I welcome the Tánaiste to the House for Committee Stage of the Defence (Amendment) Bill 2024, which is set to conclude at 4.30 p.m., if not previously concluded.
Defence (Amendment) Bill 2024: Committee Stage
Section 1 agreed to.
During the Order of Business, it slipped by me that this is to be guillotined on Committee Stage after two hours today. With all due respect to the Tánaiste, this is a matter for the House and how it runs its business. Two hours for an important piece of legislation on Committee Stage seems to me to be outrageous.
I remind the Senator that this was an item for this morning during the Order of Business. The Order of Business was agreed to.
We should not be rushing legislation through the House. It is just wrong.
Sections 2 to 5, inclusive, agreed to.
NEW SECTION
I move amendment No. 1:
1. In page 6, between lines 10 and 11, to insert the following:
“Amendment of Section 17 of Principal Act
6. The Principal Act is amended by the substitution of the following section for section 17:
“Command of Defence Forces
17. Command of the Defence Forces is exercisable as follows:
(a) the supreme command of the Defence Forces vested in the President is exercisable by him or her on the advice of the Government;
(b) under the supreme command of the President and subject to the provisions of this Act, command of the Defence Forces is exercisable by the Government and, subject to such exceptions and limitations as the Government may from time to time determine, by the Minister;
(c) subject to and in accordance with paragraphs (a) and (b), the Chief of Staff shall carry on and manage and control generally the staff, administration and business of the Defence Forces;
(d) Defence Forces Headquarters, the head of which is the Chief of Staff, ceases to stand established in the Department of Defence and instead stands established within the Defence Forces;
(e) the Chief of Staff is the accounting officer in relation to the appropriation accounts of the Defence Forces for the purposes of the Comptroller and Auditor General Acts 1866 to 1998.”.”.
I welcome the Tánaiste to the House and thank him for bringing this Bill for our consideration.
The new section we seek to implement is about whether one wants the separation of powers between the Department and the Defence Forces per se. There has long been allegations and suggestions that there is a toxic relationship between uniformed and non-uniformed personnel. If we look at An Garda Síochána, the Commissioner is the Accounting Officer for An Garda Síochána. As such, he has the administrative rights over his organisation. The amendment is to restructure the command of the Defence Forces. I know the Tánaiste brought a change to the structures of the Defence Forces yesterday, which will be extremely welcome. I believe the Chief of Staff needs to be autonomous in the role, whoever he or she may be. That person would have the accounting function within the organisation at their disposal and as such, would be able to act immediately. In recent times, we have seen ridiculous decisions. What used to be a battalion commander's decision back in my day now has to go to the Department for sanction, such as the loan of a tent for a local community and stuff like that. This particular amendment would give the Defence Forces that degree of autonomy that they would be able to operate without constantly going back to the Department. I ask Senators to consider this amendment seriously.
I welcome the Tánaiste to the House today. It is fair to say that we have a unique command of our Defence Forces when compared to other defence forces around the world. My colleague, Deputy Howlin, went into the history of that in the Dáil and I know the Tánaiste expressed an interest in it as well. I do not intend to go back as far as to how that command and control structure came about. As has been said, we feel it is wrong that senior civil servants may have more operational powers than the Chief of Staff. That is something that needs to be addressed. Obviously, it is unique as well that the headquarters of our Defence Forces is effectively located in the Department of Defence. As has been said, we are all aware that the Tánaiste brought forward what he described as "groundbreaking" new command and control structures through Cabinet yesterday. The question I ask today is whether the Tánaiste can share with us what those groundbreaking new command and control structures are. Can he commit to bringing his thoughts to an Oireachtas committee because it is very important they are discussed there? As I said, there can be no doubt that the current command and control structure is not fit for purpose and that it needs to be changed and overhauled. I look forward to the Tánaiste's reply.
Before I call the Tánaiste, I welcome Delegate Sam Rasoul from the 38th District of Virginia, who is here with Senator Malcolm Byrne. He and his family are most welcome to Seanad Éireann.
I thank Senators Craughwell and Wall for their contributions. This was discussed in the other House when Deputy Howlin tabled a similar amendment. I indicated to him that I had instructed my officials to examine the chain of command and the entire Defence Act 1954, insofar as it relates to proper structures. The Commission on the Defence Forces recommended a chief of the Defence Forces, a joint services approach, upgrading the chief of the Air Corps, Naval Service and Army and having all at a similar level and then having a vice chief of defence, CHOD, also. In essence, yesterday at Cabinet, we brought forward the heads of Bill and sought permission to draft a Bill. The 1954 Act is simply not fit for purpose.
I do not accept the arguments that this is departmental overreach or getting into operational issues. It is far more fundamental and profound than that. The Chief of Staff under the 1954 Act, as might be perceived by the layperson, is not a Chief of Staff who can direct, for example, the flag officer or brigade commanders under the Act. That is clear. However, he has delegated management functions from the Department and it has worked over the decades but in no way could it be seen as optimal. The Commission on the Defence Forces was very clear, having looked at western democracies and the way they are structured, that we would develop a similar CHOD structure with a chief of the Defence Forces.
There are important issues. I note Senator Craughwell's use of the word "autonomy" and in the context of a democracy, no Defence Force can be autonomous in that sense. Fundamentally, the primacy of the civilian authority must always be a key factor in any such defence legislation. We have essentially published the heads of Bill and will draft legislation. It is comprehensive. Were we to try to stitch it into this Bill, it would be inappropriate. If the Senators are saying they want pre-legislative scrutiny and all of the rest of it, that has not happened here.
The progress will be the drafting of the Bill, pre-legislative scrutiny, then a committee and then the normal Stages of the Bill. My view is that we should await the publication of the substantive Bill on this issue.
I welcome the Tánaiste. It occurs to me that it is a bit artificial that the Cabinet should be organising significant changes to the structure of the Defence Forces and here we are discussing a Bill that has some bearing on those matters and we do not have a complete picture of what is proposed. I appreciate that the Tánaiste said he intends to bring his proposals through the normal legislative process, but the Cabinet must have agreed something. The Cabinet must have agreed a memorandum of some kind. The terms of the memorandum should be made available to everyone to see at this stage. They cannot really be secret if the Government has decided to authorise the Tánaiste to prepare legislation along those lines. Could it not be that we would have a full explanation or, indeed, simply a circulation of the Cabinet memorandum minus whatever is confidential so that we could see precisely what the Government has agreed and committed itself to doing rather than the old phrase about a submarine without a periscope? Here we are debating the future of the Defence Forces to some extent and knowing that there is a plan already being hatched, the substance of which has not been completely revealed to the Members of the Oireachtas in either House as far as I can see.
I accept what the Tánaiste is saying, but this is the point I am making about the overreaching arch of the Department. In Defence Forces communities in Athlone, Galway, Cork, etc., generally speaking, it fell to the officer commanding the unit. This is what happened back in the day when I was there when the local community wanted assistance. We used to have firing parties, for example, for old IRA people. The request went into the commanding officer. It was sanctioned locally and dealt with locally. Now, everything has to go back to the Department. I have had situations, for example, the commemoration of the fallen of the First World War in Galway, when thanks to the Secretary General of the Department, at the twelfth hour, a couple of hours before it was due to take place a few years ago, we got sanctioned to run it. When I talk about autonomy, I am talking about autonomy within the Defence Forces themselves. Of course, I accept that the Chief of Staff and all the members of the Defence Forces are answerable to the Minister and that will and should always be the way. However, there has to be local control. We cannot have a situation where in some cases, junior officials in the Department have the right of sanction on a particular request whereas a lieutenant colonel in charge of 500 or 600 men and women cannot make that decision. That is fundamentally wrong, and I think the Tánaiste will agree with that. We have always been embedded in the communities we serve. I would hate to see that being eroded further.
I know what the commission recommended regarding the breakdown of the structures. I agree with my colleague, Senator McDowell. I would like to see the writing on the wall on that one before we start to give it sanction. However, it is a good idea that the Army, the Air Corps or air force, as it will become, and the navy will have their own structures. That is important. However, in terms of lending out a tent for a weekend fair in the local community, surely to God local colonels should do that.
Senator McDowell has experience of how Government works. Essentially, there is no secrecy about this at all. This was in the Commission on the Defence Forces in broad brush strokes in terms of the idea of amending the 1954 Act with a completely new chain of command, but particularly a new position of CHOD. We have no issue with summarising this in terms of what is in the heads, but then the next stage is that we have to draft it and then we have to engage on the basis of the draft Bill, which is normal and makes sense. The issues will be around the accountability chain and some of the issues the Senator raised in terms of who is ultimately the accounting officer, what the demarcation lines are and how we have the chain of command right to the Minister for Defence, the Government, the Secretary General and all of that. They are what I presume will be some of the areas of debate. However, the fundamental structure is going to happen as per the Commission on the Defence Forces because the existing structures are not adequate at all in my view.
I assure Senator Craughwell that we would love more delegated authority. A hell of a lot of delegation has taken place already in terms of regulations and so on, as the Senator knows. We would love more delegated authority. The fundamental point, though, is that this Bill is not suitable for this amendment.
It is Committee Stage.
I accept the Senator's right to raise it, but I will not insert this into this Bill given that we are doing a comprehensive overhaul of the 1954 Act and of the chain of the command. That is my argument, really.
