Seanad Éireann debate -
Tuesday, 9 Jul 2024

Vol. 302 No. 1

Defence (Amendment) Bill 2024: Report and Final Stages

Acting Chairperson (Senator Paul Daly)

Before we commence, I remind Senators that a Senator may speak only once on Report Stage, the proposer of an amendment may reply to the discussion on the amendment. Also, on Report Stage each non-Government amendment must be seconded.

Amendment No. 1 is in the names of Senators Craughwell, McDowell and Clonan. Amendments Nos. 1 to 3, inclusive, and 15 to 20, inclusive, are related. Amendment No. 2 is a physical alternative to amendment No. 1. Amendment No. 16 is a logical alternative to amendment No. 15. Amendment No. 18 is a physical alternative to amendment No. 17. Amendment No. 20 is a physical alternative to amendment No. 19. Amendments Nos. 1 to 3, inclusive, and 15 to 20, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

Senator Gerard P. Craughwell

I move amendment No. 1:

In page 9, lines 10 and 11, to delete “in relation to a political matter or matter of Government policy” and substitute “except on a matter of political controversy”.

Senator Michael McDowell

I second the amendment.

Senator Gerard P. Craughwell

I welcome the Tánaiste back to the House. At the last meeting here his colleague and spokesperson on defence in the Seanad raised a very important issue.

It related to members of a GAA club or credit union, for example, and the fact that, here it is required that they state their occupation, they would clearly be recognised and identified as a member of the Defence Forces. On foot of that interjection by Senator Wilson, I took independent legal advice over the last few days and I have that advice with me today. I want to share it with the Tánaiste. In asking him to accept the amendments we put forward today, we are protecting the human rights of the individuals who serve in the Defence Forces. The gagging order, as it has become known, was introduced in this Bill in order to prevent members of the Defence Forces speaking out, but it is on foot of a High Court case taken by Sergeant Martin Bright with respect to a protest that took place in Dublin city centre some years ago.

We are heading into dangerous territory by using a very blunt instrument to ensure that members of the Defence Forces can never participate in any form of protest. They cannot be engaged in lobbying. For example, if they were the director of a credit union, they might find themselves lobbying outside the gates of Leinster House, or if the credit union was sued, the person would be identified as a member of the Defence Forces because they have to give their occupation on the form. I do not want to take up a lot of time on this but I will share the legal advice and I want the Tánaiste to consider it. I am publishing my legal advice and I ask the Tánaiste to publish the Attorney General's advice if he has taken his advice, as is not an uncommon thing to do. It was done recently in the case where the Taoiseach published legal advice from the Attorney General.

I ask the Tánaiste to show me my advice is wrong because I do not believe it is. If he persists with bringing through this Bill as it stands, I believe it will be subject to judicial review in a very short time after it has passed because you cannot limit human rights. Our soldiers, sailors, airmen and airwomen are citizens of this State first and members of the Defence Forces second. They cannot be limited and tied down, left without a voice or disallowed from participating in what is normal, social interaction for every citizen of the State. I will leave it at that.

Acting Chairperson (Senator Paul Daly)

Before I call the Tánaiste, I welcome the members of the Kildare active retirement group who are here as guests of Senator Mark Wall. They are very welcome. I forgot to welcome the Tánaiste to the Chamber. He is very welcome.

Minister for Defence (Deputy Micheál Martin)

I know the Acting Chair was joining with me in celebrating Cork's victory on Sunday.

Acting Chairperson (Senator Paul Daly)

I had no choice, whereas the Tánaiste had.

Deputy Micheál Martin

He had no choice in that matter. I also welcome the Kildare active retirement group as well.

Senator Craughwell persists in either misreading or deliberately distorting what is in the Bill. The Bill stresses "while in uniform, or-----

Senator Gerard P. Craughwell

Or identifiable.

Deputy Micheál Martin

It states:

a member of the Permanent Defence Force shall not—

(a) while in uniform or otherwise making himself or herself identifiable as a member of the Permanent Defence Force—

(i) make, without prior authorisation from the member’s commanding officer, a public statement or comment in relation to a political matter or matter of Government policy, or

(ii) attend a protest, march or other gathering in relation to a political matter or matter of Government policy,

(b) canvass on behalf of, or collect contributions for, any political organisation or society, or

(c) address a meeting of a political organisation or society.

