Amendment No. 2 is in the name of Deputy McCartan. I observe that amendments Nos. 3 and 3a are alternatives and that amendments Nos. 4 and 4a are related. I am suggesting, therefore, that we discuss amendments Nos. 2, 3, 3a, 4 and 4a together by agreement.
Defence (Amendment) Bill, 1990: Report and Final Stages.
Amendment No. 1 not moved.
Before I move amendment No. 2 am I to presume that there is no prospect of dealing with amendment No. 1 in my name?
Amendment No. 1 has been ruled out of order for the obvious reason, as the Deputy was informed, that that amendment is substantially the same as amendment No. 3 negatived in Committee.
I withdrew my amendment in Committee specifically because I understood that efforts would be made to allow me move an amendment along similar lines on Report Stage. However, I accept the Chair's ruling on the matter.
Amendment No. 1 is too close to the amendment that was negatived.
I move amendment No. 2:
In page 2, line 27, after "remuneration" to insert ", welfare and efficiency".
The purpose of this amendment is to insert after the word "remuneration" the words, "welfare and efficiency." The object of the amendment is to give some meaning to the basic terms of reference of the representative association once established. As the section stands the Government propose to acknowledge that remuneration is a matter that the representative association, once established, can work on and be active about. The section goes on to state: "and such other matters (if any) as the Minister may specify in the regulations...". I now acknowledge that the Minister proposes to delete the words: "if any". We have had a long and detailed debate about these regulations. We are not to have anything to say or do about them. The Minister made his views quite clear on the Order of Business today that he does not regard this House as having any role to play in this matter and that the people whom he will have regard to, in the first instance, are members of the Defence Forces. I do not need to make any comment on that as the answer was forcibly made by Members of this House in retort on the Order of Business. We should at least make some small effort to give some reflection of what this House believes representative associations should be about. We are being asked to hand over everything to discussions and negotiations that will take place outside the House. I fully recognise that is an essential step in the process of establishing for the first time representative associations but I do not think that should deny us the opportunity to set down some broad parameters as to what we believe representative associations, once established, should be working towards.
On Committee Stage I had proposed an amendment which included a number of specific items involving welfare, health, education, housing and all related matters. I did not win that issue but I had indicated to the Minister that the Government might take on board the wording of the corresponding legislation in respect of the establishment of representative associations within the Garda Síochána. The words used in section 13 of the Act of 1924, "welfare and efficiency," which I am now seeking to borrow, would be the basis for debate and consideration. Those words were acceptable to Parliament in 1924 and were equally acceptable to the Minister's party when in Government in 1977 when the former Minister for Justice, Deputy Collins, found the words in regard to the Garda Síochána to be still adequate and incorporated them in the Act. I cannot see why we cannot accept the same wording here and include it in this Bill as reflecting general parameters which we believe the representative associations should be involved in.
When I asked the question on Committee Stage as to why the word "remuneration" should be there the answer I was given — and I accept it — was that that has been a central and pivotal issue of major concern. It is certainly one of those issues, not the only one, which has fallen so far behind that it requires to be specifically mentioned in the Bill. There is no suggestion of including in general terms, the words "welfare and efficiency" that have been applicable to the Garda Síochána representative bodies. In putting those words into the Bill there is no suggestion that we are in any way restricting or limiting the scope of being so specific because the words "other matters as the Minister may specify" remain in the section. That argument was advanced here in chorus fashion by the Deputies behind the Minister in supporting this debate. They repeated the suggestion that we were in some way restricting, limiting or delimiting the areas of work. Nothing could be further from the truth. We are merely adding to the remuneration list by three and leaving the omnibus formula in the section allowing for the other matters that would arise in time as experience and negotiation would establish.
In amendment No. 3, Deputy Nealon proposes a form of wording with which I would have no difficulty. I will accept that wording if it is acceptable to the Minister. I have no problem whatever in dealing with words involving welfare, schemes of medical benefit and family support systems. The Minister promised us that he would look at this matter and I had anticipated that something would be forthcoming from him whereby the wording of the Garda Síochána Act would be specifically examined. I hope he has not closed his mind entirely on the matter. After listening to further reasoning and debate here this evening he might accept that there is a strong feeling that we should give greater expression to the views of this House in this enabling legislation. For that reason I urge him to accept what is proposed here. It does not involve any major departure from good sense or from precedent to the extent that we have a precedent, and it has been borrowed by the Government, in advancing argument here, that of the Garda Síochána Acts. I urge the Minister to accept the amendments in this regard.
In this context we are also taking amendment No. 3 in the name of Deputy Ryan. Again this is an attempt to expand upon and give some further expression to the view of the House in terms of dealing with "conditions of employment or service,". I have no difficulty, as a next option, in accepting those words if agreeable. I welcome the fact that the Minister has taken out the words "if any" under amendment No. 4a even if it is for no reason other than to acknowledge a concern which I have about the word "such" and which I advanced on Committee Stage. I repeat it here by including it under amendment No. 4. I would ask the Minister to accede to that proposition.
I am genuinely concerned that in the expression "remuneration and such other matters" the word "such" may be borrowed judicially to indicate that that expression in its entirety is a limiting one rather than the all enabling broader based opportunity the Minister talks about as leading to an infinite base of what the representatives associations can deal with. If I am wrong in what I say, the word "such" is entirely irrelevant and can be easily done without but because I have a lurking doubt I am asking the Minister to accept amendment No. 4.
I seek your assistance, a Cheann Comhairle. May I move my amendment now?
The Deputy may speak to his amendment but he cannot move it. Only one amendment can be before the House at any given time.
Notwithstanding the fact that this amendment is vitally important in the context of the Bill and the regulations I do not intend to delay the House for too long.
I support amendments Nos. 2, 3, 3a and 4a, in the name of the Minister. I acknowledge that the Minister has moved in response to the proposals I and other spokespersons put forward yesterday. The Labour Party believe this section will be too narrow if it deals only with matters relating to ".... remuneration and such other matters (if any) as the Minister may specify ....". It was pointed out clearly yesterday that remuneration deals basically with pay. We want to include in this Bill some of the matters the members of the Defence Forces will get involved in. It is all very well for the Minister to say, as he did yesterday, that all these matters will be covered by regulation; but it is important to strengthen this provision. I am disappointed that the Minister did not go a bit further and include an amendment which would meet the proposals put forward in the three amendments yesterday. If the Minister had done this, it would have enabled us to fully support the Bill.
It is incumbent on us to strengthen this provision in the Bill. I said most of what I wanted to say yesterday and there is no point in repeating it. Obviously, the Minister — perhaps his officials are pulling the strings in a certain direction and other bodies are telling him not to go down that road — has made up his mind. As I said earlier, I am disappointed that the Minister has not included other matters in the section. Obviously, the Minister has made up his mind but I hope that on the basis of the contributions we make here at the eleventh hour he will incorporate some of the wording we put forward in our three amendments on Committee Stage.
When I was formulating my amendments for Report Stage I did not put down any amendment to section 2 at first because I genuinely thought from listening to the Minister yesterday that he would have introduced an amendment which would broadly meet the wishes of Deputy Ryan, Deputy McCartan and myself. I suppose I was naive in expecting the Minister to do that and I want to express my sincere disappointment that he has made no move to meet our wishes other than to remove the words "if any", which is a very minimal change.
Section 2 will deal exclusively with remuneration, the only specific item mentioned in the section. I am sure everyone, including the Minister, knows that the section should be much broader than this. From having listened to members of the Defence Forces I believe elements other than remuneration and pay will become very important in future years. Yet there is no specific mention in the Bill of any matter other than remuneration, which, as defined, will deal exclusively with money and pay matters. So far as I can recall — I am sure this can be substantiated by the Official Report — the Minister indicated that he would make some gesture in this area on Report Stage. While I am glad the words "if any" will be removed from section 2, my verdict on that amendment is that it will stop the Minister from looking foolish.
The section as it stands is totally unsatisfactory. I believe the members of the Defence Forces will be very disappointed that the section has not been expanded in the conciliatory fashion which was manifested here yesterday. If our amendments had been accepted it would have meant progress in relation to the Bill. As Deputy McCartan said, the members of the Defence Forces will be in a less satisfactory position than the Garda Síochána are under the 1924 Act. Such a provision was included by the Dáil of that time in the Garda Síochána Act, 1924; but, even after 66 years of experience which showed it had no detrimental effect of which the Army authorities might be afraid, the Dáil of 1990 are unwilling to insert a similar provision in this Bill.
The Minister for Defence, who is also Tánaiste, is a very powerful man within the Government and, as he said yesterday, represents the Government here. Therefore, the buck must stop with him and I must attach the blame to him for not expanding the section further.
I thought yesterday that the Minister would bring forward an amendment on Report Stage which would bridge the gap between the three amendments which had the same thrust and the section as it stands. I thought it would have been easy enough to bring forward a simple amendment which would have bridged that gap.
Many members of PDFORRA have expressed concern about this section. While I appreciate the explanation given by the Minister yesterday that all these matters would be incorporated in the regulations, I did not think the inclusion of such an amendment would disturb the section. Matters such as accommodation, dining hall facilities, pensions and the way they operate, medical cover for serving members and their families and housing, particularly in Dublin and Cork, have been discussed for many years. I think Deputy McCartan referred to housing for members of the Organisation of National Ex-servicemen who have retired from the Army and who do not have any housing at all. While it is the intention of the Minister to try to reach agreement with the representative body in relation to all of those areas of concern, I thought that a simple amendment would have taken care of that. There have not been too many changes to the original Bill. I thought this was reasonable and I would, even at this late stage, appeal to the Minister to accept this.
I have just circulated further amendments to show that I am not being unreasonable. I went into this amendment at some length last night and the more I looked at it the more convinced I became that I am right. I will try to explain it as simply as possible.
We are dealing here with an infinite variety of matters including conditions of service, welfare, health, education, housing, recreation facilities, amenities, credit facilities etc. There are more that I have not thought of and in the future more will emerge if the representative bodies do their work properly in accordance with the changes that take place. This is an area that should be left open as long as there is freedom to incorporate items by regulation starting with regulations agreed now which will be reviewed and amended as the years go on. This is particularly a matter for incorporation regulations. If we start tricking around now what we propose will not be exhaustive. Let us, therefore, leave it open.
I considered that my instinct in regard to the phrase "if any" was right. It should go and it is being deleted because it carried an implication that there might not be such matters. I totally disagree with that implication because I consider that there will be innumerable matters. That is why I want it to be as flexible as possible. That is why I believe the phrase "their remuneration and such other matters as the Minister may specify in the regulations" gives a completely open ended and flexible framework. The amendments put down by the Deputies indicate goodwill on their part in wanting to have certain things incorporated in the legislation, but they are not exhaustive. If we were to have an exhaustive section covering all aspects of welfare we could be here all night with our dictionaries out to ensure that everything was included, and we probably still would not have everything included. Let us, therefore, leave the section open ended and flexible to enable the men themselves to include what they want in the initial regulations. We should leave it open to whatever may arise in future to be included also. With the best will in the world we cannot do better than that.
Remuneration is so important that we cannot just leave it open. That is why it is defined specifically. Remuneration is remuneration and is defined there just as it is defined in the definition section under the various financial payments and allowances that come under the heading of remuneration. If one were to start defining welfare and so on in legislation one would end up doing a disservice to this Bill.
