I welcome the Minister for Defence to the House.
Ombudsman (Defence Forces) Bill 2002: Committee Stage.
I move amendment No. 1:
In page 4, subsection (2), lines 37 and 38, to delete "the recommendation of the Government." and substitute the following:
"(a) the nomination of the Government, and
(b) the passage of resolutions by Dáil Éireann and Seanad Éireann recommending the appointment.”.
I congratulate the Minister for Defence on his appointment. Just as the Minister was reshuffled, I have recently been honoured by being made the spokesperson for defence on this side of the House, along with other duties. I look forward to working with the Minister.
In our nine amendments, we on this side of the House have proposed what we believe are beneficial additions to the legislation. The Minister knows the position of the Fine Gael Party regarding support for this Bill in both Houses. As the Minister is aware, the position of ombudsman is nominated by the Government before appointment by the President. On the appointment of Ms Emily O'Reilly to the position of Ombudsman, a resolution was put before both Houses of the Oireachtas. Fine Gael believes it would be wise to have the same process in regard to the ombudsman for the Defence Forces. We are not in any way countering the Government's view in regard to the nomination but think a positive resolution by both Houses following a debate would be good for the office and the office holder. It would be bad practice for Parliament if somebody was plucked from nowhere and appointed to this very senior office without parliamentary scrutiny. A recent report of this House recommended there should be some form of parliamentary scrutiny in regard to major Government appointments.
The amendment aims to allow the nomination of the Government to occur in the normal way, as it would in regard to the Garda ombudsman proposed in the Garda Síochána Bill currently before the House and the Ombudsman, Ms O'Reilly. A resolution would have to be passed in both Houses to allow the Government to state the name of the person. Whether a debate occurs, that is fine. However, this would be a way of bringing Parliament into the process of appointing this important office holder.
I welcome the Minister to the House and wish him well on his appointment. On being appointed, the Minister was handed a Bill which had gone through all Stages in the Dáil. It is now before the Seanad. This poses a certain difficulty in that if the House approves any amendment, the Bill will have to go back to the Dáil, although that is not a great difficulty. However, from my contacts with the organisations involved, they have no objections in this regard.
I can see the merit of the amendment. Approval by the Dáil and Seanad gives the position a certain status, which is more than a technicality. I am not sure if the Minister would wish the Bill to be delayed and my contacts with the representative bodies suggest they want it passed as quickly as possible. I do not want it delayed and am certain Senator Brian Hayes agrees. However, I reiterate that the proposal has merit and would give a certain independence to the role of ombudsman which may have been overlooked. That the appointment would be approved by both Houses would give the ombudsman extra status. Nonetheless, given the necessity for a speedy passage of the Bill and my commitment to the representative organisations, I will leave it to the Minister to decide the best course of action.
Senator Leyden has made my argument for me. He should listen to himself because he has made the argument in favour of the amendment.
Yes, I have.
The argument the Senator makes regarding delay does not stand up. We are in the House to ensure that legislation is the best it possibly can be. It is up to Members to make that judgment and we have always taken that role seriously.
We should consider each amendment on its merits, not in regard to the timeframe involved. In any case, this would not create an extraordinary delay. The Bill has been two years in gestation. While the House is happy to deal with it as expeditiously as possible and Members have always been committed to dealing with legislation as efficiently as possible, one must consider that the Bill has been in gestation for two years. Another few weeks would not make a significant difference.
What would make a difference, however, is the enhancement of the status of the office. As Senator Leyden stated, the amendment would enhance this and would underline the independence of the ombudsman for the Defence Forces. The independence of the ombudsman is an extremely important element of the office. It cannot be effective unless it is independent and seen to be so and unless those using the office and those to whom it applies have complete confidence in it. The amendment would enhance that and I support it.
I thank Senator Brian Hayes for his good wishes. I accept that the amendment and all his proposed amendments are put forward with the best intentions to achieve the best legislation. I accept that Fine Gael was very supportive of the idea of an ombudsman for the Defence Forces and put forward suggestions in the Lower House which improved the Bill. I hope the Senator does not take it as a personal reflection on him if I reject the amendments.
Not at all.
The Bill provides that the Defence Forces ombudsman will be appointed to that office by the President acting on the recommendation of the Government. This mirrors the mode of appointment of the Chief of Staff of the Defence Forces. The amendment would require the person appointed to the office of Defence Forces ombudsman to be appointed in a similar mode to other holders of statutory offices of ombudsman, for example, the original 1980 Ombudsman for the public service and the more recent Ombudsman for Children. However, these offices provide a very wide range of public functions and are available to the entire body of the general public, essentially the entire national population as regards their various functions. The Defence Forces ombudsman, however, has by definition a much more restricted potential audience and remit, namely, the serving personnel of the Defence Forces and former such personnel as subject to the provisions of the Bill. The remit of the Defence Forces ombudsman is restricted to matters internal to the Defence Forces subject to the provisions of the Bill as a whole.
I take the point about the status of the office. The amendment was initially what was wanted by the Permanent Defence Force Other Ranks Representative Association, PDFORRA. However, the Department has been in communication with the association to explain our thinking. I would not mislead the House by stating that PDFORRA is now fully in line with the thinking of the Department. The idea is to have a mode of appointment for the ombudsman which would exactly mirror that for the Chief of Staff of the Defence Forces, which will give even greater status to the office. This is the current thinking and we are ad idem with PDFORRA on this matter. In addition, not to require a resolution of the Dáil and Seanad gives more flexibility as an appointment would not have to wait until the Houses are sitting, although that is a minor point.
We have emphasised the importance of the office by providing that the office holder would be appointed in precisely the same way as the Chief of Staff of the Defence Forces. This has been discussed with PDFORRA which is now quite satisfied. With respect to all points of view, I would prefer to leave the Bill as it stands.
I appreciate the Minister's argument against the amendment. His suggestion is, in effect, that this appointment follows the same route as that of the Chief of Staff and we should accept it. However, the job description of the Defence Forces ombudsman is different, a point which goes to the heart of other proposed amendments which deal with the remit of the ombudsman. While I understand the Minister's point, it is bad practice in regard to any high level appointment, in particular when the seal of the President must be affixed before the nomination is granted, that neither of the Houses nor a committee of the Oireachtas would debate or sanction the nomination.
I am not suggesting the Bill is the only example of such bad practice. This country must move to a system where there is genuine parliamentary scrutiny of decisions taken by Government. The Government has the right to make the decision but the Oireachtas has a right not to veto the decision, but to give sanction and support to it. The way to achieve this, which the office holder would appreciate, is through some form of resolution and a debate in both Houses. We might return to this on Report Stage.
Amendments Nos. 2 and 3 can be taken together as they are related.
I move amendment No. 2:
In page 5, subsection (5), to delete from and including "such" in line 10, down to an including "exceed" in line 11.
Amendments Nos. 2 and 3 relate to the appointment of the ombudsman. The purpose of amendment No. 2 is to ensure the ombudsman is appointed for a fixed term, not for a shorter term for political expediency or as a damage limitation exercise. In the case of legislation dealing with other ombudsmen, such as in the Ombudsman for Children Act 2002, in the proposed Garda Bill, or in the original Ombudsman Act 1980, to which the Minister referred in his earlier reply, it is quite clear that a specific term is provided for, usually seven years, and then a person can be re-appointed for a second seven-year term. Our intention in amendment No. 2 is that the term should be for seven years and the Government should not be entitled to truncate that to four or five years. That would be wrong and should be changed.
