Defence (Amendment) (No. 2) Bill 2006: Second Stage.

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

The Defence Forces are one of the fundamental pillars of a democratic society. Every member of our Defence Forces has volunteered to serve the State. They undertake to obey all lawful orders issued to them and to submit to the unique code of discipline, an essential part of military life. From time to time they are asked to undertake dangerous and difficult missions on our behalf, both in the State and while engaged in peace support or humanitarian missions abroad. Over many years the Defence Forces have rightly earned the high respect and regard of the people. Around the world Irish military personnel are widely admired for their outstanding commitment and professionalism. Our Defence Forces are highly trained and well equipped. Military personnel have consistently shown the highest standards of courage and discipline in responding to the call of duty.

The ability of the Defence Forces to continue to maintain this high standard demanded of them requires complete clarity with regard to the exercise of command authority whether at home or abroad. For challenges and dangerous missions to succeed, the chain of command must be clear and unambiguous at all times. This is critical to the maintenance of unit cohesion and operational effectiveness. Discipline is of the essence in a military force. Commanding officers are responsible for discipline within their units. They exercise authority primarily through leadership and by inspiring the confidence, loyalty and trust of their subordinates. Officers and non-commissioned officers receive a world class military education which emphasises leadership, teamwork and a sense of responsibility for the welfare of the individual soldier. As a result there is a high standard of discipline and offences are rare.

The Defence Forces, however, must have the ultimate power to enforce discipline through its own unique code of discipline in the military justice system. The disciplinary code must support operational effectiveness and be efficient and effective. Above all, it must be fair to the individual. The primary purpose of the Defence (Amendment) (No. 2) Bill is to modernise the code of discipline by amending and updating the provisions of Part V of the Defence Acts, having due regard to prevailing human rights norms. The Bill provides for new structures, scope, procedures, punishments and appeal processes governing both summary investigations and courts-martial. New measures include the establishment of an independent military prosecuting authority and an independent military judicial office, the appointment of a court-martial administrator, the establishment of a new summary court-martial and the restructuring of general and limited courts-martial.

In modernising the disciplinary provisions of the Defence Acts, regard was had to recent developments in the military law of other common law jurisdictions and in ordinary criminal law. Most importantly, I want to ensure the Irish military disciplinary system is fully compliant with modern European and domestic human rights norms.

Part V of the Defence Act 1954 provides for disciplinary procedures under military law for members of the Defence Forces. Apart from the establishment in 1983 of the Courts-Martial Appeals Court, the introduction of a legal aid scheme and some updating of punishments for breaches of military law, the system has remained largely unchanged since. However, during the past 50 years several important developments have impacted on military law and disciplinary procedures. These include case law decisions of the Irish Courts-Martial Appeal Court; various important statutory developments and case law decisions in criminal law; case law decisions emanating from the European Court of Human Rights, particularly those in respect of Articles 5 and 6 of the European Convention on Human Rights; and significant developments in the military justice systems of other common law jurisdictions.

Specifically, the European Court of Human Rights has benchmarked the independence of military courts by reference to several key indicators including the mode of appointment and terms of office of the court members, protections provided against external influence and the provision of a manifest appearance of independence. It has also stated that to satisfy an impartiality requirement, military courts must be subjectively free of prejudice or bias and must provide sufficient objective guarantees to exclude any legitimate doubt in this matter.

Accordingly, in July 2001, the military authorities established a military law review board to review the adequacy, effectiveness and fairness of the military justice system as laid down in Part V of the Defence Act. Particular regard was had to decisions of the European Court of Human Rights as they related to the administration of military justice. The board reported to the military authorities in April 2002. It recommended amending 76, out of a total of 134 sections, within Part V, all of which were reviewed. The recommendations were fully approved by the Office of the Attorney General in July 2003. It recommended incorporation of the recommendations by appropriate amendment of the Defence Act 1954.

Ireland is an original party to the European Convention on Human Rights since it came into force in 1953 and the convention has been incorporated into Irish law by the European Convention on Human Rights Act 2003, with effect from 31 December 2003. Since then, there is an explicit obligation upon every organ of State to operate in a manner compatible with the convention. Rights under the convention can be pursued primarily and directly before domestic courts.

Pending the introduction of the Bill, non-statutory interim measures were implemented with regard to the summary investigation of offences and the conduct of courts-martial under the Defence Act. These measures were designed to substantially satisfy the requirements of the European Convention on Human Rights in the conduct of military legal proceedings. However, I am now proposing to put in place a comprehensive range of pro-active statutory provisions, aimed to meet with, or exceed, international best practice and human rights norms in this regard. The Bill contains many new arrangements and procedures to achieve that objective. The members of our Defence Forces, who serve our State so loyally both at home and abroad, deserve nothing less than that.

Since the report of the military law review board was submitted, several legal challenges to the old system have been taken to the High Court. I will not refer to any of these cases other than that they will take their course in the normal way. However, I believe the measures which I am now proposing will address any concerns which have been raised by serving personnel in recent times. I also believe the measures contained in the Bill will be welcomed by all members of the Defence Forces. The measures will ensure that the provisions of Part V of the Defence Act relating to summary procedures and courts-martial comply fully with best practice and human rights norms.

The general scheme, as approved in June 2005, contained 141 heads of Bill. However, because of the importance in bringing forward modernising legislation as soon as possible and the complexity and extent of the proposed legislation, it was decided to focus initially on the more urgent amendments to the provisions of Part V. Several other less urgent amendments, which are relatively straightforward, have also been included. I will not detail the remaining proposals to amend the Act which were in the general scheme but not included in the Bill. They will, in due course, contribute to the further improvement of the military justice system. These further proposals are complex in nature and are not yet ready for inclusion in this Bill. Instead, I propose to include them in a separate Bill at a later date. I intend to commence work on preparing the new general scheme of Bill for these deferred amendments in the second half of 2007.

The provisions of the 1954 Act were largely influenced by the Canadian and British systems then in place. The approach taken in this Bill is that which best suits the Defence Forces' needs and resources having due regard to current human rights norms and other common law jurisdictions and systems. A comparative study of the Canadian, British, Australian and other common law systems, as well as careful consideration of human rights norms and the ordinary criminal justice system in Ireland, influenced the formulation of these proposals, which, in some aspects, will be unique to this country.