I want to press that point of view, having listened to the various points that were made here. I also looked at what Deputy McCartan mentioned about welfare and efficiency being a code phrase which had been incorporated in previous Garda legislation. I found out that there is nothing very sacrosanct about that. They are having difficulty in the Garda in interpreting that because that was just a phrase that was loosely borrowed from earlier British legislation, not that there is anything wrong with British legislation. Section 13 of the Garda Síochána Act used those words just because they appeared in the 1924 Act, and the 1924 Act merely borrowed the phrase from the Constabulary and Police (Ireland) Act, 1919, which borrowed the phrase from an earlier constabulary Act back in the last century. It was just a phrase that was in use over the last century and when examined it was found not to have meant anything in particular.
Efficiency is a dangerous concept to incorporate in this because efficiency in the military sense has connotations of command and discipline which is precisely the area that everybody agrees should be excluded from this legislation. In military matters efficiency has a far different connotation than it has in Garda terminology.
Conditions of service also has connotations of command and discipline. It is therefore preferable to leave the delineation of the welfare area to the more flexible regulations which will be brought in after consultation with the men themselves who know what they want in regard to welfare and conditions of service and what they want may be different from what we are saying. We have probably touched on other points in which they are interested but there may be points which they may wish to have incorporated in a certain way. It is altogether an area that is very particular to their well being.
I respect what has been said here but this, after all, is an enabling Bill. We are establishing a legislative framework within which all these relevant matters can be accommodated. When one considers all aspects one sees the wisdom of having an enabling Bill. Many of these sensitive areas are not incorporated in legislation in the Oireachtas. A fair amount of common sense is incorporated here. Many of our suggestions, I am sure, will be taken on board in the composition of the regulations. But, broadly speaking, this is an area where the Oireachtas provides the overall legislative coverage which we are doing in an enabling Bill and allows the representatives of the men to fill in the details under the umbrella we are providing.
The whole emphasis in the earlier contributions to this debate in the Dáil and outside it was on consultation. As the net result of a consultation process we will incorporate in regulations the various forms of welfare and benefit, of which the men themselves will be the best judges in the last analysis.
I would merely reiterate the point that history and practice in discussions and negotiations in other employments suggest that far from having the boundaries set in legislation there is freedom in discussion to push the boundaries as far as possible. The whole history of the negotiating agenda in other employments shows that it expands and expands and does not need legislation for that purpose. It is very important to leave the initiative with both sides but particularly with the representatives of the new associations to determine what would go into the regulations. I feel quite confident that this will accord with their hopes and aspirations and there are boundless examples in practice in other relationships and employments to justify this stance.
Last night Deputy McCartan mentioned welfare and efficiency but given that there is a different connotation between constabulary efficiency and efficiency in the Army, it would not be an improvement. The dropping of the words "if any" indicate that the points made last night are taken on board. The deletion of the word "such" as proposed in amendment No. 4 would have a potentially negative effect. There is not much point in covering ground which we covered in detail yesterday. The Minister has made the point that what we are achieving here is flexibility rather than inflexibility. By not putting further words after "remuneration" I do not think we are disimproving the Bill. I would make the point that it is not simply a one item list but a list which incorporates remuneration and other matters. The flexible approach being adopted by the Minister has most to commend it.
What is the Minister's attitude to amendment No. 4 dealing with the word "such"?
I know what the Deputy means. It is an interpretation point. There are two ways of reading it. When the words "if any" are deleted it is quite clear that the word "such" refers to matters other than remuneration. It refers to matters I will specify in regulations, other than remuneration.
It is virtually superfluous.
It emphasises the fact, if anything.
Why not leave it to state "and other matters"?
"Such other matters" is better. We could do with it or without it. The word "such" emphasises the fact that these are matters other than remuneration. We are all agreed that there are matters other than remuneration.
The word "such" adds further emphasis to that point. We could argue about this all day in court.
I will deal with the points made by the Minister as best I can. I join with other Deputies on this side of the House in expressing extreme dismay and disappointment at the inflexible attitude on the part of the Government in regard to serious and reasoned amendments advanced by the Opposition in attempting to improve and in some way reflect the views of this House in this important legislation.
It was a very good exercise on our part to put in an amendment which would not have impacted in any substantial way upon the meaning or intentions of this Bill. The amendment has begun to draw out in clearer relief what I believe to be the makings of a massive con trick on the soldiers for whom this scheme is being devised.
Wait now — less of that.
The 1977 Garda Síochána Act has been quoted as a precedent on Second Stage and on numerous occasions during Committee Stage. It was borrowed upon when we were told it was a good idea to have enabling legislation. We all agree with that idea and nobody tabling amendments has suggested that an enabling Bill is not the best vehicle.
In the absence of negotiation and consideration of the views of the members of the Defence Forces we have sought to write into the Bill some of the representations they asked us to make on their behalf. On each of those items we received no co-operation from Government on Committee Stage. On this amendment, borrowing from the great precedent of the 1977 Act, we again find no co-operation. That precedent was also borrowed when we talked about regulations. When we dealt with negotiations we were told it was best to set up enabling structures as under the 1977 Act and do the talking elsewhere. During the short debate on whether we should use the mandatory "shall" or the permissive "may", again the 1977 Act was trotted out as the precedent, the thing we should work to.
When we tried to expand on a very limited wording on this section once again we were not successful. I take the wording to mean remuneration and nothing else. I have no doubt that in the negotiations which will come after this every effort will be made by generals, armchair located or otherwise, seeking to restrict and do down what we as parliamentarians have been striving to put in place today, a broad ranging all-embracing representative association with powers plenipotentiary to deal with all matters which may emerge.
I am particularly concerned at the intractable, unreasonable attitude of the Minister in not even conceding that the word "such", which he admits is superfluous, could be removed from the section. If he is correct in his proposition, there is absolutely no need for the word there. If my suspicion has any foundation — and it is a big "if"— then it does have an ominous consequence since a judicial interpretation will link in other matters to the existing word "remuneration". It will be claimed that the representative associations envisaged under this legislation are wage negotiating authorities and nothing else.
Such a flight of imagination.
That is the trick I believe the Minister is setting up and I regret it greatly.
I have heard nonsense but not anything like that.
Coming to nonsense, and I thank the Minister for leading me into it, is this suggestion that he has looked at it again and again and spent long hours doing so with the aid of his negotiators in the background. What looking at it was there? Not one further idea or reason was advanced here that was not advanced on Committee Stage as to why we could not expand on the limited word "remuneration". What reason have we been given? None whatsoever. The Minister introduces it all by saying there is an infinite variety, and makes an effort to identify those to illustrate just how difficult it is to reach infinity. We all know that, but does the clause "all other matters" not deal with the infinity of the issues? Why introduce a suggestion that by broadening or seeking to broaden beyond "remuneration", as we are seeking to do, in some way we are doing down the infinitesimal issues that may arise when the expression "all other matters" already exists there? We are told we might be tricking around with the section. Legislators are now being reduced to tricksters.
That is what the Deputy is at.
I suggest that tricking is not at this side of the House but at the other side. The suggestion is that what is there is open-ended and should be left that way. How can putting in one or two other items in any way begin to close that open-endedness? It could not, if the formula in its general proposition is still there.
It is suggested that the phrase "welfare and efficiency" came from the 1919 Act and previous Acts, and by some process of "by the way, no one ever really bothered about them because they mean nothing anyway" it was put into the Act of 1977. That is nonsense. I made the point on Committee Stage and I make it very briefly and succinctly here. Look at the lead in to the 1977 Act. Because the Garda representative associations were not able to work efficiently and effectively under the 1924 Act we have the 1977 Act. There was agitation over the workings of the 1924 Act which required all representations to go to the Commissioner of the Garda and the Minister and there was no one outside the chain of command. The whole purpose of the 1977 Act was to devise a formula that would work efficiently for the Garda. One thing they did not throw out was the wording "welfare and efficiency". To suggest that the wording was just a matter of pedestrian concern at the time ignores completely what the 1977 Act was about and the long agitation, debate and negotiations the Minister, Deputy Collins, talked about in the lead in to that Act. That is a disingenuous argument and it is treating us with contempt to suggest that this has been looked at carefully last night and then to come in and misrepresent fact and history in regard to this issue.
The next argument advanced is that of efficiency, that in some way this is going to open the door, that the soldiers might be consulted about something the Minister does not want to talk to them about, or the armchair, or otherwise, generals will not want to countenance. There is exactly the same chain of command, structure and need for discipline and command within the Garda Síochána as there is in the Defence Forces.
There is a difference.
There is no way the job of the Garda Síochána can be done without them being subject to discipline, to a chain of command. That is an essential ingredient of the whole area of discipline and responsibility on the part of the Garda member. You can talk about efficiency and not interfere with their chain of command, but when it comes to soldiers the concept of efficiency and discussion of it within the Defence Forces is inappropriate. That begins to smack of what we have argued against from the inception of his debate, that soldiers, as civilians and as tradespeople in their job, have the right to be treated on an equal footing with those other agencies working in the security field, be they prison officers or members of An Garda Síochána. This unfortunate remark of the Minister that the concept of efficiency might lead to some breach of the command idea in the Defence Forces begins to raise the spectre again that soldiers are to be treated differently from members of An Garda Síochána or other people working in the security area.
I regret the very impractical attitude taken by Government on Report Stage of not recognising the constructive contributions that have been made by us on this side which should not have caused acrimony. I regret that I now see clearly the makings of a scenario that will lead to much more conflict not only on Report Stage but outside when this Bill comes to be implemented by people whose motives are not in line with what we here are trying to establish.
(Interruptions.)
The Chair is full of politeness and we do not anticipate anybody.
Question put: "That the amendment be made."
The Dáil divided: Tá, 46; Níl, 57.
Tá
- Barnes, Monica.
- Bell, Michael.
- Boylan, Andrew.
- Bradford, Paul.
- Byrne, Eric.
- Carey, Donal.
- Connor, John.
- Cosgrave, Michael Joe.
- Cotter, Bill.
- Gilmore, Eamon.
- Harte, Paddy.
- Higgins, Jim.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kenny, Enda.
- Lee, Pat.
- Lowry, Michael.
- McCartan, Pat.
- McCormack, Pádraic.
- Mac Giolla, Tomás.
- Moynihan, Michael.
- Nealon, Ted.
- Creed, Michael.
- D'Arcy, Michael.
- Doyle, Joe.
- Dukes, Alan.
- Durkan, Bernard.
- Fennell, Nuala.
- Ferris, Michael.
- Flanagan, Charles.
- Garland, Roger.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- Owen, Nora.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Reynolds, Gerry.
- Ryan, Seán.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Taylor-Quinn, Madeleine
- Timmins, Godfrey.
- Yates, Ivan.
Níl
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Browne, John (Wexford).
- Callely, Ivor.
- Clohessy, Peadar.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Ellis, John.
- Fahey, Frank.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Flynn, Pádraig.
- Geoghegan-Quinn, Máire.
- Hillery, Brian.
- Hilliard, Colm.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kitt, Michael P.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Martin, Micheál.
- McCreevy, Charlie.
- McDaid, Jim.
- McEllistrim, Tom.
- Molloy, Robert.
- Morley, P.J.
- Nolan, M.J.
- O'Donoghue, John.
- O'Keeffe, Ned.
- O'Leary, John.
- O'Rourke, Mary.
- O'Toole, Martin Joe.
- Power, Seán.
