Defence (Amendment) (No. 2) Bill 2006: Committee Stage.
Sections 1 to 11, inclusive, agreed to.
NEW SECTION.
I move amendment No. 1:
In page 11, before section 12, before Chapter 1, to insert the following new section:
"CHAPTER 1
General Provisions
12.—The Principal Act is amended in Part V by the insertion of the following before Chapter 1:
"CHAPTER A1
Review of Procedures
A118.—The procedures in this Part shall be reviewed at least every 5 years to ensure that they are in line with—
(a) developments in the civil criminal justice system,
(b) any relevant new legislation,
(c) any relevant new Irish or European case law,
(d) relevant European Community law, and
(e) human rights and the principles of natural justice.”.”.
One of the purposes of this Bill is to update the Defence Act in line with European court and criminal case law developments as outlined in the Minister's speech on Second Stage. It is reasonable to have a review of military legislation because it has been inclined to lag behind as we have seen in recent years.
Unfortunately I cannot accept the amendment. While I accept the principle, the amendment is unnecessary. It proposes to introduce a statutory requirement that the Act be reviewed at least every five years. I have no objection to the Act being reviewed as often as is required and it is my intention and that of the Department that the Act will now be kept under constant review and amended as often as necessary having regard to developments in the law. However, as I have already indicated in the House, I intend to initiate a second phase process to further amend the Defence Act later this year when the present proposals have been implemented. This will provide an opportunity to review the operation of the Bill's provisions. The insertion of a statutory time limit within which a review must be conducted is, therefore, unnecessary. Such a provision could at some future date cause unnecessary difficulties.
I understand the Minister's perspective. However, a future Minister for Defence might not be as diligent as he is. How can he assure us that the legislation will not be left on the shelf? Has the Minister considered any mechanism that would provide that the legislation be automatically reviewed? I understand that similar Acts across the water build in such a review. While his intentions are well meaning, legislation on disciplinary measures in the Defence Forces is not something that immediately comes to the public's mind and there is no great impetus to review it. An alarm bell will not go off in the Minister's head every 12 months reminding him to review the legislation. How can we ensure that it will happen?
I accept that we will see a second phase to this legislation. Perhaps at that stage the Minister could have an automatic review. Each year we consider an annual report on overseas service, the confirmation of disease levies and various other matters in other Departments.
I support what Deputy Timmins has said. The Minister indicated in the Dáil that he anticipated there would be a much larger number of courts martial. He referred to the figure increasing to several hundred as a result of the appeal mechanism built into the process. Clearly, therefore, the legislation will lead to a major extension in scope, particularly as the European Convention on Human Rights is being transposed into law.
Fundamental rights are at the basis of this proposal. The Minister should, at minimum, produce an annual report detailing the operation of the legislation. The Irish Human Rights Commission, which has examined and reported on the Bill, will be interested in ensuring that it meets its desirable objective of underpinning the military-judicial administration in a manner similar to that with which the regular administration of justice is dealt with. There should be some in-built mechanism to examine how the legislation operates.
Will the Minister outline his proposals for phase 2? Will they amount to a consolidation of existing legislation or an extension of the legislation before us?
As members will know, the legislation is based on a detailed report. It was not practical to include all the report's provisions in the Bill. The Department has taken a minimalist approach to address immediate problems reasonably quickly. As I indicated, more extensive legislation is on the way and it is envisaged the Department will introduce a separate Bill. The two Bills can then be read together as one. Alternatively, we could introduce a consolidation Bill but this will be a matter for discussion.
I accept the points made by Deputies Costello and Timmins on the need for consistent updating or at least an annual report. I will examine the matter in the context of the new legislation. It would be a little premature to do it now in view of the fact that we will introduce a new Bill. Given that all parties are committed to new legislation, we need not worry who the Minister of Defence will be at the time it is introduced. At that stage, this Bill will have been enacted and in operation and, as such, an opportunity will be available to ascertain how it is working in practice.
Amendment, by leave, withdrawn.
Sections 12 and 13 agreed to.
