Select Committee on Foreign Affairs and Defence debate -
Thursday, 23 May 2024

Defence (Amendment) Bill 2024: Committee Stage

Sections 1 to 5, inclusive, agreed to.

NEW SECTION

Deputy Brendan Howlin

I move amendment No. 1:

In page 6, between lines 10 and 11, to insert the following:

“Command of the Defence Forces

6. The Principal Act is amended by the substitution of the following section for section 17:

“Command of the 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.”.”.

It is good to be in attendance today. The purpose of this amendment is to insert a new section into the principal Act. It is a fundamentally principled amendment dealing with command of the Defence Forces. Essentially, under the Defence Acts, the military, operational and administrative command of the Defence Forces of Ireland is vested in and exercised by the Minister for Defence. Defence Force headquarters, headed by the Chief of Staff, is simply the name of the military branch of the Department of Defence under section 4 of the Defence (Amendment Act) 1994.

The Department's civil servants can exercise the power of command vested in the Minister and can effectively outrank the Chief of Staff in the context of administrative and operational decisions. The amendment I propose, while maintaining the fundamental oversight of the military by civilians, seeks to vest the function of managing and controlling the administration, staff and business of the Defence Forces in the Chief of Staff, where one would assume it should be property vested. If the amendment were accepted, the Chief of Staff would become the Accounting Officer for a Defence Forces Vote. Defence Forces headquarters would no longer be part of the Department but positioned within the Defence Forces themselves.

It seems to me that the current arrangements are extraordinary and - unless the Tánaiste can tell me otherwise - fairly unique. I checked why this is the situation and was informed that these arrangements date back to the earliest days of our State when Richard Mulcahy was Minister for Defence from 1922 to 1924. As well as being Minister for Defence, he was a general in the National Army and, in fact, Chief of Staff, succeeding Michael Collins as commander-in-chief after Collins's death in August 1922.

I understand that in 1922 the former anti-Treaty IRA officers demanded an Army convention to appoint an Army executive independent of the Dáil. Mulcahy's advice to the Dáil was that the Army convention must be prohibited because he viewed it as tantamount to an attempt to establish a military dictatorship. He maintained, in a way with which we would all agree, that the Dáil was the sole body in supreme control of the Army. That is the genesis of this unique set of circumstances: in the post-Independence struggle, when the National Army was being established, to ensure that all would be controlled by the new government.

The principle of civilian primacy over military authority obviously remains important, but I suggest that those arrangements have to be practical. In that context, I am proposing a number of changes. For example, under paragraph (a) of the amendment "the supreme command of the Defence Forces [would be] vested in the President ... exercisable by him or her on the advice of the Government", as is the status quo. Under paragraph (b) it would be the case that "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." Under paragraph (c) I propose that "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" and under paragraph (d) "Defence Forces Headquarters, the head of which is the Chief of Staff, ceases to stand established in the Department of Defence [which is an unusual set of circumstances] and instead stands established within the Defence Forces."

My final proposition is that the Chief of Staff be the Accounting Officer with regard to the appropriation accounts of the Defence Forces for the purposes of the Comptroller and Auditor General Acts.

That in essence is my proposal. It is eminently sensible. It is a realisation of what should be the status quo that our chief of staff and Defence Forces headquarters are not a subset of the Department of Defence. They should not be cited in the Department of Defence. They should have their own standing and authority and be subject to the Comptroller and Auditor General in the normal way with the chief of staff as the Accounting Officer.

Deputy Micheál Martin

I thank the Deputy for his amendment and thoughtful contribution. Throughout this process, I have been engaging and we have been taking on board very carefully the comments made by members of the committee. We have had correspondence with the committee. We have amended and taken on board two substantive issues in the presentation of this Bill to the House in terms of representations that were made.

On this, first, the principle of civilian primacy is sacrosanct in a democracy. How we actually manifest and operationalise that in an efficient Defence Forces is an issue meriting significant and substantive debate. As the Deputy knows, the Commission on the Defence Forces had some significant recommendations in this respect, and it has now been captured within the Strategic Framework

Transformation of the Defence Forces, which I published last September. This brings together in one overarching document the actions, including the legislative changes, to be taken to support the transformation of the Defence Forces. As I signalled and as I instructed my officials some time back, I will progress this to prepare comprehensive legislation - a separate defence Bill - to fundamentally reform the current high-level structures within the Defence Forces to encompass what the Deputy said, although it perhaps needs greater consideration on how all the interlocking parts come together.

In terms of the accountability question, as he knows, the legislation talks about one chief of the Defence Forces or CHOD, and the synergy between the three branches of air, naval and land. This comprehensive legislation is fundamental. The current situation is not conducive to the optimal administration or operation of our Defence Forces. In the 1954 Act, the Chief of Staff is an adviser to the Minister. I can direct brigade commanders and flag officers. In practice, that is not how it has evolved. There are a lot of operationally people who work together. They work through things and so on. Fundamentally, however, the Deputy's point is correct. This is what we have in the context of the 1954 legislative edifice. That needs fundamental change, but it needs to be comprehensive. For example, it should be subject to pre-legislative scrutiny here and to wider inputs. There will be issues around the accountability chain and how to manifest ultimate civilian control of the Defence Forces in this new architecture. There are very, therefore, profound issues. The Deputy has cut to the core of an issue that has been identified. We are going to address it through a separate defence Bill later this year. That will deal with military command and control and the issues he raised. It will comprehensively address the issues he highlighted in respect of the current legislation. I ask him to wait; this is a short enough Bill. It is not appropriate to plug in and insert an amendment now. It could have all sorts of implications that have not been comprehensively thought through in terms of the new legislation.

Deputy Brendan Howlin

I welcome the Tánaiste's commentary. I welcome the fact that he recognises that this is an issue that should be put right. Most people who look at it forensically - I have not done so previously - would see it as a demeaning set of circumstances. That the Minister can direct flag officers of the navy or battalion commanders of our Army in a way the Chief of Staff cannot is a bizarre set of circumstances. It should be put right. I welcome the Minister's assurances that that his intention. In truth, if I was drafting a Bill myself, I would have been more comprehensive in terms of expanding the role of the chief of staff in terms of accountability, annual reports to the Oireachtas and presentations before the Committee of Public Accounts and this committee as well. Is that the direction in which the Tánaiste intends to move in the second Bill he has referenced?

Deputy Micheál Martin

Yes, that is generally the direction of travel. Others will have views on that. Where responsibility is held or allocated, there has to be accountability.

Deputy Brendan Howlin

The Tánaiste does not intend to become a general himself and direct the Army.

Deputy Micheál Martin

I certainly do not, although I have studied the period-----

Deputy Brendan Howlin

I talked about.

Deputy Micheál Martin

-----from the early 20th century right through. We can be well enlightened by what happened in the 1920s. We had the Army mutiny later. It was Kevin O'Higgins who laid down the essential principle that those who wear the uniform of the State serve the State. We will deal with that later in other aspects of this legislation. There are fundamental principles but, obviously, the passage of time has necessitated a change. The Deputy should feel free to make a submission to us in respect of how he thinks the architecture should be designed.

In the context of the Commission on the Defence Forces, a lot of work was done internationally on what is the norm in many other countries in the relationship between departments and militaries and in the command and control structure. I see it as the most fundamental piece of reform we can do because out of that will flow many other issues the current structures perhaps do not enable to be dealt with properly.

Deputy Brendan Howlin

I am very satisfied with that response from the Tánaiste. I thank him for it. I look forward to the next legislation. On that basis, I will withdraw my amendment.

Amendment, by leave, withdrawn.

Question proposed: "That section 6 stand part of Bill."

Deputy Cathal Berry

I will briefly speak in support of Deputy Howlin's contribution. It makes perfect sense. I am very supportive of the principle and concept as well, particularly with regard to the separation of headquarters. For instance, Garda headquarters is not embedded in the Department of Justice. It is completely separate and rightly so. It has a certain amount of operational independence as well, which is completely as it should be. With regard to the Accounting Officer in particular, the Garda Commissioner is the Accounting Officer for An Garda Síochána and the Chief of Staff should be the Accounting Officer for the Defence . It is a little bit more nuanced in the defence apparatus because we have Vote 35, which deals with pensions, and Vote 37, which is the operational budget and, therefore, we could in theory split the Votes and leave the Secretary General of the Department of Defence to look after Vote 35 and Vote 36 could be looked after by the Chief of Staff. Those are the options. I am very supportive of the principle. I thank the Minister for his response.

Question put and agreed to.

Sections 7 to 10, inclusive, agreed to.

SECTION 11

An Cathaoirleach

Amendments Nos. 2 to 5, inclusive, and amendments Nos. 18 to 22, inclusive, are related. It should be noted that amendment No. 3 is a physical alternative to amendment No. 2, amendment No. 5 is a physical alternative to amendment No. 4, amendment No. 20 is a physical alternative to amendment No. 19 and amendment No. 22 is a physical alternative to amendment No. 21.

In accordance with the circulated grouping list, amendments Nos. 2 to 5, inclusive, and amendments Nos. 18 to 22, inclusive, are related and will be discussed together.

Deputy Brendan Howlin

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”.

Section 11 relates to section 103 of the principal Act and sets out limitations on the actions of members of the Defence Forces. My amendment deals with the prohibition proposed in the section 11, which states:

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

[...]

(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.

That is my first amendment to this section. I want to delete the phrase "in relation to a political matter or matter of Government policy" and insert that of “in relation to a matter of political controversy”. I tried to think of the best wording for this because it would be an extraordinary restriction that a member of the Defence Forces could comment on a matter of Government policy. If it were a matter of political controversy, I could understand. That is why I would go so far as to say that we put in a reference to political controversies because I do not think it would be appropriate for members of Defence Forces to be involved in political controversies of any kind. However, to preclude them from a matter of Government policy might mean they could not be in favour of climate change legislation. The Chief of Staff or any other member could not say they have a greening agenda for the Defence Forces if that is Government policy. That is too broad a net to cast. The Tánaiste might say that is not what is intended. It does not matter what is intended. Legislation is there per omnia secula seculorum, and there will be other Ministers who might have a different view of these things. We should try to craft our legislation in as defined a way as possible. I submit that, as currently proposed, the provision is far too broad.

