This arose in the other House but I did not trouble this House by putting down an amendment on it. What operation does not involve a definition of a military task? There are many tasks of a non-military kind in which the Defence Forces are involved. The absence of the word "military" before "task" seems to broaden the definition of an operation well beyond national security. There are many tasks in which the Defence Forces are involved, among them, for instance, providing an emergency bus service if we have a transport strike. I do not think national security is in the least bit involved in an issue like that. I cannot see why in that case we have to have a definition of a task undertaken by the Defence Forces which does not make it clear. We are simply talking about what they have to do as a military force because that is where the whole issue of national security and the difficulties of legislation like this arise.
Defence (Amendment) Bill, 1990: Committee and Final Stages.
The definition of "member" means an officer, a non-commissioned officer, private or seaman of the Defence Forces. Does it include members of the Air Corps? In relation to a question I asked — I do not know whether I was out for a minute or whether the Minister replied on Second Stage — what is the position regarding the people who serve from time to time with the FCA?
"Defence Forces" covers the FCA and the Naval Service. It relates to an officer, non-commissioned officer, private or seaman of the Defence Forces. That covers Air Corps, Naval Service, Army, both the front line and the reserve, and the FCA. I am anxious to emphasise that it includes the Air Corps as well. The Air Corps and the Army are linked in our system.
Senator Ryan asked about the definition of "operation". Any task undertaken by the Defence Forces in the discharge of their duties is an operation. It can be regarded as a military operation, a non-military operation or whatever other objective you wish to put before it, but it is an operation when it is a task undertaken by them as part of their duties. The duties of the Defence Forces can be multifarious and have been so under our systems. They have come to the aid of the civil power over a whole range of areas connected with natural and other disasters, in the case of the provision of emergency services where there are refuse or electricity strikes from time to time, be they accidents or an act of God. Their duties also relate to a fire, or road blockages caused by storms. An infinite range of emergencies arise from time to time in which the State, the local authority or even the community call on the Army to come immediately to their aid. Army personnel engaged in those tasks are carrying out an operation. The tasks undertaken by Defence personnel are part of the military code. They come under the heading of aid to the civil power and cover a very wide range of duties. That definition could not be more simple and appropriate. If it is defined in any other way, it might lead people to differentiate between tasks. Members of the Defence Forces are not any the less soldiers, Naval Service personnel or Air Corps personnel because they are participating in non-military tasks. They are participating in an operation in discharge of their duties even though they may not be defined strictly in our meaning of the word "military". They are not, in other words, engaged in warfare but in tasks in the discharge of their duties and that is an operation. In the course of such operation, they are primarily within the whole range of aid to the civil power. In that whole range of duties they are engaged in operations in discharge of their duties. That is a straightforward as I can put it.
I am not entirely happy with those comments. I have a feeling the Minister might not be entirely happy either but that is not for me to judge. As the Minister said, the Defence Forces are there to help out in emergencies of a natural disaster kind. Why should the associations being set up be precluded from having a view on such operations? The problem about operation is that, in section 2, matters relating to any operation are excluded from the remit of the association.
That is what PDFORRA want. Nobody sane could seriously suggest that we should bring them into any area covered by what the Senator has drawn attention to including any operation, relating to the raising, maintenance, command, constitution, organisation or discipline of the Defence Forces. In the first page of their submission PDFORRA ask that all those matters be excluded from their remit. Nobody wants that whole area which covers them in operating on non-military duties in aid of the civil power to be included in their remit. They are still acting as members of the Defence Forces and are part of a military operation, even though they may not be engaged in a military task. They are still subject to military discipline and command. This point was made in the other House by Deputy Bell of the Labour Party who supported me on this point. He said in emergency cases it is more important that members of the Defence Forces react in a military-type manner, that they react to command and discipine and do it swiftly and quickly and immediately without any consultation. It should be a question of "go" in an emergency or an urgent situation. It is precisely in these situations or contingencies that Army personnel must act with the maximum haste, expedition and immediacy, all of which means acting under military command and direction and control.
The point is that the Garda have to do precisely the same in a situation like that, and the Garda Representative Association are not precluded from talking about the way matters like that are dealt with. They are not precluded from representing their members if those members have the view that certain things are being run very badly. They are not precluded from communicating with the public that things like that are being done very badly. The unique thing about the Defence Forces and the reason they are specifically referred to in the Constitution is the right to use arms on our behalf. The unique thing which makes the Defence Forces different from any body in our society, is the fact that they can use arms and are trained to use arms on our behalf. In every other way they are another disciplined force carrying out an operation, like the Garda. The Garda Síochána Act, 1977, says that the association represent members of the Garda Síochána on all matters affecting their welfare and efficiency. I like the use of the word "efficiency" and I used it on Second Stage.
I cannot understand what is wrong with an organisation which represents members of the Defence Forces being allowed to comment on the efficiency of many areas of operation of the Defence Forces. I am not talking about people saying there will have to be a mass meeting of the Defence Forces in order to decide if a certain operation will be done or not. That has never happened in the Garda Síochána. I do not believe it has ever happened in the fire services and there is no reason to suspect it would happen in the Army. There is an excessive narrowing. If PDFORRA think differently, that is their view. I have a view of what people should be allowed to do in their own organisations. This is my own opinion, I am not here as a lobbyist for PDFORRA. They have quite clear objectives and they are happy that many of their objectives have been achieved. That does not get away from the fact that I would like to know why in non-military operations the Army must be treated differently from the Garda Síochána.
Because they are a military organisation and are called in to aid the civil powers as an exceptional measure. It is a routine matter for the Garda. It is not quite a routine matter for the Army.
That sounds like tautology.
We must remember the context of this, we are talking about the security forces of which the Garda, the prison officers and the Army are all part, and I must agree with my colleague, Senator Ryan, that this section is unnecessarily restrictive. In fact, one of the major criticisms of the entire Bill, is that there are restrictions on just about everything. As we will see in the next couple of amendments, there are restrictions in relation to regulations. The parameters are so restrictive. There is no good reason that a representative association should be prohibited from commenting ona matter that their members should be involved in. Surely it would be relevant for a representative organisation to have the authority to express an opinion on an emergency operation.
Indeed, there are other matters that are prohibited as well, in relation to organisation and discipline. This is allowed in the Garda force, who are equally at the cutting edge of security, and likewise the prison officers. To quote the PDFORRA as the imprimatur, or for that matter my colleague in the other House, Deputy Bell, is not relevant so let us deal with the matter in this House. The Minister should look at the merit of the issues rather than quoting some authority. PDFORRA is not quoted as an authority later on down the line. In fact, a lot of this Bill is directed against PDFORRA so it is hardly putting the stamp of acceptability on them because——
It is not directed against them. They understand it differently.
Shall I say that this Bill makes it illegal for any other organisation to exist and it hits out very strongly against the possibility of any trade unionism entering the association. That is one of my major criticisms of the Bill. I must agree with my colleague, Senator Ryan, that this is unnecessarily restrictive.
I am surprised at Senators Ryan and Costello being so very niggardly in relation to this aspect. As the Minister has said, they are a military organisation and irrespective of what Senator Ryan might say about whether the members of the Defence Forces should have consultation about different things, in an emergency they have to act as the Minister said, as a military force and in a military fashion. It is extremely important that that would be there. If the facility was given to them to have consultation, there would be an ongoing difficulty with the whole situation. PDFORRA, who are the people who have been at pains over a considerable period of time in seeking representation, are quite satisfied with it and I do not understand the attitude of Senators Ryan and Costello. I am surprised at Senator Costello's comment on Deputy Bell, who is a member of the Labour Party, as is Senator Costello. Surely they have a particular attitude in relation to this subject?
My criticism was of the Minister dragging in Deputy Bell and PDFORRA to defend his position, when so much of it is directed against what the Labour Party stand for — good trade unionism in relation to association. I would prefer that we discuss this on its merits rather than bringing in out-side——
I thought the case was so self-evident that I just brought in the other supporting views to emphasise it. It is quite evident that this lies at the core of the whole thing. The Bill is about legitimising activities of a representative body or bodies in relation of pay, condition of service, and a whole range of welfare matters, while preserving the whole purpose of Defence Forces as it has always been, the military organisation available to this State, to act in military matters in defence of the country, to combat subversion, to act in aid of the civil power and on various UN duties and so on. These are military matters that are under the command of the State, the Minister for Defence, on behalf of the Houses of the Oireachtas. We are in control of this and it is to our advantage as a civilised society that we have military forces at our command to act in a disciplined way at the request of the Minister of the day, who does so on behalf of the Oireachtas.
The core and ethos of the Defence Forces in this and in every other democratic country, is discipline and command. Nobody in their senses would suggest otherwise. I find it amazing. I did not think I would have to defend this here. That is why I mentioned the other people who obviously supported me in this matter. It should be self-evident to any parliamentarian that this area must be reserved for the Defence Forces, and it is so reserved in every country in the world, particularly in democratic countries where we want the Defence Forces under our command to be able to act expeditiously and urgently in certain situations. This is what democracy is all about. It is not about bringing the Defence Forces to a state of anarchy; it is having the Defence Forces, under a legislative framework and under the Constitution, available to preserve and enhance democracy and make it effective. At the end of the day we must get to the nub of the matter which resides in this whole command and discipline area. The Defence Forces have to be able to act in the interests of society and are given very serious powers to do so such as the power to kill in certain circumstances and also the power to act under command and discipline without questioning. If they do not have these powers to deal with serious situations then they are not a Defence Force at all. I have gone into a very deep philosophical area that I did not think I would have to go into because, as I have said, it should be self-evident to anybody who qualifies for membership of this or the other House that it should not be up for discussion at all.
I was not going to say any more but after that little exercise from the Minister I will have to say something. First of all it is a bit much to talk about democracy in this House after what happened last week.
I am not concerned about peccadillos in this House.
Secondly, to talk about the qualifications of membership of this House after last week is a bit much, too. There seems to be no basic qualifications for Members of this House any more. I simply am not going to be diverted away from a question to which I think there is an answer. In reality for most of the time in this country the brunt of violence is taken by the Garda. They deal with riots and have been badly injured in the process. They have dealt with most of the armed subversion in this country and have been injured and killed in the process. They are the people who deal with bank robberies in which violence is used. In all those cases the Garda act in an organised, and hopefully efficient way, and they use weapons etc. on our behalf. I cannot see why gardaí are perfectly entitled to be members of an association which can comment on the merits or demerits of any of those operations while, at the same time the organisation which represents the Permanent Defence Forces is precluded from talking about any operations. I do not see why a body representing the ranks——
Does the Senator not see a difference between an army and a police force, or am I hearing things? There is a very real difference between an army and a police force and that should be self-evident.
I am simply trying to be polite.
I am trying to be helpful.
I am not trying to be unhelpful. I am simply trying to find out if there is a clear legislative distinction. I know what an army is supposed to do and I think our Army do their work remarkably well but I am a little concerned about the apparent scepticism about the capacity of members of the Defence Forces to respond in a disciplined fashion simply because the organisation that represents them can talk about matters that might affect the welfare of their members, which impinge on some areas of operation. I am happy to accept, with some reservations, that matters relating to the raising, maintenance, command, constitution or organisation of the discipline of the Defence Forces may well present problems but I am not at all clear as to why the word "operations" has to encompass everything people do under the Defence Acts. Let me remind the House that an amendment to this effect was put down in the other House by Deputy McCartan from The Workers' Party to insert the word "military" before the word "task" in section 1 and I do not see anything unreasonable in that.
I know the difference between the Army and the Garda. I know the difference between what they need to do in times of civil unrest and I know what an Army is for but I cannot see why an organisation representing members of the Defence Forces should not be allowed to talk about the way the forces are organised in the same way as do the Garda representative association. I do not think we should let the mystique of the Army walk us into too many restrictions on what I accept is well-intentioned legislation. I resent suggestions that the fact that I raise the issue implies an unfitness, either in my intellectual capacity or my sanity, to participate in the workings of this House. I would not like to cast aspersions on the similar qualifications of an aspiring presidential candidate because it would be very improper.
Sorry.
