Joint Committee on Public Petitions and the Ombudsmen debate -
Thursday, 29 Jun 2023

Ombudsman for the Defence Forces Annual Report 2021: Office of the Ombudsman for the Defence Forces

An Cathaoirleach

The next item of business is our engagement with the Ombudsman for the Defence Forces, which will be followed by our consideration of public petitions.

I will explain some limitations to parliamentary privilege and the practice of the Houses as regards references witnesses may make to other persons in their evidence. The evidence of witnesses physically present or who give evidence from within the parliamentary precincts is protected, pursuant to both the Constitution and statute, by absolute privilege. Witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if witnesses' statements are potentially defamatory in respect of an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.

Before we hear from our witnesses I propose that the committee will publish the opening statement on the Oireachtas website. Is that agreed? Agreed.

On behalf of the committee, I extend a warm welcome to Mr. Justice Alan Mahon, Ombudsman for the Defence Forces, ODF, accompanied by Mr. Brian O'Neill, head of office with the Office of the Ombudsman for the Defence Forces. Mr. Justice Alan Mahon will read out the opening statement. I suggest that Mr. Justice Mahon will make his opening statement for ten minutes and we will then have questions and comments from members. Each member will have a ten-minute slot and members may come in for a second time if required. I now invite Mr. Justice Mahon to make his opening statement.

Mr. Justice Alan Mahon

I thank the Cathaoirleach and the members of the committee for the invitation to appear before the committee. The 2021 annual report provides a breakdown of the types of complaints referred to me and investigated by me in that year. In 2021, 36 reports were produced, including one preliminary report and one supplemental report. The figure, therefore, represents 35 complete investigations - the original document submitted to the committee contained a typographical error that said 24. The correct figure is 35 completed investigations. The comparable figure for 2020 was 25 and there was a similar total for 2022.

I emphasise that simply comparing one year’s figures with another does not tell the full story. Some investigations require many weeks of intensive work, while others may only take a couple of weeks to conclude. For example, in 2022 one particular report took almost 12 weeks, spread over a couple of months, to complete. The complaint from a single complainant in reality involved more than 20 complaints, many involving completely separate facts and information. That completed report ran to 50 pages and was the largest produced by me in the past five years.

Also, in the first six months of this year I have produced 24 reports to date, almost the same number as for the whole of 2022. This suggests that the total for this year may exceed the 2021 total. This reflects the fact that complaint referrals for this current year, and this would include referrals from the tail end of last year, have so far been unusually high. Why this is so is difficult to say. Possibly a clearer picture as to the reasons may emerge when this year is looked at as a whole. One possible contributing factor for this high number is the publication of the independent review group report earlier this year, and the attendant publicity that both pre-dated and post-dated its publication. However, I believe it is noteworthy that there has been a slow, albeit not significant, increase in what might be described as interpersonal complaints, including bullying and inappropriate behaviour. In 2022 there were eight complaints that were classed as interpersonal, and this year I expect the figure to increase again, but not significantly so. In 2021 the figure was three. Again, it should be stated, particularly in the context of the publicity arising in relation to the lead-up to the independent review group report and its findings, that in my almost five years as ODF, I have only had one new complaint of alleged sexual misbehaviour – in effect a sexual assault allegation - during those five years. That was from a male. However, because it far exceeded the 12-month limitation period, under section 6 of the 2004 Act, in which a complaint must be referred to the ODF for investigation I was unable to investigate it. I have noticed over the past couple of years a shift, albeit a very slight increase, in what might be described as gender-related complaints, including issues relating to course participation and promotion opportunities associated with maternity leave, for example. In general terms, however, complaints from female members of the Defence Forces do not appear significantly disproportionate to their overall numbers in the Defence Forces.

