Joint Committee on Foreign Affairs and Defence díospóireacht -
Tuesday, 30 Jan 2024

General Scheme of the Defence (Amendment) Bill 2023: Discussion

An Cathaoirleach Gníomhach (Deputy David Stanton)

Apologies have been received from an Cathaoirleach, Deputy Charlie Flanagan, Deputy Barry Cowen and Senator O'Reilly. The purpose of this meeting is to discuss with officials from the Department of Defence the general scheme of the Defence (Amendment) Bill 2023. I welcome: Ms Bernie Maguire, assistant secretary with responsibility for defence and security policy and legislation; Ms Clare Tiernan, assistant secretary with responsibility for defence capability; Mr. Cathal Duffy, assistant secretary, independent review group, IRG, implementation division; Mr. Billy Touhy, principal officer, legislation branch; Mr. Kieran Butler, assistant principal officer, conciliation and arbitration branch; and Ms Lisa Hennessy, assistant principal officer, legislation branch. I thank the witnesses for being here. The format of the meeting will be as usual, namely, we will hear an opening statement from Ms Maguire and this will be followed by a question-and-answer session with members. I ask members to be concise in their questions to allow all members a change to participate.

In respect of privilege, witnesses and members are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it in any way identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, witnesses will be directed to discontinue their remarks. It is imperative that any direction be fully complied with.

For witnesses attending remotely from outside of the Leinster House campus, there are some limitations to parliamentary privilege and as such they may not benefit from the same level of immunity from legal proceedings as a witness physically present does. I remind members that they are only allowed to participate in this meeting if they are physically located in the Leinster House complex.

I now call on Ms Maguire to make her opening statement.

Ms Bernie Maguire

I thank the Cathaoirleach Gníomhach and the committee members for the opportunity to discuss the general scheme of the defence (amendment) Bill. I am an assistant secretary in the Department of Defence and I have responsibility for defence and security policy and legislation. I am joined by my colleagues assistant secretary Clare Tiernan, who has responsibility for defence capability, people, and acting assistant secretary Cathal Duffy who leads on the implementation of the recommendations of the IRG on dignity and equality issues in the Defence Forces. Billy Tuohy from the Department’s legislation branch is also with us.

As committee members will be aware, a number of high-profile reviews have been undertaken in respect of matters relating to the defence sector in recent years. Key reports include those of the Commission on the Defence Forces and the IRG and we have provided members with links to these reports in advance of today’s session. The Strategic Framework on the Transformation of the Defence Forces, published in September of last year, brings together in one overarching document the immediate actions to be taken to support the transformation of the Defence Forces. As members may be aware, the strategic framework includes a commitment to bring forward two separate Bills this year to amend the Defence Acts. My colleagues and I are here today to discuss the general scheme of the first of those Bills. It is intended that this extensive proposed legislation, which covers many aspects of the Defence Acts, will: give effect to a key recommendation of the IRG on dignity and equality issues in the context of the establishment, on a statutory basis, of an external oversight body, EOB, for the Defence Forces; establish a statutory framework for the Minister for Defence to consent to the military representative associations to associate with ICTU and to impose the conditions that will apply to the granting of any such consent; and bring forward a number of miscellaneous amendments to the Defence Acts and an amendment to the Ombudsman (Defence Forces) Act 2004.

The general scheme was approved by Government before the end of last year. Drafting of the actual Bill has now commenced. As is normal practice during the legislative process, the wording of the general scheme will be refined and modified as the Bill is drafted over the coming months by Parliamentary Counsel. There will also be an opportunity during this period to examine and consider views expressed in relation to the legislation.

I will provide the committee with an overview of the main provisions in the general scheme. Part 1, preliminary and general matters, includes standard sections regarding the title of the Bill, commencement provisions and definition of key terms. Part 2 arises from the recommendations of the IRG that was established to examine issues relating to the allegations of discrimination, bullying, harassment, sexual harassment and any form of sexual misconduct in the Defence Forces. The Government agreed to progress, as a priority, the group’s 13 recommendations. The IRG concluded that in order to implement a successful culture-change programme, a new governance and oversight structure is needed to increase transparency and accountability and to hold the leadership of the Defence Forces to account for progress on culture change.

