Ceisteanna ar Sonraíodh Uain Dóibh - Priority Questions

Defence Forces

John Brady

Question:

83. Deputy John Brady asked the Minister for Defence the progress that has been made to date on the full implementation of the working time directive as it applies to the Defence Forces. [47078/21]

There are many issues facing members of the Defence Forces that are leading to what can be only described as an exodus of members. These have been widely articulated by representative bodies such as PDFORRA and the Representative Association of Commissioned Officers, RACO, and they include issues such as post-1994 contracts and the working time directive. I ask the Minister to update me on the full implementation of the working time directive.

As the Deputy will be aware, the Defence Forces are currently excluded from the provisions of the Organisation of Working Time Act 1997 which transposed the EU working time directive into Irish law. The Government is committed to amending this Act and to bringing the Defence Forces and An Garda Síochána within the scope of its provisions, where appropriate.

Responsibility for preparing an appropriate legislative framework lies with the Department of Enterprise, Trade and Employment. My Department is working closely with that Department to progress the regulatory amendment required to remove the blanket exclusion and bring the Defence Forces within the parameters of the Act, while having regard to some activities which may require exemption or derogation from the provisions of the Act.

The working time directive, as the Deputy is aware, recognises the unique nature of certain military activities and allows for derogations or exemptions of such activities. A significant amount of work undertaken by civil and military management has determined that a high percentage of the normal everyday work of the Defence Forces is already in compliance and that a range of activities may also qualify for exemption. Legal interpretation of the directive continues to evolve and recent case law relating to military service is also informing the deliberations of civilian and military management. It is understood that these deliberations are at an advanced stage and will feed into amendments to the legislative framework.

A subcommittee of the defence conciliation and arbitration council, comprising the representative associations, military and civil management, has been established to discuss matters relating to the implementation of the working time directive, where appropriate. It is intended to convene a meeting of this subcommittee in the near future once the discussions between civilian and military management are concluded.

I can assure the Deputy that the health and safety of personnel in the Defence Forces remains a priority for me and for the Chief of Staff. We remain fully committed to ensuring the provisions of the working time directive are applied throughout the Defence Forces.

We are aware that accelerated provisions were introduced on two fronts with regard to rest after a specific period at the weekend. That is to be welcomed. We have been told on many occasions that there is ongoing engagement with the representative bodies with regard to the implementation of the working time directive. Unfortunately, the last meeting with the representative bodies was on 24 July 2019, despite repeated attempts to have a meeting convened. Every two months, requests for a meeting are made but no meeting has yet been convened. Despite what the Minister said in his response, the reality is it is not happening.

We have repeatedly heard from the Minister and the former Minister of State, Deputy Kehoe, that legislation is forthcoming yet no legislation has come forward and there is no specific timeframe for legislation to ensure the working time directive is fully implemented. I ask the Minister to outline that process.

As I have already indicated, significant work has been undertaken to examine the nature of the duties of the Defence Forces and how provisions of the working time directive can be applied to its members. This review determined that a high percentage of activities are already compliant with the directive. It is important to recognise that. On foot of engagement with the representative associations through the subcommittee as part of the conciliation and arbitration scheme, compensatory rest is already provided for certain duties. This is also in line with the provisions of the directive. Legislation is required to legally apply the working time directive to the Defence Forces and the Department of Enterprise, Trade and Employment has lead responsibility for bringing forth that legislation. My Department will work with that Department in drafting the required legislation. The issues being considered are not straightforward and there is a requirement to ensure that the health and safety of personnel is protected while the Defence Forces retain operational effectiveness. Deliberations between the civil and military management are, however, well advanced and are being informed by recent case law pertaining to military service.

The Department is taking this seriously. There is ongoing dialogue between civil and military management. We will work with the Department of Enterprise, Trade and Employment to bring forward the necessary amendments as soon as we can.