Regarding amendment No. 3, we do not believe it would be beneficial to an appointee to be entitled to hold office beyond a second term. This is an important point. In the case of any high level appointment where Presidential approval is sought, it is important to state that the maximum in existing legislation is two seven-year terms. Section 2(5) of the Bill states, "and such person may be eligible for re-appointment to the office for a second or subsequent term." This deviates from the existing legislative base for all of the ombudsmen we have put in place. Fourteen years in such a position is enough for anyone. Even for the purpose of pension entitlement for high office holders, 14 years is the maximum for the President of Ireland and for the existing ombudsmen. We need consistency. It would not be good if somebody were to hold a job for 21 years but the legislation, as drafted, allows for that.
Perhaps the Minister would clarify the Government's intentions. Is it intended that the term of an appointment will be seven years, as we believe it should be, and that the maximum duration of an appointment will be two terms amounting to 14 years? There should be consistency. That is the intention in tabling amendments Nos. 2 and 3.
Senator Hayes's amendment is extremely important. At the heart of it is a very fundamental point which relates to the previous amendment regarding the nomination and appointment of the ombudsman, namely, the power of the Government regarding appointments, how that would impact on the office and on how it is seen. This paragraph gives the Government and future Governments power to re-appoint one person again and again. While that person may be very good at the job, we have established the principle, for instance, with regard to departmental Secretaries General, that it is not a job for life. That was established in the strategic management initiative. It also applies to county managers and, I am sure, to other posts that do not come to mind at the moment.
The principle is a very important one and should be reflected in the legislation. This section of the legislation gives this and future Governments carte blanche to re-appoint the same person over and over again, which is inconsistent with the thinking of the past number of years. In terms of how the position is viewed by those using it, it is important that it be seen to be as independent and as effective as possible. We need to be very careful as to the powers we give this and subsequent Governments regarding this role. In that regard, I ask the Minister to carefully consider Senator Hayes’s amendment and to accept it.
The legislation provides for a period not exceeding seven years with provision for a possible second and subsequent term of appointment. The amendments in the name of Senator Hayes would provide for a fixed term of appointment of seven years with the possibility of one second term of appointment only. The second term would presumably also be for a fixed term of seven years. That would amount to 14 years in total over two terms. The proposed amendments would allow an individual to serve for 14 consecutive years in total. Senator Hayes will say that in theory the legislation also allows for that. However, similar amendments were put down on Committee and Report Stages in the Dáil. My predecessor examined this issue very carefully during the Dáil deliberations on the Bill. Having examined the issue again I cannot, unfortunately, accept Senator Hayes's amendment.
The provisions of the Bill regarding term of appointment were drafted in order to provide flexibility in making an appointment. They were drafted not necessarily from the Government's viewpoint but from the viewpoint of potential appointees. A suitable potential appointee might be interested in filling the position for a period of three, four or five years but may not wish to undertake the task for a full seven-year term. We need to retain some degree of flexibility regarding the term of appointment. As a consequence we also require flexibility regarding the possibility of second and subsequent terms.
In the context of the new Defence Forces ombudsman it is important that artificial restrictions are not introduced into this primary legislation which could in practice serve to frustrate the filling of the post by a suitable candidate for a term of less than seven years. The Bill provides that the question of the fixing of the duration of the term of appointment should be left to the instrument of appointment, subject to the term not exceeding seven years in the case of any one or subsequent appointment. I am convinced this is the best practical operational model for this new position.
The instrument is not in the legislation. It will follow the legislation. The Minister will have the power, under his seal of office, to introduce the instrument once the Bill is signed by the President. He has already confirmed regarding the term "not exceeding" that it is conceivable under the legislation, when it is in place, that the Government could appoint someone for a five-year period. That is not good. This is a new area of legislation which has been in place only since the early 1980s. Much of the knowledge we have built up illustrates that, if anything, investigations take a very long time. It is important for an ombudsman to know he or she has a seven-year term, although it would not be a problem if he or she wanted to resign after three years. There are absolute guarantees in the legislation regarding that and the Government can make a new appointment.
However, there is no discretion given in the legislation regarding section 2(5). It is not specific enough and I would ask the Minister to re-examine this. I am playing devil's advocate in suggesting a scenario that could arise where an ombudsman comes across a practice within the Defence Forces that he or she is working hard to bring to our attention and resolve, and a vested interest contacts him or her and makes life very difficult, knowing that he or she is not guaranteed a seven-year period. I would be happier if the contents of the instrument to which the Minister has referred were put into the body of the Bill. If the Minister were on this side of the House, which is pretty rare these days, he would say the same. He would want to see the details in the Bill rather than in instruments that are introduced later. It is always a bellyaching point from those of us on the Opposition benches that most of the powers that exist regarding primary legislation follow in statutory instruments.
I ask the Minister to re-examine this issue, to be brave and to do the right thing. He will not be trampling on his predecessor who now has more time to traipse around the beautiful countryside of Tipperary. If anything he will be building on his legacy and doing something very unique in the legislation before us.
He will have time to show Senator O'Meara around the little towns and villages of County Tipperary such as Nenagh and Roscrea.
From Senator Brian Hayes's comments, I am prepared to examine the amendment's provisions. However, one runs into difficulties when micro-managing these matters in primary legislation. A suitable person for the office of ombudsman may not want to serve for a shorter period than seven years. A statutory provision requiring an ombudsman to serve for seven years may discourage suitable candidates for the post. It is not much good if a person applies for the job but resigns after five years. Flexibility is important in this matter.
The Opposition is suspicious of the Government——
We are paid to be suspicious.
It is our job to be suspicious.
——and that such plans are to give the Government super powers over and above what it already has. Flexibility is needed on this matter so the best people apply for the post. If Senator Brian Hayes's amendment, as worded, is accepted, an ombudsman appointed for seven years who was good would have to do a second term. Many a good person refused a second term in Áras an Uachtaráin because they could not face another seven years.
Very few have turned it down.
I will re-examine the amendment but I cannot accept it in its current form. There may be a middle way which can be examined on Report Stage.
When the Bill is passed, what will be the modus operandi for finding candidates and when does the Minister envisage an appointment being made?
Is the Senator interested in the job?
Only if it was a seven-year appointment.
I have no one in particular in mind for the job. It will be publicly advertised as quickly as possible and the most suitable applicant will be selected.
I understand there is no bar on persons from other jurisdictions with expertise in this area applying for the post, similar to the Canadian model.
There is no bar.
I move amendment No. 4:
In page 7, between lines 4 and 5, to insert the following new subsection:
"(3) The Ombudsman may, if it appears to it desirable in the public interest to do so and without receiving a complaint, investigate any matter that appears to it to indicate that a member of the Defence Forces may have—
(a) committed an offence, or
(b) behaved in a manner that would justify disciplinary proceedings.”.
