Dáil Éireann debate -
Wednesday, 12 Jun 2024

Vol. 1055 No. 4

Defence (Amendment) Bill 2024: Report and Final Stages

Deputy Brendan Howlin

I move amendment No. 1:

In page 6, between lines 10 and 11, to insert the following:

“Command of the Defence Forces

6. Command of the Defence Force is exercisable as follows:

(a) the supreme command of the Defence Forces vested in the President is exercisable by him or her on the advice of the Government;

(b) under the supreme command of the President and subject to the provisions of this Act, command of the Defence Forces is exercisable by the Government and, subject to such exceptions and limitations as the Government may from time to time determine, by the Minister;

(c) subject to and in accordance with paragraphs (a) and (b), the Chief of Staff shall carry on and manage and control generally the staff, administration and business of the Defence Forces;

(d) Defence Forces Headquarters, the head of which is the Chief of Staff, ceases to stand established in the Department of Defence and instead stands established within the Defence Forces;

(e) the Chief of Staff is the accounting officer in relation to the appropriation accounts of the Defence Forces for the purposes of the Comptroller and Auditor General Acts 1866 to 1998.”.

This is a very fundamental issue. I think the Tánaiste agreed in committee it was a fundamental issue and one he proposes to address at some stage. There is no time like the present to address this fundamental issue. It goes to the heart of management of our Defence Forces whether the Chief of Staff of the Defence Forces is capable of directing and administering his own staff or whether he is subject to civil servant instruction. The second aspect concerns where the headquarters of the Defence Forces lies. Is it actually in Defence Forces Headquarters or is that merely a sub-office of the Department of Defence? Legally, that is the situation. Under the Defence Acts, the military, operational and administrative command of the Defence Forces is vested in and exercised by the Minister. Defence Forces Headquarters, headed by the Chief of Staff, is simply the name in law of the military branch of the Department of Defence. That is according to section 4 of the Defence (Amendment) Act 1998. Think about that, a Chathaoirligh - the Defence Forces Headquarters is the military branch of the Department of Defence, of a Government Department. Departmental civil servants can, therefore, exercise the power of command, which is by law vested in the Minister, and senior civil servants in the Department of Finance can effectively outrank the Chief of Staff of the Defence Forces in administrative and operational decisions.

The amendment I am proposing would vest the function of carrying on, managing and controlling the administration of staff and business of the Defence Forces in the Chief of Staff, which is where, in my view and in any logical view, it should reside. If this amendment were accepted, the Chief of Staff would become the Accounting Officer for the Defence Forces Vote and Defence Forces Headquarters would no longer be part of the Department of Defence but positioned within the Defence Forces proper. The current arrangement, as I said on Committee Stage, is rather extraordinary and there is an historical reason for it. It stemmed, as I said, from the earliest days of the State. Richard Mulcahy was Minister for Defence in the early part of 1919 and from 1922 until 1924. He succeeded General Michael Collins as Commander in Chief of the Defence Forces after his death in August 1922. Richard Mulcahy was then a general of the national Army and Chief of Staff of the national Army. That sort of model seems to continue to be replicated. Obviously the Tánaiste is not a general and he is not Chief of Staff of the Defence Forces-----

Deputy Micheál Martin

I thank the Deputy for the clarification.

Deputy Brendan Howlin

-----but the command structure is fundamentally the same. Obviously the primacy of civilian authority over the military remains a critical one. That is understood and a matter of law, as it should be. However, those arrangements and that primacy must have practical application. I think the Tánaiste will agree we need to fundamentally alter the long-standing current provision and give that autonomy in administration and oversight to the Chief of Staff, make the Army headquarters a proper, autonomous headquarters of the Defence Forces, and make the Chief of Staff the Accounting Officer who comes before the public accounts committee in the normal way and is accountable for his management of the administration of our Defence Forces.

The Tánaiste was, I think, quite receptive to the fundamental changes I am suggesting, but he has promised to bring in his own legislation in due course. If the matter is to be addressed, the fundamental changes I propose could be accepted now in this legislation. We are going through a fundamental change in the way our Defence Forces are to be structured and overseen. We will be dealing with the oversight function in later amendments. We hope to also see fundamental change in the growth of the Defence Forces and we must look to the norms of defence forces in other jurisdictions that are like our own. I hope in the intervening period, since we discussed these matters in some detail at committee, that the Tánaiste has had the opportunity to reflect upon them and that we do not get the same response, namely, the rote response that if it is not a departmental proposition, then it is not one worth accepting. The amendment I have laid out is a very significant advance and change. There is nothing extraordinary in it and nothing overly radical. I am interested in hearing the Tánaiste’s views.

Minister for Defence (Deputy Micheál Martin)

In fairness, I did not give the Deputy any rote response the last time and I am not going to give him one now.

Deputy Brendan Howlin

Good.

Deputy Micheál Martin

Neither am I going to accept the amendment. I indicated to the Deputy I would be introducing the most comprehensive legislation in terms of command and control within the Defence Forces. In the period between Committee and Report Stages, I have already approved a paper that my officials had done some work on in respect of CHOD, in respect of the recommendation the commission came forward with. While I appreciate the debate the amendment provokes, the amendment itself, even from the paper I have approved, in no way could capture the complexity involved here as well as the necessity for a detailed debate on this, including pre-legislative scrutiny, for example, of any Bill I might bring forward and really having genuine toing and froing on the primacy of the elected democratic government of the day and the civilian wing over the military.

This has been a cornerstone of our democracy since the foundation of the State. That needs teasing out in terms of how we do the accountability piece and how we do the division of responsibilities a chief of the Defence Forces in their entirety would have. There is also the issue of the heads of various services and what rank and level they are at, for example, in the Naval Service and the Air Corps. There are lots of issues - believe me - which I look forward to debating with the Deputy in the context of that Bill. We hope to be able to bring it to the Government - they are looking blankly at me regarding the timeline - or I would like to think I could go to Government before the summer recess and that maybe in the autumn we could have this Bill before the House. That is my ambition because it is a key piece. I do not accept and I do not believe the current structures are adequate at all. I believe the present situation is not optimal by any yardstick.

Deputy Brendan Howlin

I very much appreciate what the Tánaiste has said and I look forward to the debate but perhaps we might just have a modicum of democracy about it. Would the Tánaiste not present the discussion paper in the House before it is actually presented to us as a fait accompli in legislation so we can actually have that sort of discussion? I know it is a radical suggestion that Parliament might actually discuss these matters in an open way. Obviously the fundamental questions will be determined by Government and it will bring back legislation, but I would welcome that. In truth, the Tánaiste has accepted we need to radically reform the management structure. We will find out in other amendments how radical he is going to be. After the events of recent days, the notion that the Tánaiste will actually have legislation enacted in the lifetime of this Dáil, no matter what he says, is problematic. The Tánaiste is not going to have the debate he is talking about, the presentation of proposals to Government, pre-legislative scrutiny, and the enactment of legislation in the time we have left in this Dáil. Since I will not be a Member of the next Dáil, I would like to have some input at least into the discussion of what might emerge. I hope the Tánaiste would take this as an interim measure and accept it, as there is nothing overly radical in it, and at least indicate his own proposals in outline and when we might have some debate about the proper structures.

Deputy Cathal Berry

I will just speak briefly to support the principle of Deputy Howlin's amendment. I agree that the structures are not fit for purpose in any shape or form. They are nearly a century old and definitely need to be reformed for sure. I will also zoom in on Deputy Howlin's point on the Accounting Officer piece. Maybe this is not for today but it is very important to put on the Dáil record that the Garda Commissioner is the Accounting Officer for An Garda Síochána. Similarly, the Chief of Staff for the Defence Forces, or whatever he or she will be called, needs to be the Accounting Officer.

There is another layer of nuance in the Defence group of Votes in that we have two Votes. There is Vote 35, which is wages, salaries and pensions, and Vote 36, which is the operational budget. If we are looking at a happy compromise, perhaps it might be suitable to leave the Department of Defence in charge of Vote 35 and the military in charge of the operational budget, which is Vote 36. That is just food for thought. I agree with Deputy Howlin, and what he is saying is not dissimilar to what the Commission on the Defence Forces recommended, that we have a unified command structure that is a rebalancing of the Defence Forces. It is very Army-led at the moment. There needs to be parity of esteem between the three services and then the structures just need to be revised.

Deputy Micheál Martin

The Deputy is pre-empting the debate. This one amendment would not cover any of this, and deep down Deputy Howlin knows this, with no proper discussion or debate-----

Deputy Brendan Howlin

Tús maith, leath na hoibre.

Deputy Micheál Martin

I welcome the Deputy's interest in this and his promoting of it but an amendment is short and it could create more challenges in the working out of the details. A lot of work has gone into this. Deputy Howlin has been in government. He is a veteran of Government as well as of Opposition. He tends to be a bit more radical when on the Opposition benches when it comes to the sharing of information and ideas. Seriously, however, a lot of work is going into this. I might surprise the Deputy on the timelines because I am anxious to get this done. It needs to be done. There are debates we will need to have. The pre-legislative scrutiny will cover some of the points made by Deputy Berry. If we consider the principle of the primacy of the civilian and military, where does that land? That is where I see the pre-legislative scrutiny and where I see the committee and ourselves teasing those things out when the legislation is published. It is not a fait accompli.

I genuinely make a plea to the Deputy not to force the issue because there is separate legislation coming focused on implementing the recommendation, but there are fundamental questions. Even as a former Minister for public expenditure the Deputy will be aware of what Deputy Berry is saying, for example. The Garda is not the Army and there are different considerations there. We need to be conscious of that. When there are questions asked in this House about the Garda and the reply is that it is an operational matter for the Garda Commissioner, every Deputy in the House gets frustrated when they hear that. It may be a matter of a Garda station closing down, for example, and the whole place here is in high dudgeon but this is what we all voted for. Now the Deputy wants us to vote that potentially the Chief of Staff could close a barracks or open a barracks or whatever. We need to tease it all out. I actually believe the Chief of Staff is an adviser to the Minister for Defence and does not have what we, from a lay perspective, see as a chief of staff role in the sense of absolute command. We want to change that and put that right, but there is a lot of detail in the how it is done. I look forward to the debate.

Deputy Brendan Howlin

I thank the Tánaiste for that. I am no wiser on his intentions in relation to that. It will be a debate on a paper that is being produced but I would like the Oireachtas to be part of that debate, not after the decisions are made by way of being presented with heads of a Bill but in the sort of complication of debate the Tánaiste has just outlined. I fully accept the amendment I have proposed is far from the finished article in the context of the reforms that are necessary, but the notion that the Chief of Staff of the Defence Forces - the chief of the Defence Forces - is an adviser to the Minister and that a senior civil servant in the Department actually can direct him in the administration of the Defence Forces, there needs to be-----

Deputy Micheál Martin

That is not quite how it works.

Deputy Brendan Howlin

Okay, well-----

Deputy Micheál Martin

It does not work that way.

Deputy Brendan Howlin

Well, let us have that discussion and see how we can do things better. I do not intend to press my amendment. I take on board exactly what the Tánaiste has said but would like to hear from him whether he might share with us his ideas when they are fleshed out a little bit better and before they are presented to us and we are told that amendments are wonderful but are not accepted and this is the final article. It would improve the way the House works on a lot of issues like this where we all have something to contribute. Certainly Members like Deputy Berry would have an enormous amount to contribute if there were a more open debate before proposals are finalised.

An Cathaoirleach Gníomhach (Deputy Seán Canney)

There is no more time for debate on this amendment.

Deputy Brendan Howlin

Could the Tánaiste respond for one minute?

Deputy Micheál Martin

Is the Deputy being somewhat mischievous? Under the Constitution, the Government must prepare legislation and develop legislation. That is the context. I said there is working paper that I approved recently, to give the Deputy a sense that this is happening right now. I was afraid he might have thought this was on the long finger and that I was only saying it. There is advanced work going on here but the Government has to come to a decision. I have to bring this to Government and then the Government brings it to the Dáil. This is how it works.

Deputy Brendan Howlin

In truth, that will be the Department of Defence presenting it because other Ministers will not really be involved in that. As the Tánaiste has said, I have some experience in Government.

Deputy Micheál Martin

The Deputy has indeed.

Deputy Brendan Howlin

The Tánaiste will present it to his colleagues and there will not really be the type of scrutiny I would like.

Deputy Micheál Martin

There will be pre-legislative scrutiny.