The primary focus of the Bill is to overhaul radically the procedures for the summary disposal or trial by court martial of offences against military law. The amendments are extensive and time does not permit me to explain every provision in detail. I will focus only on the main provisions. Sections 12 and 14 provide for the revision of the time limits for the bringing of prosecutions. The time limit for the bringing of a charge against a person who has left the Defence Forces is extended from three to six months. For serious offences the present three-year time limit will be increased to six years. For minor disciplinary offences, dealt with summarily, the time limit will be reduced from three years to one year. Time limits for trial by court martial will not apply to civil offences committed while serving outside the State.

Section 13 amends the existing law in regard to a limited range of circumstances in which a civilian may be subject to military law. I propose to extend to them the option of being dealt with summarily, with a right of appeal to a summary court martial. By being dealt with summarily, they are exposed to the possibility of a lesser punishment, which cannot include a custodial sentence. Sections 15 to 19, inclusive, make necessary amendments to five of the offences against military law provided for in the Act.

Section 20 provides for the scheduling of offences of a disciplinary nature which can be dealt with summarily by an authorised, commanding or subordinate officer, as appropriate. These offences are in respect of matters which, although vital to the maintenance of discipline in the military context, are considered suitable for summary disposal. The summary disposal of the potentially more serious disciplinary offences requires the prior consent of the director of military prosecutions.

Sections 22 to 30, inclusive, make extensive amendments to the existing law dealing with the investigation and summary disposal of charges against officers by authorised officers, men by commanding officers and privates and seamen by subordinate officers, respectively. The aim of the summary procedure is to deal fairly and swiftly with minor disciplinary infractions within the unit and to return the member to normal service as soon as possible.

Included in these sections are the provision that a person charged with an offence will have a right to at least 24 hours written notice of the date, time and place at which the charge is to be investigated, a copy of the charge sheet, a list of witnesses and a copy of any available evidence. In every case, a person charged with an offence will have a right to elect for trial by court martial at the outset and an opportunity to obtain legal advice, if required, in that regard. The summary disposal of charges is limited to offences that are disciplinary rather than criminal in nature, that is, scheduled offences. A person charged with an offence, which is being dealt with summarily, will have a right to have an "assisting person"' present at the investigation. The commanding officer's power to award detention will be abolished. Where a charge is dealt with summarily by an authorised or commanding officer, there will be an absolute right of appeal to a new summary court martial, against the determination and-or the punishment awarded. Where a person is remanded for trial by court martial, the case will be referred to the director of military prosecutions for his or her directions.

Section 32 provides for the appointment of a court martial administrator. His or her function will be the management and control of the administration and business of courts martial, the convening of courts martial, on the direction of the director of military prosecutions, and the appointment of members of court martial boards. He or she will be independent in the performance of his or her functions and will not be in the same chain of command as the person charged. The court martial administrator replaces the convening authority. This provision provides a statutory basis for the current practice.

Section 33 provides for the establishment of an independent military prosecuting authority, to be called the director of military prosecutions. He or she will decide, as the Director of Public Prosecutions does in the ordinary criminal legal system, all issues relating to the prosecution of offences before courts martial. He or she will have primary responsibility for the direction and conduct of prosecutions at courts martial.

Section 34 provides for the establishment of an independent military judicial office with the appointment, by an independent authority, of one or more military judges. A military judge will have security of tenure and a judicial role similar to that of a civilian judge. This role replaces that of the existing judge-advocate.

Section 38 provides for the establishment of a new class of court martial called the summary court martial. It will be a permanent court, composed of a military judge sitting alone. The summary court martial will have jurisdiction to deal with less serious cases remanded for trial by court martial, appeals from summary cases and applications for legal aid.

Sections 39 and 40 provide for the restructuring of general and limited courts martial. These courts martial will consist of a military judge and a court martial board. The military judge will preside over the trial, as a civilian judge does in the ordinary courts. He or she will determine all legal issues and decide sentence. Military judges will neither be involved in nor have a vote in the deliberations of the board. The board will make findings of fact, as a jury does, and will have no role in sentencing. Where the accused is not an officer, a senior non-commissioned officer may be a member of the board. Section 41 expands the list of persons who may not be members of a court martial board.

Section 42 provides for the general jurisdiction of the new summary court martial. It also amends the existing jurisdiction for limited and general courts martial. Specified serious offences are excluded from the jurisdiction of both the summary and limited courts martial in all circumstances. When exercising its original jurisdiction, the maximum punishment that can be awarded by the summary court martial will be six months imprisonment. When acting as an appeal court, a summary court martial cannot award a custodial punishment or any punishment greater than that which could have been awarded at the summary investigation. The jurisdiction of the general court martial is amended to include a case of rape or aggravated sexual assault, where the person in respect of whom the offence was committed is, or was at the time, subject to military law. This jurisdiction is conditional on the consent of both that person and the DPP.

Sections 43 to 47, inclusive, deal with matters of procedure at courts martial. Section 48 amends the existing law, which requires a simple majority for decisions of a court martial. I am proposing a new requirement of a two thirds majority of a court martial board to make a finding of guilty. If less than two-thirds of the court martial board vote for a guilty finding on any charge, the accused shall be acquitted of that charge.

Sections 50 to 52, inclusive, deal with necessary amendments to the existing provisions regarding issues as to the mental state of an accused person either at the time of the commission of an offence or at the time of trial. Section 53 makes new provision for victim impact statements in the case of certain offences of a sexual or violent nature. Sections 54 to 56, inclusive, deal with further procedural amendments.

Sections 57 and 58 make adjustments and additions to the scale of punishments awardable at court martial, including new monetary provisions. The existing mandatory requirement on a court martial to sentence an officer to dismissal, when it awards him or her imprisonment, has been limited to situations where the term of imprisonment awarded exceeds six months. In line with this, the term of imprisonment, above which a court martial must also sentence an enlisted person to discharge from the Defence Forces, has been reduced from two years to six months.

Section 60 makes new provision that a person cannot be sentenced, by a court martial, to imprisonment, or dismissal or discharge, if that person has not had legal representation at some time after the finding of guilt and prior to sentencing. This is a useful additional safeguard, in circumstances where a person charged is represented during the trial, at his or her own request, by a military officer, who may not have any legal background or training. This section also stipulates circumstances where this provision will not apply, including where a person specifically declines to be legally represented.

