I welcome the Minister for Defence, Deputy Michael Smith, and his officials to the meeting.
I welcome the Minister for Defence, Deputy Michael Smith, and his officials to the meeting.
I move amendment No. 1:
In page 3, subsection (1), lines 15 to 21, to delete all words from and including"paragraphs” in line 15 down to and including “operation;” in line 21 and substitute the following:
"paragraph (a), (b) or (c) of section 6(1) or paragraph (a), (b) or (c) of section 6(2), or
(b) a failure by or on behalf of a person referred to in paragraph (a), (b) or (c) of section 6(1) or paragraph (a), (b) or (c) of section 6(2) to carry out an act or make a decision,
but does not include an act or decision referred to in paragraph (a) or a failure to carry out an act or make a decision referred to in paragraph (b) that relates to or affects security or a military operation;”.
The definition of "action" is being technically amended in the interests of overall textual clarity and legal drafting conventions. In addition, specific reference is now being made to the exclusion from the definition of "action" of any "act or decision referred to ... that relates to or affects security or a military operation". The original definition had omitted to mention "security" and referred only to "military operation".
The definition of "military operation" was very broad in the first draft of the Bill. It has now been specifically confined by way of the addition of "security". There is no argument about this amendment. It makes the legislation better overall and makes it tighter in respect of military operations, thus giving the ombudsman more room in which to operate.
I move No. 2:
In page 4, subsection (1), between lines 3 and 4, to insert the following:
"‘investigation officer' has the meaning assigned to it by section 15;”.
This is a technical amendment rectifying a textual omission in the definitions.
I move No. 3:
In page 4, subsection (1), lines 5 to 10, to delete paragraphs (a) to (c) and substitute the following:
"(a) active service within the meaning of section 5 of the Act of 1954,
(b) active service as provided for in section 4(1) of the Defence (Amendment) (No. 2) Act 1960,
(c) operational duties at sea, or
(d) the provision of aid to the civil power;”.
This is a very important and significant amendment, which I touched on in respect of amendment No. 1. It is an important point of principle that military operations, in the ordinary layman's understanding of that term, should be excluded from the ambit of the ombudsman. PDFORRA accepts this. However, it expressed serious concern that the definition of the term "military operation" as originally provided in the Bill would be potentially open-ended in practice. In other words, regardless of intent, the actual definition could be interpreted to encompass virtually any activity undertaken by the Defence Forces, including even routine, mundane matters of administration. I have decided, therefore, to revisit the definition of "military operation" in the Bill as published in direct response to the concerns expressed by PDFORRA.
This entirely new definition proposed in the amendment greatly restricts the application of the term "military operation" by means of a very precise definition. The term should only encompass real-life military operations in the field. The amendment reflects this quite clearly. The term would now apply only to a very limited set of circumstances, such as active military service within the State, aid to the civil power, UN peacekeeping abroad, etc., by reference to legal definitions of these activities elsewhere. The effect of the amendment will be to ensure that the remit of the ombudsman is maximised to the greatest practical extent. For instance, any complaint relating to the military exercise would now fall within the remit of the ombudsman.
It is to be emphasised that the ombudsman will independently assess whether any action complained of relates to or affects security or a military operation. That an action complained of may have occurred in the course of a military operation in the sensitive timeframe does not imply in any way that the ombudsman is necessarily excluded from the investigation. I am glad to have been able to respond positively to the PDFORRA submission in this regard.
I move amendment No. 4:
In page 5, subsection (5), lines 4 to 7, to delete all words from and including "for" in line 4 down to and including "term" in line 7 and substitute the following:
"for a term of 7 years and may be re-appointed once only to that office for a second term".
We mentioned this issue on Second Stage. Subsection (5), as it stands, gives more than usual power and influence to the Government, particularly the Minister. Other ombudsman Acts do not do so. The Ombudsman Act 1980 refers to a period of six years. The same period applies to the pensions ombudsman and the Ombudsman for Children. However, this Bill is not specific enough in this regard. It states the ombudsman shall hold office for a term not exceeding seven years. This means the Minister could dismiss the ombudsman after two, three or four years if he felt like it. Why do we not have the same stipulations and regulations as pertain to the other three ombudsmen and give the defence ombudsman a fixed term of office of five, six or seven years? Why does the Minister feel he has to depart from the practices in other Bills? We are proposing a term of seven years. A Secretary General, for instance, is appointed for this period. Second, the ombudsman may be reappointed again and again. The amendment provides for a reappointment for a second term because the ombudsman could become part of the establishment and would not be as effective if filling consecutive terms in office. The thinking behind the amendment is to make the office more stable and to ensure appointments are made for a definite period and one subsequent term.
