military law and disciplinary procedures. These include case law decisions of the Irish Courts Martial Appeal Court; various important statutory developments and case law decisions in Irish criminal law; case law decisions emanating from the European Court of Human Rights, particularly those in respect of Articles 5 and 6 of the European Convention on Human Rights; and significant developments in the military justice systems of other common law jurisdictions.

The European Court of Human Rights has benchmarked the independence of military courts by reference to a number of key indicators, including the mode of appointment and terms of office of the court members, protections provided against external influence and the provision of a manifest appearance of independence. Furthermore, it has stated that in order to satisfy an impartiality requirement, military courts must be subjectively free of prejudice or bias and must provide sufficient objective guarantees to exclude any legitimate doubt in this matter. As a consequence of these developments, in July 2001 the military authorities established a military law review board to review the adequacy, effectiveness and fairness of the military justice system as laid down in Part V of the Defence Act. Particular regard was had to decisions of the European Court of Human Rights as they related to the administration of military justice.

The military law review board reported to the military authorities in April 2002. It recommended the amendment of some 76, out of the total of 134, sections within Part V of the Act. The recommendations were fully approved by the Office of the Attorney General in July 2003. The Office of the Attorney General recommended incorporation of the recommendations by appropriate amendment of the Defence Act 1954.

Ireland is an original party to the European Convention on Human Rights since it came into force in 1953 and the convention has been incorporated into Irish law by the European Convention on Human Rights Act 2003, with effect from 31 December 2003. Therefore, since 2003, there is an explicit obligation upon every organ of State to operate in a manner compatible with the convention. Rights under the convention can be pursued primarily and directly before domestic Irish courts.

Pending the introduction of this Bill, non-statutory interim measures have been implemented with regard to the summary investigation of offences and the conduct of courts martial under the Defence Act. These measures were designed substantially to satisfy the requirements of the European Convention on Human Rights in relation to the conduct of military legal proceedings. It is now proposed, however, to put in place a comprehensive range of proactive statutory provisions, which are aimed to meet with, or exceed, international best practice and human rights norms in this regard. This Bill contains many new arrangements and procedures to achieve that objective. The members of our Defence Forces who serve our State so loyally both at home and abroad deserve nothing less than that.

Since the report of the military law review board was submitted, a number of legal challenges to the old system have been taken to the High Court. I will not refer to any of those cases other than to say they will take their course in the normal way. I believe, however, that the measures proposed will address any concerns which have been raised by serving personnel in recent times. I also believe the measures contained in this Bill will be welcomed by all members of the Defence Forces and will ensure that the provisions of Part V of the Defence Act relating to summary procedures and courts martial comply fully with best practice and human rights norms.

The general scheme of the Bill, as approved in June 2005, contained 141 heads. However, due to the importance of bringing forward modernising legislation as soon as possible, and the complexity and extent of the proposed legislation, it was decided to focus initially on the more urgent amendments to the provisions of Part V of the Defence Act relating to summary procedures and courts martial. A number of other less urgent amendments, which are relatively straightforward, have also been included.

I do not intend to detail at this time the remaining proposals to amend the Act, which were in the general scheme but which are not included in this Bill. However, I believe they will, in due course, contribute to the further improvement of the Irish military justice system. These further proposals are complex in nature and are not yet ready for inclusion in the Bill. Instead it is proposed to include them in a separate Bill at a later date.

The provisions of the 1954 Act were largely influenced by the Canadian and British systems then in place. The approach taken in this Bill is one of what best suits the Irish Defence Forces' needs and resources, having due regard to current human rights norms and other common law jurisdictions and systems. A comparative study of the Canadian, British, Australian and other common law systems, as well as careful consideration of human rights norms and the ordinary criminal justice system in Ireland, influenced the formulation of the present proposals, which in some aspects will be unique to this country.

The primary focus of the Bill is to overhaul radically the procedures for the summary disposal or trial by court martial of offences against military law. The amendments are extensive and time does not permit me to explain every provision in detail. Therefore, I will focus only on the main provisions. Sections 12 and 14 provide for the revision of the time limits for the bringing of prosecutions. The time limit for bringing of a charge against a person who has left the Defence Forces is extended from three to six months. For serious offences, the current three year time limit will be increased to six years. For minor disciplinary offences, dealt with summarily, the time limit will be reduced from three years to one year. Time limits for trial by court martial will not apply to civil offences committed while serving outside the State.

Section 13 amends the existing law with regard to a very limited range of circumstances in which a civilian may be subject to military law. I propose to extend to them the option of being dealt with summarily, with a right of appeal to a summary court martial. By being dealt with summarily, they are exposed to the possibility of a lesser punishment, which cannot include a custodial sentence. Sections 15 to 19 make necessary amendments to five of the offences against military law provided for in the Act.

Section 20 provides for the scheduling of offences of a disciplinary nature which can be dealt with summarily by an authorised, commanding or subordinate officer, as appropriate. These offences are in respect of matters which, although vital to the maintenance of discipline in the military context, are considered suitable for summary disposal. The summary disposal of the potentially more serious disciplinary offences requires the prior consent of the Director of Military Prosecutions.

Sections 22 to 30, inclusive, make extensive amendments to the existing law dealing with the investigation and summary disposal of charges against officers by authorised officers, against men by commanding officers and against privates and seamen by subordinate officers respectively. The aim of the summary procedure is to deal fairly and swiftly with minor disciplinary infractions within the unit and to return the member to normal service as soon as possible.

The more important measures in sections 22 to 30 include a person charged with an offence will have a right to at least 24 hours written notice of the date, time and place at which the charge is to be investigated, a copy of the charge sheet, a list of witnesses and a copy of any available evidence; in every case a person charged with an offence will have a right to elect for trial by court martial at the outset and an opportunity to obtain legal advice, if required, in that regard; the summary disposal of charges is limited to offences which are disciplinary rather than criminal in nature, that is, scheduled offences; a person charged with an offence, which is being dealt with summarily, will have a right to have an "assisting person" present at the investigation; the commanding officer's power to award detention will be abolished; where a charge is dealt with summarily by an authorised or commanding officer, there will be an absolute right of appeal to a new summary court martial, against the determination and-or the punishment awarded; and where a person is remanded for trial by court martial the case will be referred to the Director of Military Prosecutions for his directions.

Section 32 provides for the appointment of a court martial administrator. His function will be the management and control of the administration and business of courts martial, the convening of courts martial on the direction of the Director of Military Prosecutions and the appointment of members of court martial boards. He will be independent in the performance of his functions. He will not be in the same chain of command as the person charged and he replaces the convening authority. This provision provides a statutory basis for the current practice.

Section 33 provides for the establishment of an independent military prosecuting authority, to be called the Director of Military Prosecutions. He will decide, as the Director of Public Prosecutions does in the ordinary criminal legal system, all issues relating to the prosecution of offences before courts martial. He will have primary responsibility for the direction and conduct of prosecutions at courts martial. Section 34 provides for the establishment of an independent military judicial office with the appointment, by an independent authority, of one or more military judges. A military judge will have security of tenure and a judicial role similar to that of a civilian judge. He replaces the existing judge advocate.

Section 38 provides for the establishment of a new class of court martial called the summary court martial. It will be a permanent court, composed of a military judge sitting alone. The summary court martial will have jurisdiction to deal with less serious cases remanded for trial by court martial, appeals from summary cases and applications for legal aid. Sections 39 and 40 provide for the restructuring of general and limited courts martial. These courts martial will consist of a military judge and a court martial board. The military judge will preside over the trial, as a civilian judge does in the ordinary courts. He will determine all legal issues and decide sentence. He will neither be involved in nor have a vote in the deliberations of the board. The board will make findings of fact, as a jury does, and will have no role in sentencing. Where the accused is not an officer, a senior non-commissioned officer may be a member of the board. Section 41 expands the list of persons who may not be members of a court martial board.