I will also comment on amendment No. 4, which relates to the prohibition to "attend a protest, march or other gathering in relation to a political matter or matter of Government policy". I again submit that a prohibition on any member of the Defence Forces being involved in a protest march or other gathering relating to a political matter or a matter of Government policy is too broad. The wording should again be restricted to "in relation to a matter of political controversy". There will be public presentations and protests about issues that are not a bit controversial, which would be prohibited by this. Maybe nobody intends to act against them, but we should try to craft the Bill in as defined and narrow a way as possible to meet the objectives of ensuring that members of our Defence Forces are not involved in political controversy, but is not so stifling that it would trample on the human rights or expressed rights of any individual under the European Convention on Human Rights.

I will come back in on the other amendments later.

Deputy Matt Carthy

I thank the Tánaiste for being here. One general comment that should be made is that the Bill was presented for Committee Stage before the pre-legislative scrutiny report of this committee was delivered to the Department of Defence. I find that insulting, not just to this committee - that is political - but to people from the representative organisations, and from the-----

Deputy Micheál Martin

If the Chair will allow me to intervene, I was supposed to make an opening statement which would have dealt comprehensively with that point. That is not how things have worked out. I do not want to-----

An Cathaoirleach

After Deputy Carthy has made his comment.

Deputy Micheál Martin

I just want to make the point. I took the Chair's willingness to try to be focused and efficient on this matter, but I had a statement on that, because it is not the case that this was somehow produced while completely ignoring the work of the committee. That is not the case.

Deputy Matt Carthy

It was produced before the Tánaiste received the report of this committee. Is that factually correct?

Deputy Micheál Martin

I am not going to, I had an-----

(Interruptions).

Deputy Micheál Martin

Sorry?

Deputy Matt Carthy

Is that factually correct or not?

An Cathaoirleach

It is my understanding that the Bill was published before there was any commentary from the Department on the pre-legislative scrutiny report.

Deputy Micheál Martin

We would have written to the committee. We have letters here which indicate it. I had an opening statement that the Chair said he would prefer I did not read, and which would have explained this. We can get into propaganda and politics if we wish, but that is not the case.

Deputy Matt Carthy

Let me move on to the amendments.

Deputy Micheál Martin

Yes, I think we should stick to them. Maybe, if my statement could be taken as read and I could circulate it to the secretariat, we could come back at another time and talk through it.

Deputy Matt Carthy

Fair enough. Regardless of whether the Tánaiste read the pre-legislative scrutiny report before preparing the legislation, my understanding is that he could not have done that. However, the fact is that one of the key component points raised throughout the pre-legislative scrutiny phase of these discussions is not reflected in the Bill that has been brought before us.

I am speaking to amendments Nos. 3, 5, 20 and 22 because they are all related. There is an essential prohibition on members of the Defence Forces engaging in essentially anything relating to a political matter or a matter of Government policy. This puts a restriction on members of the Defence Forces that goes way beyond anything that any other person in our society has to deal with. There is a rationale for restrictions being placed on members of the Defence Forces. We all accept that and the historical and contemporary reasons why it would be the case. However, I agree that it is imperative for the Dáil to ensure that such measures and restrictions, as they pertain, are not ambiguous or open to question and do not prevent members of the Defence Forces from being recognised as citizens of the State. Regardless of the fact that they serve the State, they are still serving members. This was one of the key areas that representative associations of members of the Defence Forces have raised beyond us. I do not think the Tánaiste has yet clarified why, in the context of this legislation, we need to go beyond existing legislation and Defence Forces regulations. It has already been mentioned that the term "Government policy" is so open to interpretation that matters could become quite bizarre. It could be argued that this would prevent members of the Defence Forces from attending meetings of their representative organisations.

The Tánaiste was at the PDFORRA conference last week. Throughout their deliberations, those present spoke about Government policy in terms of how it affected them. If we were to prevent them, through legislation, from engaging in discourse on Government policy we would have a situation where technically the Chief of Staff could not advise the Tánaiste on a proposed policy change because it would be Government policy he is talking about. It would be a situation whereby, were we to expand that to attendance at protests, mobilisations or whatever the case may be, if a member of the Defence Forces local school decided to call a public meeting because it was looking for a school extension, that individual would potentially be in breach of this Bill.

Therefore, we need to agree an instrument to actually deal with this. It is also important to note that earlier this month, or late last month, a member of the Defence Forces won a court case against the blanket ban on personnel attending protests. I note that the judge described the prohibition as a "blunt instrument". It would be useful if the Tánaiste would inform the committee as to whether he agrees with the judge that it is a blunt instrument.

On the amendments before us, Deputy Howlin has tabled amendments that would replace the phrase "political matter or matter of Government policy" with "a matter of political controversy", which is fine. To my mind, and taking on board what has been said, the deletion of the term "Government policy" is the core one. Of course, we do not want members of the Defence Forces engaging in political activity as all of us in this House would know it to be but the prohibition on engagement on matters of Government policy is excessive in the extreme. Therefore, we would support any of the amendments before us in this grouping. It is imperative that the Tánaiste inform us which wording he finds appropriate or whether he is bringing forward alternative wording that acknowledges the very real concerns that are there and puts to rights what is a glaring deficiency in the Bill.

Deputy Cathal Berry

I want to speak in support of both suggestions. The bottom line is that the singular focus of the defence apparatus at the moment should be recruitment and retention. Reducing people's constitutional rights would be highly unlikely to incentivise someone to join or stay. One of the reasons the Defence Forces are in a bit of difficulty is that people were silenced and could not speak up. When members of the representative association have appeared before this committee, their testimony has been excellent. It has been very powerful and compelling and has been delivered in a very courteous and polite way, which is very constructive. If we look to silence people or if the unintended consequence of this proposal is brought in, the alternative is mobilising the wives and partners of members of the Defence Forces again or the National Army Spouses Association. We will have women protesting outside Army barracks, which is highly commendable on their part but completely unnecessary and unsightly. The other unintended consequence is that we will have military people, either serving or retired, setting up anonymous accounts on social media and being vocal from that point of view. That was actually much worse about four years ago but since the representative association has had the forum, it has been reduced considerably.

That is pretty much all I have to say, except to back up my colleague in relation to the recent High Court case involving Mr. Martin Bright. The High Court judgment that was handed down would be incompatible with the legislation in front of us. I would welcome the Tánaiste's thoughts on that.

Deputy Réada Cronin

I spoke to the Tánaiste about this in the Dáil previously. Members of the Defence Forces and An Garda Síochána are aware that the Government is using a sledgehammer to crack a nut here. I am also not happy about the opening statement being taken as read when it has not even been circulated. I checked if it was up on the system two minutes before I came down here-----

Deputy Micheál Martin

It is up.

Deputy Réada Cronin

It is not up on MS Teams so I have not read it. Could it at least be circulated if we are to take it as read?

Deputy Micheál Martin

The Deputy does not have to take it as read if she does not want to. I was told before I came in here that I would have an opportunity to make a statement-----

Deputy Réada Cronin

Yes, it is customary for opening statements to be put up on the system-----

Deputy Micheál Martin

It was cleared with the secretariat of the committee that I would make a short statement setting out the context of how we took on board the work of the committee on the pre-legislative side. Substantive correspondence went to the committee but that correspondence was not reflected in the subsequent report of the committee. In that correspondence, we signalled change in respect of some aspects which had been deliberated on at the committee, particularly around whether certain members could join an association or not, for example. We went through those heads of Bill in response to the deliberations of the committee. There was quite lengthy correspondence on 2 April and there was a back and forth. The committee had challenges in terms of timelines too. I was going to explain all of that in an opening statement but then, in fairness and in the interests of efficiency and time, I decided to focus on-----

Deputy Matt Carthy

Deputy Cronin is only requesting that the statement be circulated. That is all.

Deputy Réada Cronin

Yes, that is what I asked.

Deputy Micheál Martin

We can organise that, no problem.

Deputy Matt Carthy

It is as simple as that.

An Cathaoirleach

We can do that. We have 22 amendments. We also have limited time, which perhaps we should not have. In that context, I felt that the making of statements at the outset was probably going to impact on the time available for us to discuss the substantive amendments. Then, with Deputy Carthy having made some comments, I believed that the Tánaiste should come in-----

Deputy Réada Cronin

We are taking the opening statement as read but it was not up on MS Teams before we came down. Maybe there is a problem with-----

An Cathaoirleach

It can be circulated before the end of this meeting, if there are issues in it. I am satisfied that a number of changes were made to the Bill. However, there were issues included in the pre-legislative scrutiny report which were of great import and were the subject of substantive discussion at this committee, where agreement was reached. These were contained in the report but it did not appear to have the necessary level of influence that the committee might have liked in terms of the finished article. I am not sure what is in the Tánaiste's opening statement that might contradict that. The amendments that we have before us in the names of Deputies Carthy and Howlin deal with issues that were the subject of pre-legislative scrutiny and I assume they will attract a response of either agreement or otherwise by the Tánaiste in the context of this debate.

Deputy Micheál Martin

Yes. I have also met the representative associations to discuss the wide range of points that were presented to the committee. I met them bilaterally and indicated the ones I was prepared to move on in advance of Committee Stage, which I did. There were two heads involved. In respect of head 25, I withdrew it and wrote to the committee to indicate same. I also informed the associations that I was withdrawing it. It related to the military prosecutor and military judge being members of the representative associations.

Does the Chairman want me to deal with this specific amendment? That might be better.

An Cathaoirleach

Deputy Stanton wishes to comment before the Tánaiste responds.

Deputy David Stanton

I have been looking at this section for a while and believe it contains a number of loopholes. I agree that persons in uniform who are obviously members of the Permanent Defence Force should not be making political statements or commenting on Government policy. As a former member, I feel that would be a step too far. However, the Bill also says "or otherwise making himself or herself identifiable". If a person does not make himself or herself identifiable, if he or she does not wear a badge indicating membership of the Defence Forces, does that mean that he or she can make public statements or comments?

My second question relates to a member who has authorisation from his or her commanding officer. Who is the commanding officer? Is it the rank immediately above, is it the platoon commander or is it the battalion commander? Who is it? The section implies that if a member of the Defence Forces has authorisation, he or she can make a public statement in relation to a political matter or Government policy. If a commandant tells a captain that it is okay to make a speech, does the commandant need clearance from someone higher up again? There is a loophole there. If the commanding officer says someone can do it, then he or she can do it.