Following publication of the IRG's report last March and its recommendations being accepted, the EOB was established in April, initially on a non-statutory basis. Its terms of reference were approved and noted by Government on 12 July last. This proposed legislation seeks to put the EOB on a statutory footing. It is intended that the EOB will have all the powers typically held by a statutory body. The heads draw upon the wording of recent enactments providing for the establishment of State bodies, including, in part, the provisions in the Policing, Security and Community Safety Bill 2023 relating to the Policing Authority.

Head 6 sets out the proposed functions of the EOB. This body will oversee, monitor and advise the Minister for Defence in relation to the implementation by the Defence Forces of a range of matters concerning the general area of human resource management. The matters in question include the recruitment, induction, training, education and performance management of members of the Defence Forces. There will also be oversight of procedures put in place by the Defence Forces to ensure compliance with legislative requirements arising from various enactments relating to employment equality matters. The head also includes provisions to enable the EOB to conduct reviews in respect of specific matters relating to the human resource management of the Defence Forces and to make recommendations to the Minister.

Provision is made to enable the Minister for Defence to consult with the EOB in relation to the selection processes for any appointments to the rank of brigadier general or above and to senior civilian positions with the Defence Forces.

Head 8 includes provisions in relation to the membership of the EOB. This head reflects the recommendations of the IRG on the composition of the membership of the body. The head provides that the current members of the interim non-statutory oversight body will be appointed as the initial members of the statutory EOB.

The Minister for Defence will be responsible for the provision of staffing, equipment and other services as may be required by the EOB to carry out its functions. The body will be funded by means of an annual grant-in-aid provided by the Minister for Defence. In common with other State bodies, the EOB will be required to produce a strategy statement and an annual report.

Part 3 of the general scheme sets out amendments to the Defence (Amendment) Act 1990 to provide a statutory basis for the Minister for Defence to authorise the Permanent Defence Force, PDF, representative associations to associate with ICTU. The Minister will have the power to impose conditions when consenting to any such association or to vary or withdraw any consent previously given. This part also provides for a related amendment to section 103 of the Defence Act 1954. The amendments reflect the commitment to implement the recommendation of the Commission on the Defence Forces that the PDF representative associations should be facilitated if they wish to pursue associate membership of ICTU, as well as a commitment given in June 2022 as part of High Court settlement with the military representative associations to make such statutory provision. On foot of the High Court cases, the military representative associations were allowed, on a temporary basis, to associate with ICTU pending the introduction of legislation. Undertakings were given at the time by the PDF representative associations not to engage in certain specified activities. The general scheme incorporates the prohibited activities set out in the High Court settlement of June 2022 as an amendment to the Defence (Amendment) Act 1990. The prohibited activities will apply to the PDF representative associations representing both commissioned and enlisted personnel. The provisions regarding associate ICTU membership will facilitate the attendance of the PDF representative associations at future national pay talks.

On a related point, the Defence (Amendment) Act 1990 will also be amended to expressly provide that officers holding certain positions within the Defence Forces shall be prohibited from membership of a representative association. The officers in question are, the director of military prosecutions and the military judge. Under the Defence Acts, these officers are required to be independent in the exercise of their functions. They do not form part of the military chain of command. The provisions are necessary to underpin the independence of these officeholders.

Part 4 includes a number of miscellaneous amendments of the Defence Acts to provide for protection of the term “Óglaigh na hÉireann”: Head 29 amends the Defence Act 1954 to provide that it shall be an offence for a person without the authority of the Minister for Defence to use the term “Óglaigh na hÉireann”, or any words closely resembling this term, as the name, title or description, or styling of any organisation, group, association or body. A person who commits an offence under this new provision shall be liable on summary conviction to a class D fine. The head reflects the thrust of the Private Member’s Bill that was introduced into the Seanad by Senator Malcolm Byrne and supported by the Government on Second Stage.

Heads 30 and 31 provide for compulsory random drug testing of members of the Defence Forces. This will ensure that there is a robust statutory basis for the existing compulsory random testing programme for members of the Defence Forces. The heads reflect provisions relating to members of An Garda Síochána, which were enacted as part of the Garda Síochána (Functions and Operational Areas) Act 2022.