Section 42 provides for the general jurisdiction of the new summary court martial. It also amends the existing jurisdiction for limited and general courts martial. Specified serious offences are excluded from the jurisdiction of both the summary and limited courts martial in all circumstances. When exercising its original jurisdiction the maximum punishment that can be awarded by the summary court martial will be six months imprisonment. When acting as an appeal court, a summary court martial cannot award a custodial punishment or any punishment greater than that which could have been awarded at the summary investigation. The jurisdiction of the general court martial is amended to include a case of rape or aggravated sexual assault, where the person in respect of whom the offence was committed is, or was at the time, subject to military law. This jurisdiction is conditional on the consent of both that person and the DPP. Sections 43 to 47, inclusive, deal with matters of procedure at courts martial.

Section 48 amends the existing law, which requires a simple majority for decisions of a court martial. This is being changed to a new requirement of a two thirds majority of a court martial board to make a finding of guilty. If less than two thirds of the court martial board vote for a guilty finding on any charge, the accused shall be acquitted of that charge. Sections 50 to 52, inclusive, deal with necessary amendments to the existing provisions regarding issues as to the mental state of an accused person either at the time of the commission of an offence or at the time of trial. Section 53 makes new provision for victim impact statements in the case of certain offences of a sexual or violent nature. Sections 54 to 56, inclusive, deal with further procedural amendments.

Sections 57 and 58 make adjustments and additions to the scale of punishments awardable at court martial, including new monetary provisions. The existing mandatory requirement on a court martial to sentence an officer to dismissal, when it awards him imprisonment, has been limited to situations where the term of imprisonment awarded exceeds six months. In line with this, the term of imprisonment, above which a court martial must also sentence an enlisted person to discharge from the Defence Forces, has been reduced from two years to six months.

Section 60 makes new provision that a person cannot be sentenced by a court martial to imprisonment or dismissal or discharge, if that person has not had legal representation at some time after the finding of guilt and prior to sentencing. This is a useful additional safeguard in circumstances where a person charged is represented during the trial, at his own request, by a military officer, who may not have any legal background or training. This section also stipulates circumstances where this provision will not apply, which include where a person specifically declines to be legally represented.

Section 61 makes provision for the suspension by a military judge of custodial sentences, with or without conditions attached, other than in the case of a mandatory term of imprisonment. This effectively replaces and expands the existing law, which provides for the suspension of custodial sentences, for enlisted personnel only, by a specified "superior authority", which is obviously no longer appropriate. Section 62 makes new provision that, in certain circumstances, the Director of Military Prosecutions, similar to the DPP, can appeal unduly lenient sentences to the courts martial appeal court.

Sections 63 and 64 modify existing provisions regarding compensation orders and fines. Sections 65 to 69, inclusive, deal with post-trial matters including the implementation of a custodial sentence.

Section 70 modifies existing provisions relating to rules of procedure. Section 71 provides for the establishment of a new courts martial rules committee, whose function is to make court martial rules governing the practice, pleading and procedures generally of courts martial, on a similar basis to the Circuit Court rules committee. In the existing Act, the power to makes these rules is vested in the Minister under section 240.

The Bill contains several Schedules, which deal with such matters as transitional provisions and miscellaneous amendments to other statutes. The Bill also provides, through the repeal of sections 215 to 222, inclusive, of the existing Act, for the abolition of the processes of confirmation, revision, mitigation and remission of the findings and sentences of courts martial. Since the introduction of the courts martial Appeal Court, there is no requirement for the continued retention of these processes.

In addition to the disciplinary type provisions described, section 8 amends section 61 of the existing Act to provide for greater flexibility in the transfer between service corps of personnel enlisted into the Permanent Defence Force after the commencement date of this section. Under current provisions personnel who have served more than ten years in one service corps can only be transferred to another service corps in particular circumstances.

Although matters relating to discipline are outside the scope of the representative functions of the associations, both RACO and PDFORRA have been fully briefed on the Bill's contents and have welcomed its measures. PDFORRA stated the new right of appeal to the summary court martial is a major step forward. The Bill was referred to the Irish Human Rights Commission and we have just today received its observations. The commission views the main thrust of the Bill as progressive and as an important step towards affording clear and consistent protection of human rights in this area. The commission has raised a small number of specific issues which are being examined.

The Bill was welcomed by Senators from all sides of the House. Several amendments were made on Committee Stage in the Seanad which have improved the Bill. In particular, the provisions relating to the appointment of the military judge and the chief military judge benefited from amendment and reflect the status attaching to these positions.

I am pleased to submit this legislation, as amended by the Seanad, for the consideration of the House. The changes to the Defence Act are both necessary and desirable in order to ensure the military law justice system is both expeditious and fair to the individual, contributes significantly to the maintenance of discipline within the Defence Forces and complies with the Constitution. Most importantly, it ensures the provisions of Part V of the Defence Acts, relating to summary procedures and courts martial, are fully compliant with prevailing human rights norms.

I commend the Bill to the House.

This is a detailed Bill that may not excite the public's mind because it is very technical. The Minister of State spoke of the desire to maintain the discipline of the Defence Forces. I would prefer to see the Bill dealing with the administration of justice rather than maintaining discipline in the Defence Forces. The Fine Gael Party supports the Bill.

A person joining the Defence Forces is subject to the Defence Act 1954 from the moment he or she joins until the moment he or she leaves. This subsection to the Act applies even while a person is on leave in the privacy of his or her home. The provisions of the Defence Act are comprehensive, covering all aspects of the Defence Forces, of which discipline is only one part.

Not only is the individual subject to the Act, but the Defence Forces as a whole are a creature of statute. The Defence Forces owe their origin and maintenance to the provisions of the Constitution and the legislation of the Oireachtas. This overwhelming control by statute puts members of the Defence Forces in a unique position in the State, especially as a comprehensive system of justice, authorised by Article 38.4 of the Constitution, is included in the Act. This control places a special obligation on the Government and the Oireachtas to keep the Defence Act and its ancillary legislation under review, so they can be updated as circumstances change and any anomalies or errors corrected.

Article 46 of the 1922 Constitution of the Irish Free State granted the Oireachtas the exclusive right to regulate the raising and maintenance of armed forces, which would then be subject to Oireachtas control. Detailed regulation of the existing forces was then defined by statute in the Defence Forces (Temporary Provisions) Act 1923. This Act was largely based on the UK's Army Act of 1881. The UK's Naval Discipline Act of1866 was consulted by the draftsmen of the sixth Schedule of the Defence Forces (Temporary Provisions) (No. 2) Act 1940 in order to include offences relevant to the naval forces, which were, however, not established on a permanent basis until 1946.

Following independence, the Defence Forces (Temporary Provisions) Act 1923 was enacted to last for only one year until a permanent Act was passed. However, it was renewed annually, with many amendments, until 1954, thus following the procedure used by the British to comply with the Bill of Rights. General Seán MacEoin, the then Minister for Justice, presented the Defence Bill 1949 on behalf of the coalition Government and proposed retaining annual renewal, but this was rejected in the Defence Bill 1951.

The first amending Act was introduced in 1960, enabling members of the Defence Forces to serve abroad with United Nations in "duties of a police character". A second Act was passed while soldiers were serving in the Congo, nine having been killed in an ambush. Other Acts amended ranks, enabled women to join the Defence Forces and altered punishments which could be awarded.