On the 12-month limitation period for referring a complaint to my office, I have suggested to the Minister that consideration be given to extending this perhaps to two years. The 2004 Act affords me no discretion to enlarge the limitation period, even in the most extenuating circumstances. In an effort to reduce the likelihood of would-be complainants falling foul of the 12-month period my office has, in conjunction with the Department and the Defence Forces, introduced measures to reduce that likelihood and I believe this has significantly reduced the numbers failing to meet this deadline. An individual now lodging a complaint through the internal Defence Forces grievance management process, often referred to as the section 117 route and which is still the preferred route, now receives warnings from both the Defence Forces and my office that the 12-month period for referring his or her complaint to the ODF is strict and needs to be kept an eye on. I am aware that these measures have helped to save some referrals from rejection on time grounds. Importantly, a letter now issues from my office approximately three months prior to the expiry of the 12-month limitation period, warning the individual that he or she must refer the complaint to my office within this remaining three-month period if an investigation by my office is required. Of course, those who decide to directly refer their complaint to the ODF – this category includes all former members of the Defence Forces – continue to run a greater risk of failing to meet this 12-month deadline as they do not, for obvious reasons, receive a timely reminder of the expiry of the 12-month limitation period.

To date, 2023 has seen a notable increase in the number of direct referrals from serving members of complaints to my office. This, I believe, is probably explained by the fact that there has been an increased awareness of the entitlement to directly refer. Directly referred cases impose an additional workload on my office as a lot of information, which would otherwise become available on transfer to my office of the Defence Forces' internal investigative file, has to be sourced from scratch before a full investigation can begin. Nonetheless, the wait time for an outcome and a full report remains usually a matter of weeks from the time when full information is available.

The committee will be aware that the only significant power I have, as ODF, under the 2004 Act is to make recommendations to the Minister for Defence. Recommendations are not made in every case. In 2021, for example, I made 15 recommendations – with some cases having more than one recommendation. In 2022 I made 18 recommendations to the Minister. Of the 15 recommendations made in 2021, eight have been accepted by the Minister and none have been rejected to date. In relation to the 18 recommendations made in 2022, seven have been accepted by the Minister and none have been rejected so far. In general terms, the vast majority of recommendations are accepted by the Minister. In 2021, approximately 35% of complaints actually referred to me were upheld or partially upheld, compared to approximately 25% the previous year. The comparable figure for 2022 is approximately 41%. These figures do not, however, take account of the larger number of complaints that were resolved internally within the Defence Forces before there was any referral to my office.

It remains my strong view that it is important for the Defence Forces to maintain its own internal grievance management system as I believe that most complaints are capable of resolution at that level, and are in fact resolved at that level. I also believe that most Defence Forces members prefer to have complaints resolved internally where reasonably possible, but to also have the option to engage the services of the ODF when preferred or where required. That concludes my opening statement.

An Cathaoirleach

I thank Mr. Justice Mahon. I see in the report that there are three specific issues the ODF has identified, and which the Minister needs to address. I will not call them out but these are identical to issues the committee has heard previously from the ODF. In some of the case studies we have seen, the 12-month rule has hampered the ability of some to seek resolution through the ODF.

The Ombudsman for the Defence Forces gave the Minister draft amendments to the legislation, which he is now considering. When was this submitted and is there any timeline for when the response is due from the Minister?

Mr. Justice Alan Mahon

There is no timeline, as such. I cannot remember exactly when I first made those submissions to the Minister. It probably would have been in 2021. I made three suggestions, one of which was to extend the period by something.

An Cathaoirleach

The limitations.

Mr. Justice Alan Mahon

I suggested two years. Alternatively, one could give the ombudsman some discretion. There are cases in which people, for very understandable reasons, did not make the cut-off period. That was one suggestion. The second was that the ombudsman be legally entitled to conduct what are often referred to as "own motion inquiries". At the moment, given the way in which the legislation is framed, I can only conduct an inquiry based on a particular complaint from an individual, whereas an own motion inquiry would allow the ombudsman, having identified a particular subject that may be a theme running through different complaints, to pursue that. One example might be in areas of gender. I dealt with a couple of cases in relation to issues arising while female members of the Defence Forces were on maternity leave and so on. That is a power the national Ombudsman has as does, I think, the Ombudsman for Children, as do the Police Ombudsman for Northern Ireland and the Welsh ombudsman. In recent years, legislation in different countries has included this own motion entitlement. That would be very valuable, particularly when you look at all that went on that gave rise to the independent review group, IRG, report. There were issues in that case that may have been picked up and inquired into as an own motion inquiry. In relation to that, late last year, at the request of the Secretary General of the Department of Defence, I conducted a sort of peer review. I examined military ombudsmen's entitlement to conduct own motion inquiries in different countries like Canada, Australia and so on, which I submitted to the Department late last year. I assume it is continuing to consider that.