Therefore, I will not get involved in an exchange of invective. I believe that the rights of the citizen to participate in independent associations is not in conflict with their responsibilities to the State. In my view, the Garda or their association have never used industrial action to avoid taking great risks on our behalf, to avoid doing things that the rest of us would not like to have to do. To suggest that their organisation could not represent and talk about their interests even in non-military operations, is unfair to the members of the Defence Forces. I am simply saying that in so far as possible they should have similar rights to other parts of the security forces.
I do not intend to labour this point any further but I would remind the Minister that it is not so long ago since his predecessor said it was self-evident that the existence of a representative association would undermine the Defence Forces and that it could not be tolerated. He said there could not be a representative body for the Defence Forces. The Minister is now telling us that something in this Bill is self-evident. I am just as bemused as Senator Ryan about what the Minister has described as self-evident. He has been overbearingly dismissive about the real issue. As has been pointed out, there is a parallel with the other areas of the security forces who have the opportunity to discuss openly in public, at their conventions and so on, matters that concern them in relation to their operations. To simply say that they will not be allowed to have an opinion, or if they are allowed to have an opinion and express it, that it would undermine the security forces is rather presumptuous on the Minister's part. They are citizens and they are entitled to the rights of citizens. When we restrict those rights we must do so only for the gravest of reasons.
Amendments Nos. 1 and 2 are related and may be discussed together.
I move amendment No. 1:
In page 2, line 27, after "remuneration" to insert "housing, welfare, health, education, training and related issues".
I think we will probably have a somewhat calmer discussion on this issue. The first thing that needs to be said is that section 2 contains a fundmental and much welcomed change in our attitude to the Defence Forces. It contains the provision that an association may be set up which will represent the members of the Defence Forces. That is a good thing and is to be welcomed. Anything I have to say about amending the section is meant to add to that and not in any way take away from the fact that the Minister has produced such a section.
The Garda Síochána Act defines what a Garda representative association can do for the purpose of representing the members of the Garda Síochána in all matters affecting their welfare and effeciency. This is an extraordinarily broad definition by comparison with the almost painstaking exclusions of certain areas from the present section. Without going into another long discussion, there are certain areas of military operations which much be excluded from the ambit of concern and operation of a representative association. That is a hypothesis that I accept but do not agree with. I cannot see why we cannot have fully functioning trade union representation inside the Army. The implication that membership of a trade union would somehow make a person a less loyal member of the Defence Forces is quite offensive to trade unionists. The implication is that somehow, in certain delicate areas, if people are in a union they will not perform as well as if they were not in a union. I find that implication, which is contained in a lot of these qualifications, rather difficult to accept but I will accept it for the sake of argument.
There is a very narrow and limited view of what a representative body or, as I would prefer to call it, a Defence Forces' trade union should be talking about. The amendment I have proposed which, reads "remuneration" to insert "housing, welfare, health, education, training and related issues" is by no means a comprehensive amendment. What I am attempting to do is put in an amendment consistent with the spirit of section 2 but which elaborates on those areas on which members of the Defence Forces trade union would be free to comment. There are two responses the Minister can give me. The first is that he will make regulations concerning some of these and the second is that some of these somehow impinge on the efficient performance of the Defence Forces. I fail to see why it cannot be explicity written down.
I accept the point made by the Minister on Second Stage, in a comprehensive and fairly generous reply which covered most of the issues raised, that there are many matters which are best dealt with by way of negotiation, agreement and subsequent regulation. I have no problems with that but there are principles, out of which regulations can spring, which ought to be incorporated in legislation. I have been led to understand by the Minister that it is intended that such an association would be able to talk not only about matters such as the quality of housing but also about the welfare of members, and not welfare as defined in the Minister's speech but welfare in the sense of their conditions of service and the way they are treated, about a host of issues that could arise, the way they are dealt with and about abuses of power and position within the Defence Forces.
Trade unions exist in every organisation. The reasons I, Senator Costello and indeed Senator McKenna, who is in the same trade union as myself, are members of trade unions are, first of all we want them to deal with the question of remuneration and second to protect us from anybody in a superior position who would be inclined to misuse their power vis-à-vis ourselves. It is pointless to pretend that there will not be a misuse of power within the Defence Forces. It is a human organisation, just like every other organisation. Therefore, it is necessary that, in terms of the welfare of individuals, the representative body have the right to make representations on those issues. In relation to the question of health and safety at work, there is no reason to presume that somehow the Defence Forces should have to operate in living and work conditions or in terms of their dealing with dangerous substances or anything else, which are not covered to the extent that they can be by health and safety at work regulations. It is quite proper that a representative body should be able to make vigorous representations about those matters.
There is also the question of the extension of employment equality legislation to the Defence Forces. Will the association the Minister has in mind be legitimately able to argue this question? We then go on to the education that members of the Defence Forces receive within the Defence Forces and the educational qualifications needed. These are all matters which are interlinked with the welfare of the members. It just cannot be confined to credit unions, medical benefits and similar matters. The definition of proper remuneration includes both pay and other ancillary benefits. People are not only concerned about their level of pay but also about the training they receive. Therefore, it is quite clear education and training are issues that ought to be on the agenda for any representative association.
I hope the Minister will not tell me that somehow the security of the State will be undermined if a Garda or Army representative association can talk about the welfare, health, education, training and housing needs of their members. If the Minister is going to tell me that these will be covered in the regulations I would also like him to tell me why he thinks that matters such as housing, welfare, health, education, training and related issues, "and such other matters as the Minister may specify" should not be included in the legislation? This seems to leave too much power in the hands of the Minister and too little in the legislation. A balance has to be struck. The Minister believes in broadly based regulations but that is a bad idea and not necessarily the best way to draft legislation.
In moving this amendment I wish to point out that this should not be just a body who talks about pay and related issues but a body to represent the interests of members in every area except military discipline and the taking of commands, which we accept in the same way as the Garda accept that they must obey the instructions of their superior officer and act accordingly. I look forward to hearing the Minister's views.
I agree with everything Senator Ryan has said on this matter. Our amendments are closely related. Section 2 (1) is unnecessarily restrictive in that it specifies that the association can also deal with one matter and that is remuneration. Side by side with the question of remuneration comes the question of conditions. Pay and conditions are the necessary combination of activities that any association representing the interests and welfare of members should be dealing with. I believe categorically that these should be spelled out in this section. As Senator Ryan pointed out, housing, welfare, health, education and training are in fact issues which affect people's lives and they too should be mentioned. Pay and conditions, which are traditionally the functions of any representative organisation, are the minimum that should be provided for in section 2 (1). I am rather unhappy with the present wording. The Minister has proposed that it refers only to remuneration and "such other matters" and gratuitously inserts in brackets "if any"——
We deleted that in the Dáil on Report Stage. I know the point the Senator is going to make and I agree with him. It is for that reason we deleted it.
We will take it the point has been made. While I am delighted to note that it has been deleted, this does not take from the substance of the issue we are debating, namely, that the regulations should specify at this point the basic principles under which this association will work. I have been very critical of the Bill in terms of the discretion being given to the Minister to decide first of all, in relation to the regulations, whether an association or associations should be established. We would certainly like to know how many there will be, if there will be more than one, and also something more definite about the nature of that body. The minimum that should be written into this section is a reference not just to remuneration but also to employment and other conditions of service.
I do not see what the Senators are concerned about in relation to this issue. The Minister indicated earlier that the regulations will include all of those matters to which they have referred. As the Senator said earlier on, the Minister is specific on what should be excluded but if one wishes to be specific about what should be included, then one could end up having a multiplicity of things included. This could present a difficulty in relation to the Defence Forces because it could be argued quite simply that because one single issue has not been covered it cannot be discussed. The Bill specifies what may not be discussed or considered by the representative association but the Minister has indicated that he is quite prepared to negotiate on all the other points being made. The amendment would be a limiting factor.
Perhaps the Minister can reassure the House in relation to this matter. The booklet which he sent out specifies pay and related matters, conditions of service other than matters which would affect security personnel, administration, discipline, etc., welfare matters such as credit union, family support, recreational facilities, medical benefits and schemes. I would have thought that everything apart from purely military matters was on the table and could be discussed. This would include pay, conditions, health, education, welfare and pension provisions, safety at work and compensation for accidents. I would have thought that all the matters specified in the amendment were already part and parcel of the section. If the Minister had excluded any specific matter such as education, I would be concerned. We would all be concerned if matters other than military matters were excluded. I hope the Minister can give a categorical assurance that anything related to the general welfare of Army members or their spouses is covered. Some members of the Defence Forces have been tragically killed while on active service at home and abroad and matters such as compensation for widows and their families must be included.
There could be a danger in having the section too narrow. I suppose the phrase "such other matters" can cover everything. If we specify four or five areas we might unwittingly exclude others. I would ask the Minister to give an assurance that everything other than purely military matters can be included in the discussions on the welfare of members of the Defence Forces. It is important that the Minister should be clear on this and should state that the matters covered in the amendments are already included within the scope of the section. There is the danger that if the regulations were too specific they could be interpreted as excluding matters not itemised.
Senator Cosgrave's interpretation is entirely correct. The whole purpose behind the phrase "and such other matters as the Minister may specify in the regulations" is to make it as broad as possible. It provides for a wide framework within which every conceivable welfare matter can be raised. It would extend to matters which could arise in several years' time. It is very inappropriate to include a list which would require definition. The list could be interpreted as being limited. I want this to be limitless and as open ended as possible. It is in the interests of the representatives that it should be phrased as it is.
In my letter of February last covering the proposals by the Army headquarters staff I said that the new arrangements would give members of the force a representative voice on welfare matters such as credit union, family support systems, recreational facilities and medical benefit schemes. I did not include matters which Senators Ryan and Costello have included but they have not included all the matters which I included. We are all trying to reach the same objective, the Senators in their amendments and I in my covering letter. My letter did not comprehend fully the range of welfare services which I would envisage as being incorporated in regulations. If we specify and define certain welfare services the list might be regarded as conclusive, precluding other forms of social welfare. There could be a restrictive interpretation based on precisely the matters specified in the statute. I do not want this. I want to provide for anything and everything that might arise now or in the future. All legitimate welfare matters should be capable of being included in regulations. That is my purpose. My letter of 20 February emphasised this point and gave a list of welfare matters as an example. It is not, however, a comprehensive list. Neither of the two amendments is comprehensive.
The best way to frame the section is by leaving it as wide as possible, using the phrase "and such other matters". The word "remuneration" is defined in section 1 but it would be futile to attempt to define the almost limitless range of other matters which could arise now and in the future. Such an exercise would carry its own dangers. It is much better that this matter be left to the common sense of the representatives. They will meet to devise what is to go into the regulations, but regulations can always be amended and reviewed as time goes on. If they feel that is necessary, it can be done. They will be in the driving seat once the representative bodies are well established with a good secretariat to advise them. All the logic is in favour of leaving the section as it stands. I will put into the regulations what the representatives want. They are the best judges of the welfare matters to be included. They are aware of the problems that may arise in regard to credit union, education, medical benefits and housing. They know what is pertinent and relevant. It is their area and they will be engaging in day-to-day representational activity. The welfare area is appropriate to them rather than to us, as long as we give them the statutory framework within which to operate in conjunction with the authorities. I hope I manifested the goodwill and trust that is there. This is what we are about and I have often gone public in saying it here and in the other House. The men know that is the intention and indeed the Garda representative bodies operate on this basis as well. While agreeing fully with what the Senators are seeking to do, I suggest I am seeking to do the same thing, and more in a better and more flexible manner and in a way that is more appropriate to the particular role of these functioning representative bodies.
Acting Chairman
Is the amendment withdrawn?
It may be, but not yet. Perhaps the Minister could be a bit more explicit. Is he saying that he envisages an association being able to speak and make representations on the issues of housing, welfare, health, education and training listed in my amendment?
Yes.
We were talking in generalities. I accept the difficulty of detailing all these issues but the Minister is making it clear that they can discuss inter alia welfare, health, education and training. Neither my amendment nor Senator Costello's amendment is exclusive in any way because the Minister still has the power to raise other things. What I cannot understand is how, for instance, training can be a matter for the Defence Forces representative association if the section as it stands, which does not refer to training, specifically excludes matters relating to the maintenance, command, organisation and discipline of the Defence Forces. Surely the training that members of the Defence Forces receive is part of their organisation, disciplne and maintenance?