In the late 1980s considerable dissatisfaction arose over levels of pay, leading eventually to Army wives standing for election to the Dáil. An outcome was the Defence (Amendment) Act 1990 which provided for the establishment of representative associations. The Defence (Amendment) Act 1993 authorised the Defence Forces to serve with the United Nations in situations more serious than of a mere "policing" nature. The 1998 Act provided for reorganisation at defence headquarters, the adjutant-general being re-titled the deputy chief of the defence staff (operations) and the quartermaster-general, the deputy chief of staff (support).

The Defence Act 1954 has also been amended by Acts of a general nature such as the Criminal Justice Act 1990 which abolished the death penalty. In spite of these amendments, the Government and the Oireachtas lack the discipline for regular review which especially keeps military law in line with criminal law. For instance, there is no provision for young members of the Defence Forces to be sent to St. Patrick's Institution instead of a sentence of imprisonment. Young members of the Defence Forces are excluded from the benefits of the Children Act 2001 by section 272 of the principal Act, which removed any benefits that they enjoyed under the Children Act 1908, creating a clear need for an amendment to the Defence Act. Will the Minister examine this limbo before Committee Stage? The Fine Gael Party will soon be launching its back on track policy which will provide for more progressive rehabilitation for young offenders. I am sure Deputy Costello will be glad to offer his support on this.

The Oireachtas has freedom to enact or repeal legislation, or not, as it thinks fit within the bounds of the Constitution. However, the European Court of Human Rights is directly critical of procedures which fall within the ambit of Article 38 of the Constitution, trial of offences. The Government should be sufficiently embarrassed to take legislative action. The British Parliament had enacted the Armed Forces Act 1996 in order to create compatibility with the convention before Findlay v. United Kingdom reached the European Court of Human Rights.

It could then make available to the court the legislation put in place to remedy the shortcomings of its defence legislation. There remain strong reasons for Irish legislators to follow the general principles of British military law, the most important being the fact that both Ireland and England and Wales follow common law. That is particularly significant when one bears in mind that the great majority of judges at the European Court of Human Rights are from civil law jurisdictions. Additionally, members of the Irish and British Forces are full-time professional volunteers, while the armies of many European countries rely heavily on conscripts.

There is a pressing need to legislate earlier rather than later to avoid cases going to the European Court of Human Rights, which would most likely result in embarrassment for the State. The need to amend the Defence Act 1954 is partly owing to the adverse judgments against the United Kingdom in the European Court of Human Rights. We have very similar systems of common and military law in this country and those judgments are directly relevant to Irish military law. Several of the judgments have affected courts martial and two have been relevant to the powers of the commanding officer, something mentioned in the legislation. Two very relevant cases were the Hood case of 1999 and the Thompson case of 2004.

As the Minister of State outlined, the Bill's main purpose is to put in place procedures in line with developments that have taken place in case law decisions of the Irish Courts Martial Appeal Court, statutory developments in this country and case law decisions in Irish criminal law and the European Court of Human Rights.

Regarding chapter 1, while there is a great deal of detail in the legislation, much of it is very technical and administrative. I remember that when I served in the Army, one of a young officer's great fears was having to defend someone. The rules were archaic and cumbersome. There was always a feeling that people going on trial, particularly at court martial, were unaware of their rights and being defended by someone without much legal experience. Often, one was reluctant to delve into matters too much to mount a good defence, since the general feeling was that if one tried to question the authority of the prosecuting officer, the defendant could end up with a more severe sentence. I imagine that it was so in many instances.

Thank God society in general has moved on from that. One thinks of the Shot at Dawn campaign for those executed for failing to tip their caps or get up on time, or for falling asleep involuntarily. While modern society has many ills, in many respects we have moved on a great deal, which is welcome. That has been the genesis of this legislation, which will give rise to a fairer and more equitable system, make greater expertise available to those in difficulty and provide a more structured and permanent courts martial system for those who go on trial. In that way, there can be a degree of consistency. Even if one is a member of the Defence Forces, one is entitled to a certain standard of human rights.

Chapter 1 amends the time limits for bringing a charge against a person who has left the Defence Forces. The Minister of State outlined that it will change from three months to six, while for minor offences it will be reduced from three years to one. Sections 22 to 30, inclusive, amend the existing law dealing with the investigation and the summary disposal of charges. I remember that if someone was due in at 8.30 a.m. and arrived at 8.35 a.m., he very often faced the rigours of the commanding officer, received detention and was fined. In civilian life, if one comes in a few minutes late, sanctions are not so tough. I am sure that matters have evolved in the Defence Forces too, since people cannot always be on time as they used to be owing to traffic congestion. In civilian life, someone would be told to be on time, with very little attention paid. One had rules and regulations that were archaic and their amendment is long overdue.

Chapter 4 deals with courts martial and some 24 sections cover the establishment and conduct of courts martial. Sections 57 to 64, inclusive, deal with punishments awarded by such courts martial, while section 60 builds in an important safeguard. I stated that a defending officer might not have the expertise. This section allows the defendant an opportunity between trial and the commencement of the sentence to gain access to qualified legal aid to assist him or her in the case. That is very welcome since it addresses one of the shortfalls in the existing system.

Perhaps on Committee Stage certain things in the Bill will leap out. No one contacted me or my party on the Bill. The only person of whom I am aware is a Mr. Hoare, who wrote a dissertation on the defects in Irish military law. Many issues that he raised in his thesis are pertinent to the Bill, which seeks to address some of them. I agree with one point that he put forward. I mentioned General Mac Eoin's speech in 1949, when he sought to institute an annual review of the legislation. That was rejected in the Defence Bill 1951. A Captain Cowan dismissed renewal as a relic of the British. Perhaps we should examine it in the context of this legislation since we are inclined to fall behind in defence disciplinary legislation. We could consider including a review in the Defence (Amendment) (No. 2) Bill 2006. In Britain, there is a five-yearly review and that could be included through an amendment on Committee Stage. Section 5 of the Defence Act 1954, as amended by this Bill, would then be reviewed every five years.

I also ask the Minister to consider the problem that may have been created by section 271 of the Children Act 2001, which leaves members of the Defence Forces aged under 18 exposed to the full rigours of the criminal law, including not only imprisonment, but also a mandatory life sentence. That may need to be addressed on Committee Stage so that we might reconcile membership of the Defence Forces by those aged under 18 with the Children Act 2001. We should weight any action that we take in favour of those aged under 18.

I thank the Minister of State for his speech. We support the Bill, although on Committee Stage we may table some amendments, depending on the Minister's actions and other issues that may come to light in the interim.

I welcome the Minister of State to the House. Despite us all being very happy to have him, it would have been preferable to have the Minister for Defence, Deputy O'Dea, himself.

He is in Lebanon.

We know that he cannot be with us because he is in Lebanon, but he is there for three days and I would have thought that he might have tabled this Bill for a date on which he was in the country, meaning that he might be available in the House. It is not that often that we have legislation on the Defence Forces. The Minister might have made an effort to ensure that it was on the agenda when he was present. He could have instructed us or discussed it with the Government Whip to that effect. He has certainly not held back from making statements on his travels and we read about him every day in the newspapers. Lebanon seems to be a new forum for major statements from the Minister for Defence. I would have thought that this House should merit proper respect from the Minister by his attendance for this debate. Having said that, however, I welcome the Bill.

The opening statement in the explanatory memorandum states:

The primary purpose of this Bill is to amend and update the disciplinary provisions of Part 5 of the Defence Acts, having due regard to the prevailing human rights norms.