The Bill as drafted means complaints can be taken from existing members of the Defence Forces, but with some caveats. However, it is important in the public interest that the ombudsman be given as much flexibility to investigate any matter he or she so wishes. The ombudsman will decide what is of public importance and what is not. Due to the cultures that exist in armies, people can feel confined in coming forward. There is an argument for allowing the ombudsman to take on matters of public importance of his or her volition. This is a matter of ensuring the ombudsman's independence and being given a free hand to investigate matters he or she feels are warranted. It is unwise to limit the ombudsman's investigative powers to the pursuit of complaints made to him or her.
This provision mirrors the existing proposals for the Garda ombudsman in the Garda Síochána Bill. This amendment will introduce consistency in the posts. There may be cases where complaints will not be made to the ombudsman but where it is in the interests of the Defence Forces that these matters be investigated. The ombudsman will know what is and is not important. The full independence of the office will be greatly helped by this subsection.
I support this important amendment. When the Ombudsman for Children Act was debated in the House, there was much discussion on that ombudsman's role being proactive in investigating policy areas, such as the condition of schools and in the operation of his or hers functions. Giving an ombudsman an independent proactive role is important.
The Bill states that the ombudsman can only operate on the basis of a complaint received. However, areas and practices in the Defence Forces may come to the ombudsman's attention which he or she believes to be the subject of investigation. Without a complaint he or she cannot do so. The ombudsman must have the power to independently initiate investigations, particularly on issues that come to public attention through the media, but have not been the subject of complaint from a member of the Defence Forces. This amendment provides for a valuable function in this regard and I ask the Minister to give it positive consideration.
I strongly support this amendment as it would strengthen the office and assist the ombudsman to do what is required. In the Lower House, the Minister spoke about patterns of behaviour and changes in culture that cried out for this. In my experience when I worked in an ombudsman's office without this power, it was desperate. I came up against issues that I knew needed to be investigated but unless someone made a complaint, they could not be touched. It was demeaning to the office for me to ask people to complain about matters.
In personnel areas, it is difficult for people to make complaints about bullying and sexual harassment. When I wrote the script of the Northern Irish police ombudsman, I thought it important that the post be given a power of initiative. While such a power should not be used indiscriminately, some ombudsmen overuse it. It needs to be hedged about. Senator Brian Hayes's formulation, "it appears desirable in the public interest", hedges it enough. One may find ways of requiring the ombudsman to define "the public interest". Indeed, if somebody in Army management did not agree with the proposal, there should surely be means of bringing it to the court to decide what is the public interest. It should be on grounds of public interest only and not for prurient curiosity or for a fishing expedition. The ombudsman should be forced, if necessary, to justify his or her allegation that it was in the public interest. This would, inevitably, strengthen the office of the ombudsman. It would be a much weaker office if the Minister did not allow this. I hope he can agree to the amendment.
I have studied this amendment carefully and listened to what Senator Maurice Hayes has said. Given his experience, it would be unwise not to take on board his viewpoint. However, from a Defence Forces' perspective, the institution is somewhat different in that a body of personnel is subject to civil as well as military law and is governed under the Defence Act. The military police investigate matters of concern. In my time in the Defence Forces, I never saw occasions when the Defence Forces were afraid to investigate matters. Reading this amendment, I would be somewhat nervous that the office of the ombudsman could turn into a type of inspectorate. We could have situations where there could be civil and military police investigations and where the ombudsman could move in because he or she decided it was in the public interest.
When looking at a body such as the Defence Forces, one must accept the uniqueness of the fact that they are governed by military law and there is a system in place. If the ombudsman was suspicious that a member of the Defence Forces had committed an offence or behaved in a manner which would justify disciplinary proceedings, he or she could seek to commence an investigation. I would be concerned that we could over-investigate and, in a way, weaken the position of the ombudsman.
I appreciate what Senator Maurice Hayes said and I can imagine an ombudsman sitting in his or her office waiting for a complaint to come on a matter of interest he or she felt should be investigated. However, I would be more than surprised if the Defence Forces had not initiated an investigation within its own system and network. As I said, if there is a civil investigation into a member of the Defence Forces, one can rest assured it would be automatically mirrored within the Defence Forces system. It would be triggered automatically. There have been occasions when a military investigation taking place in the Defence Forces has warranted a civil investigator being called in because it has overlapped into civil law. For that reason, I would be a little uncomfortable if we were to proceed down this road.
I take on board what has been said by Senators about the potential reluctance of people to come forward and make a complaint. We have engaged in a number of initiatives to deal with that into which I will go if Senators wish.
In regard to this amendment, it is an essential principle of the legislation that, subject to the provisions of the Bill, the Defence Forces ombudsman may investigate an action that is the subject of a complaint made to him or her by a person affected by the action. It is an essential condition, therefore, that there must be an identifiable individual complainant in place. This proposed amendment would depart from that basic concept. One cannot envisage how, in practice, the Defence Forces ombudsman could autonomously commence an investigation into an action in the absence of either a complainant or a complaint.
Moreover, this amendment would apparently place the ombudsman in the position, as Senator Minihan indicated, of determining whether an offence under military law may have been committed or whether disciplinary proceedings under military law would be justified. This is a role strictly confined to the relevant military legal authorities at brigade or service levels and at the level of the office of director of legal service, the deputy judge advocate general. The ombudsman has no legal power or competence to attempt to make such professional judgments in the area of military law and, for those reasons, I cannot accept the amendment.
I thank Senator Minihan for his intervention but I understand the distinction between military law and the civil code. That is not really what this amendment is about. I also welcome the comments made by Senator Maurice Hayes. What about the situation which existed in a number of barracks in Northern Ireland and England some years ago where particular practices of harassment were taking place against young NCOs? No complaint was made and no action could be determined. The issue only took off when an investigative programme brought it to public attention. That is the type of issue about which I am talking. Given the culture which might exist — this is a particular culture within the Defence Forces — we need to ensure the ombudsman is given the power to initiate an investigation if a matter comes to public attention, otherwise he or she will be neutered in his or her role.
My amendment may well be deficient in terms of its limitations, and I would be the first to concede that. However, there needs to be a wider remit if the ombudsman is to be independent. What would happen if, for instance, six months after the appoint of the ombudsman, a major investigative programme came out about a particular practice but no one had complained or there had been no defined action in the case? The ombudsman would be there sitting pretty and could not take on the case and investigate it of his or her own volition. We, as legislators, would be putting the ombudsman in an impossible position.
The Minister might consider this amendment again. We want to give the ombudsman the maximum power to use his or her own discretion. In the majority of cases, given the existing parameters in section 4, he or she would be able to make the decision based on the available evidence. Issues of public concern come to public attention from time to time in which the ombudsman should be involved but he or she could not be involved if the legislation, as drafted, goes through the House. I ask the Minister to give this some more thought. I understand the point he makes but that is not the point of the amendment which is about practices coming to the attention of the public where there is no specific complainant and where the issues involved need to be aired.
I defer to Senator Minihan's knowledge of the Army and I am grateful to him for his intervention. These are closed, hierarchical societies. The experience I have had of doctors, policemen and soldiers is that they have all told me their areas are so private and so important that nobody outside can understand them and that they will deal with matters themselves. They should deal with most issues themselves but, increasingly, the professional judgments of closed societies are being doubted by the public. An important part of this is reassurance of the public and of individual members of the Defence Forces.