NEW SECTIONS.
As amendment No. 3 is consequential on amendment No. 2, both amendments may be discussed together by agreement.
I move amendment No. 2:
In page 13, before section 14, to insert the following new section:
14.—The Principal Act is amended by the insertion of the following after section 121:
121A.—Where a person who is liable to military law is aged less than 18 years, the provisions of the Children Act 2001 shall apply.".
Section 271 of the Children Act excludes members of the Defence Forces from the protection of the Act. Persons may join the Defence Forces at the age of 17 years. Effectively, therefore, persons will be in the Defence Forces for up to a year during which they will not enjoy the protection of the Children Act. The Minister will probably argue that the matter should be addressed by amending the Children Act as opposed to in this legislation. I ask him to outline his views on the matter, particularly in light of the forthcoming constitutional referendum on the rights of children. Either this Bill or the Children Act will need to be changed.
The effect of section 271 of the Children Act is that any person under the age of 18 years who is an enlisted member of the Defence Forces shall continue to be subject to military law. The intention of the amendment is that the provisions of the Children Act should take precedence over the provisions in the Defence Acts relating to military law as they apply to members of the Defence Forces who are under the age of 18 years. I am satisfied that section 271 of the Children Act 2001 applies to a very small number of the members of the Permanent Defence Force. In that regard, I am advised by the military authorities that less than 20% of the annual recruit intake is under 18 years of age. In 2006, for example, only 81 of the 680 recruits, that is, 11.9% of the total, were under 18 years of age. Nonetheless, special measures are in place to ensure that members of the Defence Forces who are under the age of 18 years are the subject of additional protections.
First, all unmarried applicants under the age of 18 years must have the written consent of their parents to enlist. Second, having regard to the 18-week recruit training programme, followed by a further advanced training course, I am assured that members are generally at least 18 years of age before they are deployed on operational duties. Third, on 18 November 2002 Ireland ratified the optional protocol to the United Nations Convention on the Rights of the Child whereby it agreed to take all feasible measures to ensure that members of the armed forces who have not attained the age of 18 years do not take a direct part in hostilities. The effect of this undertaking is that members of the Defence Forces must be over 18 years of age before they are deployed abroad on peace support missions.
As regards the application of military law to members of the Defence Forces who are under 18 years, a member of the Defence Forces may only be tried by court martial for the most serious of offences, such as treason, murder, manslaughter or aggravated sexual assault, if the offence is committed while on active service, which generally means while serving on a peace support mission abroad or during a time of war in Ireland. As I indicated, a member of the Permanent Defence Force shall not be sent to any such overseas mission unless he or she is more than 18 years of age. Any such offence committed within the State during peace time would be dealt with by the ordinary courts and the provisions of the Children Act would apply.
In relation to other lesser offences, which are also offences punishable by ordinary law, if the offence was committed in the State by a person subject to military law under the age of 18 years, while a court martial might have joint jurisdiction to deal with these offences, in practice these offences are dealt with by the ordinary courts and the provisions of the Children Act apply in such cases.
With regard to breaches of military discipline within the code of military discipline committed by a member of the Defence Forces who is under the age of 18 years, it is important and proper that these offences are dealt with under the provisions of the Defence Acts. Many of the provisions of the Children Act would not be appropriate in these circumstances.
There is one further matter I consider to be relevant in this regard. A new provision is included in the Bill whereby if a person subject to military law is sentenced to more than six months' imprisonment, he or she must also be sentenced to be dismissed or discharged from the Defence Forces and once such a person is dismissed or discharged from the forces, he or she will only remain subject to military law while in service custody. The effect of this provision is that once a military prisoner serving his or her sentence in a public prison is discharged from the Defence Forces, he or she ceases to be a person subject to military law. If such a person is under 18 years of age at that time, the provisions of section 271 of the Children Act would no longer be relevant.
For these reasons, I cannot, at this point, accept the amendment.
I am not trying to trip up the Minister on this issue. Is it policy that no member of the Defence Forces aged under 18 years is deployed overseas?