As for the third area, our legislation lists, in section 4 I think, the categories of complaint I can investigate as ombudsman; there are about eight. My suggestion was that, while it does not exclude inappropriate behaviour or bullying, for example, neither does it specifically mention those in a way which might make it obvious to a lot of would-be complainants that we can deal with those sorts of complaints. It was to make it clear that, if there was going to be new legislation, a few categories could be added, using words like "interpersonal behaviour", "inappropriate behaviour" and "sexual misbehaviour", for example.

An Cathaoirleach

Has the Department given any indication that it will bring forward the three amendments Mr. Justice Mahon is seeking? Has there been recent contact with the Department in relation to them?

Mr. Justice Alan Mahon

All of these require new legislation.

An Cathaoirleach

Amendments to the legislation.

Mr. Justice Alan Mahon

Yes. I imagine, given all that has happened in relation to the IRG report, there is no great hurry to bring in new legislation just to deal with these items. That has not been said to me, but I suspect that all of these things are now being considered but perhaps in a longer timeframe. In relation to the 12-month limitation period, we had several meetings with the Secretary General and her officials. We came up with improved steps to warn would-be complainants that their time was running out. For example, now, we write a letter three months before the 12 months are up to warn people. In a small number of cases, that has very quickly resulted in a complaint being referred. The problem is that only deals with cases in which we are aware that somebody has a complaint, if you like, looming, still within the internal Defence Forces system. We do not know if there is somebody out there coming to the end of that first year, wondering if they will bring a complaint. We have no way of knowing they exist, so we have no way of warning them. It was for that sort of individual that we thought a 24-month period was more appropriate. Some people do not want to rush in to complain; perhaps they are serving overseas or whatever. Between this and that, by the time they come around to make a complaint, they may have run out of time. Many personnel in the Defence Forces try to resolve a complaint within their unit. Good efforts are often made by colleagues, non-commissioned officers and officers to try to sort out a situation, but that can take time. The individual may not be conscious that this 12-month period is running and he or she may run out of time.

An Cathaoirleach

Twelve months is very short. Moving on to the Air Corps, it had the highest number of complaints concerning maladministration. It also had the highest number of complaints concerning the non-selection of career courses. Do these figures indicate a system failure within the Air Corps? Can the fact that it has the highest number be explained in some other way?

Mr. Justice Alan Mahon

I do not really have an answer. If there was an own motion entitlement, perhaps an ombudsman could examine the Air Crops and see if there is. It is difficult to know. The Air Corps has a lot of promotion competitions and does a lot of courses because many of its personnel are very high tech. Many of the complaints I have got, going back over the years, relate to promotion and courses. I imagine that, for that reason, there is a disproportionate number coming from the Air Corps. There is no obvious sign, to me, to suggest that there is anything particularly different about the Air Corps, other than that it involves very high-tech people and there are a lot of courses and promotions, which would give rise to more complaints.

Deputy Pat Buckley

I thank Mr. Justice Mahon and Mr. O’Neill for attending the committee today. I was taken aback by the first part of the opening statement and the discussion of interpersonal complaints.

From his answers to the Chair's questions, the scope of Mr. Justice Mahon's office seems to be very narrow unless things are defined as to what is and is not a complaint. He said it is about introducing new amendments for the office. We deal with all the ombudsmen here and the European Ombudsman. In that context, Mr. Justice Mahon's office does not seem to have a broad scope. If somebody from the Defence Forces comes to the office to make a complaint, it seems that the office goes down its list and finds that the complaint is not on the list. I know where Mr. Justice Mahon was getting the point that the information is not getting back to the Defence Forces. The information might not be on the list, but there is a commonsense way to approach this.

Mr. Justice Mahon mentioned the timeframe. I am interested in sections 4 and 6. There are different timeframes across the ombudsmen's offices, which is ludicrous. An individual or a group has 12 months to make a complaint. As Mr. Justice Mahon said, sometimes people do not react straight away and need to sit back and see whether there is a possibility of resolving the matter internally within the relevant Defence Forces unit. However, 12 months is a very short period if we are talking about serious allegations. There might also be a gap because the member might be on tour for six months and he or she does not know what the reception is going to be when he or she comes back.