I suggest the Minister might look at the definition of "exception". One does not want the ombudsman ploughing all over the place or setting himself or herself up as an inspector general. One is thinking of a small number of people and of the issue about which Senator Brian Hayes spoke where the malpractice only arose through a plethora of suicides. One could narrowly define that. Perhaps the Minister and the draftspeople could look at the possibility of narrowing and restricting it to definable public interest and at making it clear that it is not an intervention into military law. This might be helpful. It would be a pity if the Minister dismissed it out of hand.
Senator Brian Hayes referred to the exposé which will take place six months after the appointment of the ombudsman.
I do not have any further knowledge on it.
I can assure him from my knowledge of the military that if such an exposé were to take place, the programme would not be over before the military authorities would have the director of military police on the line and a military investigation would be started immediately. That is my experience.
I accept what Senator Maurice Hayes said about closed societies. No one was more frustrated in the Defence Forces than I. The attitude was, close the gates, build the walls higher and let nobody in. I held the opposite point of view, that we should be out selling ourselves and the job we did.
As I said on Second Stage, we have to be very careful we do not go down the road of over-civilianising the Army. Armies are different. I do not envisage——
Every profession is different.
Senator Brian Hayes should allow me to speak. I am genuinely trying to contribute to the debate by bringing on board my 21 years of experience in the Army which I believe is relevant to the discussion.
Things take place in military training that would be in breach of all manner of legislation if they were to take place in civilian training. I would not like to have an ombudsman sitting at home watching a video of a military training exercise in the Glen of Imaal. He would not be happy that the poor soldiers are being shouted at or how they are bullied and harassed. The reality is that one is dealing with people who are commanding lethal forces, not a group of office managers or bank managers. An officer may have to shout and roar at some fellow who has frozen under fire because he wants him to move, either to save his life or the lives of those in the section, platoon, brigade or battalion under his command. That is the way it operates.
People are trained in such a manner that they will react to orders and to a particular tone. We cannot have debates and discussions as to whether we should go left, right or up the middle when we are under fire. The commander makes the decision. I would fear for this practice if the military structure is over-civilianised. It is most definitely not to allow the military to hide everything nor to allow the hierarchical command cover up everything. In addition to civil law we have military police, military law and the Defence Act, and now we will have ombudsman legislation, which I welcome.
At the end of his contribution, Senator Maurice Hayes asked the Minister to try to address this matter by another means. That is the way to go. The amendment before us would be the wrong way.
This is an interesting debate on a very important point. Unlike Senator Minihan, I have no knowledge of the Defence Forces and I listened with great respect to what he said.
We are appointing an ombudsman because there are concerns that one is needed. An ombudsman has been requested. We are responding to a clearly stated need from within the Defence Forces themselves. That is a fact. We did not come up with the idea here. It has come from the organisations themselves. The need for an ombudsman has been clearly stated.
By nature, the ombudsman would be independent in his or her functions. An independent office is required and that is what we are putting in place. However, we are limiting its operation which may be for the best, given what Senator Minihan said, that we should not civilianise the military. I accept that point. From time to time, however, there may be a public interest override on certain matters. We need the military to operate as a military force, to be disciplined, effective and ready for whatever action it is required to take in whatever fora and countries the Government decides it should operate.
The amendment relates to a public interest override. I agree its wording may not be perfect. In light of what Senator Maurice Hayes said, I urge the Minister to consider the need for a public interest override in the legislation. Will he come back to us on Report Stage with an amendment to insert a public interest override power for the ombudsman? I accept it would only be used in very limited circumstances. It is possible that something could emerge from what clearly is a closed environment, and perhaps by its nature it needs to be so, that an individual or groups within the Defence Forces feel for whatever reason cannot be the subject of a complaint. It is not enough that a matter is investigated inside the military, although that is important and essential. If it is a matter of major public concern people should know that an official outside the Defence Forces is examining the matter and reporting on it in a public manner. This legislation gives us the framework to do that. I ask the Minister to give serious consideration to giving the ombudsman the power of initiative in the public interest, should the need arise.
If it were possible I would propose an amendment on the floor. I am only now seeing the limitations of the amendment. An amended version of section 4(3) could read: "The Ombudsman may, if it appears desirable in the public interest to do so and without receiving a complaint, investigate any matter that is brought to his attention." That gives full power to the ombudsman to decide what he should do.
The difficulty comes when one starts specifying. I accept the point made by Senator Minihan about this regarding paragraphs (a) and (b). We could just leave it open-ended. He will make a distinction between crackpot cases and genuine ones.
Senator Minihan referred to the over-civilianisation of the Defence Forces. I am sure he is aware that under section 2 the person who is the office holder is not a member of the Defence Forces but a civil servant.
That is correct. I accept that.
That is important because he is coming from a totally different perspective.
I want to make one point and I may be way off the mark in saying this but when I speak to non-commissioned officers in my constituency, they tell of the upstairs-downstairs attitude that exists. That is part of the problem. People with authority have to use it in a very firm way to ensure discipline, and all the things to which Senator Minihan rightly referred, but sometimes that goes over the mark. We need someone who will have the necessary breadth of experience to tackle these issues but who can also take a case of his own volition. This would be a considerable strength to the office holder who will know the distinction between what is significant and insignificant. The net point is to counter the upstairs-downstairs attitude that, unfortunately, exists. It would give a voice to many people in the Defence Forces who feel that sometimes their voice is ignored when complaints are made.
Is the ombudsman a voice for the small men and women of the Army? Yes, but the office is there for a good reason. I would not tie anyone's hands as set out in the existing legislation. We need to be much more flexible. If the Minister tells me there is a better way of putting forward amendment No. 4 than we have done, then I am all ears and will meet him half way. However, I believe we are considering a crucial point in respect of the Bill.
I agree with Senator Minihan as a man of great experience in the Army. The amendment may well have been tabled with a concern for Army personnel in charge of prisoners as against those in command of regular serving ranks. Is the concern based on what has happened elsewhere, as seen on television perhaps, with regard to Army personnel?
This is an interesting debate and all sides have put forward worthwhile viewpoints, to which the Minister has listened carefully. The most experienced person here is Senator Minihan who has served 21 years with great distinction in the Army. He has great feeling for that particular job. Senator Maurice Hayes, who is a former ombudsman, also brings experience to bear. The appointment of an ombudsman for the Defence Forces is a major step forward. All the different structures, as outlined by Senator Minihan, are still there — the military police, military law, the upper echelons, including the civilian secretariat, and the Minister himself. I am not sure whether the Minister would have any powers to direct the ombudsman to look into any particular area of concern. However, we have gone far enough. Senator Brian Hayes's view is that where there is a difficulty between different ranks it is not the job of the ombudsman to work out the differences arising from the upstairs-downstairs mentality he alleges exists. I have not come across this and believe great respect is shown among serving personnel on all sides in the Army. It would be unnecessary to have such a provision and I believe the Minister should literally stick to his guns on this particular issue.
It has been an informative debate for a civilian such as myself——
First, I would like to thank Senator Maurice Hayes for giving us the benefit of his vast experience from the position of ombudsman, and also Senator Minihan for giving us his insights on what exactly it is like working inside the military structure. Listening to Senator Minihan I am reminded of what the Duke of Wellington said when he was asked to compare being in charge of a government to being in control of an army. It is a whole different world. I will not give the House the exact quotation.