It states that, without prejudice to the Defence (Amendment) Act 1990 and any regulations made thereunder, a member of the Defence Forces shall not do so while in uniform or otherwise identifiable. The fundamental point is to the apolitical nature of our Defence Forces. Senator Craughwell accepted on Committee Stage and on Second Stage the primacy of a having an apolitical defence force. That is what is underpinned in this primary legislation and it has been in Defence Forces regulations for a long time.

In respect of the Senator's legal opinion, I understand he shared it with some other Senators. I read it and I have to make clear that we do not comment on individual litigation cases. However, the judgment in the Bright v. The Minister for Defence is now a matter of public record and I can address the issues that arise in respect of any suggested impact it may have on this Bill. The details of this judgment have been considered by officials in my Department and are the subject of legal advices which have also been examined extensively and which I am not commenting on substantively. It is important to highlight that, as set out in the judgment, the issue under consideration is "a difficult one" and needs to be dealt with "in a manner which takes account of the interests and sensitivities of all concerned".

The issue under consideration is "a difficult one" and needs to be dealt with "in a manner which takes account of the interests and sensitivities of all concerned". It is important to underline that the issue at the heart of this litigation was the nature and scope of an order that was issued by the Defence Forces in 2018.

Insofar as the judgment makes comment in respect of the statutory provisions of the Act, the judge highlighted that "it is open to the Minister to enact regulations which would make clear the circumstances in which members of the Defence Forces could or could not attend public events". In the proposed text of the Bill that is exactly what I am setting out to do - clearly and in primary legislation.

It is essential, as I have said, to maintain the apolitical nature of the Defence Forces. The text of the new Bill sets out to enhance the clarity of section 103 to ensure that the Defence Force members do not become involved in political matters or attend protests, marches or other gatherings "while in uniform or otherwise" making themselves identifiable as a member of the Defence Forces. I believe that is entirely reasonable and is in line with the judgment in the case of Bright v. Minister for Defence.

The judgment in Bright v. Minister for Defence highlights that the question "of what members of the Defence Forces may or may not do off duty in relation to matters which might be deemed “political” is a difficult issue; however, it is an area which requires regulation by the Minister ... which takes account of the interests and sensitivities of all concerned”. The proposed amendments to section 103 address the very issue identified by the judge in this respect and to do so while distinguishing between the constitutional rights of the individual person and the actions of someone “while in uniform or otherwise making" themselves identifiable as a member of the Defence Forces. Any suggestion that the judgment in Bright v. Minister for Defence somehow undermines or otherwise requires the removal of the proposed amendments to section 103, fundamentally misunderstands the issues and the question in the case, and ultimately the findings of the judge.

The High Court has not ruled that the rights of Defence Forces members to be involved in political activities cannot be curtailed or regulated by the Minister for Defence in any way. In fact, the judge stated that it is an area that requires regulation "which takes account of the interests and sensitivities of all concerned", and that is the intention of the proposed text of section 103.

I find it difficult to reconcile the Senator's two positions. Is he suggesting that someone in uniform should be able to be on a protest march or should be involved in political activity? That would be very serious for the Defence Forces and how we have commonly and historically understood the role of the Defence Forces, given the very significant issue of the primacy of the civilian authority, irrespective of who is in government, the Oireachtas, or the Government of the day. The Constitution allows for that, and, indeed, provides for that.

Senator Diarmuid Wilson

I thank the Tánaiste and welcome him back to the House. I thank him for his detailed explanation in respect of this amendment.

I have read the opinion that Senator Craughwell received from legal counsel. As a layperson, it seems that the rights of members of the Defence Forces are being undermined to a certain extent. On the last day I made the following point: if a member of the Defence Forces becomes a director of a community and voluntary organisation, they are on a public register where they must state their name, for example, Gerard Craughwell, Michael McDowell or Micheál Martin, and their occupation, which would be "member of the Defence Forces". The form would clearly identify them as a member of the Defence Forces. That is where I see a difficulty with a member of the Defence Forces becoming a director of a community and voluntary organisation because he or she is clearly identifiable as a member of the Defence Forces. That is the point I tried to make. As a result of their directorship of that community and voluntary organisation, they may by lobbying politically.

They may be lobbying politicians and they are clearly identified as a member of the Defence Forces.

