I thank the Chairman and congratulate him and this new committee because it is early days for it and it is embarking on new territory. Having been in that position in my professional life when I was given the job of setting up this office in 2005, I am aware the road ahead will be quite challenging for members. I have forwarded three items of information to the joint committee. The first is a short PowerPoint presentation that sets out the main powers and functions of the Ombudsman for the Defence Forces. The second document is entitled, A View Through the Lens of the Founding Years of Change in the Irish Defence Forces. It pertains to the foundation of the Ombudsman for the Defence Forces and the impact it had on the Defence Forces.
Finally, to demonstrate to members the international and human rights dimension of the office over the last six years, I have included an extract from a book on intergovernmental and military relationships and democracy in Argentina. The then Minister of Defence in Argentina, Dr. Nilda Garré, was trying to push through this monumental piece of work. Dr. Garré who is no longer a Minister there, invited me to write a chapter of the book. I have included it to demonstrate how the military ombudsman institution can provide two significant things, namely, democratic oversight and the protection of human rights and fundamental freedoms of armed forces personnel, which clearly is highly significant in the development of the relationship between the Government and the military in the aforementioned state.
I have been told to speak for about 15 minutes. I hope a big bell will go off because this is a subject that is dear to my heart. I have worked on it for many years and could rattle on at length.
The Office of the Ombudsman for the Defence Forces was established in 2005 in response to an identified need for a military ombudsman. PDFORRA, the representative association for other ranks, had been campaigning for a military ombudsman's office. This was mainly from the perspective of ensuring that it had access to an independent appeal in redresses it brought through its own internal grievance procedure.
The Ombudsman (Defence Forces) Act 2004 had all-party support. I was appointed at the end of 2005 and the office became legally operational from 1 December 2005. My first member of staff was not sent to me until June 2006, so it was really a solo run for the first few months. However, a substantial amount was achieved during that period.
In essence, this office provides a neutral third party to investigate complaints by members and former members of the Defence Forces. It is entirely independent of the Minister for Defence, the secretariat and the military authorities. Serving members can make a complaint, as can former members, members of the Permanent Defence Force and the Reserve Defence Force, and all the services therein.
The ombudsman is empowered to investigate a complaint about actions allegedly taken by another serving member of the Defence Forces or a former member, or civil servant. That is another reason the office has to ensure that its independence is copperfastened because there is legal and legislative jurisdiction over the Department of Defence. That is why it has to sit alone, be entirely independent and be perceived as such.
Actions include any action that might have been taken without proper authority, taken on irrelevant grounds, as the result of negligence or carelessness, based on wrong or incomplete information and was improperly discriminatory or contrary to fair and sound administration. We found that is a satisfactorily comprehensive list. There is nothing missing from it that ought to be there.
From the beginning, I have been on record as saying that this is a strong piece of legislation which is impressive and powerful. I have had the pleasure and honour of being in this job for six years. I have had two three-year terms from 2005 to 2008 and from 2008 to 2011. The current Minister renewed my term for one further year, but I do not know if he is disposed to continuing it.
In that six-year period, I have been able to witness that for once Ireland has done something at the forefront of innovation and creativity. In establishing an office of such power it has attracted much international attention. In 2011, our website was visited by inquirers from up to 80 countries. Over the years, we have received requests for information, guidance and briefings from places as far apart as South Korea, India and the United Kingdom. The UK was grappling with this idea for a number of years but did not put in place a fully fledged ombudsman.
Most recently, we have had requests to go to Azerbaijan and Armenia. Last year, we were also asked to help Serbia in the development of a major conference on human rights protection. In the last year, we had a delegation from the South African department of defence which sent over one of its generals, Lieutenant General Matanzima, who wanted to consult with us. He wanted to see how the office would be constructed and operate because the department was under substantial pressure to establish an office of military oversight. The interesting thing is that the South African Minister for defence sent representatives to Ireland first. Following that visit, they went to Canada to study that system. I had studied the Canadian system in the early days. In 2008, I was blessed to be welcomed profusely by the founding military ombudsman in Canada. I went for a working trip to that office to study those systems. They would envy us in many ways because that office, although seen internationally as one of the best and most powerful, operates under a series of mandates. Therefore, they would envy our legislation.
At this time in my career, having done the job for six years, I have identified a number of areas where the legislation could be improved and expanded. That is not to say in any way that I am registering a complaint about it. However, simply because we are seen to be at the forefront of developing this kind of office, I see great potential for improving it slightly. The Minister has acceded to my request to meet with his officials to put forward some ideas. I was pleased and told my small staff this week that this was the best news we had for a long time. I have already done that work to propose certain amendments to the legislation.
By engaging with people from other states who have shown an interest in the way this office was established in Ireland, I have identified another reason for such international interest. It was something I had not realised myself until having spent about one year in the job. That was that many states and jurisdictions do not allow their soldiers to have a legal right to a complaint. In that respect, Ireland was ahead of the posse because by virtue of the 1954 Act, every member of the Irish Defence Forces has a legal right to make a complaint. Therefore, we were starting ahead and while that might seem like the most basic right to us here, it has been quite noteworthy that other jurisdictions did not provide it.
In enacting this legislation, legislators here did some innovative and clever things, which have been the subject of comment by a number of countries. In their wisdom, legislators in this jurisdiction linked the existing redress of wrongs system within the military to the ombudsman, so that the establishment of the new Ombudsman for the Defence Forces was linked in. The graph on page 4 shows the route through which complaints can be made. Complainants go first to their company commander and then to the commanding officer if it is not resolved at a lower level. They then go to the brigade commander, and once they go to the GOC, who makes a considered ruling, if they are not happy with the outcome, they have a right to refer the matter to the Chief of Staff. The Chief of Staff issues a considered ruling, which is a formal written document. Members of the joint committee can see that in their wisdom, legislators inserted tight timeframes in that it must be done within 28 days.