What did he say? Was it unparliamentary?
I will tell the Senator afterwards.
The Duke of Wellington would not have had an ombudsman.
One of the major concerns relates to when there is some pattern of behaviour that should be investigated, yet people are gripped by fear and cannot come forward. How is that type of situation investigated? What Senator Brian Hayes says is compelling. It would be much more compelling, however, if this debate were taking place before the publication of the Doyle report, Challenge of the Workplace, in 2002. It is fair to say the Doyle report revealed widespread bullying and harassment within the Army and that people were afraid to come forward. There was no proper system of formal or informal complaint. That has changed considerably since the Doyle report. Much has been done in the past two years, as the follow-on report published on 24 September last by my predecessor, Deputy Smith, will show. Having said that, much remains to be done. For example, 200 direct contact persons are now being put in place within the Army. These will be identifiable as people serving personnel may talk to who will listen to problems and respond to them in a non-judgmental fashion, while offering advice on what may be done and where to go. Anybody accused of victimising someone, even if the complaint turns out to be unfounded, will be subject to military discipline in his or her own right.
I want to see the Doyle report working its way through the system. Another review will be carried out in two or three years time. When all the report's recommendations are in place, a formal and informal system will exist where anybody with a legitimate complaint need have no fear of intimidation in coming forward. Comparison has been made with the Independent Garda Ombudsman Bill 2001. I was involved in the preparation of that Bill. Deliberately and as a matter of policy, the Garda ombudsman is a dual function office. It is an office where complaints may be lodged about the activities of individual members of the Garda Síochána, but it is also an inspectorate.
What has been decided in talks with the Army and its representative associations is that the ombudsman for the military would have one function, which is as a final court of appeal for someone making a complaint. Up to now the final court of appeal was the Minister of Defence or in recent years the officer known as the CIO who would normally make a recommendation to the Minister, which was usually accepted. That system was ultimately deemed unsatisfactory and an ombudsman, along the lines now being proposed, was the preferred solution of the Army and its representative organisations. It is intended here that the ombudsman for the military replace the Minister for Defence as the final court of appeal as regards a complaint which has gone through the system. There was no suggestion at any stage that the Minister, as the final court of appeal, could initiate an investigation. That was not part of the system. It has been agreed to replace the Minister with the ombudsman. The deal is that the ombudsman is the final court of appeal, not that he or she will have an inspectorate role as well. That would be a totally unwarranted extension of his or her duties. I would have no authority, unless I went back to Government, to allow the ombudsman to have this second function.
One may argue for and against, but another example occurs to me. Suppose the ombudsman did have the power and went to investigate a particular situation when certain matters came to his or her notice and subsequently a complaint was made. The investigator here will be the final court of appeal. The ombudsman will obviously be influenced already by what has been heard in his or her investigative role. However, it is to the ombudsman that the complainant makes the final appeal. That appears to me to be a difficulty, but perhaps it is one we may get around. I take on board what the Senator is saying, namely, that it might be possible in the most extenuating or exceptional circumstances to give the ombudsman the power to initiate something himself or herself. I am certainly prepared to examine that. I doubt, however, that it will be possible to frame the legislation in such a way as to prevent the ombudsman, in effect, from getting the dual role which the Garda ombudsman has but which nobody intended this office to have in the first place. Nonetheless, I will examine the matter between now and Report Stage.
I strongly argue against a dual role for the Garda ombudsman. I thought the Minister for Justice, Equality and Law Reform, Deputy McDowell, had actually resiled from that. Perhaps he has not.
I thank the Minister for his reply. The net point is that there is a distinct difference between a specific complaint involving a named individual, occurrences, etc., as against the practice. My concern is that bad practices which could be to the detriment of the Defence Forces in the long run, have no likelihood of being exposed if a complainant does not come forward. I believe that the power to investigate, as modified by the Minister if an amendment can be framed, could be useful. An ombudsman would look ridiculous if some practice is exposed to the public within the forces or between the forces and the general public and he or she has to sit on his or her hands, so to speak. I am intent on tabling another amendment on Report Stage to try to make it more specific in terms of defining the public interest. I understand the dilemma the Minister is facing. I will withdraw my amendment with a view to tabling it on Report Stage.
I was confused for a moment by the two Senator Hayes. You will forgive me if I was looking in the wrong direction.
I defer to the wiser Senator Maurice Hayes all the time.
As indeed do most of us.
I move amendment No. 5:
In page 8, before section 5, to insert the following new section:
5.(1) The Ombudsman shall provide the following persons with sufficient information to keep them informed of the progress and results of an investigation under this Act if the investigation resulted from a complaint—
(i) the complainant,
(ii) the member of the Defence Forces whose conduct is the subject matter of the complaint,
(iii) the Adjutant General, and
(iv) any other person that the Ombudsman considers has a sufficient interest in the matter.
(2) The duties imposed by subsection (1) do not extend to requiring the Ombudsman to provide information the disclosure of which would, in its opinion——
(a) prejudice a criminal investigation or prosecution,
(b) jeopardise a person’s safety, or
(c) for any other reason not be in the public interest.”.
This amendment seeks to add a new subsection at the end of the section dealing with the functions of the ombudsman. The ombudsman's functions are clearly set out but one of the aspects he or she should adhere to is the right of people to be kept informed. If a complaint was made against me I would like to know about it in due time. Equally, the complainant needs to be kept informed of the ongoing investigation but there is no reference to that in the Bill. We are attempting to set out, in this section concerning the functions of the ombudsman, a legislative duty that the ombudsman shall keep people informed about the process of an investigation. No one is putting a time limit on that but in the interests of fairness, complainants and those at whom a complaint is directed have a right to know what is going on.
We state in subsection (2) paragraph (a) of the amendment that this should not prejudice a criminal investigation or jeopardise a person’s safety. We also refer to the public interest. We believe there is a responsibility on the ombudsman to be fair in terms of the procedures.
The Minister might say he intends to do that by way of an instrument but am I right in saying our amendment mirrors section 95 of the Garda Bill he referred to in terms of the duties on the ombudsman to keep people informed of the stage of the complaint in terms of logging the system? If a complaint was made against me and 12 months later I had heard nothing about it, I would be peeved. There is a responsibility on the complainant, and for the person against whom the complaint is directed, to ensure that person is informed of what is taking place. That will ensure fairness and transparency in the new procedure we are setting out.
A technical modification might be necessary to this amendment where Senator Brian Hayes refers to the adjutant general. The position of adjutant general no longer exists in the Defence Forces. Deputy Chief of Staff — Support would be the correct term for the position to which he refers.
I am a little surprised by this amendment because a number of sections address the point raised by Senator Hayes. In sections 7(4) and 7(6) there is an onus on the ombudsman to inform. In addition, section 9(2) deals with the conduct of investigations. Senator Hayes said that if a complaint was made against him and he heard nothing for 12 months, he would be peeved. He would be right to feel peeved but I believe that is covered in the section which states that the ombudsman has to report back. The comments made in proposing this amendment are not a fair reflection of the legislation before us.