I am sure the Minister of State will agree that is a straightforward and simple statement of the legislation's purpose. However, the Bill's 94 pages contain pretty turgid, impenetrable and unintelligible language. I do not know if the Minister of State has had a chance to dip into his own Government's White Paper entitled Regulating Better, which was published in January 2004. The principles set out in that document were to inform the regulatory process for this and future Governments. In particular, the White Paper stated that there should be improved access for citizens to the existing stock of legislation, maximum clarity and openness in the operations of the Government and public administration, and that the Government should improve the coherence of legislation through revision, restatement and repeal.

I contend that the Bill makes a nonsense of that White Paper which was published just three years ago. The Bill has been drafted in a manner calculated to make the applicable provisions of the law more obscure, harder to access and therefore less coherent and intelligible. It is designed to deprive, whether intentionally or otherwise, the ordinary citizen of access to its contents and meaning. Only members of the legal profession will be able to interpret it. It would be a holy and a wholesome thought if the Minister of State was to withdraw the Bill. He should provide a copy of the White Paper to the parliamentary counsel who could then return to the drawing board to draft a Bill in accessible language, which would consolidate the existing Defence Acts. It could also incorporate in its text the amendments the Minister of State seeks to make to this rather bloated and unintelligible Bill.

In his opening remarks, the Minister of State said he had further provisions in the pipeline which he intends to deal with at a later stage. That is an optimistic statement given that it certainly will not happen in the lifetime of this Dáil. In fact, the scenario I have outlined is unlikely to happen with this Bill either. Nonetheless, the Minister should consult with the parliamentary counsel in the context of the Government's policy to make legislation accessible to citizens and begin work on a meaningful, legible and intelligible consolidation Bill. Perhaps the parliamentary draftsman could be informed of the White Paper's contents vis-à-vis the work being undertaken on the proposed Bill. In future, the Minister might also consider an integrated consolidation Bill on Defence Forces legislation. The Minister for Justice, Equality and Law Reform is doing this for criminal justice legislation as well as for the liquor licensing laws.

We are all proud of our Defence Forces whose members have served the country well since the 1920s. Their role is to ensure that our sovereignty and neutrality are not infringed. Since the late 1950s, they have undertaken a valuable peacekeeping role under the auspices of the United Nations. At any given time, approximately 800 of our soldiers are serving with UN-mandated missions, helping to maintain the peace in a variety of the world's trouble-spots from Liberia to the Lebanon, where the Minister for Defence is currently visiting our troops.

Good quality training and leadership are the hallmarks of a committed and professional force. A code of discipline is essential but it must be fair. Disciplinary proceedings are essential and they, too, must be fair. They should respect the individual as well as reflecting prevailing human rights norms. In this respect, the Bill is most welcome. It seeks to modernise and amend the current military administration of justice, which is somewhat wanting. It provides for new structures and procedures, new penalties and appeal mechanisms governing summary investigation and courts martial. It also provides for an independent military prosecuting authority and an independent military judicial office, the appointment of a courts martial administration and the establishment of a new summary court martial. All of these steps represent welcome changes to the existing structures.

I have no doubt that if these new procedures had been in place in 1969, the outcome of the Dónal de Róiste case would have been radically different. The evidence against de Róiste was second-hand and virtually non-existent. I do not know if the Minister of State has seen it, but I would like to quote from a book by Don Mullin who has done such great work on Bloody Sunday and other issues. It is entitled Speaking Truth to Power: the Dónal de Róiste Affair, and contains some information that became available via the various tortuous attempts to find out what actually happened in 1969. The book reproduces a letter, marked “secret” and dated 1 May 1969, to the then Army Chief of Staff from Colonel M. Heffernan who was then director of intelligence. We read all about him during the 1970 Arms Trial. The letter states:

As you are aware, we would have preferred to develop this case more fully before moving on Roche, but in view of the extreme sensitivity of Clancy Barracks, it was felt that delay in bringing the association into the open would not have been an acceptable risk. It has not been possible to confirm Roche's association with other members of the group, as reported by our confidential source. We were somewhat handicapped by our inability to question directly the original source of information, although the questioning and requisitioning through a third party was reasonably satisfactory. [That whole sentence is damning]. While an unsupported report must be viewed with reserve, it is significant that the report was accurate in its other respects and my view is that it must be considered as likely to be accurate on this count as well.

That, therefore, is the level of evidence in one of the more celebrated cases. Under some pressure, Dónal de Róiste was exhorted to confess to an unspecified crime and induced to resign his post. His own request for a court martial was refused. In other words, due process was not granted. He was retired from the Army on grounds that "the retention of Lieutenant Roche in the army would involve a grave hazard to military security and the security of the State". Thus, at every turn, due process and civil and human rights were disregarded. It is time to leave that type of treatment well behind us.

The establishment of an Ombudsman for the Defence Forces in 2004 was a positive development as it provided the Defence Forces with an independent mechanism for investigating their complaints and grievances, which was long overdue. It provides a useful corrective antidote in a system that can be quite removed from normal experience. Unfortunately, the powers of the Ombudsman are not retrospective, although I believe they should be. The Ombudsman should be allowed to examine the de Róiste case. Incidentally, the Minister for Defence retains the power to request the Ombudsman to discontinue an investigation.

Again, this smacks of political interference. The Ombudsman should have full independence and in the spirit of human rights and due process permeating this Bill, the Minister of State at the Department of Defence, Deputy Kitt, might introduce an amendment to the Ombudsman (Defence Forces) Act 2004 to effect these changes that would greatly advance these desirable principles.

The catalyst for this legislation was, as the Minister of State said in his address, the European Convention on Human Rights, particularly its transposition into domestic law in 2003. It imposes more stringent requirements on the State to protect the civil and human rights of all its citizens. It is important that these principles are enshrined in defence legislation. The Minister referred the Bill to the Irish Human Rights Commission, IHRC, and was awaiting its response when the Bill was debated in the Seanad. The Minister of State received the response of the Irish Human Rights Commission today and I ask him to make it available to Deputies in its entirety rather than the cursory remarks he made on the subject.

The Bill requires gender proofing as reading it one would think the Irish Defence Forces were an exclusive bastion of masculinity. The phraseology of the Bill is archaic and the language needs to be modernised. It is important that the disciplinary procedures in the Army approximate as closely as possible to procedures relating to the administration of justice in the civil domain. I am glad the Minister consulted with the Representative Association of Commissioned Officers, RACO, and the Permanent Defence Force Other Ranks Representative Association, PDFORRA, in regard to these matters and that these organisations have given their support to the provisions of the Bill.

Has the Minister had similar consultations with the Reserve Defence Force Representative Association, RDFRA? I understand it has been seeking access to the conciliation and arbitration scheme for some time without a positive response from the Department and Minister. Is it the Minister's intention to exclude the Reserve Defence Force from the provisions of this legislation because they are volunteers? The Reserve Defence Force is now being integrated into the Permanent Defence Force in a training and operational capacity. Moreover, the Minister made an important statement in Lebanon yesterday when he proposed to recruit professionals, such as doctors and engineers, into the Reserve Defence Force and then send them on secondment to United Nations missions overseas with the regular Army for up to 12 months. It is Government policy to give members of the Reserve Defence Force the opportunity to serve with the Permanent Defence Force overseas. To what extent will the new status being granted to the Reserve Defence Force bring its members into contact with the new disciplinary provisions in this legislation and what are the implications in this respect?

I believe offences of a civilian nature should be dealt with by the courts of the land. A number of issues were raised in this regard in the Seanad and the Minister of State mentioned this in respect of section 42, which refers to manslaughter, rape and aggravated sexual assault under section 4 of the Criminal Law (Rape) (Amendment) Act 1990. While the penalties will be the same as the ordinary courts, the offences are of such a nature that a military court is not the proper setting in which to deal with them. Offences of this nature are best addressed by civilian courts rather than the courts martial system. Such prosecutions will further extend the need for greater legal resources in the Permanent Defence Force. The Minister of State might inform us of the strength of its legal section, the number of summary investigations and courts martial that occur each year and whether this Bill will result in further legal recruitment to the Defence Forces. Advocates will operate on a permanent basis.