I accept that there is a normal process leading to legislative change. However, if the Cabinet has agreed the principles of that legislative change, I cannot see any reason what the Cabinet agreed should not be laid out for public consideration at this stage. I know that the drafting process involves putting together heads of a Bill and then pre-legislative scrutiny in the ordinary course of events, and then consideration in detail by the Houses. However, I cannot see any reason if decisions in principle have been made by the Cabinet they should not all be put out there for the public to consider, especially when the Defence Forces are coming under such scrutiny at the moment and are in a crisis as regards the falling numbers in the Defence Forces and the undermanning of the structure of the Defence Forces due to the shortage of personnel. It would inspire public confidence if there was transparency on this issue and if everything that the Cabinet agreed about the Defence Forces was set out in public, at least at the level of principle. I do not see any reason it should be secret to members of Government and not available to members of the public.
I thank the Tánaiste for the reply. I have two questions. He mentioned that this is a direct result of the commission report. Can he confirm today that there are no changes from what the commission report outlined in the command and control structure that was discussed at Cabinet yesterday or whether there are changes from the commission report?
The second issue relates to timeframes. This is very important given everything that is going on in the Defence Forces at the moment. When does the Tánaiste expect that the Bill to change the 1954 Act may come before the Oireachtas? Can he give us any timeframes in that regard?
Again, there is no secrecy here. The Government is entitled to draft a Bill. It is a very fundamental point.
I have no problem with that.
The Senator is showing a latter-day-----
I have no problem-----
Perhaps it is from in his days as Attorney General. I do not either; there is no point. There is no issue with the principles.
There is no White Paper here. We do not know what is really being proposed.
The Senator asked a question. He might let the Tánaiste reply.
There has been a very sensible discussion of these issues. I refer to creating the position of the CHOD and joining the three services together in terms of a joint services approach with each having its head or chief of service. Then, we would have a vice CHOD as well in terms of the upper structure.
The issues that will ultimately remain to be determined, which is the edifice, essentially, will be how we demarcate between military and civilian authority and the detail of the role of the CHOD vis-à-vis the services as well. The broad outline is there as determined by the Commission on the Defence Forces. I will acknowledge that there are still issues to be worked through and we will take more consultations from military management and others on that aspect of it.
On the timelines, at the moment we have the triple lock amendment potentially coming forward and then I hope this Bill will be next and that we will have substantial progress made by the autumn. I will consider publishing some of the key principles underlining this legislation.
I take the point Senator Wall makes, which is reasonable. While the Tánaiste says some of the things that are now proposed are in line with the report by the Commission on the Defence Forces, but we presume that we will be notified if there are going to be deviations from that or if some aspects of the report are not going to be followed. We are entitled to that kind of general information.
The Senator will see that when the Bill is published.
I do not see why we should wait until the Bill is published.
It is an executive function to draft a Bill. Senator McDowell knows that as well as anybody.
No, I do not accept that at all.
The Senator does. Come on.
With respect, and through the Chair, if I stood up when I was a Minister and said I was going to reform An Garda Síochána and brought a memorandum to the Cabinet saying that, and then a debate on An Garda Síochána took place in the following days in Dáil Éireann or Seanad Éireann, and I went in and said that Members would find out in the fullness of time what my proposals are when I table a Bill or send the heads of a Bill for pre-legislative scrutiny – it did not exist in those days-----
That is exactly the point. It is far more transparent today.
-----but I imagine that I would at least inform each House of Parliament what it was that the Government had agreed. That is all I am asking for.
I told the House what we agreed. In fairness, I outlined the broad direction of travel. Everybody knows it. The Commission on the Defence Forces was not the Legislature but it gave the broad outline of what would transpire. The Government must have the capacity to draft the Bill. As we know, the pre-legislative scrutiny process allows for very wide discussion. Some of the pre-legislative scrutiny processes have been very lengthy on a number of Bills in various areas because stakeholders have come before committees and given their views. I do not accept the idea that this is somehow a secret. It does mark, however, a significant departure from where we are. That is the broad thrust of what the Senators are saying. They want us to move away from where we are now. That is the direction of travel and there will be debate on the detail of it.
I thank the Minister. We find ourselves in a situation where he is promising legislation coming down the line that is going to fix all these things. He is correct in what he says but he may not be in power long enough to bring that legislation forward. Legislation takes a long time to draft. Who knows, but the coalition parties might come back in September and decide they are heading to the high road, and where will the legislation be then?
The amendment we have been talking about puts in place a command structure through this Bill. How often does the Minister meet the Chief of Staff on a one-to-one basis, just the two of them, for defence briefings? Having a command structure is also about briefing the civilian side, and that is the Minister. How often does he meet the Chief of Staff for those briefings?
That is not in the amendment.
I am sorry, but it is relevant to my amendment. We are talking about a command structure.
That does not relate to the Minister.
That is an interesting question, which plays to a certain agenda. The hostility to the Department that comes across in some of Senator Craughwell's presentations worries me at times. That is genuinely the case.
The Minister's acceptance of the Department worries me.
The Department represents the civilian wing of the Government. I have met the Chief of Staff separately on occasion. He would be the first to say we need a de facto collaborative approach in real time. I am not clear on the rationale for writing out the Secretary General, whoever that may be at any time, if Senator Craughwell accepts the primacy of the civilian authority.
The rationale is very clear and simple. The Chief of Staff of the Defence Forces has a defence focus and is an expert in the area of defence. The Secretary General is an administrative person who does not have a defence background. We are living in very dangerous times. I resent the fact the Minister says I am hostile to the Department. I am anything but hostile to the Department.
I did not say the Senator is, but I get a sense of that though.
I personally believe the Department has a job to do and I am 100% supportive of that, but I am also deeply concerned that defence is in some way being pushed aside. It is being pushed into a corner. The events in recent weeks demonised the Defence Forces. I was deeply disappointed in the Minister's own statement when he said members of the Defence Forces have to be held to a higher standard than the rest of society. How can he say that? We are drawn from society. Members of the Defence Forces are members of our society. We were talking about 26 people mentioned in the independent review group report, which demonised and damned the Defence Forces to hell, but that has now proven to be a puff of smoke. There was nothing in it. They have gone on now to look at the next ten cases. The Garda Commissioner said there was nothing to be answered in 26 cases. The cases have been investigated and there is nothing to be seen. The Garda is now examining fewer than ten historical cases.
We must stick to the amendment.
This House and the Lower House have done extreme damage to the Defence Forces. Statements about holding them to a higher plane than anybody else-----
Senator, we must stick to the amendment on the command structure.
We are talking about the command structure.
You are speaking more generally about the Defence Forces.
I am entitled to my view on the command structure of the Defence Forces.
You are not. It is the Chair's view on whether it is in line with the amendment.
You might be being a little bit hard on me, a Leas-Chathaoirligh.
Otherwise, we would never finish. Are you pressing the amendment?
Of course I am pressing the amendment.
Amendment put and declared lost.
Sections 6 to 10, inclusive, agreed to.
SECTION 11
Amendments Nos. 2 to 5, inclusive, and 18 to 21, inclusive, are related and may be discussed together. Amendment No. 3 is a physical alternative to No. 2. Amendment No. 5 is a physical alternative to No. 4. Amendment No. 19 is a physical alternative to No. 18. Amendment No. 21 is a physical alternative to No. 20. Is that agreed? Agreed.
I move amendment No. 2:
In page 9, lines 10 and 11, to delete "in relation to a political matter or matter of Government policy" and substitute "in relation to a matter of political controversy".
This proposal is to delete the words "in relation to a political matter or matter of Government policy" and substitute "in relation to a matter of political controversy". The relevant section, section 11, proposes to exclude a member of the Defence Forces:
...while in uniform or otherwise, making himself or herself identifiable as a member of the Permanent Defence Force ... [and making] without prior authorisation from ... [his or her] ... commanding officer, a public statement or comment in relation to a political matter or matter of Government policy.
What is Government policy? I can see that some things are a matter of Government policy and others are not. It is difficult to state what is Government policy at any given time. One cannot expect every member of the Defence Forces to read every policy document and to know what is or is not Government policy, or what has changed in the latest U-turn, variation or press statement on an announcement of a change to Government policy. This provision is vague. It uses the term "political matter or matter of Government policy".
Is the strength of the Defence Forces or the provision of married quarters or housing for Defence Forces personnel a political matter? Has the Government a policy on those areas? Those kinds of things are extremely vague. There are many things a member of the Defence Forces might want to comment on. I will give an example. A member of the Defence Forces might, while identifiable as such, comment on the CSPE curriculum in a school and might differ from the views of the current Minister for Education or the curriculum body on these matters. It is a strange position that such people are being asked to muzzle themselves in a manner which is wholly unnecessary. The width and breadth of the prohibition is grossly excessive.
If the phrase "in relation to a matter of political controversy" was put in, at least members of the Defence Forces could consider whether there is a controversy about a matter. Do they identity themselves as a corporal in the Defence Forces if they ring Joe Duffy? Do they identity their occupation if they comment on an issue to do with education, social welfare or whatever? Do they have to, if asked the question "What's your job?" by Joe Duffy, say they cannot answer that because they are talking about a matter of public policy about which they are prohibited from speaking? I am happy that people should not attend protest marches and the like in uniform but if there is a protest march on the quality of drinking water in Roscommon or something like that, is a Defence Forces member permitted to participate? If that person is known to be a member of the Defence Forces, is he or she effectively muzzled from doing so?