This amendment proposes to insert into the body of the primary legislation detailed references to matters of administration which I believe would be more properly provided for at the discretion of the ombudsman. We should not micro-manage the investigation system in the primary legislation. The matters referred to do not require an insertion into the primary legislation. As Senator Minihan said, there is broad provision in the Bill in sections 7(1), 7(2), 7(4) and 7(6) and in section 9 as regards the essential aspects of the manner in which the ombudsman is to conduct an investigation.
Section 9(3) states: "The procedure for conducting an investigation shall, subject to any regulations under subsection (5), be such as is considered appropriate by the Ombudsman, having regard to all the circumstances concerned.” In other words, procedures should be left to the independent discretion of the ombudsman in each individual case.
The provision of relevant updated information about the state of progress of an investigation to relevant parties, as deemed necessary, would be a basic aspect of administration. Such a matter should not be provided for in a mandatory way in primary legislation because each case will depend on its own facts. Generally speaking, everybody will be kept informed and the regulations will provide for that.
I missed my cue on the last occasion but I thoroughly agree with the Minister. These are matters of office management and good practice and they are better left at that level.
I withdraw the amendment. I have been bowled over by the arguments on the opposite side of the House. They have demolished my confidence at this stage and I am not sure if I can continue. Next we will be proposing an ombudsman for boy scouts, which I know something about.
I presume the Senator's namesake delivered the coup de grâce.
I move amendment No. 6:
In page 9, subsection (1)(g), line 5, after “Act” to insert “(provided that a complaint may be made within the 12 months immediately following the commencement of this Act regarding an action which is taken before the commencement of this Act)”.
This amendment allows for a complaint to be made to the ombudsman in a one-off period of 12 months prior to the enactment of the legislation. In other words, a complaint could be made referring to the period of 12 months before the legislation comes into operation. The Bill, as drafted, prohibits that and therefore anything that happens before the legislation comes into operation is not allowed. It would not be right to have a long period before the legislation is put into operation during which a complaint could be made but this amendment proposes having a one-off period of 12 months before the enactment of the Bill during which period a complaint could be made.
I referred earlier to the fact that the Bill is two years in gestation, which is not long by any means, but that is the period from which the principle was agreed, particularly with the representative bodies. We are of the opinion that the provision allowed for in this amendment would create a greater level of fairness and confidence in the operation of the Bill.
I read the Official Report of Committee Stage of the Bill in the Dáil, with reference to this amendment in particular, and I note that the Minister's predecessor, Deputy Michael Smith, did not give us a commitment in regard to it. I hope this Minister will bring his own point of view to it.
We are not referring to complaints about something that happened 20 years ago. I note the former Minister, Deputy Michael Smith, referred to that saying that new Deputies would highlight problems that could not be solved over the years. I think I know what he was referring to. It was a particular issue that arose in the constituency, of which we all had experience, that did relate to the Defence Forces but under which a line was drawn for a number of reasons. I am not referring to that. We want to provide for a period of 12 months before the enactment of the legislation in order to make the enactment of the Bill as fair as possible.
I listened carefully to what Senator O'Meara said. As I understand it her intention is to allow people to go back with complaints which originate within the 12-month period before the commencement of the Bill. The difficulty is in the way her amendment is drafted where it states, "a complaint may be made within the 12 months immediately following the commencement of this Act regarding an action which is taken before the commencement of this Act". Presumably that would enable one to go back to 1922. I take it that is not——
Or earlier for others.
Yes, indeed. In regard to a complaint made about an action where that action predates the commencement of this legislation, the revised Bill incorporating ministerial amendments provides that such a complaint can still be referred to the Minister under section 114 of the Defence Act 1954 as at present. I draw the Senator's attention to the comprehensive ministerial amendment to section 13 of the Bill as originally published. The amendment as proposed would have the effect that a complaint could be referred to the ombudsman concerning any action which predated the commencement of the new legislation provided only that the complaint is made within 12 months of the date of commencement. I realise this may not be the Senator's intention.
Apart from the impracticality of persons potentially making complaints to the new ombudsman about alleged actions which may have occurred many decades ago, this amendment would also be inconsistent with the existing provisions of section 6(3) which places a time limit of 12 months from the date of an action or of the complainant's awareness of an action within which the complainant may submit a complaint.
I move amendment No. 7:
In page 9, between lines 36 and 37, to insert the following new subsection:
"(4) In this section 'serving member' means—
(i) a person in the service of the Defence Forces, including a recruit;
(ii) a former active member, including a former recruit;
(iii) a retired member;
(iv) applicants to the Defence Forces; and
(v) a civil servant in the service of the Defence Forces.".
We propose to enlarge the definition of the term "serving member". We are aware of the legislation in Canada as referred to earlier which grants much greater eligibility to people wishing to make specific complaints to the ombudsperson or ombudsman. Can the Minister tell me whether the term is ombudsman or ombudsperson?
It is an ombudsman.
Ombudsman, I apologise.
It can be a he, a she or an it.
Speaking with the full weight of my position here, it is actually genderless.
It is genderless, even though it is an ombudsman.
Is that not an extraordinary piece of information?
That is something I have learned today. I thank the Acting Chairman. There is a solid argument for recruits to be included, those who applied to the Defence Forces. I am not suggesting that because one was not selected as part of the officer group for 2005 one should immediately complain to the ombudsman but there may be circumstances in which people felt they had been dealt with unfairly in their dialogue with the Defence Forces. We include the category of recruits or former recruits and applicants. In the Canadian model there is a much wider definition of complainants than in this section. I will be interested to hear the Minister's response to that.
A recruit is a member of the Defence Forces, as distinct from the Canadian system, or even the Garda system whereby a garda in the Garda college is a student, as distinct from being a member of the Garda Síochána. There is a clear distinction. It is only in phase 3 that he or she becomes a member of the Garda Síochána. Before a recruit puts on the uniform he or she is attested as a member of the Defence Forces. Once a person is in the service of the Defence Forces, whether he or she is a recruit, an officer or NCO, he or she is a member of the Defence Forces, there is no distinction. There is such a distinction in the Garda Síochána.
In regard to the phrase "a former active member" I thought all members of the Defence Forces were active. I hope they are because if not they should not be in it. In regard to the term "former recruit" the legislation covers former members of the Defence Forces so I do not understand that. It also covers retired members. If Senator Hayes succeeds with this amendment I will have many complaints going back to my cadet days in 1975.
If the Senator continues talking I might complain about him myself.
The only place "applicants to the Defence Forces" will encounter the Defence Forces is through the interview process. If the case is so severe and the traumatic interview has taken so much out of him or her, then he or she can go to the Ombudsman, as distinct from the ombudsman for the Defence Forces. The legislation also covers the civil servant. Perhaps Senator Brian Hayes would like to clarify his amendment for us.
I too find the amendment somewhat tautologous in that I wonder what is the difference between a former member and a retired member. I take issue with Senator Minihan on the question of applicants. They should have somewhere to go.
They can go to the Ombudsman.
Very well. Several complaints arise out of that process. I would be uneasy too about the inclusion of a civil servant in that section because civil servants come under the remit of the Ombudsman and it should be left that way. Otherwise an ambiguity arises as to where the civil servant addresses complaints. The last thing one wants is a form of ombudsman shopping. It would be better to be silent on that point and leave it as it is.