Senator Tom Clonan

I thank the Minister very much for coming in. This Bill has arrived at a very particular moment in the development and transformation of the Defence Forces. From an operational perspective, when I retired back in 2000 the Defence Forces did one thing for one agency, and that was peacekeeping for the United Nations. Now they do peace enforcement, peacekeeping for the United Nations and for NATO as part of our membership of Partnership for Peace, and they also participate and lead in European Union missions such as the first expeditionary mission to Chad and the Central African Republic. Therefore, it is an organisation that has really transformed from an operational perspective over the past 25 years. It is currently at a very sensitive moment in its cultural transformation. I take this opportunity to thank the Minister and commend him on his role in pushing forward that agenda of cultural change. That is not a reflection on members of the Defence Forces because the cultural superstructure in place is an historical artifact.

As part of that transformation, freedom of expression and the intellectual tradition of the Defence Forces are very important. They are crucial to the transformation, not just culturally, but in terms of operational efficiency. We must be able to move to an evidence-based intellectual tradition within the Defence Forces. Unlike other armies in the European Union and in the United States, the Defence Forces here do not have an intellectual tradition in the way they do in other jurisdictions. That intellectual tradition is nascent; it is just beginning. One of the key parts of that was the partnership between the military college and Maynooth University to offer a master's degree in military leadership, where officers are encouraged to write and publish dissertations that are lodged to an academic repository and go on the public record and in which they can be broadly critical of any aspect of Defence Forces activity. They benchmark it against international best practice. It is important for the future development of the Defence Forces and its cultural change that all thinking at that senior leadership level should be informed by that. It should be research-informed, research-led and research-orientated based on evidence. I am afraid that some of the very prescriptive elements of this Bill may have an unanticipated chilling effect on that opening up of the intellectual tradition.

We have officers - actually all ranks - publishing dissertations because the Defence Forces are a learning organisation and that is to be encouraged. We also have entities such as the Azure Forum, members of which contributed to the public consultation on neutrality. The forum has as members of its academic council serving members of the Defence Forces who, also through that platform, publish position papers and give expression to ideas and notions around defence that would definitely overlap and intersect with Government policy. Very often, by even engaging in those conversations, they could be construed as being broadly critical because they critique, in some senses, elements of our policy and practice as they arrive in defence. We need to be careful there is not an unanticipated chilling effect in that regard.

We also have a growing community of academics in our universities. They include Professor Ben Tonra in University College Dublin and Professor John O'Brennan in Maynooth University. There are dozens of academics around Ireland who are part of that, if you like, nascent intellectual tradition around defence, security and intelligence. In other jurisdictions, there is a very proactive engagement between those kind of third level academic discussions and research into defence, security and intelligence that is all evidence-based.

There is a very proactive engagement with serving members, people in uniform. We just need to be careful that we do not overlap unduly or, in an unanticipated way, push back on what would be a very positive development that would also help with the cultural piece.

I was an expert witness in the case of Martin Bright of PDFORRA v. the Minister for Defence and the Attorney General, about two years ago. It was about the concept of citizen soldiers and the rights of members of the Defence Forces to engage in what could be described as political activities, with a small "p". In his judgment, published in May of this year, Mr. Justice Sanfey writes: "As a concluding observation, I would like to acknowledge the good faith and sincerely held convictions on both sides of the dispute." On Committee Stage of this Bill, unfortunately the Minister had to leave and the Minister of State, Deputy Carroll MacNeill deputised for him. She made a very interesting analogy in terms of the perception of propriety. She said that if a member of the Judiciary was a member of a community or sporting organisation, as Senator Wilson suggested, she would expect him or her at all times to behave with propriety and the perception of independence and so on, consistent with his or her office. As far as I am aware, there is not a prescriptive set of laws or instructions that require them to do that. The assumption is one of good faith, that members of the Judiciary are good people who will act in good faith. I think that is consistent with what Mr. Justice Sanfey says in his order. He acknowledges the good faith and sincerely held convictions of groups like PDFORRA and the Representative Association of Commissioned Officers. It is really important that we do not unintentionally or in an unanticipated, antithetical way push back on their rights and capacities to engage as citizen soldiers, to engage with the political system, with a small "p". It is also important that they be able to advocate for their membership.

On the recruitment and retention challenges, I commend the Minister on the steps he and the Department have taken to address them by way of allowances. However, we need to be careful that nothing in this legislation curtails or curbs that effort. It is often said that perfection is the enemy of the good. This is an iterative process. Nobody can ever come up with absolutely perfect legislation. Everything is subject to existential change and force of circumstances. However, there are one or two elements which my colleagues have pointed out, small imperfections that are the enemy of the good. It would take very little to remedy them. I ask the Tánaiste if it is possible to incorporate or accommodate some of the concerns and observations raised here in good faith. The Tánaiste knows I am not afraid of being critical of the general staff. I am not afraid of critiquing my former colleagues in Óglaigh na hÉireann, an organisation of which I am extremely proud and in which I am very proud to have served. I am coming from a position of sincerity when I say there are some imperfections here that could be very easily remedied. Doing so would serve our common purpose, which is a better, fit-for-purpose Defence Forces with the proper oversight, governance and cultural change that we need, whatever happens on this island in the next 20 years.

