Léim ar aghaidh chuig an bpríomhábhar

Dáil Éireann díospóireacht -
Wednesday, 13 May 1987

Vol. 372 No. 8

Defence (Amendment) Bill, 1986: Committee Stage.

(Limerick East): It is obvious that the political action is taking place elsewhere this morning. I am representing Deputy Seán Barrett whose mother died this morning and I would like to facilitate the Minister for Defence in taking this Bill. I would appreciate it if a member of the staff would provide me with a copy of the Bill. I am quite happy to take Committee Stage.

I send the sympathy of the House to Deputy Barrett and his family on the death of his mother.


Question proposed: "That section 1 stand part of the Bill."

(Limerick East): I would appreciate it if the Minister would give a short explanation of each section.

Limerick West): This section defines a day's pay for the purpose of the new pay-related maximum fines in respect of offences against military law. The exclusion of additional pay and allowances in this section will ensure uniformity of treatment under the law of persons of equal rank and service irrespective of any additional pay because of individual circumstances. As the Deputy knows, there are basic incremental scales of pay prescribed for all ranks of the Defence Forces which ensure that officers and men of equal rank and service are paid the same basic rates. There are, however, various additions to basic pay in certain circumstances; for example, professional or trade qualifications and for Border duties, escorts and so on. Apart from the administrative convenience involved, it is considered equitable that any additional payment because of individual circumstances be ignored in the calculation of a day's pay. I should like to give examples of a day's pay at the maximum current rate: a captain receives £39.93, a lieutenant £35.30, a sergeant £27.22, a corporal £24.57 and a private £22.55.

Under section 120 of the Principal Act, a person who has ceased to be a member of the Defence Forces may be tried and punished for an offence committed while he was a member of the forces provided that his trial commences within three months after leaving the Defence Forces. This section basically deals with interpretation and if the Deputy requires further information I shall be glad to give it to him.

(Limerick East): As this is my first time to have a formal discussion in the House with the Minister, I should like to take this opportunity of congratulating him on his appointment. All Members, especially those from the same county, appreciate his long service to politics and the dignified way in which he has always behaved in the local authority and in this House. We are all happy about his promotion.

The Minister has given a full explanation in regard to this section. In the case of members of the Defence Forces serving overseas with the United Nations and in the event of a disciplinary offence occurring in, say, Lebanon, does the same criterion apply in relation to pay?

(Limerick West): It is the basic pay which applies at home. Allowances for overseas services or for other duties are not included. I wish to thank the Deputy for his kind words, compliments and congratulations.

Question put and agreed to.
Question proposed: "That section 2 stand part of the Bill."

(Limerick East): I am sure the Minister's brief contains much useful information. Perhaps he would expand on this section?

(Limerick West): This section updates the level of maximum fines which may be imposed by the District Court for a variety of offences in relation to military affairs and service property. It provides for increases in the maximum fines which may be imposed on summary conviction in the District Court for offences in relation to military affairs or property under various sections of the Principal Act. The existing levels of maximum fines were set more than 30 years ago and are very much out-of-date. To compensate for the decline in money values since 1954, generally speaking a tenfold increase is provided in this section. However, persons convicted of certain offences may, as an alternative to a relevant fine, be sentenced to imprisonment and a fine or both. There are 35 offences in relation to military affairs and property which are punishable by the District Court; 34 are listed in this section and the remaining one is covered in section 13.

Will the Minister outline the maximum fines which will now apply?

(Limerick West): The offence of obstruction of an authorised officer in the exercise of powers of entry to land is punishable at present by a fine of £20 which it is proposed to increase to £200, a tenfold increase. Failure to attend as a witness before an authorised or commanding officer dealing with an offence against military law is punishable at present by a fine of £5 which it is proposed to increase to £100. That is more than a tenfold increase because it is a very serious offence. Interference, etc., with signalling apparatus or navigational aids erected by the Minister and obstruction of an authorised person is punishable at present by a fine of £100 which it is proposed to increase to £1,000. Making false answers to questions on attestation papers is punishable at present by a fine of £20 which it is proposed to increase to £200. These are not pay-related fines. Pay-related fines arise under sections 3 and 4.