It depends on what is meant by the word "training". That is part of the difficulty. The Senator is making my case now. What does he mean by "training"?
That is precisely why words like this should be included in the Bill. I am not claiming the Minister is misleading us but it is not at all clear that he can introduce regulations to do with training which are consistent with the Bill if he does not include words like "training" into the Bill. The regulations cannot do anything or include anything that is excluded by the legislation. The regulations are subsidiary regulations and are not a way of amending the Bill. No provision is made in the regulations to amend the Act. I cannot see how matters to do with, for instance, training——
It is not a military training course. I am talking about training in the sense of vocational education training courses and training for apprenticeship courses. I am talking about social training. As this is under the whole umbrella of welfare obviously it will not include military training. Does the Senator now see the sort of morass one can get into if one starts to define all of these matters in the Bill?
I am not aware of the morass we could get into and that is why I want it included in the legislation, where it is written down.
That is why I do not want it.
It should be included in the legislation if it is a difficult area. I want to give an example. Military training is not some sort of thing out there on its own; it is the training a person who is recruited into the armed forces receives. There may well be areas of that training which the members of the armed forces believe are inadequate. The gardaí are perfectly free, through their representative association, to comment on the inadequacies of the training they receive and the inadequacies of the equipment that is available for training them. Is an association like the one envisaged here going to have a similar freedom or will it be precluded from doing so by the provisions of the section?
We can discuss that with the members themselves. They will talk about that with us. Training has many manifestations. I was thinking of training in a welfare sense, for example, vocational training, apprenticeships and training for occupations. This area of training is very important under education training. That is precisely what I was thinking of in the welfare context. Military training is a different matter altogether; it is a matter of discipline and command.
This matter should be discussed with the representatives of the men when they are duly elected. They will see the difference quite clearly. These men who are participating in the consultations will see that there are two types of training. This bears out precisely why I want to retain the present wording of the Bill. If ever an argument was made for me, this is it. We are discussing the difference as between military training and welfare and social training. There is an obvious difference between the two.
With regard to the words "such other matters the Minister may specify", I will put into regulation what is suggested to me by the representative bodies and what they want. As Senator Cosgrave said, apart from matters relating to discipline and command everything else that can be considered under the welfare umbrella will literally be on the table.
Acting Chairman
Is Senator Ryan satisfied?
Senator Ryan is rarely satisfied. That is the joy of being in permanent Opposition.
The Senator does not have to tell us.
I only have a responsibility to get re-elected, which seems to be successful, so far anyway.
I am not entirely happy. It is amazing that while the Minister thinks the argument is proving his point I am equally convinced that the argument is proving my point about the inadequacy of the wording of this section leaving whole areas of uncertainty. I do not think a body can represent the interests of its members — I am not talking about issues of national security — if they cannot make representations to public representatives, other bodies and the media which say "our members are getting a lousy training as soldiers". Are they not entitled to say that? That is military training. The Garda representative body can say that their members get lousy training or used to get lousy training. For years the Garda have vigorously, through their representative bodies, demanded higher qualities of training and education for their members. That is Garda training. Is the Minister saying that since military training is excluded in all forms, this association will not be able to make representations to improve its quality? That is one question.
My second question is: will the association be able to talk about matters if the Government decided to close a particular Army barracks? That would cause considerable disruption to members who are transferred to other locations. Is that a military decision or not? If it is, will the association be entitled to speak about it?
That is policy. It is not even military, it is Government policy.
Why are my union entitled to speak about the closure of a school when the Army representative association will not be able to talk about the closure of a barracks? I cannot understand why there should be a difference. Even though these are policy matters my union are perfectly free to speak, make representations and lobby on behalf of their members if somebody wants to close a school. Why can the representative association of the Defence Forces not do the same thing for the Defence Forces? I thought that everything was on the table. If that sort of a simple matter is not on the table then a huge range of matters is not on the table.
I am simply saying that as a matter of policy, it does not get us any closer to an answer. It is not a matter of national security or even a matter of military discipline. It is an organisational matter decided by the Government. If, for instance, civilian employees in the Department of Defence who are affected by a decision like that are free to make representations to their union about the inconvenience caused by it, why will the Army representative association not be able to make similar representations? That is the sort of issue I should like to tease out.
I am quite prepared to accept, as the Minister said, that much of this is best done first by negotiations and then by regulations so that as negotiations are ongoing from year to year if matters do not work out too well they can be amended by agreement. I am not disputing that. We should put the principle of what is involved here clearly on the record. The section as it stands is inadequate.
I want to refer to three instances which are alleged to occur from time to time in all large organisations. The first relates to an abuse of position by a superior in, say, the vocational education sector. My union are entitled to make representations on my behalf in that case. Would an Army association be entitled to make representations to a superior officer if a person felt that he or she was a victim of abuse in such a situation? Secondly, there is the allegation from time to time in all large organisations, namely, victimisation of individuals which is related to the first instance. Thirdly, by way of an interesting example but one that has all sorts of real possibilities, there is the question of sexual harrassment. Would issues like sexual harrassment within the armed forces be part of the brief of a representative association, or would there still have to be things that would be dealt with through the Army command structure? In one case we are talking about a trade union having the right to represent the interests of its members; in the other case we are talking about a limited body which can talk about a certain range of things. I would like to know what principles are involved. That is where this section should be elaborated on. I will not make a big issue about the wording in my amendment but there is a fundamental question about what is and is not included in the brief of this association.
Despite everything the Minister has said, I must say that I am fully in agreement with the remarks made by Senator Ryan in relation to the need to elaborate and spell out in greater detail. That is highly desirable. I would like to ask a specific question of the Minister. In relation to his remarks that he was being generous and that it was his intention to make the capacity for regulation virtually limitless, why did he consider it necessary to specify one area that the association would be concerned with, namely, the area of remuneration?
That is the important one. It is self evident.
That word has been bandied about for a long time in relation to the Defence Forces. Everything is self evident until there is a bit of pressure put on and then it becomes somewhat different. I am concerned about this aspect. I have no doubt that the Minister has the very best of intentions in relation to these regulations but in relation to what a representative body should be doing in representing its members there is that unwillingness to accept a single amendment, and I am not talking about the details or about spelling out every single area. I am talking about the recognised basic function of a representative body which is negotiating on remuneration and conditions, and I still cannot accept that the two words cannot at least be put there and cannot be put in terms of my amendment without getting into any morass of definition or of any other problem.
What I am worried about is that section 2 (1) limits the area to simply remuneration and everything else is left to regulation after the association is set up. Then it is taken in the context of trade unionism. I would regard the wording of sections 3, 4, 5 and 6 as an attack on trade unionism. Section 7 states that every regulation made under the Act shall be laid before each House soon afterwards. In other words, the regulations are made first. What we have here is a sop to the Defence Forces. In other words, the Minister is selling enabling legislation with the carrot of dealing with one issue, the issue which precipitated most of this discussion and this Bill before us, namely, the demand for better pay. That is why the spouses were marching and that is what brought us into the Seanad and the Dáil these few days. Then everything else is a pig in a poke. Everything is left hanging. We do not know what will happen. This Bill is so carefully couched that we are passing nothing but legislation enabling the setting up of an association that deals with remuneration. I am not at all questioning the Minister's good intentions. I am talking about the language that is being used in this Bill and the whole thrust of the Bill. It is couched in a negative rather than a positive fashion. What is being provided for is not being given generously but grudgingly. Despite anything the Minister has said, I cannot see any reason for not accepting the amendment that I have put down here which does not go into any great detail but does specify both pay and conditions. That is the minimum the Minister can give. A step towards the maximum would be the position proposed in Senator Ryan's amendment.
All I can do is restate what has already been said. All that is specific is what is excluded and everything else is at issue. If we accept Senator Costello's proposals to insert "employment and other conditions of service" do we exclude then what Senator Ryan is saying, "welfare, health and education, training and related issues"?
It is not specified but it is included.
An Leas-Chathaoirleach
The Chair would appreciate if all remarks were addressed in this direction.
The Senator asked me a question.
Those are the issues the Minister mentioned in his letter and there are numerous other areas that I could list and which every other Senator in the House could list. Where does one draw the line? It is unfair of Senator Costello to suggest that this legislation is a sop to the Defence Forces, in view of the way the Minister has handled this issue. He has been very positive and has been at great pains on every occasion to take the views of everybody into consideration. All I can do is repeat that everything is on the table here with the exception of what is specified in the Bill.
In regard to the issue that Senator Ryan spoke about in relation to training, it would be inherent in section (2) that the maintenance, command, constitution, organisation and discipline of the Defence Forces would include military training. What is open for consideration and negotiation relates to social training in respect of VEC work, apprentice work and all that type of thing. That is recognisable. I would ask the Senators to recognise this legislation and not to have this attitude that there is some sort of underhand operation going on to exclude all of these things. In fact the Bill is providing that they should be included in negotiations with the different organisations.
I am not putting forward this Bill for a bit of sport, as it were. I am seriously intent on it. The Gleeson Commission has been established and they will be dealing with remuneration and related matters. They will come up with a report in June. There is a question that a plethora of representative bodies might be established calling themselves this and that but with no power, legislative function or authority, no conciliation and arbitration scheme and no statutory definition on protection.
I decided to bring forward this Bill side by side with the Gleeson Commission and their consideration of remuneration and related matters. I believe that it is necessary for the Defence Forces to have such representative bodies and I want to protect them by giving them a strong association. That is the purpose of the whole of section (2), to avoid having a multiplicity of such bodies debating against each other and devouring each other. I want to beef them up with a proper secretariat, a proper range of matters that they can discuss, a capacity to raise funds and so on. I believe in this. I am trying to strengthen it and to give it as wide a framework as possible into which they will have a major input. That is the whole purpose of the exercise. Otherwise it would be just lunacy for me to be here passing the measure at all.
There is no reason for this measure. This Bill means what I say it means. I appreciate the bona fides of Senators Costello and Ryan in this matter, but I would like them to bring a little reality into what we are trying to do.
We are on the way to setting up for the first time since the formation of the State representative bodies within our Defence Forces. Discussions were going on the day before yesterday, yesterday and today in regard to the elections. All this is taking place currently and Defence Force personnel are involved. They want to see an independent association or associations. As I said, two associations will probably emerge, one for officers and one for the NCOs and men. They want to see this work.
Coming back to these amendments and the section to which they relate, the best possible way they can work is if the mandate in the non-remuneration area is as wide as possible so that the elected representatives of the members of the Defence Forces will have the maximum input. I see them coming in strong on this matter. We have defined remuneration. We know what that means, but the whole range of issues that are closely related to the welfare of the men — conditions of employment, welfare matters and so on will give real interest, involvement and meaning to the members of the Defence Forces for the first time ever. They in particular will have a maximum input into this area, allied to the process of conciliation and arbitration. That means that for the first time they will have a real say in their standing in the Defence Forces.
It is a tremendous opportunity for good, and it is meant to be. It is intended that this enabling legislation will be as flexible as possible so that the representatives of the men will have the maximum input. I am satisfied as to the calibre of the people who are interested in establishing these representative bodies, and their good intentions. In this Bill I am making an article of faith in their purpose, and their bona fides. This is an enabling Bill which will allow the associations when established to make the maximum contribution to the drawing up of the appropriate regulations. They will be flexible regulations which can be reviewed from time to time to see how they work, how they can be improved, amended, reviewed and so on. That is the spirit of the matter.
It is a question of changing an area of mistrust into one of trust. That is what I am talking about. There is no nonsense about this. We are serious about this and we should keep our minds on that track. Anything else is only diverting us down side alleys away from the main thrust of this Bill, which is to establish permanent representative bodies which will work and to act for the men in a cohesive manner and ensure they will be protected by the law against any other bodies which may seek to interfere with or meddle in their affairs. They and they alone will be the judges of what is best for themselves and for the men. That is what we want to see established here. The whole purpose of this legislation. We in the Oireachtas have the job of setting up the framework within which we can allow that process of consultation to proceed and to evolve in the months and years ahead. That is why I think these and other amendments, however well intentioned, are restrictive and can only cause further trouble and lead one from the main purpose of the Bill as a whole.