I urge the Minister of State to seek to emulate the initiative of his colleague, the Minister for Justice, Equality and Law Reform, Deputy McDowell, not only in respect of consolidation, but in respect of the introduction of the equivalent of a whistle blowing charter. The Minister for Justice, Equality and Law Reform introduced a section of the Garda Síochána Bill 2005 that guaranteed immunity for whistle blowers in the Garda. There are considerable similarities between the Garda and the Army. Both are branches of the security forces, they are of a similar size in terms of personnel, they have strong codes of discipline and strong internal loyalties. In the interests of promoting and advancing civil and human rights, provisions recognising and protecting whistle blowers should be included in this legislation.

I welcome this Bill, warts and all. I would have preferred if it had been dealt with in a different fashion with more accessible language and I believe there are a number of areas in which the nuts and bolts of the provisions need to be teased out. I would like the Minister to consider the consolidation of Defence Acts. I will introduce a number of amendments on Committee Stage.

Ba mhaith liom mo chuid ama a roinnt leis na Teachtaí Finian McGrath agus Gormley.

Is that agreed? Agreed.

I find it strange that the Minister for Defence, Deputy O'Dea, is not present in the House. I know he is representing the State abroad but we were aware of this before the Bill was scheduled and it is strange not to have him here at the beginning, or at very least the end, of Second Stage. I made clear my objections to the short length of Second Stage earlier.

This Bill is welcome, long overdue and similar to some of the other changes the Minister has introduced in response to problems within the Defence Forces. One of the key motivations for new Defence Forces legislation came from the report of the external advisory committee on the nature and extent of harassment, bullying, discrimination and sexual harassment in the Defence Forces. This became known as the Doyle report, which was commissioned by the Minister for Defence on foot of the revelations of an earlier report by Dr. Tom Clonan into sexual harassment in the Defence Forces which was published in November 2000. This is why we welcome the changes suggested here and the changes that have come into force following other legislation.

Dr. Clonan's report and later Dr. Doyle's report found that while women make up only 4% of all soldiers, approximately one third of these women soldiers had suffered sexual harassment by colleagues or superior officers. Significantly, the Doyle report found that despite the complaints procedure, many women in the Defence Forces were too afraid to report harassment or rape by their colleagues or superiors. They believed, and some found out first-hand, that the internal complaints system could not result in the justice and redress they deserved.

Ultimately, the Government accepted the report's recommendations in full and the Minister acknowledged that under the next phase of modernisation, it would be necessary to deal with bullying and harassment which, he stated, had "no place in the Defence Forces". A "new culture and values" were also needed, he said. PDFORRA also accepted the report's conclusions and supported the introduction of the Ombudsman (Defence Forces) Act. I welcomed these developments at the time.

Another study should be carried out to report on the impact, if any, the enactment of the Ombudsman (Defence Forces) Act has had on bullying and harassment levels and the number of women in the Defence Forces. If harassment and bullying were to be addressed, many more women would join the military.

The Bill creates further positive modernisation in the form of much improved provisions for disciplinary proceedings. From a human rights perspective, good work has been done in drafting the Bill to ensure compliance and I understand the Human Rights Commission is largely satisfied with the legislation.

Nevertheless, as with all legislation, the Bill would benefit from some minor improvements. For instance, the restriction in section 34 providing that persons from a civilian background may not be appointed military judges is unnecessary. Persons from a civilian background could bring different views to bear and could learn and prosecute military law to the same effect as they prosecute conveyancing law, criminal law and so forth. It is a strange restriction. While it is possible that few practising barristers would seek appointment as military judges because military law is a different field, the restriction is unnecessary. The appointment of independent persons or civilians as military judges to decide on military as opposed to civil matters would enhance oversight and the independence of proceedings.

It is important that disciplinary mechanisms and procedures are fair and respect the due process rights of those who are subject to them. The Bill moves in this direction. Nevertheless, military courts and procedures have resulted in abuses and miscarriages of justice in the past, with grave and ongoing consequences for those affected. For example, Dónal de Róiste has maintained his innocence for 37 years since being retired, as the decision was then described, from the Defence Forces, allegedly in the interests of the service. In 2002, the then Minister for Defence, Deputy Michael Smith, decided to request a special report from the Judge Advocate General on the 1969 decision to retire Dónal de Róiste. His decision amounted to an acknowledgement that the case warranted further investigation. In 2005, the High Court ruled that the conduct of the Judge Advocate General's inquiry denied Mr. de Róiste fair procedures. In light of this ruling, it is clear the case still warrants further investigation.

The Judge Advocate General's refusal to meet retired Army Commandant Patrick Walshe, a significant witness to events leading to Mr. de Róiste's dismissal, further supports the need for an investigation into the case. Witnesses such as Mr. Walshe should be afforded a formal hearing in the context of a review of the case. I call on the Minister to establish an independent inquiry under the Commissions of Investigation Act 2004 to grant Mr. de Róiste fair procedures for the first time.

Dónal de Róiste was retired 33 years before he was allowed to access the files and documents relating to his case. In the interests of justice, an independent inquiry should be established to review the case and either confirm the decision on the basis of objective evidence or clear Mr. de Róiste. In the long and drawn out aftermath of the case since 1969, it has emerged that the Government's advice to the President at the time was based on grounds of security. The wider issue in this regard is the grave potential for abuse of powers linked to the use of security grounds, which arises from the virtual absence of transparency and accountability involved. Will the Minister confirm that the Bill will ensure greater transparency and accountability when disciplinary proceedings are undertaken against a person or persons on purported grounds of security? The legislation must ensure that courts martial do not result in cover-ups or prevent individuals from accessing relevant information for long periods, as occurred in the case of Mr. de Róiste. Will he detail the improvements the Bill introduces in this specific area?

I will also highlight the case of Mr. Michael Donnelly, a former military policeman from my constituency. In the early 1970s, Mr. Donnelly was wrongly accused and discharged from the Defence Forces without proper recourse to means of defending his good name and status. He was prevented from securing gainful employment for years afterwards as a result of the slur cast on his name and being blacklisted by the State. He was forced to go to the High Court and Supreme Court to have his good name reinstated to some degree, although he has not yet received an apology and the authorities have still not admitted they were wrong in the case. They engaged in a cover-up, did not follow proper procedure and involved the Garda Síochána in the case. I urge the Minister to re-examine the case and give Mr. Donnelly the apology and respect he deserves for having his career in the Defence Forces cut short due to the failures of the system and the military authorities.

I invite the Minister to use the opportunity provided by the Bill to introduce provisions on Committee Stage allowing for retrospective investigations by the Ombudsman, including into complaints centred on the fairness of disciplinary proceedings undertaken in the past. I broadly welcome the Bill and hope it will be tightened up by addressing the points I have raised. I hope proper procedures will be in place in future and the cases cited by me and other Deputies will be re-examined. It is fair and proper that this small number of cases be examined.

I thank the Ceann Comhairle for the opportunity to speak on the Defence (Amendment) Bill 2006. Before discussing the details of the legislation, I thank and commend the Defence Forces for their valuable and brave work in serving the State over many years. I also thank them for their work on behalf of the United Nations. As many Deputies will agree, we must commend our troops for the magnificent peacekeeping work they do on the international stage. It is important they continue to focus on peacekeeping activities, rather than adopting any other agenda.