I pointed out, and do not know whether it has been taken up yet, that section 11 in its current form prohibits a member of the Defence Forces from canvassing on behalf of or collecting contributions for any political organisation or society but it does not seem the wording of the section prevents them doing any of those things in relation to an Independent candidate. It only prohibits them from doing them in connection with a political organisation or society. There are Members of the Oireachtas, in particular of Dáil Éireann, who are Independents and not members of an organisation or society. I do not know why this should be drafted in such a way as to say it is fine to collect for candidate A because he or she is not a member of an organisation or society but it is utterly wrong to do so if the candidate is a member of even a microparty. I pointed this out on Second Stage and do not see a Government amendment to deal with it, which is disappointing.
In general terms, our amendment is aimed at making people in the Defence Forces free to act on matters which are not the subject of political controversy. They can protest about potholes in their road, which could hardly be described as political controversy, or about water quality in their area or what curriculums should or should not be taught to children attending their local school. Those kinds of issues should be open to them to participate freely as citizens without in any way compromising the Defence Forces.
Without going back over whether members of the Defence Forces should be held to a higher standard, I believe they have to be seen to be neutral. I accept that proposition politically, but I do not believe that means they have to be gagged on virtually everything. I do not know the extent of Government policy in respect of a whole heap of areas. I am sure there are Government policies on fisheries, agriculture and other things that would not occur to somebody living where I live, namely, Ranelagh. Prohibiting a member of the Defence Forces from commenting on something which is almost unknowable is too wide a prohibition. On the other hand, a member of the Defence Forces should know whether something is a matter of controversy. If something is not controversial, I do not see why they should not be able to comment on it or should have to desist if anybody identifies them as a member of the Defence Forces.
I welcome the retirement group from Bord Gáis, who are guests of Senator Carrigy. I thank them for being here.
What we are talking about here is gagging members of the Defence Forces. We do not have any difficulty on the political side but Government policy is the issue, as Senator McDowell has outlined. There has already been a High Court case involving a soldier who wanted to appear in the respect and loyalty parades that took place in 2019, 2020 and 2021. The Minister's Department lost that case on constitutional grounds. This was about the right of a soldier to protest in a public parade.
There are double standards here because during the previous Chief of Staff's term of office, soldiers were encouraged in uniform to take part in a political parade, namely, the Pride parade, every year. Pride is a political movement, whether we like it or not. Soldiers were not just encouraged to parade in uniform, but to wear Pride flags, etc. I have no difficulty with that. It is a perfect role for the Defence Forces to show diversity in our country. However, we cannot have it both ways. There are members of the Defence Forces all over the country hurting over comments made. They know they cannot respond and they will not respond because that is the discipline we are brought into the organisation with. It is understood from the outset when you join as a recruit that you are limited in what you can say.
We have to be careful of the two representatives bodies and the veterans' representative bodies ONE, ARCO and IUNVA. Those bodies need to be free to speak their minds.
There is nothing stopping the veterans but RACO and PDFORRA will be limited in what they say. Indeed, it is remarkable at the moment that they are managing to hold their tongues with what is going on in the country.
I do not see the need to bring this in. Can anybody in the Minister's Department point at a time when soldiers, at some stage, started to comment on government policy? Can anybody show me there is evidence of that? I do not believe it has ever happened. I believe this gagging order is completely unnecessary and that the Minister needs to put it away and put an end to it. We do not need it. The Minister can rest assured that both RACO and PDFORRA will always play and work within the rules. My experience of them is that they are decent, honourable people who will always try to do the right thing by the Department and by their own membership. I do not see the need for this and I believe we need to have this taken out.
There has been much talk about gagging of representative associations and individuals by means of this Bill. Every young person I meet who has joined the Defence Forces tells me that one of the reasons they did so was because they have a representative association, whether it is RACO or PDFORRA. They want the same rights as other young careerists, with someone who is there to represent them at all times. That is an important point to make. I am sure that the Minister will agree that RACO and PDFORRA have always toed the line with regard to political commentary and always will, but this is perceived as a step too far for representative associations. Come the day when somebody makes commentary that is perceived by Government to be off the mark, what will be the consequences? The representative associations are asking that question.
I am from County Kildare. Many people in the Defence Forces are deeply involved in their communities. They are part of their community and community organisations day in, day out. I want to give an example of a member of the Defence Forces who has a child in school who needs additional facilities, whatever they may be. The member then attends a meeting. We all know who is in the Defence Forces in our communities because that happens in counties like Kildare. People are asking me if they can contribute to such meetings. Can they pose questions about the additional facilities that are needed? Can they support them? Can they become a member of a committee that may write to the Minister for Education and ask that question? These people are identifiable and everybody in the room will know that, be they captains or privates, they are members of the Defence Forces. We are asking to change this because we see it as a limitation on those people who are the heartbeat of our communities and who we feel will be gagged by what is proposed. That is why we tabled the amendment.
I thank the Senators for the amendments, which relate to sections 11 and 24. I make the fundamental point that section 11(1A)(a) contains the phrase "while in uniform or otherwise making himself or herself identifiable as a member of the Permanent Defence Force". If a member of the Defence Forces turns up at a school as a parent and does not indicate that he or she happens to be a member, there is nothing stopping that parent from saying he or she thinks there needs to be a school extension or whatever. Nothing in the Bill stops that. That is important. As stated, the phrase is "while in uniform or otherwise making himself or herself identifiable as a member of the Permanent Defence Force". We discussed this matter at length in the Dáil.
I genuinely understand the concerns that Senators have but I reiterate that nothing in this Bill will interfere with the statutory purpose of the military representative associations to represent their members. For example, with regard to housing for members of the Defence Forces, it is quite legitimate for PDFORRA or RACO to advocate on behalf of their members for housing. I have responded quite positively with new accommodation blocks in Haulbowline and various barracks around the country. We just opened a new block in Collins Barracks. Good work was done in respect of McKee Barracks as well. That work will continue. In fact, there will be a proper, comprehensive master plan for physical development at every location from now on.
Paragraph (g) of the proposed new section 2A to be inserted into the Defence (Amendment) Act 1990 clearly provides that the provisions on the making of public statements or comments are "without prejudice to the purpose of an association of representing members". I want to be clear that this is not a gagging order. Representative associations can speak on any matter that relates to their members and can advocate for their members.
The overall provisions are fundamentally about the importance of an apolitical defence force. I take the Senators' point that we have been well served since the foundation of the State in having Defence Forces that are apolitical. That is important. I would argue that it protects the members of the Defence Forces. Everyone knows the rules when they join. We are providing clarity to that effect in primary legislation. These provisions are not new in the sense that the Defence Act 1954 and the oaths taken by Defence Forces members have always provided for restrictions with regard to political activities. To be clear, the legislation is not seeking to diminish existing individual rights or the rights of the representative associations. In the case of an individual, nothing in this legislation will, for example, prevent private citizens from speaking at a local primary school meeting simply because they happen to be members of the Defence Forces, provided they are not in uniform or otherwise make themselves identifiable as members of the Defence Forces. That is currently the case, and there is no change in the policy. We are setting out these principles in primary legislation for clarity.
I have consistently said during the debate on this Bill that these provisions fully reflect both legal advice and strong advice provided on the matter by military management. I have received advice from military management in respect of this. I think Senators all agree on the importance of visibly apolitical Defence Forces and the perception of that. We cannot minimise that, particularly in the current geopolitical environment whereby the world is much different than it was two or three decades ago. The provisions set out in section 24 in respect of associate membership of ICTU for Defence Forces representative associations are a welcome and positive development. That is the context. This provides for association with ICTU. For the first time, there will be a mechanism in place to enable Permanent Defence Force representative associations to avail of associate membership of ICTU. That is the context that should be remembered with regard to these provisions.
I have reflected on this a great deal between the different Stages. I believe it is necessary and proportionate. On the language, I think Government policy is definable. A political matter-----
Unknowable.
I am not sure about political controversy, because one person's mundane political matter is another person's political controversy. It is not clear how that would add clarity. People did listen to Senator McDowell about the issue of independence. It was noted. I am informed that it has been reflected upon and it is believed that the term "political organisation" covers and will be commonly interpreted as covering more than traditional political parties. Many Independents have political organisations as well, including their own, if necessary. That could be a passing phase but, increasingly, Independents are tending to band together as Independents, but that is not the point the Senator is making. There can be an Independent but that Independent invariably has an organisation. It is a legal definition of a point but we are satisfied that it is covered by the language.
The key line is about while a member is in uniform or making himself or herself identifiable. It is about maintaining the primacy of our apolitical Defence Forces. It is in the context of facilitating the membership of ICTU on an association basis by PDFORRA and RACO. That is a good day's work. It is progress.
The Tánaiste referred to the phrase "while in uniform or otherwise making himself or herself identifiable as a member of the Permanent Defence Force". The secretary general of RACO, the deputy secretary general, any member of RACO's or PDFORRA's executive committee or any official working for PDFORRA are members of the Permanent Defence Force on secondment to these representative bodies.
In the view of the Minister, if they speak out he is facilitating them today, saying that is perfectly all right, it is their job and they are entitled to do it. Who knows who the next Minister for Defence will be, who might take an entirely different view because there is in this a gagging order that can be implemented if they want to do that? I cannot see a way that you can get away from this-----
Paragraph G of section 2A of the Defence (Amendment) Bill states that the provisions on the making of public statements or comments are without prejudice to the purpose of an association of representing members. In other words, we have clarified it now, and can go back to the Attorney General prior to going into the other House. Nothing can prevent the members identified there, members of RACO and PDFORRA, from speaking on behalf of their representatives. I have no issue with that.