Does this policy also apply to training for EU battle groups? In other words, would persons aged under 18 years be precluded from travelling abroad for training?
Members of the Defence Forces aged under 18 years will not be deployed outside the country.
Does the Minister envisage a difficulty arising due to the overlap with the Children Act? He indicated that only a small number of individuals would be affected by section 271 of that Act. Could a difficulty arise in future?
I do not envisage a problem. I have outlined the position pertaining to people who are charged with serious offences, for example, treason, murder, manslaughter or aggravated sexual assault, who can be tried by court martial and those charged with less serious offences. In practice, if somebody is under the age of 18 and can be subject to the court martial, the ordinary courts and the court martial will have joint jurisdiction. Before a person goes before a court martial in this type of case, the Garda would have to agree. I am informed that this never happens in practice and it is virtually automatic that such a person would go before the ordinary courts.
Has any person aged under 18 years been court martialled in recent years?
I am informed that the answer is "No".
Why will the Minister not accept the amendment which reads, "Where a person who is liable to military law is aged less than 18 years, the provisions of the Children Act 2001 shall apply"? This would remove any doubt that children would be treated under legislation drawn up specifically to deal with adults, rather than arguing the case the other way and saying it is not likely to occur and that we do not envisage such a situation, as soldiers of this age will never travel abroad, etc. Why can the Minister not accept the principle that the Children Act 2001 should apply in regard to any serious offence in respect of which a military court could be an option? The purpose of the legislation is to ensure it is human rights proofed. In that respect, the rights of children should be paramount. It would be more desirable for the Minister to accept the point made by Deputy Timmins rather than taking the military point of view, which is to encompass the matter within the military administration of justice, even though the Minister is of the opinion it is never likely to happen. Perhaps he might reconsider his position, even if it concerns phase B of his work?
The fundamental legislation dealing with children is the Children Act which provides that persons under the age of 18 years who join the military become subject to military law. I suspect that those who drafted the Act knew the situation and that there was no difficulty. However, there is also a very good reason this provision should apply. There are three categories under which a person can find himself or herself in trouble: he or she has committed a very serious offence, a less serious offence or is guilty of a breach of discipline. Where somebody is involved in a serious breach of discipline, it is not appropriate that the Children Act should apply and that parents should attend for interview with the accused, etc. In such a case the ordinary procedures of military law should apply to anybody charged with a breach of discipline, even where it involves somebody under the age of 18 years. As for persons being charged——
We are not going to have ASBOs in the Army.
Those who drafted the Children Act inserted that section for good reason and we cannot unilaterally change it in legislation relating to the military. To do so would be neither practicable nor desirable. Even if one were to change it, it would be necessary to do so in such a way that the ordinary rules of discipline would apply whether persons were under or over the age of 18 years. In practice, where persons are charged with offences, the matter takes some time to process. A person can join the Army at 17 years. Therefore, by the time a case is ready to come to trial, he or she will invariably be 18 years. The danger is more apparent than real.
Does the Minister envisage a difficulty with the section if, on foot of a constitutional referendum, the rights of children are inserted in the Constitution?
That is a matter on which we would have to receive advice from the Attorney General. Off the top of my head, I do not, but that is subject to receiving advice on the matter.
I assume the Minister will examine the issue in the context of phase B.
Amendment, by leave, withdrawn.
Amendment No. 3 not moved.
Section 14 agreed to.
Section 15 agreed to.
SECTION 16.
Question proposed: "That section 16 stand part of the Bill."
In this section the words "in the case of a man" are used. I assume the reference is to a soldier rather than being discriminatory. One of the big changes in the Defence Forces in recent years has been the number of women who have joined. A later reference in section 24 includes the words "charges against men". One can assume there are other such references. Presumably, the terminology is taken from earlier legislation. Perhaps where reference is made in the definition to "a man" or "men", we should ensure it includes women also?