Many people, including Members of the House, appear to have difficulty defending Ireland's neutrality. However, neutrality, which I strongly support, does not mean sitting on the fence when international issues arise. Irish troops have an excellent record in serving international peace and many have given their lives on international missions. I oppose those who want to take the Defence Forces in a new direction in international affairs.

According to the explanatory memorandum, section 180 of the principal Act provides for the revision of summary awards and will no longer be required as the Bill provides for a new appeal process for such awards. The repeal, it adds, will not apply to punishments awarded before the coming into operation of the new provisions relating to the "investigation and summary disposal of charges".

I mentioned section 180 of the principal Act because it relates to a particular case that I and my colleague, Deputy Gregory, have highlighted for many years. Privates Tom Kenny and Joseph Fitzpatrick were the only survivors of the Niemba massacre on 8 November 1960, where a patrol of 11 Irish peacekeepers under Lieutenant Kevin Gleeson was attacked by Baluba tribesmen. There were several Irish casualties but Privates Kenny and Fitzpatrick survived and managed to make their way to safety. It is of fundamental importance that we look after the interests of these soldiers.

Is the Minister of State aware that on Monday and Tuesday of this week, one of the survivors of this infamous ambush, Joseph Fitzpatrick, felt obliged to protest outside Leinster House? Mr. Fitzpatrick seeks a medal in official recognition of his bravery. This will clear his name, which he believes has been maligned by the Army for 47 years. The other Niemba survivor, Mr. Kenny, also wishes the Army to clear his name. He seeks a written apology from the Minister for Defence and a clear statement that Trooper Anthony Browne did nothing to save his life at Niemba on 8 November 1960. We must put the record straight on this matter before it is too late.

Is the Minister of State aware that both Niemba massacre survivors believe a recent Army report, the Behan report, misrepresented their views and contained inaccuracies? What steps will he take to ascertain the views of both these brave Army veterans? As time is running out, will he find a way to grant their wishes? Many Members feel strongly about this issue. It is unacceptable that a veteran soldier who served his country bravely should be protesting at the gates of Leinster House. I urge the Government to listen to the people directly involved in this event.

Chapter 3 of Part 3 relates to the investigation and summary disposal of charges, appeals to summary court martial and remands for court martial. The late Captain James Kelly was badly treated by successive Governments. The State turned its back on a man who did his best to serve his country and was acting on the orders of Ministers. I encourage the Government to speak to Captain Kelly's widow, Sheila Kelly. We should put the record straight and ensure Captain Kelly's name is cleared fully. This issue has dragged on for many years. This was a person who operated under orders but was shafted and hung out to dry.

Deputy Ó Snodaigh mentioned the case of Dónal de Róiste. That is another issue that has been niggling away in the background for years. The Government must take action in respect of all these cases where people have suffered miscarriages of justice. These are the types of issues we must confront during the debate on this legislation.

Section 57 provides that an officer sentenced by a court martial to the new punishment of reduction of pay to any lower point on the scale may also be sentenced to a fine, severe reprimand or reprimand. There must be effective guidelines and regulations, and the legislation must be tough enough to ensure there is good practice in the Army. It is important that we reward and develop good practice. People of other nationalities who come into contact with Irish soldiers, especially in the Middle East, are invariably complimentary. They admire how Irish soldiers handle difficult situations, unlike the armies of other countries who have a different agenda.

I encourage the Government to use Ireland's status as an independent neutral country to expand the Defence Forces in the interests of international peace. I detest the words "EU battle group" that are now on the agenda. There should be no such talk. Our soldiers serve the United Nations in the interests of international peace. They participate in famine missions, provide relief in the wake of storms and hurricanes and assist in building roads and bridges. That is the Army I support. The vast majority of people support this activity and any attempt to bring us in another direction will be challenged.

The argument is sometimes made that the Army needs more experience in combat and must enhance its professionalism. Irish soldiers have extensive experience of Liberia and Beirut. Members of my family have served and are serving in the Army and their professionalism is clear. The Army is serving the State in a positive way.

Part 4 of Schedule 4 deals with amendments to the Ombudsman (Defence Forces) Act 2004. The increased enrolment of women in the Defence Forces in recent years is welcome, but we must ensure they are treated with respect and equality. I welcome the strong focus on human rights that is written into the legislation. An army that respects the human rights of its members will respect the human rights of people in the wider community. This is particularly important in regard to peacekeeping duties in international battle zones. It is because the United States has shown no respect for human rights in its dealings with Iraq that it has lost the trust and confidence of both the Iraqi people and the international community. That is why President Bush is isolated politically.

Ireland can take action in this regard. We can take to the international stage as an independent neutral country with an independent foreign policy. The Army has a crucial role in promoting the international peace agenda. We must develop good practice in terms of our peacekeeping activities. Whether working with Palestinian or Israeli communities, the Army should safeguard its special status as an independent force that will do its best to assist the local community.

The primary objective of the Army must be to assist in ending conflicts. We should not be ashamed to stand on the side of poorer countries. I refer particularly to Latin American states that are isolated internationally. Ireland should be proud to stand by these countries in defending their interests against the bully boys in the West with their nuclear weapons and big guns. Ireland has more in common with poorer countries than it does with some of these elitist and aggressive Western countries, which seem obsessed with acquiring more nuclear weapons. The money spent on weaponry could be better used to feed starving people, build houses and hospitals and assist countries whose populations live in dire poverty.

Part 5 of Schedule 4 deals with amendments to the Criminal Law (Insanity) Act 2006. Section 13 of this Act is amended to reflect the new roles of the Director of Military Prosecutions and the court martial administrator. The intent of the existing provisions is not changed. I welcome these amendments. We know of cases where people have found themselves in difficult situations. We also have a responsibility to look after soldiers, particularly those who have served in dangerous locations. The Army and State have a duty to ensure their safety, especially any who suffer mental illness as a result of their experience in conflict situations.

I welcome the Bill and the discussion it has facilitated. I urge that something be done for Tom Kenny and Joseph Fitzpatrick.

I join other Members in thanking the Defences Forces for the great work they do throughout the world, particularly at present in Lebanon and Liberia. It is no easy task. When we sent troops to Liberia with a UN mandate, it was a difficult decision and we were told in advance that they were entering a volatile situation. The situation is even more volatile in Lebanon, where, as I predicted at the time, the conflict between Hizbollah and Israel is not over; there is a hiatus while they re-arm and get ready for round two.

I asked the Minister then if our troops had any contact with Hizbollah commanders. He did not know but I hope when he returns from Lebanon he will be well briefed and know the situation on the ground. I suspect that it will become more difficult over the coming weeks. I wish our troops the very best because this is undoubtedly one of the most difficult missions. The Minister also said he would review the situation as circumstances changed and they clearly have. There is instability in the Lebanese Government, with protests in Beirut. I hope when the Minister gets back we will get a full explanation of what is happening in this area.

Our historical role as peacekeepers means that we have not been involved in bully boy tactics, there have been no incidents where Irish troops have been accused of abusing those they are supposed to be defending, unlike US troops, who have been responsible for countless examples of such abuse. That is a result of a different culture.

A recent example, and a major turning point in Iraq, was Abu Ghraib. The US said the affair would be investigated and a military court undertook that duty. There is a need for a military court where situations occur abroad because a domestic court could not deal with them, but do we get the same justice in a military court as in an ordinary court? The suspicion exists that a lesser form of justice will be dispensed because there would an understanding of why the situation occurred. Although what happened in Abu Ghraib is horrendous, we must understand that the troops investigated were low down in the chain of command and someone more senior gave the go ahead for their conduct.