Deputy Brendan Howlin

After the Tánaiste has decided what is going to happen.

Deputy Micheál Martin

Pre-legislative scrutiny could change it. I will undertake to discuss this with the Deputy.

Deputy Brendan Howlin

I thank the Tánaiste. I will withdraw the amendment.

Amendment, by leave, withdrawn.

An Cathaoirleach Gníomhach (Deputy Seán Canney)

Amendments Nos. 2 to 5, inclusive, and Nos. 13 to 18, inclusive, are related. Amendment No. 3 is a physical alternative to No. 2. Amendment No. 5 is a physical alternative to No. 4. Amendment No 14 is a logical alternative to No. 13. Amendment No. 16 is a physical alternative to No. 15. Amendment No. 18 is a physical alternative to No. 17. Amendments Nos. 2 to 5, inclusive, and Nos. 13 to 18, inclusive, are related and may be discussed together.

Deputy Brendan Howlin

I move amendment No. 2:

In page 9, lines 10 and 11, to delete "in relation to a political matter or matter of Government policy" and substitute "in relation to a matter for political controversy".

I wish to discuss amendment No. 2 and all the amendments that are related physically and, I suppose, transubstantially, in various ways. Amendment No. 2 is an important amendment and it relates to a discussion we had on Committee Stage on the notion of restrictions being imposed. The legislation states that without prejudice to the Defence (Amendment) Act 1990, a member of the Defence Forces, "while in uniform or otherwise making himself or herself identifiable", may not, without prior authorisation from his or her commanding officer, "make a public statement or comment in relation to a political matter or matter of Government policy" or "attend a protest, march or other gathering in relation to a political matter or matter of Government policy". That is a very broad net to be casting. Everything is a political matter. Any number of things, such as a climate change march or a crisis on which people would have a view, could be regarded as such. However, the Minister has imposed extraordinary restrictions. My amendment, to which alternatives have been proposed, would replace the Minister’s broad proposal with one whereby the restriction would apply in regard to "a matter of political controversy". When I proposed that on Committee Stage, the Minister was adamant that it was a very vague notion. I suggest that a political matter is a much more vague notion.

I have gone back to the root of the words I used, namely "a matter of political controversy". I do not believe the term is vague, uncertain or incapable of being used in a statutory context. I say that because I have lifted the phrase from a legislative instrument that the Minister himself signed last year – SI 371/2023, Civil Defence Act 2023 (Code of Practice) Regulations 2023 – which provides under the heading "political activities" that volunteers who take part in an outside activity that involves the disclosure of official information or use of official experience must not discuss "matters of current or potential political controversy in respect of Civil Defence Code". Therefore, the Minister believed the term "political controversy" could have meaning and could be anchored within a statutory instrument, which, as he knows, is secondary law. I do not see why it is unacceptable to house the term in the legislation before us or why it is regarded as so vague. I believed there was some element of agreement or, at least, acknowledgement regarding the net of restriction the Minister is throwing, whereby one cannot make a public statement or comment in relation to a political matter. The phrase is so open. It does not state "party-political matter"; it refers to any political matter. Ultimately, when people tell me they have no interest in politics when I knock on the doors, my argument is always that everything is political. All the things we deal with, including education and health, are political matters. Is it political if a member of the Defence Forces wants to be involved in campaigning for a new school, extension or autism unit? Is that a political matter on which the member would have no right to express a view if he or she could be identified? Again, it is vague. The legislation states "otherwise making himself or herself identifiable". I ask that the Minister think a little about this and not try to throw such a broad net around anything that is political. I hope he has done so since we had our discussion on Committee Stage. The term "political" is all-encompassing. Maybe the Minister could replicate the phrase he himself signed into law, such that the debarring would relate to matters of "political controversy". It is right and proper that members of the Defence Forces should not be identifiable if engaging in a partisan or political way, or engaging regarding controversial matters. The net the Minister is throwing is far too wide and restrictive and I hope he will give some leeway.

Deputy Réada Cronin

I wish to refer to amendments Nos. 3, 5 and 18. I ask the Minister to consider withdrawing amendment No. 13. Amendments Nos. 3, 5 and 18 seek to delete "or matter of Government policy". As Deputy Howlin was saying, everything is a matter of politics. With regard to members of the Defence Forces not being allowed to discuss anything related to Government policy, the price of bread-----

Deputy Micheál Martin

In uniform.

Deputy Réada Cronin

-----and the butter spread on it all come down to Government policy. The Government published its draft Bill prior to the pre-legislative scrutiny by the defence committee. The Minister said he had listened to stakeholders but he had not. He did not listen to the representative groups, the Opposition or his own defence committee. He just cannot explain why he is pushing this. He says he is listening carefully but the fact of the matter is that he has not done so. It seems he is using a sledge-hammer to crack a nut. I have said to him already that the nut does not even exist. Members of An Garda Síochána know they cannot get involved in party-political matters. So too do members of the Defence Forces. This measure seems to be an attempt to muzzle the Defence Forces. Not allowing members of the Defence Forces, as citizens, to make any comment on matters of Government policy is something one might expect from an authoritarian government but not a government in a republic. Matters such as the opening of a new primary healthcare centre in one’s area all come down to government policy, as alluded to by Deputy Howlin. The Minister is effectively trying to muzzle members of the Defence Forces. I ask him to accept our amendments and to withdraw his own, No. 13. He has made a little bit of a mess of this and I do not know why he is pressing ahead. We will be opposing the proposal. It is draconian. I invite the Minister to withdraw amendment No. 13.

Deputy Cathal Berry

I support the general thrust of those comments. I wish to speak to amendments Nos. 3 and 5. I agree with the two Deputies that the phrase "or matter of Government policy" is unnecessary. It is probably superfluous. The relevant sentence could very easily stop after the phrase "in relation to a political matter". A tradition dating back 30 or 40 years means members of the Defence Forces rightly cannot protest about certain matters. Wives and partners of Defence Forces personnel are regularly called upon in this regard. There was an organisation called the National Army Spouses Association, NASA, about 30 years ago, and more recently we have had Wives and Partners of the Defence Forces. I do not see why we need to have an overly restricted additional subparagraph.

As Deputy Howlin just mentioned, when we compare what applies to the Civil Defence to what applies to the Defence Forces, we see that the Civil Defence has the provision in question in secondary legislation. Do we really need to enshrine the proposal in primary legislation, which locks it in and makes it very difficult to change? Deputy Howlin mentioned the Civil Defence code of practice. To me, a code of practice is the appropriate location for these types of restrictions.

Those are the two points I want to make. If we could delete the last four words of that sentence, it would make perfect sense. We should also give consideration to whether this should be secondary, rather than primary, legislation.

Deputy Micheál Martin

I thank the Deputies for their comments. If we stand back, everybody at the committee said they accepted that the Defence Forces should not be political.

Deputy Brendan Howlin

Yes, they should not be party political.

Deputy Micheál Martin

What do we mean by that? What the Government is proposing is exactly that.

Deputy Réada Cronin

It is not. The Bill refers to a "matter of Government policy".

Deputy Micheál Martin

It includes reference to "in uniform". Are we seriously suggesting-----

Deputy Brendan Howlin

The Bill also refers to members of the Defence Forces who are otherwise identifiable as such.

Deputy Réada Cronin

It does not only refer to those in uniform.

Deputy Micheál Martin

I did not interrupt others. Are we seriously suggesting that the military should become politicised? That is what the Deputies are saying.

Deputy Réada Cronin

We are not.

Deputy Micheál Martin

That is what is being said. We need to be careful not to undermine what has been a strength of our democracy, namely, our apolitical Defence Forces. That is important, irrespective of who is in government. We are all birds of passage. We hope this legislation will apply for a significant period. Much of what is in the Bill is already in regulations and, in fact, may be less restrictive than the existing Defence Forces regulations.

We wrote to the committee on 2 April. It is unacceptable to say that we did not take on board some of the committee's proposals. That should be withdrawn. I was going to make a statement to the committee on a previous occasion but the Chairman asked me not to so I deferred. The allegation has been made. On 2 April, we conceded on two key points that were put forward by representative organisations and members of the committee in respect of whether military judges and prosecutors should be allowed to be members of RACO. I took the points that were made and withdrew our proposition. The committee did not mention that in its report even though it received correspondence from us on 2 April. We must be fair to all sides. I make that point.

Military management gave very strong advice on this matter. If the chief of defence, CHOD, recommended in Deputy Howlin's amendment No. 1 were in place, we would not be debating this issue. That is not the reason I will not accept other amendments. There is a fundamental point about the inclusion of "in uniform". That is what the legislation states, as well as "otherwise making himself or herself identifiable". It is about identifiability.

Deputy Brendan Howlin

The Bill states "identifiable".

Deputy Réada Cronin

Not everybody is in uniform.

Deputy Micheál Martin

No, and a member does not have to identify himself or herself as a member of the Defence Forces when criticising the Government or engaged in agitation and so forth. I went back to the Attorney General after Committee Stage because I was concerned about the piece around representative associations and whether they might be restricted in representing their members and so on. We put in an amendment to state that anything included as a prohibited activity was without prejudice to their role as representatives of their members. My officials worked on a further amendment but I found, on reflection, that our amendment might have been seen as restrictive in the context of remuneration and so on. I am not going to proceed with that amendment. What we have, and the inclusion of "without prejudice", allows a broader space for the representative associations to represent their members on all matters pertaining. I am satisfied - and the Attorney General has been clear on the point - that the measure is included. I was trying to make it more affirmative or assertive, having listened to the debate on Committee Stage, but the Attorney General has been clear on that point.

We are trying to preserve the apolitical nature of our Defence Forces and to provide clarity in primary legislation to that effect. Everyone nodded when I said it is universally accepted that an apolitical military is a cornerstone of any free and open democracy. These provisions are not new. The Defence Act 1954 and the oaths taken by members of the Defence Forces have always provided for restrictions with regard to political activities. Section 103 of the Defence Act 1954 states, "A member of the Permanent Defence Force shall not join, or be a member of, or subscribe to, any political organisation or society ... whatsoever." The oath taken by members of the Defence Forces requires them to solemnly swear to "be faithful to Ireland and loyal to the Constitution" and that while a member of the Permanent Defence Force, they will obey all lawful orders issued by superior officers and "will not join or be a member of or subscribe to any political organisation or society or any secret society whatsoever".

Defence Forces regulation A7 relates to communications, articles or letters on matters bearing on the Defence Forces generally and provides that such communication must be channelled through the director of intelligence and approved by the Minister. Defence Forces regulation A9, which deals with dress and medals, includes prohibitions on the wearing of military uniform at a meeting, demonstration or function of a political character. Those matters are already dealt with in regulation.

Section 2 of the Defence (Amendment) Act 1990 sets out that the Minister "may provide by regulations for the establishment of an association or associations" and goes through the role of those associations "as may be specified in the regulations in relation to matters affecting their remuneration and such other matters as the Minister may specify in the regulations, but excluding matters relating to any operation and the raising, maintenance, command, constitution, organisation and discipline of the Defence Forces under the Principal Act", and so on. Paragraph 10 of Defence Forces regulation S6 refers to communications relating to matters within the scope of representation or internal affairs. Much of this is already in the Defence Forces regulations. We are providing clarity in primary legislation.

Somebody referenced to me outside the Committee Stage meeting the example of a member of the Defence Forces giving a general opinion on, for example, Palestine and the Middle East. The argument was that surely a member of the Defence Forces should be able to join a protest in that context. Let us think about that. Our Defence Forces are in Lebanon as peacekeepers. Inadvertently and unwittingly, people could compromise our role as peacekeepers in given situations around the world. There would be complex security and defence issues if people were commenting willy-nilly on such matters while in uniform. What we are doing here is safer. It protects members of the Defence Forces. They are the last line of defence for the State. I have thought long and hard about these issues. As we discussed on Committee Stage, similar restrictions already operate across the wider public service. The Civil Service, in particular, is restricted. I am not changing. I have reflected long and hard. What we have put in already protects the representative associations. There is no hindrance in any shape or form to their capacity to represent their members.

Deputy John Lahart

I support the Tánaiste's position. I remember as a young man sitting in the Gallery when the late Brian Lenihan senior, a former Minister for Defence, introduced the legislation that allowed for PDFORRA and the representative piece. Many of the same arguments were being made then about allowing the Army a representative voice on general human resource issues, conciliation issues and any matters that could be proscribed by the Minister for Defence. The arguments then were similar. The thought struck me that if any of the Opposition spokespeople were in the Tánaiste's position, they would be making exactly the same defence of the existing system in the context of protecting the State.