I do not intend to drag out the discussion. However, in relation to what Senator McKenna said, at no stage did I question the good intentions or bona fides of the Minister. Perhaps I can take this opportunity to welcome the Minister to the House and congratulate him on being in such sparkling form.
I am concerned about the Bill and improving it. The Minister stated that the Bill means what he says it means. I am not prepared to accept that. The Bill means what the Bill says, and long after the Minister, I and all the other Senators are gone, the Bill will still be there and it is the wording of the Bill that matters. I have been concerned about how this wording has been couched, what it means in substance in relation to what is being granted and what is being left out. That is why I have been anxious to ensure that there be inserted in it the standard conditions that are applicable to a representative body when they are established. I am talking not about specific, individual details; I am talking about principles. That is why I think the terms of the amendment I have put forward here are very relevant and would be very useful if the amendment were accepted.
In deference to the Minister's concern let me say that Senator Costello's amendment is probably better than my own so I withdraw amendment No. 1.
I move amendment No. 2:
In page 2, line 27, after "remuneration" to insert "employment and other conditions of service".
Votáil.
The question is "That the amendment be made". On that question a division has been challenged. Will Senators claiming this division please rise?
More than five Senators stood.
The division will now proceed.
Tá
- Costello, Joe.
- Ross, Shane P.N.
- Ryan, Brendan.
- Upton, Pat.
Níl
- Bennett, Olga.
- Bohan, Eddie.
- Byrne, Seán.
- Cassidy, Donie.
- Dardis, John.
- Fallon, Seán.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Foley, Denis.
- Kiely, Rory.
- McGowan, Paddy.
- McKenna, Tony.
- Mooney, Paschal.
- Mullooly, Brian.
- O'Donovan, Denis A.
- O'Keeffe, Batt.
- Ormonde, Donal.
- Ryan, Eoin David.
- Wright, G.V.
Amendments Nos. 3 and 4 are related and may be discussed together.
I move amendment No. 3:
In page 2, between lines 36 and 37, to delete "of and shall not, without, the consent of the Minister" and substitute "but may".
Section 2 (3) reads:
An association shall be independent of and shall not, without the consent of the Minister, be associated with or affiliated to any trade union or any other body.
I am astonished that any independent organisation should depend — I say this without being offensive — on the whim of a Minister as to whether it would be allowed to have an association with any other body. There is a contradiction between describing a body as independent and then saying that you cannot actually associate with, whatever about being affiliated to, any other organisation without the permission of the Minister. I know there are fairly far fetched possibilities that could be thought up where the association might decide to become an affiliate of various campaigns that might not be consistent with the operations of the Defence Forces, or for example, it might decide to affiliate to the campaign for nuclear disarmament, but I have a considerable regard for the good sense of people in any organisation, particularly the members of the Defence Forces. I know from my discussions with one of their chief spokesmen, a friend of long standing — the man may be the subject of disciplinary procedures because he dared to talk to the media and exercise his constitutional rights — and from talking to others that PDFORRA are very clear about their obligations under the law and under the Constitution. To suggest that they could only affiliate with organisations of which the Minister approved is to undermine immediately their independence. If people accept the obligation of membership of the Defence Forces, we have to accept that they accept and understand what they are doing. They take an oath of loyalty to the Constitution; they accept the responsibilities thereof and my own view is that they should be trusted to decide where or to whom they will affiliate.
The first thing my amendment proposes effectively is to delete the provision that the Minister's consent would be required to allow them to affiliate to any other organisation. The second amendment is to ensure, in case anybody is worried, that the affiliation shall only be to bodies which are somehow similar in intent to a trade union. This may be too conservative on my part, but I want to be reasonable. I think we should leave it to an organisation like this, as we should leave it to the Garda representative association — and we do not — to decide to whom they will affiliate. I can see absolutely no reason that an association representing the Defence Forces should not affiliate, for instance, to the Irish Congress of Trade Unions. There is an implication in the refusal to allow them to affiliate which suggests that somehow there is something wrong with trade unionism, something inconsistent between membership of a trade union and work within the security services. There is a whiff of Margaret Thatcher and GCHQ, Cheltenham about the apparent unwillingness to consider the idea of the affiliation of a representative association defined under section 2 (1) in fairly cautious terms — we are not going back over all that old ground at this stage — and whose functions, other than those contained in subsection (1), will actually be defined by regulation by the Minister. Though I accept fully the bona fides of the Minister that there will be intensive and serious discussions with the members of the Defence Forces to agree on what the other functions will be, nevertheless, the Minister effectively will be able to determine ultimately what issues beyond remuneration the representative associations can talk about.
If he can do that and if he has written into the legislation so many exclusions, why in Heaven's name does he have to put yet more exclusions in subsection (3). What I am suggesting, quite seriously, is that the association shall be independent but may be associated with or affiliated to any trade union or other similar body. Specifically what I have in mind is that if the members of the association feel it is in their interest to affiliate to the Irish Congress of Trade Unions, they should be entitled to do so.
I would like fairly explicit reasons, not based on the fact that other countries do not allow it or that this is new, why two parts of our security forces, i.e. the Garda and in this case the Army, will not be allowed to affiliate to the Irish Congress of Trade Unions when the Prison Officers' Association, the other arm of the security forces, is allowed to affiliate to the Irish Congress of Trade Unions. There is an implied sense of something slightly inappropriate about people in very serious responsible positions within the security services being involved with the trade union movement. I know it is not intended to be offensive, but, nevertheless, I think it is offensive to trade unions and it has a whiff of GCHQ about it. I suggest that the Minister could usefully improve this Bill by allowing any association which is set up to be independent as he intends but also to be able to decide with whom and to whom it should be associated or affiliated without his interference, and if the association choose to go wild, the Minister is then in a position to bring in legislation to deal with this.
Let us remember that if this association were to be so irresponsible as to attempt to associate with an unacceptable organisation, then it would be such an irresponsible organisation that a Minister would probably have to bring in legislation to deal with it anyway, and if they do get the notion into their heads that they want to associate with some organisation, and the Minister says no, I do not believe that would be the end of it. There would be yet another unpleasant confrontation between the members of the Defence Forces and successive Governments either directly or via a spouses association and we would be back to the same old problems. The real and only solution is to trust the members of such an association to act in a responsible fashion and to get away from the paternalistic idea that somehow they cannot be trusted and that they must rely on the Minister to decide by his consent or by withholding his consent what is good for them.
I wish to put the matter into perspective. I know this argument has been rejected already in connection with the previous amendment, but I want to emphasise that this is an enabling Bill to facilitate the members of the Defence Forces to organise themselves into representative bodies on an independent basis and to consider various matters, which I have already outlined at some length. They are almost 100 per cent on all fours with the objectives we propose. At the moment they are working out details of the election and will subsequently be very involved in working out the structures which will be written into the regulations.
The draft PDFORRA constitution, which I have with me, has already been submitted by them. This is their own recommendation and their major principle is that they shall not be aligned to any other organisation. They do not want to be aligned to any other organisation whatsoever. They are very strong on the independent principle. That principle also operates with regard to the Garda Sochána. Any such affiliation, as far as the Garda Síochána are concerned, is done with the consent of the Minister for Justice. There are all sorts of affiliations that may be relevant. For instance, there is an Irish Conference of Professional and Services Association with which engineers may be associated on non-pay matters. There are all sorts of trade union and professional bodies or institutes concerned with non-pay matters and they can be associated with them with the consent of the Minister for Defence. Obviously consent would be forthcoming, as was the case on the part of the Minister for Justice in regard to the Garda Síochána, in any case where no conflict arises and I would not envisage a conflict arising. I would envisage that any affiliations or associations sought by the representative bodies would be legitimate affiliations or associations that would preserve their right, as the one cohesive, independent body, to represent the Defence Forces. They have no interest in attachments to other bodies. If the question of association or affiliation arises from time to time a case could be made for it and if the Minister for Defence thinks the case is sufficient he may, under the subsection as it now stands, consent to such an association or affiliation. Otherwise the representative bodies will be, as they themselves require, one independent body.
The main thrust of what they seek is to be an independent body and the main thrust of the conciliation and arbitration provision is to give them their own conciliation and arbitration scheme. The Defence Forces are recognised, under the Constitution, as being in a particular category. They are particularly amenable, as the only arms bearing force in the State, to the Oireachtas, the Parliament of the State, and to the Minister for Defence elected by that Parliament. There is a basic constitutional niche into which they fit and they recognise that. There is nobody more conscious of their responsibility in this respect than the members of the Defence Forces. It is to these people we are now giving a lift in this legislation by enabling them to form their associations to represent their interests. They are very well aware of what their interests are and what they should be concerned about. It is not matters of command and discipline or affiliation with other groups, although that may arise in the future; the main thrust of what they want is an independent body or bodies to represent their interests in the areas of remuneration, conditions of service and welfare and I propose to give them the widest possible framework within which to operate in that respect. In future years if they wish to be affiliated or associated with any other body, the Minister for Defence can consent to that.
That is obviously a danger — I hope it will not arise — that associating or affiliating with some other body, either internal or external, may be contrary to national policy, security or the interests of the State. The saver is there in the section, "with the consent of the Minister", just as it is there in the case of the Garda representative bodies, in that case with the consent of the Minister for Justice. There is nothing untoward about that. The Minister, on behalf of the Oireachtas, should have an overall governing interest in who the representative body or bodies of the State's Defence Forces are affiliated to or associated with and I offer no apology for that. It is basically good administration under the law and the Constitution. It recognises the responsibility that whoever is here as Minister for Defence must carry on behalf of the State.
In all the discussions that have taken place — late though these discussions may have been, as some of the criticisms seem to imply — there has not been a word about this matter in so far as PDFORRA or any other interested bodies of the Army are concerned. Their main interest is to have independent bodies established. The question of affiliation or association may arise but it is very much a fringe matter. If it does arise and if it is something with which these bodies can be legitimately associated — I can see plenty of examples of legitimate associations and affiliations — that would be readily granted. That assurance has been given. It is no harm, in the interest of security and in the national interest, to ensure that the Minister of the day has this residual control.
If the Senator's amendment is carried, an impromptu decision could be taken overnight without any reference to the Minister or the Government of the day. It is to preclude something like that happening or any conflict arising out of something like that happening that this saver is included. That saving clause is written into the Bill in the overall national interest and I would defend it to the end of the day. The Oireachtas has certain responsibilities and it is surely a minimal responsibility to ensure, if the representative bodies of the armed forces of this State have affiliations and associations, that we have a say in who they are affiliating to or associating with. As obtains in practically all cases, consent can be given in this regard but it is important to have a saver in case some particular association or affiliation may be against the national interest.
The Defence Forces are concerned primarily with the execution of national policy. Mention was made already about the policy of neutrality and that is just one example. There may be some international body of like-minded members of defence forces attached to a country that is strongly concerned with military aggression of one kind or other, or some military policy that runs entirely counter to our military policy. It would surely be very wrong for our Defence Forces to be affiliated with the Defence Forces of a power that has a totally different policy or a different military attitude to neutrality. That is just an example that occurs to me but in time there might be other examples. That is all this provision is designed to cover.
I was interested to hear the Minister's mention of the Irish Conference of Professional and Services Association.
As an example.
I am not trying to be smart. The interesting thing is that at least one of the Garda organisations is affiliated to the Irish Conference of Professional and Services Association; I think it is the Association of Garda Sergeants and Inspectors.
That is what I said.
I cannot understand why they can be affiliated to the Conference of Professional and Services Association and not be affiliated to the Irish Congress of Trade Unions. It would be interesting if the Minister said that in principle he agrees that they could be affiliated to the Irish Congress of Trade Unions.