Senator Michael McDowell

I do not want to trade legal opinions with anybody else. I see what this section is attempting to do.

I am not wholly opposed to what it is attempting to do, which is to secure that the Defence Forces appear to the citizenry of the country to be neutral on matters of politics, not get involved in party politics and the like.

It is strange that, for instance, a reservist who is not on full-time duty - the old FCA-type of person - could appear and be identified as a member of the reserve at a political meeting, and identify himself or herself as a member of the non-permanent defence force. I do not know whether he or she would be allowed to wear a uniform, although I doubt it somehow. However, it is strange that a reservist is being given the right to attend a meeting, address a meeting or speak at a meeting. As I said here on the last occasion, the Leader of the House is undoubtedly political in one sense and she has served the country patriotically as a member of the Reserve Defence Force, and there is no conflict in all of that. I wonder about the phraseology and the precision which should accompany a prohibition of this kind. Looking at the Bright case, it seems a sledgehammer was used to crack a nut and that it was excessive. I wonder whether providing a statutory basis for similar prohibitions in the future is wise in all the circumstances.

I asked the Tánaiste to look at the situation where a member of the Permanent Defence Force is prohibited from canvassing on behalf of any political organisation or society. I do not see that that means a member of the Defence Forces cannot canvass on behalf of a person standing independently for political office. That is not an entirely academic point. We know there are many independents who aspire to membership of this House and local authorities and some who have already achieved that. The question I ask is whether the prohibition on canvassing for a political organisation is meant to prohibit overtly participating in the electoral process on behalf of a political organisation.

The second point is that, for proportionality's sake, there is a prohibition on addressing a meeting of a political organisation or society. I do not know what a political society would be. Many societies are political. We are changing the Charities Act to allow all sorts of human rights activities to be considered political. I am sceptical of that. I do not think it is necessary and think the existing laws in regard to charities are sufficient.

Deputy Micheál Martin

That was affecting Third World organisations.

Senator Michael McDowell

It is also for human rights in Ireland. That is going to be considered a charitable purpose under legislation coming from the Government. It does not have to be outside of Ireland and it can be anywhere.

The point I am making is that if a society is, for instance, supporting gay rights or LGBTQI+ rights, is that political or not political? Is an address to a society by any member of the Permanent Defence Force to be prohibited? I do not consider that it should be or that it is necessary to do so.

When I say that, I am looking at subsection (1A), which is proposed to be inserted. The prohibition on various activities set out in paragraph (a) "states while in uniform or otherwise making himself or herself identifiable as a member of the Permanent Defence Force, doing the two things in subparagraphs (i) and (ii)i but the prohibition on addressing a meeting of a political organisation or society is much wider than that. It is not caught by being in uniform or identifying oneself. If gay liberation or something like that is to be seen as political in its purposes, is it to be said that no member of the Defence Forces, even not referring to his or her status a member of the Defence Forces, cannot address a meeting of such a society? It is a very radical and far-reaching proposition that a gay soldier cannot go to a meeting of a gay liberation society and address it because undoubtedly its purposes may be political. I really worry about the width and the generality of what we are prohibiting here. This is a prohibition on any member of the Permanent Defence Force addressing any meeting, public or private, of a society that is political in nature. Are we talking about party political or political in terms of claims of civil rights, rights for minorities such as sexual minorities and the like? This is too broadly drafted. A member of the Defence Forces should be entitled to address a meeting of an LGBTQ society pursuing political aims, especially in private. I really do believe that.

If we want to say that "political" in this sense means party political, that is fine. Looking around the world at all the NGOs and at the recent referendum where organisations were trying to amend the Constitution, could a member of the Defence Forces not attend a private meeting of such a body and address it? That is wrong. It is excessive and it has not been thought through. I know there is a certain urgency claimed on behalf of this Bill and I can see some reasons for that, but there is no urgent reason to make a mistake. There is also no urgent reason to provide that just because a society is political in nature, for instance, a homosexual soldier, male or female, could not address a society aimed at political reform on sexual or transsexual matters without committing an offence under military law. That is not right. These sections have not been parsed and analysed carefully enough. I ask that the House considers very carefully whether that is our intention that whether or not they are in uniform or identifiable as a soldier, it is an offence for a soldier to address a meeting of a society that is political in nature, even in private. That is a gross overexpansion of the totally legitimate purpose of keeping the Defence Forces in general neutral on matters of politics as they are understood to be party politics and the like.