Deputy Brendan Howlin

Nobody is going to argue against the proposition that the Defence Forces should be apolitical, should be perceived to be apolitical and should not be involved in any political controversy. That is a given. However, we are not still in 1954. In other developed countries, such as the Netherlands and others, there is a more participative discussion with defence forces personnel as workers on matters such as the application of the working time directive, which was not to apply to members of defence forces because they are not normal workers. We need to modernise our thinking on those sorts of things.

The first time I intervened on this set of amendments was in respect of amendments Nos. 2 to 5, inclusive, which deal with individuals. We have not discussed amendments Nos. 13 to 18, inclusive, because time is limited. Those amendments relate to the capacity of the association itself to deal with matters of Government policy. I have concerns that the association cannot deal with matters of Government policy even where it affects the association and its members.

The Tánaiste speaks about remuneration in his amendment. There are other things that affect its members besides remuneration. The Tánaiste is not going to press his amendment in any event.

Deputy Micheál Martin

The existing wording is "without prejudice to the purpose of an association of representing members".

Deputy Brendan Howlin

Yes but that is not clear.

Deputy Micheál Martin

It is very clear.

Deputy Brendan Howlin

No, "without prejudice to the purpose of the association" is fine. As the Tánaiste said, that is a catch-all phrase but it has no right. If we look at the prohibited activities of an association under section 2A on page 28, it cannot make a public statement or comment concerning a matter of Government policy. That is black and white, as opposed to the catch-all the Tánaiste is speaking about whereby it may have rights. I am anxious that the Tánaiste is clear that if we are going to give proper rights to a representative association then it should be right and proper for it to be able to comment on everything that affects its members. Is this manifest and clear in the legislation being presented to us? This is really my concern.

Deputy Réada Cronin

This is Ireland. There are only three degrees of separation, if that, between any of us in this country. In communities where members of the Defence Forces live, everybody knows they are members of the Defence Forces. Government policy may result in an increase in the price of petrol. When they are filling their cars they may comment on the cost of living and the increase in the price of petrol. That is a matter of Government policy. The Tánaiste has already said this is not necessary. He is taking a sledgehammer to crack a nut that does not even exist. As for members of the Defence Forces attending a Gaza protest in their uniforms, no member of the Defence Forces would risk the lives of their comrades.

Deputy Micheál Martin

I did not say they would.

Deputy Réada Cronin

They would never do that. Why did the Tánaiste even mention it? No member of the Defence Forces would do that and risk the lives of their comrades serving in a peacekeeping capacity abroad. I ask the Tánaiste to delete "matter of Government policy". It is insulting to try to silence members of the Defence Forces. As for mentioning attending a protest on Gaza in uniform, come off it.

Deputy Micheál Martin

What are we trying to do here? We are trying to facilitate association membership of ICTU for the representative associations.

Deputy Réada Cronin

Yes.

Deputy Micheál Martin

It is positive. This legislation is positive. It is an advance on 1990. It is an advance on the legislation that gave rise to the representative associations. A bit more positivity here is called for. What we are speaking about is being in uniform. That is what the Bill says.

Deputy Réada Cronin

Or making themselves identifiable.

Deputy Brendan Howlin

Or making themselves identifiable.

Deputy Micheál Martin

Deputy Cronin took issue with me using the phrase "in uniform". That is what the Bill says. We are not saying people cannot have views as citizens of the country. Of course they can have views as citizens of the country.

Deputy Réada Cronin

You are. That is what you are actually saying.

Deputy Micheál Martin

We are not. If you read the Bill it is very clear with regard to being in uniform or people otherwise making themselves identifiable as members of the permanent Defence Forces. We are trying to preserve the apolitical nature of the Defence Forces. That is what we are trying to do. It is already in Defence Forces regulations, as Deputy Cronin has acknowledged.

Deputy Réada Cronin

It already is.

Deputy Micheál Martin

The idea that we are insulting anybody is outrageous. There is no intention to do that. We are protecting people from potential embroilment in all sorts of issues. We are maintaining the framework within which the Defence Forces operate. We are advancing it insofar as they will now enjoy statutory underpinning of association membership with ICTU. This is an advance.

To respond to Deputy Howlin's point, I want to be very clear because I double checked with the Attorney General on the "without prejudice" piece in section 2A(1)(g). It gives an absolute comprehensive remit to representative bodies to represent their members in all aspects that affect them. Take the organisation of working time directive as an example. I have had discussions with RACO and PDFORRA on the organisation of working time directive. We have reached agreement on it. It is being legislated for by the Department of enterprise which is the responsible Department. There is no issue there because I have engaged with the associations since I became Minister. I set it as a target to get the organisation of working time directive through. We now have agreement with the representative bodies and military command, and the proposals have gone to be legislated on. I want to be very clear because it is a fair point. I would not want to restrict the role of the associations in representing their members.

Deputy Brendan Howlin

The Tánaiste is right that the view of the Attorney General is there is a saver clause that allows discussion but there is an explicit prohibition that overrules it, as the Bill states they cannot engage in a matter of Government policy. If anybody looks at the Bill, they will see it is explicit that they cannot do it. The Tánaiste may state there are other undisclosed matters they can discuss but the explicit prohibition trumps this general catch-all in my view and in my experience. I am interested to hear the Tánaiste's view on this. For example, this has not been applied to the Tánaiste's discussions with the representative organisations on the working time directive. What if it were not the Tánaiste sitting there but a different Minister who would state they are not allowed to do something because the law states they cannot do so and would also state that they are not allowed to lobby on it. As the Tánaiste said in the beginning, we are legislating forever and for as long as we can see into the future. It is not for the Tánaiste's term because, as he said, we are all transient here in this place. A Minister with a different mindset may state the law does not allow them to do this, and that Minister would be right.

Deputy Micheál Martin

No, that would not be right. That would not be correct. For example, the conciliation and arbitration mechanism is well used by the representative associations on a range of issues. We have come a long way since 1990.

Deputy Brendan Howlin

If it were Government policy not to give-----

Deputy Micheál Martin

Deputy Lahart outlined its origins. The formation and establishment by former Fianna Fáil Minister for Defence Brian Lenihan senior in respect of the representative associations was a breakthrough at the time. We have advanced since then. There is healthy engagement with RACO and PDFORRA. I do not think they could argue there is any attempt to restrict. I must stress that we listened to what they said with regard to, for example, any potential debarment from membership of the military judge and military prosecutor roles. We responded to that. We have engaged.

Amendment put:

The Dáil divided: Tá, 51; Níl, 69; Staon, 0.

Tá

• Andrews, Chris.
• Bacik, Ivana.
• Barry, Mick.
• Berry, Cathal.
• Boyd Barrett, Richard.
• Brady, John.
• Browne, Martin.
• Buckley, Pat.
• Cairns, Holly.
• Canney, Seán.
• Clarke, Sorca.
• Collins, Michael.
• Conway-Walsh, Rose.
• Cronin, Réada.
• Daly, Pa.
• Doherty, Pearse.
• Ellis, Dessie.
• Farrell, Mairéad.
• Fitzmaurice, Michael.
• Gannon, Gary.
• Gould, Thomas.
• Guirke, Johnny.
• Healy-Rae, Danny.
• Healy-Rae, Michael.
• Howlin, Brendan.
• Kelly, Alan.
• Kenny, Gino.
• Kerrane, Claire.
• Mac Lochlainn, Pádraig.
• McGrath, Mattie.
• Mitchell, Denise.
• Munster, Imelda.
• Murphy, Catherine.
• Murphy, Paul.
• Mythen, Johnny.
• Nash, Ged.
• Nolan, Carol.
• O'Callaghan, Cian.
• O'Donoghue, Richard.
• O'Reilly, Louise.
• O'Rourke, Darren.
• Ó Broin, Eoin.
• Ó Murchú, Ruairí.
• Ó Snodaigh, Aengus.
• Pringle, Thomas.
• Ryan, Patricia.
• Sherlock, Sean.
• Shortall, Róisín.
• Stanley, Brian.
• Ward, Mark.
• Wynne, Violet-Anne.

Níl

• Brophy, Colm.
• Browne, James.
• Bruton, Richard.
• Burke, Colm.
• Burke, Peter.
• Butler, Mary.
• Byrne, Thomas.
• Cahill, Jackie.
• Calleary, Dara.
• Carroll MacNeill, Jennifer.
• Chambers, Jack.
• Collins, Niall.
• Costello, Patrick.
• Coveney, Simon.
• Creed, Michael.
• Crowe, Cathal.
• Devlin, Cormac.
• Dillon, Alan.
• Donohoe, Paschal.
• Durkan, Bernard J.
• English, Damien.
• Farrell, Alan.
• Feighan, Frankie.
• Flaherty, Joe.
• Flanagan, Charles.
• Fleming, Sean.
• Foley, Norma.
• Griffin, Brendan.
• Haughey, Seán.
• Heydon, Martin.
• Higgins, Emer.
• Humphreys, Heather.
• Kehoe, Paul.
• Lahart, John.
• Lawless, James.
• Leddin, Brian.
• Madigan, Josepha.
• Martin, Catherine.
• Martin, Micheál.
• Matthews, Steven.
• McAuliffe, Paul.
• McGuinness, John.
• McHugh, Joe.
• Moynihan, Michael.
• Murnane O'Connor, Jennifer.
• Naughton, Hildegarde.
• Noonan, Malcolm.
• O'Brien, Darragh.
• O'Brien, Joe.
• O'Connor, James.
• O'Dea, Willie.
• O'Donnell, Kieran.
• O'Donovan, Patrick.
• O'Dowd, Fergus.
• O'Gorman, Roderic.
• O'Sullivan, Christopher.
• O'Sullivan, Pádraig.
• Ó Cathasaigh, Marc.
• Ó Cuív, Éamon.
• Phelan, John Paul.
• Rabbitte, Anne.
• Richmond, Neale.
• Ring, Michael.
• Ryan, Eamon.
• Smith, Brendan.
• Smyth, Niamh.
• Smyth, Ossian.
• Stanton, David.
• Varadkar, Leo.

Staon

Tellers: Tá, Deputies Brendan Howlin and Ivana Bacik; Níl, Deputies Hildegarde Naughton and Cormac Devlin.

Amendment declared lost.

Deputy Réada Cronin

I move amendment No. 3:

In page 9, line 11, to delete “or matter of Government policy”.

Amendment put:

The Dáil divided: Tá, 51; Níl, 71; Staon, 0.

Tá

• Andrews, Chris.
• Bacik, Ivana.
• Barry, Mick.
• Berry, Cathal.
• Boyd Barrett, Richard.
• Brady, John.
• Browne, Martin.
• Buckley, Pat.
• Cairns, Holly.
• Canney, Seán.
• Clarke, Sorca.
• Conway-Walsh, Rose.
• Cronin, Réada.
• Daly, Pa.
• Doherty, Pearse.
• Donnelly, Paul.
• Ellis, Dessie.
• Farrell, Mairéad.
• Fitzmaurice, Michael.
• Gannon, Gary.
• Gould, Thomas.
• Guirke, Johnny.
• Healy-Rae, Danny.
• Healy-Rae, Michael.
• Howlin, Brendan.
• Kelly, Alan.
• Kenny, Gino.
• Kerrane, Claire.
• Mac Lochlainn, Pádraig.
• McGrath, Mattie.
• Mitchell, Denise.
• Munster, Imelda.
• Murphy, Catherine.
• Murphy, Paul.
• Mythen, Johnny.
• Nash, Ged.
• Nolan, Carol.
• O'Callaghan, Cian.
• O'Donoghue, Richard.
• O'Reilly, Louise.
• O'Rourke, Darren.
• Ó Broin, Eoin.
• Ó Murchú, Ruairí.
• Ó Snodaigh, Aengus.
• Pringle, Thomas.
• Ryan, Patricia.
• Sherlock, Sean.
• Shortall, Róisín.
• Stanley, Brian.
• Ward, Mark.
• Wynne, Violet-Anne.