Section 61 makes provision for the suspension, by a military judge, of custodial sentences, with or without conditions attached, other than in the case of a mandatory term of imprisonment. This effectively replaces and expands the existing law, which provides for the suspension of custodial sentences, for enlisted personnel only, by a specified "superior authority", which is obviously no longer appropriate.

Section 62 makes new provision that, in certain circumstances, the director of military prosecutions, similar to the DPP, can appeal unduly lenient sentences to the courts martial appeal court. Sections 63 and 64 modify existing provisions regarding compensation orders and fines. Sections 65 to 69, inclusive, deal with post-trial matters, including the implementation of a custodial sentence.

Section 70 modifies existing provisions relating to rules of procedure. Section 71 provides for the establishment of a new courts-martial rules committee whose function is to make court-martial rules, governing the practice, pleadings and procedures generally of courts-martial on a similar basis to the Circuit Court rules committee. In the existing Act, the power to makes these rules is vested in the Minister under section 240.

The Bill contains a number of Schedules which deal with such matters as transitional provisions and miscellaneous amendments to other statutes. The Bill also provides, through the repeal of sections 215 to 222, inclusive, of the existing Act, for the abolition of the processes of confirmation, revision, mitigation and remission of the findings and sentences of courts-martial. Since the introduction of the court-martial appeals court, there is no requirement for the continued retention of these processes.

In addition to the disciplinary-type provisions I have described, section 8 amends section 61 of the existing Act to provide for greater flexibility in the transfer between service corps of personnel enlisted into the Permanent Defence Force after the commencement date of this section. Currently, personnel who have served more than ten years in one service corps can only be transferred to another service corps in particular circumstances.

Although matters relating to discipline are outside the scope of the representative functions of the associations, both RACO and PDFORRA have been fully briefed on the contents of the Bill and have welcomed the measures contained therein. PDFORRA has specifically stated that the new right of appeal to the summary court-martial is a major step forward.

I am very pleased to submit this legislation for the consideration of this House. The changes to the Defence Act are both necessary and desirable to ensure that the military law justice system is expeditious and fair to the individual, contributes significantly to the maintenance of discipline within the Defence Forces, complies with the Constitution and, most importantly, to ensure that the provisions of Part V of the Defence Act relating to summary procedures and courts-martial are fully compliant with prevailing human rights norms. I look forward to hearing the views and contributions of Senators in their deliberations. I commend the Bill to the House.

I welcome the Minister and thank him for presenting the Bill. I commend his hope that he will still be in office in the second half of 2007 to bring forward the new general scheme of the Bill. He might even get a promotion following the general election. One never knows. However, I commend his bold assertion that he will be in office throughout 2007 to bring this a step further.

When speaking on defence matters in the House, I always ensure we put on the record our appreciation of all Defence Forces' personnel for their continued contribution to this country and the way they perform their duties at home and abroad in our names. I have made a habit of doing so since I was appointed defence spokesperson for my party in the House. It is important other Senators do so too.

It is very important that whatever changes we support in this Bill, which, in effect, modernises existing law in this area dating back to 1954, we understand that neither House of the Oireachtas can introduce a law which is repugnant to the Constitution. It is, therefore, important to state that although the Defence Forces have a special place and special rules apply to them, all the rules in the primary legislation and the amendments proposed in this Bill must not be repugnant to the Constitution and they must comply, in every sense, to our constitutional law because, in effect, some of the changes being made limit rights. One understands, in the context of the Defence Forces and of people following specific orders, it is a requirement that sometimes those rights must be limited. Nonetheless, it is important we ensure these special provisions, which will apply to a group of citizens who have signed a contract to work in our Defence Forces, are totally ad idem with all aspects of the Constitution.

The Minister said he had discussions with the various organisations representing the Defence Forces, which I welcome. Has he had discussions with Irish Human Rights Commission? He said one of the reasons we are amending the primary legislation 50 years after it was introduced is because of developments in human rights legislation not only from a European perspective but from a domestic one as well. When discussions on this Bill were taking place at Attorney General level in 2003 or when the scheme was being put in a more concrete form, did the Department have discussions on the provisions with the Irish Human Rights Commission? If that did not happen, I wish to state why it is important that it should have. We cannot lecture other jurisdictions, whether on this island or in other parts of the world, on recourse to human rights legislation if we bypass the very institution which both Houses of the Oireachtas established. It should be a matter of course in the drawing up of any Bill concerning the human rights of any group of citizens that the Irish Human Rights Commission is involved in the process and that its views are made known. I would be interested to know whether that happened in this case because it is important we get into the habit of doing that when dealing with human rights. I accept what the Minister said that many of the amendments are based on that new human rights code, domestic law and military justice systems in other common law jurisdictions.

There is little information in the public domain on this issue. How many courts martial take place annually? Are proceedings recorded? Is there a written transcript which one would get in a court room or in this House? It is important to establish that for the record, particularly when debating a matter such as this which has not been debated for a long time. Will the Minister also elaborate on the appointment of military judges? How are such appointments made? Although we will have the chance to go through this on Committee Stage, I would be interested to know.

It is important there is not a two-tier system within the Defence Forces and that it is clear to all serving officers and non-commissioned officers who is in control of this process, how they are appointed and that the chain of command in terms of the decision-making process is not only based in law but that it is transparent and above board. We do not want a two-tiered system. I am not suggesting we have such a system but the fact we are debating these matters allows us to at least look at the existing system and comment on it. I would be interested to know how a person is appointed to this position in the military because it is important we get it right.

Fine Gael supports this Bill in principle and we will go through it in more detail on Committee Stage. It is important this legislation ensures that whatever system of justice applies to the Defence Forces, it is compatible with all human rights provisions, domestic and international.

Fine Gael also believes it is important for the statute to be comprehensive and comprehensible for all members of the Defence Forces who are charged, as well as for those who are charged with the Defence Forces' management. In addition, it is vitally important that all such provisions are straightforward, fair and equitable for those who involve themselves in the process.