The terms of paragraph (a) of the new subsection (1A) make it clear that two activities are prohibited, that is, making public statements or comments on public matters or matters of Government policy and attending a protest, march or other gathering relating to a political matter. It is clear that this prohibition only applies to members of the Defence Forces in uniform or otherwise making themselves identifiable as members. However, paragraph (c) provides that members shall not "address a meeting of a political organisation or society". This refers to addressing a meeting of a society in private where the subject matter of that organisation is political in nature in that it is seeking to change the law on whatever matter it might be. To say that is now a crime is of very doubtful constitutionality.

I will not get into the minutiae of the reasoning Mr. Justice Sanfey gave in his ruling in the Bright case. What is set out here is a different proposition. This is not merely using a sledgehammer to crack a nut. It is using a sledgehammer to quash the civil and political liberty of an ordinary private in the Defence Forces to become involved in a political activity that is nothing to do with election to this House or whatever but has a lot to do with expressing his or her genuinely held convictions, which are, to an extent, protected by the Constitution, in such a manner that this new section proposes not to protect that right under the Constitution but to criminally prohibit it. Why is it not specified that this prohibition applies to a public meeting of a society? Can it be that a gay soldier cannot attend a gay liberation meeting in private and address that meeting, for instance, about the culture of the Defence Forces in regard to gay matters? Can that be the intention here? On the face of it, doing so seems to be prohibited. That is wrong. It is an excessive prohibition. I believe it is unconstitutional and that if it came before the likes of Mr. Justice Sanfey on a constitutional challenge, it would be defeated.

Senator Joe O'Reilly

With the exception of our esteemed colleague Senator McDowell, we are all approaching this Bill and the legalities of it as lay people. My interpretation of this provision, as a layperson, is somewhat different from that of my colleagues. I interpret the practical legality as being that a soldier, of whatever rank, can be active and vocal within PDFORRA or RACO. That is a given. I interpret it as implicit in the legislation that soldiers can be active in their community and in all the voluntary organisations, social and cultural, within those communities. Those things are implicit. Senator Clonan puts everything so eloquently and with passion. However, his analogy with the Judiciary does not stack up in that the Constitution legislates, as it were, for the separation of powers. That is implicit. No judge can be party political, no garda can be political or political in the broad sense, except privately, nor can a member of the Defence Forces.

It would not be helpful to enter into an argument with Senator McDowell on legalities. I am interested in the views of the Tánaiste and his officials on this point. I refer to the Senator's example, which he gave in good faith and with a lot of academic and other knowledge behind it. I would have thought the gay soldier in his example could express himself within a gay society or organisation.

Where I think it would stop is that the gay soldier could not, in uniform, march with something that was calling for a change in law per se that was in contradiction with the Government. They could not do that. However, he could participate in his gay organisations and have a view and he could express and explain what it was like for a gay soldier in the armed forces.

I would be interested in a response on that. No one is questioning the thesis that we should have a Defence Forces. All of us in this room have great regard for the Defence Forces and for the people in it. I share that regard. We really depend on them. Tragically we are coming to a time when they are, and will, come into greater focus. We live in very dreadful times on an international and geopolitical level. However, leaving that aside, we all respect our armed forces personnel greatly. None of us is questioning the thesis that they should be independent, or rather, non-political in the fullest sense of that term but that they have the freedom to be active in every cultural and social community organisation and active in whatever it might be whether it is water schemes, residents associations, cultural organisations such as Comhaltas Ceoltóirí Éireann and in their gay groupings, if that be the case. I would have thought one could actively participate in all those things and have views in them and take positions in them. However, what this precludes is activity in party politics or involvement in public marches and them in uniform and identifiable as soldiers. To be honest, I think that is how it should be. Someone gave a great example last week about the Middle East. I do not know who it was and it might have been the Minister himself. You could not have soldiers in uniform, given that they are out there as peacekeepers, on the streets of Dublin taking part in uniform or identifiably speaking at rallies, whether the rally is supporting any particular section in the Middle East. My layperson's view, which I advance as a practical view of this, is that this allows a soldier every virtual freedom except to be political and that is implicit in their taking the job. I do not think any soldier really wants to become political because they understand their role in the Constitution and in our defence. They have a superior role in this like the Garda and the Judiciary. One of the greatest things we have in this country is an independent Defence Force of which we are proud and which is not party political or political and they are not out marching on the streets. They now have the right to go into industrial relations. They can participate in their organisations and they can participate culturally.