Deputy McGinley should be more optimistic regarding an alternative Government and perhaps he will have an opportunity in three or four years to do the job he is afraid I might do. The amendment would restrict the appointment of a person to the office of Defence Forces ombudsman. First, a person could be appointed for an initial fixed term of seven years only and could be reappointed for only one subsequent term. The amendment suggests this term should be also fixed for seven years. The legislation was drafted to allow considerable flexibility regarding potential appointees. It transfers the fixing of a term of an initial appointment in secondary regulations, subject to the criterion that the initial term of appointment cannot exceed seven years. There is provision, thereafter, for second and, possibly, subsequent terms again with the duration of subsequent appointments to be made by regulation.
It is bad practice to insert restrictions on appointments such as this in primary legislation. The amendment provides for a seven year term. This is a new development. We do not know how busy the ombudsman will be and to restrict oneself from having the freedom to appoint somebody eminently suitable for the post and who would like to do it for three or four years would be wrong.
The amendment's provision regarding reappointments is too confined. There is no ulterior motive involved and I do not know who will be appointed to the post. Somebody might say that if he or she was not tied down to seven years, he or she might take the post for two years, for example. Whoever is appointed should be experienced and have a good understanding of military activities, which are different from most everyday activities. The intention is to create flexibility.
This is not a new departure, although it may set a precedent for the Department of Defence. There are three other instances, however, where the ombudsman is appointed for a specified period under legislation. The experience has been positive in other Departments but I do not know if there are grounds to be fearful that the appointment of the Defence Forces ombudsman will be different.
I would bend over backwards to agree if I thought it was the sensible thing to do but I will re-examine the provision between now and Report Stage without making a commitment in this regard.
I move amendment No. 5:
In page 6, subsection (2), lines 38 to 41, to delete paragraph (d) and substitute the following:
"(d) in the case of a serving member of the Defence Forces, the matter is not likely to be resolved and a period of 28 days has expired since the complaint was made under section 114 of the Act of 1954.”.
It is proposed to amend section 4(2)(d). The proposed amendment will delete the original text of section 4(2) entirely and substitute the revised text. It is required for the purpose of complete accuracy and clarity of intent within the text. The subsection relates to the operation of section 144 of the Defence Act 1954 relating to redress of wrongs in so far as the administrative interface with the operation of the Defence Forces ombudsman is concerned. Only a serving member of the Defence Forces can apply for redress of wrongs under section 144. The text of the new subsection reflects this. The 28 day period was meant to refer to the lapse of 28 days since the original complaint to the military authorities under section 114 of the Defence Act. However, the original text was ambiguous and potentially confusing on this point and the proposed new text clarifies the matter beyond doubt. As in the original text, the ombudsman will essentially use his or her own judgment as to whether it appears to him or her the matter is not likely to be resolved within the internal military redress of wrongs procedure.
I move amendment No. 6:
In page 8, before section 5, to insert the following new section:
"5.—The Ombudsman may of his or her own motion formally investigate in accordance with section 9 any action which it appears to the Ombudsman that it is desirable in the public interest to do so.”.
Under the legislation, the ombudsman can act only if complaints are made. The role and powers of the office would be strengthened if he or she could initiate investigations. The police ombudsman in Northern Ireland has the power to initiate investigations and a similar post will be created in this State. We have been waiting for the Defence Forces ombudsman for a long time and the amendment would strengthen the office and his or her independence if he or she was permitted to initiate investigations independently.