Níl

• Brophy, Colm.
• Browne, James.
• Bruton, Richard.
• Burke, Colm.
• Burke, Peter.
• Butler, Mary.
• Byrne, Thomas.
• Cahill, Jackie.
• Calleary, Dara.
• Carroll MacNeill, Jennifer.
• Chambers, Jack.
• Collins, Niall.
• Costello, Patrick.
• Coveney, Simon.
• Creed, Michael.
• Crowe, Cathal.
• Devlin, Cormac.
• Dillon, Alan.
• Donohoe, Paschal.
• Duffy, Francis Noel.
• Durkan, Bernard J.
• English, Damien.
• Farrell, Alan.
• Feighan, Frankie.
• Flaherty, Joe.
• Flanagan, Charles.
• Fleming, Sean.
• Foley, Norma.
• Griffin, Brendan.
• Haughey, Seán.
• Heydon, Martin.
• Higgins, Emer.
• Humphreys, Heather.
• Kehoe, Paul.
• Lahart, John.
• Lawless, James.
• Leddin, Brian.
• Madigan, Josepha.
• Martin, Catherine.
• Martin, Micheál.
• Matthews, Steven.
• McAuliffe, Paul.
• McGuinness, John.
• McHugh, Joe.
• Moynihan, Michael.
• Murnane O'Connor, Jennifer.
• Naughton, Hildegarde.
• Noonan, Malcolm.
• O'Brien, Darragh.
• O'Brien, Joe.
• O'Callaghan, Jim.
• O'Connor, James.
• O'Dea, Willie.
• O'Donnell, Kieran.
• O'Donovan, Patrick.
• O'Dowd, Fergus.
• O'Gorman, Roderic.
• O'Sullivan, Christopher.
• O'Sullivan, Pádraig.
• Ó Cathasaigh, Marc.
• Ó Cuív, Éamon.
• Phelan, John Paul.
• Rabbitte, Anne.
• Richmond, Neale.
• Ring, Michael.
• Ryan, Eamon.
• Smith, Brendan.
• Smyth, Niamh.
• Smyth, Ossian.
• Stanton, David.
• Varadkar, Leo.

Staon

Tellers: Tá, Deputies Pádraig Mac Lochlainn and Denise Mitchell; Níl, Deputies Hildegarde Naughton and Cormac Devlin.

Amendment declared lost.

Deputy Brendan Howlin

I move amendment No. 4:

In page 9, lines 12 and 13, to delete “in relation to a political matter or matter of Government policy” and substitute “in relation to a matter for political controversy”.

Amendment put and declared lost.

Deputy Réada Cronin

I move amendment No. 5:

In page 9, line 13, to delete “or matter of Government policy”.

Amendment put:

The Dáil divided: Tá, 51; Níl, 71; Staon, 0.

Tá

• Andrews, Chris.
• Bacik, Ivana.
• Barry, Mick.
• Berry, Cathal.
• Boyd Barrett, Richard.
• Brady, John.
• Browne, Martin.
• Buckley, Pat.
• Cairns, Holly.
• Canney, Seán.
• Clarke, Sorca.
• Collins, Michael.
• Conway-Walsh, Rose.
• Cronin, Réada.
• Daly, Pa.
• Doherty, Pearse.
• Donnelly, Paul.
• Ellis, Dessie.
• Farrell, Mairéad.
• Fitzmaurice, Michael.
• Gannon, Gary.
• Gould, Thomas.
• Guirke, Johnny.
• Healy-Rae, Michael.
• Howlin, Brendan.
• Kelly, Alan.
• Kenny, Gino.
• Kerrane, Claire.
• Mac Lochlainn, Pádraig.
• McGrath, Mattie.
• Mitchell, Denise.
• Munster, Imelda.
• Murphy, Catherine.
• Murphy, Paul.
• Mythen, Johnny.
• Nash, Ged.
• Nolan, Carol.
• O'Callaghan, Cian.
• O'Donoghue, Richard.
• O'Reilly, Louise.
• O'Rourke, Darren.
• Ó Broin, Eoin.
• Ó Murchú, Ruairí.
• Ó Snodaigh, Aengus.
• Pringle, Thomas.
• Ryan, Patricia.
• Sherlock, Sean.
• Shortall, Róisín.
• Stanley, Brian.
• Ward, Mark.
• Wynne, Violet-Anne.

Níl

• Brophy, Colm.
• Browne, James.
• Bruton, Richard.
• Burke, Colm.
• Burke, Peter.
• Butler, Mary.
• Byrne, Thomas.
• Cahill, Jackie.
• Calleary, Dara.
• Carroll MacNeill, Jennifer.
• Chambers, Jack.
• Collins, Niall.
• Costello, Patrick.
• Coveney, Simon.
• Creed, Michael.
• Crowe, Cathal.
• Devlin, Cormac.
• Dillon, Alan.
• Donohoe, Paschal.
• Duffy, Francis Noel.
• Durkan, Bernard J.
• English, Damien.
• Farrell, Alan.
• Feighan, Frankie.
• Flaherty, Joe.
• Flanagan, Charles.
• Fleming, Sean.
• Foley, Norma.
• Griffin, Brendan.
• Haughey, Seán.
• Heydon, Martin.
• Higgins, Emer.
• Humphreys, Heather.
• Kehoe, Paul.
• Lahart, John.
• Lawless, James.
• Leddin, Brian.
• Madigan, Josepha.
• Martin, Catherine.
• Martin, Micheál.
• Matthews, Steven.
• McAuliffe, Paul.
• McConalogue, Charlie.
• McGuinness, John.
• McHugh, Joe.
• Moynihan, Michael.
• Murnane O'Connor, Jennifer.
• Naughton, Hildegarde.
• Noonan, Malcolm.
• O'Brien, Darragh.
• O'Brien, Joe.
• O'Callaghan, Jim.
• O'Connor, James.
• O'Dea, Willie.
• O'Donnell, Kieran.
• O'Donovan, Patrick.
• O'Dowd, Fergus.
• O'Gorman, Roderic.
• O'Sullivan, Christopher.
• O'Sullivan, Pádraig.
• Ó Cathasaigh, Marc.
• Ó Cuív, Éamon.
• Phelan, John Paul.
• Rabbitte, Anne.
• Richmond, Neale.
• Ring, Michael.
• Ryan, Eamon.
• Smith, Brendan.
• Smyth, Niamh.
• Stanton, David.
• Varadkar, Leo.

Staon

Tellers: Tá, Deputies Pádraig Mac Lochlainn and Denise Mitchell; Níl, Deputies Hildegarde Naughton and Cormac Devlin.

Amendment declared lost.

An Cathaoirleach Gníomhach (Deputy Bernard J. Durkan)

Amendments Nos. 6 to 9, inclusive, are related and will be discussed together.

Deputy Réada Cronin

I move amendment No. 6:

In page 14, line 33, to delete "and" where it secondly occurs and substitute the following:

"(c) the Secretaries General of those military representative associations authorised by the Minister as per subsection (3A) of the Defence (Amendment) Act 1990 (inserted by section 23(a)(iii) of the Defence (Amendment) Act 2024) who shall be ex officio members, and".

This amendment relates to the external oversight body and its establishment. The meeting we had with the members of the oversight body at the defence committee was really productive and progressive. On a legislative basis, the provision is very welcome. We certainly look forward to supporting the work of the body.

However, the membership of the Department's Secretary General, even in an ex officio capacity, is questionable. It is a question the Tánaiste has not answered to my satisfaction. I accept that the Secretary General might have a contribution to make and could act as a conduit between the external oversight body and the Minister. However, if we accept that position, the exact same rationale applies in respect of members of the military representative groups. The Oireachtas defence committee was united across the political groupings on this point. The Sinn Féin amendment seeks to extend ex officio membership to the secretaries general of the representative associations already recognised by the Department. We will also support alternative proposals from colleagues seeking to address this deficiency in the Bill. Unless the Tánaiste wants to undermine the body he is establishing in legislation, either the Secretary General has to go or the members of the representative groups should also be appointed to the external oversight body.

Deputy Brendan Howlin

My amendment No. 7 is in this grouping. As the previous speaker said, these proposals concern the membership of the very important external oversight body. The recommendation to establish such a body to oversee the operations of the Defence Forces really is the kernel of the Bill. The Tánaiste agreed, both at committee and again in our discussions on my first Report Stage amendment, on the need for a structural separation between Defence Forces management and the Department of Defence. Pending that, Defence Forces Headquarters, as I have said previously, is the military branch of the Department, headed by the Secretary General. That is the current legal position. The headquarters of the Defence Forces is the military branch of the Civil Service Department and is headed by the Secretary General.

In this circumstance, and pending the reform we have discussed and the Tánaiste has promised, it surely is a nonsense to suggest the Secretary General could be part of an external oversight body. Following the Tánaiste's reference to the Public Service Management Act on Committee Stage, I had a look at that legislation. Taking the Defence Forces Acts and reading them in conjunction with the Public Service Management Act, it is clear we will have a situation, if this proposal goes through without amendment, whereby different parts of the applicable legislation will give rise to a certain scenario. That scenario is as follows. The raising and training of the Defence Forces will be a function of the Government. All executive and administrative powers in regard to the Defence Forces will be exercisable by the Minister. Defence Forces Headquarters, headed by the Chief of Staff, will be a military branch within the Department of Defence. It will be the responsibility of the Secretary General to manage his or her Department, including its military branch, which is an integral part, in law, of the Defence Forces Headquarters.

It is now proposed that the Secretary General will sit on the body that claims to exercise independent external oversight of the management of human resources of the Defence Forces, including recruitment and training, which are functions of the Government. What is proposed is a bit like the mystery of the holy trinity or perhaps the holy duality. The Secretary General will be a duality that will include one person who is external to himself or herself, with the first of his or her personalities independently overseeing the performance of his or her second personality as Secretary General of the Department. It is a nonsense. We cannot have people overseeing themselves or being part of a body that is intended to oversee themselves.

Principle one of the principles of natural justice is nemo judex in causa sua, or no one can be a judge in his or her own case. No one can independently judge a matter in which he or she has an interest. It is as plain as a pikestaff. I do not know what arguments have gone on to arrive at this position but it is, in my judgment, quite improper. In any other circumstances, we would not even be having a debate on whether a Secretary General should be part of a body with oversight of his or her own Department. In the case of the Department of Defence, military headquarters is an integral part of the Department in law. That is the legal position as of now. The Tánaiste can tell me he will change it in some future legislation but let us deal with the legislation we have in front of us.

I make this point in the strongest way I can. It is a very important principle. Even when the structure is changed as the Tánaiste has committed to do, the oversight body must be a completely independent body. The Tánaiste has it in legislation that no member of the Civil Service or elected person can be a member of that body. That is right and proper. However, there is an exception for the Secretary General of the Department. That is wrong. I hope the Tánaiste will not just stick to the view he has presented to us. We had this discussion on Committee Stage. Nobody was in any way convinced that he put forward a coherent argument for why the Secretary General of the Department of Defence should be part of the external oversight body that is envisaged to be independent and to be able, without let or hindrance, to give views. The only justification he presented was that the Secretary General would be knowledgeable in certain matters and would be a conduit. However, that is not the role of a member of the oversight body. That is the role of somebody who can give evidence to the body and be called in for discussions with its members.

I ask that this would be thought out again without prejudice to whoever holds the role in the future. I do not think it is the correct way to proceed with an independent oversight body

Deputy Cathal Berry

I will speak on my amendment No. 8 and in support of Deputies Cronin and Howlin. First, there is a lot of good stuff in this Bill, but this is a lightning rod for any discontent. I think we all welcome true, independent oversight. It is a good model. I think everybody here wants this oversight body to be a success. We want it to not only be a success but an exemplar of good governance. As Deputy Howlin pointed out, the Secretary General has an executive function in the defence apparatus. Mixing oversight and executive functioning or activity is generally not good practice, whether nationally or internationally. I have a few points to raise, which I do with full respect.

The Minister mentioned that he sought the advice of the Attorney General about some matters before the votes, which is completely appropriate. A former Attorney General, Senator Michael McDowell, attended one of the hearings. He thought the presence of the Secretary General on an oversight function was highly unusual. Obviously the Minister is not going to disclose what the Attorney General said to him. Could we clarify whether the formal advice of the Attorney General has been sought about the appropriateness or otherwise of this? That would be good to know.