I am advised the term "men" used in the legislation means a person who is not an officer. The Interpretation Act 1938 applies. It defines the term "man" as including "woman". There is an amendment to this effect at a later stage. I agree it would be preferable to use both genders or the word "person" but the legislation is to be read in conjunction with the 1954 Act. If we were to make the change in this instance, we would have to change every reference in the 1954 Act also, but there is no need to do this because the Interpretation Act applies. The reason the term "man" is used is to distinguish between NCOs and privates, on the one hand, and officers, on the other.
I accept what the Minister said. I presumed that was what it meant but I could not find it among the definitions.
Question put and agreed to.
Section 17 agreed to.
SECTION 18.
Amendments Nos. 4 and 5 are related and will be discussed together.
I move amendment No 4:
In page 16, line 21, after "by" to insert "or on behalf of".
This amendment relates to preserving independence in any prosecution pending under the Prosecution of Offences Act to ensure there would not be any improper communication. The Minister has listed a few exceptions, including a medical adviser, social worker or family member. I suggest this category be broadened. The Minister will probably reply by asking how far it should be broadened. One could also include a teacher, an employer or a religious minister. The provision could be slightly more flexible. I urge the Minister to widen the definition to allow others who could be relevant and are currently exempt to make a communication.
The amendments in the Deputy's name seek to change the text of the Bill to reflect the communication made with the director of military prosecutions, or a member of his or her staff, on behalf of a complainant in proceedings, or on behalf of a person charged with or who believes he or she is likely to be charged with an offence, or on behalf of a person involved in the matter personally. They do not come within the scope of the offence of improper communication with the director of military prosecutions. I argue, therefore, that this matter is already addressed in the Bill which, as drafted, provides that communication with the director of military prosecutions made by legal and medical advisers, social workers and other family members of a person involved in the matter does not come within the scope of the offence. Other possibilities do not need to be considered without opening up the provision too much. The current provisions reflect the position in ordinary criminal legislation pursuant to section 6(2)(a) of the Prosecution of Offences Act 1974. In the circumstances I cannot accept the amendment. I understand what the Deputy is saying, but if I were to accept his amendment, as it stands, it would mean that anybody who purported to speak on behalf of a defendant could communicate with the director of military prosecutions. That would not be appropriate. Under ordinary law, the persons allowed to communicate with the Director of Public Prosecutions are confined to the categories I have included in this legislation.
Could the Minister envisage instances in which the provision could apply more broadly, such as to a religious minister, employer or teacher?
We are legislating for a fairly limited section of the population and mirroring the provisions that apply in ordinary criminal law. The Prosecution of Offenders Act has been in place for more than 30 years.
What about a public representative?
I would not accept that at all. The Prosecution of Offenders Act has been in place for more than 30 years and has worked pretty well. I have not heard complaints about people not being able to make representations if they want to do so. It is proper that we mirror the Act in this instance and we should not open the door too wide. It is wrong for people to try to interfere with prosecutions, regardless of their politics. It is inappropriate on the one hand to state it is an offence to interfere with a prosecution or approach the person in charge of that prosecution while on the other hand stipulating that every Tom, Dick and Harry who says he is representing an individual should be able to communicate with the prosecution without committing that offence. This would make nonsense of the provision.
Does that mean communications can come from a person involved in the matter, either personally or through a legal or medical adviser, social worker or member of the person's family? The Minister, as a public representative, could not write a letter of reference, nor could a priest communicate on behalf of a member of the church. The Minister has made very discretionary choices.
I, as a public representative, or a member of the clergy can send a letter of representation to the court when it comes to sentencing. The 1974 legislation, the basic legislation we are mirroring, has, for very good reason, confined to a specific number of categories the people who are allowed to approach the prosecution authorities. It would be very peculiar if only certain categories of persons could approach the Director of Public Prosecutions while a larger number could approach the person mirroring the functions of the Director of Public Prosecutions in respect of military law. People would ask why.
I do not see the difference between one and the other, nor between a social worker and a clergyman, for example. Some categories have been chosen while others have been omitted.
Amendment, by leave, withdrawn.
Amendment No. 5 not moved.
Section 18 agreed to.
Sections 19 to 32, inclusive, agreed to.