First, there is confusion regarding the specified place of desired insertion of the amendment. It is presumed the amendment was intended to be submitted as an entirely new subsection for inclusion within section 4, functions of ombudsman. It is an essential core and philosophical component of the legislation that, subject to the provisions of the Bill in its entirety, the ombudsman may investigate any action that is the subject of complaint made to him or her by a person affected by the action. It is an essential foundation of the legislation, therefore, that, in other words, there must be in place an identified complainant. The amendment would depart substantially and materially from the concept and I cannot envisage how, in practice, the ombudsman could autonomously commence an investigation into the action in the absence of a complainant or a complaint. I reject the amendment. Previously, the Deputy tabled an amendment containing a provision in existing ombudsman legislation for other groups whereas this amendment does not maintain that consistency as it introduces a new provision.
For example, a team of inspectors could be in the field constantly. Such organisation will mean they will come up against the public interest issues to which the Deputy referred. This will be a small office, with the principle of the ombudsman's operation being that there is a complainant who has a problem, is not satisfied and contacts the ombudsman. It is the ombudsman's business to tour Dublin, the Glen of Imaal or elsewhere to see if something is going on that he or she might want to detect. That may not be the Deputy's wish but it is generally nice to think of the public interest. The ombudsman's office will be small and it will deal with complaints where there is a complainant. This is primarily the office's function and it is underpinned by the philosophy of such legislation. Perhaps the Deputy expects to have much more money that I have available to him if he is appointed to my position and is thinking the office will become a major organisation employing a few people from Donegal.
I do not anticipate many complaints but Nuala O'Loan in Northern Ireland has the power to initiate investigations on her own initiative. It would not be extraordinarily unusual for me to be ombudsman for the Defence Forces and I would have similar powers.
The police ombudsman in the North operates under an entirely different type of legislation. There is nothing I can add. If I were to say I would consider this between now and Report Stage, I would be deceiving the Deputy.
I move amendment No. 7:
In page 8, subsection (1)(d)(i), line 31, to delete “1990” and substitute “1990,”.
This is a small typographical amendment which inserts a comma after "1999".
I move amendment No. 8:
In page 8, subsection (1)(g), line 47, after “Act” to insert “(provided that a complaint may be made within the 12 months immediately following the commencement of this Act regarding an action which is taken before the commencement of this Act)”.
I apologise that our spokesperson, DeputySherlock, is unable to attend today's meeting. It is his opinion that we should insert this provision. This legislation has been promised for some time. There has been almost a two-year lapse since it was first published. The Minister has always been supportive of this proposal from RACO and PDFORRA. There should be some provision in the Bill to cover actions that took place before the Bill became law. We intend to insert a reference to a specific time in which the complaint may be made after the commencement of the Act. That is the only period of time in which a complaint may be made. It is a feasible proposal and we ask the Minister to consider it favourably.
This is an amendment to section 5(1)(g), which excludes complaints about actions predating the commencement of the legislation. The revised Bill incorporating proposed ministerial amendments provides that such complaints can be referred to the Minister under section 114 of the Defence Act 1954, as is the case under the current arrangements. I draw the Deputy’s attention to the comprehensive ministerial amendment now proposed to section 13 of the Bill as originally published. Deputy Sherlock’s amendment would have the effect that a complaint could be referred to the ombudsman concerning any action that predated the commencement of the new legislation, provided only that the complaint itself is made within 12 months of the date of commencement. Apart from the total impracticality of persons potentially making complaints to the new ombudsman about alleged actions which may well have occurred many decades ago, this amendment would also be inconsistent with the existing provisions of section 6(3), which place a time limit of 12 months from the date of an action or the date of a complainant’s awareness of an action within which the complainant must submit the complaint. I must reject the amendment on those grounds.
I am sure Deputy Hoctor and Deputy Ó Fearghaíl are now hearing about many of the items that were on the agenda for former Deputy O'Kennedy, Deputy Ryan, Deputy Lowry, Deputy Moloney and I because when one is newly elected, one becomes the person who can solve all the problems that could not be solved over the years. I could be wrong, but I am sure they have some experience of this even in the short time they have been in office.
The complaints procedure currently in existence tried to deal with wrongs in a fair and open-minded way. It is not as though there was no system in place to deal with problems before this. This is another adjunct to moving on and providing a new system, which has been part of the PDFORRA philosophy for a while. We are responding to this in agreement with all the associations. For those reasons, it is practical to go along with what we are proposing.
