Skip to main content
Normal View

Seanad Éireann debate -
Wednesday, 6 Oct 2004

Vol. 178 No. 3

Ombudsman (Defence Forces) Bill 2002: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Senator Feeney was in possession and has seven minutes remaining.

My time was running out and I was near the end of my contribution. I was saying to the Minister that the Bill was excellent. I look forward to its safe passage through the House and I have no doubt that it is in capable hands.

The Senator may take longer if she wishes.

I have finished.

I welcome the Bill, the Minister and his officials to the House. I extend to my neighbour from across the border in Limerick my warmest congratulations on his appointment as Minister for Defence. He has been compared to many people but I would like to make my own comparison. He has a reputation of being a Stakhanovite in that he has worked extremely hard over the years and his appointment is no more than is due to him.

While I am making a geographical reference, I wish to commend to the Minister's care the Sarsfield's Rock monument in east Limerick, which I have visited a couple of times in the past ten years. Obviously it is a matter for the Minister and for Limerick County Council, but I feel the Army in Limerick should perhaps take some interest in it. Perhaps there should be an annual ceremony. It is not so big and ambitious a monument that it would be too difficult to maintain. It is situated in a very evocative place.

I also pay tribute to the Minister's predecessor, Deputy Michael Smith, who did a very good job as Minister for Defence over the past six years in terms of re-equipping the Army, providing leadership and raising the status of the Defence Forces. At the time of President Bush's visit to Shannon, I was almost taken aback, as were many people, by the stream of armoured vehicles photographed on the roads in the region. We did not realise how much equipment was in existence.

The defence portfolio is an important one. The Defence Forces comprise a very important institution of the State. They serve us at home and abroad and make a valuable contribution to international peacekeeping. The Leader of the House, Senator O'Rourke, took us back 14 years to when her brother, the late Brian Lenihan, was Minister for Defence. There had been a fair degree of dissatisfaction in the Defence Forces. They are subject to hierarchical discipline but at the same time their members wanted the right to have their voice heard in terms of conditions of employment. The Leader was correct to point out the important contribution the then Minister made, including the establishment of the representative associations. I have been at one or two of their conferences and, by and large, admire the spirit with which they go about their work. The late John Lucey was mentioned and I subscribe to the praise for his role.

I visited the military college recently and got the impression that the Defence Forces are highly motivated and doing an important and valuable job on behalf of us all. This Bill, which establishes an ombudsman for the Defence Forces, represents a very logical step in enabling one to make complaints. In the last analysis, rather than just having people policing or judging themselves, the Bill provides for an independent office to which an appeal in last resort can be made. This is the way the Office of the Ombudsman for general purposes works. It is really only when all other recourses are exhausted that a case goes to the Ombudsman. This is very progressive legislation and it tackles the problem of how one brings an institution, such as an army, which is one of the oldest institutions in the world, into line with the spirit of the modern age in which people have the right to participate in and, to a degree, co-determine what happens to them and have a legitimate voice without being demoted.

A topic has been in the news recently because of the conference taking place regarding people going abroad and the degree to which this is voluntary, given that some may have been pressed to do so somewhat against their will. Anyone joining the Army these days would have reason to expect that service abroad would be part of what would normally be expected of him or her. Obviously, soldiers would have the right to opt out or not to volunteer. However, there are responsibilities to be considered. It may be that some places are much less attractive in physical terms than others but I would like to believe that most members of the Army would be prepared to do a stint wherever they are called to make a contribution unless there were very particular circumstances preventing them from doing so. I accept that the ombudsman has quite a difficult task. A previous speaker made the point that if one is a sergeant-major barking out orders on the parade ground and somebody is told to straighten up, then obviously this is not necessarily to be construed as bullying or harassment unless it is way over the top. Discipline is required in a military situation and so judgment, tact and mutual forbearance are needed to distinguish between normal discipline and abnormal bullying and harassment.

I gather the Minister may be attending one of the Army conferences tomorrow. I am sure that, as well as being in charge, under the President of course, he will act as a good advocate at the Cabinet table in terms of what is needed for the development of the Defence Forces. We take pride in our Defence Forces and take an interest in what they are doing. We also take up whatever opportunities are offered to visit barracks or occasionally to visit them when serving abroad. In 2000, along with the Taoiseach, I was privileged to visit the Rangers in East Timor. They did an exceptionally fine job in a tricky, volatile and vulnerable situation by stabilising the jungle frontier between East and West Timor. In that way, East Timor was allowed to develop without further wrecking or destabilisation. The Rangers did a very fine job in that respect. Nowadays the facilities, including living conditions, are getting much better.