Is it section G?
Yes, paragraph G of proposal in 2A.
With respect, that means that somebody who is not a member of such an organisation cannot comment even on his or her organisation in public statements. If RACO says it opposes X, Y and Z, and that is permitted under section 24, 2A and 3A, it means that somebody else in the Defence Forces cannot even publicly disagree with his or her own representative organisation on the matter because he or she is not an officer of those organisations. Somebody cannot say that position does not represent his or her view or his or her my opinion, the great majority of members' views, or is not in conformity with what many people in the Defence Forces believe. That is the problem there, because section 2A and the subsections in section 3 mean that the Minister effectively can come up-----
To be helpful, on page 9 of the Bill, this is what we are debating at the moment: "Section 103 of the Principal Act is amended by the insertion of the following subsection after subsection (1): “(1A) Without prejudice to the Defence (Amendment) Act 1990 and any regulations made thereunder, a member of the Permanent Defence Force shall not— ". The Defence (Amendment) Act 1990 is the Act that established the representative bodies. It is without prejudice to the purpose of an association representing members.
Yes, but, as I see it, the amendments made by section 24 of this Bill accord to members of a representative organisation the right to publicly articulate, in good faith, a position which could be a matter of public policy or not, but which concerns the activities of that representative organisation. What worries me is, the right to comment or to contradict that is taken away from individual members of the Defence Forces who may disagree with it. If a member of RACO says “We fully support the Tánaiste’s view on A, B and C, he or she is entitled to say that but a member of the Defence Forces is not entitled to write a letter to the newspaper saying "(a) they did not consult me, or (b) in any event I disagree with them."
A member of an organisation is in a position to work out its policy positions.
He would not be a member. A person who is not a member or a spokesman of the organisation would not have that standing.
They have annual general meetings.
That is fine at a general meeting, but if people are listening to what goes on the RTÉ Radio 1 “Morning Ireland” programme, they cannot comment in response. Going to a general meeting is a different matter, and waiting for that to be convened. If you are a member of the Defence Forces and a representative organisation says something about a political matter or Government policy that you disagree with, you are not entitled to say that is the case.
No, the representative body can represent its members and its advocacy is in respect-----
Yes, and can claim to represent its members.
It does not do a wide canvass on every single issue.
No, but as I read what the Minister is proposing, somebody on behalf of a representative body is entitled to comment on the proper subject matter of the things that that representative association gets involved in, such as service conditions, accommodation, pensions, you name it. If they do so in public, the consequences of this amendment that we are now proposing, is that an individual member of the Defence Forces cannot write a letter to the newspaper saying "I disagree with what RACO, or PDFORRA, is saying on my behalf. I fundamentally disagree with it." The same applies where somebody in PDFORRA might say that what RACO is saying is something that they disagree with fundamentally. To say to them that they can go to an annual general meeting and express their views there is not very much use to them if they have to sit quietly while the public is told that a representative organisation has taken a position which is different from that of a significant number of members of the Defence Forces. That is the point I am making.
It is necessary to go back to the parent Act that established the representative association. It did not envisage ten associations or splinter groups. It did not envisage that at all. There is a structure for representing the interests of members. That is through the representative association and invariably there are internal consultation processes that RACO and PDFORRA conduct. They get their feedback and they advocate. They advocate very extensively, by the way, in conciliation and arbitration, for example. I know, because the files come in to me regularly in respect of individual cases. They take legal actions on behalf of members. It has evolved to be quite an effective representational function actually, to be fair. It is ordered, structured and effective. In that context, what we are now doing is we are actually progressing that even further by facilitating associational membership with ICTU.
However, the broader story of an apolitical Defence Force is important. Most people agree with that. That is the context of this. There was no real pressure to fundamentally alter the existing structures. This is the current position.
Before I call on Senator Wilson, I welcome to the Distinguished Visitors Gallery Michael Flatley and Niamh. Michael is famous for 30 years ago being one of the duo in the famous "Riverdance" but also the feet of flames in "Lord of the Dance". We are most honoured to have them here today, especially on the 30th anniversary of Riverdance but also due to the fact that he is a great friend of my father's. All politics is local. We hope he comes back to Kenmare soon. I thank them for being here today.
I welcome the Tánaiste to the House and also welcome Michael Flatley and his guests. I note that he is a guest of Senator Aidan Davitt. I was always wondering how he was good at dancing around difficult situations and now I know how that has happened.
To follow on from what my colleagues have said in regard to the representative bodies, I agree with them. They believe this legislation is gagging them and depriving them of an opportunity to represent their members fully.
I wish to make a technical point, having listened to the conversations here, regarding a member of the Defence Forces who becomes a director of a community and voluntary organisation. As the Tánaiste is aware, in order to become a director of such an organisation, one has to state one's occupation. The men and women of the Defence Forces throughout the length and breadth of this country are involved in community and voluntary organisations and are pivotal members of those organisations. If the organisation of which a member is a director is lobbying politicians, where does that leave the Defence Forces member in the context of this legislation? My layman's reading of the situation, although Senator McDowell may be able to elaborate further on this, is that if a member is a director of a voluntary organisation that is lobbying politicians for funding for that organisation, he or she is in breach of this legislation. That is my layman's view on it and I would be interested in hearing the Tánaiste's view.
As far as I am concerned, all we need to do here is remove the phrase "on matters of Government policy". If we remove that phrase, we can agree to move forward on that basis. Again I go back to the situation mentioned earlier, which the Tánaiste did not address. A Pride parade is a political parade. Would the Tánaiste agree with that? If so, then any regulation coming forward has to cover instances where the Defence Forces would be allowed to proudly parade in uniform. It was really disappointing for me last weekend when the Defence Forces were told that they were not welcome at a Pride parade. There are many members of the Defence Forces who are right across the gay community. They cover everything and it is great that we have moved to a situation where, for example, homosexuality is accepted in the Defence Forces. In my time, it was illegal.
We are talking about being identified in uniform and that is one element that has to be resolved. We have to have an answer to that but after that, if we can just get rid of the phrase "matters of Government policy" from this legislation, we can move on and get to the next part of this Bill. It is important to get rid of that.
I just want to take up that last point. I thank the Tánaiste again but that is the point we are all trying to make here. The Tánaiste mentioned that the 1954 Act includes the phrase "political matters". The phrase "Government policy matters" is a new one that has been introduced here, although the Tánaiste can correct me if I am wrong. That is an issue because the definition of same is causing a lot of problems for a lot of people. As Senator Craughwell said, if we can remove that phrase we can move on with what was in the legislation in 1954, which has worked up to now. We all want our Defence Forces to be apolitical but this issue is causing a problem. I ask the Tánaiste to respond on this change to the 1954 Act.
I agree with the Tánaiste's fundamental proposition. Most members of the Defences Forces and society in general would agree that we should have non-political Defence Forces, in the sense of non-party political and non-politically active. I ask the Tánaiste to respond further to Senator Wilson's point and the points made by Senators Craughwell and Wall and to assure us that members of the Defence Forces, in a lay or private capacity, can be members of community organisations, school bodies, local pressure groups working to improve their communities and so on and can be active in their communities. I also ask him to reassure us on the point that they can come with their community organisations to a given Minister and make a representation. If that is so, then the fundamental purpose and objective of the Bill is correct. We want non-party-political and non-political Defence Forces and gardaí. Both have served this State very well.
That is the fundamental point that has just been made. Mr. Kevin O'Higgins said in 1924 that those who wear the uniform of the State must serve the State and that principle has stood us in good stead. I have been working in the best interests of the Defence Force members. We have done a lot in the last year and a half and before that in terms of improving matters across the board. In many ways, I believe this is a protection for members of the Defence Forces as well. It gives them clarity.
To answer the question that Senator Wilson and others asked, there is no bar or prohibition on members of the Defence Forces being members of a community group. The only issue here is if they do so while in uniform or if they make themselves identifiable as-----
If they identify themselves as members of the Defence Forces.
Yes, if they are in a room, they put their hand up and say they are members of the Defence Forces and they believe in X, Y, or Z. On the point about Government policy, let us turn it around. Are we really saying that we are inviting members of the Defence Forces to criticise Government policy publicly, left, right and centre? If we do not have a provision like this in the legislation, that is what is going to happen. There are plenty of people out there who would love to infiltrate and create mischief too. We had a different case recently in respect of Libya, where there was penetration, not by a political grouping but in terms of some former members in a grey area between leave out in Libya. We have to be wide awake as to what can happen.
I must be absolutely clear that there is no attempt, in any shape or form, to restrict the work of the representative associations in advocacy for their members. I find it difficult to comprehend that this is now being asserted, given that this legislation seeks to move us forward and allow the associations to be members of ICTU. That is the whole purpose of this legislation and this had all been agreed in the litigation that gave rise to this in terms of the associations and ICTU. A lot of this was hammered out in an agreement with the representative bodies at that time. It is legitimate for people to ask questions, to get clarity and to get guarantees but this is in no way designed to restrict, nor does it have the legal effect of restricting, the representative associations from advocacy and arguing on behalf of their members. I welcome that advocacy and have no issue with it. I meet with RACO regularly and with PDFORRA in respect of a wide range of issues. We have just recently signed off on the organisation of working time directive, which finalised the military management position. We had talks and got that signed off. It is now with the Department of Enterprise, Trade and Employment which has responsibility for that directive and which will legislate. We are not trying to bring in legislation that would somehow restrict any of that. I want to be very clear about that.