Amendments Nos. 9 and 10 are cognate and may be discussed together. Is that agreed? Agreed.
I move amendment No. 9:
In page 9, subsection (1), line 12, to delete "subsection (3) and section 4(7)” and substitute “this Act”.
These are technical amendments.
I move amendment No. 10:
In page 9, subsection (2), lines 19 and 20, to delete "subsection (3) and section 4(7)” and substitute “this Act”.
I move amendment No. 11:
In page 9, between lines 33 and 34, to insert the following subsection:
"(4) In this section ‘serving member' means—
(i) a person in the service of the Defence Forces, including a recruit,
(ii) a former active member, including a former recruit,
(iii) a retired member,
(iv) applicants to the Defence Forces, and
(v) a civil servant in the service of the Defence Forces.".
In Canada, those eligible to file complaints with the ombudsman include current and former cadets, members of the Canadian forces, employees, applicants to the forces and family members of any of the preceding. This section is currently rather restrictive. If the ombudsman is to have any real impact, the category of possible complainants must be broadened to encompass the persons listed in the amendment.
Section 6(1) allows for a complaint to be made by a serving member of the Defence Forces and section 6(2) allows for a complaint to be made by a former member of the Defence Forces. In either case, a complaint may relate to an action taken by a serving member of the Defence Forces, by a former member of the Defence Forces while he or she was serving, or by a civil servant in the Department of Defence. Recruits and cadets or serving members of the Defence Forces in an enlisted capacity are comprehended by the legislation. Former members of the Defence Forces are also comprehended. Civilian applicants to the Defence Forces are not comprehended by this legislation during the period of their continued civilian status, but have recourse to the 1998 ombudsman in the matter of the civil administration of the Department of Defence.
No civil servant is employed in the service of the Defence Forces. The Deputy may be referring to civilian employees who work with the Defence Forces but are actually unestablished State employees of the Department of Defence, employed by the Department under section 30 of the Defence Act 1954. They have their own industrial relations procedures and so on agreed between the Department of Defence and the various trade unions which represent them at the joint industrial council for non-established State employees of Departments. This legislation does not concern them as they are not subject to military law or discipline. Deputy McGinley will see that people in the service of the Defence Forces, including recruits, former active members, former recruits and retired members, are already covered in the legislation. The two categories not covered are applicants to the Defence Forces, who have recourse to the existing ombudsman because of their civilian status, and civil servants in theservice of the Defence Forces, which is a non-existent species.
Does the Minister agree that the system is rather restrictive compared to that of Canada? It does not cover the same categories.
We will consider this between now and Report Stage to see whether there is anything we can add.
That might be more appropriate.
I move amendment No. 12:
In page 10, subsection (9)(a), line 42, after “Act,” to insert “and”.
These amendments are to insert missing words.
I move amendment No. 13:
In page 11, subsection (9)(b)(iii), line 3, after “(3),” to insert “and”.
I move amendment No. 14:
In page 12, lines 35 to 37, to delete subsection (6).
It is proposed to delete subsection (6) in its entirety. This subsection would have given the Defence Forces ombudsman an apparent discretionary power to determine whether any person could be represented either by a legal representative such as a barrister or solicitor or by any other category of personal representative during the course of an investigation being conducted by the new ombudsman under this legislation. It is proposed to remove this subsection from the Bill in light of advice from the Office of the Attorney General which suggests that the practical exercise of any such discretionary power or prohibition upon the right to representation might be vulnerable to challenge.
In addition to these legal considerations, PDFORRA has raised the matter and we are anxious that there should be no unreasonable impediment to representation where a complainant wishes to have a personal representative, legal or otherwise, acting for him or her during the course of an investigation being conducted by the Defence Forces ombudsman. It is now proposed to delete this entire subsection.
Amendments Nos. 15 and 16 are related and may be discussed together.
I move amendment No. 15:
In page 13, subsection (3)(a), lines 22 and 23, to delete “to the public interest or”.
As the Bill is drafted it gives the Minister wide powers to block an investigation on grounds of public interest or security. That is too broad and gives the Minister wide powers over the public interest. We fully accept that the Minister, because of what he knows about security, should be included but this is too broad and allows investigations to be blocked.