- Quill, Máirín.
- Roche, Dick.
- Stafford, John.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Wallace, Mary.
- Woods, Michael.
- Wyse, Pearse.
Tellers: Tá, Deputies McCartan and Gilmore; Níl, Deputies V. Brady and Clohessy.
Amendment declared lost.
Amendments Nos. 3 and 3a not moved.
I move amendment No. 4:
In page 2, line 27, to delete "such".
Question put and declared lost.
I move amendment No. 4a:
In page 2, line 27, to delete "(if any)".
Amendment agreed to.
Amendment No. 12a is alternative to amendment No. 5 and they may be discussed together.
I move amendment No. 5:
In page 2, between lines 32 and 33, to insert the following:
"(2) An association shall represent its members through the agreed process of negotiation, conciliation and arbitration schemes.".
In moving this amendment we are coming back to what was considered on Committee Stage by Deputies on this side as an important and fundamental proposition, the writing into enabling legislation of the principle that arbitration, conciliation and negotiation should be a central feature of the regulations once established. We had advanced the cause so forcibly that, of all the items we deliberated on Committee Stage, the Minister indicated this was one he would have a look at. He said it was the one matter he felt strongly about. He had proposed it on his own initiative and he wanted to ensure it would be included eventually. In that spirit the amendments put down on Committee Stage by Deputies Nealon, Ryan and myself were withdrawn in the hope that these matters would be fairly addressed. The Minister has suggested, in amendment No. 12a, a formula which unfortunately amounts to nothing. Not only can I hear an echo from the Government benches but I almost anticipate an echo at this stage.
I am trying to meet the Deputy on this matter. Every time I come in here on Committee Stages over the years and try to accommodate people I expect a response. I will spend no more time drafting amendments to anything if this attitude continues.
Little progress will be made because of Deputy McCartan's indulgence in verbiage.
Deputy Roche, you will give the same audience to Deputy McCartan that he will give to you when you are speaking. Deputy McCartan, without interruption.
The Minister's amendment indicates that he may provide by regulations for the establishment of a system of conciliation and arbitration in respect of such matters as the Minister may specify in the regulations in relation to which an association represents members. I remember a Deputy saying that the word "may" appeared three separate times in the original Bill and he got an acknowledgment of recognition from the Government benches. I regret to say that this amendment is drafted in much the same way.
I thank the Minister, if it has taxed him to the extent that he has shown to draft the amendment, for the effort he has made and for the response in seeking to meet the views of this side but, without annoying him unduly, I will tell him why I think his amendment does not improve the matter. The Minister's amendment does not write anything into the Bill on this issue; he may as well have left it on the basis that it would be dealt with in the regulations. He pointed out, and it is written into the record, that he would take on board many of the things we had talked about but we will have to wait and see. He said these matters should not be written into the legislation which should be as flexible as possible.
Our view is that there are some issues of fundamental importance that should be written into the enabling legislation. We have already debated that there be a broader definition of the terms of reference, we have discussed more of the fundamental principles on Committee Stage and we will deal with them when we talk about the right of access to the media, the right to raise funds, the right to have premises and staff, exterior to the military chain of command. These issues are so fundamental to the whole idea that we argued that the principles should be written into the Bill.
We were also arguing that conciliation, arbitration and negotiation should be incorporated as a positive statement in the legislation — a single line would do. Does the Minister remember us talking on Committee Stage about nothing more than a single line stating the principle — nothing more — so that it will be there for whatever Minister, Department officials, representative associations or soldiers who would address the grounding legislation? They would have the guiding words of the supreme authority the Minister spoke about, the supreme authority of Parliament. The principle of conciliation, arbitration and negotiation can be written in a single line so that it becomes an indelible feature of the representative process. That is all we ask for.
The formula of the double "may", that the Minister may prescribe the regulations whenever he is of that view, does not in any way address what we understood we were talking about on Committee Stage — the notion of writing in the principle.
I had tabled this amendment on Committee Stage. Deputy McCartan supports me on this Stage and, from his contribution on Committee Stage, it also represents the thinking of Deputy Ryan. I tabled this amendment and we all spoke on it because it is of absolute importance to the kernel of conciliation, arbitration and negotiation as far as the whole future of the associations was concerned. I wanted a cleancut positive statement in the Bill similar to that outlined in my amendment, or words to that effect. The Minister responded positively and he gave us the impression — I certainly got the impression — that he was taking this on board. I was very pleased about this and thought it was a progression that we had made in the course of a very long discussion. But then we see his amendment 12a, which is a perfect classical example of how a Minister can fulfil his promises of taking something on board without taking it on board at all but simply giving the impression of doing something while doing nothing. This amendment is destined for the political textbooks. I have no doubt that, if Deputy Roche still lectures, as he did so excellently in the past, on political matters, he will be using this as an example of how a Minister can promise to do one thing and then come along with an amendment which gives the impression of doing that while doing nothing. The drafting of the amendment is so good in this respect that I fully subscribe to what the Minister has said — that he drafted it himself. I do not believe there is any man among the Members and the draftsmen capable of drafting it. If it was drafted by a draftsman and if there were Oscars for a good screenplay by a draftsman for the Minister, then that draftsman is my nominee for an Oscar. It is brilliant in reflecting the entire attitude of the Minister throughout the course of the Bill.
To refer back to what I and Deputies McCartan and Ryan said during the course of Committee Stage, the word "may" appears again and obviously we are not going to make any progress as far as that word is concerned. Let us remember that we were not satisfied with regulations. We wanted to have it written straight into the Bill because we did not want to trust the regulations, but now the Minister has provided in the Bill for a regulation about a regulation. Figure that one out.
There is one other important point that I want to comment on before I conclude:
The Minister may provide by regulations for the establishment of a system of conciliation and arbitration in respect of such matters as the Minister may specify in regulations in relation to which an association represents members.
That clearly indicates to me that the Minister does not intend to have conciliation and arbitration available on all issues that may arise. I believed that when the Minister spoke about conciliation and arbitration it would cover the entire scope of the Bill, but now we find it covers only those areas that he may specify in the regulations. Perhaps he may allow it in all cases, but the fact is that he seems to be putting in a constraint. That may not be intended. I hope it certainly is not, but if is was not — I know he will not give way to us now — I expect him to take a serious look at this issue in the Seanad.
We believed the Minister was positive yesterday. We thought this was being taken on board and we were delighted. But I am afraid what we have here does not advance the case other than mentioning the words "conciliation and arbitration" in the Bill. I am very disappointed that he has not been able to have a cleancut positive statement in some section of the Bill on conciliation and arbitration as a means of progress as far as the associations are concerned.
I am utterly disappointed at the Minister's response.
I am sorry. I tried.
Yesterday we tried to enshrine in the legislation a Civil Service system of conciliation and arbitration. The Minister expressed in very clear terms that what we really wanted was a conciliation and arbitration scheme for the Defence Forces and that he was going to take the issue on board. On that basis we decided to withdraw our amendments so that we could make progress. However, I felt it necessary to specifically enshrine in legislation the whole concept of conciliation and arbitration. While the Minister has brought forward this amendment, it does not take cognisance of what we said yesterday and what we know the people in the Defence Forces would like to see enshrined in the legislation. While the Minister has provided for the establishment of a system of conciliation and arbitration in the regulations, this does not go anywhere near what we are looking for. We would like to see the right for the establishment of conciliation and arbitration enshrined in the legislation and not provided for by way of regulation. I hope the Minister will take on board what we have been saying this evening.
I am indebted to Deputy Nealon, because it had not struck me to use this debate; but I will certainly use it now to show how otherwise intelligent people can be so foolish. Here we have an example of how foolish people can be. We are having a theological debate on the use of the word "may" versus the word "shall". In all enabling legislation that we can go back over the appropriate word is "may".
I thought I corrected the Deputy on that.
In Deputy McCartan's case we have not just a theological but an arrant indulgence in cleverness.
I thought I read the Act for the Deputy.
The Deputy is seeking to prove to the House, and to everybody, that he is too clever by one-quarter, I will not say by one-half. We all know that he is a clever man. We also know that he is a sufficiently clever man to have jumped in and dominated the debate to try to claim credit for the achievements of the other two spokespersons, but that is their problem. He referred to "our side of the House" as if he was speaking for everybody on the Opposition side. He allocates to himself the position of spokesperson not just for The Workers' Party but for the Labour and Fine Gael parties. That is a matter for the Deputies opposite.
On a point of order, I should like to draw the Chair's attention to the fact that the Deputy is not speaking to any particular amendment.
I will decide that and I do not need any assistance from Deputy McCartan.
I did not mean any disrespect to the Chair.
Deputy McCartan should be the last in the world to draw the attention of the Chair to anything like this. There are times when he does not appear to be speaking to an amendment or a section when he is setting up the basis for his argument. Deputy Roche has been in possession for just two minutes and Deputy McCartan should be as patient with him as Deputy Roche has been with him. I will decide whether Deputy Roche is relevant or not.
I should like to point out that we have been engaged in this debate for almost one hour and thirty minutes and 80 per cent of that time has been taken up by superfluous verbiage by Deputy McCartan. I have never come across a man who can stretch one word as long as he can. I have never come across a Deputy who can stretch a simple thing as long as he can. Deputies on the opposite benches know I speak the truth in regard to this. Deputy McCartan's contribution on the last amendment was incredible and his contribution on this amendment is a case study on how one can waste parliamentary time.
If his contribution was as bad as the Deputy suggests please do not take his standards. Will the Deputy return to the amendment?
The Minister has given a commitment throughout the debate to provide a conciliation and arbitration scheme. Does any Deputy seriously suggest that in one month's time or three months' time the Minister will go back on that commitment? Obviously, the answer to that is no. He will not go back on it because he is an honourable man but, more importantly, because he is an astute enough politician to know that the roof would come down about his head if he did. What is this nonsense about the use of the words "may" and "shall", "shall" being the imperative and "may" giving the Minister power? It is interesting to note that a conciliation arbitration scheme was not provided for in the PDFORA constitution. I am not suggesting that we should not provide it but I mention that as an interesting point.
Under the amendment introduced by the Minister the Defence Forces are assured that they will have their own conciliation and arbitration scheme and that it will operate much on the same basis as that in the Civil Service, for the teachers, local government and health boards. What more assurance does the House need than that? We could waste time discussing the theology of "may" or "shall" and I do not think we would reach any conclusion. That is the sort of thing that parliamentary draftmen have debated for the last 150 to 200 years. However, we can come to a conclusion that the Minister, having given those commitments and incorporated his commitment in the amendment, will ensure that a conciliation and arbitration scheme will be appropriately provided for in the regulations. What more can any reasonable person want than that?
This gives Deputy McCartan the opportunity to indulge in cleverness but in doing so he is talking out the debate to the point where important issues, and other concessions which the Minister is giving as a result of the arguments put forward by Deputies Ryan and Nealon, will not be reached. At the end of the day this type of arrogance does not cause any concern to this side of the House. Members will be aware that all the amendments in the Minister's name will be carried. I should like to point out to Deputies Ryan and Nealon that any chance of concessions on points which they wish to raise will be denied them because of the extraordinary capacity of Deputy McCartan to self-indulge. The amendment put forward in the name of the Minister more than adequately takes care of this issue.