"SECTION 33.
I move amendment No. 6:
In page 40, to delete lines 1 to 8 and substitute the following:
"(2)(a) In the case of the person specified in subsection (1)(b) of this section signifying at any time unwillingness or inability to act for any period as a member of the committee, the President of the High Court may nominate any other available Judge of the High Court to be a member of the committee in place of that person for that period.
(b) In the case of the Director of Public Prosecutions signifying at any time unwillingness or inability to act for any period as a member of the committee, the Minister may, after consultation with the Attorney General, appoint as a member of the committee in place of the Director of Public Prosecutions, for that period, a practising barrister nominated by the General Council of the Bar of Ireland or a practising solicitor nominated by the Law Society of Ireland.”.
The Bill provides for the establishment of a committee for the purpose of selecting an officer for the appointment of director of military prosecutions. The committee consists of the Chief of Staff, a High Court judge and the Director of Public Prosecutions. The amendment seeks to change the manner in which alternate members of the committee may be appointed. Such circumstances could arise if either the judge nominated by the president of the High Court or the Director of Public Prosecutions signified his unwillingness or inability to act for any period as a member of the committee.
The existing provisions in this regard were the subject of an observation by the Irish Human Rights Commission in its report received on 1 March 2007. Having considered that observation, I have decided to remove any suggestion that there could be a political element to the decision-making process. I propose that if the nominated judge of the High Court is unavailable, the President of the High Court may nominate another judge in his place. I propose that if the Director of Public Prosecutions is unavailable, the Minister may, after consultation with the Attorney General, appoint either a practising barrister nominated by the Bar Council or a practising solicitor nominated by the Law Society of Ireland.
I welcome the amendment because it deals with a potential problem highlighted by the Human Rights Commission. Consider the proposal that "the Minister may, after consultation with the Attorney General, appoint as a member of the committee in place of the Director of Public Prosecutions, for that period, a practising barrister nominated by the general council of the Bar Council of Ireland or a practising solicitor nominated by the Law Society of Ireland." How will the Director of Public Prosecutions determine which?
On the same point, is the Minister specifically ruling out a practising barrister or solicitor who might be a member of the Defence Forces seeing that the selection will be made neither by the Bar Council nor the Law Society? Can one equally select a qualified member of the Defence Forces?
What does the Minister mean by "unwillingness". Inability is one matter but "unwillingness" is a very broad term. Does this mean the appointee can decide, on a discretionary basis, not to act and that he or she does not wish to be a member of the committee at a given time? Are there any criteria in this regard? Surely an appointee should be expected to continue unless there is a valid reason, through inability or incapacity, for his not doing so. Unwillingness comprises a strange reason for not acting for a period as a member of the committee.
The term "inability" is a little narrow but is probably broad enough to cover "unwillingness". We are mirroring the relevant provisions in civil law and putting the matter beyond doubt. I have no doubt that the Director of Public Prosecutions will act if he is able to do so but in the case of his not being able to do so, because of time constraints or other reasons, the provision is not unreasonable.
Would he not have to have good reason for being unwilling?
He would usually have a good reason for being unwilling. I do not envisage circumstances in which the Director of Public Prosecutions will simply say he is unwilling.
Or, "I don't fancy that".
Yes, "I don't fancy that".
That is what the Minister is allowing for.
Is the Deputy suggesting we delete "unwillingness" and just include "inability"? "Inability" could be defined just to include some sort of physical or mental inability. This might rule out the possibility of the appointee being too busy or engaged in other duties when the committee has to sit.
If he is specifically appointed to prosecute, it is hardly good enough to say he is unwilling unless there is some caveat concerning the criteria. The term "unwilling" seems to be extraordinarily broad to insert in legislation. It allows for any eventuality or all eventualities. No reason must be given for one's being unwilling.
We are only talking about willingness to serve on a committee to appoint somebody. Deputy Costello's concerns in this regard are groundless. I am keeping to the wording used elsewhere which is "unwillingness or inability". It will cause no difficulties in practice. The DPP has already agreed to act as a member of the committee.