Heads 32 and 33 allow for the removing of the requirement for the Minister to prescribe rates and scales of pay for members of the Defence Forces. These heads are intended to improve administrative efficiency by removing the current requirement to amend a statutory instrument on each occasion that the pay scales of members of the Defence Forces are revised. The committee may wish to note that updated pay scales will be published on a website maintained by the Minister.

Heads 34 to 37, inclusive, provide for the amendment of the provisions regarding re-engagement of enlisted persons. The purpose of these heads is to amend the restrictive provisions in sections 64 and 67 of the Defence Act 1954 concerning the re-engagement of enlisted members of the Defence Forces. The proposed amendment will allow for greater flexibility in respect of the length of the period of re-engagement that may be approved. The amendment will remove an obstacle to increasing the maximum age limits for enlistment in the PDF.

Head 43 provides for the amendment of section 184(f) of the Defence Act 1954. This provides for the appointment by the director of military prosecutions of suitably qualified officers of the Defence Forces to act as prosecuting officers for the purposes of courts martial. The purpose of this head is to enable the director to have the option of appointing any suitably qualified member - enlisted persons as well as officers - of the Defence Forces, as well as civilian barristers or solicitors, to act as prosecutors in courts martial. This provision will allow the director greater flexibility in relation to the appointment of persons as prosecutors in court martial cases.

Head 39 provides for amendments of sections 177 and 177(a) of the Defence Act 1954. This amendment relates to the investigation of disciplinary charges that may be brought against an officer of the Defence Forces. There are certain functions assigned to the deputy chief of staff, support, of the Defence Forces under this section. It is considered prudent to provide that the functions assigned to the deputy chief of staff, support, under this section should, if necessary, be exercised by an officer of an equal or higher rank that is, either the Chief of Staff or the deputy chief of staff, operations, of the Defence Forces.

There are also a number of miscellaneous textual changes to the Act. These types of technical changes are needed from time to time to keep the Defence Acts up to date.

Head 41 provides for an amendment of section 2 of the Ombudsman (Defence Forces) Act 2004. This amendment clarifies the persons who are eligible to be appointed as an ombudsman. The amendment is intended to underpin the independence of the Office of Ombudsman for the Defence Forces.

I would like to emphasise the importance of this Bill in advancing the implementation of the IRG's recommendation to establish a statutory EOB of the Defence Forces as a key component of the Tánaiste’s strategy to achieve significant cultural change within the Defence Forces. While members will notice that other legislative commitments, as articulated in the strategic framework document, are not included in the general scheme, it is important to reiterate that this is the first of two substantial Defence Bills that will be progressed this year.

I thank members for their time. My colleagues and I welcome any questions members may have on the provisions of the general scheme.

An Cathaoirleach Gníomhach (Deputy David Stanton)

Thank you for that comprehensive overview.

Deputy Matt Carthy

Are we taking the whole thing in one go?

An Cathaoirleach Gníomhach (Deputy David Stanton)

We can be flexible. If you want to ask a question and get an answer, we can do that for a while.

Deputy Matt Carthy

I will potter along until the Cathaoirleach Gníomhach tells me to stop.

An Cathaoirleach Gníomhach (Deputy David Stanton)

Try to ask focused questions so that we get more information back.

Deputy Matt Carthy

I will put each question. The Cathaoirleach Gníomhach can decide when other members need to come in.

I will start with Part 2 and the EOB. The general scheme does not currently mandate the body to report to the Oireachtas, which was one of the recommendations of the IRG.

Would it not be appropriate, within this part, to include a head making provision for the body to attend the public accounts committee, for example? On monitoring the progress, which we all hope will be made and maintained, would it not also be appropriate to include a clause obliging the chair of the body to come before this committee? Perhaps there should even be an obligation on any proposed chair to attend this committee in advance of their appointment to outline their priorities.

Ms Bernie Maguire

I am going to hand over to my colleague, Mr. Duffy, to answer that.

Mr. Cathal Duffy

I thank the Deputy. The first thing to point out is there is provision in the scheme for the body to produce an annual report which is, I think, laid before the Houses. That may address some of that. On the provisions for attending the PAC or this committee or obliging the chair to attend, that is something we could probably consider and take into account in terms of making a specific provision for it. Whether it necessarily needs to be provided for in legislation, I am not sure but obviously any chair of the body would be happy to attend the committee.