Is section 2 agreed?

In respect of the scale of the increases in the fines now indicated, could the Minister indicate the number of offenders who in the normal course of events would merit the maximum fine? It is a cause of concern that some of the soldiers who are deemed offenders and are before the tribunals could face fines of £1,000. Given the level of pay in the armed forces, particularly the regular forces, it has to be appreciated that a fine of £1,000 would represent a very substantial penalty. Apart from the fact that this Bill is meant to update the legislation which is now some decades old, could the Minister tell us if there are any other reasons why the armed forces feel they need penalties of this severity? Is there any suggestion there is an increase of disorder in the forces? Do the military personnel in command believe they are losing control of the rank and, for that reason, need the greater sanctions? It would appear that after the imposition of the ignominy of penalty within the forces, the delay in promotion and in the consequent increase in responsibility if one ends up answerable before these tribunals is sufficient to impose the discipline necessary. Are we to some degree involved in an arithmetic, arbitrary and foolhardy exercise in increasing fines which up to now were in the order of £100 but which from now on will be in the order of £1,000? What is the view of the Minister in that respect?

(Limerick West): I would like to remind the Deputy that all the offences covered by this section and by section 13 when we come to them are punishable by the District Court and the persons who would be charged and tried for such offences would be persons not subject to military law. A person subject to military law who commits one of these offences, for example, incitement to mutiny or encouragement of desertion, would be charged and tried by a court marital under a separate section of the Act with an offence against military law and punished accordingly. In response to the Deputy's direct question, our records show no prosecutions under any of the sections involved have been instituted in the District Court.

Do we need this legislation at all then?

The maximum fine is going to be £1,000. I can appreciate it is important to update the fines — that has happened in many other areas also — but I presume that before the maximum fine would be imposed a very serious offence must have been committed. I want the Minister to point out how serious the offence must be before the maximum fine can be imposed. What would happen if the person is not able to pay the fine, which, as Deputy McCartan pointed out, is quite likely? There must be a humane approach to this matter and I would like to think that on an occasion such as this we would explore every avenue as it is a very serious matter, admittedly if only for a few soldiers. Nevertheless, it is very important that we are not seen to be too severe vis-à-vis the fines.

(Limerick West): Again, I must point out to the Deputy this is not subject to military law but to the District Court. The fines and the punishments which I have just outlined are the maximum that could be imposed. The level of fine in any case would be a matter for the discretion of the District Court. I have given the Deputy some examples of the offences committed which would be subject to the penalties I have outlined. Obviously, all of the offences would not carry the maximum penalty of £1,000 and it is an exaggeration to say that all offences would carry a fine of £1,000. The amount of the fine would depend on the nature of the offence committed. The fine for dyeing and conversion of uniforms used to be £10 but it is now going to be increased to £100. The fine for bringing contempt on the uniform was £20 but this is now going to be increased to £200. As the Deputy is aware, the district justice would use his discretion in situations such as these.

In the case of non-payment of a fine I presume normal law would operate and a prison sentence would follow?

(Limerick West): Yes. The normal law would apply and that would be a matter for the courts to decide, as pertains at present in the civil courts.

In view of the Minister's earlier reply in regard to the fact that there have been no proceedings of this nature in the past and looking at the range of offences he indicated which seem to deal pre-eminently with military matters, has the Minister considered the desirability of having jurisdiction vested in the District Court to try these types of offences and should they not all be vested within the court marital procedures?

(Limerick West): I am advised that these are offences committed by civilians and are punishable, as the Deputy is aware, in the District Court.

Question put and agreed to.
Question proposed: "That section 3 stand part of the Bill."

On section 3 I take it we are talking about the District Court and the military tribunals. Will the Minister outline to the House what basically is the difference between the two?