The proposed amendment concerns the prescribed categories of person who may complain to the Defence Forces ombudsman. The published legislation provides that complaints may be made to the Defence Forces ombudsman by serving and former members of the Defence Forces, subject to the other governing terms in the legislation. A complaint may be made in respect of a matter internal to the Defence Forces where the complainant feels adversely affected. The general body of serving members and former members of the Defence Forces will be able to utilise this legislation and to access the Defence Forces ombudsman as provided for in the legislation. This includes recruits and cadets. There is no reason civilians who have never served in the Defence Forces would need to make an application to the Defence Forces ombudsman regarding internal defence force matters.
Civilians have recourse to the Ombudsman for the public service and to the Minister on matters concerning the Department of Defence and the Civil Service. Typical examples would be queries about civilian employee pensions, matters connected with property owned by the Department of Defence and civilian applications to join the Defence Forces. None of these matters is proper to the specific role of the new Defence Forces ombudsman. In particular, the Defence Forces ombudsman legislation is not relevant to civilian employees of the Department as those individuals are non-established civilian employees of the Department of Defence.
Many are craftsmen while others perform various clerical functions in stores and so on. While they work with the Defence Forces their employment is subject to the normal body of civil employment legislation. They enjoy exactly the same employment rights as all other non-established State employees employed by the Office of Public Works and by certain other Departments. Their interests are represented by recognised trade unions at the joint industrial council for non-established State industrial employees of Departments. They are not subject to military law or discipline. In light of the entirely comprehensive nature of the provisions of the published legislation I must reject this amendment.
There is no protection here for whistleblowers. Compared to many EU countries our legislation is deficient in this area. I can think of a category of civil servants working regularly with the Army who might well come forward on any matter with which they are dealing and bring it to the attention of a new ombudsman which would have a direct impact on how the force is governed and run and the immediate recourse open to them is through the existing Ombudsman. This amendment, albeit with some of its defects modified, would be of benefit to whistleblowers. As the Minister knows, the Government made a commitment to introduce such legislation but has not done so yet. This is the kind of provision that would help whistleblowers tell their stories if they saw something peculiar or irregular.
I am glad Senator Maurice Hayes raised the issue of applicants. A consistent bone of contention for many people is how they can get into the Army and particularly into the senior ranks. Nobody should be concerned if a light were shone on that area. All kinds of allegations were made in the past, most of them unfounded, about political involvement. Applicants form a very important category and should be allowed to make complaints in this area. Senator Minihan said they could go through the existing Ombudsman framework. However, we are now appointing an ombudsman to deal with all aspects of the Defence Forces. Earlier we debated how broad and free-ranging we wanted the new ombudsman's role to be. We still have no whistle-blowing legislation; if we did we would have no need for this amendment, particularly as it refers to the fifth category of a civil servant in the service of the Defence Forces.
Some years ago my colleague, former Deputy Charles Flanagan, chaired an all-party committee of both Houses that issued a report recommending the abolition of the commitment civil servants are required to make under the Official Secrets Act. This is now redundant and prevents people coming forward with information that could be in the public interest. Irrespective of the comments of Senator Minihan, I contend that particularly as it relates to the fifth category, an argument can be made for whistle blowing and this is the vehicle through which it can be done.
Recruits and cadets are enlisted serving members. Applicants can apply to the public services Ombudsman. They can complain to the Minister for Defence in general terms in the first instance. The Ombudsman might insist on that because all other avenues must be exhausted before going to the Ombudsman. No civil servant is in the service of the Defence Forces. They are civil servants of the Minister. While I take Senator Brian Hayes's point about whistleblowers, the matter was raised on the Order of Business in the Dáil this morning and that legislation is imminent. That is the best way to deal with the issue. A significant number of people have recourse to the ombudsman for the Defence Forces. Senator Brian Hayes will know that under the existing system, the Minister as the final court of appeal was only available to enlisted personnel. For the first time we have moved a considerable distance beyond that. I believe we have found the right balance.
I move amendment No. 8:
In page 13, subsection 3(a), lines 26 to 27, to delete “to the public interest or”.
Again in this section the devil is in the detail. This section refers to secrecy, which is very important in the context of the Defence Forces. I suppose it is the Minister's right to withhold information. The principle is very important and clearly must be contained in the legislation. I am concerned over the extent of the Minister's authority to withhold information. Section 10(3)(a) states: “The Minister may give notice in writing to the Ombudsman, with respect to any document ... that would, for the reasons stated in the notice, be prejudicial to the public interest or to security.”
This relates to defence and military matters. One can understand that the Minister should have power to withhold information, documents, etc. in the interest of security. I am concerned at the inclusion of the words "public interest" in this section. I note that no definition of "public interest" exists. We approached this from a different angle when discussing Senator Brian Hayes's earlier amendment on the role of the ombudsman. At the time I commented that a public interest override should exist and on Report Stage I intend to table an amendment giving the ombudsman that power.
In this section the public interest is referred to in an entirely different context by stating that the Minister may withhold information in the public interest. However, I assume the Minister must decide what is the public interest, as the legislation does not do so. This may be defined in other legislation. I know that during the drafting of the freedom of information legislation by my colleague, former Deputy Eithne Fitzgerald, with whom I worked at the time, much discussion took place about having a public interest override in the context of whistleblowers as referred to by Senator Brian Hayes. However, this section gives the Minister the authority to decide what he or she would withhold in the public interest. That is a very broad power and should not be contained in this legislation; hence my amendment to delete it.
The amendment does not propose changing the Minister's right to withhold information in the interest of security as clearly that provision makes sense. However, I am concerned that the Minister is being given far too much power to withhold information from the ombudsman.
Section 10(3)(a) states, “The Minister may give notice in writing”, and not, “shall give notice in writing.” What would happen if the Minister does not give notice in writing? How is the public to know what is being withheld? It is important that the public has a way to know what has generally been withheld. This would allow somebody, probably the ombudsman, to let us know in response to a query the extent of withholding of information by the Minister in any particular complaint.
Section 10(3)(a) prescribes the powers of the Minister to give written notice to the Defence Forces ombudsman to preclude disclosure other than to the ombudsman and his office any specified documentation, information, etc., on grounds that any such disclosure would be prejudicial to the public interest or security. The Senator’s amendment seeks to remove the public interest ground. In the first instance the section specifically requires the Minister to provide within the written notice to the ombudsman a written——
The section states "may" and not "shall".
—— statement as to why, in the opinion of the Minister, that disclosure would be prejudicial to the public interest or to security. Section 10 deals with the important matter of secrecy of information, a sensitive matter given that the Defence Forces ombudsman will by definition be involved in the investigation of complaints originating in the military environment. Notwithstanding this, there is a desire to apply a liberal interpretation to the practical remit of the ombudsman as provided for in the legislation. While a pending investigation might potentially involve touching upon some tangential aspect of military security, I would generally be reluctant to preclude the ombudsman from carrying out an investigation into a complaint merely on that tangential ground alone. However, as a concomitant defence for much wider general interest the legislation must provide appropriate safeguards against disclosure of certain types of information the disclosure of which, in the opinion of the Minister of the day, would be detrimental to that wider general public interest.