An Cathaoirleach Gníomhach (Deputy David Stanton)

I think it is in other legislation we have seen.

Deputy Matt Carthy

I move to the functions and powers of the external oversight bodies. With the existing non-statutory body and this body that is to be established, how hands-on is it expected to be when it comes to recruitment and training? I note the Tánaiste has set out additional increased recruitment targets for this year. "Increased" is probably the wrong word. They are the same targets as for last year, but I assume the expectation is that they will be met this year. Would this external oversight body have any remit in that regard? We also speak a lot in this committee about the implementation of the working time directive. Would there be a role for this body in advancing that?

Head 6(9) facilitates the Minister commissioning reviews from the body which may make recommendations arising from them and head 6(10) allows the body to do the same on its own initiative but only with the consent of the Minister. Considering this is an external oversight body, would it be appropriate to allow the body to commence its reviews independently without necessarily having to seek ministerial consent?

Mr. Cathal Duffy

The legislation currently provides that the body seeks the approval of the Minister if it wishes to conduct a review and to make recommendations. That again is something we could reflect on if there was a view it should change. It is important the work of the body reflects what might be seen as the priorities and so forth as opposed to working completely in abeyance.

On the Deputy's query about the role of the body and the oversight, it is matter for the Minister to determine when, or if, they should choose to consult the EOB on HR matters, whether that is a promotion, a complaint or whatever it is. The Minister has the discretion not to consult the body. The role of the body is to oversee and monitor, not necessarily to become engaged in the operational aspects of it and the working time directive would probably be outside the scope of the external oversight body, which would probably be more involved in oversight and monitoring and providing advice to the Minister on that basis.

Deputy Matt Carthy

I thank Mr. Duffy for that. It was just to make a comment on that. Specifically, in respect of the working time directive, this committee has heard from numerous representative organisations and others that the working time directive is the key and the single most important thing we can do to address the retention crisis and in turn deal with the recruitment crisis the Defence Forces are currently in. There will need to be very clear lines set out in the legislation on what role the external oversight body will have on matters in that regard.

On the membership of the body, the scheme sets out a seven-person body, including the chair. It states members should have relevant experience in human resources, financial matters, direct leadership experience of military transformation and then there is the Secretary General of the Department in an ex officio capacity. If the Department and the Minister are going to be represented, even in such a capacity, would it be appropriate or has consideration been given to ensuring a representative of the Defence Forces personnel, as in a member of the representative organisations, be a either an ex officio or full member of the board as a matter of standard?

Mr. Cathal Duffy

The position on this is the recommendations of the IRG were quite explicit about the membership of the oversight body. It provided for an independent chair, five independent members with relevant expertise, as the Deputy mentioned, an overseas member who has undertaken significant successful transformation and the Secretary General of the Department. It is important to note the IRG report was clear this is an external oversight body and is, therefore, independent. It is external to and independent of the Defence Forces. As I said, the recommendations about the membership of the body were quite clear. They were accepted by Government and it is on that basis we have set out in the general scheme what the membership is.

Deputy Matt Carthy

Is there a resistance though to having the representative organisations, or one of them, represented on an ex officio basis considering there is no greater player than the Department and the Department will be represented?

Mr. Cathal Duffy

The independent review group set out the recommended composition, which includes the Secretary General of the Department and the Secretary General was appointed by the Tánaiste as a member of the body and that remains the policy position.

Deputy Matt Carthy

Okay. It might be something we look at in our report, Acting Chair.

An Cathaoirleach Gníomhach (Deputy David Stanton)

Yes, perhaps.

I have a suggest that might make things easier for all of us. We are dealing with heads 6 to 8, inclusive. If Deputy Carthy is clear on those heads we might ask our two colleagues if they want to come in on those rather than going back over the same matters.

Deputy Matt Carthy

Okay, but I have one last question about head 8 and the chair. The IRG recommendations used language like, "No relationship with military organisations is vital" while also recommending that an ordinary member have experience with "an overseas Defence Force or defence department which has successfully undertaken significant transformation". I am trying to get a sense of the Minister and the Department's reading of that recommendation. Does "No relationship with military organisations is vital" exclude somebody with that experience from being the chair or simply stating it is not a prerequisite? Should the legislation make it clear which it is we are setting out?