I heard the Minister's comments regarding serving officers abroad. The issue regarding the occurrence of alleged offences abroad has been highly contentious for military establishments in other jurisdictions. I refer to the question as to whether the officers involved should be charged under domestic law in the country in question or are subject to courts martial in their own jurisdiction. I wish to tease out this issue further because, as the Minister is aware, a significant number of Defence Forces personnel now serve abroad. They frequently do so in a third world environment in which the level of jurisprudence and the operation of the courts may not be as advanced as it is in the domestic setting in Ireland. When Irish soldiers serve in such conditions, it should be abundantly clear as to where the chain of command lies in respect of their accounting for their behaviour abroad. I do not make any negative comments in this regard. I am simply stating this has been a problem in other military establishments in which the question has been posed as to whether people should account for themselves at home or abroad, where the actual incident occurred.

I presume I am correct to state that ultimately, in respect of a question of law, any Defence Forces member can take his or her case to a higher court and ultimately to the Supreme Court. I refer to the question as to whether they have been given fair and natural justice. It is important to state that while these special provisions exist within the military to deal with the issue of a chain of command and with discipline within the Defence Forces, ultimately the Supreme Court remains the final court of appeal regarding any aspect of Irish law and specifically when citizens believe their rights have been infringed, in terms of a point of law.

The Minister referred to free legal aid and I presume that if a charge is laid against a serving member of the Defence Forces, he or she can select his or her defence. I am unclear as to whether the defence must come from within the military legal establishment, as opposed to a defence barrister or advocate who comes from outside that system and the Minister should clarify this point.

In general, Fine Gael is supportive of this Bill and its Members will work with the Government to ensure that when passed, the legislation will be an effective and modern piece of law to deal with a special circumstance existing within the military.

I welcome the Minister for Defence, Deputy O'Dea, and his officials to the House. I thank the Minister and the Government for bringing this important legislation before the Seanad for its first reading. This demonstrates the importance of Seanad Éireann and I hope this Bill receives the approval of the House.

The Defence Forces represent a major and important pillar of the State. The Naval Service, the Army and the Air Corps all have roles to play, both domestically and in the global arena. All Members are aware of the Naval Service's recent involvement in the operations in Dunmore East and Mine Head and its outstanding work in that area in the course of a major tragedy. It is frequently involved in assisting the Garda and in thwarting drugs smuggling and the protection of Irish waters. The Air Corps is regularly called out to assist in search and rescue operations, as well as its day-to-day duties, including maritime surveillance, the operation of the air ambulance and ministerial transport. Members recognise how the Army has come to the aid of civilians during recent major flooding problems and has been involved in assisting the Garda in efforts to halt serious gun crime in certain localities. Internationally, the Defence Forces have taken part in missions throughout the globe and have been involved in peacekeeping, crisis management, and humanitarian relief operations in support of the United Nations for many years.

The Defence Forces constitute a massive asset to the State and the Defence (Amendment) (No. 2) Bill 2006 reflects the changing nature and development of the armed forces. The proposed legislation seeks to marry the unique nature of military operations and military justice with a clearer and fairer system for handing down sentences. In turn, this will make our armed forces more efficient, more capable and better equipped to meet the needs of a changing Ireland and a changing world.

There have been many recent instances of military justice being tested internationally, including the US army's operations in Iraq, the Deepcut bullying scandal within the British army and even allegations of UN peacekeepers abusing local populations they were sent to protect. Such examples demonstrate clearly the need to have a solid and effective disciplinary system in place. The aforementioned scandals have adversely affected the image and integrity of the respective armed forces, which in turn has led to a serious lack of credibility and trust in their ability to function. While I hope sincerely that the Irish military will never be embroiled in such scandal, it is imperative that the Irish armed forces should be in a position to act decisively to punish any wrongdoers and to so do swiftly.

As we embark on the 21st century, disciplinary procedures and processes of the Defence Forces require comprehensive examination and review in order that they reflect the values and strength of the State and of the forces themselves. This legislation, which will amend and extend the Defence Acts 1954 to the present, represents a significant stepping stone in the modernisation of the Irish forces. It will allow the implementation of markedly more streamlined disciplinary procedures while enhancing the ability of the forces to function as successfully in future as they have done heretofore.

The maintenance of discipline is an integral component of an efficient and effective military organisation. This Bill will improve the military prosecution services by overhauling radically many of the procedures involved in punishing offences against military law. The Bill seeks to develop the independence, administrative efficiency and transparency of military investigations and prosecutions. The Bill will also widen the options open to the servicemen and women who face trial or who have committed offences. For example, it will allow them legal representation or advice before making a decision. The need for fairness in the provision of justice is as important in the military, as in the civilian, sphere. This legislation should be welcomed as an opportunity to put in place a modern process that couples humanitarian needs with the requirements of the military. In the civilian sphere, both the Government and the President will be involved in the appointment of officers and judges, who will be subject to review in the same manner as would a civil judge.

The Bill seeks to establish greater independence in disciplinary procedures through the establishment of a military prosecuting authority to be known as the director of military prosecutions. Staffed by qualified officers, it will decide on issues relating to prosecutions before courts martial take place in much the same manner as does the Director of Public Prosecutions in civil society. An independent military judicial authority will be also established which will include one or more military judges with relevant legal qualifications. The Minister for Defence shall appoint an officer of the Permanent Defence Force. This recommendation will be made on the basis of a committee established to identify and assess the suitability of officers to the appointment.

The Attorney General, the Director of Public Prosecutions and the director of military prosecutions will consult from time to time on matters pertaining to functions of the director of military prosecutions. On the recommendation of the Minister, the President will appoint as a military judge an officer of the Permanent Defence Force who is a practising barrister or solicitor of at least ten years' standing.

Expertise, experience, qualifications and independence must be recognised in the system of justice. These proposed measures and safeguards will go a long way to ensure success. A court martial administrator will be appointed to manage and control the business of prosecutions. This will improve administration in military judicial systems. The process will be quicker and more effective through referring matters for trial by summary court martial and selecting members of the court martial boards.

The standing court martial will deal with less serious cases remanded for trial, thus reducing the need for many offences to proceed beyond the initial stage. A court martial will make findings on the facts but will have no role in sentencing. Greater efficiency will mean quicker processing and greater clarity and transparency. This will benefit all members of the Defence Forces and will mean fewer delays in the military judicial system.

