I move: "That the Bill be now read a Second Time."
The main purpose of the Bill is to provide for the establishment of associations for the purpose of representing members of the Defence Forces on remuneration and related matters without compromising the essential military systems of command and control. The new arrangements will give members a representative voice on pay, allowances, grants and pensions and various other matters as well as access to conciliation and arbitration for the first time.
The Bill, in essence, is an enabling one. Before dealing with the background to it and the main underlying considerations, I shall run through the main provisions.
Section 1 deals with definitions. Section 2 provides for the establishment of associations, the scope of their representation and excludes matters such as operations, command and discipline from the scope of such associations. This section also recognises the right of individuals not to be members of an association and provides that the association will be independent of and will not, without the Minister's consent, be associated with, or affiliated to any trade union or other body. It also provides that members will not join a trade union or body, other than an association established under the Act, which seeks to influence the remuneration or other conditions of service of members of the Defence Forces.
Section 3 provides that the association will be inoperative during a state of emergency as provided for in section 4 of the Defence Act, 1954. Section 4 of the Bill deals with circumstances in which the Defence Forces are on active service and section 5 deals with members serving overseas.
Any person, whether subject to military law or otherwise, is prohibited by section 6 of the Bill from endeavouring to persuade a member of the Defence Forces to join a trade union or other body — except an association established under section 2 — and penalties for a breach of the section by persons not subject to military law are provided for. Persons who are subject to military law and who are in breach of this section are comprehended by the existing provisions of the Defence Act, 1954. Sections 7 and 8 are, I think self-explanatory.
The background to the Bill is that last July the Taoiseach anounced two major new developments regarding the Defence Forces. For the first time ever a completely independent prestigious commission was established to inquire into the remuneration and conditions of service of the Permanent Defence Forces. The deliberations of the commission are proceeding. On the same occasion the Taoiseach announced that I had instructed the Chief of Staff to make preparations for the establishment of a new structure regarding remuneration and related matters for privates, non-commissioned officers and officers. Since then considerable study, research and consultation has taken place.
There are fundamental constitutional and policy issues involved in this matter. The constitutional right to form an association is not an absolute or unqualified right. Article 40.6.1º provides that laws may be enacted for the regulation and control in the public interest of the exercise of the right — thus explicitly providing for the limitation of the right. The courts have made the position very clear in a case involving the Garda Síochána; in Aughey v. Ireland, it was held by the High Court on 29 August 1985 that—
the right of association in Article 40.6.1º (iii) of the Constitution is subject to public order and because of their close connection with the security of the State, Gardaí may have to accept limitation on their right to form associations and unions which other citizens would not have to accept.
The need to regulate the right applies, I suggest, a fortiori in the case of the armed forces of the country and there can be no question of allowing unregulated development. This House has a particular responsibility in that connection since under the Constitution — Article 15.6.1º — the right to raise and maintain military or armed forces is vested exclusively in the Oireachtas.
The supreme command of the Defence Forces is vested in the President under Article 13.4º, and Article 13.5.1º provides that the exercise of the supreme command shall be regulated by law.
The Constitution, therefore, recognises the unique position of the Defence Forces and the manner in which the State may provide by law for their organisation and control.
The organisation of the Defence Forces is specifically provided for in the Ministers and Secretaries Act, 1924 and the Defence Act, 1954. It is but one of a number of functions in relation to the Defence Forces the exercise of which, for fundamental reasons, is controlled and regulated.
This controlled and regulated system of the exercise of command and authority is fundamental to the raising and maintenance of a defence force in a democratic state. We live in a Parliamentary democracy which implies that the armed forces are subject to civil control. We have a system which has stood the test of time and any development which involves the creation of a new institutional arrangement in that system has to be examined against the background I have outlined. It is important to get the balance right. It is important that members of the Defence Forces feel they have a representative voice in relation to their pay and other conditions of service. It is equally important to ensure that any developments in this area will not be incompatible with the system of command in the Defence Forces and will not compromise good order and discipline. This matter, therefore, requires careful and mature examination to try to accommodate the legitimate wishes of the members of the Defence Forces with the requirements of the public good.
A study group was established by the Chief of Staff and members of the group visited Denmark and Italy to study the operation of representative associations there. The position in Great Britain was examined also and information was assembled on a number of other countries.
From the information which is available it is clear that there is great diversity in the arrangements in different countries. A report in March 1988 by the Legal Affairs Committee of the Council of Europe concluded that the number of member states of the Council of Europe which recognise the military right to form and join trade unions equals the number of member states which do not.
In any event, while the systems which apply in other countries are of interest, it is necessary that we should try to design a system which is the optimum one for our circumstances. An important consideration in that connection is the fact that, unlike the majority of other armies in Western Europe, the Permanent Defence Force is an entirely volunteer force.
It has been repeatedly alleged that there has been no consultation and that a system is being imposed. The factual position is that from day one in the evolution of the new process I sought to involve those who are affected by the new system: from an early stage any information of a substantive kind was made known to the force through letters issued by the Chief of Staff, press statements and replies to questions in this House.