Mr. Cathal Duffy

My understanding is this is making it clear in the context of the chair that the IRG recommendation states no relationship with military organisations is vital, so that is solely in relation to the appointment of the chairperson. That would rule out somebody who was an ex-member of the Defence Forces.

Deputy Matt Carthy

The wording in the IRG report is, "No relationship with military organisations is vital". Am I to take it the Department has withdraw the last two words and is saying the requirement is no relationship with military organisations full stop? That is an expansion, somewhat, of the IRG recommendations.

Mr. Cathal Duffy

It is about your interpretation of "vital", I suppose. The Department has taken on board that it was considered vital that no member who is chair have a relationship with a military organisation. That would, therefore, rule out a member or former member of the Defence Forces.

Deputy Matt Carthy

Generally speaking, a job description would say something like "fluency in French is not vital" but usually there is a comma, followed by "but preferable".

Mr. Cathal Duffy

Or "desirable", or something, yes.

Deputy Matt Carthy

However, the Department is very clear the legislation will actually preclude somebody who has a relationship with military organisations for being the chair of this body.

Mr. Cathal Duffy

It is probably fair to say that the recommendation was not entirely clear in that regard. If this raises a question about whether this is properly reflected, then that is something we can reflect on.

Mr. Matt Carthy

At this point, I seek a clarification because if we are going to exclude, then there needs to be a rationale. I do not think that the rationale is the IRG report in itself. If we are going to exclude, then the legislation needs to clearly set that out. We need to have an understandable rationale because it would appear to be unique to have an oversight body over any sector and a requirement on the chair is that he or she cannot have had any experience in the sector. We need to be very clear on that in final legislation.

Mr. Cathal Duffy

The intention was to try to reflect the spirit of that.

An Cathaoirleach Gníomhach (Deputy David Stanton)

The point has been well made. Please come back to that after giving it consideration.

Mr. Cathal Duffy

Yes.

An Cathaoirleach Gníomhach (Deputy David Stanton)

We are dealing with the related heads of 6, 7 and 8. Does Deputy Cronin have any questions? No. Does Deputy Berry wish to discuss the three heads?

Deputy Cathal Berry

No.

An Cathaoirleach Gníomhach (Deputy David Stanton)

In head 6(3) it states, "The Minister may". Head 6(4) states, "The Minister may, prior to the commencement of any competition for the promotion of an officer". Head 6 gives the Minister discretion and, as was said earlier, he or she may or may not decide to confer. The Minister could completely ignore and sideline this body if he or she wished. Should we insert a proviso such as "The Minister shall confer" and if he or she does not, then we will give a good reason he or she will not? Having an oversight body is important and should be used. There is a possibility in the future that a Minister of the day might decide not to bother with it and do his or her own thing. I think that at least the Minister should confer unless he or she has a very good reason not to do so. I ask the Department to take my suggestion on board.

Mr. Cathal Duffy

We will, thank you.

An Cathaoirleach Gníomhach (Deputy David Stanton)

Is the Secretary General part of the six ordinary members? We have the chairman and six members, which is seven members. I think Mr. Duffy said there are seven. If we add the Secretary General, does that mean there is a total of eight members?

Mr. Cathal Duffy

No, it is seven.

An Cathaoirleach Gníomhach (Deputy David Stanton)

So the Secretary General is part of the six members. Is that right?

Mr. Cathal Duffy

It is the chair, five ordinary members and then the Secretary General as ex officio.

An Cathaoirleach Gníomhach (Deputy David Stanton)

To be clear, the general scheme says, "[6] ordinary members", and at head 8(4)(b)(e), it says, " the Secretary General of the Department of Defence who shall be an ex-officio member." That could imply another member but Mr. Duffy says that is not so.

Mr. Cathal Duffy

No. Seven is what is intended but we will clarify that for sure.

An Cathaoirleach Gníomhach (Deputy David Stanton)

Do we know the identity of the members of the external oversight body?

Mr. Cathal Duffy

We do, yes.

An Cathaoirleach Gníomhach (Deputy David Stanton)

Please make that information available to us at some stage.