There may be engagement between the Department and senior military management but there is no engagement with the representative bodies. The Minister will be aware of the initiation of legal proceedings such is the frustration with regard to the lack of engagement. This is fundamentally a health and safety issue that cannot be ignored any longer. The failure to implement the working time directive is directly leading to the burn-out of members of the Defence Forces, as outlined by the representative body, RACO, at a meeting of the Joint Oireachtas Committee on Foreign Affairs and Defence prior to the summer. RACO has stated that the failure to implement the directive is directly leading to the burnout of members. This was also reflected in the University of Limerick workplace climate survey and the focus group reports in 2015, 2016 and 2017.

Thank you, Deputy, you are over time.

It is a safety issue, but it is also leading to an exodus of members.

I ask everyone to stick to the one-minute allocation in regard to supplementary questions.

It is a safety issue and a workplace relations issue. That is why we will be implementing the working time directive. We will provide in Irish law that the exclusion from the legislation of the Defence Forces and An Garda Síochána is addressed. We are committed to doing that. I am happy to speak to RACO and-or PDFORRA in regard to that issue. I am meeting them in a few weeks time and we will be discussing a whole range of issues. I am happy to update them on progress in this space as well. It is important to recognise that the working time directive already provides a significant level of guidance in terms of how we approach HR issues within the Defence Forces, but that is not enough. We need to get the legal protections in place to do that and to agree what the exemptions are because a career in the Defence Forces and working in the Defence Forces is different from other workplace environments. Everybody accepts that. That work is well advanced.

Defence Forces

Brendan Howlin

Question:

84. Deputy Brendan Howlin asked the Minister for Defence if his attention has been drawn to a report undertaken under item 40A of the White Paper on Defence implementation programme; his plans to act on this report in view of the ongoing effect on retention; the way in which he plans to implement its findings; and if he will make a statement on the matter. [47256/21]

My question relates to the so-called post-1994 contract within the Permanent Defence Force. Currently, all privates and corporals recruited post 1994 can continue in service only to the end of December of next year or until they reach the age of 50. Sergeants must retire at the end of next year. I understand there is a review within the Minister's Department on this matter. I would like the Minister to set out clearly today what his policy is on this issue.

Military life places unique demands on individuals and it is necessary that Defence Forces personnel are prepared to meet the challenges of all military operations. To this end, it is vital that the age and health profile of personnel be such to ensure operational capability and effectiveness are not compromised in any way. For this reason, compulsory retirement ages for ranks in the Permanent Defence Force are considerably lower than in other employments.  

The age and fitness profile of the Permanent Defence Force was an issue of serious concern during the 1990s and was the subject of severe criticism in a series of external reports such as those compiled by PricewaterhouseCoopers consultants and the efficiency audit group. A range of policies were introduced to ensure an appropriate age profile and levels of fitness. This includes fixed-term contracts for enlisted personnel of certain ranks. 

The White Paper on Defence from 2015 says retirement ages and upper service limits, or both, of Defence Forces personnel of all ranks will continue to be kept under review and determined in accordance with key considerations such as manpower policy requirements, operational needs and international best practice.

This matter was also referenced in the Public Service Pay Commission's report on recruitment and retention in the Permanent Defence Force. In its report, the commission included in its recommendations the need to consider options to tackle barriers to extended participation in the Permanent Defence Force, including the possibility of extending retirement ages for members of the Permanent Defence Force. A detailed review of contracts of service for all enlisted ranks of the Permanent Defence Force, which commenced under the White Paper process, was subsequently subsumed and progressed through the high-level implementation plan, Strengthening our Defence Forces. The review, which is being conducted by civil and military staff, has also taken into consideration the recommendations from an adjudication in 2015, arising from a claim PDFORRA made through the conciliation and arbitration scheme.

A draft report of the review in relation to enlisted personnel was submitted to me very recently. The report has outlined various options and includes a number of recommendations. These recommendations will require Department of Public Expenditure and Reform consideration from a costs and pensions perspective. Discussions with PDFORRA on the recommendations will take place on receipt of its consideration. I hope to meet PDFORRA on this in the coming weeks.

I thank the Minister. I appreciate the fitness profile is important for the Permanent Defence Force but age is no longer the sole determinant of fitness. In general employment, we are moving away from deciding such matters purely on the basis of age. My understanding is approximately 700 personnel may be required to leave the Permanent Defence Force under this clause at the end of next year. They are entitled to be able to do their planning properly. I understand the Minister spoke on this matter in the Seanad this week. In response to Senator Wall and others he said he hoped to be able to make a decision on the post-1994 contracts "soon". He has not said that to me today. Is it still his position that by the end of this year he will be able to give definitive guidance to all those affected by this matter?