The Chair of the Committee on Foreign Affairs and Defence and former Minister for Justice and Equality, Deputy Charles Flanagan, said at the committee hearing that it would have been unthinkable for him to put the Secretary General of the Department of Justice on the Garda Síochána Ombudsman Commission or the Garda board, for exactly the same reason of perceived or actual conflict of interest. The Minister said at the committee hearing that the independent review group, IRG, recommended this course of action. I accept that and agree. To counter that a little, it is the unanimous view of the Committee on Foreign Affairs and Defence, both in public and private, I believe, that that should not be the case. I know the IRG was established but I think the cross-party parliamentary Committee on Foreign Affairs and Defence would also have some weight in the decision-making process. I ask that our views be taken on board too.

The fourth point I want to raise relates to page 18, if the Minister has it in front of him. It is line 30, in subsection 2(d). It is explicit. It is about removing a member of the external oversight body, which would obviously only happen in extremis. Line 30 reads, "the member has a conflict of interest of such significance that he or she should cease to hold office". To me, it is a contradiction to have that on page 18 while, a few pages beforehand, we are creating this conflict of interest. It is unfair to put the holder of that appointment into that compromised position.

The last point I would raise is that there is an excellent pathway, which Deputy Stanton raised at the committee, where the Chief of Staff, the head service person in the Defence Forces, can engage with the external oversight body. Why can the same courtesy not be extended to the Secretary General? If it is good enough for our Chief of Staff, surely it would be good enough for the Secretary General? I understand why the Secretary General would want to interact with the board. It is the same reason the Chief of Staff would. The Secretary General's expertise can be used to assist the external oversight board by using this pathway rather than being an ex officio member.

Those are the points I have. Perhaps the Minister might be able to reflect on them. If no decision can be taken today, perhaps an amendment can be drafted in the Seanad.

Deputy Richard Boyd Barrett

I would like to speak in support of these amendments. I do not see how it is at all credible that the Secretary General of the Department of Defence can sit on a body that is supposed to be an independent, external oversight body over the Defence Forces. As Deputy Berry has just pointed out, there is a glaring contradiction when you talk about having the right to remove people where there are conflicts of interest and then you ensure there is a conflict of interest by putting the Secretary General of the Department of Defence on a body which might well be asking serious questions about the Department of Defence. It makes no sense whatsoever and has the potential to completely undermine the independence and objective of an independent oversight body.

I have not been following this Bill terribly closely but my interest in it was piqued by a case that was brought to me recently, which I have sought to give an airing to in this House over recent weeks. It seems to be an instance of precisely the problem here. It is the case of a sergeant who had been in the Army for 35 years. He had done multiple foreign tours and peacekeeping missions. He informed me that he had made a protected disclosure about problems in the Defence Forces. Specifically in his case, it was about the use of chemicals that were dangerous for the members of the Defence Forces who were working with them, the lack of health and safety, the lack of protective equipment and the impact on his health and that of his colleagues. He came to me because he says he was denied, and I believe him, what is called a presentation, which I had never heard of, at the end of his career. He was absolutely certain it was because he had made a protected disclosure. He said others of his colleagues were also denied this presentation. Deputy Berry would probably know these things better than I do, but as I understand it, it is a sort of ceremony for when people are finished their career. They bring their family in and so on and there is a ceremony or presentation for those who are finishing in the Defence Forces.

When I tabled a question to the Department of Defence about this, what I got back is the following from the Department over which the Secretary General presides. It states:

I would like to thank the Deputy for his question. I am not at liberty to discuss or comment on any protected disclosure; however, I am assured by Military Management that no member of the Defence Forces is denied anything on foot of having made a protected disclosure.

Let us remember that this external oversight body is supposed to deal with grievances.

Deputy Micheál Martin

No, it is not.

Deputy Richard Boyd Barrett

It says in the Bill that it does.

Deputy Micheál Martin

Not individually.

Deputy Richard Boyd Barrett

Okay. I will read it out, since the Minister decided to interrupt me.

Deputy Micheál Martin

The Deputy does not have to. I will explain it later.

Deputy Richard Boyd Barrett

The Minister maybe does not know what is in his own Bill.

Deputy Micheál Martin

Deputy Boyd Barrett does not know what is in the Bill, as he acknowledged.

Deputy Richard Boyd Barrett

What does it deal with?

Deputy Micheál Martin

The process. It deals with the grievance process, not individual complaints.

Deputy Richard Boyd Barrett

Yes, the grievance process.

Deputy Micheál Martin

That is what I am trying to clarify. It is not individual complaints. I will come back to it.

Deputy Richard Boyd Barrett

It is oversight over human resources. To be clear, this same person attempted to go to the WRC and discovered that he cannot go to the WRC because, apparently, people are deemed workers, not employees, when they are members of the Defence Forces, which seems ridiculous to me. Apparently they cannot go to the WRC with a case of penalisation. It looks like the Minister's officials are confirming that. Where does this person go? He came to me. I tabled a question to the Department. The Secretary General, who oversees all this, went to military management and asked if this is happening, they said no, and that is the answer we got back. I would not have a great deal of faith if this is a body that is supposed to be an external oversight body and that is the attitude taken by the Department to grievances raised by members of the Defence Forces. I do not know why the Minister is shaking his head.

Deputy Micheál Martin

It is because it is exasperating to listen to this nonsense.

Deputy Richard Boyd Barrett

If he wants to explain to me now, he can.

To me, that is just an instance of how there is a problem because, surely, an external oversight body should be precisely something that does not have that sort of cosy relationship or potential conflict of interest where it might not really be in its interest to admit there is a problem or something being done wrong and, therefore, it just takes the word of military management on an issue or grievance that has been raised by a member of the Defence Forces.

Deputy Micheál Martin

I apologise for nodding my head all the time, but in fairness to the Deputy, and I do not mean this in any bad way, he did say that he had come to the Bill and has not been following it to an extensive degree.

Deputy Richard Boyd Barrett

Not in great detail. No, I have not.

Deputy Micheál Martin

The point I would generally make to all the Deputies is to ask what the genesis of this is. Why are we bringing in legislation, part of which is establishing an external oversight body? It is because the independent review group recommended it. Why did the independent review group recommend it? What was the independent review group doing? It was investigating shocking behaviour, including misogyny, sexual assault and sexual abuse of members, female and male. I recall Deputy Cronin asking me during question time in advance of the independent review group if I would commit to implementing all the recommendations of the independent review group. Not one Deputy here today mentioned a victim. Not one Member here mentioned the origins of this or why the independent review group felt it necessary-----

Deputy Brendan Howlin

What has that got to do with anything?

Deputy Micheál Martin

-----to make a recommendation to create an independent oversight body with the Secretary General on it, by the way. There is a reason it is called independent oversight. The independent review body recommended that it be independent of the Defence Forces, whether we like it or not. That was the recommendation. When it came out and was published, every one of the Opposition Deputies was in full high dudgeon and said that never again should this happen and never again should we allow something like this to happen.

I am implementing a recommendation of that same group, which went into great detail on all of this issues and which, by the way, some members of the Defence Forces do not agree with or accept. I would refer people to the contributions in the other House by some Members who raised serious credibility issues around the independent review group report, as if it went over the top. This was said and has also been said by people within the defence community. Let us call a spade a spade. There was also a view that previous iterations of monitoring groups simply did not work because they were of a representative nature. RACO and others no not like me saying that, but I am going to say it because that is the truth of how things have unfolded. They give confidence in a grievance process.

The job of the oversight body is to review the grievance process, Deputy Boyd Barrett, so that we create a new grievance process that will be truly independent and give members of the Defence Forces confidence that when they bring a complaint, they will not be penalised. Many rank-and-file members, when you meet them, would say that if they bring a complaint or if they make a protected disclosure, it is more or less the end of their career. We are trying to change that. That is why we are having an independent oversight body. That is what the whole thing is about.

Deputy Brendan Howlin

We are all in agreement with that.

Deputy Micheál Martin

I am not so sure you are. You say you are, but when we try to do something practical about it, you find other reasons about it and start getting Jesuitical about the public service management-----

Deputy Réada Cronin

Oh, God.

Deputy Micheál Martin

-----and the separation between the Chief of Staff and Secretary General. There is another agenda here. There is an anti-Secretary General agenda. There is an anti-Department agenda.

Deputy Brendan Howlin

Absolutely not.

Deputy Micheál Martin

I am not saying Deputy Howlin has it, but it is in the ether.

Deputy Brendan Howlin

Where is it in the ether?

Deputy Micheál Martin

The Deputy has been around a long time too. I have noticed that the train of thought in this debate has been the Department on one hand and military on the other.

Deputy Brendan Howlin

It is-----

Deputy Micheál Martin

I am sorry; it is there.

Deputy Brendan Howlin

Independence-----

Deputy Micheál Martin

It is there. It is there in all of this debate.

Deputy Brendan Howlin

-----and control.

Deputy Micheál Martin

That is why I believe in this. I agree with the Deputy on the need for more comprehensive legislation to demarcate properly the roles of a chief of defence forces, CHOD, in its entirety and, as Deputy Berry said, equality of status among the heads of services. I agree with all that. That has to be done. However, there is a dangerous trend emerging, even from some of the representative bodies. When representations are made to me, it is almost as if the civilian wing, if you like, cannot have one up on the other wing. There is a bit of that going on in the representations that have been made. That is what I take away from it.

This is what I am trying to do. I was presented with recommendations and I am faithfully implementing those recommendations because I believe the review body and the judge understood the relationship between the Department and the Defence Forces. We have to give confidence back to the members. A lot of reform has happened as a result of the independent review group and the Chief of Staff is leading that reform. We need to do more and we need to do it faster. All of this is related to recruitment, retention, induction and so on. We have taken a number of measures. We have an overarching strategic framework now to try to drive on the reforms. Part of it was the establishment of an external oversight body. The IRG recommended that the Secretary General be on it. As a person with experience of how Government works, I actually see the logic of it, not in terms of trying to get one over anybody but in terms of trying to implement change and make sure change happens.

(Interruptions).

Deputy Micheál Martin

That is out there. The Deputy might say it is not, but it is out there. I am sorry to say it, but-----

Deputy Brendan Howlin

Nothing in my mind would say that.

Deputy Micheál Martin

I beg your pardon?

Deputy Brendan Howlin

It is not my intention.

Deputy Micheál Martin

I am not saying it is the Deputy's intention at all. I said it is out there in terms of representations that have been made on this issue.

Deputy Réada Cronin

Well talk to them then and stop grumbling about them.

Deputy Micheál Martin

The whole train of thought has been around the idea that if the Secretary General is on it, the Chief of Staff should be on it, or the representative bodies should be on it.

Deputy Brendan Howlin

We are not suggesting that.

Deputy Micheál Martin

That is not the way I look at it. It is as if the Department is at loggerheads with the Defence Forces and it should not be. That should not be the frame around which the debate happens. There is an element of that happening in this context. This has been a relentless campaign about undermining the Secretary General's role on the oversight body. I regret that it has come to this. We have to go back to the origins of this in particular. I did not invent this or come up with this idea. The independent review body did. All the Members asked me to accept the recommendations of the independent review body. All of them went along with the resolution before the House because we were all shocked with what the independent review group said. I was determined then. I do not just take things and say things and agree it is terrible and do nothing. Some of this is not popular. I could easily say "whatever you're having yourself" or ask who else wants to go on it and say we will all go on it and it will be a nice, happy committee and everybody will be represented on it. However, would change happen? Would we really get impact? I do not think we would.

I am not going to compromise on what the independent review group put forward. It was set up before I became Minister. I agreed as Taoiseach that we should set up an independent review body 12 months in advance of a potential tribunal of inquiry, which it recommended we establish and which has been established. I accept the bona fides of what the Deputies are saying but we need to go back to the origins of this, which was the independent review group's report. Who are we trying to help here? We are trying to help the members of the Defence Forces. We are trying to change the culture within the Defence Forces. We are trying to make sure some of the practices that were covered by the independent review group do not happen again. A lot of work is under way within the Defence Forces to make sure that does not happen again. It is taking measures. To be fair, the Chief of Staff is doing that. Equally, however, I uphold the right of the Government of the day to implement recommendations from the independent review body. It is not in any way an attempt to undermine anybody or the Defence Forces itself.

An Cathaoirleach Gníomhach (Deputy Bernard J. Durkan)

I thank the Minister. In the same order, I call Deputy Cronin.

Deputy Réada Cronin

I will pass it over for the moment.

An Cathaoirleach Gníomhach (Deputy Bernard J. Durkan)

Is the Deputy deferring?

Deputy Réada Cronin

I will let the Cathaoirleach Gníomhach know in a second.

An Cathaoirleach Gníomhach (Deputy Bernard J. Durkan)

I call Deputy Howlin.