Mr. Cathal Duffy

I can outline that now.

An Cathaoirleach Gníomhach (Deputy David Stanton)

Yes, please.

Mr. Cathal Duffy

The chair is Professor Brian MacCraith. I do not know how much of a biography is required. We can send it on and it is available on the EOB's website. The other members are: Ms Josephine Feehily, former head of the Revenue Commissioners; Ms Patricia King, former General Secretary of ICTU; Ms Julie Sinnamon, former CEO of Enterprise Ireland; Mr. Aongus Hegarty, who is an experienced board member, strategic adviser and thought leader with a wealth of experience; Ms Sam des Forges, who is from the UK Ministry of Defence and is its first ever director of diversity and inclusion; and the Secretary General of the Department. That is seven members.

An Cathaoirleach Gníomhach (Deputy David Stanton)

We will move. Deputy Carthy may have some questions on heads 9 to 12, inclusive.

Deputy Matt Carthy

No. My next question is on head 25. Does Deputy Berry have any questions on anything before that?

Deputy Cathal Berry

Perhaps we can fastforward to head 25, unless someone online wants to comment.

An Cathaoirleach Gníomhach (Deputy David Stanton)

Deputy Leddin is online. Has he any questions?

Deputy Brian Leddin

No.

An Cathaoirleach Gníomhach (Deputy David Stanton)

Deputy Berry has the floor.

Deputy Cathal Berry

I wish to make some general points about head 25, if that is okay.

An Cathaoirleach Gníomhach (Deputy David Stanton)

Sure but I would prefer questions, at some stage.

Deputy Cathal Berry

I welcome the themes and the publication of the Bill. I also welcome the pre-legislative scrutiny process, which is very important. We get to consult widely, which is great.

Ms Maguire, in her opening statement, mentioned the possibility of a second Bill later this year. When will we see that? Will it be the back end of the year? Is there a timeline for its publication?

Ms Bernie Maguire

What was set out in the strategic framework was that we would aim to have the heads of the Bill published in summertime and drafting, again, in the autumn, so hopefully having the two Bills well progressed this year.

Deputy Cathal Berry

Is that the Bill where the Naval Service becomes the navy and the Air Corps becomes the air force?

Ms Bernie Maguire

Yes. On the legislation side that would be part of it but there will be the command control structures within the military and the chief and head of defence, the CHOD. It is quite a comprehensive and complex piece of legislation, which we are currently working on in tandem with this. It should be ready - the heads of the Bill - for Government in summertime.

Deputy Cathal Berry

I hope before the recess. I thank Ms Maguire.

An Cathaoirleach Gníomhach (Deputy David Stanton)

Is everyone finished with Part 2 which concerns the external oversight body? Yes. We can now discuss Part 3, which consists of heads related to ICTU.

Deputy Cathal Berry

In general terms as regards ICTU, it is great to have this regularised in legislation. It is a major step forward and very much welcome.

Head 25 concerns the military prosecutor and military judge who will not be allowed to become a member of a representative association. Does the Department know if they are currently a member of a representative association? .

Ms Clare Tiernan

Currently, the director of military prosecutions cannot be a member of a representative association and that is provided for under regulation. The military judge is not prohibited currently.

Deputy Cathal Berry

Is this something that they have actively sought themselves?

Ms Clare Tiernan

No. Their positions or posts have changed in the last 15 years in terms of independence, direct entry and who is eligible to apply for the post and the posts are statutory independent positions outside the chain of command. I suppose, given the nature of the posts, and the unique structures in the Defence Forces, it is seen that these posts should not be affiliated or associated with a representative association. It is on that basis that the proposal is that they should not be allowed to be a member of a representative association.

Deputy Cathal Berry

I presume they are aware that these provisions exist. Do they have any thoughts on whether they should and was there consultation?

Ms Clare Tiernan

We are currently under the consultation phase, which this is part of. We have consulted with both the military judge and the director of military prosecutions.

Deputy Cathal Berry

Are they in favour of this?

Ms Clare Tiernan

Those consultations are ongoing.

Deputy Cathal Berry

I am clear on head 25.

An Cathaoirleach Gníomhach (Deputy David Stanton)

We can deal with that section, all the heads related to ICTU. It might be easier to do that rather than go back and forth. I see Deputy Carthy has indicated.