Without going back too much into history, when PDFORRA were set up the political climate suggested that no representative body was practical or possible. They had quite a clear and definite objective which was to get one to deal with what was the immediate issue, and perfectly justifiably so, the appallingly low pay of many members of the Defence Forces. That was a perfectly reasonable view. That the remuneration is the primary issue is reasonable but that is not the end of the issue. The Defence Forces should be able to move further into other areas and make decisions for themselves. It is a question of whether our Defence Forces are trustworthy. I think, as does the Minister, and probably with less reservations than I have, that they are trustworthy and that they take their responsibilities extremely seriously. There is a contradiction here. If, as I believe, the Defence Forces take their position under the Constitution and the law very seriously, they can be trusted not to get themselves in areas of serious conflict.
I will come back to the international affiliation. I have a separate amendment down on that matter and we can talk about it later. I want to point out to the Minister that what we are talking about here is the association. Any of these dealings with professional bodies would be on an individual membership basis and we can talk about that again. We are talking here simply about the association and their right to affiliate. I am intrigued that, for instance, in both the Department of Justice and the Department of Defence there are civil servants who have access to highly sensitive information to do with the security of the State but who are free to be members of trade unions and those unions in turn are free to affiliate with the Irish Congress of Trade Unions without the permission of either Minister. The sort of information those people have at their disposal is very sensitive. The same is the case with many members of the Prison Officers Association. They would know a lot about the plans of various branches of the prisons regarding any activity within the prison, either an attempted break-out or any other activity. However, they can be trusted to be affiliated to the ICTU and not to abuse their knowledge when they act as members of their union. I cannot understand why the Defence Forces have to be treated differently.
Let us remind ourselves that the Garda, because of the sorry state our country is in, use firearms, as distinct from carrying them, more frequently in positions of combat than members of the Defence Forces. That is a regrettable and unfortunate position for which the Garda are not in any way responsible. While we allow the Garda to have a certain freedom of membership, we do not allow them to affiliate to the ICTU. We are making too much out of the military aspect of this. We are talking about an association to represent the interests of members with, as the Minister said, a fairly broadly based remit.
We should permit people to make their own decisions about such matters and trust them. If they show signs of getting involved in matters we do not want them to, a gentle reminder from the Government that that was bringing a potential conflict to the surface which might well necessitate legislation if it continued could deal with the matter. I do not like paternalistic attitudes which believe we know better than the members in the Defence Forces what they should or should not do.
The Senator was at pains earlier to tell us of the type of organisation that represents the Garda Síochána and he wanted to know why we did not permit a similar organisation to represent the members of the Defence Forces. Now that the Minister has included a provision in the Bill to permit members of the Defence Forces to affiliate, the Senator is not satisfied. On the one hand the Senator argued that the representatives of Garda sergeants have something that members of the Defence Forces will not have but when that was rectified he was not satisfied. We must remember that trade unions affiliate to international organisations. On Second Stage the Senator referred to our stance in relation to neutrality and he said he was satisfied that we never did, and he hoped we never would, become associated with any military alliance.
There is an inherent danger in permitting representatives of the Defence Forces to affiliate to international organisations. They are in a unique position and we must acknowledge that. If we allow them the freedom to affiliate with a trade union there is the possibility that internationally they may be affiliated to an alliance that would bring our neutrality into question. If that occurred there would be uproar here and we would be asked why the Bill did not take cognisance of that possibility. It would be too late in the day to send a reminder to those associations that they should be careful when affiliating with international organisations. It is important that the Minister should have a say in what associations the representatives of the Defence Forces are affiliated to.
With the agreement of the House we will discuss amendment No. 6, which is similar to amendments Nos. 3 and 4 now. Is that agreed? Agreed.
My amendment No. 6 states:
In page 3, between lines 11 and 12, to insert a new subsection as follows:
"(6) An association may affiliate to and participate in the workings of international organisations representing associations and organisations with similar and/or related purposes."
In the light of the remarks by the Minister I should like to sort out what is involved in amendment No. 6. To my knowledge PDFORRA are affiliated to an international organisation which attempts to represent at international level the bodies that represent the defence forces in many of the countries affiliated to the Council of Europe. They have been accepted as members and are anxious to continue as members. Can the Minister make it clear to me that any association will be allowed, even if he does not accept my amendment, to affiliate to appropriate international organisations similar to themselves? PDFORRA are affiliated to such an international body. They have received considerable support, moral and otherwise, from the international organisation. I would like it to be made clear that the new association will be permitted to affiliate to international bodies. I would encourage them to have active contacts with other organisations.
I am aware that the organisation they would be involved with would have membership from countries that are within NATO and outside. Indeed, it is quite possible because of the way proposals are being prepared to extend membership of the Council of Europe, that within a few years we will have countries that are still, at least theoretically, within the ambit of the Warsaw Pact. Both pacts have outlived their usefulness and should be dissolved quickly. However, both exist and are liable to continue for some time. In the context of my amendment No. 6 and of section 2 (3) I should like to ask the Minister to make it clear that an association set up under the Bill will be allowed to affiliate to international organisations.
With the consent of the Minister, yes.
Is the Minister as of now disposed to give his consent to them being involved with an international organisation?
This is not law yet and I have not got down to examining the credentials of EUROMIL. This is a matter that would be brought to my notice in due course by the representative body or bodies. The Senator should hasten slowly. I do not want to jump into that just yet.
I am sorry if I landed this on the Minister unexpectedly but I did not know I would be asked to take amendment No. 6 with the other amendments.
It is correct to say that I will have to give a lot of thought to this. It is encompassed in the subsection.
I accept that but I am disappointed the Minister is less than forthcoming about whether he is prepared to consider my suggestion or not.
Of course I will consider it.
Is the Minister prepared to consider it favourably?
I will not say whether I will consider it favourably or not but I will consider the matter. The whole purpose of the section is to enable me to consider precisely what the Senator is referring to.
The Minister has been very good at quoting PDFORRA and quoting me when it suited his argument during the afternoon. He also said I was looking for concessions for them that they did not want. On the basis of their operation up to now PDFORRA clearly want the right to affiliate to EUROMIL. If the Minister is prepared to be reasonable, he ought to indicate in principle that he will look favourably at the continuing affiliation of them with——
I am not on a trick television interview programme. The Senator is involved in speculation. We do not have a representative body or bodies. We must prepare regulations and establish representative bodies after an election. After that I will consider the bodies they want to be associated with or affiliated to.
I appreciate that in trying to pin down the Minister, of all people in Irish politics, I would fail like half of the best interviewers in the country. I am disappointed the Minister cannot say that he is prepared to look favourably at the question of affiliation to an international organisation.
I will look at it.
He has not stated that he will look favourably at it, rather that he will consider it.
If Senator McKenna can give me an explicit interpretation of what the present Minister is saying on this issue I will be grateful.
It is very simple——
A serious problem could arise here.
Not really.
I am prepared to give the Minister credit as I have already done a few times today for getting it this far. It would be a great pity if some less than adequate reason were to be used to prevent them making contact——
I will consider it.
Has the Minister any views on it yet?
I am not going to prejudge the result of my consideration.
I would like to state that it could be beneficial to allow members of the Defence Forces link up and consult with the members of the defence forces in other countries. Obviously they would all be bound by State security and military secrets and so on. However, dialogue and discussion at a conference or meeting could prove to be of benefit. I ask the Minister to investigate this matter to see what links there are between the members of defence forces in other countries. I presume such links have not led to wars. Perhaps in that spirit the Minister will give the amendment favourable consideration.
I will consider that aspect as well as every other aspect. I do not rule out the possibility of affiliation. The safeguard of my consent has been included because of the security aspect mentioned.
May I make one last attempt? The Minister is not ruling out affiliation to an international organisation——
No, I thought I had made that clear.
I move amendment No. 5:
In page 3, subsection (4), line 4, after "members" to add "of the Defence Forces alone."
There is an important issue involved here that deserves our careful consideration. The Minister in referring to professional bodies and such organisations talked about engineers and so forth. Section 2 (3) refers to the association, while subsection (4) refers to individuals. Subsection (4) as it stands says, and I quote:
A member shall not become or be a member of a trade union, or any other body (other than an association), which seeks to influence or otherwise be concerned with the remuneration or other conditions of service of members.
The reference to remuneration does not present me with many problems, although I will explain where one may well arise, but conditions of service could have to do, among other things, with professional standards and also with development of the skills for instance, of craft workers in the Army apprentice school who, although members of the Defence Forces, might well have good reason to remain in contact with or retain membership of a craft union.
Let me give a couple of examples. I am thinking here of the Irish Medical Organisation which is both a professional body concerned with medicine, and a trade union, representing doctors in many cases; it will do both. It is also a centre of professional learning. There are other more specific examples, such as the Royal College of Psychiatrists, a professional body, who endeavours to make representations about the manner in which members of that profession carry out their business. It is also concerned with the conditions under which people work.
A good case could be made for allowing members of the Permanent Defence Forces Representative Association to be members of craft unions and professional bodies. The Institution of Engineers of Ireland is one classic example. It devotes an enormous amount of effort to work of a professional nature involving, among other things, the continuing education and updating of the skills and knowledge of their members. According to its constitution it is also a trade union concerned about the remuneration and conditions of service of engineers. Another example is the Irish Dental Union, but there could be many others who seek to improve skills while also working as a trade union.
While I fully accept we do not want fragmentation or the setting up of a number of associations or unions within the Defence Forces to represent them on remuneration or other issues it seems that the present wording of subsection (4) precludes membership of any professional organisation with a trade union element. If this is so, doctors in the Defence Forces will be precluded from taking out membership of the IMO, engineers from taking out membership of the IEI or of the various other professional institutions which represent engineers. Craftsmen would also be precluded from continuing membership of craft unions where there may well be discussions about standards, different ways of approaching things and changes in the skill base. The amendment I have moved suggests that this prohibition should only apply to a trade union or any other body who seek to influence or are otherwise concerned with the remuneration or other conditions of service of members of the Defence Forces alone, in other words, any body or organisation set up to represent only the Defence Forces.
There is a serious question to be answered here and that is whether what seems to be a reasonable position is actually going to inhibit the professional activity of professional members of the Defence Forces. A small amendment could deal with the issue. While I do not want to get involved in an argument with the Minister, the subsection, as it stands, could seriously inhibit members of the Defence Forces being members of various professional bodies. Subsection (5) does not give a way out. It states that the Minister may determine any question which arises as to whether any trade union or any other body is a trade union or body to which subsection (4) of the section applies. The bodies I am talking about are trade unions concerned with the remuneration and conditions of service of their members. It would be standing the truth on its head to say that the IMO or IEI are not trade unions as defined by subsection (4). That is manifestly one of the jobs they had and it would be much better to rewrite this part of the Bill to make it clear that members of the Defence Forces can be members of professional bodies or craft unions. It could be done by a simple amendment. This is an important point on which I would like to hear the Minister's view.
When members of the Defence Forces are encouraged to acquire skills and professions they should be allowed to remain in touch with their professional or craft body and keep themselves abreast of any changes. The Army would be the beneficiary of such contact. It can only be to the benefit of the Army if greater opportunities are given to officers and NCOs to pursue various courses of study. Membership of various professional bodies should not conflict with the terms of this Bill. Such membership should not involve military matters. Subsection (4) is slightly ambiguous and I am not sure if changes may be required. Perhaps the Minister will clarify that membership of, for example, the Institute of Engineers, is not precluded under the Bill.
I can reassure Senators Cosgrave and Ryan that membership of professional bodies is not an issue. Of course members of the Defence Forces can remain members of such bodies or institutes and avail of their non-pay facilities. My concern is that when it comes to negotiations regarding pay and conditions there should be only one negotiating body, namely, a body established under the terms of this Bill. Such a body will take into account in the discussions and negotiations, and ultimately at conciliation and arbitration, the rates of pay and conditions of their professional counterparts outside the military forces and may take their advice on how to proceed.
All I am seeking to ensure is that such outside bodies are not involved with the remuneration and conditions of service which are being determined by the representative body and are not also acting as spokesmen for the Defence Forces. The representative body of the Defence Forces will take into account the views of bodies to which their members are affiliated. In matters of pay and conditions there must be one body speaking for the people concerned, that is, one of the bodies established under this legislation. It makes sense that we should not have separate claims being pursued by separate bodies in regard to one issue.