Not only will this legislation revise disciplinary procedures from the top down, it will also enhance the options of the accused servicemen and servicewomen. The system will resemble more the legal system existing in civil society. A list of offences which can be dealt with without the need for court martial will be drawn up and certain offences will warrant certain statutory punishments. However, the accused will be given the right to choose to be tried by court martial if he or she so wishes.

Also included in the Bill is the right to appeal a sentence handed down by the court martial. Those provisions closely mirror civil legislation where a person has the right to elect to plead his or her innocence to a judge or accept the punishment on the spot and where a citizen can appeal the decision of the court.

The Bill proposes to adjust the scale of many punishments at court martial. While investigations are being carried out a commanding officer will no longer be empowered to award detention and confirming authority will no longer be needed to confirm the findings and sentence of a court martial.

The Bill will make it easier to transfer personnel between service corps. Currently, personnel who have served more than ten years in one service corps can only be transferred to another in particular circumstances. These stipulations will be amended to provide greater flexibility in movement of personnel and resources, which must be welcomed.

This Bill will strengthen our armed forces and make them a more balanced and responsive organisation. The need for effective organs of justice in the armed forces are just as pressing as the need for justice in civil society. Although norms and conventions exist which are unique to the Defence Forces, the need to reform them and provide for present and future generations of servicemen and servicewomen is as pressing in today's environment as it was when the Defence Forces were established.

This Bill will allow the Defence Forces continue their strong tradition of integrity and honesty in the face of danger and will allow for greater discipline among the ranks. I foresee this as being of benefit to the continued protection of the Irish State and in the service of the other international bodies under whose colours our men and women proudly serve.

I compliment the Minister, his staff and all Defence Forces personnel for their outstanding contribution to the State. I am delighted the Minister outlined that RACO and PDFORRA were fully briefed on the Bill. I commend the Bill to the House and I hope it gets a speedy passage.

I wish to make a brief contribution. I welcome the Bill. My party spokesperson, Senator Brian Hayes, spoke previously and we commend the Bill. Will the Minister clarify one point from his speech regarding section 42? It states the jurisdiction of the general court martial will be amended to include cases of rape or aggravated sexual assault where the person who committed the offence is or was at the time subject to military law. The jurisdiction is conditional on the consent of both that person and the Director of Public Prosecutions. When I examined the Schedule, I did not see what would be the penalty. It mentions six-month sentences for various offences. What would be the penalty for such a serious matter? Will the Minister clarify this in his reply to the debate?

I am glad RACO and PDFORRA were consulted on the Bill. My party supports the main thrust of the Bill.

I join other speakers in welcoming the Minister and his officials to the House. I welcome the Bill. In recent years, we had many changes in our Defence Forces with the modernisation of equipment, training and facilities. It is only right and proper that we also have the modernisation of the legal system.

Military law is a distinct legal system to which members of the Defence Forces are subject. Most countries have special, additional laws and often a legal system applicable to members of the military and not usually to civilians. Military law deals with issues such as the procedures for military discipline, what is a lawful command and obligations of service personnel. It is important that military law is kept in line with civilian law and developments in civilian law.

The primary purpose of the Bill is to amend and update the disciplinary provisions of Part V of the Defence Acts having due regard to prevailing human rights norms. The Bill provides for the summary disposal of charges, the establishment and jurisdiction of summary courts martial and the appointment of the court martial administrator, the director of military prosecutions and a military judge.

The Bill also provides for the constitution of courts martial and membership of the court, the procedures before courts martial, the award and execution of punishments by courts martial and the suspension of sentences. As a former member of the Defence Forces, I partook in the military legal system, both as a commanding officer and as a member of courts martial. I defended people when directed or requested to do so. Thankfully, I was never a defendant myself.

I have a certain amount of knowledge and experience of military discipline procedures and the uniqueness of how it operates. When one transfers into political life and is on the other side of the fence when dealing with cases, one can see a great need for fairness in the administration of military law to ensure it is kept in line with the norms of civilian life and, more particularly, the European Court of Human Rights and the European Convention on Human Rights which is now enshrined in Irish law. I welcome the Bill as being both progressive and positive. It is based on the best international practices and human rights norms.

Summary disposals of charges by commanding officers will now be confined to charges mainly of a disciplinary nature. This is very important and is one of the major steps in this Bill. The United Kingdom updated its system some time ago but did not go as far as we and, earlier this year, was found wanting in this regard by the European Court of Human Rights. The 1954 Act was badly in need of review and modernisation and I commend the military authorities for taking the initiative in 2001 to establish a review board to that end. The Minister said a number of cases were being put forward for judicial review and, as he rightly said, they will take their course. However, we should acknowledge that this action is not in response to those cases but was in train before they were initiated. The initiative of the Defence Forces in the area of criminal law and courts martial is proactive and in keeping with national and international norms.

I will deal with a couple of points in the Bill. The punishment awarded by a commanding officer can now be appealed to a summary court martial and the defendant will not be at risk of a custodial sentence should he or she decide to do so. That is an important step as we have moved on from the time when a soldier could be marched off the square for a minor indiscretion, such as having dirty boots, and suddenly find himself in front of a commanding officer, being tried and sentenced in a matter of an hour. The defendant now has the right to see the charges and the list of witnesses and to take advice and that is a step in the right direction. The removal of the power of detention at that level is vitally important. Detention and the removal of liberty are major steps and should only be carried out after due process and a fair legal hearing. This Bill enshrines the principle that detention as a result of military discipline will happen after due process.

The provisions for a defendant to be allowed time to elect for trial by court martial in advance of the summary trial, as distinct from after the summary officer has found guilt and passed sentence, are also important rights. The fact that a defendant can be accompanied by an assisting person during the process is also important. It is right and proper that a soldier in a military disciplinary procedure has somebody present to provide advice. The fact that he or she can ask for an adjournment for 48 hours to consider the case is also welcome.

Legal aid is also an important issue and was raised by Senator Brian Hayes. It is not acceptable that a member of the Defence Forces go through the legal system, particularly a court martial, without proper legal aid. My understanding is that legal aid will be provided in courts martial but not in summary trials. The option to elect for court martial protects legal rights. I hope the Minister will mention the legal aid system in his reply. Will outside lawyers be available, paid by the State? I presume they will.