The second subsection talks about attending a protest march or other gathering in relation to a political matter or a matter of Government policy and we have already talked about a meeting with regard to climate change. Let us suppose that the Minister for Defence is opening a barracks. He or she stands up, makes a speech and says that it is part of Government policy to put money into the barracks. If there is a guard of honour for the Minister standing by, are the members of that guard of honour in contravention of the law by being there? This provision is very loose and it could be interpreted in all kinds of ways. The phrase "while in uniform or otherwise making himself or herself identifiable" is problematic. What does "making himself or herself identifiable" mean? Does it mean that a person has to stand up and say that he or she is a member of the Defence Forces and is going to make a speech? If members are in civilian clothes, can they do whatever they want?

It is very loose and open to all kinds of interpretations. I am referring in particular to the reference to "a gathering". A gathering could be anything. What about a march? Soldiers march all the time. I know it is implied that the march would have to be a protest of some sort, but the Bill does not state that. If you break this down and parse it, you will see it is wide open. I agree with colleagues that individuals identifiable as members of the Defence Forces representative organisations were before the committee and made very valuable contributions. Will they not be able to do that in the future? For instance, will they be barred from coming in here as it would involve a gathering on a political matter? It is a little ambiguous. My contribution is intended to be helpful.

Deputy Micheál Martin

With regard to Deputy Howlin's amendment, we talked about the primacy of civilians. I take it from comments that we want our Defence Forces to be apolitical. If they were not, it would have implications for the future of our democracy and the fundamentals of democracy.

Deputy Brendan Howlin

The electoral aspect. The word "political" involves a big agenda; that is the issue.

Deputy Micheál Martin

Yes. This is nothing new. The only change is the inclusion in primary legislation. This is a positive Bill. It is statutorily providing for association with ICTU, which has never happened before. It is only in the past year that that development has arisen.

Deputy Brendan Howlin

Very spancelled association.

Deputy Micheál Martin

No. The association will not be spancelled regarding what it has been doing up to now, namely, representing its members. That activity will not be stymied or undermined by this legislation. An idea has been put forward that the body will not be able to advocate. I have made the position clear in amendments we have made already and also in my communication with the associations. They will have every right to represent their members' interests, as is the case through conciliation and arbitration and regularly in meetings with me and the committee. The regulations have already been made under the existing Defence Acts. The wording is, "No public statement or comment concerning a political matter shall be made by the Association."

Deputy Matt Carthy

By the association.

Deputy Micheál Martin

There is a similar principle. Committee members have referred to the association. I come back to the matter of the individual.

On Deputy Stanton's point, the section deals with specified activities "while in uniform".

Deputy Brendan Howlin

It also states "or otherwise making himself or herself identifiable as a member of the Permanent Defence Force".

Deputy Micheál Martin

Surely we accept members of the Defence Forces in uniform should not be turning up at protest marches. That could lead in any direction and compromise the work of the Defence Forces in terms of impartiality and objectivity. While out of uniform and as civilians, members have rights as civilians. If not identifying themselves as members of the Defence Forces, they are in a position to air views and so on. The provision is specifically about activity while in uniform. I find it difficult to understand why we would object to that.

What I am prepared to consider for Report Stage is the phrase "Government policy". I reflected on this and asked the Attorney General for further advice on it. I have a general view that our Defence Forces, as a defence force in uniform, should not be engaging in or getting involved in-----

Deputy Brendan Howlin

Controversy.

Deputy Micheál Martin

How does one define "controversy"? One person's controversy is another's mundane event.

Deputy Brendan Howlin

I do not think so.

Deputy Micheál Martin

It would be very difficult to define "controversy" in a Bill, although I take the points that have been made. I do not want to be suppressing citizens' right to have views. One of the reasons I am reflecting on this is that there could be potential unintended consequences for individuals if they made a comment, for example, in a certain context. It does not necessarily have to be in the circumstances I am thinking about. I do not believe it applies because the legislation states "while in uniform". Even so, while in uniform someone could make a comment and legislation could be used. On the aspect on Government policy, I am committed to the retention of "a political matter". I do not believe our Defence Forces should attend gatherings, including protests, in uniform. It is a requirement of joining. A member of the Defence Forces takes an oath reflecting this currently.

Deputy Brendan Howlin

Deputy Stanton asked a question about permission of one's commanding officer being a get-out-of-jail card.

Deputy Micheál Martin

It is not quite a get-out-of-jail card. There is command and control generally, so the required behaviour would be the norm. There has to be some chain of command. There are people who participate in academic societies and there is some very good work done in the archives and so on. To me, that is not a political matter, but somebody might say they need permission to make an address based on research or whatever. There is a lot of education within the Defence Forces and people study various military tactics and so on.

Deputy David Stanton

It explicitly states "from the member's commanding officer", so I am not sure about this. Maybe "with prior authorisation" is sufficient, but it would imply that the immediate commanding officer could give authorisation. It is unlikely that he or she would because they would be extraordinarily careful, but there seems to be a lacuna.

Deputy Micheál Martin

The chain of command would apply, and this would entail the person immediately above one.

Again, these prohibitions apply only where a member of the Defence Forces is in uniform or otherwise identifiable. That is all we are talking about here. I believe we all accept that the military plays a unique role. There has been strong military advice on this requiring that military command, discipline and so on be borne in mind. The issue here is necessity and proportionality. People accept it is necessary to have provisions in this area, but members are querying their proportionality and applicability. We are stressing that this is a matter of the prohibition applying while in uniform.

Deputy David Stanton

What the Tánaiste said was not quite right. He said "or otherwise identifiable" but the wording is "or otherwise making himself or herself identifiable", which is different. A member making himself identifiable implies an action on his part, through his saying he is a member of the Defence Forces or wearing some badge or emblem-----

Deputy Micheál Martin

People could identify themselves on social media.

Deputy David Stanton

They must take an action to make themselves identifiable. They could be present and identifiable as members of the Defence Forces but not make themselves identifiable. There is a little bit of-----

Deputy Micheál Martin

The phrase is "making himself or herself identifiable". If they do not do that, there is no issue.

Deputy David Stanton

But they could still be known by others to be members of the Defence Forces.

Deputy Micheál Martin

We have a small country. That is fine.

Deputy Matt Carthy

Jesus, solicitors will have good craic with the wording "making himself or herself identifiable" if somebody is in the scenario I mentioned, that is, in a school. If somebody gets up to speak on behalf of the school and is introduced as a member of the Defence Forces, is he or she making himself or herself identifiable? There are principles that everybody accepts and there are parts of this section that they accept. Nobody has any question about the wording "canvass on behalf of, or collect contributions for, any political organisation or society". That refers to what I believe most would interpret as "political activity". I am referring to something specific to the party-political process. The problem is that everything is political beyond that. Everything that affects people's lives boils down to Government policy at one point or another, so we have to be clear in saying we are not prohibiting members of the Defence Forces from engaging constructively on matters that affect their own lives, families or communities and that clearly do not infringe on their ability to serve within the Defence Forces.

The Tánaiste has not answered the specific question on the judgment that has been cited.

Deputy Micheál Martin

That is being examined by the Attorney General’s office and the perfecting of the order is still live before the courts. The judge himself identified this as a delicate balance and understood the issues that are before the court. He highlights that the issue is a difficult one that needs to be dealt with “in a manner which takes account of the interests and sensitivities of all concerned”. We are giving that appropriate consideration. Obviously, the potential for appeal is still there but absolute clarity will be ultimately required in the outcome.

Deputy Matt Carthy

It is still possible, therefore, for the Government to appeal.

Deputy Micheál Martin

No decision has been made, but the Attorney General is examining the judgment and the case is still live before the courts in the context of the perfecting of the judgment. We have to wait and see what happens.

Deputy Matt Carthy

Has the Tánaiste asked the Attorney General to look at this section in the context of that judgment?

Deputy Micheál Martin

Not specifically this section, but more broadly in respect of what the implications of the judgment are.

An Cathaoirleach

Is the Tánaiste is referring to the timescale for the proposed passage of this Bill and the wider issue of the consequences of the judgment on Government policy?

Deputy Micheál Martin

This relates to the phrase "while in uniform", however.

Deputy Matt Carthy

Yes, or another means of making oneself identifiable.

Deputy Micheál Martin

That relates to a person, by their own activism or decision-making, making themselves identifiable. If a school principal says someone is a member of the Defence Forces, that person is not making himself or herself identifiable.

Deputy Matt Carthy

That is good to know.

Deputy Micheál Martin

All of this is already in legislation. In some respects, it is probably a loosening of what is already in regulations.

Deputy Brendan Howlin

It is not in law.

Deputy Micheál Martin

It is in law in terms of regulations.

Deputy Matt Carthy

I think the point is it is not in primary legislation.

Deputy Micheál Martin

It stems from defence Acts. Secondary legislation has applicability as law if it correctly derives from primary legislation. There can occasionally be arguments that regulations are-----

Deputy Brendan Howlin

Is it a statutory instrument?

Deputy Micheál Martin

I am saying there are Defence Forces regulations which are-----

Deputy Brendan Howlin

Are they statutory instruments, however?

Deputy Micheál Martin

Yes, they derive from the Acts.

Deputy Cathal Berry

The fundamental question is whether we should elevate these secondary regulations to primary legislation at all. Should we be nesting this in primary legislation? Are we distracting ourselves from what we should be doing? Is it necessary?

Deputy Micheál Martin

I think we need to have clarity. We have to be upfront about it. Deputy Howlin started off this debate well by going back to the fundamentals. We all desire to respond positively to the submissions we get but, as a State, we need clear demarcation lines and clear basic principles that govern how the Defence Forces operate and the relationship between that and our political system. That is a very fundamental point, and there is a need for some clarity.

Deputy Matt Carthy

Yes, and on the fundamentals, there is very little disagreement, if any, that I can discern. The difficulty is, and this debate is evidence of it, as was the pre-legislative scrutiny stage, that this does not bring about the clarity the Tánaiste is striving to bring about. To go back to one of the questions I was going to ask, he mentioned that this was based heavily on military advice. What guise did that military advice take?

Deputy Micheál Martin

We take views from the military in respect of all legislation. As per the Act, the Chief of Staff is there to advise.

Deputy Matt Carthy

Whose views is the Tánaiste referring to? Are they military experts or the management of the Defence Forces?

Deputy Micheál Martin

Management. They would have views on this, such as the Chief of Staff, obviously.

Deputy Matt Carthy

If the Chief of Staff was in uniform, therefore, and was giving the Tánaiste a view on what this legislation should include, would he not be breaching the legislation because he would be commenting on Government policy?