Deputy Brendan Howlin

It is unworthy of the Tánaiste to suggest that nobody from this side of the House mentioned victims. The whole focus of establishing an oversight body is to address the concerns of victims.

Deputy Micheál Martin

However, no one did mention them.

Deputy Brendan Howlin

There is no hierarchy of concern with regard to victims. That should not have been said.

The central point I want to make in the amendment is that, objectively, and I have dealt with many bodies and reviews and so on, it is not appropriate to have the Secretary General of the Department on it. That is not anti-Secretary General; that is daft. It is nothing to do with the personalities. It is a matter of what is the correct procedure. Would we put in any oversight body somebody who had an executive function in terms of the body to be overseen? The whole idea of the recommendations is to have an independent review body. Certainly, the group did include the Secretary General, but we are the legislators, and we are entitled to argue a point of view.

The Tánaiste is not hamstrung to a particular course of action if we can make a convincing argument that it is better for the independent functioning, not only the perception of an independent functioning but the reality of an independent functioning, for no civil servant to be involved in it. That is pure and simple. There is nothing Machiavellian or undermining. There is no agenda. It is simply that if you are setting up any oversight body, you do not put in as an intrinsic member of that oversight body somebody who has a vested interest in the outcomes of its deliberations on that, even in terms of perception. That is the way you would create any other oversight body relating to any other organisation of State or public body.

I know that is the way the Tánaiste would approach it so I would ask him to listen to the arguments on this side of the House and give us a coherent reason, other than that it was recommended. Other than that, is there a coherent reason? Is there a logic about including somebody? Let us hear it, because we have not heard it thus far. What is it?

Deputy Réada Cronin

If the Tánaiste is upset about what was said in the Seanad and he wants to give them a scolding-----

Deputy Micheál Martin

I do not.

Deputy Réada Cronin

-----maybe he should go into the Seanad and do that, but nobody here has been disrespectful about the external oversight board. We had a really good meeting with them at committee. It was positive. I have every faith in Professor Brian MacCraith and the other members of the-----

Deputy Micheál Martin

Sorry, I was not referring to the oversight group. It was the independent review group that was commented on negatively.

Deputy Réada Cronin

The Tánaiste was saying to accept the recommendations of the IRG. What I took from what the Tánaiste said there was that he felt that - I am talking about amendment No. 6, which I tabled - having representatives from the Defence Forces representative groups on the EOB in an ex officio capacity would be as if the external oversight group would not be able to handle that. We had a great meeting with them. If the Tánaiste wants the Secretary General on it to work in an ex officio capacity, it comes across as a bit of a slight on the representative groups of the Defence Forces for the Tánaiste to say they should not be on it in an ex officio capacity as well.

I live in Kildare. I have many friends who are members of the Defence Forces. It is a bit of a slight on them as well and their representative group what the Tánaiste is trying to imply by not taking our amendment in the spirit in which it is intended and trying to act as if we are trying to discredit the external oversight body, because we are not. I ask the Tánaiste not to pretend we are.

Deputy Cathal Berry

I will double down on a few points. First, I thank the Tánaiste for his response. I appreciate his position.

I do not even feel as though we are having a debate here. We are not even having an argument. It is really an appeal to reason. The word "victim" was used, and it was used correctly. I would say we are speaking on behalf of the victims because the Women of Honour group itself does not want the Secretary General of the day on the external oversight board. It is the victims who are requesting a review of the structure.

The second point I would like to raise - Deputy Howlin touched on it - is that the external oversight body will review the grievance procedures. I suppose the obvious question is, who drafts the grievance procedures? They are drafted by the Department, signed by the Minister and imposed on the Defence Forces. That is the other concern I have.

The Commission on the Defence Forces made many recommendations as well. Obviously, it is the prerogative of the Government of the day which recommendations it takes on board and which recommendations it does not. The Government did not take on board all the recommendations of the Commission on the Defence Forces because, as Deputy Howlin pointed out, it is the prerogative of Government, as decision-makers, based on the advice of the Joint Committee on Foreign Affairs and Defence, where appropriate, as well.

My last question is just for reflection. If the independent review group wanted a Secretary General on the oversight board to carry out a function or a particular task, can that same task be carried out if the Secretary General was not on the board using the same pathway that the Chief of Staff can use to interact? Can the same effect be achieved without the Secretary General being an ex officio member? Those are the few points I have.

Deputy Richard Boyd Barrett

I said I have not been following it closely. I am not on the defence committee-----

Deputy Micheál Martin

I did not mean that in any negative way.

Deputy Richard Boyd Barrett

-----but I spoke on Second Stage and I raised some of these concerns, and I am sure others did as well. For the record, we all spoke at length about some of the horrible stuff that went on, the impacts on the victims and the sexual, physical and other abuse. It is not fair to suggest that is not as big a concern. I do not know why this is a source of amusement. I honestly do not. It is incredible. I do not know what the smiles are about. We have all heard the testimonies and we are all keen to do something to make sure that sort of stuff does not happen again.

I do not even know who the Secretary General of the Department of Defence is so I am not casting any personal aspersions on him or her as an individual, but what I know is institutions and organisations of State and all other kinds have a tendency sometimes to defend their own territory and to be resistant to people who want to question what they have done or how they do things. That is why you have independent external oversight.

When one thinks about the church and State scandals in this country in terms of industrial schools and mother and baby homes, let us be honest, State Departments did not exactly cover themselves in glory. That does not mean everybody in them were horrible people, or individuals they were naming, but external independent oversight should mean external independent oversight so that you do not have conflicts of interest. I cited the example I did because I found it lacking, as if we will go and ask the management is there anything behind this, the management in the Defence Forces will say there is nothing behind it and that will be the end of it. That does not indicate a great willingness to get to the bottom of certain things.

Deputy Micheál Martin

That is the point of all of this. That is the point of what we are trying to do.

Deputy Richard Boyd Barrett

So let us keep it independent, not potentially - let us put it that way - compromised.

Deputy Micheál Martin

Deputy Boyd Barrett has made the argument. Maybe people can see there is an element of frustration. The bottom line is victims were not mentioned in this debate. They were not mentioned on Committee Stage either, to any great extent.

Deputy Richard Boyd Barrett

They were mentioned on Second Stage.

Deputy Micheál Martin

It is all about equivalence between the military and the Department of Defence, but the origins of this is the independent review group. It called it. It produced its report. It was terrible reading for all of us. It made recommendations of the most fundamental kind and, above all, that the external oversight body would be independent of the Defence Forces for the very reasons Deputy Boyd Barrett outlined. Whether that be fair or not, that is what the independent review body said.

I met the independent review body. I met the chair. They were very clear to me that they did not want a repeat of previous iterations of groups that would monitor this and monitor change. They said that would not cut it. They were saying, basically, if you want to effect radical change and transformation of culture within the Defence Forces, we need an external oversight body that is independent of the Defence Forces. The Department's officials were not under scrutiny by the IRG at all. That has to be said. That is the context for all of this.

Basically, there is an agenda now to try to bring about reform and change for the better. We do not want situations where people feel that they cannot bring a complaint. We want to create a grievance process that gives confidence to members. By the way, that is beginning to work. We are getting more complaints in some respects, which is a sign that people are feeling more confident to bring forward complaints.

We have made changes whereby any violation or sexual assault is now immediately referred to the Garda. A lot of change is occurring. I pay tribute to the Chief of Staff and the team on the reforms that are happening already. To Deputy Cronin's point, I mentioned the other House in the context of the debate on the independent review group there. It was nothing to do with the external oversight body.

Deputy Réada Cronin

It is nothing to do with the amendments.

Deputy Micheál Martin

Sorry, the Deputy is missing my point. I was referring to a debate in the other House, when some people questioned whether the independent review group was correct or went over the top in its conclusions. They were coming from a certain perspective. It is one I heard-----

(Interruptions).

Deputy Micheál Martin

There were attempts, after the report of the independent review group was published, to question whether it went over the top and all of that. That happened too. Where there has been resistance, there has been resistance to some of what the IRG said. There has been resistance to the idea of cultural change. It is there. Resistance to the oversight body is part of that resistance. People might not like me saying that, although not in this House. I take the bona fides of the Deputies here.

An Cathaoirleach Gníomhach (Deputy Bernard J. Durkan)

Deputy Cronin has the right to reply. She has two minutes.

Deputy Réada Cronin

I have said it already but I will say it again. I do not like the tone the Tánaiste took. He is acting as if we have not discussed the victims. We have all discussed the victims several times. Sinn Féin has had several meetings with them. This is not in any way to disrespect anybody, certainly not the external oversight group, or the Secretary General - that position is currently held by a woman - or whoever holds the position in future. It is not about that. If the Tánaiste wants the current Secretary General there as a conduit now, a little respect should be given to members of the Defence Forces by giving their representatives the right to also be there in an ex officio capacity.

Deputy Micheál Martin

The oversight body is not meant to be representative.

An Cathaoirleach Gníomhach (Deputy Bernard J. Durkan)

We have come to the end of the debate.

Deputy Micheál Martin

Sorry, I thought I had----

Deputy Réada Cronin

Why do you want the-----

Deputy Micheál Martin

We engage with the representative associations all the time on a whole lot of matters. I have no problem with that. The independent review group said it wants an independent body that is independent of the Defence Forces. If you have two bodies, you would have to have four or five-----

Deputy Réada Cronin

You are arguing against-----

Deputy Micheál Martin

You would have to have four or five bodies on it then-----

Deputy Réada Cronin

You are arguing against having the Secretary General there on it at all.

An Cathaoirleach Gníomhach (Deputy Bernard J. Durkan)

We cannot continue a cross-chat in the House. We now have to put the question.

Amendment put:

The Dáil divided: Tá, 49; Níl, 70; Staon, 0.

Tá

• Andrews, Chris.
• Bacik, Ivana.
• Barry, Mick.
• Berry, Cathal.
• Boyd Barrett, Richard.
• Brady, John.
• Browne, Martin.
• Buckley, Pat.
• Canney, Seán.
• Clarke, Sorca.
• Collins, Michael.
• Conway-Walsh, Rose.
• Cronin, Réada.
• Daly, Pa.
• Donnelly, Paul.
• Ellis, Dessie.
• Farrell, Mairéad.
• Fitzmaurice, Michael.
• Gannon, Gary.
• Gould, Thomas.
• Guirke, Johnny.
• Healy-Rae, Danny.
• Healy-Rae, Michael.
• Howlin, Brendan.
• Kelly, Alan.
• Kenny, Gino.
• Kerrane, Claire.
• Mac Lochlainn, Pádraig.
• McGrath, Mattie.
• Mitchell, Denise.
• Munster, Imelda.
• Murphy, Catherine.
• Murphy, Verona.
• Mythen, Johnny.
• Nash, Ged.
• Nolan, Carol.
• O'Callaghan, Cian.
• O'Donoghue, Richard.
• O'Reilly, Louise.
• O'Rourke, Darren.
• Ó Broin, Eoin.
• Ó Murchú, Ruairí.
• Ryan, Patricia.
• Sherlock, Sean.
• Shortall, Róisín.
• Smith, Duncan.
• Stanley, Brian.
• Ward, Mark.
• Wynne, Violet-Anne.

Níl

• Brophy, Colm.
• Browne, James.
• Bruton, Richard.
• Burke, Colm.
• Burke, Peter.
• Butler, Mary.
• Byrne, Thomas.
• Cahill, Jackie.
• Calleary, Dara.
• Carroll MacNeill, Jennifer.
• Chambers, Jack.
• Collins, Niall.
• Costello, Patrick.
• Coveney, Simon.
• Creed, Michael.
• Crowe, Cathal.
• Devlin, Cormac.
• Dillon, Alan.
• Donnelly, Stephen.
• Donohoe, Paschal.
• Duffy, Francis Noel.
• Durkan, Bernard J.
• English, Damien.
• Feighan, Frankie.
• Flaherty, Joe.
• Fleming, Sean.
• Foley, Norma.
• Griffin, Brendan.
• Haughey, Seán.
• Heydon, Martin.
• Higgins, Emer.
• Humphreys, Heather.
• Kehoe, Paul.
• Lahart, John.
• Lawless, James.
• Leddin, Brian.
• Madigan, Josepha.
• Martin, Catherine.
• Martin, Micheál.
• Matthews, Steven.
• McConalogue, Charlie.
• McHugh, Joe.
• Moynihan, Aindrias.
• Moynihan, Michael.
• Murnane O'Connor, Jennifer.
• Naughton, Hildegarde.
• Noonan, Malcolm.
• O'Brien, Darragh.
• O'Brien, Joe.
• O'Callaghan, Jim.
• O'Connor, James.
• O'Dea, Willie.
• O'Donnell, Kieran.
• O'Donovan, Patrick.
• O'Dowd, Fergus.
• O'Gorman, Roderic.
• O'Sullivan, Christopher.
• O'Sullivan, Pádraig.
• Ó Cathasaigh, Marc.
• Ó Cuív, Éamon.
• Phelan, John Paul.
• Rabbitte, Anne.
• Richmond, Neale.
• Ring, Michael.
• Ryan, Eamon.
• Smith, Brendan.
• Smyth, Niamh.
• Smyth, Ossian.
• Stanton, David.
• Varadkar, Leo.