The Bill represents a progressive reform. I wish the Minister well and I assure him of the strong support he will have in this House.

I wish to share my time with Senator Lydon.

Is that agreed? Agreed.

I, too, would like to congratulate the Minister on his promotion and wish him well in the important Department of which he is now the political head. When the office of ombudsman was first established in Sweden in 1806, there were two ombudsmen — the military ombudsman and the justice ombudsman. It was, therefore, regarded as very important that there should be an ombudsman for military affairs. I am delighted to see that at long last the Defence Forces are being granted some form of modern personnel standards. They are entitled to have an ombudsman. We should commend Dr. Doyle for the work on which the Minister has reported.

While the new office must be established along with the requisite powers, and while the military ombudsman will be a different office from that of the Ombudsman — in the same way as the health service ombudsman is different — there is no reason those positions could not all be held by the same person. Consideration should be given to that possibility. An expertise had developed in the Office of the Ombudsman in dealing with such matters. There is a body of knowledge and precedent there and, after all, it is personnel work. If the various ombudsman roles were held by one person it would minimise the expense of setting up a new office, with people having to find their way around. Over the 20 years since it was established, the Office of the Ombudsman has established itself as an object of public trust. It would be helpful if the various positions were to be held by the same person.

The Bill provides for the right of a member of the Defence Forces to complain about unacceptable treatment. However, if members of the public have a complaint against the Defence Forces presumably they have recourse to the ordinary Ombudsman. One could see it happening if the Army was acting in support of the civil power and, for example, roughed up a house. It is something the Minister might consider.

Since the Minister has to amend the 1954 Act, it is a pity he did not take the opportunity to amend that part of the Act dealing with service under the aegis of the United Nations. The wording of that part of the Act will have to be examined sooner or later so we do not again get into a situation in which we were unable to help out in, for example, Macedonia. Increasingly, there is a tendency for the United Nations to sub-contract some of its activities perhaps to an emerging European force. It would be a pity if we had to sit on the sidelines just because our legislation was couched in terms which, if narrowly interpreted, would prevent us from participating in some UN missions.

I welcome the Bill and congratulate the Minister on having presented it to the House.

I welcome the Minister and congratulate him on his well-deserved appointment. I also welcome the Bill. The existing system of invoking redress for wrongs was rightly discredited and the Bill admirably gives effect to principles of fairness and transparency. It is important that the independence of the new office is clear and I look forward to its promulgation within the Permanent and Reserve Defence Forces.

In principle, this legislation is long overdue. I am glad to see it covers the Reserve Defence Force, An Fórsa Cosanta Áitiúil and An Slua Muirí. They are going through a worrisome period during their reorganisation, especially in the context of the decision to reassign officers and senior non-commissioned officers to different jobs within the next few months. No doubt the Minister will be with us again in the House on future occasions to debate issues, including the new reserve, name changes, employment protection and overseas service.

I am delighted to see that the appointee as military ombudsman cannot be a serving member of the Defence Forces, as this will underpin the perception of independence. I hope that the first appointee, irrespective of whether a man or woman performs the task, is only appointed for one term of seven years. This raises the issue of what the Minister will set as the prescribed age and I look forward to hearing his views on that subject. A person of mature years is needed as the new ombudsman for the Defence Forces and that person must have a track record in human relations. My reason for proposing an initial single term is that the reports made to the Minister and his successor will more precisely define what attributes are needed in a military ombudsman.

I am pleased an annual report by the ombudsman is provided for and I hope the Minister will share with the House his thoughts on what issues he will prescribe the report should include. I respectfully suggest that when the Minister brings the office of ombudsman into operation, a briefing document should be sent to the home of each serving member of the Permanent and Reserve Defence Forces.

In these days of decentralisation I hope the office of the ombudsman will not be located in Dublin. If it is not going to be in Limerick, I suggest it should go to Killybegs where at least the navy will always have a warm berth.

Turning to nitty-gritty issues, will the appointee be full time? I wonder if there is a necessity to have such an independent, standalone ombudsman. I suspect that, after the initial flurry of pent-up demand has been satisfied, a defence force of 11,000 personnel and a similar number in the reserve, should not attract too heavy a workload. Thus, I wonder whether the existing Ombudsman will be appointed to fill that role. If it is a distinctive, separate appointee, how many staff will he or she employ to undertake the initial work? No doubt consideration has been given to that issue by the Minister's Department.