I support Deputy Nealon and others in what they said on the amendment from this side of the House. I have no doubt that the Minister is a reasonable man and that he does not intend that anything should go wrong. I agree that the roof would come down about a person who would deviate from the promises made in regard to this section. However, it is important to point out that we are debating this Bill because of the need to introduce a provision similar to that contained in our amendment. If there was latitude for the Army, if the members of the Defence Forces were made aware that a conciliation and arbitration scheme would be written into the legislation they would have aodpted a different attitude. If that promise had been made they would not have been expressing such concern in the last 12 months. In my view we would not have had the altercation we had earlier this year as they tried to highlight their grievances. I appeal to the Minister to consider taking on board the reasonable amendments from this side of the House, even at this late stage.
I have done so.
The Minister should take our amendments on board on the basis that if the conciliation and arbitration scheme is written into the legislation there will not be any reference from now on to the Minister's regulations. I am worried about the Minister's regulations. I am worried about the Minister's amendment. We have all found that in all regulations a certain amount of discretion is left to the Minister and in some cases that has led to aggravation. The Minister's amendment is ambivalent and leaves the issue open. The Minister should accept our valid amendments.
I have some reservations about the Minister's amendment. The booklet published by the Minister contains a declaration that is more positive than the wording in the Minister's amendment. The document states that a system of conciliation and arbitration will be established. That is a simple, straightforward and uncomplicated statement. Yesterday I suggested that those words should be included in the Bill.
I am not a parliamentary draftsman but such a simple statement would suffice if it was included in the Bill. I can understand the reason for including the words, "and such matters as the Minister may specify in the regulations". I would assume that that would then have been subject to negotiations and discussions with the representative body or with the Army authorities, as the case might be, follwing the passing of the Bill. The first annex is equally specific and it would appear to me that that would also have met the point. Nobody is doubting the sincerity of the Minister — I would be the last to do so — in this regard. As I said on Second Stage, he has gone much further than anyone on either side of this House anticipated and certainly further than the Army had anticipated. That is a fact. It is also envisaged that the Minister could very well be the commander-in-chief before the end of the year——
Thank you.
——and might be replaced by another Minister who may not be as understanding as he is, and I may not have the same confidence in the gentleman who may take his place. Having dealt with many Ministers for Defence, I can assure the House that I found it much easier to deal with this Minister than I did with his predecessors on both sides of the House. It is not a question of this side of the House not recognising the fact that the Minister has made an attempt to try to bridge the gap between what his advice and his opinion would be and what is contained in the section and in the annex. There is a fear in the minds of Members here and also in the minds of members of the Defence Forces that we will not always have the Minister, someone who understands what is contained in this legislation and who knows what is meant by what is contained in that amendment. It is not a question of distrust of the present Minister but perhaps a fear of what may follow.
Thank you, Deputy Bell, for your remarks. I appreciate everybody in the House is trying to help. The difficulty is — and this always arises when one is putting down amendments on Committee and Report Stage, especially in enabling legislation — that the draftsman's words in legislation of this kind have to be carefully drafted in order to follow precedent and in legal language of their own in order to effect implementation. All parliamentarians share this concern — we like to have language that is plain and can be easily understood. Naturally, I agree with what Deputy Bell has said: that the simpler a political message can be got over the better. When I wrote that letter and signed it I was getting across a basic political message to the soldiers on the ground. I said simply that a system of conciliation and arbitration will be established. That is where I still stand. Legal people draft Bills and we have to live by precedent, but we have to have enabling legislation of this kind incorporated in legal language. All a Minister can do is get the sense of what is being put to him in the House, as I got the sense of this yesterday, and ask the draftsman to put it into legal language that fits into an enabling Bill. That follows precedent and that does not in any way distort matters.
The first road block I came up against here is that heretofore all systems of conciliation and arbitration — we are all aware of the number that exists for teachers, the Garda, the public service and so on — are not based on statute. They are all based on contractual arrangements between the employers in the particular Department, the Department of Education and the teachers, the Department of Justice and the Garda and so on, none of which are enshrined in statutes. This is the first time it has ever been written into statute. I thought, and I still think, that the sense of what was said here yesterday is so important because we are setting up a system of conciliation and arbitration which undoubtedly will be a major part of the regulation or regulations to be agreed upon with the representatives of the men. That system of conciliation and arbitration will be the real bones of the regulations, one that will be proper to the circumstances of the Defence Forces personnel. That will be the real operation as far as conciliation and arbitration is concerned and what was required was a commitment to it in statutory form. This is what I have done in the amendment, short of this theological argument, which, as Deputy Roche said, is the difference between the word "shall" and "may". The reason for that is that it is not mandatory legislation in the sense of directive legislation. This is enabling legislation.
Again, the legal people advised me that in all enabling Bills over a number of years it has been the practice to use the word "may". That is for legal reasons, for reasons of interpretation in the courts. This regulation may end up in court at some stage. What they are seeking to establish now is a set pattern of words that are hallowed by precedent, by practice and by interpretation on the part of the courts. For enabling legislation "may" is now the word used. There is nothing more suspicious or deep in it than just that.
For God's sake, would Deputy McCartan get rid of his paranoia that there is something underlying in this legislation, as Deputy Nealon has said, that I was being super cute in some way in all of this matter. I can assure the Deputies that there is nothing like that in this Bill. This is simply a mattter of my trying to take the sense of the debate yesterday on Committee Stage, putting that before the draftsman and saying: "The principle of conciliation and arbitration should be incorporated in the amendment. Can you come up with a form of words?" We had a long debate on this matter. This was not something I accepted automatically. The officials of the draftsman's office, the Attorney General's office, my officials and myself argued about it most of today. This is the only way in which a Minister can operate. This is how Committee and Report Stages are conducted. On Report Stage the Minister comes back, after considering the sense of what has been put on Committee Stage, and devises the formula. Usually that formula is accepted. We cannot go back on it. We cannot bring the draftsman's office or the Attorney General's office in here and start into a long legal and constitutional argument. At the end of the day that is what the courts are for.
The legal people say that the form which I have quoted here is the one that would be most acceptable on an interpretation basis by the courts. That is their job. There must be give and take in any parliamentary discussion of this kind. That is all I am trying to achieve.
I thank the contributors to this debate. A number of points have been made which must be addressed. From the point of view of the House what we were talking about yesterday and what we were attempting to do was to encapsulate a principle into a Bill. The Minister has acknowledged that that is what we were attempting to do. I do not have to remind him of the exchanges that took place about getting a single line expression of what was important. What has been produced by the drafting people is not that. If the Minister is telling us that it is not possible to draft it, then we will have to accept his words. What is wrong with the words drafted by Deputy Nealon? Where is there any potential problem with courts, lawyers, negotiators or with anyone in the words which Deputy Nealon drafted for Committee Stage and which I borrowed and attempted to ensure that they would be back here lest we were presented with something similar to what the Minister has presented, which is not adequate? In all of the propositions he has put forward at least the precedent is accurate. Deputy Roche could not recall the precedent I quoted to him in the 1924 Act and he repeated, incorrectly, tonight that there are no precedents — there are precedents. The precedent in recent times has been to introduce clauses similar to this one. Of course, every Minister who legislates for anything would like to be able to couch it in the terms in which the Minister's amendment is couched.
This bring me to my second point. As I have said, the Minister has failed to include a simple statement of principle in the Bill. Unfortunately he has not told us what would be wrong in doing this or the problems which were envisaged by the parliamentary draftsman when he looked at the wording of the amendment put forward by Deputy Nealon on Committee Stage. We do not exist in so far as the Minister's considerations are concerned——
The Deputies have been very helpful and I put down this amendment in response to the views expressed by them yesterday. That is what Parliament is about.
What was wrong with our amendments when the Minister's amendment does not go any way towards meeting what we were looking for?
It does.
The Minister has constantly made the point that we are not legislating for this House or a Minister but for the soldiers. I want to refer to what I regard as the insulting suggestion that what Deputy Nealon, Deputy Ryan and I are involved in is some form of esoteric or theological debate on the words "may" or "shall". I want to explain why these are real considerations from the point of view of the soldiers.
The Minister has established the conciliation and arbitration process but suppose another Minister comes along and says, "I do not think the conciliation and arbitration process is working"——
The Deputies will have to deal with him in this House, and I hope they do.
That is the point — if the Minister's amendment is accepted we will never be able to deal with him in this House under this legislation.
You will.
No, we will not, because the amendment puts no obligation on him. If soldiers are doing well, are beginning to catch up on the Garda Síochána and prison officers in regard to pay and conditions and they begin to exert pressure, the Minister of the day may say, "These guys are getting on top of us so we had better take out the process".
What avenue will be open to a soldier, the person we are legislating for, in those circumstances? He will have to go to court and ask a judge to stop him by way of an injunction, or force him by way of a declaration from doing this. The judge may say, "I am sorry but in law there is no obligation on the Minister to maintain and put in place a process of conciliation and arbitration because the Act says the Minister ‘may' and not ‘shall‘."
If, for whatever reason, the scheme never comes into being and the Minister does not meet the commitments he has given here — I am not taking away from his or the Government's word but neither he nor the Government will be here forever, if we can help it — a soldier will have no redress if the Minister's amendment is included in the Bill. He will not be able to go to a court, the Government, a court of law, a Minister or an officer in command and ask them to look at the section. They would simply say that it is permissive legislation which puts no onus or obligation on the Minister and consequently the decision will depend on the whim of the Minister of the day.
This legislation which we are seeking to put in place for soldiers represents nothing in this context. That is why I object to the repeated suggestion about our amendments. While our arguments have concentrated on a very minute word in the English language, I object to the disingenuous suggestions that we are about some esoteric or theological exercise.
Indeed you are.
We are not.
The Deputy used a very good word. I was trying to think of the word "esoteric".
We are trying to give soldiers a right in law but they will be given nothing if the Minister's amendment is included in the Bill, and the Minister knows that. The Minister should not suggest that the argument about what is or is not permissable and mandatory is not relevant. The Minister has suggested that there is no way out of this. The parliamentary draftsman has warned him against going beyond the formula because the matter may end up in the courts. I think that is basically what is behind all of this. The Minister is afraid to give a legal right of claim to members of the Defence Forces to establish and put in place——
The Deputy is again turning what I said upside down. That is not what I said.
I understood that is what the Minister said, but if it is not what he intended to say I will not dwell on it. I am merely making the point that the amendment offers no legal remedy to soldiers, which is what we are trying to provide. The previous speaker on the Government side, Deputy Roche, suggested that the commitment given by the Minister was as much as any reasonable person could expect in the context of this Bill. I do not know why points like that are made, beyond the wish to irritate. Perhaps that is Deputy Roche's function in this debate. The point has to be made that we are seeking to legislate for and on behalf of soldiers. Commitments written into the record are only as good as the man or woman who delivered them, in this instance the Minister for Defence. These commitments will not exist for any longer than the Minister is in office and the production of the written record of tonight and last night's debates will not be one jot of help to a soldier or a representative association seeking to pursue the issue.
That is why Deputy Nealon, Deputy Ryan and I pursued our request to the Minister to include a single line in the Bill which would recognise this principle and borrow on the words he wrote in his letter. We thought the Minister had agreed to look at this proposal but he handed it over lock, stock and barrel to the parliamentary draftsman who told him that it was not advisable to include it in the Bill. What we have heard here are the views of people whose job is to ensure that they never get anyone on their side into trouble at any stage. That is the regrettable fact. I will be pressing my amendment because not one word of criticism was made by anybody on that side about the unworkability or unacceptability of the simple but effective wording of the amendment put forward by Deputy Nealon on Committee Stage.