It is for him to identify an officer who will be the prosecuting lawyer.
Amendment agreed to.
I move amendment No 7:
In page 41, line 39, after "of" to insert "and in the name of".
This amendment addresses the provision from the principal Act that states "the offence shall be taken to be prosecuted at the suit of the Director who shall be responsible for the conduct of all prosecutions at court-martial". This departs from the normal situation where the DPP operates on behalf of the people. It should be clarified that it is in the name of the DPP.
I accept that this amendment would be consistent with the wording of Article 30.3 of the Constitution in respect of the prosecution of offences on indictment, that is "in the name of the People and at the suit of the Attorney General". The Prosecution of Offences Act 1974 transferred the powers of the Attorney General in relation to the prosecution of offences to the DPP. Therefore, in the case of an ordinary criminal indictment, there are two parties to the laying of the charge — the People and the DPP. That is reflected in the correct form for an indictment which is the People (the DPP) v. the Accused. However, under the proposed provisions of this Bill, the Director of Military Prosecutions alone will prefer the charges under military law and the charge will be laid as the Director of Military Prosecution v. the Accused. If the Bill were amended as proposed, the charge would still be laid in the same terms without alteration. From that point of view the amendment is not necessary.
Amendment, by leave, withdrawn.
Section 33, as amended, agreed to.
SECTION 34.
I move amendment No. 8:
In page 46, line 15, after "his" to insert "or her".
We touched on this earlier when discussing the absence of gender-proofing in the legislation. The point raised by Deputy Ó Snodaigh on the terminology denoting officers as men is a matter that needs to be addressed. The Minister has given his explanation. When is it proposed to introduce gender-proofing?
Will the Minister have that Bill?
Amendment, by leave, withdrawn.
I move amendment No. 9:
In page 47, lines 14 and 15, to delete all words from and including ", subject" in line 14 down to and including "Advocate-General," in line 15.
On Committee Stage in the Seanad, on a proposal from the Labour Party spokesperson, an amendment was made to give to the President rather than the Judge Advocate General the role of appointing a military judge to be a chief military judge. In light of this amendment and having further considered this section, I am proposing that the provision contained in this section, whereby the delegation of functions by the chief military judge to another military judge would be subject to the consent of the Judge Advocate General, is no longer necessary or appropriate.
Amendment agreed to.
Question proposed: "That section 34, as amended, stand part of the Bill."
The section states, "An officer who is a practising barrister or a practising solicitor of not less than ten years standing shall be qualified for appointment as a military judge". How many officers are practising solicitors or barristers? On Second Stage, I proposed that the section be widened to allow civilian barristers or solicitors to be considered. First choice would be for an individual with specialist knowledge of the peculiarities and the practicality of the Defence Forces. There are people, however, who were officers in the Defence Forces and retired to become civilian lawyers. One individual I know is an expert on the court martial process and has done an academic study on it. This group is being excluded by this section and it may be wise to extend it to them.
The Irish Human Rights Commission made some observations on this matter. As a result of its observations, the issue was the subject of detailed consideration during the Bill's drafting. It included discussions with the Office of the Attorney General and the advice of external counsel. For both policy and practical reasons, it was decided to opt for a uniformed military judge along the lines of the Canadian and US military justice systems rather than a civilian judge advocate and non-legal qualified officer system, which operates in the UK. It was considered that certain aspects of the UK system would not be appropriate for our system to follow. International case law does not preclude the appointment of military judges, subject to there being adequate safeguards as to their independence and impartiality. In light of experience, this new arrangement and the views of the commission will be kept under review. I am also informed there is a sufficient pool of legally qualified military personnel.
Question put and agreed to.
Sections 35 to 38, inclusive, agreed to.
SECTION 39.
Amendments Nos. 10 to 13, inclusive, are related and amendment No.18 is consequential and will be taken together.
I move amendment No 10:
In page 51, lines 19 to 22, to delete all words from and including ", one" in line 19 down to and including "member" in line 22.