Though I understand why, I am nonetheless disappointed that the ombudsman will not have the power to investigate complaints retrospectively. I hope that once it is signed into law, the Minister will bring the Bill into operation at the earliest moment. There is a pent-up demand for this appointment, so the earlier it is signed the better.

I note that section 4(2)(c) indicates exclusions for military operations. Will the Minister spell out what is meant by a “military operation”, as I am at a loss to identify, other than purely routine barracks tasks, what will be encompassed by such operations? I feel that guard duties, honour guards, cash escorts, range practices, tactical exercises and overseas operations fall into that exclusion. I wonder what in practice this exclusion will permit the ombudsman to investigate. Will it be the duties an individual undertakes or whether a person is rotated inequitably over weekends? I ask the Minister to clarify in section 5(1) what section 179 of the 1954 Act excludes.

In summary, I believe the Bill is overdue. I hope it will be brought into force as soon as possible. I welcome the Minister bringing the Bill to the House so quickly after his appointment.

I thank all the Senators who contributed. I thank them in particular for their kind remarks of congratulation on my appointment.

Each aspect of the Bill has been agreed with both representative organisations. PDFORRA and RACO have been widely consulted on almost each line of the Bill, which reflects the agreement these representative bodies made with the Government.

Senator Paddy Burke raised the question of coercing people to go abroad. Senator Henry and a number of other Senators were also concerned about this aspect. I take Senator Mansergh's point that overseas missions consisted entirely of volunteers prior to 1993. Since 1993, there has been an element of selection, which is being done with the agreement of PDFORRA. For example, if a mission is chosen to go abroad and needs certain specialist staff to operate effectively and those staff are not among the volunteers, by definition there must be an element of selection. Having said that, the Irish troops currently deployed overseas are overwhelmingly volunteers. For example, 428 troops are currently deployed in Liberia, of whom 20 are there by way of mandatory selection.

The Doyle report was referred to on a number of occasions. The unique aspect of the report in this context is that the Army has admitted bullying is a problem. People will be aware that the initial Doyle report, which purportedly revealed all of this, was published in 2002. To the best of my knowledge, the ombudsman Bill had been published at that stage. Senators will also be aware that on 24 September Eileen Doyle reported on the progress made in the last two years on implementing the original recommendations, which has been considerable. As a result of the press conference held by Dr. Doyle on 24 September, it was further agreed that there were a number of other things to do and that the Department of Defence, the representative organisations and so on would get on with the job of implementing the reforms to combat harassment and bullying in the Army, and there would be a further progress report in 2007. It was envisaged that all this would be put in place by 2007 at the latest.

The delay in progressing the Bill was referred to. As I already said, each line and paragraph in the Bill has been agreed with the representative organisations. This entailed the widest consultations, which took time. The latest commitment given to PDFORRA was that the Bill would be implemented by October 2004. We are now in the early stages of October and I am confident that promise will be delivered on.

Senator Burke referred to alleged Government control over the ombudsman and the terms of his appointment, etc., compared to the Ombudsman for Children Act. In regard to the terms of appointment, the Bill is an enabling one. It provides for an ombudsman to be appointed for an initial fixed term of seven years. A person can be re-appointed for one subsequent term only. This was drafted to allow some considerable flexibility from the point of view of potential appointees. The Bill transfers the fixing of the terms of the initial appointment into secondary regulations, subject to the criteria that the initial term cannot exceed seven years. The actual term will be laid out in regulations but, under the legislation, these regulations cannot provide for an initial term of more than seven years. There is provision in the general legislation for a second and possibly further terms, with the duration of any subsequent term of appointment to be made by way of regulation.

The Senator referred to the lack of powers of the ombudsman and felt the ombudsman would be a lesser creature than his or her counterpart in Canada who can take complaints from a much wider range of complainants. The ombudsman for whom we are providing can take complaints from all serving members of the Permanent and Reserve Defence Forces, including cadets who are enlisted personnel. Former members of the Defence Forces will be able to make complaints subject to other criteria in the Bill. This has been agreed with PDFORRA and it has been widely welcomed by the reserve representative association, which is what the people for whom we are legislating wanted. There is one substantial change. Under the system being replaced, there was no retrospection in regard to the Minister. For one's complaint to be entertained, a person had to be serving at the time the circumstances giving rise to the complaint arose. There will now be an element of retrospection.