I welcome the fact that senior NCOs, such as sergeant majors and battalion quartermaster sergeants, will now serve on a court martial. It will help military discipline, avoiding a them and us scenario of officers versus enlisted personnel. I also welcome the fact that senior NCOs form part of the disciplinary process.

I ask the Minister to refer to section 42 in his reply. It provides that, when acting as an appeal court, a summary court martial cannot award a custodial punishment or any punishment greater than which could have been awarded at the summary investigation. That strikes me as a message to defendants to appeal everything and I am concerned about it. If a person appeals, he or she must take on some risk of a greater sentence. What is to stop everyone appealing a summary decision if they do not run the risk of a greater sentence? It strikes me that every summary trial will now be appealed, though that may not be the case.

The new system will increase the workload of the legal branch of the Defence Forces. I wish it well, however, because the changes are necessary. We must ensure that the legal system within the Defence Forces is adequate and that there are adequate numbers of trained legal personnel. As Senator Brian Hayes pointed out, Irish troops currently serve overseas and it is important we are able to stand over our legal system and that it is in keeping not only with our national laws but with best international practice.

The fact that both representative bodies have welcomed this Bill must be a positive step for the future of our Defence Forces and for military discipline. I particularly welcome the appointment of one or more military judges, which is a positive move.

This is not a brief Bill. It is comprehensive and I congratulate those associated with its drafting. I congratulate the Defence Forces on the work they do at home and abroad. They are the true ambassadors of this country on the international stage, a fact about which we do not speak often enough in these Houses. A telling remark was made to me by a politician visiting our troops overseas some years ago to the effect that they were the best kept secret from the Irish people. If that is the case, we should ensure they do not remain a secret and avail of every opportunity to congratulate them and highlight the tremendous work they do, both at home and abroad.

I welcome the Minister and this Bill. My principle reason for contributing to this debate is to express my respect for the role played by the Defence Forces and the pride that I and practically every other citizen take in them. To the best of my knowledge, historically, and certainly since the mid-1920s, they have never disgraced the name of this country. Discipline and its maintenance are a very important element of the high regard in which they are held. As Senator Minihan said, when serving abroad they are, in a sense, ambassadors of this country. There have been contingents, even of our own Defence Forces, in which isolated individual soldiers have not always behaved well. However, if a soldier is trying to re-establish the rule of law and prevent conflict, impeccable behaviour is necessary.

In the context of domestic security, it is important the public sees a disciplined force and has confidence in it. Conditions may have become more difficult in that regard. We no longer live in an hierarchical society. Most organisations do not rely on the issuing of orders and instructions; persuasion and motivation are used more. I am sure this change has spread to the Defence Forces. I remember the debates that led to the establishment of RACO and the other representative organisation. I am glad that difficult bridge was crossed because it has worked well.

Since the end of the Second World War, we have not expected blind obedience to orders. Rather, we expect an enlightened carrying out of reasonable instructions and people, right down to privates, to take responsibility for their actions and to exercise discretion responsibly in many situations.

The term "persons" becomes "men" in the language of section 58. While there may be a good reason for this, I do not understand it. As we have seen on parades, such as at the 1916 commemoration, women serve in the Defence Forces. I understand that legislatively speaking, "men" may be taken as comprehending women, but why is it necessary to phrase it in a gender-specific way given our contemporary Defence Forces?

My next point may be more fundamental, but I do not know whether it has been considered. We are discussing modernising military law and the Minister used the phrase "military courts" several times in his speech. Should we consider modernising our language? As a member of the public, the term "courts martial" conjures an image of summary justice and executions at dawn.

We have left that behind us.

In some places.

It conjures up what Voltaire described as "pour encourager les autres” when Admiral Byng was shot. Why can the legislation not refer to military courts? We are not discussing the drastic punishments of the past. It is almost as if the church or ecclesiastical courts still called themselves the inquisition.

One could argue that a name that increases fear is not bad, but the term "courts martial" carries much historical baggage and imagery. Given our civilianised military and human rights culture, could we not use the phrase "military courts" as used in the Minister's speech? I will leave him to reflect on this question. If he says in his wisdom that "courts martial" is the term with which people in the Defence Forces are accustomed and it does not alarm anyone unduly, I will accept his word.

Senator Mooney has eight minutes.

Does he have any French?

I echo the comments made on all sides of the House in welcoming the Bill, which is significant in terms of its content and how it updates legislation dating back to the Defence Act 1954.

I have no wish to keep the House from hearing the Minister's reply on Second Stage, but I would like to trail on the historical coat-tails of my distinguished friend and colleague, Senator Mansergh, in respect of the imagery the Bill conjures up among those of us with an interest in military history. In reading the Bill, I agree with Senator Mansergh on the language used to some extent. For those of us involved in the Shot at Dawn campaign, the language conjures up images of young Irish men being taken out and shot. While those images are far removed from the reality of today's legislation, I am influenced by them.

One section provides that sentences cannot be passed unless legal representation is provided for the defendant, which is welcome. I could not help but reflect on how many young Irish lives would have been saved had such legal representation been mandatory under the rules of courts martial before the establishment of the State.

I do not expect the Minister to give me a lesson on military jargon for slow learners, but there are references to "court martial" and "courts martial" in the same sentences. What is the distinction?

One is plural.

I knew a clever Member would tell me, but will the Minister put it on the record? I know the latter is plural, but it sometimes can be confusing for a lay person. It is not a significant issue and I am grateful that my colleagues corrected my inadequacies in that regard.

It is proposed to change "ignominy" to "disgrace". I presume the original Act referred to a dismissal from the Defence Forces with ignominy. Speaking as a lay person, why did the Minister not include the international phrase "dishonourable discharge" in the Bill? Perhaps I watch too many Hollywood movies and it is a uniquely American expression, but "dishonourable discharge" carries a cachet understood by everyone. I appreciate that "disgrace" carries a similar cachet. I may be corrected on whether the former is an international norm, but I have been always of the opinion that when dismissed from the defence forces or army of any country, it was a dishonourable discharge as distinct from with disgrace.