Doctors within the Army are members of the medical association and by reason of their membership they improve their medical knowledge. They also know the rates of pay obtaining outside the Defence Forces and relate such rates to those obtaining within the forces. They can make up their minds to push for certain improvements through their representative bodies under the system to be established as a result of this Bill; there must not be another claim being pursued by the body to which they are attached outside the Defence Forces. I am seeking to clarify that there will be one body dealing with pay and conditions within the Defence Forces, but that body can take into account the association of their members with outside bodies. Such outside bodies will not carry on parallel negotiations. The Minister can determine any question that arises.
There is not a dispute between the Minister and me about what he wants to do, although other Members might have a disagreement. I have no problem about the principle involved here. The difficulty is that many of these bodies will claim the right to talk about these matters. I have seen comments in medical journals to which I have access about the remuneration and conditions of service of officers with professional qualifications within the Defence Forces.
The section refers to a trade union or any other body which seeks to influence or otherwise be concerned with remuneration. It does not refer simply to bodies which want to negotiate. Either the law will be stood on its head by bodies, who have hitherto seen themselves as entitled to seek to influence conditions of service, being exempted from the terms of this legislation or being told that members of the Defence Forces can only be members of their association on condition that the association never again speak in public about conditions of service in any way which could be seen to influence or otherwise be concerned with remuneration. I have no problem with the principle contained here, but the practice has been that certain professional bodies have claimed the right to attempt to influence public opinion about remuneration or conditions. What will happen now if members of this association are members of those bodies? Will they have to persuade the association to be quiet? Otherwise the Minister can say the IMO is not such a body but the truth is that if they continue as they have been, they will act as if they were. That is the first question. Secondly, it would be improper to make a distinction between professional organisations, such as that, and say to skilled craftsmen within the Defence Forces that the white collar professionals can join professional associations but members of the Defence Forces are precluded from joining craft unions which would discuss matters dealing with the various areas of the trade which, for instance, influence the Department of Education curricula. The craft unions negotiate with both the Department of Education and FÁS about the training of apprentices. That is a professional interest of the member and it has to do with standards.
It would be wrong to allow doctors and engineers to become members of professional associations in order to ensure that they were in touch with their own profession and tell craftsmen who are members of the Defence Forces that they could not be members of craft unions in order to keep in touch with what is happening in their own skill areas. If both of those are possible then which union will not be recognised? I still think there is a case to be made for an amendment here. I want to be reasonable and I am not necessarily saying it is my amendment. Either we will have logic stood on its head by a whole raft of trade unions and professional organisations being said by the Minister that they are not a trade union or any other body as defined by subsection (4) or else we will have serious problems down the line.
An amendment to this section could be drafted to do precisely what the Minister and I are agreed should be done, ensure that on the issue of remuneration only one body shall be entitled to claim the right to negotiate. I suggest to the Minister that the words "any other body which seeks to negotiate" would be one possibility. He has better draftspeople at his disposal than I have but as it stands there is a potential either for serious conflict between the Minister and various professionals and craft organisations or for having to stand the law on its head by giving a carte blanche to a whole range of organisations to say that they are not — what they manifestly are — trade unions.
It is to meet the latter difficulty that I have inserted subsection (5) which states that:
The Minister shall determine any question that arises as to whether any trade union or any other body is a trade union or body to which subsection (4) of this section applies.
That is the subsection that is concerned with the remuneration or conditions of service. The Senator is postulating the situation that applied up to now where there were no such representative bodies within the military forces. Now we will have these representative bodies so we are into a new ballgame as it were. In that new situation they will carry out the negotiations. They will be concerned about conciliation and arbitration and so on and will be representing the men and/or officers. They will be associated with other fringe associations or bodies for all sorts of other purposes, for example, training and FÁS or any one of a number of other professional bodies with advice to give and so on. I see nothing wrong with that so long as those other bodies do not get involved in actual negotiations. Up to now they have become so involved. Now all this will change because there will be a representative association of all the personnel who will carry the can on behalf of all the members, professional, trades, craftsmen and others and who will, of course, take advice from outside. In the normal course of events they can do that because there has to be some parity between rates and conditions inside and outside the Defence Forces.
The Minister is the determining person in the case of any conflict that may arise as to whether any trade union or any other body is a trade union or body to which subsection (4) applies. Subsection (4) relates to the member not becoming a member of any trade union or any other body which is concerned with remuneration or any other condition of service. The determination of any such issue will reside with the Minister. The demarcation line cannot be any more straightforward than that. I agree that what the Senator has postulated could arise from time to time and that somebody must adjudicate on it. The subsection says that the Minister shall adjudicate on that aspect. I do not see how it can be any plainer than that.
The crucial clause in this dispute is the phrase in subsection (4), "which seeks to influence or otherwise be concerned with". The phrase "which seeks to influence" is not a negotiating phrase. I would like to have a dictionary with me because we could go through it. The Minister is probably grateful that I do not. The other phrase "or otherwise be concerned with" is a sweeping phrase. That phrase does not mean negotiating and is nowhere near negotiating. It is almost expressing an opinion that doctors who are members of the Defence Forces are under paid or are not given adequate inservice training. What we are precluding is membership of any other body which seeks to influence or otherwise be concerned with the conditions of service of members. I can see how the Minister could conveniently interpret that so that the bodies we are talking about are interpreted as being acceptable such as the IMO or craft unions but I cannot see how that interpretation would be consistent with the legislation.
I put a possibility to the Minister that this representative association — one or other of them — may feel that some of these professional bodies are interfering with their exclusive right to negotiate on behalf of members and would then seek a judicial review to have the Minister's decision that these organisations were acceptable overturned by the courts. We could then be in a mess. There is a problem there because I am not sure that when the legislation was being drafted the two roles of many professional bodies were clearly appreciated. The two roles are the cause of the problem. For example, I could be a member of the Institute of Chemical Engineers and of the TUI and those two bodies would claim the right to negotiate on behalf of engineers; one lives with that but in this case we are talking about any body which seeks to influence or otherwise be concerned with. If we deleted the words: "or otherwise be concerned with" and said "which seeks to influence" it would be better. We are saying that any body concerned with conditions of service of members is a body of which a member of the Defence Forces cannot be a member. As the Minister said, there could well be marginal cases. I can accept that he will not agree that any new trade union type organisation should be set up to represent members of the Defence Forces but in his attempt to do that he is putting at risk the possibility of much contention about the way this operates either from members of professions who will feel that their professional organisation has been unjustly excluded by the Minister or else by the association which feels that certain privileged members of the association have dual negotiating rights or dual ways of getting access to public opinion to influence thinking on their behalf. I think that section could be redrafted.
I would like to emphasise here that in setting up these new bodies the primary purpose is to safeguard them. The whole thrust of the Bill is in establishing the actual bodies. I want these bodies to represent the members and I do not want another body from outside moving in on their territory. The Senator rightly interpreted that as one of the purposes of the Bill and pointed out the difficulties involved. There may be difficulties but they can be resolved by leaving the adjudication on the matter to the Minister. That is why section 2 (5) is included.
If everybody was being bloody-minded, it could give rise to a problem and then the Minister would have to decide one way or the other. Short of stopping them from being members of outside bodies, which I do not want to do, I do not see any other way of doing this. They can be members of outside bodies for the reasons I have mentioned but when it comes down to the whole area of remuneration I want the members of the Defence Forces to speak with one voice. Obviously the negotiating team or representatives of various executive structures established by the represented bodies, will take into account the special cases made by craftsmen and professional people within the Defence Forces. I take it that that is the way it will work out, and I cannot see it working out any other way. While allowing the primacy, as it were, to reside with the representative body or bodies at the same time I cannot preclude specialised membership of outside professional trade bodies on a whole host of outside matters which are related to remuneration or conditions.
I cannot see how the Senator's amendment will improve the Bill in any way. If he reads the subsections as they are drafted, I believe he will agree that the case is met. The Minister is there in an adjudicating capacity and inevitably if a case like this arises nobody else can determine it. When there is a demarcation dispute, so to speak, between the outside and inside bodies somebody has to adjudicate, and the most appropriate person in the circumstances will be the Minister. I hope that that sort of situation will not arise. We are talking largely in a vacuum, as it were, because common sense will obviously prevail.
I cannot see the merit in two bodies pursuing claims in this matter. I do not think this would appeal to either bodies in practice. The primacy in regard to matters of pay and conditions must reside with the bodies we are now establishing. We cannot preclude members from being members of outside bodies or associations of that nature but we can withhold the right to negotiate with outside bodies. I do not see what other way we can approach the issue. I do not think one can reconcile the primacy of the internal association and the individual or personal rights of the people inside the armed forces to be members of bodies outside the forces other than in the way I propose here. Inevitably there will be a difficulty in giving them the freedom to be members of outside bodies and in trying to set up the new bodies.
I genuinely think this is my last comment. If we were at an earlier stage in this debate and we had a decent time interval between the various Stages I believe we could have worked out an amendment which would make this much more precise. The issue is not really who tries to influence remuneration or who tries to be concerned with remuneration: the issue is who should negotiate on behalf of members about remuneration. If half the trade unions in the country want to talk, as they have done from time to time, about Army pay we are not going to stop them talking about how much the Army should be paid. Anybody can attempt to influence or otherwise be concerned with the remuneration of members of the Defence Forces. Members of the Oireachtas have always been and will continue to be concerned about the remuneration, conditions of service and facilities in terms of housing, etc., available to members of the Defence Forces.
The critical issue is that there should be a single body who can negotiate with the appropriate authorities on issues of remuneration and all the other issues we spent so much time talking about earlier today. It seems to me that the simple solution would be to include the words "or any other body which seek to negotiate about remuneration or other conditions of service for members". That is the crux of the issue.
We should provide that only one body can negotiate so that if other bodies want to talk about a matter they will have to write to the Minister about it and if he feels that a professional service or membership will be beneficial to a member he can consider it. Only one body should be allowed to negotiate and be recognised as having a negotiating capacity. That of itself would settle the problem. I strongly believe that if we had more time I would be able to persuade the Minister to include the word "negotiation" instead of the present wording. I am still hopeful that he might do this but given that the Dáil is in recess I am not too sure.
Is amendment No. 5 withdrawn?
With considerable reluctance because I believe the Minister has come close to accepting the case which has been made.
There is not much between us but we will stay with the wording that is there. We are really trying to achieve the same thing.
The Minister may have serious problems with that wording. What will happen if all the doctors in the Defence Forces refuse to join this association? I am not saying they will but what will happen if they do? What will happen if all the various other professions say they will not join because they are free not to join? The IMO will attempt to negotiate on their behalf. What will happen if only half the doctors join this association?
I will not compel them to join the association. That is also written into the Bill.
The Bill could be much more tightly written in order to meet the objective the Minister and I agree about.
I move amendment No. 7:
In page 3, line 14, after "expedient." to add "Such regulations shall provide, inter alia, for the guarantee of free access to the media by members of an association, the establishment of a permanent independent secretariat for an association, and a guarantee of independence in the day to day operations of an association.”.
Amendment No. 7 comes back to the question of the extent to which the drafting of the regulations ought to be openended and the basis of the negotiations that are taking place. What is proposed in this amendment are three of the fundamental principles any representative body ought to have. By emphasising the words "inter alia” I am not trying to preclude or exclude other matters from the regulations. I am simply suggesting to the Minister that there is a good case for stating that certain fundamental things will be contained in the regulations. How he will work these things out in the regulations is a separate issue. They should guarantee free access to the media by members of an association, the establishment of a permanent independent secretariat for the association and a guarantee of independence in the day-to-day operations of the association.
Any independent association who are separate from the command structure, who are able to talk and act independently on behalf of their members and who have a separate corporate existence via an independent secretariat should have these basic conditions. I am not trying to say how these things should work out in detail or that only these matters should be referred to in regulations. What I am saying is that these are three very fundamental principles that ought to be contained in the regulations. My amendment is different in many ways from the amendments that were put forward in the other House.