Deputy Micheál Martin

No, we are seeking views prior to finalising legislative decisions. The Chief of Staff is, under the Act, an adviser to the Minister of the day, so-----

Deputy Matt Carthy

Yes, that is the point I am trying to get to, namely, whether one part of the Act contravenes another.

Deputy Micheál Martin

No, that is not circumscribed by this at all. The prohibition of the military right to strike is fundamental to the maintenance of military discipline, guarantees the provision of defence and secures the other services of the Government, and clear and specified provision must be made in legislation under the Defence Forces regulations to guarantee the availability of military capabilities to avoid any potential ambiguity or legal loophole that may be subsequently exploited by individuals or associations before the courts to the detriment of military discipline and the effective command and control of the Defence Forces. That is the advice we received on that.

Subsection A1 refers to making “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”. I have said I am prepared to look, in advance of Report Stage, at the issue of Government policy. I accept the breadth of that. My view is we need to reflect on that a bit more, and I do not want individual members to be inadvertently caught up in something whereby they could be victimised, for example, in the context of general commentary.

Deputy Brendan Howlin

I think Deputy Carthy is right. There is not a fundamental principle difference at all between us; rather, the difference relates to how it is to be implemented. I do not think that is a small matter because, as has been referenced, the biggest issue we have relates to recruiting and retaining members, and we should not be perceived in any way as being restrictive. It runs counter to the evolution of militaries throughout Europe, where people are participative in community in a much greater way than the military was in the past as a separate entity. I am conscious, having once had responsibility for the public service and, indeed, the Civil Service, that in many ways our requirements for the Civil Service to be apolitical and not to be involved in any politics is even more important than the requirement for the Defence Forces, I would submit, and I cannot think of any legal prohibitions of this scale in respect of civil servants. The Tánaiste's officials might refer to them if they do exist like this-----

Deputy Micheál Martin

They do.

Deputy Brendan Howlin

Is that in these terms, in primary legislation?

Deputy Micheál Martin

I would have to check whether it is in primary legislation, but there are very clear codes of conduct. The Deputy knows this himself, as a veteran of politics at this stage. If a public servant is above a certain grade in a local authority, they cannot even run in politics, and that is as a civilian. Otherwise, they have to resign.

Deputy Brendan Howlin

If I may finish the point, we have evolved to allow ever greater freedom. There was a total ban on anybody in a public service job being involved in politics, and that has evolved to apply to a certain rank. I am not suggesting we allow any political involvement among our Defence Forces, but we have to meet the principles that were agreed on in as unrestrictive a way as possible. That is the point I am trying to make.

Given we are dealing with the amendment grouping, I might also deal with the other amendments. They deal with the prohibition of activities of the association. Amendment No. 18, which is a technical amendment, will add to the current wording, “without prejudice to the purpose of an association of representing members”, the phrase “as provided for by this subsection”.

Amendment Nos. 19 and 21 deal with the prohibition of an association making "a public statement or comment concerning a political matter or matter of Government policy, or [encouraging] members to engage in public agitation, protest, lobbying or media commentary (including commentary by means of social media) concerning a political matter or matter of Government policy.” The notion that associations would be debarred from making a public statement or comment relating to Government policy seems excessive, and I have not heard in the debate so far any justification for that extreme perspective.

Deputy Micheál Martin

I was taken aback by something the Deputy said earlier. For the proper conduct of any state, what has stood Ireland in strong stead has been, generally speaking, the apolitical nature of our public service.

Deputy Brendan Howlin

Absolutely.

Deputy Micheál Martin

The Deputy seems to be suggesting, however, that we are evolving into some looser concept of that and that it should be okay if people air and articulate their public views.

I would argue-----

Deputy Brendan Howlin

I did not say that; I am saying that what applies in the public service is not as restrictive as what the Tánaiste suggests. That is my judgment on it.

Deputy Micheál Martin

If we had Secretaries General turning up here, there and everywhere-----

Deputy Brendan Howlin

We are not talking about-----

Deputy Micheál Martin

No, but I want to cut to the-----

Deputy Brendan Howlin

-----Secretaries General; we are talking about enlisted men.

Deputy Micheál Martin

There is a bit of fluffiness going on here. Everyone wants to appeal to everybody out there, be popular and do what we think is nice and all of that, but the bottom line is-----

Deputy Brendan Howlin

Let us not-----

Deputy Micheál Martin

I just want to make a point, through the Chair.

Deputy Brendan Howlin

Let us not ascribe base motives to each other.

Deputy Micheál Martin

I am not saying the Deputy's motives are base. I just think there is a general sort of-----

Deputy Brendan Howlin

That is what the Tánaiste has just embarked upon.

Deputy Micheál Martin

There is an element of this-----

Deputy Brendan Howlin

Then he is ascribing base motives.

Deputy Micheál Martin

-----if we are honest.

Deputy Brendan Howlin

The Tánaiste either is or he is not.

Deputy Micheál Martin

The Deputy suggested that the Defence Forces would have a lesser code of conduct than even the Civil Service. The apolitical nature of the public service has been critical to the success of the State. We do not want to be where other states have ended up. In the modern era-----

Deputy Brendan Howlin

But nobody is suggesting that.

Deputy Micheál Martin

The Deputy should let me make my few points generally about why this necessary, or at least a framework around it is necessary. Let us not pretend we can be all things to all people. We cannot be. People are generally saying we agree with some code-----

Deputy Brendan Howlin

The Tánaiste should answer the questions rather than make charges about people.

Deputy Micheál Martin

I am giving the backdrop to this.

Deputy Brendan Howlin

I am not trying to be all things to all people.

Deputy Micheál Martin

I am trying to tease out what page everybody is on. People are generally saying they agree there should be some code of conduct, but then we are querying it and saying perhaps there should not be. I was just taken a bit aback by the casual references to the public service and the Civil Service. It is one of the great strengths and we would lose it at our peril in terms of the conduct, formulation and development of policy. The same principles apply to our Defence Forces.

In a world where there are hybrid attacks and all sorts of infiltration going on, and all sorts of forces out there to undermine democracy, we do need to be careful and to have firewalls around our democracy. While we do not want in any way to suppress people's basic rights, we must be somewhat careful and have ground rules that apply to the Defence Forces and parameters set in respect of behaviour. That needs to be said as well and put on the record.

The Defence Act 1954 always contained restrictions on the involvement of members in political activities. This is not new and we should not give the impression that it is new. That is clearly reflected in the oath taken by all members of the Defence Forces when they join.

The Defence (Amendment) Act 1990, which provided for the establishment of the military representative associations, which was an advance for its time, clearly sets out the purpose of an association, which in general terms is to represent their members on matters concerning remuneration, terms and conditions. The strong military advice we have received is that provisions along the lines set out in both sections 11 and 23 are appropriate and necessary. It should be noted that similar restrictions already operate across the wider public service. There is a code and there have been numerous circulars to that effect, as the Deputy knows, as a former Minister for Public Expenditure and Reform.

We dealt with the text of section 11, which clarifies that it will operate without prejudice to the rights of individual Defence Force members to engage with or be represented by their representative associations. We have made that clear in the text.

Section 23 includes a similar clarification relating to the operation of the representative associations. Having reflected on the matter, having considered the views of stakeholders, and having regard to the military advice on the matter, I am generally of the view that the provisions are necessary and proportionate.

I am prepared to look at the views on the inclusion of "Government policy" and to come back on Report Stage with an amendment. I take on board what people have said on the inclusion of "a political matter". The issue with the defence representative bodies is that of course they will continue their representative function of behalf of the interests of their members, but it has never been the case up to now that they should have a broad-brush position, as it were, on every single issue in the country. That is the distinction we are trying to draw.

Deputy Matt Carthy

I am disappointed that the Tánaiste is suggesting our motives are to be bloody popular or whatever the case may be. The nature of politics is that when you agree with someone, of course you are popular with them but-----

Deputy Micheál Martin

The nature of politics is to be popular. I include myself in that by the way.

Deputy Matt Carthy

Here is the point. There was a time in this House when if Members suggested there should be representative organisations at all for the Defence Forces, they would be told they were being whatever the term for "populist" was in the 1950s or 1960s. They would have been told that if somebody was to suggest they should have an entitlement to affiliate with ICTU. There is always an evolution in these matters. The difficulty I have with section 2A..g)(i) and (ii) on page 28 is that in some ways it is contradictory. It starts with the words "without prejudice to the purpose of an association of representing members", but it then goes on to say that an association shall not "make…statement[s] or comment concerning a political matter or matter of Government policy" and likewise in terms of encouraging members. I am open to an alternative wording for "political matter". It and "Government policy" could-----

Deputy Micheál Martin

To which page is the Deputy referring?

Deputy Matt Carthy

It is page 28. It is in respect of amendments-----

Deputy Micheál Martin

Which paragraph?

Deputy Matt Carthy

It is paragraphs (g)(i) and (ii).

Deputy Micheál Martin

Okay.

Deputy Matt Carthy

We are saying, on the one hand, that of course the associations have a right to represent their members and nothing we do here will prejudice that but, on the other, they shall not engage in making a public statement or comment on Government policy. Some areas of that are quite clear, and do not require any adjudication, for example, if representative organisations are making an appeal to the Government in respect of terms and conditions of their members. We accept that will clearly be allowed under this section, but where it becomes more difficult is if members speak on other issues of concern to them. I met some members of the Defence Forces at the PDFORRA conference who live on the Curragh. They are crippled with the cost of rent and they cannot get housing. They want to see Government policy change and revert back to the provision of housing for members, among other issues. That area becomes a little cloudier. It would arguably be-----

Deputy Micheál Martin

Would that not be very clearly a matter for the representative associations?

Deputy Matt Carthy

That is what I am saying. It is a little less so than their direct terms and conditions.

Deputy Micheál Martin

No.

Deputy Matt Carthy

However, if they are also then talking about childcare costs, taxation policy and regional development policy – all issues that impact on their members – one can see how it can move to a space where there could be an argument then in respect of this piece of legislation. I do think the core issues are the references to "Government policy" and "political matters". The Tánaiste's intention in the Bill is served by "political matters". The addition of "Government policy" creates unnecessary confusion and ambiguity.

Deputy Micheál Martin

Through the Chair, I wish to ask the Members opposite for clarity. Let us take paragraph (g)(ii). It states: "without prejudice to the purpose of an association of representing members ... encourage members to engage in public agitation, protest, lobbying or media commentary…concerning a political matter or matter of Government policy". Does the Deputy think that is a problem?