I will give the Deputy the information I have, according to my notes on the actual numbers. I have heard the figure of 700 as well but I am advised by military management that as of 1 May 2021 the number of personnel enlisted post 1994, in terms of privates and corporals, in receipt of tech pay group 2 or less and who will have served 21 years or more by the end of 2022 is 195. There may be others in that category from other ranks and so on. I have said to PDFORRA and also said in the Seanad that I would like to provide clarity on this issue before the end of the year. Of course, we have to work with the Department of Public Expenditure and Reform as well. This is not solely my Department's decision. Given that this would impact on people by potentially ending their careers in the Defence Forces in December 2022, there is an obligation on me to try to provide clarity well in advance of that date. That is why we would like to have that clarity provided by the end of this year if we can, and maybe even earlier than that. That is a commitment I have given and I will try to follow through on it.

The Minister was very clear in the other House when he said:

I gave a commitment we would do that before the end of the year. We can do that well in advance of the end of the year - within the next few weeks - to be able to give people certainty quite a long way out before the issue comes to a head ...

That was his commitment which I take it he is giving again. My concern is we are heading into a budget. I have some experience in these matters. If there are financial implications to this, will the agreement of the Department of Public Expenditure and Reform be required in order for the Minister to give a definitive position by the end of this year? Will he give the House the commitment he will give absolute clarity to whatever number of personnel is involved, be it short of 200 or up to 700, so they and their families can plan their lives with certainty well in advance of the end of next year?

That is the intention. I have spoken to some of the serving personnel in this category and have asked them to be honest with me about their concerns. I have told them I will do everything I can to provide as much certainty for them as early as I can. I have effectively set myself the date for doing this as the end of the year. We will do it earlier if we can, as I said in the Seanad. If we can do it in the next few weeks, that is great. However, Deputy Howlin knows better than most in this House how the Department of Public Expenditure and Reform works. It has a job to do as well. We can get agreement. I expect no big surprise from the recommendations of that Department but we must go through the appropriate processes and ensure we have taken account of the financial consequences of whatever decision we make. I am confident we can provide clarity on this issue before the end of the year and I will do it as soon as we can. The people affected by the decision deserve to be able to plan for the future with the maximum possible lead-in time.

Defence Forces

Sorca Clarke

Question:

85. Deputy Sorca Clarke asked the Minister for Defence the terms of reference for the announced independent review following a radio documentary (details supplied); the person or body that will be responsible for establishing the review body; the membership qualifications or criteria for same; and if he will make a statement on the matter. [46794/21]

Gary Gannon

Question:

86. Deputy Gary Gannon asked the Minister for Defence if his attention has been drawn to a radio programme (details supplied); and the steps he is taking arising from the programme to tackle misogyny and violence within the Defence Forces. [47192/21]

I wish to discuss with the Minister the terms of reference announced regarding the independent review following the radio documentary "Women of Honour" by Katie Hannon, which was broadcast on 11 September. What person or body will be responsible for establishing the review and what are the membership qualifications or criteria for same? I understand there has been significant movement in the 19 days since the documentary was broadcast.

I propose to take Questions Nos. 85 and 86 together.

I wish to reassure the House that this issue is a big priority for me. The meetings I had this week with the Women of Honour group and with serving women from the Defence Forces were deeply impactful, not only on me but on my Secretary General and indeed the incoming Chief of Staff. This is an issue we are going to get a handle on. We are going to put a process in place that will deliver real change. I say that very directly to the House. Anybody who chooses to enter the Defence Forces and wants to develop a career there must be guaranteed they will be treated with respect, they will be safe, they will not be discriminated against and they certainly will not be sexually abused or harassed. Unfortunately, there are far too many stories in this space that are not historic but current and they must result in a fundamental change for some people, who are a minority in the Defence Forces, with respect to their approach to diversity. We are going to bring about that change. We are going set in train a process to deliver that by means of an independent review and a recommendation I will bring to the Government.