Mr. Justice Alan Mahon

In my experience, it is not generally in the nature of Defence Forces members to fire off complaints, especially in the case of non-commissioned officers, who are well trained and who have many years of experience, and, indeed, officers. It is not part of their nature.

Deputy Pat Buckley

Yes. It is not in their DNA.

Mr. Justice Alan Mahon

One has to admire people, generally speaking, who, rather than rush off with a complaint sit back and think about it. Many Defence Forces personnel serve six-month tours of duty. As a result, this might be the last thing on their minds. Thus, the 12 months passes quickly.

The Deputy's first point was interesting. I looked at some of the legislation on military ombudsmen in other countries when I was doing some research into own-motion inquiries. They allow all complaints, including from their military, to go to their ombudsman. Then all they do is list those he or she cannot deal with, for example, military operations and things like that.

Deputy Pat Buckley

That would be the commonsense approach and this is the problem.

Mr. Justice Alan Mahon

Yes. Our legislation provides for exclusions, but it says in order to make a complaint, people must fit it into one of the categories. The categories are reasonably wide and I do not see any great issue in that. I am not suggesting they exclude bullying or things like that. With the Women of Honour and all that, it came to be of particular relevance that perhaps it would serve my office and the Defence Forces better if a would-be complainant with, say, an interpersonal complaint, one of sexual misbehaviour or harassment or any of those, looks at the list in section 4, he or she will see in plain language that is says "Interpersonal issues" or something like that. I am not suggesting for a minute there is a large group out there who are looking at this list, not seeing "Interpersonal issues" and therefore deciding not to complain.

Deputy Pat Buckley

Yes.

Mr. Justice Alan Mahon

We occasionally get asked the question, perhaps over the telephone, whether we deal with bullying or whatever. I would not think there are huge numbers of people out there who do not appreciate the fact that we can deal with them, but my suggestion to the Department was if is going to amend legislation-----

Deputy Pat Buckley

That it should broaden the scope.

Mr. Justice Alan Mahon

Yes. It might not be worth doing it just for that, but if it is being done this might be a good and useful way of doing it.

Deputy Pat Buckley

It is interesting. Regardless of the Department, as we are dealing with our Defence Forces the scope should nearly be brought out to the limit, whereas as Mr. Justice Mahon said, it stops at sensitive information on military operations or peacekeeping operations, or whatever. It seems so constricted. I was asking those questions because I am interested. If a person made a protected disclosure to the ombudsman outside the timeframe and provided within that the reason he or she was unable to meet the deadline, can the office accept that? It is a tricky one.

Mr. Justice Alan Mahon

I understand. The 12-month limitation period is measured from the date of what is called the "action", that is, when the incident took place. There 12 months from then to get a complaint into my office. Alternatively, it is 12 months from the date the person becomes aware the incident affects them in whatever way. It is whichever is the later. This is all dealt with in section 6 of the Act, I think. An individual might have a complaint about something that happened three years ago, perhaps a decision that was taken, and he or she has only recently learned it affects them. That person should be okay because he or she can say he or she only learned about it within the last 12 months.

On protected disclosures, the 2014 Act amended the 2004 Act, which is our Act. In effect, it added another category, namely, penalisation for having made a protected disclosure.

Deputy Pat Buckley

That is gone because we had the Protected Disclosures (Amendment) Act 2022 signed into law recently. That list is for those whistleblowers who are penalised. Is that the category Mr. Justice Mahon is referring to?

Mr. Justice Alan Mahon

No, this is the category in section 4.

Deputy Pat Buckley

All right.

Mr. Justice Alan Mahon

I will give my understanding of the effect of the amendment in the 2014 Act. It may be in section 20, although I am not quite certain. Anyway, it specifically mentions the Ombudsman (Defence Forces) Act and the amendments says the penalisation of a whistleblower can be investigated by the ombudsman. I interpret that as the 2014 Act giving to the 2004 Act an additional category of complaint, namely, penalisation of a whistleblower. I do not think any other interpretation would be reasonable. Accordingly, that is subject to the 12-month limit, though it would be slightly more difficult to see circumstances where somebody would not be aware he or she is being penalised at a fairly early stage. At the same time, one could imagine circumstances where it might not become clear. The 12 months from the date of the event or the date the person becomes aware of the event applies to all categories of complaint that would come to my office.