Staon

Tellers: Tá, Deputies Pádraig Mac Lochlainn and Denise Mitchell; Níl, Deputies Hildegarde Naughton and Cormac Devlin.

Amendment declared lost.

Deputy Brendan Howlin

I move amendment No. 7:

In page 14, to delete lines 34 and 35.

Amendment put:

The Dáil divided: Tá, 47; Níl, 70; Staon, 0.

Tá

• Andrews, Chris.
• Bacik, Ivana.
• Barry, Mick.
• Berry, Cathal.
• Boyd Barrett, Richard.
• Brady, John.
• Browne, Martin.
• Buckley, Pat.
• Canney, Seán.
• Clarke, Sorca.
• Collins, Michael.
• Conway-Walsh, Rose.
• Cronin, Réada.
• Daly, Pa.
• Donnelly, Paul.
• Ellis, Dessie.
• Farrell, Mairéad.
• Fitzmaurice, Michael.
• Gannon, Gary.
• Gould, Thomas.
• Guirke, Johnny.
• Healy-Rae, Danny.
• Howlin, Brendan.
• Kelly, Alan.
• Kerrane, Claire.
• Mac Lochlainn, Pádraig.
• McGrath, Mattie.
• Mitchell, Denise.
• Munster, Imelda.
• Murphy, Catherine.
• Murphy, Verona.
• Mythen, Johnny.
• Nash, Ged.
• Nolan, Carol.
• O'Callaghan, Cian.
• O'Donoghue, Richard.
• O'Reilly, Louise.
• O'Rourke, Darren.
• Ó Broin, Eoin.
• Ó Murchú, Ruairí.
• Ryan, Patricia.
• Sherlock, Sean.
• Shortall, Róisín.
• Smith, Duncan.
• Stanley, Brian.
• Ward, Mark.
• Wynne, Violet-Anne.

Níl

• Brophy, Colm.
• Browne, James.
• Bruton, Richard.
• Burke, Colm.
• Burke, Peter.
• Butler, Mary.
• Byrne, Thomas.
• Cahill, Jackie.
• Calleary, Dara.
• Carroll MacNeill, Jennifer.
• Chambers, Jack.
• Collins, Niall.
• Costello, Patrick.
• Coveney, Simon.
• Creed, Michael.
• Crowe, Cathal.
• Devlin, Cormac.
• Dillon, Alan.
• Donnelly, Stephen.
• Donohoe, Paschal.
• Duffy, Francis Noel.
• Durkan, Bernard J.
• English, Damien.
• Feighan, Frankie.
• Flaherty, Joe.
• Fleming, Sean.
• Foley, Norma.
• Griffin, Brendan.
• Haughey, Seán.
• Heydon, Martin.
• Higgins, Emer.
• Humphreys, Heather.
• Kehoe, Paul.
• Lahart, John.
• Lawless, James.
• Leddin, Brian.
• Madigan, Josepha.
• Martin, Catherine.
• Martin, Micheál.
• Matthews, Steven.
• McConalogue, Charlie.
• McHugh, Joe.
• Moynihan, Aindrias.
• Moynihan, Michael.
• Murnane O'Connor, Jennifer.
• Naughton, Hildegarde.
• Noonan, Malcolm.
• O'Brien, Darragh.
• O'Brien, Joe.
• O'Callaghan, Jim.
• O'Connor, James.
• O'Dea, Willie.
• O'Donnell, Kieran.
• O'Donovan, Patrick.
• O'Dowd, Fergus.
• O'Gorman, Roderic.
• O'Sullivan, Christopher.
• O'Sullivan, Pádraig.
• Ó Cathasaigh, Marc.
• Ó Cuív, Éamon.
• Phelan, John Paul.
• Rabbitte, Anne.
• Richmond, Neale.
• Ring, Michael.
• Ryan, Eamon.
• Smith, Brendan.
• Smyth, Niamh.
• Smyth, Ossian.
• Stanton, David.
• Varadkar, Leo.

Staon

Tellers: Tá, Deputies Brendan Howlin and Duncan Smith; Níl, Deputies Hildegarde Naughton and Cormac Devlin.

Amendment declared lost.

Deputy Cathal Berry

I move amendment No. 8:

In page 15, to delete lines 23 to 26.

Amendment put and declared lost.

Deputy Brendan Howlin

I move amendment No. 9:

In page 25, line 27, to delete “other than the Secretary General,”.

Amendment put and declared lost.

An Leas-Cheann Comhairle

Amendments Nos. 10 to 12, inclusive, are related and may be discussed together. Amendments Nos. 11 and 12 are physical alternatives to amendment No. 10.

Deputy Brendan Howlin

I move amendment No. 10:

In page 27, to delete lines 10 to 38, and in page 28, to delete lines 1 and 2 and substitute the following:

“(ii) by the deletion of subsection (3).”.

These amendments deal with the prohibition by the Minister of certain actions by the recognised associations. Prima facie, they appear very draconian in the context of the restrictions that are there. Section 24(a)(iii)(3A) states:

The Minister may, notwithstanding subsection (3), authorise in writing an association to be associated with a trade union or any other body outside of the Defence Forces.

That is wonderful, but subsection (3B) states, "The Minister may, subject to subsection (3C), by notice in writing vary or withdraw an authorisation under subsection (3A)." Subsection (3C) states:

Where the Minister intends under subsection (3B) to vary or withdraw an authorisation, he or she shall give the association notice in writing of the proposed decision, stating the reasons.

It should not be the case, if the association has the right to associate itself with external bodies, including trade unions, that the employer, who is the Minister, has the right simply to vary the right of association with an external body and that this can come to pass simply by decree.

I ask the Tánaiste to reflect again on that. We discussed this on Committee Stage and his view then was that this is a huge step forward anyway and that we should be happy with incremental progress in all of these things. I would hope that in light of this level of authority remaining with the employer, the Tánaiste will consider the amendment. Can people imagine any other sphere of activity or any other workplace where the employer can determine the degree of contact or association the representative body of his or her employees can have with, for example, ICTU or any other entity? In that context, I hope the Tánaiste will accept the amendment in my name.

Deputy Réada Cronin

In the initial draft of the Bill, the Tánaiste sought to place a prohibition on certain members of the Defence Forces being members of representative associations. We have talked about this. It was as if the Tánaiste was looking to expand the list. His argument for this was that those involved in the disciplinary process within the military need to be able to be impartial. There are people all across the Civil Service and the public service, such as equality officers, who are not excluded from representation despite adjudicating on matters appropriately when that arises. This is even more so the case in the Defence Forces, particularly in circumstances where officers preside over disciplinary matters on a day-to-day basis as part of the job.

I read the report and the independent adjudication in the case between a representative association and the Department at the conciliation and arbitration branch in relation to this matter. It makes for stark reading. On many occasions, the Department was simply unable to defend or explain its position. There was silence. Those involved were just mute, and nothing was minuted. It is unsurprising, therefore, that the representative association won that case. It is also unsurprising that the Tánaiste backed down and removed that provision from the Bill. As I understand it, the Tánaiste is appealing the judgment in that case. The purpose of amendment No. 11 is to prevent him from implementing policy - he has already been forced to accept this - through legislation. I invite the Tánaiste to accept the amendment.

The Commission on the Defence Forces produced a significant volume of detailed work in respect of what needs to be done, the reforms that need to introduced and the investment that must be made in order to rebuild our Defence Forces and place them on solid ground to meet the needs we have. It was a collaborative process and submissions were received from all stakeholders, political parties and the representative associations. Following the report of the commission, there was a broad sense of an immediate move to press towards level of ambition 2, as outlined in the report. There was that sense of collaboration and co-operation. The stakeholders were willing to play their part to readily and rapidly do this and to work and deliver upon those reforms and the investment needed. I do not believe, however, that the Tánaiste or the Department have lived up to their side of the bargain. Pay and conditions obviously have not been addressed, particularly when more and more people are leaving the Defence Forces. We are at crisis point. Ireland is able to put only one ship to sea at the moment. Our Defence Forces peacekeeping unit has withdrawn from the Golan Heights. We are at a crisis point, and the Defence Forces do not have the capacity to perform their duties. The Government has again failed to deliver the capital investment required.

We tabled amendment No. 12 because the section to which it relates would undermine the spirit of co-operation and collaboration that was fostered by the commission. It is just not tenable to embark upon a new relationship with the sector when within the framework of that relationship it is stated that the current Minister for Defence or those who succeed him may at any point in the future tear it apart on a whim. I do not believe this has been sorted yet. We discussed it on Committee Stage. I feel it is almost akin to engaging with the representative associations in bad faith. That it could even be potentially perceived in that manner should concern the Tánaiste in his approach. If there is a desire to remove a person from the external oversight body, the Bill requires that the individual in question given 30 days' notice. However, it also allows the Minister for Defence to withdraw from representative associations the right to affiliate with ICTU on only seven days' notice. It is right that a person who may be removed from their post for any reason has his or her rights respected.

I appeal to the Tánaiste to reflect and to recognise that the status of organisations representing thousands of our Defence Forces personnel are perhaps entitled to a greater degree of respect in terms of the Department's relationship with them. We have talked about the relationship between the Department of Defence and the members of the Defence Forces. I ask the Tánaiste to accept our amendment.

Deputy Cathal Berry

I speak in support of amendment No. 10 , which was tabled by the Member on my left, and amendment No. 11, tabled by the Member on my right. I agree with Deputy Howlin that the provisions in the Bill are overly proscriptive, are probably unnecessary and are draconian. It is already implied that these things actually exist, and I do not see why it has to be explicitly stated in primary legislation. It is completely unnecessary.

On Deputy Cronin's point, this came up at the Joint Committee on Foreign Affairs and Defence hearings in the context of the Director of Military Prosecutions and military judge. I welcome that this clause has been withdrawn, but an appeal is ongoing. Deputy Cronin's suggestion of stating it explicitly in primary legislation would mean that we can get ahead of those types of appeals and provide clarity to prevent any kind of misunderstanding in the future. I will be supporting both amendments.

Deputy Micheál Martin

As it stands, section 24 provides the statutory basis for the Minister for Defence to authorise the Permanent Defence Force representative associations to associate with ICTU. This is very positive and represents a significant step forward. I am already on record as clarifying that the amendments proposed by the Deputies would remove the mechanism by which associate membership of ICTU would be approved and so would undermine a core policy intention of this section of the Bill. I have already spoken about the importance of reinforcing the apolitical nature of our Defence Forces. Seen through this lens, the need for clear statutory provisions to govern any connection between representative associations and external bodies is clear.

It important also to recall the key role the Defence Forces play in providing front-line services, such as, for example, in the event of industrial action in another part of the public service in certain circumstances. There has been some commentary that the provisions authorising the Minister to withdraw or vary consent in respect of associate membership as set out in the Bill are overly detailed. Deputy Howlin made that point. However, any decision to withdraw or vary consent would be a significant matter and would not be taken lightly. It is appropriate, therefore, that the process would be clearly set out in primary legislation, in the event of anything happening. One does not envisage this happening at all but clearly there is merit in setting out the process in primary legislation and that express provision would be made to protect the rights of a military representative association to make representations in relation to any such variation or withdrawal of consent.

I am satisfied that the provisions relating to associate ICTU membership, as facilitated by the wording in section 24, are appropriate and necessary. These amendments would support representative associations in fully representing their members in the context of national pay talks into the future. That is a very positive development.

