I think there should be some method to enable the Second House to have an opportunity of discussing the Bill.
This Bill purports to combine in one legislative measure all the necessary provisions in the existing Acts (amended where required to bring them into line with modern conceptions and practice) and to provide for additional powers considered necessary for defence purposes and suitable for inclusion in permanent legislation.
An outline of the provisions of the Bill is contained in the explanatory memorandum which has been circulated with the text. The Bill is a lengthy one, containing 316 sections, but it has been subdivided into almost self-contained parts.
Part I contains provisions of a general nature. It provides that the Act will come into operation on a date to be fixed by an Order of the Minister. A considerable number of regulations will require to be prepared and to be ready to come into operation simultaneously with the Act. This is the only reason why the operative date is being postponed. This part also contains provisions, similar to those in existing legislation, that persons subject to the provisions of the Bill—for example, members of the Permanent Defence Force—will continue to be subject to military law whether they are serving within or without the State. Later in the Bill (in Chapter III of Part IV), it is provided that, except in the case of persons serving on State ships, members of Óglaigh na hÉireann are required to serve only within the State. This does not, however, preclude members from serving voluntarily outside the State, e.g., on training courses or, as in the case of the Equitation Teams, in competitions of various types and kinds. Part I also continues the provisions in the existing legislation regarding the declaration of a period of emergency for the purposes of the Bill, the definition of active service and the effect of employment on State ships (i.e., ships used for defence purposes).
The opportunity has been availed of to include in Part II provisions which will replace those in the Ministers and Secretaries Act, 1924, in relation to the Council of Defence and the functions of the Chief of Staff, the Adjutant-General and the Quartermaster-General. These provisions are more appropriate to the present Bill. I will deal with that matter in more detail at a later stage.
Part III deals with the general organisation and maintenance of Óglaigh na hÉireann and continues the existing provisions regarding the Government's powers in these respects. The description Óglaigh na hÉireann is used as applying to the entire Defence Forces. It is proposed that Óglaigh na hÉireann will consist of the Permanent Defence Force and the Reserve Defence Force and provisions are included for the establishment of service corps of Óglaigh na Éireann and different classes of the Reserve Defence Force.
Under the heading of "Miscellaneous Provisions in relation to Óglaigh na hÉireann", provision is included for the compulsory acquisition of land where it cannot be acquired by agreement. The lack of such a provision in existing legislation has, on occasion, been a drawback, and having regard to the importance of military defence, it is necessary that this power should be provided. Other new provisions in relation to general defence matters would give the Minister powers, similar to those given to the Minister for Industry and Commerce in relation to civil aerodromes, to erect apparatus, e.g. warning lights, radio masts, etc. on lands in the vicinity of military aerodromes and to restrict the erection, on these lands, of such buildings, masts, etc. as might obstruct aircraft.
Power to make by-laws for military lands is also proposed subsequently (in Part VIII). By-laws would enable better provision to be made for controlling the use of military lands and for protecting the public against any danger arising from the use of the lands for defence purposes.
The provisions for the appointment, promotion, retirement, etc., of officers remain practically as they are at present. There is only one material change in the provisions affecting the service conditions of soldiers, and that is that power is proposed to retain non-commissioned officers and men in service during the whole period of an emergency, whether or not they become due for transfer to the Reserve Defence Force or discharge during that period. This provision applies only to men enlisted after the operative date of the Act, and men enlisted before that date retain their present liability only, i.e. to serve for 12 months after the date on which they are due for transfer to the Reserve or discharge, if that date occurs during an emergency.
The present Acts set out the automatic forfeitures of pay and the penal deductions which may be made from pay, but provide that other deductions may be made in accordance with regulations. It is now proposed to provide for forfeitures of pay, deductions of all types and stoppages from pay by regulations. The pay and allowances of members of Óglaigh na hÉireann and the conditions governing their issue do not remain static. Varying conditions may involve alterations, from time to time, of the extent and nature of the forfeitures, deductions and stoppages which may be made, and it is considered more convenient and preferable that provision for these matters should be made in regulations. Regulations regarding forfeitures, deductions and stoppages will be laid before both Houses of the Oireachtas and will be capable of annulment by a resolution of either House.