Section 42 refers to the various offences treated by a general, limited or summary court martial, namely, manslaughter, rape under section 4 within the meaning of the Criminal Law (Rape) (Amendment) Act 1990 or aggravated sexual assault within the meaning of the same Act. Will the Minister indicate what sentences would be imposed for those offences? I could not find a specific reference in the Schedules. I presume those offences would be outside the normal military discipline, namely, those that can be committed by anyone whether he or she is a member of the Defence Forces. Would they be dealt with differently because the people in question are subject to military law?

In the legislation, the president referred to is the president of the military court, but what is the role of Uachtarán na hÉireann, who is the commander-in-chief of the armed forces under the Constitution? She is not mentioned in the Bill and there is no reference to any role she may have. I am showing once more my lack of intimate knowledge of the operation of courts martial but in an ordinary appeal, procedures are in place while the procedure here appears to be limited to within the military court and its president. Could a convicted member of the Defence Forces appeal directly to the President, as the Commander in Chief of the armed forces?

The lasting feeling in most people's minds following the spectacular commemorative ceremonies we witnessed last year, for both the 90th anniversary of the Easter Rising and the subsequent 90th anniversary of the battle of the Somme, is the pride we felt when the Irish Army marched proudly down O'Connell Street and when it rightly took its place with the armies of the allied nations that fought in the First World War. There is to this day a division of thought about whether Irishmen fighting in a British uniform in the First World War achieved anything much and I have strenuously argued with some people that they did not serve any great purpose ultimately. Having said that, they did it for the noblest of reasons and, in the context of the Defence Forces today, I could not help but reflect on the continuum. There are those in our society who suggest that our Defence Forces are not the legal, legitimate army of this country but no one who saw the displays last year would have any doubt that not only are they the legitimate Defence Forces but they make up an army of which we are all proud.

The point has been eloquently made about our overseas commitments and the Army is a matter of pride to those of us who travel a great deal and engage in dialogue with those from other countries. Our Defence Forces act as a benchmark for peacekeeping operations throughout the world.

I commend the Bill to the House.

I welcome this Bill to the House. We must acknowledge the work done by the military law review board, which came up with much more than is contained in the Bill. I hope the Minister will be able to act on those other matters too.

This debate allows us to reflect on the wider aspects of military life and the role of the Defence Forces. There have been occasions in the past when people have questioned the need for the Defence Forces but I do not subscribe to that point of view. We need them for several reasons, including the support of the civil power and the preservation of law and order and for peace and stability within the island, something they have achieved with great distinction.

It is a fascinating aspect of Irish history that there was such a smooth transfer from the Cumann na nGaedhal Government to the first Fianna Fáil Government, because it would have been understandable for many in the Army not to have supported the smooth transfer. It is testimony to their commitment to the State that it happened so seamlessly.

The true democrats on the political side.

There are other aspects. My own town of Newbridge has benefitted from the presence of the Defence Forces at civil level and the town has enhanced the lives of the members.

We have unique qualities that have been beneficial in our United Nations service. I was in the Gaza Strip and observed the work of some of our personnel and saw that can bridge the divides that more powerful countries cannot, an important aspect of the work of the Defence Forces. I would like to see them play a full role in the European context and I welcome the rapid reaction force. I hope we will contribute fully to our obligations within that context.

High standards are required and that is why military law differs from civil law in what it asks of members of the forces. I agree with Senator Mooney, however, that it is appalling that people were taken out and shot because they were shell-shocked. If a sentry falls asleep and his comrades lives are put at risk it is a serious matter but execution is not the way forward.

The Minister mentioned service abroad and the civil law, as covered in sections 14 and 42 of the Bill. If someone serving in the Army with the United Nations committed an offence such as murder in an Islamic country where it is a capital crime, what would happen? Even though the person has committed a heinous crime, we must protect his life. When would we not hand someone over to the civil authorities in the state where the crime was committed? This is a fraught area that we must address.

There are different standards in peacetime and in time of war. What happens in a peacetime situation would warrant a lesser penalty than a similar offence in a wartime situation. When I was growing up in Newbridge, the main offence before courts martial was bicycle theft, which was a result of personnel from the Curragh going to local pubs and then being unable to get home late at night — they would steal a bicycle from outside a shop to get back. I often wondered why they did not stay in the messes where the drink was much cheaper but then I remembered the lack of women in there.

I welcome the provisions on time limits, administration, the independent authority and an independent military judicial officer. They clean up many of the areas that needed to be examined. The Bill has done a good day's work in that regard.

Where the summary court martial operates, the subject of the court martial must make the election. That is how it should be. There should also be a system of appeal. The worst situation could arise where the immediate line commanders or commanding officers of those charged are the judge and jury. It is to the Bill's benefit that will not happen unless someone elects for the summary court martial to be dealt with by the commanding officer. The two-thirds majority in coming to a decision is also important. That independence for those adjudicating the court martial, so they are at a remove from the subject, will prevent cases like those in the past where direct prejudice and animosity resulted in defective judgments, something we must strive to avoid. It is very important that judgments of the European Court of Human Rights are taken into account. We are somewhat casual in Ireland about the Charter of Fundamental Rights and the ECHR's judgments. Before Christmas, I visited Austria, where a strong line is taken on implementing the ECHR's judgments in domestic law. I am glad the Bill takes a similar line and am happy to lend it my support.

I welcome this Bill, partly for the opportunity it presents to pay tribute to the Defence Forces' fine peacekeeping record across the world, the credit they have brought to this country and what appears from the outside to be their generally high level of discipline and behaviour. The Minister will be relieved to hear that I speak from a position of profound ignorance of the subject and I am grateful to Senator Minihan for the insights he has offered on how the system operates.

I would like to link the points raised by Senator Dardis with the efforts made earlier by Senator Mansergh to demystify the loaded terms used when discussing this subject and to emphasise civilian processes to symbolise the change in the status of military personnel in a democratic society. I am anxious that human rights norms are respected in these matters. We ask soldiers to risk their lives to ensure the democratic rights of others, so the least we can offer them are the standards they are being asked to defend. Irrespective of the system introduced, the right of soldiers to be treated as similarly to civilians as possible should be upheld, and they should be given full access to the protections offered in the Charter of Fundamental Rights and the European Court of Human Rights. In that regard, why is it necessary to try a soldier accused of rape in a military court rather than a civilian one? I acknowledge, however, the arguments made by Senator Dardis regarding crimes committed in countries which sanction the death penalty. No soldier should be allowed to face any court or process in which the protections and penalties are not commensurate with those offered by Irish courts.