As Deputies will be aware, three military teams were assembled — one for officers, one for non-commissioned officers and one for privates — in connection with the Independent Pay Commission. Early last December I addressed these teams on the representative structure issue as part of the process of consultation which I wished to have undertaken. Later I prepared a document for dissemination throughout the force and as a basis for discussion with the teams by the military study group which had been set up. The document contained the broad principles regarding representation and the views of the force were sought on it.
Even at this stage the process of consultation is still only in an early phase: consultation is the essence of the new arrangements — I emphasise this — and will continue as an integral part of the arrangements. It is, however, obviously necessary to make a start somewhere and democratic elections, by secret ballot, will form a sound basis on which to proceed. There is absolutely no question of a system of representation being imposed on Defence Forces personnel without consultation and in essence this is an enabling Bill. In order to avoid any misunderstanding or confusion on this issue, I wish to emphasise that the structures to be put in place will be the subject of discussion, consultation and agreement with the duly elected representatives after the first election. As regards the structures, what is involved here is the question of the number of representative associations, the number of representatives, their distribution geographically and the practical arrangements throughout the Permanent Defence Force. In sum the entire representative structure, in all its aspects, will be the first business for discussion with the duly elected representatives. I attach particular importance to this; there can be no question of an imposed structure which would be counter-productive and would do more harm than good. Once the democratic process under the protection of the legislation is gone through, real dialogue on this central issue will take place. The structures once agreed will then and only then be incorporated in regulations which will be laid before the Oireachtas.
To avoid doubt, I wish to add here that the formal establishment of the associations and the making of the relevant Defence Force regulations will not take place until after the consultations and dialogue to which I have referred and the various issues involved have been resolved.
As the House will be aware, in broad outline, what is envisaged, is that the associations will represent members in relation to remuneration — pay, allowances, gratuities, grants and pensions — and other matters to be prescribed by regulations. Their role will also include welfare matters such as credit unions, recreational facilities, medical benefit schemes and family support systems, on the same lines as the Garda representative bodies which are also protected by legislation and regulation.
Spokespersons for the associations will be permitted to make statements to the news media on matters which fall within their mandate and the associations will be permitted to raise money by subscription, in addition to receiving certain facilities by way of accommodation and staffing from the Department. A system of conciliation and arbitration will be provided for the first time which goes beyond any demand or request made by anyone in the Defence Forces in recent times. This is the most important initiative I am now proposing to put in place — a system of conciliation and arbitration which compares with the system that obtains in regard to the Garda Síochána and in regard to the public service generally. The real power that the new representative bodies will have will be that they can do more than just make representations and suggestions. They will be permanent participants in the conciliation and arbitration regime such as has obtained successfully in the public service generally.
Last week the Chief of Staff circulated a detailed booklet outlining the military proposals for the new system. I hope that this booklet, copies of which I have made available in the Dáil Library and sent to Deputies, will be studied in detail by each Deputy and individual member of the Permanent Defence Force to whom it has been sent. I hope it will form the basis of widespread constructive discussion towards the final resolution of the question and the establishment of the representative structure.
Throughout the entire process the Government have sought to avoid a situation where democratic procedures might be pre-empted. Every opportunity will be accorded to the duly elected representatives to participate in the formulation and finalisation of the arrangements which can then be incorporated in regulations. The process of establishing the necessary structure on a statutory basis will prevent the development of a proliferation of groups and spokespersons which would be most undesirable and against the interests of the personnel of the Defence Forces. In that context it is disappointing that certain self-appointed individuals, however well-intentioned, should take it upon themselves to try to pre-empt the results of the democratic elections which will take place. I am seeking to establish a democratic process as a legitimate basis upon which a representative association can be established and that that representative association will be protected by legislation and regulations, in the preparation of which they will have participation.
As I mentioned earlier, the views of all members of the Permanent Defence Forces were invited in the early stage of this process and proposals submitted by individuals contained much that was acceptable and formed a valuable input into the examination which culminated in the presentation of draft legislation. The scheme which is envisaged for members of the Permanent Defence Forces is, however, more comprehensive and in certain respects goes much further than what is contained in some proposals which were put forward and would, I am satisfied, best serve the interests of all concerned.
As regards the first elections — it is important to say this in order to again clear any confusion about allegations which may be made — it is my intention that the principal officer of the franchise section of the Department of the Environment, Mr. Tim Sexton, who is a well known expert on elections and referenda and a public official of long standing, will supervise these elections. Before the elections take place he will seek, by way of submissions from all interested parties, including PDFORRA, to determine a system of election which will find acceptance throughout the Defence Forces. His task before these elections take place is to seek these submissions to ensure that a totally acceptable, above board and legitimate form of election or elections will take place by secret ballot. The count will be taken under his supervision and with any safeguards he may seek to impose in order to ensure absolute propriety in regard to all aspects of both the election and the count. He will establish this electoral structure after consulting with all the interested parties and seeking submissions from them on what form these elections should take. All elections will, of course, be by secret ballot using the single, non-transferable vote system.
I commend the Bill to the House. It is a framework for a fair solution to an important organisational issue in the Defence Forces. Giving members of the Defence Forces a real say on pay and related matters without compromising military discipline requires a fine balance. The issue of representation could have major long-term implications for the armed forces of this country. I express the hope that our deliberations will be guided accordingly in a constructive manner.