I listened with concern to the women who recounted their experiences on the "Women of Honour" programme on RTÉ on 11 September. Earlier this week I met with participants from the Women of Honour group and with a group of serving female members of the Defence Forces. I had the opportunity to listen carefully to their experiences in what were very informative meetings. I wish to say I absolutely believe them. I respect the sincerity and courage it took to bring those stories forward. I express my deep appreciation to the women, both former and serving members, for highlighting this serious matter and for taking the time to meet me. Participants from the Women of Honour group met with the Secretary General and senior officials from my Department last Thursday and I understand this was also a productive meeting.

It is clear to me, the Chief of Staff and the Secretary General that there are very strong views that the culture that is pervading, and the application of the current policies, systems and procedures in place for dealing with bullying, harassment, discrimination, sexual harassment and sexual assault, have not and are not serving all Defence Forces personnel well and as they should be. I take this opportunity to apologise to anyone who has suffered during their time in the Defence Forces and to assure them the State will carry out an independent review, which will be undertaken by external and entirely independent and unbiased experts in this field. This review will examine the effectiveness of these policies, systems and procedures.

The terms of the review, which are in the process of being finalised, are being reviewed in light of recent meetings with the Women of Honour group and with serving female personnel.

Further engagement with the Women of Honour group on the terms of the review will happen. In addition, engagement with other stakeholders, including the representative associations, is also scheduled and will additionally inform the terms. The Commission on the Defence Forces which was established in December 2020 is due to report by the end of December 2021 and its views will also be an important aid to the independent review. It is my understanding that the work of the commission in this area is quite focused and will be helpful.

Finally, I wish to assure the Deputy that I, as Minister, the Chief of Staff and the Secretary General of my Department are fully committed to ensuring that all members of the Defence Forces, both male and female, have the right to be treated with respect, equality and dignity and to carry out their duties in a safe workplace, underpinned by a culture of zero tolerance for any kind of bullying, discrimination or harassment. It is our job to make sure that becomes a reality on the ground.

This question is being taken with No. 86, so Deputy Gannon will get the opportunity to contribute after Deputy Clarke.

I thank the Minister. I want to take this opportunity to put on the record of this House my utter revulsion at the experiences these women detailed, my admiration for their bravery and determination but also my anger that in 2021 these exceptional women were forced to tell their stories so very publicly on national radio for an appropriate mechanism to be discussed. Let us be very clear that what they spoke of was sexual abuse, discrimination and harassment. In the interests of fairness, it is important to read into the record today a line from a letter sent by the Chief of Staff to members of the Defence Forces:

I am acutely aware that these inappropriate behaviours are abhorrent to the vast majority of men and women of the Defence Forces.

I welcome what appears to be a complete 180° turn by the Minister since we last spoke on this issue on 13 May. At that time the Minister said there was a robust system in place, there were policies and procedures regarding sexual harassment and bullying in the Defence Forces and there was supportive workplace culture. This is a very important first step in what must be a series of further steps.

We do not need an independent inquiry to tell us that certain practices are abhorrent. The Minister for Defence must act immediately to amend the law so that victims of rape or sexual assault in the Defence Forces can no longer be cross-examined by their abusers. The harrowing revelations in the "Women of Honour" documentary have shone a spotlight on the toxic culture of sexual abuse and bullying that exists in the Defence Forces. The Social Democrats welcome the apology from the Minister for Defence to the female members of the Defence Forces who have suffered abuse and harassment over three decades. However, the Minister must take immediate action to ensure that women who make accusations of rape or sexual assault can no longer be cross-examined by their alleged attackers when these complaints are being investigated internally by military police.

The first thing I want to do is to work with the women we have met, and who we will meet again, to try to finalise the terms of this review. I hope we will get the agreement and confidence of everybody that the people who are going to lead it are fit to do so. I would like to have international expertise as well as some very credible and strong Irish leadership. We have said that we are not going to rush this. It will take a few weeks to get it right and we must do that. Let us not forget that more than 20 years ago, Dr. Tom Clonan completed a doctoral thesis on this issue involving survey work across the Defence Forces. He made some very strong conclusions and after that, a whole series of things were done. We have had three different independent monitoring groups with recommendations-----

I thank the Minister, who will have an opportunity to come back in.