I welcome the appointment of a director of courts martial and related officers. Appointees are required to be solicitors or barristers of ten years' standing, although I note they can be deemed to have been practising if they have had a job which required similar qualifications. That is a somewhat diluting provision, however, because the people acting in this capacity should be au fait with the ordinary criminal and civil courts so that separate standards are not developed. I wonder if there are sufficient personnel in the Defence Forces to fill this explosion of appointments or whether a civilian barrister or solicitor will have to be commissioned as an officer.

That is the way chaplains are appointed.

Senator Mansergh spoke about Admiral Byng and I am reminded of Captain Queeg from The Caine Mutiny. While I do not foresee such a situation arising, I note the absence of a provision for whistleblowers similar to that contained in the Garda Síochána Act 2005.

One of the oldest manifestations of the ombudsman institution in Sweden is the office of the military ombudsman, which was established in 1713. A similar office in Ireland might be worthwhile to help ensure ordinary soldiers have an external means of recourse. Like earlier speakers, I hope for assurance that legal aid will be made available in appropriate cases. I congratulate the Minister on this very progressive Bill and I am sure the Seanad will give it a fair wind.

I thank Senators for their contributions to this interesting discussion. Some of the points raised have already occurred to me, although I confess I had not considered others.

Senator Brian Hayes asked whether I was satisfied that all the provisions of the Bill were constitutional. Before we publish legislation, the Attorney General examines it for constitutionality and we do not pursue any aspects which do not receive a clean bill of health. This Bill has been approved by the Attorney General. With regard to the Senator's question of whether the Department has had any discussions with the Irish Human Rights Commission, we have referred the Bill to the commission and are awaiting its response. The Senator also asked the annual number of courts martial. I understand that approximately 12 are held per year, although that number will increase as a result of the provisions of this Bill on the right to appeal and other matters.

With regard to the appointment of military judges, section 34 sets out that judges are appointed by the President on the recommendation of the Minister for Defence. We can debate that section on Committee Stage if anybody is unhappy with any aspect of it.

Several Senators asked whether it will be possible to appeal judgments of the military justice system to civilian courts. Every decision of a court martial can be appealed to the Courts Martial Appeal Court, which is a division of the Court of Criminal Appeal. If somebody wishes to go further under ordinary criminal law, he or she can take a case to the Supreme Court on a point of law, and the same procedure will apply in respect of courts martial.

Several Senators raised the issue of access to free legal aid. When availing of free legal aid, military defendants can select civilian solicitors and barristers from a panel, in addition to military officers.

I welcome the comments made by Senator Dardis and Senator Moylan on the reputation enjoyed abroad by members of the Defence Forces. That reputation is certainly well deserved, as I have seen at first hand and hope to see again when I visit Lebanon shortly.

Senator Cummins asked the potential penalty for rape or other serious sexual assault on conviction by a court martial. Sections 57 and 58 provide for a term of imprisonment at the discretion of the court martial up to and including life imprisonment. There is no difference between that and the ordinary criminal law.

Senator Minihan asked whether the State would pay for legal aid and it will. I answered the question about outside lawyers. The Senator raised an interesting point about the provision whereby a court martial's appeal court cannot award a higher penalty. I take his point and we may need to reconsider the wording, as it may not be absolutely clear. If it is not clear enough we may need to amend it. The intention of the provision is that if the court of first incidence applied the maximum penalty it could apply, that penalty could not be increased on appeal. However, the court of first incidence might apply a much lesser penalty, which, of course, could be increased on appeal.

Senator Mansergh asked about the reference to the word "man". This comes from the 1954 Act, upon which this legislation is dependent — both need to be read together. There is a certain amount of case law regarding that phraseology in the 1954 Act. If we were writing the legislation from scratch we would not need to make that reference. I can assure the Senator that "man" includes woman for the purposes of this legislation. The point he made about court martial and modernising the language is worth considering. One note of caution is that the term "court martial" is used in the Constitution and we would need to be careful.

Senator Mooney asked about the use of the word "disgrace" in place of "ignominy". The Parliamentary Counsel regards "disgrace" as a more modern term than "ignominy". The Senator also asked about the role of the President. The only mention of the role of the President that I can find in the Bill is that the President appoints the military judge on the recommendation of the Minister for Defence. In ordinary criminal law there is no appeal to the President. A person exhausts the appeal system and that is it. I believe the Government can award a pardon. There is the system of presidential pardon. The same presidential pardon rules apply to people convicted by court martial as apply to people convicted in the ordinary criminal courts.

My question was in the context of her role as supreme commander of the Defence Forces.

It does not come into it.

Senator Dardis asked whether we would be able to commit to the rapid reaction force. I have just concluded discussions on a memorandum of understanding with the Nordic Battle Group. We will be making a very significant contribution to that battle group, which will be on standby from 1 January 2008. Senators Dardis and Maurice Hayes also asked about an Irish soldier who commits a serious offence while abroad in a country where the maximum punishment for an offence might be far greater than the maximum punishment here. In that case the Irish system has seisin of that. It is an established convention that they go for the Irish legal system. If, of course, the person does not want to opt for the Irish legal system, he or she can opt for the Islamic system or whatever applies in the particular country. I believe they will usually opt for the Irish system.

Senator Maurice Hayes also asked whether we had sufficient bodies. I am assured that we have. The Senator made the valid point that the Bill contains no whistleblower provision. I only noticed its absence when the Senator mentioned it. In this regard it differs from the Garda legislation and we will consider it. We already have an excellent military ombudsman, Paulyn Marrinan-Quinn. We should be safe enough if she finds out that the Senator did not know that.

I may not be safe.

I thank all the Senators for their interesting contributions and I look forward to a stimulating debate on Committee Stage.

Question put and agreed to.
Committee Stage ordered for Thursday, 8 February 2007.

When is it proposed to sit again?

At 10.30 a.m. tomorrow.