I do not see the Pride parade as political. Senator Craughwell might argue that it is, but in many ways-----
Does it not advocate for-----
-----the positivity of all of that is in the context of diversity. Senator Craughwell put it very eloquently when he spoke of the changes that have occurred in terms of diversity within our Defence Forces. I also regret that the Defence Forces were not facilitated to reflect that diversity. The vast majority of our Defence Forces have no truck with those who engage in serious assaults on people. They value what they stand for. It is not necessarily about higher standards but it is the case that people look up to gardaí and members of the Defence Forces. We all looked up to the Garda and the military. Maybe that was a very naive way of looking at things but we did and it mattered, in terms of the sense of order in society. We take pride in how our Defence Forces perform overseas. We have a top-class military and the fact that the Chief of Staff was selected by his peers to be the chief of the EU military committee speaks volumes for the quality of our military leadership in terms of their capacity and their understanding of complex military issues, strategies and so on. I want to enhance all of that. If we allow for political activity, it could get very political very quickly depending on who is in government and so on. I would hate to think we would end up in that scenario.
I take it that the Tánaiste will confirm that these restrictions only apply to members of the permanent Defence Forces and do not apply to reservists. I think that is the case, although the number of reservists has dwindled to practically none.
We are on the way back up.
I will believe that when I see it.
It is interesting that reservists seem to be in a position to attend marches and parades in uniform whereas others are not. This section needs to be thought out again. It is strange that reservists could do the things set out in paragraph (a) of this new subsection while permanent members of the Defence Forces cannot.
If members of the Reserve Defence Forces are called out - for example one member of the Reserve Defence Forces is in Lebanon - while they are on that service, for that period, they are not in a position to comment, but off that service they are under their own HR.
Yes, and we all know that the Leader of this House, Senator Chambers, was a member of the Reserve Defence Forces.
She has resigned her post.
The Senator has resigned from them.
She was in no way inhibited by that status from being a political person, and a very fine one. Will the Tánaiste confirm that none of this applies to reservists?
It does not, unless they are on permanent service, which is rare.
Are they then deemed to be members of the permanent Defence Forces?
Subsection (g) of the new section 2A states that a representative association may not:
(g) without prejudice to the purpose of an association of representing
members—
(i) make a public statement or comment concerning a political
matter or matter of Government policy
Someone who does not like the stance of his or her representative organisation is gagged because he or she will be caught by the new section 1A. The association is entitled to make public statements with which he or she disagrees under the proposed section 2A of the Defence Act.
Does the Minister wish to reply or will I move on to Senator Craughwell?
I have dealt with the matter already.
I thank the Minister for putting on the record of the House that the vast majority of members of the Defence Forces are decent, honest, hardworking, law-abiding citizens. That was an important statement to make in the House today because of the level of hurt there is in the defence community and family due to things said in recent days. The Minister has now corrected the record and I thank him for that.
I will return to "all matters of Government policy". That is all I ask the Minister to remove. It is a simple thing to ask. Remember that representative bodies, PDFORRA and RACO, are serving members of the Defence Forces. If the Chief of Staff or a senior officer in the Defence Forces feels they have transgressed in some way, they are subject to military discipline. They can be paraded and charged with a military offence. From that point of view, they are unique in how they should be treated in this legislation. My colleague, Senator McDowell, drew on the example of members of the Defence Forces who may not agree with their representative bodies. However, I take it that the representative bodies have been elected by their members, as has their executive and it is perfectly reasonable to ask that the restriction on discussion of matters of Government policy be removed. It is all that is being asked in respect of this section.
Does the Senator wish "Government policy" to be removed?
That is without prejudice to the representative associations' ability and capacity to advocate on behalf of their members' interests, which is quite a broad range.
Does that include housing and so on?
Yes, it does. They advocate for housing. The representative bodies have been established with a function, to represent their members. The representational nature and function of the representative bodies is in no way stymied or undermined by any provision in this Bill. The inclusion of "without prejudice" is to make that legally crystal clear. The Attorney General and his office are absolutely clear about that.
Otherwise we could have - I have to be careful about the areas - PDFORRA or RACO suddenly commenting on, for example, the Middle East, which could have consequences for our people in the region. Once we open that door, where does it begin and end? I am with the Senator. I am absolutely clear that I want to preserve their rights and add to them. From now on, they will be able to take part in national pay agreement negotiations. They will be at the table, whereas before they were not. That is what this Bill does. That is the real practical de facto outcome of the Bill.
I will go back to my time as president of the Teachers' Union of Ireland, TUI. I remember making a statement one day and at the following executive meeting, one of the executive members asked who had given me permission to make the bloody statement. He said that there was an executive committee and its role was to decide what I could and could not say. We have an additional restriction the representative bodies of the Defence Forces because of this section. That would not apply to any other representative body. Members are answerable to their executive and membership and to no one else. The nuance here is that if we get the wrong Minister or Chief of Staff in place a statement made by one of the representative bodies could result in members being told to get themselves in and explain themselves because they made that statement as a recognisable member of the Defence Forces. I fully accept what the Minister said about the phrase "without prejudice". I go back to the same thing. If the Minister removes the phrase "all matters of Government policy" we can move on from this. It is a simple enough request.
With great respect to my distinguished colleague, Senator Craughwell, who has a proud record as president of the TUI and so forth, which we recognise, if I understand the legislation and the Tánaiste's explanation of it properly, members of representative bodies can comment, act and discuss with the Government and within their organisation properly on issues that concern them. Such issues include housing and their welfare issues. It should be recognised that it is a huge advance that they will be part of the bargaining process and be there in a representative capacity. That is a great advance that RACO and PDFORRA have been seeking for a long time and I welcome it.
However, if they are able to stray, as the Tánaiste alluded to, we could have a very risky situation where they might comment on middle eastern affairs while we have people serving there. However, if they can comment within their sphere of influence or relevant sphere for the welfare of their members and on matters pertaining to the welfare of their members, no one in the Defence Forces or in the wider community wants them to have any further capacity. No one wants the representative bodies to have a political function beyond their representative role. That is a reasonable proposition.
Going back to the words of Kevin O'Higgins, it is important that people in uniform serving the State are completely independent of party politics and particular stances that could be interpreted. It is great that they will be able to take part in the negotiation process and speak on all areas. I am glad the Tánaiste said they will be able to speak about housing as it is relevant to their welfare and about other matters that pertain to their welfare on a day-to-day basis and to the overall good of the Defence Forces. I do not see why they should be able to hypothetically comment on agricultural affairs or anything outside that. What would the use of that be anyway? We would potentially stray into party politics and certainly non-objectivity in cases.
Before I call the Tánaiste, I welcome the groups in the Public Gallery. They are guests of Senator Robbie Gallagher and Deputies Mattie McGrath and Seán Haughey. Tá fíorfháilte roimh gach éinne. Bainigí taitneamh as an turas. Welcome to Leinster House, thank you for being here and enjoy your visit.
The issue is that Senators are seeking legal guarantees in respect of the representative function of the representative associations. That is secure; I made sure of it. I went back to check it. The Attorney General is clear that this is achieved in the section relating to prejudice.
Amendment put and declared lost.
I move amendment No. 3:
In page 9, line 11, to delete “or matter of Government policy”.
Amendment put and declared lost.
I move amendment No. 4:
In page 9, lines 12 and 13, to delete “in relation to a political matter or matter of Government policy” and substitute “in relation to a matter of political controversy”.
Amendment put and declared lost.
I move amendment No. 5:
In page 9, line 13, to delete “or matter of Government policy”.
Amendment put and declared lost.
Question proposed: "That section 11 stand part of the Bill."
I will not delay the House much longer on this matter. I believe the phraseology of subparagraphs (b) and (c) is very vague: "political ... society" and "address a meeting of a political ... society". Could a person speak in private to a society? What is a political society? The language is unnecessarily vague. On Report Stage, some effort should be made to add extra definition to these terms by reference, say, to the Electoral Acts. If we say someone is collecting for political purposes, that has meaning. However, this is very vague stuff. The wording of subparagraphs (b) and (c) could be improved. I believe that an Independent TD should be caught by whatever rules apply to somebody who is standing on behalf of a political party or organisation.
We indicated earlier that we believe a political Independent is covered by the term "political organisation".
Question put and agreed to.
SECTION 12
Question proposed: "That section 12 stand part of the Bill."
I am totally in favour of drug testing and a drugs-free Defence Forces, so what I am about to say should not be taken as being in any way negative. It is proposed that the Minister should be able to make regulations in this regard. Subsection (2)(a) states that the Minister should be able to determine specified concentrations in samples. I wonder about that. A person can have controlled drugs in his or her bloodstream for perfectly legitimate reasons. On the other hand, he or she could have a massive presence of something like steroids for bodybuilding or for one reason or another. I wonder about the power of the Minister to determine concentrations of, say, steroids, which can be used for medical purposes too. This is a very wide power to give to a Minister to determine the concentration of controlled drugs which will be the subject of consequences.
When I come to consequences, I ask the House to look at subsection (2)(m) and (n). The Minister is entitled to provide by regulation for "the consequences that may apply to a member of the Defence Forces who refuses or fails to provide a sample" and "the consequences that may apply to a member of the Defence Forces where a positive result is yielded in his or her sample". Those are very broad powers. A person driving a car is not subject to a vague statutory provision of that kind. We cannot simply say that the Minister for Transport can determine what amount of steroids a person may have in his or her body and the consequences of failing a test.