We considered the observations of the Irish Human Rights Commission in section 40 which concerns the appointment of a senior member of a court martial board. The proposed senior member was designed to replace the former appointment of president of the court martial. However, I am satisfied now we can dispense with all references in the Bill to a senior member. These amendments are proposed to give effect to that in respect of section 39 which deals with the constitution of general courts martial. It is still necessary to retain certain rank structures in respect of a general court martial. I am satisfied also the Bill contains adequate safeguards to ensure there can be no possibility of command influence among the members of the courts martial of different ranks. Amendment No. 18 dealing with dissolution of courts martial is necessary as a consequence of the earlier amendments deleting all references to a senior member of a court martial.
The fact the Minister has taken on board the concerns of the Irish Human Rights Commission will make the legislation a strong Act thereafter. If he has the opportunity, perhaps he could talk to the Minister for Justice, Equality and Law Reform and encourage him to take the same approach.
I support the amendments. I just want to make a general point on section 39. The new section 189(4)(b), as inserted by section 39, states:
[M]ay include not more than one non-commissioned officer who shall not be below the army rank of battalion quarter-master sergeant[.]
PDFORRA gave committee members a document which, perhaps, arrived only this morning. It seeks to include all ranks. I do not necessarily agree with that, but why was the rank of battalion quarter-master sergeant, BQMS, chosen? How come the rank of battalion sergeant-major is excluded? I would go some way with what PDFORRA is looking for. It should, perhaps, include from the rank of sergeant or upwards. At the very minimum, it should be senior NCO, to include company quarter-master sergeant, company CS.
We have made a significant advance in this, so let us see how that works out in practice. I am aware of the PDFORRA document to which Deputy Timmins refers. Unfortunately we only got it yesterday and I have not had an opportunity to study it yet. We shall study it, however, in the context of the next phase of defence legislation. Unfortunately it did not arrive in time
The Minister might wish to consult for a minute. The legislation refers to the rank of quarter-master sergeant. How come it is not the battalion sergeant-major, which is a senior rank to the quarter-master sergeant?
I am informed it includes sergeant-majors.
Does the Bill mention sergeant-majors?
We are talking below the rank of——
Yes, but sergeant-major is a senior rank to that of battalion quarter-master sergeant.
The Bill says: "shall not be below the ... rank". Perhaps the Minister might change that to senior NCO, to include, say, company quarter-masters and company quarter-master sergeants. I appreciate it is an advance and is very welcome but the number of top NCO ranks in the country is limited.
Amendment agreed to.
I move amendment No. 11:
In page 51, to delete lines 23 to 27.
Amendment agreed to.
I move amendment No. 12:
In page 51, to delete lines 28 to 32 and substitute the following:
"(2) Where the accused is an officer, the court-martial board shall include—
(a) an officer of the Permanent Defence Force not below the army rank of colonel or the equivalent naval rank and in any case not of a lower rank than the accused, and
(b) not less than four other officers, none of whom shall be below the army rank of captain or the equivalent naval rank.”.
Amendment agreed to.
I move amendment No. 13:
In page 51, to delete lines 33 to 39 and substitute the following:
"(3) Where the accused is not an officer, the court-martial board---
(a) shall include---
(i) an officer of the Permanent Defence Force not below the army rank of colonel or the equivalent naval rank, and
(ii) not less than three other officers, none of whom shall be below the army rank of captain or the equivalent naval rank,
and".
Amendment agreed to.
Section 39, as amended, agreed to.
SECTION 40.
Amendments Nos. 14 to 16, inclusive, are related and amendment No. 19 is consequential. The four amendments will be taken together.
I move amendment No. 14:
In page 52, lines 11 to 14, to delete all words from and including ", one" in line 11 down to and including "member" in line 14.
As I stated when dealing with a previous group of amendments, further to the observations of the Irish Human Rights Commission on section 40 , I am satisfied now we can dispense with all references to a senior member of a court martial. These amendments propose to give effect to that in respect of section 40, which deals with the constitution of limited courts martial.
Amendment agreed to.
I move amendment No. 15:
In page 52, to delete lines 15 to 18.