Deputy Matt Carthy

Not the reference to "a political matter" but, yes, in terms of commentary in respect of "Government policy". Let us take, for example, if on budget day-----

Deputy Micheál Martin

No, I am talking about public agitation and protest.

Deputy Matt Carthy

Yes, but it also includes media commentary, including social media. I am taking the section in its totality. For example, on budget day, RTÉ always does a package of vox pops where it gets people from different sectors to give their views on it. Trade unions contact their members and say they should participate in the debate on how the budget has affected members – good, bad or indifferent. There is an argument that under this section if PDFORRA or RACO were to suggest to their members that they should participate in media commentary and give their analysis that they would be in breach of the section. I do not think that is the intention here but the difficulty lies in the wording "Government policy".

I do not think it would necessarily be a political matter in the sense of this legislation but it would very much be commentary on Government policy, and that is where I have a difficulty. That is why our amendments specify the deletion of the two words.

Deputy Micheál Martin

I want to tease out the Deputy's problem before I come back on Report Stage. I think that "engage in public agitation" and "protest" should stay. Normally what happens in this case is that the representative bodies can and do comment on budgets.

Deputy Matt Carthy

The point I am making is that this makes it unclear.

Deputy Micheál Martin

It does not.

Deputy Matt Carthy

It also states they cannot lobby.

Deputy Micheál Martin

The section refers to "without prejudice to" their efforts. "Without prejudice" means they can.

Deputy Matt Carthy

It then becomes-----

Deputy Micheál Martin

It is the other protests.

Deputy Matt Carthy

It comes down to an interpretation as to whether or not what they are saying relates to the purpose of an association in representing members. Does the Tánaiste get the point? I am making the point that there is ambiguity here and it is open to different interpretation.

Deputy Micheál Martin

No. The associations are, generally speaking, the conduit for their members' concerns. They get communicated to the Minister of the day in respect of budgeting matters, pay and conditions or issues affecting the Defence Forces more generally. During the recent statutory inquiry, PDFORRA and RACO came in and gave us their views, which reflected the views of the members of the association. That would apply to accommodation issues, investment in the barracks, the Naval Service and so on. None of that is going to be impacted. I am trying to get an understanding of the Deputy's perspective. I take his point. He is saying that Government policy is one particular point. The intention at the time of the establishment of the association, and I was a Deputy at the time, was very much to give a voice to members in a professional way. The emergence of PDFORRA, RACO and so on has been a success story. It has been a positive.

In the world we live in, there is a balance to be struck between the views and perspectives of members of the Defence Forces, who require a system of articulation, and not allowing our Defence Forces to become a wholly political organisation that is subject to all sorts of influences that might lead to a weakening of discipline and commitment to the State, irrespective of who is in power or which type of government is in place. That is a fairly fundamental point in a democracy. I accept there is an issue around getting the balance right but we are clear that the representative associations must legally be able to represent their members on issues that affect them.

Deputy Matt Carthy

May I make a couple of comments? The amendments to this section and our contributions come from the positions of the representative organisations themselves. They tell us they feel that this has created ambiguity. The Tánaiste mentioned a couple of times the issues around public agitation and protest. To be clear about my own position, if the section read "shall not encourage members to engage in public agitation or protests" and that was the end of the sentence, I would support it. My concern is that it also includes reference to "lobbying or media commentary (including commentary by means of social media) concerning"-----

Deputy Micheál Martin

That is for members.

Deputy Matt Carthy

This is about the RACO and PDFORRA encouraging members. It relates to the purposes of associations. The Bill states that without prejudice to the purposes of representing their members, associations shall not encourage members to engage in public agitation and protest. We all have an understanding that the role of the representative organisations is not the same as other trade unions, which engage in agitation or protest. However, it is part of their role, as I see it, to engage in public commentary around issues that affect their members.

Deputy Micheál Martin

As an association, yes.

Deputy Matt Carthy

They can also encourage their members to do so, if necessary. I have given the example of media commentary. As the Tánaiste knows, when there are issues pertaining or developments happen, the media likes to talk to real people who are affected. Members of the media will approach trade unions, representative organisations and sectoral bodies and ask them to comment on what things might mean for them.

Deputy Micheál Martin

I can clarify the point. There is nothing stopping the defence representative associations, appointed people and officers of the associations to comment on behalf of their members. That is not being stopped. It is about encouraging a widespread campaign.

Deputy Matt Carthy

That is not what the Bill states. It states "encourage members".

Deputy Micheál Martin

Yes, the members. Every member of the Defence Forces is by definition more or less a member of PDFORRA and listed. My point is that the Bill is endeavouring to avoid a situation where a widespread campaign urged people to go and talk to every single TD in a constituency and so on. That is a new and dangerous line that we need to think through carefully before going down that road or we are representing the politicisation of the entirety of the Defence Forces.

Deputy Matt Carthy

The amendments being brought forward are around the language of Government policy, which the Tánaiste has already conceded requires another look.

Deputy Micheál Martin

I am not talking about the lobbying part in that regard. I am talking about campaigning. There is no issue with the defence bodies or the representative associations making commentary. There is no issue there. If we extend that, however, to a full-blooded campaign on a whole range of issues pertaining to political matters, that is a new departure-----

Deputy Matt Carthy

That is not at all what I suggested.

Deputy Micheál Martin

-----the implications of which we need to think through very carefully in the interests of the members themselves. Every member of the Defence Forces has a political view and is entitled to it. Those members probably appreciate the clarity of the current situation in terms of their position. In some respects, a free-for-all scenario could create difficult challenges down the road.

Deputy Brendan Howlin

The Tánaiste said that I am here a while, and I recognise a debating tactic when I see one. He created a straw man so he could knock it down. It is not proper for the Tánaiste to say that I suggested I want to erode an apolitical public service. Nobody suggested that. I am saying that an evolution is happening. I have tabled amendments over the years to allow for association with ICTU, for example,which was regarded as unthinkable. Evolutions happens. There are defence forces in the European Union that have the right to a limited form of strike, for example. These are matters we should at least be able to debate without being accused of undermining the building blocks of our society. I just make that point.

The particular section we are talking about relates to prohibited activities of associations. There is a difference between my amendment and Deputy Carthy's amendment. His amendment seeks to delete solely "or matter of Government policy" whereas mine also intends to delete the reference to "a political matter". It seems to me that any Government policy is, by definition, a political matter in any event. They are one and the same.

From what he said, it seems the Tánaiste is open to a practical solution that will meet the principle of what we are suggesting and be able to reassure the representative associations, which have spoken to us at length about what they believe will best serve their interests by sustaining recruitment, morale and the impetus that the Tánaiste is trying to drive in terms of building a modern and fit-for-purpose Defence Forces and give them a legislative framework to reflect that. I am heartened by his response to my first amendment. He is still thinking about how to reflect in primary law what we are doing here. We are not talking about any code of conduct that can be changed overnight by his signature but about the law of the land. How can we best reflect apolitical Defence Forces, while allowing individual citizens who happen to be members of the Defence Forces to exercise normal rights, albeit in a more restricted way than most citizens because they are in a different category when they wear the uniform? I am seeking an approach that would not be perceived as restrictive in the way that this proposal is seen - and we can tell the Tánaiste this honestly - as overly restrictive by those people we want to support and encourage, and for whom we want to provide a legislative framework in which they can thrive.

An Cathaoirleach

The Tánaiste may have said earlier that he would be willing to reflect upon and look at what appears to be the broadbrush wording of section 2A(1)(g)(ii).

Did the Tánaiste say that he would have another look at that?

Deputy Micheál Martin

I will reflect on the amendments that have been tabled. I want to be honest with the members as well, as I said, around Government policy.

I will make the point that there is an impression garnered about this. The Defence Forces representative associations, to be fair to them, will try to extend. This is progress for them, insofar as it statutorily provides for association with ICTU. This is an advance. This is not changing the goalposts in a negative way in respect of their capacities because Defence Forces regulation S.6, on communication with the media, states, "No public statement or comment concerning a political matter shall be made by the Association." This is already in place. I must stress that to Deputy Carthy. I am not inventing this.

I take the point we are reflecting what has been custom and practice, what has been Defence Forces regulation, which stems from the Defence Forces Act and we are putting that into legislation as an understood norm. No one, up until this legislation being tabled, had really raised this issue with me in the past year and a bit other than we tabled the legislation. People are entitled to respond and come up with their views in respect of that.

The provision, "The Association shall not sponsor or resort to any form of public agitation as a means of furthering claims or for any other purpose whatsoever.", is what currently is in law, in terms of the Defence Forces regulations. There is more there but that covers it. The regulations are quite extensive. Regulation S.6. is there. The legislation has been endeavouring to reflect that while advancing the associate membership of ICTU and making sure that we do not in any way undermine the role of the representative associations in representing their members. That is where we are but I have heard-----

An Cathaoirleach

The point Deputies Carthy and Howlin are making is that "public agitation" that the Tánaiste is repeating is not equivalent to commentary.

Deputy Micheál Martin

On commentary, we have never had a situation in this history of the State where individual members of the Defence Forces comment as members of the Defence Forces on public policy, Government policy or, indeed, political matters generally.

Deputy Brendan Howlin

This is an association, not individual members. The Bill states, "2A. (1) An association shall not—"

Deputy Micheál Martin

Yes, shall not "encourage members".

Deputy Brendan Howlin

An association-----

Deputy Micheál Martin

I referred to Defence Force DFR S.6. On communication with media, etc., where there is a whole section dealing with communication with the media, the regulations state "No public statement or comment concerning political matters shall be made by the Association". As it is, it is quite restrictive.

Deputy Brendan Howlin

Does the Tánaiste think it right that an association, in saying the association should exist, etc., should not make a public statement or comment concerning a political matter or matter of Government policy?

Deputy Micheál Martin

Let us take international relations.

Deputy Brendan Howlin

But-----

Deputy Micheál Martin

It is no less important.

Deputy Brendan Howlin

Of course.

Deputy Micheál Martin

That is a political matter. It is a matter of potential public controversy, for example, Ukraine or the Middle East. Our Defence Forces can be there as peacekeepers in any given scenario in the future, in Africa, in Sahel or wherever. What if public commentary is made, if protests are happening on those political matters, and people are taking positions on them? How does that colour host states or neighbouring partners where we are out in the theatre as peacekeepers?

Deputy Brendan Howlin

Is the way to resolve that issue that we would agree on to put a blanket prohibition on anything that is Government policy?