Deputy Pat Buckley

I was interested because, with the Protected Disclosures (Amendment) Act 2022, the burden of proof is now reversed.

Does receiving a protected disclosure make Mr. Justice Mahon's job easier or more difficult? As for where the onus rests in that context, I will give the Army as an example. If someone in the Army goes to the Office of the Ombudsman for the Defence Forces with a protected disclosure and says that X, Y and Z happened, does this make the investigation easier or more difficult? I ask this because Mr. Justice Mahon will then have to go back to the Army, tell that organisation he has received a complaint concerning X, Y and Z and that the whistleblower does not have to prove that X, Y and Z happened; the Army must prove it did not. Does this make Mr. Justice Mahon's job easier?

The second part of this question concerns the change in the law concerning protected disclosures. I am sticking on the topic of protected disclosure because of the time limitations in this regard. Has Mr. Justice Mahon's office become much busier since the change in the protected disclosure law?

Mr. Justice Alan Mahon

No, we are dealing with a small number of complaints in which there is an allegation-----

Deputy Pat Buckley

This is not a quiz. I am just referring to the fact that I am aware many people are watching this committee, believe it or not. People will be interested in their rights. I am conscious that a Bill on the Garda Síochána and the Defence Forces has been sitting in these Houses for quite a while. There is a lot of dust on it now and it might even nearly need to be hoovered. It has been sitting in here for a long time. It proposes to give the members of the Defence Forces and An Garda Síochána the option to join a union and have their rights and their say. This is what I am coming back to regarding with Mr. Justice Mahon and his position. The Office of the Ombudsman for the Defence Forces investigates issues concerning rights-based protected disclosures. Union representation and collective bargaining rights should be rights-based. It should be a natural right that people have a voice in this regard. I feel the voices of the members of the Defence Forces here are strangled to an extent. I refer to the scope in this context. I wrote a note to myself on the papers I have with me. It reminds me to introduce new amendments in this regard. That is what I have written down here. I refer to going into the scope of it and this is to assist Mr. Justice Mahon's office.

I have one more question.

Mr. Justice Alan Mahon

Can I clarify something? Regarding the provision in the new legislation, the Protected Disclosures (Amendment) Act 2022, which reverses the onus of proof, I maintain this does not apply to a complaint to the Ombudsman for the Defence Forces. This is because of the wording. I do not have the text of the Act with me, but if we look at-----

Deputy Pat Buckley

I am very interested in this subject. I spent 18 months watching this because European law had to change and we had submitted our own proposal.

Mr. Justice Alan Mahon

It clearly applies to court proceedings but not to-----

Deputy Pat Buckley

Yes.

Mr. Justice Alan Mahon

It concerned me so much that a few months ago, I sought the opinion of an external senior counsel. I purposely did not indicate to him what my view was and that I had this concern. He has, however, given me strong advice that this provision does not apply to a complaint made to my office.

Deputy Pat Buckley

That specifically-----

Mr. Justice Alan Mahon

The reversal of the onus of proof does not affect complaints coming into my office.

Deputy Pat Buckley

Does this apply specifically to the Ombudsman for the Defence Forces?

Mr. Justice Alan Mahon

Actually, it does. The senior counsel was only asked about the Ombudsman for the Defence Forces, so whether this applies to other ombudsmen I do not know. Certainly, however, the particular section in the 2022 Act which caused that concern and led me to look for this external opinion specifically refers to complaints to my office. I would say they are clearly distinguished from court proceedings. Whether the same applies to complaints made to other ombudsmen I do not know.

Deputy Pat Buckley

I will definitely check up on that because, as I said, I spent 18 months working on protected disclosures, waiting for the EU to change its law and submit our amendments here.

Mr. Justice Alan Mahon

It is a very onerous provision in the sense that if it is found that an employer has done something wrong, it is effectively automatic penalisation-----

Deputy Pat Buckley

Absolutely.