On St. Patrick's Day 2010, I spoke at a London conference at ACAS, the UK's equivalent of the Labour Relations Commission. At the end, various people at the forefront of dispute resolution, mediation and ombudsman-type setups, said they were extremely impressed by this 28-day timeframe. That provides an emergency button for complainants. It augments their rights in that if within 28 days, the Defence Forces have failed to review the complaint, a member can refer the matter directly to the ombudsman.
When I was first appointed, I went out to the brigades to meet all the members. I told them not to push that button too quickly because I thought then that it was remarkably short. The then Chief of Staff and the subsequent Chief of Staff, the late Lieutenant General Earley, were pleased about that. They said they would endeavour to keep within the 28 days but, clearly, there were occasions when more time might be needed.
It is tightly timeframed. The complainant has a safety net of coming directly to the ombudsman if the Defence Forces do not deal with the matter within 28 days, or do not look as if they are about to do anything meaningful. The complainant then has a right to refer the matter to the ombudsman.
Prior to the establishment of this office, the complainant would be able to refer the matter to the Minister for Defence who appointed a complaints inquiry officer. It would have been dealt with in that way.
The system is well constructed now. The Act provides that the ombudsman will be independent in the performance of his or her functions. Serving members can take a complaints directly to the ombudsman if the 28-day limit has been overrun. Former members of the Defence Forces may refer their complaint directly to the ombudsman. Clearly, they have left the Defence Forces and so do not have to go through the military chain of command or the redress of wrongs procedures.
Do they have to make a complaint within a particular timeframe? Yes, within 12 months of the alleged action arising, or within 12 months of their becoming aware of the alleged action. However, I cannot investigate matters that arose prior to the establishment of the office. There were people who sought to have me investigate pre-existing complaints. In the three months between September 2005 when I was appointed and before the operative date of 1 December 2005, I received a substantial case load of people who had long-standing grievances that they would have liked to have opened. I was not in a position to do that, however.
As to the exclusions of the jurisdication of my office, I have already said the ombudsman's jurisdiction is powerful, sensible and well-guided by those who wrote it up. The exclusions are that the ombudsman cannot become involved in examining security or military operations or investigating complaints about matters relating to the organisation, structure and deployment of the Defence Forces. That is an area that sometimes involves a discussion or a debate. For example, if someone complains about not getting an inter-unit transfer, it might tinge on organisational and structural matters. Questions of jurisdiction have to be teased out carefully. Terms and conditions of employment are excluded explicitly. These are complaints that would come within the ambit of the conciliation and arbitration scheme that is there to deal with terms and conditions of employment. Another matter excluded is the administration of military prisons.
Apart from these exclusions, the ombudsman is empowered to request any documentation. For an office of oversight to be worth its salt, it must have unfettered access to documentation and strength in its mandate to examine installations or procure or request any documentation relevant to an investigation. The legislation is good in that respect. If, for example, the Minister for Defence or the chief of staff were to say some information should not be examined, there is an opportunity for the matter to be remitted for a decision by the High Court.
What became abundantly clear within months of my appointment and the establishment of this office was that there was a huge movement abroad examining the concept that is known as citizens in uniform. Various agencies, particularly under the aegis of the Geneva-based Centre for the Democratic Control of Armed Forces, were examining how members of defence forces, their human rights and fundamental freedoms could be protected. In September 2006 I was invited by the Office for Democratic Institutions and Human Rights of the OSCE to join an expert group to develop a handbook, which was later published, on human rights and fundamental freedoms for members of armed forces personnel. The production of this handbook examines all aspects of human rights in defence forces across a wide range of issues and how these are treated in other jurisdictions.
Sitting in on this, I became aware Ireland was very advanced in this area of work. I was given three chapters to review in the handbook - access to an independent appeals system, complaints handling processes and freedom of religious beliefs. That led to the publication of this book in Vienna at which I was invited to make the keynote address. Since then, there have been meetings in Armenia, Budva, Montenegro and Azerbaijan. This book has been translated into Russian and all other languages of the Caucasus where such rights would be pivotal and centre stage.
From a democratic perspective, in 2005 the newly emerging jurisdictions and EU accession countries were beginning to study their human rights records and protections. I would be the first to argue such study should start with how one treats one's army members. These countries were also examining the concept of a military providing military oversight of administrative matters and a democratic corrective as well as a protection for democracies.
Last year, Ireland was the chair of the Mediterranean partners group in the OSCE and the group's conference was held in Budva, Montenegro, which included all the Mediterranean countries including the Arab Spring countries. Our ambassador, the OSCE and the Department of Foreign Affairs and Trade asked me to speak on the issue of the role of the police and the military in the transition to democracy which I was very pleased to do. Several ambassadors asked if what they were told at the address represented best practice to which I replied it was. We are in a position to say that the operation of the Ombudsman for the Defence Forces office and its powers are best practice, a cause of huge pride for which we do not often get an opportunity. Members, as legislators, have every reason to be proud of establishing legislation that is seen to be a working model from an international perspective.
I told this story of best practice to several young officers of captain rank when I attended the RACO conference in Cork last Christmas. One the officers replied the Defence Forces does best practice every day. He mentioned anecdotally that he had been on a foreign mission recently. During the course of a sensitive house search in a Muslim area with a multinational mission, the other soldiers commended the Irish personnel for how they conducted the search respectfully. That is an example of what we have in our Defence Forces.