Deputy Hillery rose.
On a point of order, I have concluded.
Is the Deputy withdrawing his amendment?
No.
Amendment put and declared lost.
Acting Chairman
We now move to amendment No. 6 in the name of Deputy McCartan. Amendment No. 6a is an alternative to amendment No. 6. Is it agreed that we take amendments Nos. 6 and 6a together? Agreed.
I move amendment No. 6:
In page 2, between lines 34 and 35, to insert the following:
"(3) An association shall have the right of free access to the news media on matters which fall within the scope of the association and by means of spokespersons nominated by the association.".
As was correctly said last night, we are dealing with items which are of fundamental importance to the debate. The issue is encapsulated in Deputy Nealon's Committee Stage amendment which he has repeated on Report Stage. I have combined the wording in Deputy Nealon's amendment and that in the Minister's own communication to get what must be a formula acceptable to the Minister. Deputy Nealon's amendment reads: "An association shall have the right of free access to the media by means of spokespersons nominated by the association." In reply to that amendment the Minister spoke about the need to specify matters, to be able to lay down a specified schedule or to underline the fact that those specified matters should be related to issues that come within the scope of the representative groups. My amendment for Report Stage reads: "An association shall have the right of free access to the news media on matters which fall within the scope of the association by means of spokespersons nominated by the association". This amendment is a marriage of the two ideas. It is an effort to take on board the views expressed by the Minister in his covering letter. The principle is accepted on both sides of the House. It is acknowledged that it will be respected and will meet all the arguments advanced for ensuring that we should have the opportunity of incorporating basic principles. I hope this amendment will be acceptable to the Minister.
I have amendment, No. 6a, down also. I will not delay the House long. I made the case very strongly yesterday. Unfortunately, there was no favourable reaction from the Minister. I do not expect that there will be on this occasion either. I would ask the Minister to give an undertaking that the spokespersons of the various associations would be freely nominated by them and that there will be no attempt to confine it to Defence Force headquarters.
First, there is no contest between us as to the content of these amendments. The only question is whether they should be incorporated in legislation. On 20 February I proposed in my covering letter that spokespersons will be permitted access to the news media on specified matters which fall within the scope of the representative groups and that is the spirit of the two amendments put down by Deputies McCartan and Nealon. I feel strongly that that is better dealt with by regulations. The working out of the details, the manner in which spokespersons will be nominated and what they will be allowed to communicate about are all matters on which the representatives of the men will have much to say. I agree with the principle. Such a right cannot be taken from any such body once it is established. They have, under our Constitution, the right to free access to the media. The details are a matter for them. They will have their own views on how they should present their point of view. The only difference between us is that I feel this can be properly incorporated in regulations after discussion and consultation with the men.
I want to take up Deputy Nealon's point. It is a valid one. He wants an assurance that the representatives of the men will have absolute freedom to nominate their spokespersons and can nominate whom they wish to speak on their behalf and that the person they select may not necessarily be a member of the Defence Forces but may be a member of their secretariat, a consultant that they employ, a public relations firm or any one of a number of people. I can assure the Deputy that I would welcome that practice. It would add to their expertise in negotiating and would be a forward and constructive step. It would not cause any dispute at the consultation stage if representatives of the men want to have a guarantee of that kind written into the regulations. If they require it, it would show common sense and maturity. The more access they have to good advice and the more they are trained in the ways of negotiation which will be new to them under these bodies, the better they can present their case in a way acceptable to them and the country at large. They are, after all, an integral part of our society representing our State and in that capacity they will be conscious that their role will require whatever advice they consider necessary to put their case in a proper manner.
The Constitution of 1937 recognises the right to freedom of speech and information and, as I am sure everyone would agree, the unwritten right of access to the media as the people who convey information; but it also provides for the delineation and delimitation of that right in certain circumstances "in the interests of the common good". It is one of the features of the 1937 Constitution that de Valera gave with one hand and very cleverly took away every one of those rights with the other by way of saving clauses; and freedom of expression is no different from any of the others. My concern — illustrated by recent events which are sub judice— is that there is a tradition against freedom of speech in the Defence Forces. Soldiers have been utterly gagged to this date and we are breaking new ground on this issue. It is possible that there will be a strong inclination, despite the Minister's good wishes, on the part of the command and departmental authorities to limit this right to a minimum so that we in the community will be kept as uninformed as possible, as has been the case until now.
One of the reasons things have been so bad within the Defence Forces in regard to conditions and pay is that they simply could not tell us and it was impossible for us to learn because access to information on the one hand and freedom to speak on the other hand virtually did not exist. These conditions were very convenient for the powers that be who had the responsibility of keeping the budget to the lowest, discipline to the highest and nosy parkers, as some Members would describe those of us who campaigned on this issue, out of the affairs of the Defence Forces. I have a great fear that it will take a lot of persuasion to break down those traditions and inclinations and that all the good wishes expressed by the Minister and other Members may not be enough.
Any delimiting of the right would then have to be agitated before a court in the context of this saving clause of the Constitution. Any such agitation or litigation would be greatly helped by the writing into this Bill of the principle of freedom of access to the media. We have passed from arbitration and conciliation Those matters would not worry me as much as this. Here there is a strong tradition against free speech and strong vested interests in having little known and less said about what goes on in the Defence Forces. This saving clause in the Constitution will be in aid of anyone seeking to break the shackles which have existed on the right to freedom of speech. We are breaking entirely new ground and it would have been entirely appropriate for this House to have written in that freedom of speech and access to the media are an indelible part of the order of things for which we are legislating. I regret that the Minister will not agree to include it. It is a matter which should be put to a vote.
Does Deputy Nealon wish to reply on amendment No. 6a?
I strongly put the case on Committee Stage and I repeat it now. I regret that the Minister was unable to accept this amendment, which is a repeat of a Committee Stage amendment. Deputy McCartan's amendment is on the same lines. I would appeal to the Minister to indicate that he will include it when the Bill goes to the Seanad. He would be improving the Bill and giving something which he intends to give by regulation anyway. It would be very impressive as far as the potential members of the various associations are concerned.
Acting Chairman
If amendment No. 6 is negatived, amendment No. 6a cannot be moved. I am putting the question: "That the amendment be made".
Votáil.
The question is "That the amendment be made". On that question a division has been challenged. Will the Members who claim a division please rise in their places?
Fewer than ten Members rose.
As fewer than ten Members have risen in their places I declare the question negatived. The amendment is therefore lost. In accordance with Standing Order No. 59 the names of the Deputies dissenting will be recorded in the Journal of the Proceedings of the Dáil.
I move amendment No. 6a:
In page 2, between lines 34 and 35, to insert the following:
"(3) An association shall have the right of free access to the media by means of spokespersons nominated by the association.".
Amendment put and declared lost.
Amendment No. 7 in the name of Deputy Pat McCartan. I observe that amendment No. 8 is an alternative to amendment No. 7. I suggest we discuss amendments Nos. 7 and 8 together. Is that satisfactory? Agreed.
I move amendment No. 7:
In page 2, to delete lines 35 to 37.
We debated this matter at length on Committee Stage and I am not required to go over all the points at the same length. Nonetheless, it is important to put on the record the objection of The Workers' Party to the obnoxious idea of putting into enabling and fundamental legislation of this sort, establishing for the first time representatives' associations within the Defence Forces, a provision that the association shall not be associated or affiliated to any other trade union or other body without the consent of the Minister. We object to that proposition because we borrow from the praise that is showered on the Defence Forces and their representatives as being honourable, responsible and loyal as men and force. Nothing whatever can be said of them in their practice and history to date that would indicate anything but the highest of honour and dignity by them in the carrying out of their duties. Why, then, when it comes to allowing them to establish a trade or representative association within their body does the Minister have to step in to say "I will adjudicate as to whom they will associate with, whom they work with and whom they are affiliated to."? There is no need for this provision as it is insulting to the Defence Forces and to their representative associations — when they are established — and I urge the Minister to delete that subsection. The Minister will not encounter difficulties in dealing with the Defence Forces in the future and there is no need for this provision.
Deputy Nealon put in another concept if the idea of the consent of the Minister to which I am fundamentally opposed is to remain. I have no objection to supporting his proposition that any dispute which might arise in such an issue should be referred to the conciliation and arbitration process. However, this obnoxious provision should be deleted from the legislation.
Despite my inclination to do so I did not call a vote on the previous amendment in the interest of making progress. Parts of this Bill, because of the outrageous guillotine, will not be discussed even though they are very important. I will not delay long on this amendment.
The Minister said that he will allow the associations to become members of various other larger bodies but that they will require the consent of the Minister. I have suggested a way which would be acceptable all round, that this should be submitted to conciliation and arbitration resulting in a binding decision which would ensure that we will not have difficulties along the line. It would be of major benefit at a future stage to the Minister because he would not have to make a decision on a delicate matter. Conciliation and arbitration would be totally acceptable to the association and the military command. I appeal to the Minister to consider this as a way of easing the situation. This would lead to a happier relationship between all concerned and far fewer areas would be exposed to the possibility of conflict.
I commend Deputy Nealon for not calling a vote on his amendment. Indeed, if Deputy McCartan's leader had been in the House he would have called a vote, resulting in more waste of time. However, he is in Brussels.
If we go along the lines proposed in Deputy McCartan's amendment we will achieve an extraordinary — indeed a unique — result which I would not like to see. We would delete from the Bill the statutory reference to the independence of the associations. I see Deputy Bell nodding his head, I think he made a similar point earlier. One of the most important things in the Bill is that the independence of the associations is enshrined at line 35 and it is that independence which Deputy McCartan seeks to extinguish. So much for his support.
Throughout the night, Deputy McCartan has been referring to the situation in the Garda Síochána but it is worth pointing out that the Garda associations also require the permission of the Minister for Justice for any such affiliation. Deputy McCartan suggested that he speaks on behalf of all personnel in the Defence Forces. It is worth pointing out that the draft constitution which has been circulated by some members of PDFORRA provides that the association shall be a non-political organisation and "shall not be aligned to any other organisation whatsoever". I see nothing to commend the suggestions put forward in Deputy McCartan's amendment.
I support Deputy Nealon's amendment because it presents an ideal means whereby difficulties which might arise in the future could be referred to a final arbitrator whose decision would be binding on both parties.
I am not referring to the Minister but perhaps in the future a Minister might not be ready or willing to listen and in that event it would be very beneficial, from the point of view of the Army and their associations, to be able to refer a matter further in the knowledge that the decision would be final and binding. That has applied in other areas and has worked very successfully. Given a different set of circumstances, management or labour in other areas might not be very happy with the outcome but in this instance it would provide the ideal machinery. I fully support the amendment.
In relation to the votes yesterday and this morning I particularly referred to a guillotine in the House in relation to the Bill, the lack of progress and the work which we had to get through in four hours. Lest a wrong interpretation be made, I did not call for a vote on the last occasion, a most important provision about free access to the media, because I accepted that it would be defeated.
Yesterday I spoke about the necessity to insert a subsection stating that nothing would prohibit the associations from affiliating to the Congress of Trade Unions and an international body. However, I did not follow up this matter because I knew I would not get the support, notwithstanding the fact that I felt it was needed.