Mr. Justice Alan Mahon

-----whereas under the 2014 Act, it was possible to look at it and-----

Deputy Pat Buckley

Yes, we could talk about that for months, never mind hours and days. I will certainly look into this aspect because I am very surprised by it.

I am not sure if Mr. Justice Mahon's office deals with the context of my last query. I do not mince my words. I had incidents during my time in my former position as my party's spokesperson on mental health where people died by suicide in the Defence Forces. When I contacted the chief of staff of whatever department was being dealt with to ask about what happened, I do not think I ever got a straight reply. I will outline the normal reply received. I will use the navy as an example for a change. The response would have been that it did not investigate suicides and that was the coroner's job. The body of the person would have been removed from the barracks or base or whatever and gone to the office of the county or city coroner. Suicide would then have been determined, but not registered on the site or campus where it happened because the body was off-site when suicide was determined as the cause of death in the coroner's office. Suicide, therefore, did not happen on an Army or Naval Service base.

I have dealt with a few cases like that. Mr. Justice Mahon mentioned penalisation and I will come to that. I will try to shorten my contribution to this aspect. I was not happy with the responses in those cases I mentioned. I wrote back to the office concerned and the only answer I was given then concerned a negligent discharge as the cause of death. It can be imagined how the husband, wife or partner of the deceased person felt when I then had to go back and say I had been told it did not happen, there was no mention of suicide and I could not get any answers. Does the ombudsman have the power to investigate such cases?

I ask because there are serious incidents. This is why I built my contribution by beginning to talk at the start about getting the scope of Mr. Justice Mahon's office enlarged, not understanding that the full scope of the protected disclosures legislation does not assist his office in the way it was supposed to assist everybody. This is my point. Can the siblings or partner of a member of the Defence Forces who died not by actions of war but by actions of their own in taking their own life approach the ombudsman in this regard? Can they say there have been reports and while it has been acknowledged that something happened in respect of negligent discharge, unfortunately the cause of death was not recorded within the precincts of where the individual concerned worked? Can Mr. Justice Mahon's office go back and investigate a situation like that? I know it sounds complicated now-----

Mr. Justice Alan Mahon

The short answer is "No". If a former member of the Defence Forces dies by suicide, the Deputy's question is whether his or her family can raise an issue with the Defence Forces-----

Deputy Pat Buckley

Yes.

Mr. Justice Alan Mahon

-----on the basis that their suspicion-----

Deputy Pat Buckley

That they were a serving member-----

Mr. Justice Alan Mahon

----- of what led to suicide was connected perhaps to the manner in which he or she was discharged or whatever.

Deputy Pat Buckley

Yes.

Mr. Justice Alan Mahon

I cannot deal with this. The 2004 Act is quite specific. The complainant must be a member or former member of the Defence Forces, which precludes his or her widow or widower or child and so on from being the complainant. I presume this provision was originally framed like this to keep the complaints system in the form in which it is. It is necessary, therefore, for a person to have been a serving member of the Defence Forces within the last 12 months, obviously, if we are dating it in this context, and the person the complaint is being made about must be a member of the Defence Forces.

Deputy Pat Buckley

I thank Mr. Justice Mahon for that. It sounded very complicated but, as I said, when we are on committees, going through reports and so on, at the same time we are working for our constituents or people who have concerns, and when you are in a certain position you are duty-bound to ask those questions. I thank Mr. Justice Mahon from the bottom of my heart because I have waited nearly three years - being honest, maybe more than three years - for that answer.

Mr. Justice Alan Mahon

As a matter of interest, we do occasionally get complaints from family members or people associated. I do not think I have ever seen one about suicide, but we always have to say we are sorry.

Deputy Pat Buckley

Yes, within the constraints and the remit.

Mr. Justice Alan Mahon

Only the person who was directly affected by the incident may complain.

Deputy Pat Buckley

Thank you, Chair. I could talk all day.

An Cathaoirleach

Deputy Devlin, you are online. Do you want to come in? No.

I have a couple of questions. I go back to case No. 4 in your report. It deals with a female member of the Naval Service whose career prospects were limited because of being out on maternity leave and who therefore was not offered the opportunity to gain the relevant sea duties that would allow her enough experience to qualify for the particular type of training. I acknowledge that you have made recommendations here to address the problem in that particular case, but are there elements of the protocol within the services that need to be addressed for the long term in order that distinctions similar to what happened in that case are not made in the future?