Section 10(3)(a) prescribes the powers of a Minister to give written notice to the Defence Forces ombudsman to preclude the disclosure, other than to the Defence Forces ombudsman and his office, of any specified documents or information on grounds that such disclosure would be prejudicial to the public interest or to security. Deputy Sherlock’s amendment seeks to remove the public interest ground.
The section specifically requires the Minister to provide within the written notice to the ombudsman a written statement of the reasons the Minister believes that disclosure would be prejudicial to the public interest or security. Section 10 deals with the important matter of secrecy of information, a sensitive matter given that the Defence Forces ombudsman will, by definition, be involved in the investigation of complaints originating within the complex military environment of the Defence Forces.
Notwithstanding this, there is a desire to apply a liberal interpretation to the practical remit of the ombudsman as proposed in the legislation. While pending investigation might potentially involve touching upon some tangential aspect of military security, I would be loathe to preclude the ombudsman from carrying out an investigation into a complaint under the legislation merely on this tangential ground alone. However, as a concomitant defence for the much wider, general public interest, the legislation must provide appropriate safeguards against the disclosure of certain types of information the disclosure of which, in the opinion of the Minister of the day, would be detrimental to that wider general public interest.
The provisions of this section of the Bill are almost identical to section 9 of the Ombudsman Act 1980, except that the provisions of subsection (2)(b) of the 1980 Act relating to the Revenue Commissioners have been omitted on the grounds that the provisions of that subsection are not relevant in the case of the ombudsman for the Defence Forces. As in the 1980 Act, this section provides that the Defence Forces ombudsman or any member of the staff of the ombudsman shall not disclose any information or document obtained in the course of an investigation into a complaint or shall not be called upon to give evidence in any proceedings on matters coming to their knowledge in the course of their investigations, except proceedings for offences under the Official Secrets Act 1963.
It is not a question of not producing the documents that we have for the ombudsman but whether they would be made public — that is the difference. We will let the ombudsman have everything we think is relevant. Those that relate to security would only be seen and not disclosed.
I move amendment No 16:
In page 13, lines 30 to 33, to delete subsection (4) and substitute the following:
"(4) Where a notice is given under subsection (3)(a), the Ombudsman or a member of staff of the Ombudsman (including an investigation officer) shall not disclose any—
(a) document, part of a document, information or thing in the notice, or
(b) class of document, part of a document, information or thing specified in the notice,
to any person or for any purpose and nothing in this Act shall be construed as authorising or requiring the Ombudsman or a member of staff of the Ombudsman (including an investigation officer) to disclose to any person or for any purpose anything referred to in paragraph (a) or (b).”.
I move amendment No. 17:
In page 15, lines 10 to 21, to delete all words from and including "which" in line 10 down to and including "reports."." in line 21 and substitute the following:
"that is made in writing to be notified to the Minister and the Ombudsman for the Defence Forces as soon as practicable following the making of such complaint.
(3B) Where the Ombudsman for the Defence Forces has made a notification in writing in accordance with section 7 of the Ombudsman (Defence Forces) Act 2004, that section 5(1)(c), section 5(1)(d)(ii), section 5 (1)(e)(ii) or section 5(1)(g) of the Ombudsman (Defence Forces) Act 2004 applies to a complaint made under that Act by an officer or a man, the officer or the man, as the case may be, may submit that complaint to the Minister for determination by him or her.
(3C) The Minister may make regulations concerning the manner in which a notification referred to in subsection (3A) of this section and a report on such notification are to be made and the manner in which the complaint is to be submitted under subsection (3B) and without prejudice to the generality of the foregoing, the regulations may—
(a) specify a period or periods within which such reports are to be submitted and complaints referred, and
(b) the form and content of such notifications, reports and submissions.’.”.
Section 13 has been reviewed in its entirety in light of concerns expressed by PDFORRA on the text of the section as originally published. The original text removes the Minister entirely from any role in the redress of wrongs procedure set out in section 114 of the Defence Act and submitted to the ombudsman subject to the other provisions of the Bill as published. At present, any complaint made under the internal military redress of wrongs procedures provided for by section 114 of the Defence Act may eventually be brought before the Minister for Defence as the final point of appeal when all military procedures have been availed of. The basic intention of the Bill is that this right of final referral to the Minister for Defence will now be replaced with the right of referral to the Defence Forces ombudsman.