I accept the validity of the Minister's argument that there is so much that needs to be discussed and so many issues that need to be teased out, and it is so important that whatever structures and procedures are set up, are set up by agreement. I accept that all that is true and, therefore, the details of these things should be contained in the regulations. If they are to be contained in the regulations there are certain fundamental principles that deserve to be mentioned within the legislation, because I would hate at some stage in the future for a less well disposed Minister to feel free to rewrite the regulations, to restrict access to the media and to restrict the degree of independence that the association would have particularly if there was a difficulty or conflict. That is why certain principles to do with the criteria of an effective organisation in a free society — access to the media, independence in day to day operations and a separate independent secretariat — ought to be referred to as being the type of issues, amongst others, that should be referred to in the regulations. As things stand I do not believe that is the case. The Minister has every intention of ensuring that there is access to the media. He has every intention of ensuring that there will be a secretariat which is separate to and is acting on behalf of the members and he has no intention of trying to influence the day to day operation. They are fundamental principles and the details of how they operate are adequate or proper material for regulation, but the principles ought to me in the legislation and that is what my amendment provides.
It is clear that there will be access to the media obviously within certain guidelines under the scope of this legislation in relation to pay and conditions. In passing, I hope there will not be a witch hunt for an individual who spoke out at an earlier stage. He only said what others were saying. As stated in the booklet which came out, we cannot expect this operation to run on fresh air; there will be specified funding to enable them to carry out their work. An association obviously must have certain tools of its trade. It must also be independent. There is no point setting up a body like this if, at the same time, we say it can only do what we say it can. If that came to pass we would be no further on than we were 12 months ago and I do not think that is the intention. There is a difficulty in putting in various things: is there to be funding to provide a building, many secretaries, etc.? There is a danger in that.
Senator Ryan mentioned some points and I presume his list is not exhaustive. He has just touched on a few fairly obvious things, such as freedom of expression and back-up facilities. He said that a body will be set up with no money or back-up, that basically what is being provided is a forum which should not be hamstrung by the Department officials saying it cannot do this or that. These things have to be negotiated. It is important, in the light of dialogue breaking down and possible misrepresentation in relation to this, that a categorical assurance should be given here that these items, along with others, can be made available to whatever association is set up.
Again, this is like an earlier amendment. It is one that I agree fully with. It is so obviously a part of the principle of the legislation that I do not feel it necessary to incorporate it in the legislation. The whole purpose of having this enabling legislation is to set up these independent bodies which will have the gurantee of free access to the media on matters within their mandate and will involve an independent secretariat. That would obviously be consequential on having an independent body. If it is to be effective, it can only be made effective by funding. It can be funded jointly by way of provision of facilities by the State, and if the associations want to top up those facilities by way of individual subscriptions themselves they can and all that would carry a guarantee of independence which we are writing into the legislation. We are only precluding matters of command and discipline.
Senator McKenna emphasised that point earlier. Other than the exclusion of the command and discipline areas which are the prerogative of military organisations, a whole range of matters will come within their mandate. These bodies will have their role to play on behalf of their members over the whole range of remuneration and related matters, conditions of service and related matters and welfare matters. Part and parcel of that mandate will be an independence of operation in pursuing that mandate which would involve an independent secretariat and funding of an independent nature in addition to the State facilities, an independent approach by them in the presentation of their views to the media as they wish. All this is to be spelt out in greater detail in the regulations which can be agreed between the Army Headquarters, the Department of Defence and the bodies themselves when they are elected. This is the type of detail they will get down to discussing, what protection and safeguards the representatives of the men will require in their new representative bodies to ensure that they will have real independence, real clout, as it were. All that Senator Ryan is rightly concerned with is covered and the fact of setting these organisations up means that all this will follow, it is consequential on the establishment of these bodies, like night following day, with the detail to be worked out and incorporated in the regulations.
I can reassure Senators Cosgrave and Ryan that what is proposed will be on the lines of what is in Senator Ryan's amendment and I honestly do not see the need to incorporate it in the legislation. It is further confusing the legislation and interfering with the widest possible consultation, input and consideration by the elected representatives to what should and should not go into the regulations. What best suits them under the headings referred to by Senator Ryan is what should go into the regulations to govern their particular bodies. It goes without saying that the principles adumbrated by him in that amendment will be part of the permanent weave, as it were, of the permanent representative bodies. If they are not independent and do not have their secretariat or access to the media they are just not representative bodies. It takes the bottom out of the matter. Really it is a sine qua non, that what is proposed here by Senator Ryan will be part and parcel of the body when structured, but part and parcel with greater detail and greater emphasis as required by the elected representatives themselves.
Acting Chairman
Is amendment No. 7 withdrawn?
One point needs to be made. Here we have a conflict between the legislative Chambers of the Oireachtas and the Executive about what detail is needed in legislation. It happens to suit Governments always to have the minimum legislation and the maximum regulation because it is a much easier way to do business. The alternative is that the Oireachtas should be the one which is insisting on detail in legislation. Let me say in withdrawing the amendment that we are in this country excessively run on legislation via regulation. Whole areas of people's lives are governed by regulations that have never been adequately debated on discussed in the Oireachtas and are effectively a ministerial fiat. We have passed legislation in this House which enables the Minister by regulation to amend the legislation, and it is standing the whole procedures of the Oireachtas on their head.
I have a strange feeling that somebody soon is going to raise serious constitutional questions about the extent of regulations. A question could be raised about such a fundamental matter as legislative regulations for an association which did not involve stating the principles of those regulations within the legislation. It seems to be sailing very close to the wind in terms of the constitutional distinction between regulations which are meant to be matters of detail and legislation which is meant to be statements of principle. Of course, I accept fully and with no equivocation that the Minister intends to have all the things I have in my amendment together with provision for adequate funding within the regulations. Therefore, I withdraw the amendment.
Let me suggest something which may be a little inappropriate. I think we will be close to finishing this Stage within another 30 minutes and it seems to be much more sensible to finish this now and postpone the next business until 7 p.m. rather than drag the Minister, Senator McKenna and myself back at 8 p.m.
I was going to make that very suggestion, that we sit until 7 p.m. and finish this, if that is agreeable.
That is acceptable to me. I anticipate no problems.
Acting Chairman
Is that agreed? Agreed.
I have just two questions on section 2. Section 2 (1) of the Bill refers to "offences in relation to the Defence Forces and military property under that Act". That is referring to the Defence Act, 1954. The list of offences in the Defence Act is enormous. Am I to understand that such a body will have no function in relation to a member of the Defence Forces who is being tried for an offence under the Defence Act, 1954? That Act contains about 250 pages in the English version and obviously about the same in the Irish version. It is an enormous piece of legislation. Section 2 (1) of the Bill refers to the representing members of such ranks in relation to matters affecting their remuneration "but excluding matters ... and offences in relation to the Defence Forces and military property under that Act". That means the whole area of offences — not all of them military offences; for instance, being drunk in and out of uniform is a military offence. It seems rather peculiar that an association set up to represent the interested members cannot represent a member if he is on a charge of being drunk, which is one of the offences. There is a long list of them, some of which are quite clearly military offences like being absent without leave, insubordination and so on. Others are far less obviously of a military nature but they are offences under the Defence Act. I would like the Minister to say whether my interpretation is correct.
My second question is in regard to conciliation and arbitration provided for under section 2 (6). The Minister is quite right in pointing out that it was not adequately welcomed. The principle of arbitration for any dispute is something the ambulance drivers in Britain spent six months on strike for and which the British Government refused to concede to them. I am very glad the Minister is conceding arbitration to the members of this force. Does the Minister intend that a system of conciliation and arbitration be set up for the Defence Forces separate from the Civil Service conciliation and arbitration provision? If it is being set up, why do we need two separate systems of conciliation and arbitration? There are two questions, one on section 2 (1) and the other on section 2 (6).
The system of conciliation and arbitration as it operates generally throughout the public service operates on the basis of different systems for different areas of the public service as of now. All we are doing is adding to this by having a specific conciliation and arbitration system for the Defence Forces. That is all that is meant.
The military law matter, is surely separate altogether. There is the whole corpus of military law and offences in relation to military law. There is a whole system of courts martial, judge advocate general, a system of law within the law, so to speak, to cover all of that. This Bill is not intended to cater for that area. We can look at that in separate legislation if we wish to reform it in regard to various aspects such as the redress of wrongs. It is a different area which is not the concern of this Bill.
With Senator Costello's permission I would like to raise an objection to section 3 because there are other complicated issues to be sorted out here. Section 3 is a somewhat peculiar section which provides for the suspension of the association in the event of certain things happening, the first, the major one, being a declaration of emergency. One's education can always be advanced. The Minister has contributed to my education, because we have two kinds of emergency, which is rather peculiar. We have an emergency under section 4 (1) of the Defence Act, 1954, which provides that: "The Government may, whenever they consider the circumstances are of such a nature as to warrant their so doing, by order under this subsection declare that a state of emergency exists.". That is a state of emergency and it can be referred to as a period of emergency according to section 4 (3) of that Act. That is one period of emergency. Article 28.3.1º of Bunreacht na hÉireann refers to a different kind of emergency which requires a vote of both Houses of the Oireachtas. I am at a loss to understand how we have got ourselves into having one period of emergency defined in the Constitution and another period of emergency defined in legislation. It raises an issue about peculiarities in our legislation and in its drafting which could well be addressed at some future date. The Minister has clarified that.
What I do not understand is why the provision under section 5 of the Defence Act, 1954 about active service would not be adequate to deal with the question of either an emergency or active service because "active service" as defined in section 5 includes a person attached to or forming part of a force engaged in operations against an enemy, etc. Subsection (5) dealing with "active service" also refers to a period of emergency. I cannot understand why section 4, which says that the association shall not represent any member who is on active service, is not sufficient. Why do you have to suspend the entire operation in the case of an emergency declared under the section? Why not simply say that in the case of an emergency all members are on active service and that, therefore, the association no longer represents them? Why does the association have to be suspended? Why not say that during an emergency the association cannot represent the members? One of the definitions of "active service" is under a state of emergency as declared in the Act.
I expressed my view on the question of having two different kinds of emergency. Given that we are in a permanent state of emergency under the Constitution, how can the Government declare a second state of emergency within the existing one? It is beyond me and I should like a lawyer to explain it. Does that mean that we are in two states of emergency, that the first one gets rid of the second one or vice versa? There is a serious fundamental question regarding our laws when you could have two states of emergency. I do not see any purpose in suspending the entire association when section 4 says that the association cannot represent the members if they are on active service and the definition of “active service” in the principal Act incorporates the state of emergency as defined by the Act. There is no reason for what is proposed. Suspending the association seems to be an over-the-top reaction to a necessary provision that members on active service are acting as members of the armed forces, and therefore, cannot be involved in para-trade union activities.
We went some of the way to meet the point of view expressed by Senator Ryan by eliminating the word "dissolve" which was the original word used which I thought was too draconian. Suspending the association is less draconian and, to that extent, it goes some way towards meeting the Senator's complaint. I tabled an amendment on Report Stage in the Dáil to include "suspend" instead of "dissolve". Obviously, in an emergency it is a logical clause. I should also say that it has nothing to do with the constitutional emergency to which the Senator referred. I will not debate the rights or wrongs of that because it is not relevant to the issue. We are concerned about the state of emergency under section 4 of the Defence Act, 1954. In that type of emergency we suggest that the representative associations would not be operative. I am leaving the matter of the national emergency aside because one could get into a long constitutional debate about its efficacy. However, the state of emergency aspect is real and is defined under section 4 of the 1954 Act. It means that obviously representative associations would be suspended, not dissolved. That is why I came half-way towards the point of view expressed by Senator Ryan.
What is the difference between suspending the association and the association not being able to represent their members? Section 4 says that an association shall not represent a member on active service which includes certain things not covered by an emergency. If an emergency is declared all the armed forces will be on active service. What is the difference? Does it simply mean that the staff will not be paid?
It means it will not be functioning.
If they cannot represent their members they are not functioning. Section 4 makes section 3 redundant. Of course it is quite possible I am misinterpreting the Defence Act but it seems to me that section 4 which contains the phrase "active service" means that there cannot be any real distinction between saying that the association cannot represent their members and the association being suspended. It is overkill.
One could argue that "active service" might not cover all military personnel whereas "a state of emergency" would cover all military personnel, including those who might not be on active service. There is very little between us on that point.
Very well, I see the Minister's point.
Will military personnel who are abroad have a vote to elect members of the associations?