Mr. Justice Alan Mahon

Off the top of my head I do not know exactly what happened in that case. We would have that record in our office, obviously, but I know that-----

An Cathaoirleach

She missed out on sea service duty because of being on maternity leave.

Mr. Justice Alan Mahon

Yes. I remember the case very well. We have had a small number of cases of female members of the Defence Forces who have felt discriminated against because of, say, being pregnant or on maternity leave or extended maternity leave. They miss out on courses, and in the Defence Forces everything is about courses. Courses qualify one for-----

An Cathaoirleach

Progression.

Mr. Justice Alan Mahon

-----promotion, and it is all about promotion. They lose out because their male colleagues and their non-pregnant female colleagues are moving on and are able to do those courses. A lot of those courses are quite physical. I know that the Defence Forces and the Department are taking steps to try to facilitate to a greater extent female members who are on maternity leave or pregnant. Of course, at the end of the day, certain levels of training are required, so it is not the easiest thing to do, but I think they can do more and are attempting to do more.

An Cathaoirleach

Furthermore, in the IRG report it is noted in assessing the Defence Forces' equality, diversity and equal status policies that the policy documents available left significant room for improvement and that the document finds that women can feel sidelined, as you said yourself, in their career progression. It is your view that stuff is being done or changes are being made in that regard.

Mr. Justice Alan Mahon

Yes, I believe there are changes. I know it is a problematical task for those trying to make changes because certain levels of training have to be achieved and the Defence Forces are traditionally a very male-oriented organisation. However, I think steps are being taken to assist the female members who are in that situation, whether pregnant, on maternity leave or in need of parental leave. I think that is changing and I think a lot of it is thanks to the IRG report and all the publicity. There is a greater recognition now that women have to be better catered for in the Defence Forces, particularly if they want more women to join, which they say they do, and I believe they do.

An Cathaoirleach

I have another question about the Women of Honour. I do not know if you will be able to answer us, but does your office have any issue with the inclusion of interactions between the ODF and members of the Defence Forces relating to complaints of abuse? In their statement which accompanied their suggested terms of reference, they concluded by saying that the Defence Forces need to be overhauled but that needs to happen in an informed and structured way. These are underlying issues that need to be addressed permanently rather than being adjudicated on a case-by-case basis by the ODF. Will you give us your view on that?

Mr. Justice Alan Mahon

Explain that again. Is this the view as to what the IRG has said about it?

An Cathaoirleach

Yes.

Mr. Justice Alan Mahon

I do not disagree with much of what is in the IRG report. They have suggested that there be a completely revamped investigation system because I think one of the major complaints about the system as it stands is the fact that for the most part, officers sit in judgment of their fellow officers. Under the section 114 system, when a complaint goes into the internal Defence Forces investigation system, it is investigated there, a military investigation officer, who is always an officer, is appointed, and he or she then conducts an investigation. A lot of those investigations are quite impressive - not all of them, and I would disagree with 30% or 40% of them. Many of the members of the Defence Forces, as I understand from the IRG report, take issue with the fact that this is not a properly independent system. That is fine, but I am strongly of the view - I put in towards the end of my opening statement a paragraph to this effect - that there should be a useful working internal grievance system involving Defence Forces personnel. A number of the complaints are very serious and some are quite complex but a lot of them are very minor and are dealt with at local level. If you do away with the internal investigation system and say that every time you have a complaint you have to go to an outside agency, you will put off many people from making the more minor complaints and you will require a very substantial investigation unit to deal with every single complaint. The internal system works reasonably well, in my experience, particularly for a lot of the less serious complaints, and they get resolved at that level. They do not have to come to the ombudsman. I think many Defence Forces personnel would not like a system whereby every complaint they make is automatically moved to an external body. However, I think a lot of what the IRG has recommended in terms of investigation models is useful and I assume it will be thrashed out in greater detail, perhaps, if a statutory inquiry happens.