Deputy Micheál Martin

I am not saying that. I am making the point.

Deputy Brendan Howlin

That is what we are trying to drill down to.

Deputy Micheál Martin

Does the Deputy not see there is merit in what I am saying-----

Deputy Brendan Howlin

Yes.

Deputy Micheál Martin

-----that there is a need for caution here in the degree to which one allows for excessive latitude around this because it could subsequently compromise actions and roles of the Defence Forces?

Deputy Brendan Howlin

But is the response that there can be none?

Deputy Micheál Martin

We know that in domestic politics, people are very concerned about a range of international affairs, and rightly so. That is a part of it. We encourage our people to have a global outlook, a European outlook, etc. If people see a defence force or a significant number taking a position, that could subsequently compromise our engagement in certain theatres where we may be required for peacekeeping or, indeed, humanitarian endeavours. There are legitimate issues here.

I take Deputy Howlin's point. Back to Deputy Carthy's point, no one envisages someone in a school hall being hauled over the coals because his or her children are going to the school and people have gathered to see how can we progress the extension or how can we progress greater resources for the school. No one envisages that being something that people want to outlaw. There is a balance to be struck here and of that I am certain.

Deputy Brendan Howlin

We have not reached it. That is the problem.

Deputy Micheál Martin

Can I come back to the Deputies on it?

An Cathaoirleach

Where do we stand? Does Deputy Cronin wish to contribute at this stage?

Deputy Réada Cronin

No.

Deputy Brendan Howlin

The Tánaiste has indicated that he will reflect on what we have said-----

Deputy Micheál Martin

Yes.

Deputy Brendan Howlin

-----and I will see if he comes back with his own-----

Deputy Micheál Martin

Changes.

Deputy Brendan Howlin

-----that meets what he feels is required.

Deputy Micheál Martin

I will take on board what has been said here and come back with a further amendment.

Deputy Brendan Howlin

On that basis, I will withdraw amendment No. 2.

Amendment, by leave, withdrawn.

Deputy Matt Carthy

I move amendment No. 3:

In page 9, line 11, to delete "or matter of Government policy".

Amendment put and declared lost.

Deputy Brendan Howlin

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".

On the same basis, I will withdraw this amendment with the leave to resubmit it on Report Stage.

Amendment, by leave, withdrawn.

Deputy Matt Carthy

I move amendment No. 5:

In page 9, line 13, to delete "or matter of Government policy".

Amendment put and declared lost.

Section 11 agreed to.

Sections 12 and 13 agreed to.

SECTION 14

An Cathaoirleach

Amendments Nos. 6 and 7 are related and will be discussed together.

Deputy Micheál Martin

I move amendment No. 6:

In page 11, to delete lines 1 to 10 and substitute the following:

"(a) in subsection (1), by the insertion of "subject to subsection (1A)," after "the person's commanding officer or,", and

(b) by the insertion of the following subsection after subsection (1):

“(1A) The Chief of Staff may, where the circumstances so require—

(a) appoint an officer to investigate a charge for the purpose of subsection (1), or

(b) direct the Deputy Chief of Staff (Operations) to appoint an officer for the said purpose.".".

In section 15, we are also proposing amendment No. 7. Sections 14 and 15 of the Bill amend sections 177 and 177A of the Defence Act 1954, which relate to the investigation of disciplinary charges that may be brought against an officer of the Defence Forces. Among other matters, section 177 sets out the persons that may appoint an investigating officer where the relevant commanding officer does not conduct an investigation. Following a review of the text of these sections, it is considered prudent to bring forward these technical amendments to clarify their operation.

Amendment agreed to.

Section 14, as amended, agreed to.

SECTION 15

Deputy Micheál Martin

I move amendment No. 7:

In page 11, to delete lines 14 to 20 and substitute the following:

" "(a) to be investigated under section 177, or".".

Amendment agreed to.

Section 15, as amended, agreed to.

Section 16 agreed to.

NEW SECTION

Deputy Micheál Martin

I move amendment No. 8:

In page 12, between lines 11 and 12, to insert the following:

“Amendment of section 196 of Principal Act

17. Section 196 of the Principal Act is amended, in subsection (1), by the substitution of “The Director” for “The prosecutor”.”.

The director of military prosecutions is responsible for the conduct of any prosecution at a court martial. Section 196(1) of the Defence Act 1954 provides that the prosecutor at a court martial may be represented by counsel. The opportunity is being taken to bring forward this technical amendment to clarify that the reference to the term "prosecutor" in section 196(1) is a reference to the director of military prosecutions and not a reference to any other person.

Amendment agreed to.

Section 17 agreed to.

Sections 18 and 19 agreed to.

SECTION 20

An Cathaoirleach

Amendments Nos. 9 and 14 are related and may be discussed together. Is that agreed? Agreed.

Deputy Micheál Martin

I move amendment No. 9:

In page 14, line 19, to delete “In this section” and substitute “In this section,”.

These are technical amendments to correct minor typographical issues relating to both sections. In page 14, line 19, to delete "In this section" and substitute "In this section,". There is a comma in the second bit. Amendment No. 14 does a similar thing and adds a comma after "In this Schedule".

Amendment agreed to.

An Cathaoirleach

Amendments Nos. 10 to 13, inclusive, are related and may be discussed together. Is that agreed? Agreed.

Deputy Matt Carthy

I move amendment No. 10:

In page 14, line 37, to delete “and” where it secondly occurs.

From our perspective, amendment No. 11 is the substantive one. It relates to an issue that was discussed widely, as the Tánaiste will be aware. I refer to the external oversight body. It is a concern that was widely relayed during the pre-legislative scrutiny that the external oversight body has to be the basis of providing all stakeholders with the reassurance that the entire defence community is taken seriously and is operating on the basis that all voices are heard at the same level.

The approach of providing scope for the Secretary General of the Department to attend the external oversight body as an ex officio member has drawn criticism from representative organisations, such as the Women of Honour group and the International Centre for Mediation in Armed Forces, ICMAF, which is based in Geneva. If it is an external body, then the Secretary General should not be on it, or if the Secretary General is to be on it, they should be accompanied by the secretaries general of the representative organisations. The amendment we have brought forward is to the latter effect, that the representative associations be represented through their secretaries general on the same basis as the Secretary General of the Department, in an ex officio manner. To us, that is the fairest solution.

I see Deputy Howlin has an alternative, which is to not have the Secretary General of the Department of Defence. We would consider that to be acceptable also but I do not think we can have it both ways, where we have an external oversight body with the Department represented at the highest level and that not being the case for the representative bodies. We have been speaking quite extensively about the challenges our Defence Forces are facing. We are at fewer than 7,500 members across all three strands of the Defence Forces. It is virtually at crisis levels. Despite all of the positive developments, the situation is not getting any better. More people are leaving every year than are joining. That is a fact in terms of where our Defence Forces are at present.

We are not reaching the required level of investment envisaged under the level of ambition of the Commission on the Defence Forces. There is a scenario where we do not have the ability to adequately monitor our skies and seas. We have a situation where we have withdrawn from what I consider to be one of the most important UN peacekeeping missions on the planet today, in the Golan Heights. This is all because of the capacity of our Defence Forces.

We need to get these things, including the external oversight body, right. Therefore, I urge the Minister to accept these amendments. It was probably the biggest single issue that took up the most time during the pre-legislative scrutiny and with all our engagements with representative organisations. I fear that moving along on this basis will undo the goodwill, potential and capacity that we have had since the publication of the report of the Commission on the Defence Forces when there was a sense that things might change and that there would be a new relationship between the ordinary rank and file members and the commissioned officers, with the Department and Defence Forces management. This was the opportunity to get all of these things right.

Amendment No. 11 allows the representative organisations to be included. If the Minister does not accept this amendment, we will support Deputy Howlin's amendment which is that the Secretary General of the Department of Defence should not be represented on that body.

An Cathaoirleach

Before inviting the Minister to respond, I ask Deputy Howlin speak on amendment. No. 12.

Deputy Brendan Howlin

In my contribution on Second Stage, I said that I have not heard any articulation of a coherent reason the Secretary General should be a member of the oversight body. The oversight body is the most important proposal in this legislation. It is the fundamental anchor of the legislation in terms of what it can do for the Defence Forces into the future. I have not been heavily involved in the discussions in relation to this matter but I was deeply involved in the establishment of the Policing Authority. I looked at external bodies that did that. The absolute consensus was that we needed an external oversight body for policing in Ireland. The notion of the Secretary General of the Department of Justice did not arise in that context. It did not present itself as appropriate. Perhaps I have lost or have not been alerted a coherent reason to include the Secretary General of the Department in this oversight view. It almost goes back to my original amendment, that it has to be pulled back to the Department all the time. I would like an independent oversight body that is not linked to the Department. Obviously, it would liaise with the Department and have a representative of the Department but the Secretary General should not be an ex officio member of it. That would be a better structure to achieve the objectives I think we all agree need to be achieved. I would like to hear the rationale from the Tánaiste. Why is it included? Is it simply a proposal from the Department that the Secretary General should be an ex officio member at the heart of this oversight of our Defence Forces?

Deputy Micheál Martin

First of all, the independent review group, of which Ms Bronagh O'Hanlon was chairperson, did a year-long assessment and investigation of abuse within the Defence Forces. Her report was fairly damning, if we are to be honest. At the time in the House, members of the Opposition were unanimous in saying to me that I must accept the recommendations of the independent review group. In advance of the report of the independent review group being published, many members of the Opposition asked me whether I would accept all the recommendations prior to receiving them. I did accept all of the recommendations - and we are implementing them - including the establishment of an external oversight body, which was recommended by the independent review group to include the Secretary General of the Department.

I assessed that. When I met the chair and members of the independent review group, they were absolutely adamant that it had to be external to the Defence Forces. They felt reform would not happen if it was a more of a representative body than an external oversight body. They felt that if members of the Defence Forces were on it, it would no longer be an external oversight body, but more of a representational body and people would be there to represent interests or their members.

Deputy Brendan Howlin

That is my point.

Deputy Micheál Martin

From my point of view - and the Deputy is also a former Minister - if an external oversight body wants to effect change, it has to engage with the Secretary General and ultimately with me as Minister. What is happening is that it is charged with producing reports. I have no hand, act or part in those reports.

Deputy Brendan Howlin

Of course you have if the Secretary General is a member.