(Limerick West): Section 3 refers to military law as distinct from section 2 which refers to civilian law. For the benefit of the House, I would like to state that section 3 provides for increases in the levels of maximum fines which may be imposed for offences against military law and the maximum amounts which an offender may be ordered to pay by way of compensation where compensation is appropriate. It also provides for the linking of those maximum amounts to the daily rate of pay of the offender. As I have said, the section provides for increases in the levels of the maximum fines awardable and where such offences occasion any expense, loss, damage or destruction compensation payable on summary conviction of an offence against military law in the case of officers, non-commissioned officers and privates.

Section 4 (1) (b) and (2) (b) provides for similar increases in the maximum fines awardable and in compensation payable on conviction by court marital. The current maximum fines awardable and compensation payable which were fixed in 1954 are now of nominal impact and are regarded as ineffective. It is necessary to increase the present maxima to realistic levels. However, instead of prescribing increased monetary maxima, it is considered preferable that the maximum fines and compensation should be expressed in future in terms of a prescribed number of days' pay. To this end the intention is that, broadly speaking, the relativity between the Defence Forces pay rates and the maximum fines and compensations which existed in 195455 should be restored and maintained. As the various maximum levels of fines imposible will increase or decrease in accordance with the movement in pay, they will remain at a realistic level and will continue to have a deterrent effect, which is not the case at present.

It is most undesirable that the unsatisfactory situation that applies now in relation to fines, which has developed over the years since the levels were set, should be allowed to recur. A seriously unsatisfactory situation arises. By making the fines pay-related, the necessity for frequent amendments to the Defence Act of 1954 in order to keep fines at a realistic level will be avoided. The purpose is to update the fines and when I am talking about fines I am talking about maximum fines. Again, there is discretion within the court marital to impose any level of fine up to the maximum.

At this stage I cannot disagree with that concept. It would appear that that is a better system than having to bring in a Bill every so often and keep updating it. There are a few points related to this section about which I should like to ask the Minister. I understand that non-commissioned personnel may be charged with an offence under military law. If they are found guilty on trial by a commanding officer, they can be sentenced to a very severe reprimand and it can be quite serious from their point of view under that regime. One could argue that if they appeared before a District Court the fine could be very small. There could be a great difference in the treatments. I should like the Minister's view on that aspect. There is some body of opinion in the ranks that would suggest that they would be much worse off appearing before a commanding officer vis-à-vis their future in the Army and their prospects of promotion.

(Limerick West): We are talking now of military offences tried before a commanding officer. The Deputy is quite right in what he has said. I want to give some examples of the monetary amounts involved and to re-emphasise that the levels of fines are the maxima. Officers imposing fines will be aware of the maximum figure applicable in each case but will have complete discretion to impose a fine of a lesser amount where this is deemed appropriate to the offence involved. I am happy that this discretion will be exercised in a humane and sensible manner by the officers concerned.

With regard to fines, we shall take the private soldier as an example. The maximum he may be fined at present on summary trial is £2. In 1955 this represented about three days' pay. The Bill proposes that the fine should be a maximum of three days' pay, or in presentday terms about £67. The fines will, in practice, be expressed by the awarding authority as specific monetary sums. Taking the private soldier again as an example, the maximum compensation he is at present ordered to pay on summary trial is £10, about two weeks' pay in 1955 terms. The Bill proposes to increase this to a maximum of nine days' pay, or about £200 in current terms.

Discipline, as the Deputy knows, is essential in the Defence Forces and the system of military law is designed to enforce discipline. If a soldier does not want summary disposal of a charge, he may opt for a court marital. He may then appeal to the Courts Marital Appeal Court. There are many avenues and many appeals open to him. It is essential that we have discipline and this comes from the military themselves.

Is it true that where there is no monetary penalty a person charged with an offence does not have any right of appeal before a court marital or the commanding officer? If that is the case, why not? I should have thought that there would be recourse to some type of appeal, whether inside or outside the Army. I can see how important discipline is in connection with the Army.