Senator O'Meara broadly welcomed the Bill and said she would table amendments, which I will deal with in a constructive manner. Senator Minihan said that the military atmosphere is different from a civilian-type atmosphere and what might be considered bullying in a civilian sphere might not necessarily constitute bullying in the military sphere. I am very conscious of this aspect, which is why a small number of matters have been excluded from the ambit of the ombudsman and kept within the ambit of the Minister. I was urged by the Senator to consider the closure of barracks in the context of Army re-organisation and I will do so. The Senator asked from whom Irish soldiers serving overseas seek redress if alleged bullying or harassment occurs while they are overseas. Overseas service falls into the category of "active service", which means their recourse is to the Minister.

Senators Minihan, Burke and others were anxious that the proceeds of the sale of lands, etc., by the Department of Defence should not affect the ordinary Estimate for the Department. In other words, we should fight for our Estimate year on year and anything extra from the sale of property should be put back into the Defence Forces to provide extra equipment and repair barracks infrastructure, etc. This is precisely how we are operating. For example, this year, prior to my coming to the Department, my predecessor and former Minister, Deputy Michael Smith, agreed this year's Estimate. This represents an increase on what was provided for in the budget for the Department last year. This has been done without any knowledge of the amount of money coming in during 2005 from the sale of property, etc. This is how I intend to deal with the matter. I have no intention of allowing once-off windfalls from property sales to substitute for normal provision through the Estimates.

Senator O'Rourke raised the question of the 12-year contract, which is in place for people coming into the Army since 1994. This was done with the agreement of PDFORRA. The initial proposal was for a five-year period but this was subsequently extended to 12 after negotiations. I shall be attending the PDFORRA annual conference in Letterkenny tomorrow where I will undoubtedly hear all about this and will listen to what PDFORRA members have to say.

Senator Mansergh referred to Sarsfield's Rock, which is close to my heart and is on the edge of my constituency, and I take account of what he said with regard to it. Senator Maurice Hayes is correct that a member of the public who has a difficulty or suffers alleged bullying or harassment from a member of the Defence Forces, whether acting in aid of the civil power or whatever, has no recourse to the ombudsman. Only members of the Defence Forces can take complaints to the military ombudsman. Such members of the public may possibly have recourse to the State Ombudsman. They shall certainly have recourse to civil law and possibly even criminal law if the complaint falls into that category.

Senator Maurice Hayes raised an important question about the section of the 1954 Act dealing with service under the aegis of the United Nations. This raises much broader policy issues. The Government has consistently stood over Ireland's involvement in peacekeeping abroad in United Nations sanctioned operations, the Petersberg Tasks, and so on, on the basis that there is a triple lock in operation in such matters. The Government must agree to participate, that decision must be ratified by the Dáil and the operation is only undertaken under the aegis of the United Nations and with its sanction. I understand that the situation in Macedonia was that China vetoed the operation at the United Nations and so it was not a United Nations sanctioned operation. If the Government had changed the legislation to allow our Defence Forces to participate in that operation, it is unlikely they would have done so in any case because of the lack of a United Nations sanction.

As Senators are aware, this legislation has already been considerably improved in the Dáil. Senator Lydon asked what is meant by a military operation. Alleged bullying or harassment or other complaints which a member of the Defence Forces can make which happen during what is defined as a military operation will not go the ombudsman. Such complaints will remain within the remit of the Minister for Defence. As a result of representations from PDFORRA, the Opposition parties in the Dáil and others, the term "military operation" has been given a very precise definition, as set out in the Bill. To paraphrase, it is defined as any operation in the field. If one considers the new definition introduced as a result of the Dáil debate, it is clear the Government has made every effort to ensure that the remit of the ombudsman is as wide as possible and the exclusions are as narrow as possible.

Senator Lydon also asked about the other matters that are excluded under section 5. A complainant who has already initiated legal action, for example, cannot present his or her case to the ombudsman but must continue to pursue it through the courts. Another exemption applies to cases where the reconciliation and arbitration process is the more appropriate course of action.

I thank Members for their kind remarks and constructive suggestions and for the spirit in which the debate has been conducted. I look forward to Committee Stage, which I understand will take place next Tuesday, 12 October. I will constructively consider any genuine amendments which would improve the Bill, which we are putting in place at the behest of members of the Defence Forces.

Question put and agreed to.
Committee Stage ordered for Tuesday, 12 October 2004.

When is it proposed to sit again?

Tomorrow at 10.30 a.m.