I must make the point that much of this arose out of High Court settlements originally in the context of temporary association membership of ICTU. Much of what is in that section was agreed between the parties when PDFORRA had taken the case. That was an agreed outcome so this is not a surprise to anybody in respect of these provisions. They reflect what was agreed at that time.

On amendment No. 11, which is in the names of Deputy Cronin and Carthy and which requires that "The Minister shall not seek to prohibit any person from being a member of a representative association on the basis of the post they hold", the Deputies are already aware that the provisions relating to the Director of Military Prosecutions and military judge contained in the general scheme were removed prior to publication. I had signalled that to the committee in the letter of 2 April and I wrote to the committee. The committee had written to me and others had made representations. I spoke to representatives of RACO and PDFORRA about the issue and we had a meeting on it. It is not unreasonable to say that there should be a debate about whether a judge can be a member of an association. It is a reasonable point. On the other hand, there are merits to both sides of the argument. The same applies to a prosecutor. I am satisfied that because a person happens to be a member of an association, it does not necessarily undermine his or her impartiality or capacity in dealing with a case. That is the ultimate call.

The amendment the Deputy has tabled would statutorily bar the Minister for Defence from ever imposing a prohibition on any post within the Defence Forces. That is inappropriately broad in a legislative context. The amendment means the Chief of Staff could be a member. By regulation, the Chief of Staff is not allowed to be a member. It makes sense that the Chief of Staff would not be a member because there has to be management at some level. These matters are best dealt with on a case-by-case basis as the need arises. The amendment is far too broad to be permanently embedded in primary legislation.

Deputy Brendan Howlin

The Tánaiste is not correct in saying that if my amendment were accepted, it would debar the association of the representative bodies with ICTU. What I am proposing is the deletion of a swath of the restrictions he has included and the substitution of "by the deletion of subsection (3) [of the principal Act]". My concern is only that it is overly prescriptive if management, that is, the Minister for Defence, can terminate the right to association simply by writing a letter. Again, as in all legislation, we are not just talking about the current Minister but about whomever might follow. The latter would have the right to terminate an agreement simply by writing a letter. I do not believe that is appropriate.

In essence, while I am in favour of deleting any provision prohibiting bodies from affiliating with ICTU, I propose to delete the restrictions that are being attached in this regard. The Tánaiste's argument is that there have been negotiations on foot of litigation and that we are great for having come so far, but there are now rights accruing to every worker, including military workers, under the European Court of Human Rights and EU law. We need to be as progressive as we can be in legislation and not pat ourselves on the back and say it is great that we allow association with ICTU. I have been involved in pay negotiations and believe this is important. It is not acceptable that a right we now all accept is important and should be enshrined in law can be terminated by the stroke of the pen of the Minister or any of his successors.

Deputy Réada Cronin

I am listening to the Tánaiste but believe it is important, for the sake of the dignity and respect we can show to members of the Defence Forces, that those members be entitled to representation regardless of the posts they hold. The Tánaiste mentioned the Chief of Staff. I am sure this could be dealt with in the terms and conditions. Does the Tánaiste accept that, in a modern, functioning republic, a Minister should not be able to take away the right of members of defence forces to representation?

Deputy Micheál Martin

We are affirming the right to representation; there is no going back on that. What we are talking about is an advance on the position that obtained prior to the introduction of this legislation. The purpose of this legislation is to put on a statutory basis defence representative associations’ right of association with ICTU. I anticipate that will advance even further in years to come. There is now a fairly elaborate framework for engagement between the Minister, the Department and the defence representative bodies, PDFORRA and RACO, in the context of conciliation, arbitration, direct discussions and meetings. We attend their conferences. There is no agenda to reduce or undermine this arrangement in any shape or form. There was a debate and discussion regarding certain positions concerning the military judge and prosecutor. We have resolved the issue. We removed the relevant measures or did not proceed with them. We did so even before the Bill was introduced because there was a lot of discussion on the matter during pre-legislative scrutiny and so on. I am not sure the Deputy’s amendment is required. We have received no further representation with respect to any other posts, so the proposal is superfluous.

On Deputy Howlin’s argument, my view is that legislation has to be complete in terms of clarity. It is arguable that the provision allows for a process that I do not envisage Ministers engaging in, except for some exceptional reason. If they did engage in it, there would have to be rights for the organisations and representative bodies to counteract it or to make representations as to why it should not happen. That is all the section does.

Deputy Brendan Howlin

It is quite clear. The great advance the Tánaiste has included in the Bill is as follows:

(3A) The Minister may, notwithstanding subsection (3), authorise in writing an association to be associated with a trade union or any other body outside of the Defence Forces [this is the catch.] in such cases and in such manner and subject to such conditions or restrictions as he or she may specify.

I do not know of any arrangement that allows one to be involved in a trade union in such conditions and in such manner as the employer may specify. That is well and good but the next subsection is even worse: "The Minister may, subject to subsection (3C), by notice in writing vary or withdraw an authorisation under subsection (3A)." It is a very limited give, and it is under the pressure of litigation and what might come from European action. I am asking not simply that the prohibition on association be removed; I am also asking that the really prohibitive restrictions and the capacity of the Minister to withdraw the right be taken out as well. A different Minister sitting in the current Minister’s seat could, for any reason that he or she may determine, withdraw the right we are now talking about. We are talking about future Ministers, not the current one. Such a Minister could be capricious and would have the power to withdraw the right. The Tánaiste stated that there will be rights of representation. Where? What appeal mechanism does an association have if a Minister says he is invoking the section of the legislation in question and withdrawing its right, giving notice in writing and seven days for implementation?

An Leas-Cheann Comhairle

That completes the debate on this amendment. Deputy Howlin got in because he was the proposer.

Deputy Brendan Howlin

Could the Tánaiste just respond to that?

An Leas-Cheann Comhairle

I am in a little difficulty because Deputy Berry wanted to contribute also. By agreement-----

Deputy Brendan Howlin

I would just like to hear the answer.

An Leas-Cheann Comhairle

If we are in agreement, I will allow a quick comment from Deputy Berry. I should really finish with Deputy Howlin but, by way of exception, the Tánaiste will get the last word.

Deputy Cathal Berry

The Tánaiste may or may not be aware that an appeal relating to the Director of Military Prosecutions and the military judge has been submitted to the arbitration board. Even though the clause stipulating that they cannot join a representative association has been withdrawn from primary legislation, an appeal has been submitted. Will the Tánaiste consider withdrawing that appeal in light of what has been discussed this afternoon?

Deputy Micheál Martin

I will respond to Deputy Howlin's point first. He knows that when we frame legislation, we have to create a framework for eventualities in the future when certain things may happen that we cannot yet comprehend. There must be some framework over the process of association to cover potential future eventualities. Suffice to say that the direction of travel is clearly one of representation and giving statutory underpinning to an association with the Irish Congress of Trade Unions, ICTU, which is what we are doing. The idea of putting a framework around that is not unreasonable.

Deputy Brendan Howlin

It is a very draconian framework.

Deputy Micheál Martin

On Deputy Berry's point, there may be merit in allowing the appeal to go through to get ultimate clarity. I have no intention of bringing forward amendments to any further legislation. It might be useful all around if clarity was brought to the question through the appeal. There is merit in going ahead. I would like to get finality for everybody's benefit, including that of the Department.

Amendment put:

The Dáil divided: Tá, 43; Níl, 72; Staon, 0.

Tá

• Andrews, Chris.
• Bacik, Ivana.
• Berry, Cathal.
• Brady, John.
• Browne, Martin.
• Buckley, Pat.
• Canney, Seán.
• Clarke, Sorca.
• Collins, Michael.
• Conway-Walsh, Rose.
• Cronin, Réada.
• Daly, Pa.
• Donnelly, Paul.
• Ellis, Dessie.
• Farrell, Mairéad.
• Fitzmaurice, Michael.
• Gannon, Gary.
• Gould, Thomas.
• Guirke, Johnny.
• Healy-Rae, Michael.
• Howlin, Brendan.
• Kelly, Alan.
• Kerrane, Claire.
• Mac Lochlainn, Pádraig.
• Mitchell, Denise.
• Munster, Imelda.
• Murphy, Catherine.
• Murphy, Verona.
• Mythen, Johnny.
• Nash, Ged.
• O'Callaghan, Cian.
• O'Donoghue, Richard.
• O'Reilly, Louise.
• O'Rourke, Darren.
• Ó Broin, Eoin.
• Ó Murchú, Ruairí.
• Ó Snodaigh, Aengus.
• Ryan, Patricia.
• Sherlock, Sean.
• Shortall, Róisín.
• Stanley, Brian.
• Ward, Mark.
• Wynne, Violet-Anne.

Níl

• Brophy, Colm.
• Browne, James.
• Bruton, Richard.
• Burke, Colm.
• Burke, Peter.
• Butler, Mary.
• Byrne, Thomas.
• Cahill, Jackie.
• Calleary, Dara.
• Carroll MacNeill, Jennifer.
• Chambers, Jack.
• Collins, Niall.
• Costello, Patrick.
• Coveney, Simon.
• Creed, Michael.
• Crowe, Cathal.
• Devlin, Cormac.
• Dillon, Alan.
• Donnelly, Stephen.
• Donohoe, Paschal.
• Duffy, Francis Noel.
• Durkan, Bernard J.
• English, Damien.
• Farrell, Alan.
• Feighan, Frankie.
• Flaherty, Joe.
• Fleming, Sean.
• Foley, Norma.
• Griffin, Brendan.
• Haughey, Seán.
• Heydon, Martin.
• Higgins, Emer.
• Humphreys, Heather.
• Kehoe, Paul.
• Lahart, John.
• Lawless, James.
• Leddin, Brian.
• Madigan, Josepha.
• Martin, Catherine.
• Martin, Micheál.
• Matthews, Steven.
• McGrath, Michael.
• McGuinness, John.
• McHugh, Joe.
• Moynihan, Aindrias.
• Moynihan, Michael.
• Murnane O'Connor, Jennifer.
• Naughton, Hildegarde.
• Noonan, Malcolm.
• O'Brien, Darragh.
• O'Brien, Joe.
• O'Callaghan, Jim.
• O'Connor, James.
• O'Dea, Willie.
• O'Donnell, Kieran.
• O'Donovan, Patrick.
• O'Dowd, Fergus.
• O'Gorman, Roderic.
• O'Sullivan, Christopher.
• O'Sullivan, Pádraig.
• Ó Cathasaigh, Marc.
• Ó Cuív, Éamon.
• Phelan, John Paul.
• Rabbitte, Anne.
• Richmond, Neale.
• Ring, Michael.
• Ryan, Eamon.
• Smith, Brendan.
• Smyth, Niamh.
• Smyth, Ossian.
• Stanton, David.
• Varadkar, Leo.

Staon

Tellers: Tá, Deputies Brendan Howlin and Sean Sherlock; Níl, Deputies Hildegarde Naughton and Cormac Devlin.

Amendment declared lost.

Deputy Réada Cronin

I move amendment No. 11:

In page 27, between lines 12 and 13, to insert the following:

"(iii) by the insertion of the following subsection after subsection (7):

"(8) The Minister shall not seek to prohibit any person from being a member of a representative association on the basis of the post they hold.",".

Amendment put and declared lost.

Deputy Réada Cronin

I move amendment No. 12:

In page 27, to delete lines 19 to 38, and in page 28, to delete lines 1 and 2.

Amendment put and declared lost.

Amendment No. 13 not moved.

Deputy Brendan Howlin

I move amendment No. 14:

In page 28, line 22, after "members" to insert "as provided for by subsection (1)".

Amendment put and declared lost.

Deputy Brendan Howlin

I move amendment No. 15:

In page 28, lines 23 and 24, to delete "concerning a political matter or matter of Government policy" and substitute "concerning a matter of political controversy".

Amendment put and declared lost.

Deputy Aengus Ó Snodaigh

I move amendment No. 16:

In page 28, line 24, to delete "or matter of Government policy".

Amendment put and declared lost.

Deputy Brendan Howlin

I move amendment No. 17:

In page 28, lines 27 and 28, to delete "concerning a political matter or matter of Government policy" and substitute "concerning a matter of political controversy".

Amendment put and declared lost.

Deputy Aengus Ó Snodaigh

I move amendment No. 18:

In page 28, lines 27 and 28, to delete "or matter of Government policy".

Amendment put and declared lost.

Bill received for final consideration and passed.

An Leas-Cheann Comhairle

Cuirfear an Bille chuig an Seanad anois. The Bill will now be sent to the Seanad.