(Limerick West): This is subject to review by a superior officer and ultimately by the Minister.

So eventually it gets back to the Minister?

(Limerick West): Yes. The Minister has the supreme power.

What actually happens to members of the Defence Forces who are brought before the commanding officer, or indeed before a District Court — although I am not too sure about that part of it? Regarding actual charges brought against them, are these personnel aware of the file that is being built up in the Army by their superiors on a continuing assessment basis? Where members of the Defence Forces are in bad standing, but unknown to themselves, what is the process by which any "black mark" is made known to them? Are they fully aware at all times of what transgressions or otherwise their commanding officer may think they have committed? Are they made aware of what is written down in their file?

(Limerick West): They would not have access to that file but they would have information in advance as to the offences with which they are being charged. It is important that they should have that information.

Is it not important, reasonable and fair that in the normal course of justice they should have that information? I am not saying that there is anything wrong with the system but it has been pointed out to me on a number of occasions that some rank and file members of the Army believe they are hard done by. I am told that one of the things that is worse than being hauled before a court marital is to make a complaint, in that those who complain, unlike in civilian life where the child that cries the loudest is fed first, are treated differently.

In the Army there is a belief that if one complains one hinders one's opportunity of getting promotion. Will the Minister reassure the House that that is not the case? Some people in the Army hold the view that to make a complaint within the Army structure means that the complainant is not likely to progress up the ladder.

(Limerick West): That does not apply. I should like to tell the Deputy that the person concerned can make a direct appeal to the Minister to redress any wrong or injustice. There is a provision to that effect in section 114 of the 1954 Act. A person who does not wish to be dealt with summarily can opt for trial before a court martial. I must point out that many complaints are dealt with at company and unit level. Any officer or man who feels he has a complaint may discuss it with his commanding officer and if the matter is not resolved to the complainant's satisfaction he may seek an interview with his brigade or command OC. Most problems are resolved in this manner.

How many such complaints were referred to the Minister in the last three or four years?

(Limerick West): I am advised that in the last ten years about 60 cases were referred to the Minister.

How many of those cases were resolved in favour of the complaint?

(Limerick West): I do not have that information but I am sure I can make it available.

I would be greatful to receive that information because I am anxious to know how the proceedings work out. The redress of wrongs was mentioned in the course of the Second Stage debate by the Progressive Democrats who intimated that they intended tabling an amendment on Committee Stage. However, I do not see any sign either of the amendment or of a member of the Progressive Democrats. I do not see anything wrong with the system in that it should be possible to make an appeal to the Minister but I would be interested to learn of the outcome of such appeals to the Minister.

(Limerick West): The number of cases referred to the Minister is very small as is the number of cases where the Minister decides in favour of the complainant. That can be attributed to the fact that most problems are resolved by his superior officers to the complainant's satisfaction. Many of them are dealt with at company and unit level and any officer or soldier who feels he has a complaint may discuss it with his commanding officer. If it is not resolved to his satisfaction he may seek an interview with his brigade or command OC. Most problems are resolved in this manner. Generally speaking applications to the Minister for redress of wrongs are only resorted to when all other approaches have failed to satisfy the complainant. I should like to emphasise that as far as this matter is concerned the person, officer or soldier, has direct access to the Minister to redress any wrongs or injustices. That is enshrined in section 114 of the 1954 Act and it is something I highlight on my visits to the different Army barracks. I will be continuing those visits in the coming months. I make it a point of having a discussion with the officers and men and make it clear to them that I want to be a Minister who is accessible. I point out to them that as of right they have access to the Minister for Defence to redress any wrongs.