Deputy Micheál Martin

No, I do not actually. I do not ring up the chair, Brian MacCraith, which I could. He worked with me previously on the implementation board for vaccines during the Covid-19 pandemic. However, with respect to the effective working through of proposals, efficacy and such things, there is a logic as to why the Secretary General is on it. I can see why the judge made that recommendation. I accepted all the recommendations made in the independent review group's, IRG, report. There is a logic to the practical working out of how the external oversight body works, from experience. If it was totally cut off, it could potentially lack impact. The whole purpose is to transform the culture in the Defence Forces and a lot of good work is now happening in that respect, although many people in the Defence Forces had different views on the O'Hanlon report. We certainly picked up some level of disagreement or resistance, not from the Chief of Staff or anyone at that level, but certainly from time to time when communicating with people there was a sense that this was not the Defence Forces they recognised. There was a reflection of that during the Seanad debate in particular, which reinforced, in my view, the need for an external oversight body, which can, without prejudice, make recommendations to be implemented by a Minister.

Deputy Brendan Howlin

I am fully in agreement with the Minister. It needs to be an external oversight body that is not spancelled or conditioned in any way. That is why an argument can be made for excluding members of the Defence Forces because we do not want there to be lobbyists within it. However, I see the Secretary General as a lobbyist within it, who could condition the outcome. The Tánaiste made a strong point that engagement will be needed ex post facto with the recommendations, with the Secretary General and the line Minister. However, we are not talking about that. We are talking about the formulation of the strategy, the reports and recommendations internally and having the Secretary General, in other words, the representative of the Department, at the heart of that. The Minister for Defence is the corporation sole. The Department and the Secretary General is the Minister's agent, no matter how it is sliced and diced. That is a mistake in terms of having the type of independent oversight body that would be most effective. That is my submission.

Deputy David Stanton

I will not die in a ditch over this, but the issue I have is that an external oversight body has to in some way criticise the Department. Does it make things awkward for the members if the head of the Department is sitting on it? Would the Secretary General be naturally defensive of what his or her Department is doing? I noticed the report mentioned by the Tánaiste states that the oversight body might report to the Oireachtas as well as holding its own sessions with the Defence Forces Chief of Staff in a mix of public and closed sessions. Would a compromise be a situation where the Secretary General is not an ex officio member but could be invited by the group as needed or the Secretary General could make a request to address a meeting of the group? Otherwise, if he or she is there all the time as a member and the group wants to criticise the Department, it could lead to a conflict of interest. Should the Secretary General leave the room if the group is going to criticise the Department, as happens in many meetings? We need to tease out these awkward questions. The Tánaiste might have another rationale here. There is nothing to stop the oversight group meeting the Secretary General and reporting, debating and discussing following its internal deliberations, as an oversight body. That might be a compromise the Tánaiste might wish to consider.

Deputy Réada Cronin

I have also spoken to the Tánaiste about the Secretary General being an ex officio member. We had great engagement with the external oversight group when it was before the committee, as we did with the other stakeholders. The Tánaiste says he wants the Secretary General to be there as some kind of conduit between the Minister for Defence and the external oversight group. That is his reasoning. He already said that RACO, PDFORRA and the Reserve Defence Force Representative Association, RDFRA, are professional bodies he respects. If the Secretary General is there in an ex officio capacity, they should be as well. Why can they not be there as a conduit to their members? Their involvement might increase buy-in from members of the Defence Forces for the recommendations made by the group. It would also show them some respect. We have spoken about this before.

Deputy Cathal Berry

We say this with full respect. We are fully on board with genuine external oversight. We welcome it. It is a good structure to have in place, but we want it to be a success and for the new body to be an exemplar of good governance by its very existence. We feel - and the Tánaiste will detect that there is unanimity on this - that having someone who is merging the executive function with an oversight function is not good practice. It is called an external oversight body for good reason. The clue is in the name. It is not an internal executive function board. We think there should be a clear separation between the oversight function and the executive function.

I do not want to double up on comments that have already been made, but I will use the example of the Garda board. The new Policing, Security and Community Safety Act 2024 established a board and there is no Secretary General, for instance from the Department of Justice, on that board. To back up Deputy Stanton, he suggested an excellent mechanism. It has already been proposed for the Chief of Staff and would achieve what the Tánaiste is trying to achieve while still allowing for the separation. If the Secretary General wishes or needs to interact with the external oversight board in any shape or form, she or he - whoever it is at the time - could adopt the same mechanisms as the Chief of Staff. That is a reasonable proposal. It achieves precisely what the Tánaiste intends to achieve, but also allows for separation, which is very important.

Deputy Micheál Martin

I recall Deputy Cronin's horror at the outcome of the IRG's report when it was published. I met the chair of the independent review group into the allegations that were made. We met the judge and a number of members who were absolutely adamant that it be external to the Defence Forces. This is an external oversight body over the Defence Forces, not necessarily over the Department. That is an important demarkation to draw. Unfortunately, it is with regret but that is the case. It was set up by Deputy Coveney who was Minister for Defence at the time. It took more than a year and drew serious, devastating conclusions. The members were adamant to us that they felt previous attempts at this had failed and their view is that they failed because they were not external and a variety of representative groups were included.

That is the view of the independent review group; it is not my view. They could not articulate the view strongly enough to me that it had to be external. It was that group which recommended that the Secretary General be on it. I have not deviated from the recommendations of the report, and I have implemented them faithfully.

Deputy Berry has very sincere opinions on this matter as well. There seems to be a view that there is somehow almost a competition between the Defence Forces and the Department here. That is not the prism through which I look at this at all. It is not a pecking order between the Secretary General or the Chief of Staff, or between civil servants and members of the Defence Forces representative bodies. That is not the prism through which I look at it. I look at this in the context of the independent review group’s recommendations. I also look at it in terms of how we keep faith with those recommendations and how we give this legislation a decent shot at effecting significant change which will ensure that the kind of allegations that emerged will not emerge again and that the type of conclusions the independent review group reached will not be reached in the future. I am focused on how we can deal with what happened and make reforms and changes that will be impactful.

From a basic knowledge perspective and an understanding of how organisations work, I can see the merit of having a Secretary General on the oversight body. As we discussed earlier, the Garda Commissioner has a reporting right through to the Secretary General of the Department of Justice. That is not the situation in the Department of Defence, insofar as the Chief of Staff is the adviser to the Minister, as we discussed, under the 1954 Act. Is it not like for like entirely with regard to the structures around policing and the Defence Forces. We will deal with that in more comprehensive terms in the legislation that is to come on the CHOD and so on. I favour strong and more simple or clear lines of responsibility and accountability, and, in some respects, empowering the head of the Defence Forces in the context of having the full gamut of responsibilities. I understand what the Deputies are saying. I can see it from their perspective. However, what is clearly imprinted on my mind is the meeting I had. Those present were adamant that it had to be external to the Defence Forces.

Deputy Brendan Howlin

I am fully in agreement that it has to be external. That is why I want to go the whole hog, not two thirds of the way, by excluding the Secretary General. The role of the Chief of Staff will be redefined, if I understand the Tánaiste’s response to my first amendment.

Deputy Micheál Martin

Yes. Not just the Chief of Staff-----

Deputy Brendan Howlin

No, but make the role of the Chief of Staff more analogous to the Commissioner of An Garda Síochána. I am only guessing that he or she would report directly to the Tánaiste and would be responsible for the Vote, the deployment for resources and so on in a way whereby there would be a separation of the fiscal role of the Department and the functional administrative role of the Chief of Staff.

The Tánaiste stated clearly that he wants the oversight board to be free to make any recommendation it wants and to be independent completely. If, however, some of its recommendations touch upon resourcing or past policy or might adversely reflect on the Department or the Minister, having the Secretary General involved must surely have an impact on such deliberations and must temper the independence of the board in the context of its capacity to make those decisions. That is why I make the case I am making. It would sit better in the context of what the Tánaiste is talking about in the restructuring of the administrative relationship of the Army for the oversight board be 100% independent.

The only reason the Tánaiste has really given for what is happening is that it is in the recommendations, which is fine. However, those recommendations are couched in the reality of what the structure is now. In the context of what he is talking about, it is a new structure. I think there is merit in what I am suggesting. Would the Tánaiste even agree to reflect upon it between now and Report Stage?

Deputy Micheál Martin

I will.

Deputy Matt Carthy

Notwithstanding anything that has been said, I do not think we can look at this legislation or leave what many of us consider an anomaly in it the expectation that other legislation to address this matter will be brought forward in the future. In fact, the current position reinforces the problematic nature of what is being proposed because it is the Secretary General who is the Accounting Officer for the Defence Forces. In other words, this is the person who is accountable for the expenditure. The external oversight body has to either be a step removed from that or it has to be all-inclusive. The prudent thing at this point is to ensure that the external oversight body is either, as I said, inclusive or is not seen to be skewed towards the Department through the adoption of either of these amendments. That is what is required.

Deputy Micheál Martin

Deputy Carthy stated, and I might have mentioned it earlier, that this is not a competition between the Defence Forces and the Department.

Deputy Brendan Howlin

Nobody is suggesting that.

Deputy Micheál Martin

But there is a sense of it. Do not worry. It is being suggested. Maybe not here, but it is in the background and in the ether. We all live in the real world and that is there. Deputy Carthy did kind of suggest it just now.

What I am trying to say is that this is not about Exchequer resources. It is about cultural transformation of our Defence Forces as defined by the independent review group and the need for an external oversight body to give effect to that.

Deputy Brendan Howlin

What about resourcing, for example?

Deputy Micheál Martin

Resourcing is not the issue with the Defence Forces. Let us call a spade a spade. If the Deputy goes through that report, he will see that it is not an issue of resourcing. We need to be clear what we are dealing with here, as identified by the independent review group. I look back on the Dáil debate prior to the publication of the report. All the pressure on me was to make sure I implement the recommendations and I was asked whether I would implement them.

Deputy Réada Cronin

The Tánaiste did not accept all the recommendations.

Deputy Micheál Martin

I did. We have gone through all of them.

Deputy Réada Cronin

You did not accept the ones relating to the Air Corps or the hazardous chemicals.

Deputy Micheál Martin

We have. That is in the statutory tribunal. The issue with toxic chemicals in Baldonnell is covered by the terms of reference of the tribunal. We have followed through on all of the recommendations.

Everyone was lambasting me in advance-----

Deputy Réada Cronin

I am sure you did not.