I will answer Deputy Gannon's question directly when I come back in.

It is absolutely critical that this review does not just focus on the failings of the Defence Forces as an institution but also looks at those individuals who obstructed any mechanism that was in place at the time, including those who deliberately prevented victims from coming forward to report or from feeling that they had gotten justice. What engagement has the Minister had with his legal advisers regarding the waiving of non-disclosure agreements that may exist and regarding settlements that have been reached with members of the Defence Forces vis-à-vis abuse allegations? I spoke to Dr. Tom Clonan recently and he is rather dismayed that after all of this time, not one person in the Department has picked up the phone to contact him. There has been no follow-up with him or, I suggest, with the women who engaged with him for his doctoral research.

The Minister has not had a chance to answer my question and I invite him to do so now.

I will answer it when I come back in.

The Minister can answer it now. There are four minutes left so there will be time for Deputy Gannon to respond.

It is important to say that significant efforts have been made to try to address this issue in the Defence Forces but they have not worked. Dr. Eileen Doyle, for example, did fantastic work on some of the independent monitoring group reports that she was involved in and her efforts are ongoing. Many people in the Defence Forces have also been advocating for change in this space. A women's network has been set up as well as a support network for LGBTQ communities within the Defence Forces. Confidential reporting systems have been put in place but it has not worked for many people. We need to look at the full picture here and figure out why there is still an issue for some people in terms of discrimination and harassment within the Defence Forces which is completely unacceptable. This group needs to understand why what we have done to date has not worked to the extent that it needs to and how we can fix that for the future in terms of a fundamental cultural change. However, we cannot wait for many months while this review group comes up with its recommendations. We must act much sooner than that in terms of interim measures. I am open to the kinds of interim measures that the Deputies are proposing. We asked the women I met this week about the kinds of interim measures they would welcome. There needs to be a safe space for people to report, confidentially, without fearing negative consequences for reporting such as being labelled as a troublemaker.

We are going to set up this review properly and we are going to introduce interim measures in the weeks ahead. We will take a lot of advice on those measures to try to provide a reassuring and professional system in the Defence Forces to deal with many people who now feel empowered to come forward, having heard many of the stories of the last few weeks.

Everyone in this Chamber will agree that the practice of allowing an alleged abuser to question his or her victim is simply wrong. We do not need an independent inquiry to tell us that this is an abhorrent practice. Victims in civilian court proceedings cannot be cross-examined by their attackers following the enactment of the Criminal Justice (Sexual Offences) Act 2017. However, the Defence Act was not simultaneously amended to ensure this safeguard was extended to members of the Defence Forces. We must act immediately to ensure this practice can no longer happen because it is abhorrent. I listened to an interview by Katie Hannon with a person who experienced such a scenario and my heart broke. As legislators, we need to act very quickly to amend the law..

I do not want to give an answer on my feet on that issue but I will look at it seriously. I am sure the Deputy understands how the chain of command works in the Defence Forces. It is a different environment from that which operates in the workplace for virtually any other person. That chain of command is necessary in terms of a functioning military but it also needs to be managed to ensure that people are protected. Just because somebody is a superior officer does not mean that he or she has a licence to control another or to behave inappropriately in terms of an abuse of power. We need to make sure there are systems in place that will root that out and hold people to account if they are abusing power. I have to say that we are talking about a small minority of people in the Defence Forces but there must be systems in place that address the issue comprehensively. We need to put interim measures in place to protect people and we also need the independent review mechanism to report back to us, having taken the time to look at all of these issues in detail.

The Minister has not answered my question-----

What was the Deputy's question?

It was on non-disclosure agreements.

We have to move on to the next question, I am sorry.

I do not have legal advice on that but I can get it.

Defence Forces

Michael McNamara

Question:

87. Deputy Michael McNamara asked the Minister for Defence if he will provide an update on the Defence Forces’ process of implementing recommendations on anti-discrimination law; and if he will make a statement on the matter. [47333/21]

I suppose this is related to the previous line of questioning. Will the Minister provide an update on the Defence Forces' process of implementing recommendations on anti-discrimination law? He will be aware that at the end of the WRC process recommendations were made and there have been other recommendations.