Deputy Matt Carthy

On head 25, I am not clear on the Department's position of barring two titles, the director of military prosecutions and military judges, and there is scope within the head of the Bill to include others, and bar them from membership of a representative association on the basis that they are required to be independent. The director of military prosecutions is free to be a member of a trade union. I do not think anybody would suggest that the director would take a different view of a case before him or her because the alleged perpetrator of a crime was a member of the same trade union. Let us consider that already in the military justice system commissioned officers could regularly sit in judgment of fellow officers and RACO members, in this instance, where one could have equality officers carrying out investigations and making findings yet all the time bound, by statute, to be independent in the performance of their functions.

I am not aware of another piece of legislation that specifies job titles as being barred from either trade union or representative organisation membership. It is quite concerning and it needs to be teased out. I am not sure that the arguments put forward stand up to scrutiny, because we would have problems if we were to apply them across the board.

Ms Clare Tiernan

The Defence Forces are a unique body in that they have their own military justice system, with their own internal judge and director of military prosecutions, so it is an inward-focused system. What we are talking about here is membership of RACO, which is part of the Defence Forces. It is one cohort of the Defence Forces of which these people would have membership. The issue that we are tackling is that the perception of independence and their independence is totally protected in legislation, but we will take away Deputy Carthy's point and consider it. It is a point that has been made to us through our consultation so we will definitely look at that and consult with the Attorney General.

Deputy Matt Carthy

I thank Ms Tiernan for that. I suggest that as part of our pre-legislative scrutiny we would invite all the representative organisations and ICTU to comment on that and other points.

I agree with Deputy Berry that membership of ICTU and provision for it is an important step forward. It is important to allow the Defence Forces to have representation, in particular when key talks are ongoing. I would argue that the prohibition on taking industrial action makes it more imperative that the representative organisations could have membership of ICTU. Section (2B) provides the Minister with power to withdraw the right to associate with ICTU from PDFORRA and RACO in the future. If we ever get to that point, it would crystallise a real breakdown in the relationship between the Government and the members of the Defence Forces. I am surprised at the inclusion of that section in the first place, but I would also surprised if there were to be provision for some reason or another, such as national security or otherwise, to remove the right to associate with ICTU. At a very minimum, it should be a right reserved for the Oireachtas as opposed to a single Minister. Does Ms Tiernan have any comments in that respect?

Ms Clare Tiernan

I note what Deputy Carthy says about the right being conferred on the Oireachtas rather than the Minister. We can reflect on that. This is in line with the court settlement that was agreed with the representative associations back in 2022. In the same way as the Minister grants the right to associate, he can also make a decision in regard to that right. Something like that would not be made lightly. We can take on board what Deputy Carthy says but it is in line with what is in the court settlement.

Deputy Matt Carthy

Every day in this place we find legislation being used for something that the original drafters could never have envisaged. The fact is that if we provide a Minister with a power then we are providing them with the legislative basis for them to use that power at some point in the future. I understand that in the course of negotiations RACO and PDFORRA might have accepted this provision being included, but now we are at the point where we are enshrining it in legislation - the truth of the matter is that legislation can be changed at any stage in the future if that is the will of the Oireachtas - I would just be cautious because I think head 26 sends the wrong signal in terms of the activities that an association will be prohibited from undertaking.

The opening statement mentions "Undertakings were given at the time by the PDF representative associations not to engage in certain specified activities." There is a commitment there and I presume if there is a breach there would be some form of penalty applied. Would it not be better if we removed section (2B) and outlined the state of play? Members of the Defence Forces are giving undertakings that no other worker in society has to give, in terms of being prohibited from certain types of industrial activities and, in exchange, the State is giving its blessing for them to be represented on the Irish Congress of Trade Unions to ensure that their voice is heard in discussions. A little asterisk could be attached to that and it could be added that a Minister at some point in the future could also withdraw that right from them. Regardless of what agreements were made with the representative organisations, this is the Oireachtas and we are the people who have to put in place a framework, potentially for generations. It might be better if the Department were open to considering removing that subsection entirely.