I support Deputy Nealon's amendment but I am not in favour of the deletion which Deputy McCartan wants. We wanted a subsection which would identify particular areas but I am not in favour of the deletion of the third section.
It would create all sorts of problems if amendment No. 7 was accepted although I know that is not the intention of the mover. In general terms I do not disagree with the thrust of amendment No. 8 but I should like to point out to Deputy Nealon that the wording "shall be referred to conciliation and arbitration and a decision shall be binding on both parties" is acceptable to me. Obviously that was the guarantee given by the Minister yesterday in relation to the word "arbitration".
It may well be that a problem would be dealt with at unit level first, perhaps at command level, brigade level or GHQ level, and could be resolved before it would get to that stage. If it then went to conciliation it could be agreed there. I suggest that the wording could mean that a decision after a conciliation conference could be deemed to be binding and obviously that would not be acceptable. The word "conciliation" would mean that it would have to be agreed by the people concerned.
I wonder are we slightly at cross-purposes here. When I look at amendment No. 8 from Deputy Nealon I am reading it in the context of section 2 (3) as it relates to the independence of the association, in association with or affiliated to any other trade union or any other body. On the other hand, Deputy Durkan was talking about the suitability of conciliation and arbitration in the case of an industrial relations dispute.
No, only for comparison purposes.
The vast majority of industrial relations problems would be solved through direct discussion and negotiation in any event. It would be appropriate then to go to conciliation and arbitration which is seen as additional machinery as and when necessary. No doubt the Minister will give us a comprehensive reply. If we read this in the context of section 2 (3) we are getting into a policy area which is entirely inappropriate to conciliation and arbitration.
Firstly, I disagree with Deputy Roche in what he said about the lack of necessity to go along with amendment No. 7 on the grounds that PDFORRA are not being set up at the moment as a body with the intention of affiliating to a trade union but nevertheless they must have the right to do so. They have asked me to support this amendment and I am very pleased to do so. I would also support Deputy Nealon's amendment.
Last night Deputy Bell dealt very effectively with the first amendment proposed by Deputy McCartan. There is a basic principle that our Defence Forces have their own independent body or bodies. That is what the men want and that is what we are talking about giving them. To delete the phraseology "shall be independent" is of course out of the question because it is very important. It is also very important that their association with or affiliation to any other body, either internal or external, is fundamentally within the policy area. On behalf of this House, I, or whoever is here after me as Minister for Defence, have, under the Constitution and the law, responsibility to ensure that our Defence Forces operate in accordance with the law and the Constitution. That is a basic policy matter that cannot be hived off to conciliation and arbitration or to anybody else. We are talking about the fundamental law of the country. We are talking about an armed force carrying arms in the interests of the State. We are talking about our civil authority in this House, acting through a Government elected by this House.
In that situation it is very important that I advocate, as I have done on all Stages of this debate, the right of our Defence Forces to have their own independent body representing their point of view on the various issues we have been discussing. That is the basic purpose of this Bill. It is of fundamental importance that we in this House, through the Minister for Defence, write into legislation the policy reservation that any association with any outside body should have the consent of the Minister. That is a reasonable precaution and is the minimum precaution having regard to the important central role the Defence Forces play in our society.
Obviously there could be contact or affiliation with a body such as I mentioned yesterday, the Conference of Professional and Services Association, specialised bodies such as engineering unions, or organisations of that kind and the Minister would obviously consent to such an association or affiliation. That is why the requirement is there and the Minister would, of course, do the reasonable thing in that respect. Ultimately he must have an authority in regard to the free and independent association that is being established by this legislation to which we want to give proper statutory protection by way of regulation and legislation. We want to ensure that they maintain their independence and do not get involved against the interests of this State. I am not just splitting hairs. This is what you might call a residual protection written into this section in the interests of the common good, the public and the security forces themselves. It has regard to the fundamental fact that an army is an army, an airforce is an airforce and a navy is a navy. They are armed forces designed for the protection of the State, and that is written into the Constitution, in regard to which we have overall control and responsibility. That is fundamental and cannot be gainsaid. That is why that requirement is there. It is a policy matter.
Of course, conciliation and arbitration covers the whole area that we are talking about. That is proper and appropriate to conciliation and arbitration but this is not a conciliation and arbitration matter. It is a major political-constitutional matter and that is why the requirement is there. It is the only place it appears in the whole Bill, in that precise form, and for the very good reason that I have just given. It astounds me that members of the Fine Gael Party in particular, who are so concerned about and so involved in the structures of the State, see otherwise than what I am saying, which is fundamental to the security and the continued establishment of the State and the forces raised by the democratic Government of this country on behalf of the State. This is a very basic political and constitutional argument. That is why the requirement is there and as far as I am concerned it will stay there.
On each occasion one comes to reply on Report Stage one has to correct a misleading statement by Deputy Roche. There is no principle of independence written into the subsection borrowing or seeking to use the first five words "an association shall be independent" as a declaration. That is not what the section is all about. It states that an association shall be independent of any trade union or any other body. There is no principle of independence written in there. I do not think Deputy Roche has yet made a contribution that is in any way accurate or to the point.
I welcome Deputy Garland to the debate at this stage and thank him for his support for the proposition advanced by The Workers' Party. I commend him for putting his finger on the issue and it has to be repeated, even for the benefit of the Labour Party, whom I am very saddened to see taking the position that they have taken here tonight. I want to put this in context.
We are establishing a representative association on behalf of the Defence Forces to represent their interests in their trade, work conditions, and remuneration. That is all that section 2 (1) allows. We tried to widen the scope of remuneration to include welfare, health, housing and education but we were defeated on the issue by the Government. Consequently how can it be suggested that the interests of the State might, in any way, be prejudiced, challenged, undermined or compromised? Deputy Colonel Bell referred to neutrality in this context.
Who?
Deputy Bell, who presents himself as something of a — I will leave it.
What sort of arrant nonsense is this?
On a point of order, Sir, I think that Deputy McCartan should measure his words a little better than he has. Whatever else can be said, Deputy Bell has given a great deal to the debate and to be treated in this insulting manner is not acceptable.
I did not hear the Deputy's remarks on Deputy Bell but the Deputy should not refer to other Deputies who are not in the House.
That is not so.
He referred to him as Deputy Colonel Bell.
Acting Chairman
That is a derogatory remark and I do not think you should refer to a Deputy by other names.
Perhaps it is time we intervened and got promotion for Deputy Roche.
You are a nice lot.
Acting Chairman
Order.
We will keep that party to that number or fewer.
There is a by-election coming up in Dublin West shortly, and then we will see about numbers.
I know what you fellows are up to.
Acting Chairman
Order, please.
Deputy Roche can defend the Bill if it is worth defending — I do not think either of them should get the promotion.
The point I want to make is that under section 2 (1) the representative association are clearly demarked as an association that deal with remuneration and any other matters that the Minister may allow them deal with in the future. They are specifically excluded from dealing with matters relating to the raising, maintenance, command, constitution, organisation and discipline of the Defence Forces under the principal Act. Therefore, they have no function in the area of command and military operation. They are a trade representative association dealing so far with wages. How can anyone suggest that their association with a like organisation either at home or abroad could represent a potential compromise of State interests or Government policies? I simply want to make that point. I am disappointed with the position taken by the Labour Party who think that the association must be controlled ministerially now.
Amendment put and declared lost.
Am I entitled to respond?
Acting Chairman
No.
I move amendment No. 8:
In page 2, line 37, after "body." to insert "A conflict of opinon between the Minister and an association shall be referred to conciliation and arbitration and the decision shall be binding on both parties.".
Amendment put and declared lost.
I think the Deputies want the Stazi in.
That is not like the Minister.
I move amendment No. 9.
In page 2, after line 37, to insert the following:
"(4) An association shall be entitled to establish offices and maintain a permanent staff, exterior to the military chain of command.".
This amendment is a fundamental, vital proposition and I ask the Minister to allow it stand in the context of the Bill. He indicated on Committee Stage that he agreed with it in principle. But for all the reasons I have advanced about previous amendments dealing with these important items, the House should have the opportunity of recording its views on the matter. It is equally important when one considers the extent to which the Chief of Staff and the Government have recorded their views as encapsulated in the Defence Forces representative group being an entirely internal operation and organisation. I concede that they have departed from the view and agree with the idea of the association having an independent existance exterior to the military chain of command. This is a very important point. In the context of the Bill there are propositions relating to persons being put on active duty or where circumstances arise where the association can be dissolved. I accept that the Minister now agrees that the association should not be dissolved but suspended. Nonethelesss the only way you can maintain the continuity of an organisation is to allow it the opportunity to maintain a permanent staff and office, exterior to the military chain of command exactly as the Garda Representative Body have offices, staff and a general secretary drawn from the ranks of the men. The amendment does not intend to restrict and sets down in the broadest possible terms a principle that should be a feature of the legislation.
As Deputy McCartan knows, I totally agree with the principle of what he suggests here. I can guarantee that that will be incorporated in the regulations after discussion with the representatives of the men when it comes to devising the appropriate regulation to govern the situation. As the Deputy has rightly stated, this is a feature of the Garda Representative Body and is incorporated in regulation under the Garda Síochána Act. I envisage that the association shall be entitled to establish offices and maintain a permanent staff, exterior to the military chain of command which is exactly on the lines of Deputy McCartan's amendment. The only difference between us is whether that is incorporated in legislation or, on the basis of my assurances, incorporated in regulations. It is very pertinent to the men and to their representative associations as to how this should be incorporated in the regulations. There may be variations on the principle but of course I agree with the concept of maintaining offices and staff exterior to the military chain of command. If they are going to be an independent body they must adopt those principles.
As I said earlier this is a matter that is appropriate to regulation and the best I can do is to guarantee that the very principles adumbrated by Deputy McCartan will be included in the regulations after due consultation with the representatives of the men when they have been elected.
I am very pleased that the Minister has once again confirmed what we on this side of the House have been seeking from the outset of the debate. I support the amendment and I appeal to the Minister to incorporate it in the Bill.
I would prefer if this was left to regulations. In the course of the debate we have again and again referred to the appropriateness of doing certain things under regulations so that the amendments will shape the arrangements that will develop in due course. When we raise doubts about the competence and ability of members to do something in the absence of legislation, we underestimate the wit and intelligence of those who will take up the positions on the employee or staff side. The history of public service representation shows that the associations representing the Garda and others are highly effective in terms of what they have achieved for their members. They have been very successful in terms of attracting a very high membership.
We are talking about Army personnel who have proved their worth here and abroad. It is not for us to say that they will not have the competence, the will and the wherewithal to fight their corner. I am certain that they will be able to fight their corner. The input they can make in their negotiations for facilities will reach anybody's expectations. What they achieve will be at least comparable to what has been achieved by employees under other public service schemes.
The amendment was drafted not to be mandatory or restrictive. That is why it includes the words "be entitled to if they so desire". I have given the reasons I believe it is important when moving legislation that we should have the right to express our views and have them on the record. I recognise that the Minister has given strong commitments to this process and that is as much as one could hope to achieve at this late hour. As a result, I do not propose to press the matter further and I should like to thank the Minister for his generous response.
Amendment, by leave, withdrawn.
Acting Chairman
We now move to amendment No. 10 in the names of Deputies Nealon and McCartan. Amendment No. 11 is an alternative and amendment No. 12 is related to amendment No. 10. The House will discuss amendments Nos. 10, 11 and 12 together, by agreement.