My distinguished colleague, Senator Wilson, for whom I have immense personal regard made a point and I would be interested to hear the response to this. I would have thought there would be nothing to preclude them being on the board of the credit union or going to the Minister for Finance in that capacity with a group of credit union board members. That is my view but I am very conscious that I am a layperson and I make no pretensions to be otherwise on this.

Senator Robbie Gallagher

Cuirim fáilte roimh an Aire go dtí an Teach. I have listened with great intent to the debate today and the debate that took place in the committee room on this issue. The previous speaker, Senator O'Reilly spoke about being a layperson. I would probably classify myself in the same bracket too. I am trying to get a handle on everything that is going on, having listened to all the contributions which have all made perfect sense to me. I am trying to get into the heads of the people who drafted the legislation in respect of the goals they are trying to achieve and what their thinking is around the particular issue we are discussing this afternoon. I am a bit confused in that I know the men and women of the Defence Forces. I have dealt with both representative associations, PDFORRA and RACO down through the years.

I always found their representatives to be very reasonable individuals with a great deal of common sense, very measured in their comments and very respectful in all their deliberations. When they talk I listen, and I listened to their concerns. The concerns they have were well articulated by our colleagues here. How have we arrived at this point where, notwithstanding the reasonable answers the Tánaiste is giving to the queries, there is still a degree of confusion regarding what the outworkings of this legislation will be if it passes through this House later this afternoon?

I am saddened that, despite all the debate about this point, we still have confusion about it. People hold very strong views, as have been articulated by my colleagues to my left this afternoon. To my mind it appears to be excessive and overreaching and if that is so, why does the Tánaiste feel the need to travel that road in this legislation? This is bearing in mind the comments I made earlier about PDFORRA and RACO and how they go about their business and have done for more than 30 years. Where is the evidence for legislation drafted in such a manner that both organisations have voiced serious concerns about it? That is the part that disappoints me about this. Despite what would appear to be reasonable arguments put forward by the Tánaiste that confusion and lack of clarity still exists. I hope this afternoon we might get more clarity.

Senator Wilson gave the example, as did others, that a manager of a credit union who goes to a public meeting would be clearly identified as a member of that credit union. It would appear to be that he or she is then identifiable. Perhaps that is not the intent of the legislation, and I know the Tánaiste will make that point, but if it was not the intent then why is it included in this legislation? That is the part I am concerned about. In summary, I am concerned that confusion seems to exist out there. The reasonable people who make up the Defence Forces - the representative associations that comprise reasonable, practical and sensible people who do not have form for wild statements during my dealings with them - have still voiced their concerns about the legislation, as they see it and as they read it. I welcome the Tánaiste's comments in that regard.

Senator Gerard P. Craughwell

We have actually talked ourselves into a more confused state this afternoon.

Deputy Micheál Martin

Speak for yourself.

Senator Joe O'Reilly

That is why we should guillotine it; I am joking.

Senator Gerard P. Craughwell

The new subsection (1A) states:

"(1A) Without prejudice to the Defence (Amendment) Act 1990 and any regulations made thereunder, a member of the Permanent Defence Force shall not— [...]

(c) address a meeting of a political organisation or society.”.

They can attend because they are not specifically barred from attending. That is one of the issues.

My colleague, Senator McDowell, brought up one of the most interesting issues regarding this Bill. He brought up a gay person who is a member of a community or committee and a member of the Defence Forces. It is not that terribly long ago since members of the Defence Forces, unlike any other military in the world that I am aware of, were encouraged to march down O'Connell Street in Dublin and various other streets in the country wearing their uniforms and wearing Pride memorabilia or insignia on that uniform. There is a specific Defence Forces Act or regulation that makes it illegal to desecrate one's uniform but it was done and for all the right reasons. I mention the judgment by Mr. Justice Sanfey.