Amendment agreed to.
I move amendment No. 16:
In page 52, to delete lines 19 to 23 and substitute the following:
"(2) The court-martial board—
(a) shall include—
(i) an officer of the Permanent Defence Force not below the army rank of commandant or the equivalent naval rank, and
(ii) at least one other officer who shall not be below the army rank of lieutenant or the equivalent naval rank,
and".
Amendment agreed to.
Section 40, as amended, agreed to.
SECTION 41.
I move amendment No. 17:
In page 53, to delete lines 6 and 7.
Will the Minister say why he is omitting certain persons? None of the following may serve on a court martial board: any member of the Defence Forces who is a barrister or solicitor. I can understand most of the others who might have an interest in the matter one way or another. However, I do not see why a member of the Defence Forces who is a barrister or solicitor is excluded.
The Bill provides, as Deputy Costello knows, that any members of the Defence Forces who are barristers or solicitors may not be members of a court martial board. The amendment seeks to remove this provision.
A person who is legally qualified in the Defence Forces is a potential member of the legal service. This fact, I am informed, could cast a doubt on his or her independence. In the recently enacted UK Armed Forces Act 2006, such persons are specifically disqualified from being members of what, in this jurisdiction, would be called a court martial board. Basically, it is the same reason barristers and solicitors are not chosen to serve on juries.
Amendment, by leave, withdrawn.
Section 41 agreed to.
Section 42 agreed to.
SECTION 43.
I move amendment No. 18:
In page 56, lines 21 and 22, to delete "the senior member" and substitute the following:
"the officer referred to in section 189(2)(a) or (3)(a)(i), as the case may be”.
Amendment agreed to.
I move amendment No. 19:
In page 56, lines 24 and 25, to delete "the senior member" and substitute "the officer referred to in section 190(2)(a)(i)”.
Amendment agreed to.
Section 43, as amended, agreed to.
Sections 44 to 52, inclusive, agreed to.
SECTION 53.
I move amendment No. 20:
In page 62, line 29, after "committed" to insert the following:
", or, where such person is incapacitated or deceased, on the application of a person who is the spouse or relative of such person".
The specific purpose of this amendment is to bring it into line with the normal criminal court system so that victim impact statements made by relatives of the deceased or an incapacitated person may be allowed.
This matter was moved in the Seanad on both Committee and Report Stages and I am still of the same view. The current provisions in the Bill are modelled on section 5 of the Criminal Justice Act 1993. I am not aware of any amendment having been made to date to section 5 of that Act. Although I have no objection to the general intention of the proposed amendment, I do not consider it appropriate to depart from the current position in ordinary criminal law. A practice now appears to exist of making it possible for a relative of the deceased to make a statement, rather than it being enshrined, for the moment, in law. I am aware of the ongoing debate regarding the operation of these provisions in ordinary criminal law. It would be appropriate to await the outcome of this debate and reconsider the provisions at that stage.
Section 5 of the 1993 Act covers this situation. The courts would appear to have taken the view that if a victim is unavailable, for example, in the event that he or she has been murdered, a relative can make a statement on his or her behalf before sentencing. That is a fairly generous interpretation of section 5 of the 1993 Act, but nevertheless we cannot argue against it. If we were do something else now with this section of the law dealing with a very small section of the population, it might give credence to the view that this interpretation is in some way incorrect. Therefore I would prefer matters to go through the normal process. However, if they change it as a result of the debate, to put the matter beyond any doubt, we will mirror that change.
I accept the Minister's argument.
Amendment, by leave, withdrawn.
Section 53 agreed to.
Sections 54 to 71, inclusive, agreed to.
Schedule 1 agreed to.
SCHEDULE 2.
I move amendment No. 21:
In page 83, column (1), line 19, to delete "Section 169(3)(d)” and substitute “Section 169(3)(g)”.
This amendment merely corrects an incorrect reference in Schedule 2.
Amendment agreed to.
Schedule 2, as amended, agreed to.
Title agreed to.
Bill reported with amendments.