I move amendment No. 10:
In page 3, to delete lines 1 to 4.
At last we have reached ground that was not touched on during the debate on Committee Stage. It is wrong to impose a guillotine on the debate on the Bill because we will not have an opportunity to discuss many sections. We have approached the first of several provisions which would prove, if tested, to be unconstitutional. We have other objections to the section. We have been told time and again that this is an enabling Bill but if this section is passed the Bill will turn out to be a prohibiting Bill. It introduces in a big way many restrictions.
On this occasion the Minister has gone too far in saying that members of the association cannot belong to another organisation irrespective of how reasonable that organisation may be or how moderate its constitution is. The Minister has exceeded what is allowed under our Constitution. I understand that the legal opinion on this section agrees with that conclusion. I should like to give the Minister a practical example of the effect of the provision. If the section is passed Army engineers will lose their right to belong to the Institute of Engineers of Ireland which regulates the standards of their professional education and which has negotiating rights on their behalf. That is a serious difficulty and is an indication of how far the Minister has gone.
What will be the position of members of the FCA, if they are eligible to join the new associations, who are also members of other organisations? The section prevents a member of the Defence Forces becoming a member of any other association, irrespective of how moderate it is. The proposal is to establish two associations, one for NCOs and privates, and the other for officers, but what will be the position if at a future date the privates decide that the new association was not to their satisfaction? Under the section they cannot go about forming another association to represent them. The Minister should give serious thought to this position. I have no doubt that he would not like to be embarrassed if a constitutional challenge to this provision prove successful.
I am joint sponsor of the amendment but I do not think I can put the case for its acceptance any stronger than Deputy Nealon. The section represents a very objectionable proposition. There is no doubt that the object of the proposal was to get at PDFORRA. The Bill is being rushed through both Houses of the Oireachtas before Easter so that the elections can take place. The idea was that once the Bill is passed PDFORRA would be illegal under this section. As a result it would no longer be possible for any member of the Defence Forces to be a member of PDFORRA. Now that PDFORRA have agreed to defer their elections and have given an indication that once a negotiating structure is put in place they will cease to exist and be subsumed into whatever is put in place through negotiation, the section is unnecessary. It should not be retained.
The reason I am convinced that the objective was to get rid of PDFORRA once and for all is that in the previous provision, which deals with the right of association with organisations, will be subjected to ministerial consent. Under that section the elected representative bodies can associate with other bodies, subject to the approval of the Minister. There is no provision in the subsection under discussion for the Minister to say who can or cannot join another body.
It is interesting to note that when the Minister was speaking to subsection (3) he made reference to bodies such as the Institute of Engineers. I did not seek to interrupt then but I believe that those remarks would have been appropriate to subsection (4). Under the provisions of subsection (4) there is no room for the Minister to act. There is no provision there except the words "without the consent of the Minister". Once this Bill is enacted in this form, the shutters come down irrevocably and although the Minister might wish to allow the engineers maintain their associations and membership of the trade unions or organisations and even though he might wish the doctors to stay on as members of the medical professions in which they have qualified——
Subsections (4), (5) and (6) must be taken together.
If the Minister thinks there is a remedy there well and good. I am not getting away from the fundamental point made by Deputy Nealon that it is wrong in principle. I think he is right in saying that constitutionally the Minister will have a job on his hands. There is no capacity for the Minister to act to give consent. Subsection (5) states:
The Minister shall determine any question that arises as to whether any trade union or any other body is a trade union or body to which subsection (4) of this section applies.
From my reading of the section it is designed for the Minister to say: "yes, that body is a trade union, is an association or whatever, contemplated under subsection (4)". It does not give him the power to say that so and so is entitled to join a certain association or maintain membership of it. I think this is flawed drafting and the way it should have been dealt with was to put in something on the lines of subsection (3), that a person shall not become a member without the consent of the Minister. I do not believe the other subsections will get over the problem I speak about.
We are talking about the soldiers in the Defence Forces having a very wide range of trade, expertise and of professionalism. Many of them come to the Defence Forces through the trades and professions and many maintain expertise and interests based on that expertise in organisations and associations outside. We also recognise the undivided loyalties of these men. I cannot understand why we have to seek to regulate this issue in this way. I urge the Minister to take on board what is proposed and to delete subsection (4).
I would like to compliment Deputy Nealon because the way he put his argument was very provocative and had me thinking for a few minutes. The point about subsection (4) is that it is designed to protect the associations and its removal could cause dangers to the associations that will be set up in that it would lead to a splintering or a multiplicity of associations and the very things we do not want to achieve.
The point made by Deputy Nealon in relation to professional bodies is a concern. The Minister has made the point that if you read this subsection in conjunction with subsection (5) and (6) it will be clearly seen in subsection (5) that the professional associations, such as the Institute of Engineers or whatever would certainly not be put outside the pale. That is an important point and I can see Deputy Nealon's concern. If Deputy Nealon goes back and looks at it again in the context of the explanation given by the Minister he will see that that concern is taken care of. I would be very concerned if subsection (4) in its entirety, were to be deleted that it would not serve the interests of the associations. Deputy Nealon put the provocative thought that the section could be open to challenge on constitutional grounds. Ultimately any Bill could be open to challenge on constitutional grounds. I do not share his view about the danger of a constitutional infirmity on this subsection. His other concern was a more realistic one and the Minister's reply has provided us with the response.
I wish to support amendment No. 10 and to speak on amendment No. 11 in my own name. It is now 10.25 p.m. and in 35 minutes the guillotine will come down on this Bill. Considering that we are still dealing with section 2 it brings home very clearly the major problems and the danger for this Bill in the way the Government have dealt with it. I said earlier that we had spent too much time on some of the amendments but in respect of amendments Nos. 1 to 10 we had teased out the defects and it is to the credit of the Minister that he came back with certain improvements even if he did not go as far as I would have wished. For the first time, after all these hours of debating and teasing out, we are now coming to a most fundamental part of the Bill, a section which deals with the strength and the constitutionality of the Bill. There is another serious question mark about subsection (6) in regard to constitutionality.
In relation to his amendment and, given the numbers game, we felt we should incorporate an amendment as follows:
Nothing in this subsection shall be construed to prevent members from retaining membership or from becoming members of trade unions or other bodies for the purpose of further developing the trade or profession in which the member is qualified.
Throughout our Defence Forces there are members from 18 years of age up to the time of retirement who have various skills and professions — motor mechanics, carpenters, engineers, doctors and so on. These people, under our Constitution, have a right to retain membership of the association of which they were originally a member prior to joining the Army. Many of them, after giving the necessary service, will, when they leave the Army, need to return to the area of work for which they are qualified. Then they will need a trade union card. There is no point in telling people, whether they are tradesmen or professionals that they must relinquish all connections with other bodies for the duration of their period in the Army. That is why we are saying this is a dangerous section and one that is not protecting the normal rights of the individuals. It brings home very clearly the irresponsibility of the Government in bringing down the guillotine at the various stages because we could have teased out this issue. The Minister and the Fianna Fáil spokesperson have said: "Yes, is that not a valid point? Perhaps in certain ways it might be unconstitutional. Perhaps there are aspects of it we did not consider". It is a bit late to be saying this when the guillotine will come down at 11 p.m. Because this Bill is so fundamental we need to consider every aspect of it in detail, but regrettably we will not be able to do this. If the Minister cannot take amendment No. 10 on board I will press amendment No. 11 at the appropriate time.
I was going to make a number of points but because it is getting late I will just make two brief points.
A trade union is defined very specifically in law. A trade union can only act as a trade union if it receives a negotiating licence and is registered as a trade union. There is no question about members of the Defence Forces joining an organisation which is not defined as a trade union. Therefore, the Minister should have no difficulty in defining what is a trade union. It is defined in another Act. Deputy Hillery should know that better than I because he deals with trade unions. I could pick up the phone and get a copy of all the registered trade unions within half an hour. Trade unions have to renew their licences. There are very stringent conditions attached to the setting up of a trade union, and the present Act contains much more stringent conditions than the earlier Act. I have no worries in this respect.
However, I would be very worried if, for example, the Curragh Command decided to join the Federated Workers' Union of Ireland or SIPTU, Collins Barracks decided to join the National Engineering and Electrical Trade Union, and Dundalk Military Barracks decided to join the Amalgamated Transport Union in Dundalk. I have dealt with national groups for most of my life where a multiplicity of trade unions are involved and I certainly would not like to see a multiplicity of trades unions, or organisations based on the concept of trade unions, within the Defence Forces of this State. That would give rise to chaos. The whole idea behind the Defence Forces is that they will move in one cohesive unit. That is the way the military are trained and taught to act.
That is the whole purpose of the Bill.
There is one commander in chief, one Chief of Staff and one command post in our Defence Forces so that orders can be handed down. If we provide in an Act of the Oireachtas that everyone has the right to join any organisation they want our Defence Forces would cease to exist. We should consider carefully where we are going in relation to this aspect.
I want to make two points before the Minister replies comprehensively. I agree entirely with Deputy Bell about the necessity, if at all possible, to avoid splintering and having a multiplicity of associations. Indeed, it is already evident from what the Minister has said, and from what we know even at this early stage, that the Defence Forces would like to rationalise and keep the number of trades unions as small as possible.
I do not see a problem if a member of the Defence Forces is a member of the new associations and also a member of a professional association, which enhances the profession or relates to a professional practice. The Institution of Engineers of Ireland have a whole range of regulations and services which are designed to enhance the profession; they do not deal only with remuneration as such. A member of the Defence Forces can be a member of an association dealing with remuneration and also a member of a professional body which enhances either a trade or profession.
I do not think there will be any difficulty for people with a trade who are, as Deputy Ryan said, members of the association which caters for NCOs and men because their needs will be reflected in the claims made by that organisation. The leadership of an association dealing with NCOs and men, including trades people will, as day follows night, reflect in a democratic way the needs of their members in the claims which are made and the negotiations which are conducted. I do not think there will be any difficulty about the needs of the members being catered for under the provisions set out in the Bill.
An NCO will need to be a member of both organisations when he leaves the Army——
The point I was making was that the association in the remuneration area——
I was not talking about the remuneration area.
That is the essence of it.
That is what we are talking about.
Acting Chairman
Does the Minister want to respond before I call on Deputy Nealon to conclude?
Do I have the right, as joint mover of the amendment, to conclude?
Acting Chairman
Deputy Nealon proposed the amendment and I think it is only the mover of the amendment who can conclude.
Before we get embedded in the minutiae, I should like to point out that the purpose of section 2 (4), (5) and (6) is to protect the associations we are establishing. That is the first and fundamental point I want to make. If these subsections were not incorporated in the Bill we would be leaving the whole matter unregulated and open to chaotic splintering and a multitude of associations. This is precisely what nobody wants. It is in the interests of everybody concerned that we have one independent association for the NCOs and men. In fact, this was the very factor which prompted the representatives of PDFORRA to express their view point, to which I have acceded, to me. I was originally of the view that there should be two bodies for other ranks, one to cover NCOs and one for privates. The PDFORRA representatives and the people concerned about having a proper association argued that to have two organisations, one for the NCOs and one for the privates, would be detrimental. They wanted as far as possible to have, as Deputy Bell said, one cohesive representative body representing all the non-officer men.