It is appropriate to point out that the punishments awardable by authorised commanding and subordinate officers are strictly limited by law and fall very far short of the scale of punishments which may be awarded by courts martial. Any officer or man who is being dealt with summarily and in whose case the officer trying the charge proposes to impose a fine or some other punishment involving monetary loss is entitled to opt for trial by a court martial or, in the case where a private or seaman is being tried by a subordinate officer, to have the case dealt with by his commanding officer. There are offences which may be disposed of summarily and they are laid out in the 1954 Act, for example, disobedience to a superior, insubordinate behaviour, disorderly conduct, absence without leave, a false statement about leave, drunkenness, obstruction of persons carrying out police duties, unauthorised use of service vehicles and conduct which would not be conductive to good order or discipline. In addition, some offences in relation to custody and enlistment may be dealt with summarily but only after reference to a superior authority who may or may not agree to summary disposition.

I might add that only junior officers, captain and lower ranks, may be tried summarily and the offences for which they may be tried summarily are not specified. The authorised officer to whom the case is referred has discretion in each case. The Deputy will appreciate that the procedure is wide ranging and fair and that justice is done to complaints at all times.

There are two further questions on which I would like the Minister to enlighten me. One concerns the question of having a legal representative at the officer's disposal in the event of his being brought before a commanding officer. Is it possible for him to have access to a legal representative? The other question relates to confidential reports in relation to non-commissioned officers. Do NCOs have an opportunity to be informed about what goes into assessment reports complied by their commanding officers about them and, if not, why do they not know what is happening?

(Limerick West): Assessments are made for officers annually and they have access to those.

(Limerick West): Officers.

What about the other ranks?

(Limerick West): There are no assessments. With regard to the Deputy's other point in relation to legal representation, in summary convictions this is very informal. It is not necessary to have the offender legally represented. These are very informal and so far as possible are disposed of. Of course, the officers can opt for court martial if he so desires and then he can be legally represented. In the summary conviction we would hope that he would be dealt with in a manner that is acceptable so that justice would be seen to be done to all concerned.

In certain circumstances some members of the force may feel that they were hard done by in relation to a serious matter because they were not allowed to have access to a legal representative. What is the view of the Army on rank and file members of the Army bringing complaints to elected representatives? What is the code of conduct there?

(Limerick West): The Deputy probably knows the answer to that as well as I do. They should not do it because it is contrary to proper order and proper discipline. It is not acceptable and I suggest that it should not be done. Military life is totally different from civilian life. I was going to say the Army live in a different world. They do not but their approaches to many things are different from ours. I would not favour political interference or officers or NCOs making representations to politicians. It is contrary to proper order within military life. Proper discipline is essential in the Defence Forces and the system of military law is designed to enforce that discipline.

When I asked that question I expected the answer I got. The Garda Representative Body are vociferous on matters relating to employment so far as the Garda are concerned. In so far as the Army are concerned I would like to hear the Minister's general view on their right to form associations. We do not have that system here. I am not advocating it. It has been mentioned to me that there may well be a case where a soldier has a grievance and, unless it comes up through the ranks, human beings being what they are, he might come up against a blank wall. I know he has redress to the Minister and that eventually the complaint will reach the Minister's desk. That is right and proper. Considering the way this has evolved in other walks of life, would the Minister see any opening in the near future for some form of association in which officers could talk about their problems in a more public way?

(Limerick West): None whatsoever. There is internal discipline in the Army. As I have already pointed out to the House, there are means, ways and measures built into the Defence Acts, in particular the 1954 Act, whereby any wrong that has to be righted can be righted under the machinery available within the Defence Forces. There is no comparison whatsoever between what the Deputy has just outlined in other bodies and the Defence Forces. I want to reiterate that the discipline which is essential in the Army could not operate if there were organisations or other bodies looking after their interests. This comes from the military and it is accepted by them. As I said previously officers have direct access to their superior officers and ultimately to the Minister. I have outlined this right time and time again on visits to various barracks throughout the country. This right has not been denied by any Minister for Defence in the history of the State. Any wrongs or injustices have been treated fairly and this has been acceptable to the military.

I want to thank the Minister for making this important statement. From my knowledge the system for the redress of wrongs has worked quite well. It is important that that should be made known on the floor of the House as the Minister has done and I want to be associated with that.