An Cathaoirleach

Mr. Justice Mahon just answered the two questions I was going to ask next. Does the current process provide a speedy turnaround for complaints that are referred? Most of the complaints, given their nature, require a quick decision in order for justice to be seen to be done. Is the current system quick enough to get these complaints referred? Is there something else that could be done?

Mr. Justice Alan Mahon

It could be sped up within the internal system of the Defence Forces to some extent. The problem is that complaints have to be investigated fully. Many of the complaints are complex and it is often the case that there might be five, six or seven witnesses to be interviewed and a couple of them may be abroad. It can be difficult for the Defence Forces or whatever investigation process there is to investigate quickly. They have improved in terms of their throughput. My office deals with complaints very quickly once we have the full information. It might take a while to get that information but we pride ourselves now on getting decisions out quickly. Most of the complaints are urgent. For example, many of the complaints we receive relate to promotion. The problem is that a complainant who discovers he or she is not going to be promoted, for example, then has to lodge a complaint, which takes time, and in the meanwhile that promotion opportunity passes by because things cannot be done that quickly in most instances. It is the same with courses.

The Defence Forces have probably improved in terms of their throughput of cases. Of course, we permit individuals to come directly to us. That was not the case until a couple of years ago. The old rule was that a member of the Defence Forces had to go through an internal Defence Forces system under section 114 and only after 28 days could the member ask for it to go to the ombudsman. We now allow members of the Defence Forces to come directly to us and an increasing number of them are doing so. It increases-----

An Cathaoirleach

The 28-day wait is gone now. Complainants can go directly to the ombudsman.

Mr. Justice Alan Mahon

If they so wish, yes. There is a benefit in going through the internal system for at least 28 days, however, as many of the complaints get resolved at that level, whereas although there may be a resolution if a member comes straight to the ombudsman, it will be further down the road. When a member brings a complaint internally, his or her commanding officer usually knocks a few heads together and sorts it out within those 28 days. It gets resolved and we never see that complaint. If a member comes straight to us, however, he or she does not get that opportunity for a quick resolution. They have that option now, however. Individuals may now be more inclined to come to us. The problem in such cases is that my office has to start an investigation from scratch, whereas when we get a referral from the Defence Forces section 114 internal system, a lot of investigative work has already been done, statements have been taken and things like that. For cases that come directly to us, there is an online form to fill in and we are starting from scratch, so it would not be done overnight. There is an increasing tendency in the Defence Forces to try to get things done quickly but some of the complaints do not lend themselves to-----

An Cathaoirleach

A quick resolution.

Mr. Justice Alan Mahon

They are complex and many people have to be interviewed.

An Cathaoirleach

Does Deputy Buckley wish to come in?

Deputy Pat Buckley

I was going to ask a question on section 114 but I will not do so as we would be here for a long time. It is a complicated process.

Mr. Justice Alan Mahon

It is.

Deputy Pat Buckley

It lists a lot of options and so on. I am delighted to have had the opportunity to engage with Mr. Justice Mahon today. He has cleared up a lot of matters. He has opened my eyes to a few things the committee might be able to do to improve outcomes for people and ease his workload and that of his office. I am delighted to have had the opportunity to engage with him. I thank him for coming in.

Mr. Justice Alan Mahon

Mr. O'Neill just reminded me that in one case that required an urgent decision we dealt with it within 24 hours and the Defence Forces were very co-operative. There were different steps taken. We told them the matter was urgent and needed to be dealt with. I do not wish to discuss the details of the case. The Defence Forces are very keen to assist my office, certainly more so than they were in the past. We have a very good relationship. They have one or two people in their grievance management office who deal with us all the time. When we look for regulations or administrative instructions, for example, we now get them very quickly.

Deputy Pat Buckley

That is great.

Mr. Justice Alan Mahon

In fairness, much of that is down to the people in that office.

Deputy Pat Buckley

As they say, give credit where credit is due.

An Cathaoirleach

I thank Mr. Justice Mahon. Does he wish to make a final comment? Is there anything with which the committee can help him?

Mr. Justice Alan Mahon

I cannot think of anything.

An Cathaoirleach

I thank him and Mr. O'Neill for coming in. It has been very beneficial for the members who have been present. I will suspend the meeting for five minutes to allow the witnesses to leave.

Sitting suspended at 2.47 p.m. and resumed at 2.53 p.m.