The Deputy will be aware that WRC rulings are in the public domain and that the adjudicator, in his December 2020 ruling on two complaints brought by an individual, upheld one complaint on the grounds of gender discrimination in respect of promotion, owing to the treatment of absences in access to promotion contrary to section 8(1) of the Employment Equality Acts, 1998 to 2015.  The adjudicator also found that there was no discrimination or victimisation against the complainant within the meaning of sections 2, 6(1) and 74 (2) of the Employment Equality Acts, 1998 to 2015, as alleged in the individual's second complaint.

 The directions of the ruling are currently being implemented by the military authorities with a view to ensuring all training programmes and materials for Defence Forces personnel are fully aligned, and compatible with, the provisions of the relevant equality legislation and that follow-on actions will be progressed. A Defence Forces working group is established comprising membership from the Defence Forces HR, legal and training and education HQ branches as well as representatives from the Defence Forces formations.  The working group has had 12 plenary meetings to date in addition to meetings of sub-groups. Progress is continuing in line with the timelines set out in the ruling which will be fully complied with. Basically, we are taking it seriously. There is a group in place. It has met a dozen times and they are making the appropriate changes in the Defence Forces to ensure that we are consistent with recommendations of that ruling.

To return to what the Minister said previously, I have no doubt that those who seek to abuse their positions of power, including in a sexually predatory way, are a small minority in the Defence Forces. I have witnessed in other similar institutions with a command structure how a small minority can have a large influence. Instead of tackling the problem, there is a tendency in institutions with command structures to circle the wagons, put a ring of steel around them and say that maybe the people did wrong but this is going to reflect badly on us all. They circle the wagons rather than tackle the problem.

Before the WRC case crossed the Minister's desk for a review, and the Minister signed off on the fact that there was no discrimination - and that was not the Minister personally, it was the Minister for Defence, advised by a Department with a plethora of officials down the line ------

There is clearly a problem. The Minister bears political responsibility for that.

The Deputy will have another minute later.

The question is how the command structure will be reviewed.

On this case, I received a recommendation from the Ombudsman for the Defence Forces, which ruled that a person was not discriminated against when it was subsequently determined by the WRC that they were discriminated against. When a Minister gets a report from an ombudsman's office and disagrees with it, he or she undermines the ombudsman's authority and credibility. I have to trust in the systems that are in place and when recommendations come to me through an ombudsman's office or through other systems that are set up to provide accurate and detailed recommendations to a Minister, and I get lots of those recommendations all the time, it would be very unusual to go against that. One would need real cause to do it.

The Deputy's comments on the impact that a small minority can have on large numbers of people and a potentially corrosive atmosphere within an organisation are very pertinent and is at the core of what we need to deal with.

I was not personalising, and I think the Minister realises that. I accept that there are systems in place and that the Minister has to trust in the systems, or else he or she undermines the system. There is a system under the Ombudsman for the Defence Forces. However, it is not unfair to say that the ombudsman has been undermined, not by the Minister but by this whole saga, and, ultimately, the WRC ruling.

I have been around the courts a little in a professional capacity as well as, unfortunately, in a personal one, and various appeal stages change a decision. Nobody has a monopoly on wisdom and nobody gets every decision right all the time but there has to be a Ombudsman for the Defence Forces that people have confidence in. That confidence could be undermined at least by what went on up to now. There has to be a process that people feel that they will get a fair hearing from.

That is likely to be part of the review because everything has to be on the table. My experience of the Ombudsman for the Defence Forces office has been positive, by and large. It has to make judgment calls all the time. Cases are regularly referred to the ombudsman. The office makes recommendations, which the Minister has to accept or reject. The role of an ombudsman in the Defence Forces is important. What is important now, in the context of the stories that have been heard and the women who have come forward, is that we need to ensure nothing is off limits for an independent, experienced group of people who will be asked to review the systems, procedures, support and reporting structures and, indeed, the atmosphere in the Defence Forces in this area. We need to rely on theme to make recommendations to make appropriate changes. That is the process that we are now starting.