(Limerick West): I want to point out that I am not the only one to have said this. The former Minister for Defence, Deputy Cooney, emphasised this point during the Second Stage debate on this Bill. It is important that I should emphasise a view other than my own Deputy Cooney said that the application for the redress of wrongs is submitted to the Minister in such a way that the Minister can make proper and fair decision. He went on to say that the Minister would, of course, have available to him advice from both the civil and military sides of the Department on any technical consideration involved in any particular case, but that this should not and does not interfere with the independence of the Minister in reaching his decision.

I am very satisfied that this procedure has worked well and will continue to do so while I am Minister for Defence. Every decision submitted to the Minister has been dealt with fairly and in a way which is acceptable to all concerned. Before it reaches the Minister, the redress of wrongs is dealt with by the superior officer. The Deputy can be assured that no injustice will be done. We have to be seen to be fair to the officers and men concerned because of the importance of discipline within the Army. That discipline applies to superior officers and to the Minister in so far as he must deal fairly and squarely with any matters submitted to him for his consideration. There must be discipline all round.

What the Minister has said regarding the availability of this procedure and accessibility to the Minister by all members of the Force is very important. Does he consider that there is a certain element of contradiction in the notion of a direct line of access to the Minister since the complaint is processed and communicated through the aggrieved person's superior officer? From my limited experience as a practitioner in this area before entering this House, it appears that often the efforts of aggrieved members to seek redress of wrongs can be thwarted by a superior officer, who would identify his interests more closely with the deciding officer against whose decision the aggrieved member is seeking redress and access to the Minister. I do not wish to denigrate the system, which has an exceptionally important proviso that any member can seek redress to the highest authority within the Armed Forces. It is an exceptionally democratic procedure, but nevertheless there is and can be a tendency on occasion for the system to work less directly than the Minister has outlined. In many instances the redress of wrongs procedure is resorted to where there has been pettiness on the part of superior officers towards the enlisted man. It is often an embarrassment that these matter should go as far as the Minister's desk. When an aggrieved member seeks to embark on this process the inclination is to prevail on the aggrieved member not to pursue it because of the sheer pettiness of the matter. We in the civilian side of life often lose sight of the confined atmosphere within the Armed Forces and the fact that a very small and petty decision can have profound implications for the enlisted man. This underlines the importance of ensuring that there are no impediments in the process of appeal to the Minister. Perhaps the Minister would consider the question of the line of communication being through the superior officer of the aggrieved person.

(Limerick West): I can give the Deputy a categoric assurance that direct access to the Minister will not be interfered with in any way. The aggrieved officer can address his complaint to the Minister but it has to go through the normal channels. There is absolutely no question of any officer being able to prevent a complaint reaching the Minister. I give that assurance and if during my term as Minister such an event occurs I will consider it a very serious misdemeanour.

An important feature of the redress of wrongs procedure is that the test of eligibility of the complaint to be considered under section 114 of the Defence Act, 1954 is what the complainant himself thinks and not what any other person may feel. If the complainant thinks himself wronged in any matter by his superior or other officer in the case of an officer, or by an officer or other man in the case of a man, then the complainant has a statutory right to make his complaint and have it investigated. The Act provides that the Minister shall inquire into the complaint and give his directions thereon. Each complaint is thoroughly investigated and all the facts are sent to the Minister, who personally examines each case before giving his decision.

It is fitting that we should have spent some time discussing this aspect because of the importance of discipline in the Army. Discipline is a two way operation. The redress of wrongs procedure is an important aspect of discipline and it has been enforced by every Minister for Defence in the history of the State.

It would be unthinkable that any person would attempt to stultify an application for redress of wrongs to deprive the applicant of his statutory right. It would be unthinkable in principle, but as a matter of prudence if any person was toying with such an idea he would be literally putting his career on the line. There is no way there could be interference in that process.

Progress reported; Committee to sit again.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.