Mr. Justice Sanfey talked about the prohibition of Sergeant Bright, describing it as a complete ban. It made no attempt, he wrote, to differentiate between the various levels of involvement in the event that were possible, from mere attendance to involvement in the organisation of the event, and no indication of why mere attendance in civilian clothing would have been unacceptable was given. He said that no indication or consideration had been given by the general staff to members who would have wished to attend the event, even if they were not participating in it. He went on to say that in his view, it was a blunt instrument that went further than necessary, and that there was no indication that the nature of the event had been considered. What happened was that an order came down from the general staff telling members not to attend, and that was it, end of story.

I served in not one but two armies, and I knew my place. I knew I could not speak out on political events. I have never known a soldier to get involved in the political arena. I have never known a soldier to push himself or herself beyond what were reasonable bounds. Here was a man who wanted to attend a respect and loyalty parade that was about pay for the Defence Forces. If we go to the nth degree in what the Tánaiste is trying to bring in today, RACO and PDFORRA are both political organisations. To be a member of the executive committee of either, members have to go through a campaign and be elected. They are political organisations, there to lobby on behalf of their members. At the end of the day, is it possible that if I, as an executive member of RACO, were to go to the annual conference, stand up and in some way criticise Government policy, I would then be in breach of this? The Tánaiste will tell me today that I would not be, but I would have to live with the commanding officer, who lives by black and white regulations.

Senator Wilson's argument was brought up last week. I am surprised he brought it up here. Did he not speak to the Tánaiste before he came here? Clearly, the Senator was aware there was a problem here, and I wonder whether it did not come up in conversation at their own party meeting. Why is it coming up today? It is a sledgehammer to crack a nut. There is absolutely no need for this. I assure the Tánaiste, as sure as I am standing here, that the Bill will end up being judicially reviewed because it is taking away rights, whether he likes it or not. In the Bright case judgment, it is clear that rights had been taken away. There are European Union human rights and our own human rights in this country. Freedom of assembly and so on are built into our human rights. We cannot gag an entire organisation. Our Defence Forces' members are great people in local organisations and local committees. I could bring the Tánaiste to Killester, just 2 miles from here, where a group is headed up by a private soldier. The Tánaiste should see the work they do. It is just amazing. Is that man now to be gagged? Everyone knows he is a soldier. He lobbied hard to build his community and build things for his community, but everybody knows who and what he is.

It is absolutely heartbreaking to see this being rammed through today. I really wish the Tánaiste would pause at this stage, go back and rethink where we are. He will drive people underground. People will go underground to find ways around this and that is not in the normal cut of soldiers. Soldiers like to do things. They like to be involved. The Tánaiste lives in Cork, where there are both the naval base and Collins Barracks. He had a relationship with them himself in his younger days. Soldiers like to be engaged in their communities. They like to give leadership. If we silence them, what are they to do? Will they say they cannot be a member of a committee because they are not allowed to speak publicly, or that they cannot attend a meeting for the same reason?

Deputy Micheál Martin

That is not the case.

Senator Gerard P. Craughwell

Come on. It is there.

Senator Diarmuid Wilson

On a point of clarification, this is a Chamber to discuss legislation. This is the Chamber in which to makes arguments, not outside in the lobby area. This is the area where you put forward your ideas and concerns. The Minister takes them on board, or he does not. I resent Senator Craughwell's comment.

Senator Gerard P. Craughwell

It is the truth.

Deputy Micheál Martin

Through the Chair, it is outrageous to say, as Senator Craughwell has said, that members of the Defence Forces cannot become members of a committee in a sporting club or any organisation. Nothing changes in that respect. My own club, Nemo Rangers, benefited enormously from military personnel through the years who helped us win All-Ireland club championships and so on. One, Shea Fahey, came from Kildare. There was also the late Séamus Coughlan and I could go on. There was no problem with them turning up at an underage committee or a management committee, and there will be no problem in the future in respect of matters pertaining to the club and how the club should be operated. That will stay. I ask Senator Craughwell to accept that much at least. Senators are talking about confusion. Nothing changes in that respect. All of this was in defence regulations. We are now providing clarity in the form of primary law. When a soldier took an oath, he or she took an oath not to become engaged in a political matter. The term "gagging order" was used earlier. It is not a gagging order. The representative associations are just that, and the Bill expressly relates to the Defence (Amendment) Act 1990. It states "without prejudice to the Defence (Amendment) Act 1990 and any regulations made thereunder, a member of the Permanent Defence Force shall not ...". In other words, it is without prejudice to that Act, which established the representative associations. Let us be clear that there is nothing stopping, no hindrance and no undermining of the role of the representative associations to represent their members. That is enshrined in legislation. This Bill is about creating the framework around an additional advance on the 1990 legislation, which is association with ICTU. That is what this is about, which is a good thing. They will now be involved in national wage negotiations and so on. That is a positive advance, through which each generation may advance even more.