The classic example from Hollywood is the film "A Few Good Men" starring Tom Cruise and Jack Nicholson. The Nicholson character says that the army has its own rules and that he had to issue a "code red" so that someone would be bullied to get him ready for combat. He said that is how the army operates, that it is a different form of justice. The film made the point that people get justice within the army but the army operates by different rules. If we can get a better standard of human rights as a result of this legislation, we will have done a good day's work.

There is, however, more to be done. We require legislation for whisteblowers in the Army to let us know what is going on. Since we have legislation to provide for such people in the Garda Síochána, we should put it in place for the Army, otherwise we are saying the Army is different. We should see it in the same context.

We have had serious abuses of human rights and civil liberties within the Army. The case cited most often is that of Dónal De Róiste. This was a travesty that scarred that man's life. We must cast our minds back to the 1970s when there was a level of paranoia in this country that none of us wants to see again. Undoubtedly the circumstances were peculiar, but as a result normal civil liberties were suspended and many people suffered, Dónal De Róiste being one of them. He has still not secured justice and I add my voice to the appeals to the Minister to establish an independent inquiry. Justice was not done on Bloody Sunday, an inquiry was set up, the British Army argued that peculiar circumstances obtained and there was a whitewash. The subsequent investigation of the affair saw the truth emerge. Many of these instances should be revisited, we should have the courage to go back and ask the difficult questions because there are many such questions remaining. The Ombudsman should investigate Mr. De Róiste's case, with an independent inquiry looking into what happened.

I spoke to someone at lunchtime who told me his daughter was in the Army. As part of the training she was called every name under the sun. It hard to know where training ends and bullying starts because of the culture that exists in military life. We must re-examine Dr. Tom Clonan's report that showed there was sexual harassment of females in the Army. I do not know if we have made any progress since then. I have asked questions about bullying and it appears to continue. If it is considered a necessary part of training, we will have a problem when someone brings a case to court because he could argue this should not be the case.

I welcome the opportunity to contribute to this short but important Bill that will amend and update the Defence Acts' provisions for disciplinary procedures applicable to the Defence Forces. As someone who represents a constituency with a large Defence Forces presence, I join colleagues on all sides of the House in congratulating them on the outstanding role they have played in international peacekeeping and wish those currently involved in overseas missions every success.

As a fundamental pillar of a democratic society, the Defence Forces are a huge influence on the country. Having volunteered to serve the State, Defence Forces personnel must undertake to obey all lawful orders issued to them and to submit to the code of discipline applicable to all those who serve in the force. The provisions of this Bill will serve as a safeguard against any deviation in this regard.

The professionalism of our Defence Forces has long been acknowledged internationally. Their work in the world's trouble spots, from the Lebanon to the Congo and from Cyprus to Liberia, has been widely complimented and respected. This service often involves dangerous and difficult work on our behalf and on behalf of the wider international community.

This work is now being undertaken with the benefit of improved training, equipment and facilities. This Government has put unprecedented funding into all areas of the Defence Forces, including, if I may be parochial, the commitment of €85 million to the Curragh, for which the Minister and the Government must be complimented. For many years the lack of investment in facilities such as the Curragh led to difficulties in maintaining the professional standards required for a modern military service. However, with this significant investment there is no doubt as to the strength of the Defence Forces into the future.

An important part of the operation of any military service is a strong code of discipline. The Bill brings up to date the provisions of Part V of the Defence Acts. It also provides for new procedures, scope, structures, punishment and appeal processes in the forces. Central is the establishment of an independent military prosecuting authority, the appointment of the court martial administrator and significant changes in the establishment and operation of courts martial. These changes will ensure that Ireland will be fully compliant with military law in other jurisdictions and in particular that Irish law will be fully compliant with European and Irish human rights provisions.

It is most important to have a disciplined and effective force so that the public can have full confidence in it. In a modern society the operation of a military force is dependent on persuasion and motivation rather than orders and instructions, which were relied upon in the past. The establishment of PDFORRA and RACO in the early 1990s has proved very successful in this regard despite the many prophets of doom who commented on their inception at the time.

Discipline, however, is central to the operation of any army. This discipline must be carried out by officers displaying competence and trustworthiness, thereby building the confidence, loyalty and trust of the personnel at their disposal. In the case of the Defence Forces, the training given to our officers and non-commissioned officers is of the highest standard. This training concentrates on leadership, teamwork and co-operation, and places the emphasis on the welfare of each individual. As a result we have Defence Forces that are a credit to our democracy where it is a rarity to hear of any indiscipline. However, the ultimate power of discipline must rest with the Defence Forces, and be transparent and fair to the individual involved.

The fairness implied is underpinned by development in Irish and European law principally in the area of human rights law and Irish case law relating to the courts martial appeal court. The European Convention on Human Rights, which is now fully incorporated into Irish law, requires every organ of the State to operate in a manner compatible with that convention. I am aware that interim measures have been in place for the past two years relating to the investigation of offences and the conduct of courts martial under the existing Defence Act. The Government is to be complimented on bringing these human rights protections to a full statutory basis. These measures will now meet or in many cases exceed the requirement of international best practice in the area of military legal proceedings. Measures of a high standard will be available to our highly efficient and loyal Defence Forces.

The Bill contains a number of changes to the language and terms used in the earlier Acts, reflecting a more modern approach to operation of military legal and disciplinary functions. In this modern era that a significant number of our Defence Forces personnel are female means that protection — particularly in the areas of bullying and sexual harassment, as mentioned by other Members — must be robust and stringent. Clearly when earlier Defence Acts going back to 1954 were enacted, female participation in our military was not a factor. I welcome the enhanced protection offered to all personnel, particularly female personnel. An ongoing challenge for the Defence Forces is to recruit even greater numbers of women into their ranks.

I welcome the changes in time limits for bringing prosecutions, particularly those of a serious nature. The time limit will now be six years rather than the existing three years, while the limit for a person who has left the Defence Forces has been extended from three months to six months, which will ensure greater transparency and fairness. At the same time the time limit for minor disciplinary offences is reduced from three years to one year. I commend the Minister on this reasonable and logical change.

The Bill succeeds in pulling together a number of strands in the area of military discipline and law enforcement. It makes the military law and justice system more efficient and fairer to the individual. It helps to maintain a proper code of discipline across the Defence Forces and it updates existing laws to ensure their compatibility with the Constitution and human rights legislation. The Bill complements the establishment of the Office of the Ombudsman for the Defence Forces, which was introduced by the present Minister for Defence. The ombudsman operates as a final point of appeal in any redress sought by a member of the Defence Forces. Ms Paulyn Marrinan-Quinn SC was appointed as Ireland's first Ombudsman for the Defence Forces at the end of 2005. Ms Marrinan-Quinn brings to her role a wealth of experience, both in her training as a barrister and from her time as insurance ombudsman. The appointment of such an accomplished and experienced person gives weight to the position and confirms to all citizens — not just those now serving in the Defence Forces — the Government's strong commitment to the delivery of a fair and balanced set of disciplinary measures.

I am aware that the representative organisations are very supportive of the role of the ombudsman and this support is very important in the execution of the role. Their support is based on the clear impartiality of the office and I pay tribute to the role played by PDFORRA and RACO in its establishment. It is further strengthened by not having any Department of Defence or Civil Service personnel, allowing for even greater impartiality, if that were possible. The ombudsman may investigate any complaint by a member of the Defence Forces, not only concerning issues of bullying and harassment but also in cases where the action complained of was taken without proper authority, was based on erroneous or incomplete information or was based on incorrect administrative practice. Only in a limited number of areas, particularly regarding security matters, will the Minister continue to act as arbiter in such disputes. In the vast majority of cases the ombudsman will adjudicate. This is very much to the benefit of all members of the Defence Forces and I congratulate the Minister, Deputy O'Dea, and the Minister of State, Deputy Kitt, on completing this package of measures in this vital area.