They made the case very positively to me that, irrespective of whether they were members of trade unions, privates or NCOs, there was a commonality of interest between them all. Irrespective of whether they were tradesmen, ordinary Army personnel, electricians, carpenters or members of the various branches of the Defence Forces their strong view — I am serious about this — was that they wanted one free independent organisation along the lines of the one which will be established. They felt there was freedom of movement within the category which justified the setting up of one cohesive organisation and that the promotions up and down the line were among people who understood each other and who had a common interest.
I have come around to that point of view. These subsections (4), (5) and (6) to which the amendments relate are there precisely to protect this single cohesive organisation which will be established. Once it is established this gives them real strength. It is like Connolly's old idea of one big association catering for all the requirements of the men irrespective of where they are. This is good. I do not want to see a degeneration into anarchy.
I do not either.
I cannot add to what Deputy Bell has said about this. This is designed to prevent the break up of that single cohesive approach at some future date. We want to make sure that what emerges out of this is safeguarded and that there will not be a multitude of bodies, resulting in animosity among personnel. It would have major implications for the cohesion, comradeship and discipline that is so necessary in military forces. I cannot think of anything more daft, particularly in a disciplined organisation, than to have such proliferation. We want to protect whatever association emerges after this Bill becomes law. It does not in any way prohibit the men from being involved in any other bodies such as the Institute of Engineers.
Or trades?
That is what I meant, trades or bodies. There is no conflict here. Under subsections (5) and (6) the Minister shall determine any question that arises as to whether any trade union or any other body is a trade union or body to which subsection (4) of this section applies. Obviously, there will be no conflict if a man wants to belong to a particular association or body by reason of his profession or trade; but his primary spokesman will be in his own cohesive group within the Army who will be well able to argue his case. A member of the Army, whether in a profession or in a trade, will have his advocates in the spokespersons of this new organisation.
It will set special rates and allowances.
That is so. It is commonsense. For example, electricians already have specific rates which relate to the rates outside and the spokesmen who will be sitting down in negotiation on their remuneration and conditions will be able to advocate their case in line with what they would get outside in civilian employment as mechanics, electricians and so on. The same applies to the professions. All of this is so much commonsense that I do not know why I have to say it here.
I am talking about a trades-person who is not employed as a trades-person in the Army.
In this situation he is in the Army and is represented by the representative body of the Army. He would be negotiating as a member of the Army.
Could he retain his union card for when he leaves the Army?
That is another day's work.
This is the point I am making.
The Deputy should have some sense. He is in the Army now and not earning his livelihood as a carpenter, a mechanic or an electrician. He is earning his livelihood as an Army sergeant in the infantry and will put his case through his spokesperson for his advancement as an Army sergeant. What is so extraordinary about that, or does the Deputy know anything about trade unionism?
I do indeed, but he may require to have a union card when he leaves the Army.
I did not think I would be in here at this stage of the night lecturing the Deputy about trade unionism.
The trade union will recognise him when he comes out of the Army.
Let the Deputy listen to the man behind him. Deputy Bell knows more about it than anybody else here. I did not think I would have to argue this case at ten to eleven. Unfortunately, this is what comes of putting down frivolous amendments.
(Interruptions.)
I am entitled to an odd crack at this stage of the night. The main point is that we are seeking to protect what we hope will be an excellent new body or bodies well able to represent the members of the Army, safe from any other bodies that seek to impinge on the infant organisation, and fully recognised, after due election, by our State. If we are going to set up this body let us do it right and make sure it is properly protected and guaranteed by the legislation.
The Minister describes our amendments as frivolous.
I am sorry if the Deputy is getting soft skinned. I will withdraw that.
He augmented that and tried to take the harm out of it by saying he was entitled to do it at this time of night. Equally, I am entitled to say that that is precisely how he treated all of the serious amendments from this side of the House throughout the debate. I regret to say that.
The Deputy should get off the stage.
The Minister told us he would take our suggestions on board but he produced a formula which simply shrugged them off. I will accept the fact that subsection (5) is pertinent as far as subsection (4) is concerned. Deputy Bell says it is a clearcut definition of what a trade union is. I would be afraid that at some stage the Minister would seek to declare a trade union not to be a trade union for the purposes of this Act. We know how important a union card is as far as future employment is concerned. I know the Minister would not like to jeopardise the future employment of a person joining the Army, especially a tradesman who would be a very valuable addition as there is a scarcity from time to time. I thought we were making progress when the Minister spoke about the possibility of holding on to those things. He should seriously consider the possibility of at least suspending this and not doing away with it. There may be some scope for progress there.
I asked the Minister if he would explain if members of the FCA were members of the Defence Forces for the purposes of this Bill and if they can join associations. I understand a member of the FCA is a member of the non-regular Defence Forces. Are they members for the purposes of this Bill? Members are defined as members of the Defence Forces and I understand that would include the FCA. There are very serious implications, particularly where they are already members of a trade union.
This is only for the purposes of subsection (4) where we seek to influence or otherwise be concerned with the remuneration and conditions of service of members. It is only in this regard that we are talking about the trade union aspect.
I am asking if members of the FCA are members of the Defence Forces as defined in the Bill and are eligible to be members of the association.
They are not members of the PDF.
This opens up a vast new area and it is a matter which will have to be teased out later.
The Deputy is illustrating how little he knows about trade unions.
Technically, they are members of the Defence Forces. This is a bit unreal because we are talking about remuneration and conditions of service for people who are professionally employed. The FCA are in a different category. They are part of the Defence Forces but not in this remuneration category.
They get certain remuneration. Under the term "other matters" it is possible.
It is possible. This is a matter which is currently under discussion with the returning officer, Mr. Sexton, of the Department of the Environment, who will draw up a roll of electors. This is particularly a matter which concerns PDFORRA who are in course of consultation as to who will comprise the role of electors. I am not trying to persuade PDFORRA but I am certain about what they should do from their point of view. However, it is their business.
As I see it, any member of the Defence Forces can become a member of the association. Obviously this is a matter which has not been teased out.
What is important is who will be allowed to vote in the forthcoming elections.
As I see it, the legislation gives them the right to vote.
That may be left to the men.
I referred to the Institution of Engineers. Their rights were established by a Bill in this House, the Civil Engineers of Ireland (Charter) (Amendment) Act. This Act specifies among its purposes furthering, by all legitimate means, the interests of the said profession and of its members. Army engineers are members. There is a further conflict there which the Minister should consider.
There are serious constitutional doubts about this whole matter. Much has not yet been properly and fully teased out. That is one of my objections to the use of the guillotine, apart from an objection on principle. I was keen that the Committee Stage, following the exploratory work on Second Stage, should have been postponed until after the recess so that we could tease out the Bill further. The Minister as a young man had experience of the Succession Bill being fully teased out over a long recess, with the resulting improvements which stopped the Government making some major mistakes. I appeal to the Minister to have a close look at the Bill before it moves to the Seanad.
Because of the very limited time available, I will not press the amendments in my name but I would ask the Minister in the interests of getting the thing right to be extremely careful on this section. All the speakers have shown the potential for difficulty. The Minister may say there are no difficulties and he may be correct in the long run. It may not be unconstitutional but other important people, other legal minds which have studied this in detail, have said that the Minister has gone that bit too far in declaring that a member cannot be a member of any other organisation, however benign its articles of constitution.
I did not say that.
That is implied.
For the purposes of subsection (4).
I am quite willing to quote a long legal opinion, of which the Minister is probably aware, which states that this is likely to prove unconstitutional. All I am asking is that the Minister should have a serious look at the FCA question which possibly we should have raised earlier, and at the difficulty that arises in the case of the engineers. He should consider framing amendments to take account of all these matters.
I propose to press the amendment.
Question put: "That the words proposed to be deleted stand."
The Dáil divided: Tá, 56; Níl, 23.
Tá
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Browne, John (Wexford).
- Callely, Ivor.
- Clohessy, Peadar.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Ellis, John.
- Fahey, Jackie.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Flynn, Pádraig.
- Geoghegan-Quinn, Máire.
- Hillery, Brian.
- Hilliard, Colm.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kitt, Michael P.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Martin, Micheál.
- McCreevy, Charlie.
- McDaid, Jim.
- McEllistrim, Tom.
- Molloy, Robert.
- Morley, P.J.
- Nolan, M.J.
- O'Donoghue, John.
- O'Keeffe, Ned.
- O'Leary, John.
- O'Rourke, Mary.
- O'Toole, Martin Joe.
- Power, Seán.
- Quill, Máirín.
- Roche, Dick.
- Stafford, John.
- Treacy, Noel.
- Wallace, Dan.
- Wallace, Mary.
- Woods, Michael.
- Wyse, Pearse.
Níl
- Bell, Michael.
- Byrne, Eric.
- Ferris, Michael.
- Foxe, Tom.
- Garland, Roger.
- Gilmore, Eamon.
- Gregory, Tony.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- McCartan, Pat.
- Mac Giolla, Tomás.
- Moynihan, Michael.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Ryan, Seán.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
Tellers: Tá, Deputies V. Brady and Clohessy; Níl, Deputies McCartan and Ferris.
Question declared carried.
I am now required to put the following question in accordance with the Order of An Dáil of this day: "That the amendments set down by the Minister for Defence and not disposed of are hereby made to the Bill, that Fourth Stage is hereby completed and that the Bill is hereby passed."
The Dáil divided: Tá, 58; Níl, 49.
Tá
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Browne, John (Wexford).
- Callely, Ivor.
- Clohessy, Peadar.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Ellis, John.
- Fahey, Jackie.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Flynn, Pádraig.
- Foxe, Tom.
- Garland, Roger.
- Geoghegan-Quinn, Máire.
- Hillery, Brian.
- Hilliard, Colm.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kitt, Michael P.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Martin, Micheál.
- McCreevy, Charlie.
- McDaid, Jim.
- McEllistrim, Tom.
- Molloy, Robert.
- Morley, P.J.
- Nolan, M. J.
- O'Donoghue, John.
- O'Keeffe, Ned.
- O'Leary, John.
- O'Rourke, Mary.
- O'Toole, Martin Joe.
- Power, Seán.
- Quill, Máirín.
- Roche, Dick.
- Stafford, John.
- Treacy, Noel.
- Wallace, Dan.
- Wallace, Mary.
- Woods, Michael.
- Wyse, Pearse.
Níl
- Barnes, Monica.
- Barrett, Seán.
- Bell, Michael.
- Boylan, Andrew.
- Bradford, Paul.
- Byrne, Eric.
- Carey, Donal.
- Connor, John.
- Cotter, Bill.
- Creed, Michael.
- Doyle, Joe.
- Dukes, Alan.
- Durkan, Bernard.
- Fennell, Nuala.
- Ferris, Michael.
- Flanagan, Charles.
- Gilmore, Eamon.
- Gregory, Tony.
- Harte, Paddy.
- Higgins, Jim.
- Hogan, Philip.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kenny, Enda.
- Lee, Pat.
- Lowry, Michael.
- McCartan, Pat.
- McCormack, Pádraic.
- Mac Giolla, Tomás.
- Mitchell, Gay.
- Mitchell, Jim.
- Moynihan, Michael.
- Nealon, Ted.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Owen, Nora.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Reynolds, Gerry.
- Ryan, Seán.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Taylor-Quinn, Madeleine.
- Timmins, Godfrey.
- Yates, Ivan.
Tellers: Tá, Deputies V. Brady and Clohessy; Níl, Deputies J. Higgins and Ferris.
Question declared carried.