I fully accept that we need a workable model, but can the Tánaiste confirm whether these regulations will be placed before the Houses before they come into operation? Is there, for instance, adequate provision for exemptions for medical purposes? Is that provided for in section 11? I am just a bit worried that we are giving out a blank cheque which could have serious consequences for people. The thing that worries me even more is that the consequences are not something we are deciding. We are not deciding whether being pumped up on steroids or having a tiny degree of cannabis in one's system or having traces of this or that other type of drug is or is not fatal to one's presence in the Defence Forces or what the consequences will be. We are, however, giving the Minister the right to determine what the consequences are for failing a test. I wonder whether that is appropriate to be done by regulation.
As we speak, any consequences fall to the Minister to decide under the 1954 Act. The level of delegated authority is quite low. In fact, I envisage that the new CHOD legislation we discussed earlier will create a far more sensible picture in respect of disciplinary matters and so forth. As it stands, any discharge, for example, inevitably wends its way to the Minister and, ultimately, to the President. There are safeguards there and there has been litigation in respect of some attempts. The regulations will be laid before the House. I have no issue with that. Obviously, in the case of a medical prescription, the Minister will take advice. This is in the context that the term "controlled drug" has the same meaning it has in section 2 of the Misuse of Drugs Act 1977 and that the term "psychoactive substance" has the same meaning as it has in the Criminal Justice (Psychoactive Substances) Act 2010. The intention here, therefore, is clear. Obviously, the Minister of the day will receive advices if a member of the Defence Forces says, for example, that he or she has been prescribed medical cannabis - there is no issue there, and that is allowed - or is on steroids for any ailment or condition. No one faces consequences for being on a medical prescription.
Two points arise from that. I forgot to mention subparagraph (i), which refers to "the concentration of a controlled drug or psychoactive substance required to be present to yield a positive result in a sample". That is a quantitative decision to be made. Will it be the same as the Road Traffic Act or will it be something-----
As the Senator knows, one rarely gets into the precision of a concentration of a substance in primary legislation.
In the making of these regulations, the Minister of the day will take advice.
I do not believe that this is particularly the case. For instance, under the road traffic legislation, the mere fact that a person may have a controlled drug like a steroid in his or her bloodstream does not automatically mean that he or she is committing an offence. These matters are provided for by statute. The point that worries me somewhat is a very simple one. When I was Minister for Justice, I remember the Attorney General telling the Cabinet that there could not simply be random tests of motorists, that there had to be a preordained pattern of checkpoints. We could not simply let a member of An Garda Síochána put his or her hand up, stop a motorist on a random basis and ask the motorist to provide a sample. There had to be a regime. One of the things that I am interested to hear is whether it is intended to have spot-tests. Is it the case that everybody in the platoon provides a urine sample or does there have to be s suspicion regarding an individual? Is it random and members A, C, D and E are told to step forward as they have been selected on a random basis to provide a blood test, urine test or hair sample? Are we going to introduce the random testing of soldiers or is it anticipated that it will be done in circumstances such as where there is a reason to suspect that a member of the Defence Forces is in fact abusing drugs? That is a fairly important question relating to the operability of this proposal. If it is to be random, I am not particularly against that. Airline pilots, for very good reason, are subject to random testing regimes. We should should be reasonably sure that people who are given lethal firearms in the Defence Forces are not also, in certain cases, snorting cocaine to the extent that they are a danger to themselves, others or their colleagues, for that matter.
This is a very wide-ranging power that is being given to the Minister. I want to see the policies involved. Is there to be random spot-testing of members of the Defence Forces purely on a surprise basis or is it to be different? Going back to my own experience as a Minister, I remember governors of prisons were very sceptical about random tests of prisoners because they did not want to know the terrible truth, to be honest. In the Defence Forces, it is far more serious than that. I want some indication of the policy that will underlie the regulations to be brought out under this provision if it becomes law.
I thank the Senator for bringing his experience to bear on this debate. Essentially, what is happening here is that we are amending the principal Act to say a member of the Defence Forces shall be subject to drug testing in accordance with regulation made under this section. The Minister may, in relation to members of the Defence Forces, make regulations to provide for the establishment, maintenance and operation of a regime of testing for controlled drugs and psychoactive substances which provide for a, b, c, d, e. The point I make on this is it is rare that we would get into what the operational details of what that regime will ultimately be, but obviously they are clear objective benchmarks in terms of what is already happening in society. For example, medical advice and expertise would have to be taken on board prior to the drafting of those regulations to provide for the very points the Senator has made - to protect people who, for example, may inadvertently have taken a substance, who may be attending a doctor or taking prescribed medicine for a particular ailment or condition. I will clarify that further between now and Report Stage, but it would be highly unusual that we make the regime now. My own sense is it would have to be a structured regime and there can be no surprises either, if I am honest. People should be fully transparent in terms of what is involved. Ultimately, to go back to the Senator's point, because it is the Defence Forces, this is for the ultimate protection of members themselves and the public because misuse of drugs becomes a very serious issue. Unfortunately, in modern society there is a higher incidence of this. Equally, there should be alcohol policies. We are now into the terrain of psychoactive substances, drugs and so forth, which are problematic generally across society. It has a particular application in the Defence Forces due to the presence of weaponry and the serious responsibility in terms of safety, protection of the public, members themselves, fellow colleagues and so on.
I am concerned as we are running very tight on time and there is a huge section of this Bill that deals with the external oversight body on the participation of the Secretary General of the Department. I wonder whether there is a way that we could call on the Leader to the House to extend time and give us another half hour.
As the Senator knows, it is not in my gift. Were the Acting Leader to speak to the Government Leader about extending time, that would be a matter for the Leader of the House. I cannot do that, as the Senator knows. The order of the House has been set and the Order of Business agreed to, but were someone to talk to the Leader and were the Tánaiste to be available, that would be a matter for the Government side to decide on. It is not for me to decide, unfortunately.
I will be in the other House at 5.15 p.m. to seek Dáil approval to start PESCO and EDA projects.
I appreciate the Tánaiste's position and he will appreciate that the external oversight body and the participation of the Secretary General is a huge issue.
I do not believe it should be as huge as is being presented.
I will speak to the Leader and see whether we can facilitate the Tánaiste.
What time is the Debate due to end in this House?
4.30 p.m.
I am available until 4.45 p.m.
The Tánaiste has proposed to extend the debate until 4.45 p.m. Senator Wilson will consult with the Leader.
Question put and agreed to.
Sections 13 to 17, inclusive, agreed to.
SECTION 18
Question proposed: "That section 18 now stand part of the Bill"
I notice that the penalty for contravening Section 258(A) is a fine only on summary conviction. Is it the case that no greater penalty than a fine can be imposed for repeat offenders and the like? Is there any way to take on people who consistently and repeatedly usurp the term "Óglaigh na hÉireann" to describe terrorist organisations? A fine may not be of much use to achieve that result.
I assume they have a lot of money to throw down the drain.
I will come back to that issue on Report Stage.
Sections 18 to 20, inclusive, agreed to.
SECTION 21
Amendments Nos. 6 to 13, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
Senator Gerard P. Craughwell: I move amendment No. 6:
In page 14, to delete lines 30 and 31.
Before I ask Senator Craughwell to come in, I ask Senator Wilson to inform the House of a proposal.
I thank the Cathaoirleach. As the Tánaiste is available to stay until 4.45 p.m., the Leader has agreed to extend this debate until 4.45 p.m.
There is a proposal that the House continues the Committee Stage debate of the Defence (Amendment) Bill 2024 until 4.45 p.m. Is that agreed? Agreed. I thank Senator Wilson and the Tánaiste. I call Senator Craughwell.
I wish to deal with all of the amendments together, if I may, given the time we have. Section 323(1)(c) provides that the Secretary General of the Department of Defence shall be an ex officio member of the external oversight body. Section 323(7) states, "The person appointed (or designated under subsection (6)) as chairperson of the External Oversight Body shall not have served [in] the Defence Forces [or any other defence force]". I find both of those things repugnant to the external oversight body. First, let us deal with the Secretary General of the Department. During the debate at the Oireachtas Joint Committee on Foreign Affairs and Defence, the chairman of the external oversight body admitted that there was a possibility that from time to time the Secretary General would have to recuse herself from a meeting because there would be a conflict of interest. It is important - we are talking about an external oversight body that is to change the culture of the Defence Forces. We hear lots of background noises about resistance, etc. When the report comes from that external oversight body to the Minister and is laid before this House, I want everybody inside or outside this House, including members of the Defence Forces, to have confidence that the external oversight body was not just said to be independent, but was seen to be independent. Being seen to be independent is important. The Secretary General has had a role in drafting the terms of reference for the external oversight body. The Secretary General is the employer of the external oversight body for the Department and the report will go to the Secretary General and the Minister when it is complete. It is wrong in every way for the Secretary General to be an ex officio member of the oversight body. I argue that if she has to be a member, the representative bodies also have to be members. I would prefer that the representative bodies were also excluded from the external oversight body. I want that body to be 100% beyond question with respect to its independence.
If I may be so bold as to say, if there was a problem in Fianna Fáil in the morning, for example, allegations of bullying or something like that, and the party wanted somebody to come in and examine the problem, it would not want any member of the party or party staff to be involved in the oversight or examination. One would want it to be independent. The Tánaiste knows exactly where I am coming from. I was not here for the Second Stage debate, unfortunately, as I was in Tallinn with a group on cybersecurity, but I watched the debate. Irrespective of party, every Member of this House who spoke said it would be wrong for the Secretary General to be a member of that body. In the Oireachtas joint committee and in the Dáil, everybody said the same thing. Surely to God, at this stage the penny should have dropped. The external oversight body should be independent. It has an excellent chair and the members who have been chosen are excellent. There is one bogey in the pile and it must be removed. I will leave it at that because I am sure other Members wish to speak.