Deputy Micheál Martin

-----and asking whether I would accept the recommendations. When the report was published, I was again asked if I would accept them and I said that I would. I have done so, including this particular one.

What I am trying to get across is that the fundamental purpose of the external oversight body is to try to deal with the issues that were raised by the independent review group. It is arguable that it is dealing with them. This relates to the complaint system, command-and-control mechanisms and how the organisation deals with issues. To be fair, there is much work going on within the Defence Forces to try to deal with these issues, introduce changes and make progress. That is happening, and the Chief of Staff is leading the process commendably. The external oversight body has already met 25 times. I met with the chair, Brian MacCraith. He and the body have full authority to come back to me with whatever they wish to propose or with what they identify as needing to be changed. The Secretary General has been at all of those meetings. The body is functioning effectively. I do not see the Secretary General being a member as a major undermining of the role of the oversight body at all, and there is no sense that this is the case. Look at the membership of the body. They are all very capable people who have been at very senior positions in either the public or private sector for quite a long time. They are not the kind of people who will be unduly influenced – or influenced at all – by any one particular civil servant or Secretary General.

I say that given their experience and the brief they have in terms of effecting change or making recommendations that will create change for the better in respect of the Defence Forces being a place and a workplace of dignity, respect and safety. That is the objective.

Deputy Howlin asked me if I would reflect. I always reflect. I will take on board what members have said. We can return to this on Report Stage. I have heard what Deputy Stanton has said. I think he was suggesting some hybrid sort of solution. I will have a look at it and come back.

Deputy Cathal Berry

I am very encouraged by what the Tánaiste has said. I agree with him about Deputy Stanton's solution. I know the Deputy has introduced it as a kind of compromise solution, but I think it is actually a superior solution rather than a compromise one. It allows the board to have access to the expertise of the Secretary General but keeps that separation between the board and the Secretary General as well. That is a viable proposal and I am fully in favour of it.

Amendment put and declared lost.

Deputy Réada Cronin

I move amendment No 11:

In page 14, between lines 37 and 38, to insert the following:

“(c) the Secretaries General of those military representative associations authorised by the Minister as per subsection (3A) of the Defence (Amendment) Act 1990 (inserted by section 23(a)(iii) of the Defence (Amendment) Act 2024) who shall be ex officio members, and”.

Amendment put:

The Committee divided: Tá, 3; Níl, 4.

Tá

• Berry, Cathal.
• Clarke, Sorca.
• Cronin, Réada.

Níl

• Flanagan, Charles.
• Griffin, Brendan.
• Martin, Micheál.
• Stanton, David.

Amendment declared lost.

Amendment No. 12 not moved.

Section 20 agreed to.

SECTION 21

Deputy Brendan Howlin

I move amendment No 13:

In page 25, line 32, to delete “other than the Secretary General”.

I will withdraw this amendment on the basis that I will resubmit it on Report Stage and we will deal with it then.

An Cathaoirleach

That is accepted and noted.

Amendment, by leave, withdrawn.

Deputy Micheál Martin

I move amendment No. 14:

In page 26, line 42, to delete "In this Schedule" and substitute "In this Schedule,".

Amendment agreed to.

Section 21, as amended, agreed to.

Section 22 agreed to.

SECTION 23

An Cathaoirleach

Amendments Nos. 15 to 17, inclusive are related. Amendments Nos. 16 and 17 are physical alternatives to amendment No. 15. Amendments Nos. 15 to 17, inclusive, will be discussed together.

Deputy Brendan Howlin

I move amendment No. 15:

In page 27, to delete lines 11 to 36, and in page 28, to delete lines 1 to 5 and substitute the following:

"(ii) by the deletion of subsection (3),

and".

This proposes the deletion of subsection (3),which means proposed wording such as the following would not be included in the Bill:

Where the Minister, having considered the representations, if any, made in accordance with the notice given under section 23(3C), decides to vary or withdraw an authorisation, the Minister shall give the association notice in writing of the decision

The intention of the amendment is to delete the subsection.

Deputy Micheál Martin

We discussed this earlier in another context. The suite of amendments to the Defence Act 1997 in section 23 provides a statutory basis for the Minister for Defence to authorise Permanent Defence Force representative associations to associate with the Irish Congress for Trade Unions. The amendments proposed by the Deputies would remove the mechanism by which associate membership of ICTU would be approved and so would undermine the core policy intention of this section of the Bill. There is a need for clear statutory provisions to govern the manner in which military representative associations are connected with bodies outside the Defence Forces. This is particularly because of the unique apolitical nature of the Defence Forces and the necessary roles they are required by government to perform. We discussed this earlier and I said I would come back in certain respects.

Deputy Brendan Howlin

The amendment proposes to delete a lot of section 23, one subsection of which states: "[t]he Minister may, notwithstanding subsection (3), authorise in writing an association to be associated with a trade union or any other body outside of the Defence Forces". It is extraordinary. I read it out in detail on Second Stage. When we read it out it is extraordinarily prescriptive in terms of what can be done. I suggest we delete it. The Minister says it sets out how the association is to interact with ICTU. I have not sought to amend it but rather simply to delete it because I regard it as so spancelling as we read it. Has the Tánaiste any view subsequent to debate on Second Stage to make it less so?

Deputy Cathal Berry

It is superfluous.

Deputy Micheál Martin

The context is progress. For the first time ever Defence Forces representatives-----

Deputy Brendan Howlin

My father was a trade union official.

Deputy Micheál Martin

So was mine. Well, not an official but a shop steward.

Deputy Brendan Howlin

If you ask trade union officials what they want, the answer is "more".

Deputy Micheál Martin

That is why my father founded an alternative union. He was a founding member of the National Busmen's Union. The Deputy will understand they wanted more and they did not think they were getting enough in the existing trade union. Someone else told me they were active people who wanted to keep active but that is a different question.

The point I am trying to make, all things in a more serious vein, is that this will facilitate the attendance of military representative associations at future national pay talks. It is very positive step forward. Deleting the entire subsection (3) might go too far in the other direction.

Deputy Brendan Howlin

If we read it, it sounds as though we are allowing it to be a trade union after a fashion-----

Deputy Micheál Martin

But we have to give effect to it.

Deputy Brendan Howlin

Yes but the Minister may, notwithstanding the authorisation, authorise an association to be associated with a trade union or any other body outside of the Defence Forces in such cases, in such manner and subject to such conditions or restrictions as he or she may specify. They can organise but in such a way, and in such fashion and subject to it. The section goes on to state the authorisation can be withdrawn by simply writing a letter stating the authorisation is withdrawn. It is extraordinary when we read it out, as I did on Second Stage. It is an extraordinarily restrictive set of proposals.

Deputy Cathal Berry

It could just state,: "With the consent of the Minister".

Deputy Brendan Howlin

Will the Tánaiste even consider making the language less restrictive?

Deputy Micheál Martin

I will have a look at it for Report Stage.

Deputy Réada Cronin

I spoke to the Tánaiste on Second Stage about my next point. I am referring to the scrapping of the plan to place an unprecedented bar on the director of military prosecutions and military judges from being members of a representative association. It is unprecedented anywhere in the Civil Service or the public service. The independent arbitrator has already adjudicated against this proposition.

Deputy Micheál Martin

That is no longer part of the Bill. I have withdrawn it. I wrote to the committee on this matter.

Deputy Cathal Berry

It is not in the most recent draft of the Bill.

Deputy Brendan Howlin

It is not in the final draft of the Bill.

Deputy Micheál Martin

I withdrew it. I basically took on board what people were saying in respect of the military judges and prosecutors.

Deputy Réada Cronin

Okay. That is withdrawn. I thank the Tánaiste.

Deputy Brendan Howlin

I withdraw the amendment. I will wait for the Tánaiste to come back on Report Stage with his own amendment and retain the right to resubmit mine just in case.

Amendment, by leave, withdrawn.

Deputy Réada Cronin

I move amendment No. 16:

In page 27, between lines 13 and 14, to insert the following:

“(iii) by the insertion of the following subsection after subsection (7):

“(8) The Minister shall not seek to prohibit any person from being a member of a representative association on the basis of the post they hold.”,”.

I withdraw the amendment and reserve the right to resubmit it on Report Stage.

Amendment, by leave, withdrawn.

Deputy Réada Cronin

I move amendment No. 17:

In page 27, to delete lines 15 to 36, and in page 28, to delete lines 1 to 5.

I also withdraw this amendment but retain the right to resubmit it on Report Stage.

Amendment, by leave, withdrawn.

Deputy Brendan Howlin

I move amendment No. 18:

In page 28, line 25, after “members” to insert “as provided for by this subsection”.

This is just a technical amendment. Our own drafter said this amendment is to add "as provided for by this subsection".

Deputy Micheál Martin

I will have a look at it and maybe I will come back to the Deputy on Report Stage. It is only technical and I do not have issues with it.

Deputy Brendan Howlin

Okay. I ask the Tánaiste to have a look at my amendment. I will withdraw it on that basis.

Amendment, by leave, withdrawn.

Deputy Brendan Howlin

I move amendment No. 19:

In page 28, lines 26 and 27, to delete “concerning a political matter or matter of Government policy” and substitute “concerning a matter of political controversy”.

We discussed this at length. I withdraw it subject to the Tánaiste coming back with his own proposals and retain the right to resubmit it on Report Stage.

Amendment, by leave, withdrawn.

Deputy Réada Cronin

I move amendment No. 20:

In page 28, line 27, to delete “or matter of Government policy”.

Amendment put and declared lost.

Deputy Brendan Howlin

I move amendment No. 21:

In page 28, lines 30 and 31, to delete “concerning a political matter or matter of Government policy” and substitute “concerning a matter of political controversy”.

I withdraw this amendment based on retaining the right to resubmit it on Report Stage.

Amendment, by leave, withdrawn.

Deputy Réada Cronin

I move amendment No. 22:

In page 28, lines 30 and 31, to delete “or matter of Government policy”.

Amendment put and declared lost.

Section 23 agreed to.

Section 24 agreed to.

Title agreed to.

Bill reported with amendment.

An Cathaoirleach

That completes our deliberations. The Bill has now been considered and the debate on and discussion of the amendments completed in accordance with Standing Order 101. I thank the Tánaiste and his officials for attending. I thank the members of the committee and all those who submitted amendments for their active participation.

Deputy Micheál Martin

I thank the Cathaoirleach and the members of the committee. I thought that was an interesting discussion. There is room for reflection. I thank the committee very much indeed.