However, in very limited circumstances a complaint may fall outside the remit of the ombudsman. I propose to amend the Bill in order that the right of referral to the Minister will be expressly retained in certain clearly defined circumstances in which the ombudsman is specifically excluded from access under the Bill but where there currently exists a right of access to the Minister under the current redress of wrongs arrangements. The Bill, as originally drafted, had the unintentional effect of removing this right. This area was of particular concern to PDFORRA and indicates the confidence it has in me even above what it might have in an independent ombudsman.
I am pleased that I was able to respond positively to the sensible and reasonable case put forward by PDFORRA. The specific circumstances that concerned PDFORRA related to certain defined categories of complaint from which the ombudsman is excluded by the Bill — complaints related to security or military operations as defined in the Bill, matters relating to the organisation, structure and deployment of the Defence Forces and matters relating to the administration of military prisons. The new draft of section 13 will ensure that an applicant will still be entitled to submit his or her complaint to the Minister whenever the ombudsman is specifically excluded from involvement.
Any complaints concerning actions predating the commencement of the legislation will be dealt with by the Minister on a transitional basis as the ombudsman is precluded from these in the Bill under section 5(1)(g). These transitional complaints will now also be covered by the amended section and these transitional complaints can be remitted to the Minister. The ombudsman will remain excluded from those areas where the Minister would decline to become involved under the current redress arrangements as agreed with the representative association. These areas are where the subject of complaint is one for determination with the appropriate representative association under the agreed scheme of conciliation or arbitration, where the complainant has initiated separate legal proceedings on the subject of complaint or where the subject of the complaint relates to proceedings taken under military law such as previous convictions and fines by court marshall.
The new draft of section 13 will require the Chief of Staff to notify the Minister and the ombudsman of every written complaint made under section 114 of the Defence Act. The original published text only required notification of the ombudsman. The new draft text rewrites the original corresponding text in the Bill in light of other amendments to the section as clearly described.
Amendments Nos. 18 and 19 are related and will be discussed together by agreement.
I move amendment No. 18:
In page 15, subsection (2), line 27, to delete "in the Civil Service of the State".
This is a technical amendment relating to the dated language used in the Bill. This amendment is consistent with the approach for such a definition in section 36 of the Civil Defence Act 2002 and is similar to section 2 of the Ombudsman for Children Act 2002. It simplifies the Bill.
Both of these amendments are based on a misunderstanding. It is envisaged that the office of the Defence Forces ombudsman will be staffed by civil servants. Subsequently, in light of experience of the volume of work, civil servants from other Departments might be brought into the office by temporary secondment or transfer if the first civil servants are drawn from the Department of Defence. The definition of the term "civil servant" provided in section 1 of the Bill states that civil servant has the meaning assigned to it by the Civil Service Regulation Act 1956. There is nothing between us on this. The Bill states "shall come" and the amendment states "comes".
The Minister is dealing with the wrong amendment.
I apologise. We will look at this before Report Stage.
I move amendment No. 20:
In page 17, subsection (2), line 15, to delete "shall come" and substitute "comes".
This amendment proposes the use of the active voice, as recommended by the Law Reform Commission in its report on legislative drafting. The greater use of the active voice is something that has been recommended by the Law Reform Commission in its report on legislative drafting. There are many Acts now whose commencement provisions state "comes into operation", yet this Bill persists with the old style. The amendment is a simplification to make it more straightforward.
I have no great argument with this. The draftsmen consistently use the word "shall". As I recall, coming through the Houses of the Oireachtas with pieces of legislation over the past 20 or 30 years, most of the amendments put forward would propose that "shall" be used instead of "may", for example, and that the word "shall" should be inserted. We will have to talk to the draftsmen because in all of my experience, this is the way it is done. "Shall" is a very strong word. The draftsmen may be able to help us with something else, although it is not very likely.
Let us not spoil such co-operation.
I thank the Minister and his officials for attending and I thank all of the members for the expeditious way in which the business has been carried out.
In military style.