Before I call the Tánaiste, I welcome the guests of our friend and colleague Senator Horkan to the Distinguished Visitors Gallery, Candice Bergen MP, from Canada, and her husband, Michael. Candice is the former leader of the opposition in Canada. I thank them for being here and hope they enjoy their visit. Please make sure Senator Horkan buys you at least one glass of wine tonight. There is to be no heckling from the Gallery. I call Senator Wall.
Section 321(3) states, "The External Oversight Body shall be independent in the performance of its functions." The Labour Party has a problem, as pointed out to the Minister in the Dáil, with the Secretary General, whoever that may be at the time, being an ex officio member of this external oversight body. The simple reason for our objection is we are looking for an independent oversight body for the issues being discussed daily in the media throughout this State in respect of the Defence Forces and what we need to do for the future of the Defence Forces. If the Secretary General is involved with the terms of reference, I cannot see how that person, whoever he or she may be, can be a member of a body which will have oversight of what is going on. That issue was brought up, as was said, by every Member in this House on Second Stage. It was brought up, from what I saw, by many people in the Dáil debate as well. It questions the independence. I am not questioning the Secretary General in any way but I question the independence of a body set up to look at issues including recruitment of members of the Defence Forces, induction training and management of the human resources of the Defence Forces. How can the Secretary General of the day be part of that board when he or she set up the terms of reference and deals with queries when they come through that board? It is wrong. It does not portray any sort of independence, which the external oversight body should have. I agree with Senator Craughwell. I stated on Second Stage that there were plausible demands for representatives of RACO and PDFORRA to be part of the external oversight body. If the Minister is going to go ahead with the Secretary General as part of that, those representative bodies need to be part of it too. If it is to be an independent body, I agree with Senator Craughwell that representative associations should not be there and neither should the Secretary General.
The other question concerns section 323(7), which provides, "The person appointed ... as chairperson of the External Oversight Body shall not have served as a member of the Defence Forces ...". I find that incredible, given what is going on with recruitment and retention. That is the most important job. That person should know exactly what goes on in the Defence Forces, the demands of the Defence Forces and should have the experience needed to ensure our Defence Forces, of which we have all rightly said we are proud, have a future and not what is happening at the moment, with the reductions that have happened in recent years.
I will be brief as I am conscious of time and the opportunity to respond. Sinn Féin shares all of the concerns Senator Wall outlined. We would appreciate a positive response from the Minister in respect of these amendments.
With regard to this proposal, I must express continuing astonishment that the Bill is in its present form, in view especially of the almost unanimous view of elected representatives in both Houses that this is problematic. The use of the party Whip to push it through is strange indeed. Proposed section 321(3) states, "The External Oversight Body shall be independent in the performance of its functions." Section 323(1)(c) provides that the Secretary General of the Department of Defence shall be an ex officio member. Section 329(8) states that, "Each member of the External Oversight Body present at a meeting of the External Oversight Body shall have a vote." Section 329(9) states, "Every question at a meeting of the External Oversight Body ... [will be] determined by a majority...". That is to say that one person, who is the chief public service adviser to the Minister, is to be regarded as independent of the Minister when he or she carries out functions on this body and, at the same time, is to maintain his or her position as Accounting Officer for the Defence Forces and as the person responsible for co-ordinating all advice to the Minister on the matter, and the purpose of this body is to report to the Minister. It must be the first time in Irish public service history that anybody has ever proposed that a Secretary General of a Department or, in the old days, a departmental secretary, should be able to participate in decisions independent of the person for whom the reports of that commission are intended.
I made the point at a meeting of the defence committee, and I reiterate now, that had I, as then Minister for Justice, Equality and Law Reform, said that the Garda Inspectorate was to contain the Secretary General of the Department of Justice and at the same time it should be independent of me as Minister, I would have been laughed at.
This is a risible proposal. As far as I know, it is the first time ever that a Secretary General, notwithstanding what is in the Ministers and Secretaries Act, has been made independent of the Minister for one purpose and at the same time the chief of the Civil Service advising the Minister. In my view, it compromises the relationship between the Minister and Secretary General if the Secretary General can participate in independent decisions against the wishes of the Minister or of which the Minister might disapprove. That to me is self-evidently contradictory.
I thank Senators for raising this issue. What is the context? Why is there a recommendation for an external oversight body? Its genesis is in the independent review group, which recommended not just the establishment of such an external body but also that the Secretary General would be a member of it.
The Minister does not have to-----
When I debated this in the other House, and prior to the publication of the independent review group report, almost every person in that House, representing different parties, asked whether I would accept all of the recommendations. They asked me to give a commitment that I would accept all of the recommendations or whether I would welch and do this.
I met the independent review group, including the chair, Ms Justice O'Hanlon, and six or seven other members. They said their experience of being on the review group was not good in terms of the members of the Defence Forces they met who said misogyny was rife, the complaints process was inadequate and that making a complaint was a career ending or limiting move. Senator Craughwell made an impassioned contribution to this House at the time of the debate on the independent review group recommendations.
I stress that I accept the point that these were not findings of fact because it was not a statutory based tribunal, but the group made conclusions which were far-reaching, and those conclusions related to the Defence Forces, not the Department of Defence. The independent review group examined how the Department of Defence coped with or managed complaints in respect of assaults and other matters right across the gamut of human behaviour. What emerged was not a pretty sight at the time. Huge efforts have been made to move to a new journey of cultural transformation, and the external oversight body is part of that. That is an important point. This was an independent review group specifically on the Defence Forces.
I have been in government at different times and I see a logic operationally, as well as the impact and effect, of a Secretary General being an ex officio member. As for what is really behind this, to a certain extent Senator Craughwell probably alluded to it earlier in a different context. RACO and PDFORRA would say they should be on it because some people want to change it from being an oversight body to a representative body. To be fair to Senator Craughwell, he said he does not want that, ideally. Others have argued and advocated for that, however.
When I met the IRG, it told me previous attempts at change have failed abysmally. That is the context. It said the independent monitoring group processes were ineffective in bringing about the change that was required. Senator Clonan and others will say that ten or 20 years ago assertions or allegations were made that were not followed through on in terms of getting change. We have to get change. There is a degree of resistance to change.
At one level, it is all focused on the role of a Secretary General. I am not convinced that is as major an issue as has been presented. The bigger issue is the equivalence issue between military and the Department of Defence. That is what underpins some of the representations and advocacy that have been made. We need to move beyond that across the board. Many people in the organisation want to drive forward with change, but there is also resistance to change. In some elements, there was not a full acceptance of the conclusions of the IRG. I have seen this in practice.
In the context of the strategic framework, for example, I have heard people ask why I am constantly talking about cultural transformation and whether I have to mention it in every speech. I do have to reference it in every speech because I am certain that we need to change the culture. I have spoken to members of the Defence Forces. At the moment, they do not believe change is going to happen. The two reports of the external oversight body pulled no punches and have stated that people on the ground do not believe culture change is happening at a sufficient level as we speak right now. That is the real issue, not whether a Secretary General is a member of the body. The real issue is the capacity of the external oversight body to bring about change.
We need to bring about change. The status quo and old way of doing things will not suffice in terms of making sure this is a safe environment where people can work with dignity, make complaints without it being a career-limiting move, modernise and so on. The vast majority wants to go in that direction. I spoke to members, through various networks, and they are sceptical about whether change will happen because previous iterations of independent monitoring groups and so on did not work. If there is anything approaching a representational composition of an external oversight body, it will not work.
This has to work because we are at a critical juncture. We have dealt with a lot of pay issues and health eligibility - every member of the enlisted forces now has an entitlement to private care. We have dealt with the patrol duty allowance and starting pay has increased to a level higher than most starting rates in the public service. The real issue is culture, which includes command and control, induction, training and the initial experience of people when they come through. These are all issues we have to work on. We need to consider the progression path for women in the Defence Forces.
Until the IRG report, if a woman could not attend a course because of pregnancy, maternity leave or whatever, she was put down the pecking order in terms of promotion. These are fundamental issues that we have to change. The number of women at the upper echelons is quite low, something women in the Defence Forces have said to me. I believe the Chief of Staff is committed to change, but I acknowledge that culture change does not happen overnight, in particular in an organisation and institution like the Defence Forces.
I have received two reports from the external oversight body. I appreciate what has been said in terms of the quality of the people who have been appointed, and that is important. The chair is well established and has good bona fides. The group includes people like Ms Julie Sinnamon and Ms Sam des Forges, who is director of conduct, equity and justice at the UK Ministry of Defence. Ms des Forges has proved to be very valuable in terms of external representation and her expertise and experience have proved to be very helpful. I have no issue with adding to the reservoir of that international expertise if we can find people willing to serve.
Legislative provision is not required to do that.
I accept the spirit of Senator Byrne's amendment in that regard. I have not compromised on the IRG's recommendations. I have accepted them in full. Members will say I do not have to and can vary them, but I think there is strength in accepting them. It is a bit unusual. Sometimes with an inquiry, you just get the report. However, I met with the judge and the members of the group. It was a difficult and challenging experience because all of them were clear that they were taken aback, to put it lightly, by the stories they were told. That was is a year ago and we have now established a tribunal of inquiry which will hopefully bring more clarity and transparency to the issues, whether they are findings of fact or conclusions. I was taken by the oral presentation by the representatives of the groups. They recommended that this body was the most effective mechanism to bring about the change that is undoubtedly required.