I take Senator Clonan's point about the idea of freedom of expression and developing an intellectual tradition within our Defence Forces. That is something I would encourage. Within the Defence Forces, there is a strong learning tradition and dimension in terms of the various courses, programmes, postgraduate work and dissertations that members engage in. I had good experience with that last year when I went to the Curragh. Some of the studies people had been doing were outlined to me. A lot of them were in the military domain and some in the social domain, of mental health and mental well-being, and that whole area, which is of use to the formulation of military policy in the future. I am open to the idea of linking up with academic institutions. It seems to me that chain of command is involved here. This might be something I suggest we could return to in the context of other legislation. Cultural transformation is something I have been reflecting on for the past year and a half. There is the independent review group, and the work Senator Clonan did 20 years ago. I met seven or eight members of the external oversight body during the week to talk to them about their experiences. Senator Wilson made a good point last week about talking to the grassroots. They went to Collins Barracks and met approximately 100 randomly selected rank and file and engaged with them. Their biggest feedback was that there is still no belief on the ground that cultural transformation will occur. We have a huge challenge to convince people in the Defence Forces that cultural transformation will happen. What the Senator suggested today is an interesting dimension in terms of how we progress that. The chain of command structure lends itself to a rigidity that may not be conducive to that cultural transformation. That is a view I have but it needs to be thought through further. That is more within the structure of the Defence Forces itself.

Senator Wilson made a point about a member of a credit union.

Again, a member of a credit union fills in a form and states his or her occupation. You do not say you are identifying yourself as a member of the Defence Forces to seek reform and attack the Government because of its financial policies; rather, you are a director outlining your occupations with a view to contributing to the community and being involved in it. Nothing changes in that respect. That is clear, in our view, and it has to be the position. We want community participation.

To me, the Defence Forces have always represented very significant human capital for the country. I see that when many members of the Defence Forces leave, they become very effective members of their communities in many organisations. Many have very good engineering, and organisational capacities, which have been deployed in the interest of community associations, community activities, projects, event organisation, and so on.

Acting Chairperson (Senator Seán Kyne)

I interrupt the proceedings to welcome members of Glinsk Ladies Club, who are guests of Deputy Michael Fitzmaurice. I hope they enjoy the rest of the day.

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 amendment No. 1 is hereby negatived, Fourth Stage is hereby completed, the Bill is hereby received for final consideration and the Bill is hereby passed."

Question put.

The Seanad divided by electronic means.

Senator Gerard P. Craughwell

The debate on the Bill, disgracefully, has been guillotined. 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, 30; Níl, 13.

Tá

• Ahearn, Garret.
• Ardagh, Catherine.
• Byrne, Malcolm.
• Byrne, Maria.
• Carrigy, Micheál.
• Casey, Pat.
• Cassells, Shane.
• Chambers, Lisa.
• Conway, Martin.
• Crowe, Ollie.
• Cummins, John.
• Currie, Emer.
• Daly, Paul.
• Davitt, Aidan.
• Dolan, Aisling.
• Dooley, Timmy.
• Fitzpatrick, Mary.
• Horkan, Gerry.
• Kyne, Seán.
• Lombard, Tim.
• Martin, Vincent P.
• McGahon, John.
• McGreehan, Erin.
• Murphy, Eugene.
• O'Hara, Malachai.
• O'Loughlin, Fiona.
• O'Reilly, Joe.
• O'Reilly, Pauline.
• Seery Kearney, Mary.
• Ward, Barry.

Níl

• Boyhan, Victor.
• Clonan, Tom.
• Craughwell, Gerard P.
• Gavan, Paul.
• Hoey, Annie.
• Keogan, Sharon.
• McDowell, Michael.
• Moynihan, Rebecca.
• Mullen, Rónán.
• Ruane, Lynn.
• Sherlock, Marie.
• Wall, Mark.
• Warfield, Fintan.

Tellers: Tá, Senators Paul Daly and Joe O'Reilly; Níl, Senators Gerard P. Craughwell and Mark Wall.

Question declared carried.

Cuireadh an Seanad ar fionraí ar 5.14 p.m. agus cuireadh tús leis arís at 5.18 p.m.

Sitting suspended at 5.14 p.m and resumed at 5.18 p.m.