Yes, we will provide facilities for them to vote.
We oppose this section because it precludes people from joining a trade union. We believe that Defence Forces personnel should have the right to join trade unions.
I cannot entirely agree with my colleague in the Labour Party in regard to this. I accepted the principle of section 2 (4) and it raises the issues which we discussed at length on section 2. I will not go back over them. When I was reading the Defence Act I discovered that all members of the Defence Forces are precluded from joining secret societies. The definition of a secret society is very wide and I do not expect the Minister to comment now. It seems it would include societies of a religious nature, which are quite secretive, and other organisations of a crypto-religious nature which are also secretive. It might be no harm to remind members of the Permanent Defence Forces and the Reserve that they are precluded from joining secret societies, not as they define them but as they are defined in the Act.
If we are going to prohibit people from joining trade unions or joining organisations like this, we ought to make sure that the prohibitions that already exist under the Defence Acts are actually in force for all members of the Defence Forces and that they are not members of any religious or semi-religious organisations which have a secret dimension to them, because the definition of a secret society under the Act is quite broad.
I will not be drawn down that path. I like the Senator's style and would like to agree with him. However, we will not bring that into this Bill.
Do something about it.
On the other point, I want to emphasise that the purpose of section 6 — and we already debated this fully in the earlier sections is to protect the bodies we are establishing here. We want to establish them as one cohesive union, on the one hand speaking for the privates and NCOs and on the other hand speaking for the officers. We want two strong cohesive bodies that will speak for the men on an independent basis, fully funded, and with full access to the media. They are developing the expertise to participate in conciliation and arbitration and so on.
We do not want a situation where they are going to be threatened by other bodies or associations. We do not want a fragmentation of views channelled into other bodies. We do not want to see a situation arising where you are going to have a special body for Athlone barracks, a special body for barracks in Cork, a special body for barracks in Dublin, for this unit, that unit, the Curragh Command, the Southern Command and Western Command and causing all sorts of divisions between various sectors of the Army, Navy and Air Corps. The list is endless as to how we could divide it up. Surely it is of paramount importance that when we are doing this, we do it right. Now that we are going about it for the first time since the formation of the State, we should do it right. I would stress to Senator Upton, in particular, as representing the trade unions and trade unionism, that it has long been the wish of the trade union movement to achieve that sort of status within the trade union movement. That was the original idea behind OBU — one big union — and the recent link-up between the Federated Workers Union of Ireland and the Irish Transport Union and so on. What the trade union movement is doing at the present is getting together and joining up and having more effective trade union units.
I want to ensure now that we are setting up structures, that we do it right and that we protect them. Section 6 is designed to protect this new structure that we are establishing with the two bodies representing the two areas of the military forces. That is the purpose of this section and the earlier sections, and it has no purpose other than that. If one thinks of it in depth it is very important for the point of view of these new bodies that they get off the ground, that we structure them properly and that they are not being challenged by break away, splinter or new groups or whatever based in this command or that command or this barracks or that barracks. That is the purpose of this section.
Or secret societies.
I move amendment No. 8:
In page 3, before section 7, to insert a new section as follows:
"7. Where it is proper to make regulations under this Act, a draft of each regulations shall be laid before each of the Houses of the Oireachtas and shall not come into effect until a resolution approving the regulations has been passed by both Houses of the Oireachtas."
This is an amendment that ought to be accepted by the Minister, because so much of what is in this Bill is actually only enabling things to be done. Amendment No. 8 simply suggests that instead of regulations which may be annulled by the Oireachtas, any regulations made under this Bill will have to be approved by the Oireachtas, which means they would have to be debated by the Oireachtas and we would have a clear account of their adequacy or otherwise. It would not necessarily guarantee that they would be any better than they would otherwise be but it would increase the degree of accountability that surrounds these regulations. I do not think that it is a great pity, and I cannot understand, given his considerable goodwill to produce regulations that are fairly well universally acceptable, why the Minister would not ensure, even for no reason other than to give himself the considerable credit that might well come out of it, that these regulations were actually debated within the Houses of the Oireachtas. They cannot be amended, they can be either approved or disapproved of, but given the extraordinary broad reach of any regulations they are going to cover everything; they are going to cover what the association can do; they are going to cover all the things we talked about earlier — access to the media, permanent secretariats, funding and so on. They are going to have enormously detailed regulations and neither House of the Oireachtas has any guarantee that they will ever be discussed within the Oireachtas. Perhaps if I had an aspiration or a hope of being a member of a Government at some stage or other I might have more sympathy with the Minister, but my part of the legislative process is via the Oireachtas, and I do not like to see large areas of what is effectively legislation slipping through the Oireachtas by default on this negative provision in the Bill.
These are major regulations to do with a major institutional innovation within the armed forces. They ought to be discussed within the Houses of the Oireachtas and the proper way to have them discussed is by ensuring that the regulations need the approval of both Houses of the Oireachtas. It would also ensure that any regulations in the future which might amend these regulations, which might broaden or narrow them, depending on the mood of a Government at the time and what they wanted to do, would also have to be discussed within the Oireachtas. I think there is an element of bypassing the Oireachtas here to make life simpler in the future. That is a great pity. It is why I tabled amendment No. 8.
We want to proceed step by step with this whole matter. We will start retracing our steps if the amendment put down by the Senator is accepted. We have the provision in section 7, which is a stock provision in all enabling legislation to allow for the regulations to be laid here, not just allowed for, but making it mandatory that they be laid before each House of the Oireachtas and that the annulling regulation can take place within 21 days. I appreciate that it requires a resolution of the House within 21 days, otherwise it becomes effective, but if you proceeded in the direction suggested by Senator Ryan you are following a route that is only very exceptionally taken in legislation and not at all in enabling legislation. In enabling legislation the route taken is the route that is taken here in section 7, because we are consciously proceeding here by way of enabling legislation. That is the whole thrust of the Bill.
I do not see anything wrong or derogatory in this. I know I am getting on to quasi-philosophical discussion here, but Senator Ryan is talking about the merits of this type of legislation. I would defend this type of legislation where you require the goodwill of a large body of people, such as the members of the Defence Forces who are crucial in the whole establishment of these representative bodies. In that sort of a situation the less the Oireachtas has to do with the detail of it, the better. The purpose of the Oireachtas is to provide the framework in principle. This is the whole idea behind this type of legislation for this particular type of case. We want the detail to be filled in by the people who are primarily concerned with the working of this legislation and the detail will be incorporated in the regulations. That is very much the aspect that is most important to the actual membership of the proposed new bodies. They are the people who will be operating the new representative bodies. It is in their interest that it is being done. They are the people who should make the contribution as to how the structure should be established and their contributions should be embodied in the regulations. The detail will concern them and they will have to live with it month in month out, year in, year out, right into the future. In that type of situation enabling legislation is ideal.
Too much detail by us into what is essentially their business can be counterproductive and too restrictive. If we provide the framework, they can make the inputs into it. I would always defend such legislation in a case of this kind, where you are making provision for administration by bodies outside this House, in this case two representative bodies to be established by this House. Ideally this is the right sort of legislation and this is the appropriate clause to have in it in regard to the regulation that emerges.
We do not want to retrace all the steps in the regulations if the regulations have been agreed to by the people concerned, the people in the newly elected representative bodies, the personnel who, through the representatives, expressed their points of view in detail as to how the regulations should be structured and how they should operate. That is their business and it is they who will be handling its operation. Provided we are satisfied with the framework within which these bodies operate — there are certain reserved functions for the Minister which are included as safeguards and which we debated earlier — I believe this is the right way to proceed. As I have said from the word go, there has been a difference of opinion in that regard but I think our approach is the correct one in the circumstances. Too much detail would be inappropriate in the case of the type of problem we are dealing with in this legislation.
I have no disagreement with the Minister about the necessity for a lot of this to be dealt with by regulation but there are principles missing from the regulations. The Defence Forces have no guarantee that in the future some other Minister may not choose to restrict, inhibit or abolish their right of access to the media or their right to an independent secretariat, simply by regulation. Incidentally, the regulations would not even have to be discussed by either House of the Oireachtas. Certain fundamentals such as funding, media access and so on which the Minister accepts are necessary should be referred to, in principle, in the legislation. The Minister made no case for the passing of the regulations. It is not true that it is unusual to have the regulations approved. I have seen that done and this is a major institutional change. It is the first time in the entire history of the State that we have given the members of the Permanent Defence Forces the right to have an independent organisation, and that is something on which I have complimented the Minister on more than one occasion today.
Related to that is the need for and the right of the Houses of the Oireachtas to be involved. We are talking about the Defence Forces and unless somebody chooses to raise an argument about them in Opposition time, the regulations will not be debated. Extraordinarily enough, the last regulations that I remember debating were those under the Intoxicating Liquor Act which were to allow certain restaurants to apply for full licences. The extraordinary legislative priorities which would suggest that regulations about liquor licences are more important than regulations about a trade union for members of the Defence Forces defy my imagination. I suspect even the Minister, in his most eloquent flights of fancy, would find it hard to justify that set of priorities. Something as fundamental as a new association, an institutional innovation, will not be debated in detail in either House of the Oireachtas, whereas something as trival as the decision to do something reasonable and logical like ensuring that restaurants could have liquor licences was debated here and in the Dáil. I do not understand those priorities and that is why I put down the amendment. Having said that, I do not want to delay the House unnecessarily and therefore I withdraw it.
I move amendment No. 9:
In page 4, line 5, after "Act" to add "provided that all sections of this Act shall be in operation within six calendar months from the passing of this Act."
I put down this amendment to remind myself to ask the Minister if there is a timescale or a target date for the setting up of this association. Does he hope to have the association up and running by the end of the summer or the end of the year? I am not asking him to give me a particular date but, given the urgency with which he has ensured this legislation goes through both Houses of the Oireachtas and given his resistance to amendments in this House for fear it might be delayed, I assume he has a timescale. It seems we ought to be talking, at the very latest, about six months time. Once the burden of the Presidency is off the Government's shoulders — the Minister for Defence will hardly be presiding over anything connected with his area of activity, unless something has happened that I have not heard about — this association ought to be set up fairly quickly. I would just like to know if the Minister has a timescale in mind.
I agree with Senator Ryan on this matter. Hand in hand with the elections being held, the association being set up and the Gleeson report being published, I hope there will be a response from the Minister. The amendment mentions six months but we do not want to tie the Minister's hands. He indicated that we should have gone a long way down the road later in the year. I would ask the Minister to ensure that the report is published, that regulations are brought to a head and a decision is made, particularly in relation to pay and conditions.
I am very glad, at the end of Committee Stage, to say that I agree fully with Senators Ryan and Cosgrave in their aspiration that this Bill should be in operation within six months — in fact I would envisage less than six months. I want to leave the matter open in the interests of the Defence Forces, the representatives who emerge from the elections and PDFORRA in particular so as to ensure that everything is teased out properly. I want to in no way force anybody's hand or wave a big stick and declare any body or bodies illegal. If this process of consultation is lengthened, and I hope that will not be the case, I would like it to be lengthened to a full consultation procedure. However that is the pessimistic side and I am not inclined to be pessimistic. All the information I have is optimistic. The Act should be well in operation within the six months referred to by Senator Ryan, and therefore I see no real need for the amendment in those circumstances.
In withdrawing the amendment I would say that for the present Minister to say "I am not a pessimist" is perhaps the understatement of the century, given the man who said it.
I take that as a compliment.
Having been here with the Minister from 11 a.m. to 7 p.m. I think one thing is evident. This is his first visit to this House since he was ill and it is good to see the Minister in such good health and good form. Not only am I glad to seem him but I think the whole country has been impressed by his demeanour over the last couple of years. I am glad to see him so well and in such good form — even if he did not agree to a single amendment — after such a long day.
An Leas-Chathaoirleach
I have no doubt that the whole House would agree with Senator Ryan.
Thank you very much.
An Leas-Chathaoirleach
Before proceeding with item No. 69, I am sure Senators will join with me in extending a warm welcome to Dr. Kurt Faltlhauser and his colleagues from the finance committee of the German Bundestag. On behalf of the Members of the House I wish them céad míle fáilte, a hundred thousand welcomes.