The record of the Government will compare most favourably with its predecessors in its treatment of the Defence Forces. Major investment across the services has seen improved buildings and equipment, enhanced training, upgraded living accommodation, and better pay and conditions across the ranks. As I was coming to the House this morning, I thought back to 1989 and the era of the Army wives campaign. Clearly significant progress has been made since that particularly tragic period. This record of achievement will stand the test of time and give this democracy world-class Defence Forces of which we can all rightly be proud. Great credit is due to the Minister and his predecessor, Deputy Michael Smith, for their commitment to delivering changes in such a short time.

I am grateful to have had the opportunity to contribute to this important debate. The Bill when enacted will play a very important role in maintaining unity and discipline in our Defence Forces as well as supporting the human rights of our personnel. I have no hesitation in joining other Members in commending it to the House.

I thank all the Deputies who spoke for their constructive contributions and comments during the debate. I will respond as best I can to the points made. Looking back to the Order of Business this morning, I believe Deputy Rabbitte was correct to request a change in the allocation of time between the Building Control Bill and this Bill because we seem to have adequately dealt with it in the contributions made.

Deputy Timmins spoke about a review of the Defence Act. This Bill is the first phase of a two-part process to update the military disciplinary system and work on the second phase will begin later this year. That phase will provide an opportunity to review the provisions included in the Bill. The Deputy also asked about members of the Defence Forces who are under 18 and I will examine the matter in advance of Committee Stage. He proposed a five-year review of the Bill, which we will consider in conjunction with the Parliamentary Counsel.

Deputy Costello spoke about restatement, an ongoing issue that needs consideration. In this case we are amending part of the 1954 Act, which is a very complex Act. When the Bill is enacted we will prepare a restatement of the Act, which will put the amendment in context. The provisions of the Bill have been fully explained to PDFORRA and RACO, which have indicated their satisfaction with the Bill as drafted. After the second phase of the process, consolidation of the Act will be considered.

The Deputy also spoke about gender neutrality and language. The matter was raised a number of times in the Seanad, following which I have taken the advice of the office of the Parliamentary Counsel. There are several approaches that can be taken to the amending of Acts that are not gender-proofed. Rather than adopting a blanket approach, each instance is examined on its own merits. It would be difficult to avoid the use of pronouns by referring to "the person" as we are amending only part of the 1954 Act. If the words "he or she" were adopted, it would interfere with the integrity of the 1954 Act. The matter is academic as the provisions of the 1954 Act which are unaffected by the Bill will continue to use the pronoun "he" only. In any case, the Interpretation Act 2005 provides that a word importing the masculine gender shall be read as also importing the feminine gender. If the 1954 Act were to be rewritten or consolidated, full gender proofing would occur and an effort made to avoid personal pronouns where possible. The arguments in this context have been well made.

The provisions of the Bill apply to members of the Reserve while they are subject to military law. The amendment of the Ombudsman Act suggested by Deputy Costello is outside the current scope of the Bill. On the IHRC report, the Department received a draft copy only today. When the report is finalised, it will be made available as a matter of course.

Deputy Ó Snodaigh referred, inter alia, to the merits of appointing a uniformed, as opposed to civilian, military judge. The issue of whether the military judge should be uniformed or civilian was considered in detail by the military law review board and at great length during the drafting of the Bill. Existing ECHR and other relevant case law was reviewed thoroughly while regard was had to the position in other common law jurisdictions. External senior counsel were also asked to advise on the matter. The UK model of both full-time civilian judge advocates and continued involvement by non-legally trained military officers in the performance of judicial duties was not considered suitable for Ireland to follow. Practicality in Ireland suggests the appointment of a uniformed military judge for numerous reasons, including the requirement for flexibility within the system and of the incumbent, the low numerical size of the Defence Forces and the anticipated volume of judicial duties to be performed.

The judge will be required to travel around Ireland and abroad, often at short notice. Time will often be of the essence with regard to the function of the proposed military judge. Within the military, there is a substantial body of knowledge of the peculiarities and exigencies of military service and the application of the system of military discipline and justice. A uniformed military judge will ensure a rapid, smooth transition and acceptance of the new system. In the final analysis, it was felt that a uniformed military judge with statutory safeguards of his or her independence and impartiality, including security of tenure, financial security and institutional independence, would best suit the needs of the Defence Forces.

Deputy Costello spoke of serious offences, including murder and rape, being tried by court martial and asked what punishment would apply. Currently, the most serious offences, including treason, murder, genocide, manslaughter, rape and aggravated sexual assault, can only be tried by court martial if the offence is committed by a person on active service, which normally means overseas service where the ordinary courts do not have jurisdiction. Punishment available to a court martial for these most serious offences are the same as those provided for in the normal criminal justice system up to and including life imprisonment.

Deputy Costello also asked how many courts martial take place each year and whether the number is expected to rise under the new system. In recent years, there have been less than 20 courts martial per year. However, the impending changes have meant that there were none in 2006. I expect the number of courts martial under the new arrangements to increase significantly to reach or even exceed 200. The increase will be due mainly to the introduction of an absolute right of appeal to the new summary court martial procedure from a determination or punishment of a commanding officer. After an initial significant increase, the numbers coming forward are likely to settle down to a rate of approximately 10% of all summary cases. According to recent annual figures of cases for summary disposal of approximately 1,600, this should equate to an additional 160 courts martial per annum. The abolition of detention as a punishment awardable by a commanding officer and the new right to elect for trial by court martial from the outset are also likely to lead to small increases in the number of courts martial per annum.

The current strength of the legal service within the Defence Forces is nine officers and it is not expected to increase significantly. Deputy Costello asked about a whistleblower's charter, which matter has also been raised in the Seanad. Having considered such a charter, we have determined it to be outside the scope of the current Bill. I note, however, that a great deal of work is being carried out on the matter on a sectoral basis.

Deputies Gormley and Finian McGrath raised a number of cases, including the de Róiste, Kenny and Fitzpatrick cases, none of which are relevant to the proposed legislation. I will, however, convey the strong views expressed by the Deputies to the Minister. I suggest the Deputies make any representations on the cases directly to the Minister for Defence if they have not already doneso.

Deputy Gormley referred to the Lebanon. I suggest strongly to the Deputy that the questions be taken up with the Minister on his return. I agree that it is important to discuss the issue raised.

Deputy Gormley also spoke about bullying, which is an issue I pursued vigorously as Minister of State with responsibility for labour. I introduced the first task force on workplace bullying which led to the introduction of a code of practice. A great deal of work has continued to be carried out in the Department of Enterprise, Trade and Employment and is being developed by my colleague, Deputy Killeen. Dr. Eileen Doyle, who chaired our task force, carried out strong investigations of practices and behaviour in the Defence Forces and issued a report and recommendations which are being pursued. Bullying is a very important issue in any workplace, but there are issues specific to the Defence Forces which fall to be addressed. I support the continuation of work in this area. Deputy Ó Fearghaíl made thoughtful, supportive comments on the Bill for which I thank him. He has considerable knowledge in this area.

I thank Deputies for their contribution which has been most instructive and helpful. It is intended that the Bill will reflect and further enhance the non-statutory interim measures implemented to date for the summary investigation of offences and the conduct of courts martial under the Defence Act. The Bill represents a significant advance and a sensible, practical model for the operation of the Irish military disciplinary system for the years ahead. The measures provided for are proactive on human rights while facilitating the effective maintenance of discipline within the Defence Forces. The House may rest assured that any amendments proposed which are fundamentally consistent with the general spirit and objectives of the published Bill will be fairly and objectively examined.

Question put and agreed to.