It is no secret that I despise the way the IRG report was published. It would have been significant enough at the time to put out two lines saying that there was prima facie evidence, based on research, for a tribunal of inquiry. The rush to the gallows in this building, with rope to hang everybody who wore a uniform, was outrageous and disgusting, but that is not the issue today. We are where we are.
The Tánaiste has put a tribunal in place. For that, I thank him. I have no difficulty with what he is saying about culture change. The members of the external oversight body the Tánaiste has picked are good. Patricia King has been dealing with employment matters for a long time. The chairman is an excellent chairman. I have no difficulty with any of that, but I want the Defence Forces members I meet to be proud of the fact that, ultimately, the report of that body will lead to the culture change that the Tánaiste, the Chief of Staff, the IRG report, RACO and PDFORRA say needs to happen. I want to see it happen. I want to see that report accepted by everybody.
It is not about the Secretary General as a person but about the appointment of the Secretary General as a member of the board. I accept the IRG recommended that the Secretary General be on the external oversight body, but everybody in this House has told the Minister it is wrong in every sense to have a Secretary General from the Department of Defence involved. He can put another Secretary General on it if he wants, but the Department of Defence should be one step removed from that body. We all want to have confidence in it. The Tánaiste has put an excellent team together. RACO does not want to be part of it but if the Secretary General is part of it, then RACO should be part of it. The same applies to PDFORRA.
I and a number of others gave evidence to the IRG. It had nothing to do with bullying or sexual harassment; it was about respect for serving members who had been forgotten, like Billy Kedian, the Jadotville lads and the men from Niemba. The Chief of Staff is putting that right now and it is time it was put right.
For God's sake, I ask the Tánaiste to pull back from this. If he does not, I ask the Secretary General to recuse herself. This external oversight body has to have the confidence of everybody. It does not have the confidence of this House or the Lower House while the Secretary General is an ex officio member. If the Tánaiste cannot take the decision, then I ask the Secretary General to take it. I want this to work and I want nobody to be able to turn around in a year or two years' time and say the whole thing was rigged because the Secretary General was a member of the oversight body. Let us do it right.
I listened carefully to what the Minister said and agree with much of it. However, on 26 April the Joint Committee on Foreign Affairs and Defence published its detailed and considered pre-legislative scrutiny. The committee unanimously agreed that the oversight body should be totally independent and that the Secretary General should not be a member. It also agreed that if the Secretary General of the Department was to be a member of that body, then PDFORRA and RACO should also be represented.
In doing a little of research, I came across a publication by Benjamin Colton and Holly Fetter from Harvard Law School. They produced a report on corporate governance. It was about boards of oversight but related to business. There are some important points in it which we need to consider in relation to oversight of the Defence Forces. It states:
We believe that [the] employee voice is an important input for an effective human capital [strength], and can also advance a firm’s overall long-term ... strategy.
[...]
Having a pulse on [the] employee voice enables leadership to understand priorities, motivations, and expectations of the workforce, and allows employees to feel heard and included, which can drive a positive culture and increased retention. Employees can generate customer intelligence, share innovative ideas, and offer early warnings of organizational risk.
A contributor to the article was quoted as saying:
Employee voice cannot be merely thought of as a collection of insights and feedback. Organizations need to understand how employee experience and priorities reflect the company’s culture and fit into talent management strategies, policies, and business performance.
The article goes on to say that their "research suggests that, when captured effectively, [the] employee voice can be a critical element for achieving business success." Replace the words "business" and "company" with "Defence Forces". That is all I ask the Tánaiste to do.
The paper in question also states, "A powerful model in addressing important employee topics is to ‘get your own business right first'". I appreciate that this is what the Tánaiste is attempting to do. The authors go on to make a number of important points. They believe, regarding corporate governance of boards of oversight, that the managing director should be part of the board, but so should the employee representatives. That is the point I am trying to make. I ask the Minister to take that on board. We are talking about transition and cultural change. That cannot be achieved by having one side of the story on an independent body; it has to have all sides of the story. The employees' side of the story will be represented by the representative bodies PDFORRA and RACO. That is all I ask the Minister to consider.
I welcome the reverend father, sisters and all involved with the Ruach ministry, Portlaoise, who are guests of the Minister of State, Deputy Fleming. Céad míle fáilte roimh gach duine.
Looking at the Bill, this is not a temporary institution.
It is a body corporate intended to be a permanent part of the Defence Forces. It is not there to just deal with the urgent requirement - and I totally agree with the Tánaiste - for a change of culture, particularly in relation to certain aspects of the Defence Forces, including the treatment of women and how dissent is handled. This is to be a permanent part of the Defence Forces and a body corporate with its own seal. It is to be there in ten or 15 years' time, monitoring all of the issues relating to promotions, recruitment and so on. If it really is to be independent, we do not need the Secretary General there to correct the culture difficulties that the has correctly identified as existing. This is not a temporary sticking plaster, this is the future of the Defence Forces over the next quarter of a century. In those circumstances, I believe that what I said earlier about the Secretary General and their duty to a Minister to advise the Minister privately on matters, being utterly conflicted with sitting on a body which is making other recommendations to the Minister, while it is supposed to be independent of the Minister. There is a fundamental disconnect here. This has never been attempted before.
The fact that the independent review group suggested it does not mean that the Members of these Houses are wrong or stupid in querying it and objecting to it. If people in the Dáil did say enthusiastically "Commit yourself to everything", we do not sign blank cheques to outsiders to tell us what should or should not be the law.
I am anxious to call a vote on this. We are running out of time.
I will be very brief. I am slightly different from colleagues in that I am a bit agnostic on the question of the Secretary General. However, I do believe in the proposition that if we put the Secretary General in there, the Tánaiste should look seriously at putting representatives of PDFORRA and RACO in on the basis that they have skin in the game. They have a commitment to the betterment of the forces. They are not just a representative bodies and they are capable of going on the body with a level of objectivity, and they want the culture change too. If the Secretary General is there, then they should be there also. I appeal to the Tánaiste to look at that option on the premise that it will lead buy-in in respect of the body and acceptance of,and confidence in the body across the board. If the Secretary General goes in alone and we leave out the representative organisations, there will be an issue from those organisations' perspective.
That will not really be the case because the recommendation was for an EOB into the Defence Forces, not the Department, arising out of testimonies and the work of the IRG. The evidence is conclusive that previous iterations of independent monitoring groups, which had representatives on them, did not work. Everyone looked after their particular agenda. I have been in this position for 18 months. We have had developments recently on which people have different perspectives. There needs to be change and I am determined to bring it about. The rank and file of the Defence Forces currently do not believe there will be change if the status quo prevails. The biggest task we have is to convince members that change is going to happen and their voices will be listened to. I agree with the point about voices being heard. The EOB went to various barracks and spoke to the rank-and-file members. The big takeaway was that they do not see change happening fast enough and are concerned that it will not happen to a sufficient degree at all. The EOB is there to make sure that, once and for all, we will bring about change in how the Defence Forces operate and work. We have big challenges regarding recruitment and retention. Material that emerged through the IRG is a factor in that recruitment and above all in retention. The number of cases that came through all point to a dysfunctional complaints system, a dysfunctional way that people can have their voice heard. We do need to change it. I find the EOB quite helpful already in terms of an interim complaints process. As Minister, I am absolutely determined to put the foundations in. I do not want people to say in five years that we lost the moment. There is a moment now to bring about this change.
I ask Senator Craughwell to resubmit this amendment for Report Stage.
I will withdraw the amendment and resubmit it on Report Stage.
Amendment, by leave, withdrawn.
As it is now 4.45 p.m., I am required to put the following question in accordance with the order of the Seanad of this day: "That section 21 is hereby agreed to in committee, in respect of each of the sections being disposed of, the section is hereby agreed to in committee and the Title is hereby agreed to in committee." Is that agreed?
Question put.
The Seanad divided by electronic means.
Under Standing Order 62(3)(b) I request that the division be taken again other than by electronic means.
Question again put:
The Seanad divided: Tá, 20; Níl, 8.
Tá
- Ahearn, Garret.
- Ardagh, Catherine.
- Casey, Pat.
- Chambers, Lisa.
- Clifford-Lee, Lorraine.
- Conway, Martin.
- Crowe, Ollie.
- Cummins, John.
- Currie, Emer.
- Daly, Paul.
- Davitt, Aidan.
- Dolan, Aisling.
- Garvey, Róisín.
- Lombard, Tim.
- McGahon, John.
- McGreehan, Erin
- O'Loughlin, Fiona
- O'Reilly, Joe.
- Seery Kearney, Mary.
- Ward, Barry.
Níl
- Boyhan, Victor.
- Craughwell, Gerard P.
- Gavan, Paul.
- McDowell, Michael.
- Mullen, Rónán
- Sherlock, Marie.
- Wall, Mark.
- Warfield, Fintan.
Tellers: Tá, Senators Paul Daly and Joe O'Reilly; Níl, Senators Gerard P. Craughwell and Michael McDowell.
Question declared carried.
Bill reported without amendment.
When is it proposed to take Report Stage?
Next Tuesday.
Is that agreed? Agreed.
Report Stage ordered for Tuesday, 9 July 2024.