Senator O'Meara mentioned that the section states "may".
Yes. Section 10(3)(a) states, “The Minister may give notice in writing.”
I will examine that issue. My intention is that the Minister will have to give notice in writing of his reasons for asking the ombudsman to suppress the information. I will consider that point.
I thank the Minister, especially for his last remark which makes a major difference. It is fair enough that the Minister will have to tell the ombudsman what is being suppressed and why he is requiring it to be suppressed. The broad issue is that the Minister will be allowed to suppress information in "the public interest", even though we do not know what that public interest involves. The public interest must exist because it is being referred to in this legislation——
——albeit without definition. The Minister could actually make it up. The public interest has not been specified. The Minister might say he is suppressing it in the public interest, but we will be relying on the Minister's personal interpretation of the public interest. It is much too broad.
The ombudsman will be given the power to challenge that if he or she so wishes.
That is fair enough, but I think the section as drafted is too wide. I will withdraw the amendment for the moment. I will see what the Minister has to say on Report Stage and consider my options then.
As amendment No. 10 is consequential on amendment No. 9, both amendments may be discussed together, by agreement.
I move amendment No. 9:
In page 16, subsection (2), line 4, to delete "in the Civil Service of the State".
This has been a rather fallow afternoon for Opposition Senators, but the Minister may choose to accept these amendments. The wording of this section is an example of verbiage, which the Minister does not like. Section 14(2) states, "a member of the staff of the Ombudsman shall be a civil servant in the Civil Service of the State." I am not aware of any civil servant who is not a civil servant of the State, although someone may be able to point out such a civil servant to me. We need to remove such verbiage. I propose that section 14 (2) be amended so that it states, "a member of the staff of the Ombudsman shall be a civil servant."
I have tabled amendment No. 10 because I believe that, like amendment No. 9, it gives greater definition to the Bill. I propose to delete section 14(5), which states, "In this section "civil servant in the Civil Service of the State" means a person holding a position in the Civil Service of the State"." That is inconsistent with section 36 of the Civil Defence Act 2002, from which I have taken the wording of my amendment No. 10, which proposes to replace the words to be deleted with, "in this section 'civil servant' means a person appointed within the meaning of the Civil Service Regulation Act 1956." I think the Minister can give way on this issue because my wording is much clearer and cuts out the verbiage.
We need plain English.
The Office of the Chief Parliamentary Counsel and all people concerned with drafting legislation have tried to do so in clear and plain English. The Minister should strike a blow for those of us who believe in plain English by accepting these amendments, which I am sure he will do.
The Senator's suggestion might be construed as leading the witness.
I am a fully paid-up member of the plain English society. There seems to be some confusion about the definition of the term "civil servant". The Bill provides generally that the term "civil servant" has the meaning assigned to it by the Civil Service Regulation Act 1956.
That is the same definition as that in the Ombudsman for Children Act 2002 and the Ombudsman Act 1980.
Section 14 of the Bill deals specifically with civil servants who will be employed in the new office of the ombudsman of the Defence Forces. The provisions of the section reflect the corresponding provisions of section 10 of the Ombudsman Act 1980 and section 21 of the Ombudsman for Children Act 2002 in providing that, "a member of staff of the Ombudsman shall be a civil servant in the Civil Service of the State", as opposed to a civil servant of the Government, the latter being typically a civil servant working in a line Department under a Minister.
Senator Brian Hayes's amendment would mean that the circumstances of those working in the office of the Defence Forces ombudsman would be different from the circumstances of those working in the offices of the other two existing statutory ombudsmen to which I have referred. While I accept that the language proposed by Senator Hayes is better, I regret that I cannot accept his amendments because I have difficulties with their content. To put it simply, it would not be acceptable for somebody who is a member of staff of the office of the Defence Forces ombudsman to be a servant of the Minister for Defence. I do not think that would be appropriate.
I accept the Minister's argument that there are two categories — civil servants who work in line Departments and civil servants who work elsewhere.
I am referring to the latter category in my amendment. It does not make any sense to refer to "a civil servant in the Civil Service of the State." The definition I have proposed is much more precise. I might return to this matter on Report Stage, but I will withdraw my amendment now so that we can conclude our consideration of all the amendments at 5 p.m.
I move amendment No. 11:
In page 17, before section 18, to insert the following new section:
"18.—Within three months of the passing of this Act, the Minister shall cause to be published a further version of the Defence Acts Restatement which shall incorporate this Act.".
The new section proposed in this amendment calls on the Minister after this Bill has been passed to amend the Defence Acts restatement, which was published by his Department as an attempt to codify all the legislation in a particular Department's remit. In fairness to the Department of Defence — the Minister can take his hat off in this regard — it was one of the first Departments to produce a codified book of legislation under the Government's consolidated legislative proposals. The excellent restatement book will become outdated after this Bill has been passed because it will not include the consequent new Act. The proposed new section states, "within three months of the passing of this Act, the Minister shall cause to be published a further version of the Defence Acts Restatement which shall incorporate this Act". I will withdraw my amendment if the Minister responds by saying that will be done anyway. The intention of my amendment is to prod the Minister in that direction.
One does not have to read many documents together because all the legislation has been codified or restated recently.
Senator Hayes is aware that the general body of defence legislation has recently been the subject of a published restatement. A comprehensive restatement of the Defence Acts 1954 to 1998 and the Courts Martial Appeals Act 1983 was published some months ago. It is intended that the general body of the Defence Acts should be the subject of critical review and scrutiny in the immediate future with a view to determining if, where and to what extent new legislation might be required, given that the original parent Defence Act 1954 is now 50 years old.
The Bill before the House amends one section of the 1954 Act — section 13 of the Bill amends section 114 of the 1954 Act. Having discussed the matter with the Attorney General, we have been told that another restatement of the Defence Acts could not be justified at this stage on the basis of administrative best practice or the more basic matter of sensible cost efficiency. In any event, the Attorney General has advised us that it would be entirely inappropriate to insert a section in new legislation compelling the undertaking of a restatement exercise within a specific period of time.
Senator Brian Hayes has generously acknowledged that we recently completed a major consolidation and restatement exercise. The Bill before the House amends just one section of the Defence Act 1954. It should not require a significant amount of imagination, ability or insight to read the substantial existing restatement in conjunction with a single additional Act. We will be conscious of this issue if we have to legislate further in this area. We are aware of the need to have law in restated form. We will pursue the consolidation exercise further, but this is not the appropriate time to do so, especially as further matters have to be addressed. Senator Hayes is familiar with the body of equality legislation, for example. Helping to bring the Equality Act 2004 through the Dáil was my last achievement as Minister of State at the Department of Justice, Equality and Law Reform. I found it difficult to come to terms with it — it is an absolute nightmare. The body of legislation in that area badly needs to be restated. Matters of that nature will have to take priority.
I appreciate the Minister's intention to restate the legislation. This is important because it is public business. Everyone must know that the ombudsman is in place and be able to read the legislation in plain English. I appreciate the Minister saying that, at the first available opportunity, the restatement will appear again in amended form.
When is it proposed to take Report Stage?
On Tuesday, 19 October 2004.