The provisions dealing with redress of wrongs now propose that every member of Óglaigh na hÉireann shall have the right to have a complaint against a superior officer brought before the Minister. At present, officers only have this right and men may not demand that their complaints should be submitted to the Minister.
A very large portion of the Bill is, as might be expected, concerned with the discipline of members of Óglaigh na hÉireann. There are no essential changes in the provisions as to the persons subject to military law. The offences against military law as set out in the Bill vary in form and description considerably from the provisions in the existing Acts. It is generally known that the provisions in the 1923 Act followed very closely the provisions in the British Army Act of 1881. In the 1940 (No. 2) Act, naval offences were prescribed in the Sixth Schedule. These offences were based on the offences set out in the British Naval Discipline Act, 1864. In the Bill, all personnel are now made subject to the one code described as military law and any distinctions as to separate offences under army or naval law are removed. The offences sections have been rearranged and altered but this does not mean that, except for certain provisions in relation to aircraft and air operations, any essentially new offences have been introduced. The existing provisions have been rearranged, definitions have been inserted where necessary and verbal alterations have been made in the description of the offences. Largely, the alterations in the offences sections arise from the consolidation of a variety of offences covering army, air and naval personnel.
The procedure for the investigation of charges against officers and men remains essentially as it is under existing legislation. The provisions for the constitution and jurisdiction of courts martial also remain as at present with one principal difference. That difference is that it is now provided in the Bill that an officer who, in an advisory capacity, dealt with the charges to be tried by a particular court martial or the evidence to be produced at that court martial or the conduct of the prosecution at that court martial shall be disqualified from serving as a member of, or judge-advocate at, that particular court martial.
A number of changes is proposed in relation to the action following a court martial. The first change is that the Government and the Minister will no longer be confirming authorities. At present, the Government is the sole confirming authority for a sentence of death imposed by court martial and the Minister has power to confirm the findings and sentences, other than a sentence of death, by any court martial. This alteration is being made on the grounds that neither the Government nor the Minister should exercise judicial powers in relation to findings and sentences of courts martial. The confirming authorities are otherwise the same as in present legislation and have the same powers of confirmation, mitigation, etc. with the addition of the power, at present given to the Government, to mitigate a sentence of death.
It should, of course, be emphasised that, while the Government is no longer a confirming authority, Section 225 requires that a sentence of death be not executed until the Government has approved of the execution of the sentence. This ensures that the Government will have an opportunity to advise the President, if such a course is considered desirable, to exercise his prerogative under Article 13.6 of the Constitution.
New features have been introduced by the inclusion of provision for the mitigation and suspension of sentences and imprisonment which have been imposed by court martial and have been confirmed. Under these provisions, a new stage is proposed in the proceedings for dealing with the results of courts martial and new authorities are proposed with powers to review sentences. A person tried by court martial would, therefore, have the safeguard not alone that the findings and sentence of the court martial must be confirmed but that even after confirmation, and even while he may be undergoing the punishment imposed by the court martial, his punishment can be reviewed and mitigated or suspended. In the rules of procedure provisions, it will be found that arrangements are proposed for the submission of petitions by or on behalf of persons convicted by court martial. A further new provision has been included in relation to confirming authorities to enable an officer to whom the finding and sentence of a court martial have been submitted for confirmation to refer the confirmation to a higher confirming officer. This would enable a confirming officer who feels that he is not competent, or would not be acting fairly in exercising his powers as a confirming authority, to refer the case to another confirming officer. It is felt that, under the Bill, adequate provision is made for securing every safeguard for the fair trial and revision of punishments awarded by courts martial to persons subject to military law.
Under Chapter X of Part V, it is proposed to make it an offence for an officer or man of the Reserve Defence Force to join the armed forces of another State. This is a new but a common-sense provision.
The Bill contains in a separate part (Part VI) the matters which are general offences in relation to Óglaigh na hÉireann and military property. That part concerns members of the public to a large extent. The only new provisions included are those which prohibit the alienation of identity and similar certificates or documents issued to a soldier as evidence of his right to pay or pension, e.g. as security for a loan, and the prohibition on the sketching or photographing of military fortifications, etc. by unauthorised persons or trepass on such fortifications.
The provisions in existing legislation regarding the holding of manoeuvres lack specific definition. The existing legislation (Section 30 of the Defence Forces (Temporary Provisions) Act. 1923) simply provides that the Minister may appoint areas wherein military manoeuvres may be carried out and that he may, by regulation, prescribe the conditions under which compensation may be claimed by or paid to owners or occupiers of land in the areas in which manoeuvres are carried out, in respect of damage or loss sustained by them in consequence of the use of their land for manoeuvres. The only prohibition is on the erection of a camp within a radius of 200 yards of a private dwellinghouse. A separate part of the Bill (Part VII) is devoted to manoeuvres, etc. and in this part it is proposed to lay down a specific procedure for the declaration of a manoeuvre area, together with a clear indication as to the powers which may be exercised by the military authorities and the restrictions to be observed by them. Part VII also sets out clearly the prohibitions, as they affect the public, on interference with manoeuvres and repeats existing legislative provisions in relation to temporary stoppage of traffic during manoeuvres and other military practices.
The statutory authority for the existing Army Nursing Service derives from the powers of the Minister to employ civilians for duty with the forces. The Army Nursing Service is now an essential part of the defence organisation and it is a misnomer to describe the service as civilian. Furthermore, the position of the members requires clarification to ensure that there is no doubt as to their protection in time of war under the Geneva Conventions of 1949. For these reasons, the Army Nursing Service has been declared to be a component part of the Permanent Defence Force, It is not considered desirable at this stage, however, to treat the members of the service, for all purposes, as members of Óglaigh na hÉireann and so, for instance, to make them subject to military law and trial by court martial. The intention is that while the service is declared to be a component of the Permanent Defence Force, the members will serve under special conditions to be laid down in regulations, as at present, and that the engagement of members will continue to be on the basis of signed agreements. The members are, however, being disqualified from being elected to the Dáil or Seanad or a local authority.
At a time when Óglaigh na hÉireann or any part of it would be engaged on active service, all persons employed with it or attached to it would of necessity have to be subject to military law. For this reason, and to allow flexibility with regard to any other changes in organisation which might be necessary in the future, it is proposed in the Bill to provide that the Minister may by Order apply any of the remaining provisions of the Bill to members of the Army Nursing Service. The Bill proposes that such an Order would, however, require confirmation by both Houses of the Oireachtas before it could come into operation. It is not the intention that the enactment of the Bill should interfere with the continuance of existing agreements.
Part X contains provisions to secure the continuity of service of existing personnel of the Forces and the Reserve and the continuance of those rights which they hold at present in regard to discharge at the termination of their engagement, service during a period of emergency and service in a particular service corps.
The enactment of the Bill will necessitate the adaptation of some Acts, principally those in which reference is made to the existing or former Defence Forces and the amendment of other Acts arising from certain provisions in the Bill. This is covered by Part XI of the Bill.
In Part XII are contained the miscellaneous provisions which could not be fitted into any of the earlier subdivisions of the Bill. These miscellaneous provisions relate to certain restrictions on recruiting for armed forces of other States and the wearing of foreign uniforms in the State. Provision is also made for the exemption of service entertainments from certain statutory restrictions as regards the use of premises for public entertainments or amusement and for the necessity for complying with certain steps in the licensing procedure in order to obtain a licence for a canteen. Provisions are also included covering salvage claims and continuing certain facilities to solicitors' apprentices who served in the Defence Forces during the emergency. All these are in continuance of existing legislation.
As I say, the Bill is a very extensive one and a White Paper was circulated with it which, if Deputies had read it, would considerably assist them in dealing with the various sections. I do not know whether it is necessary that I should go through it section by section. I presume that that would be better on the Committee Stage. There are, however, a few points to which I would like to draw special attention. One is Section 11, which establishes the Council of Defence. It adds the Secretary of the Department of Defence as a member of the Council of Defence. Heretofore he was just the secretary; he had no function. As he has already certain executive authority as secretary, it is felt that it would be wise to add him to the Council of Defence. That, of course, means that there would have to be an amendment to the Ministers and Secretaries Act.