Ms Clare Tiernan

We can reflect on that. There are conditions in terms of the associate membership. They include the consequences if the conditions are not met. That is what I would see that head providing for, but we can reflect on what Deputy Carthy says and examine it.

An Cathaoirleach Gníomhach (Deputy David Stanton)

I will move on. Senator Craughwell is welcome. I know he has been busy with other matters. We are on Part 3 but if there is something pressing that he wants to go back to, he should feel free to do so.

Senator Gerard P. Craughwell

I am sorry that I was not here but I was in the Seanad with the Tánaiste dealing with the tribunal Bill.

An Cathaoirleach Gníomhach (Deputy David Stanton)

Even Senator Craughwell cannot be in two places at the one time. We are trying to confine our remarks to questions and answers.

Senator Gerard P. Craughwell

In the answers that have been given since I arrived, there has been talk about consultation and reflection. I am afraid that the consultation side is dismal. The Department does not really consult with either PDFORRA or RACO, and if it does, from what I can see, it is only tokenism. I speak in particular of head 25 and the restriction on the director of military prosecutions. The adjudicator has already told the Department that it has not put any reasonable argument forward. Who is the Department talking to? Clearly, both of the representative bodies are unhappy with head 25, in particular with respect to membership of the representative bodies.

I have been in trade unionism for 25 years. I have been the president of a trade union. I have never heard of a situation where somebody, because of the role they play, cannot be represented by the organisation. Let us take the master of the Rotunda, who is the top man or woman, as the case may be. He or she has to make independent decisions about staff all day, every day. That does not prevent them from being a member of the IMO. Where is this coming from and what is the agenda behind it in terms of refusing commissioned officers permission to be members of their representative body?

An Cathaoirleach Gníomhach (Deputy David Stanton)

That is a good question. Who wants to take it?

Ms Clare Tiernan

Again, I will take it. I thank Senator Craughwell for his questions. There is consultation taking place with the representative associations. In fact, we have just received their formal written observations, and the consultations will continue. In addition, there are consultations taking place with other bodies on the text of the general scheme. Today is part of that consultation process also.

As I outlined to Deputy Carthy, and as Senator Craughwell is well aware, the structures in the Defence Forces are significantly different to any other employment. They are unique. There is an internal system of military justice. There is no comparable employment in the country that compares with it. The Defence Forces have their own military judge and director of military prosecutions. It is about being independent and the perception of independence. That is the reason for this provision. I will take on board what has been said around the table here. We do have very strong views from the representative associations in relation to these matters and we will reflect on what has been said.

Senator Gerard P. Craughwell

First and foremost, I served in the Defence Forces myself. Any soldier who was charged during my time had to go before their company commander. A company commander is expected to be independent in the approach they take to a soldier who has been charged with an offence under military law. The corollary of what the representatives are saying is that if the director of military prosecutions cannot be a member of RACO, then neither can any officer who commands a company. Moreover, if one appeals the outcome of a company commander’s decision, one will have to go to the battalion commander, the unit commander, and so on up the line. Therefore, everybody above the rank of commandant - we will assume company commanders are all commandants - could be deemed to be in a judicial position. As such, they cannot be a member of RACO. That is a non-tenable position.

The representatives speak about consultation. Why are they speaking about a written submission from the representative bodies when they are here before a joint Oireachtas committee that is about to start its pre-legislative scrutiny? Surely, the written submissions from RACO and PDFORRA should have been received months ago. The representatives should be engaging with them today. They should not be before this committee and talking to us; they should be with RACO and PDFORRA to try to resolve any issues. It is outrageous to have published the heads of a Bill without having engaged in face-to-face discussions with both representative bodies. Whether the representatives like it or not, they are formally in place, they are a part of the system and they have to be engaged with. Did the representatives engage with the general staff before they published the heads of the Bill?

Ms Bernie Maguire

I will take that question. There was engagement at the top level in the organisation on this. This legislation is not a surprise to anybody. As I said, this was in the strategic framework that was published last September when the Tánaiste set out the composition of both Bills. Prior to it going to the Government for discussion, I engaged with my counterpart in the military on the outline of the general scheme. I am looking forward to getting their input as we go through this consultation process, because it is very important that we get their feedback on what we are doing here.

Senator Gerard P. Craughwell

Is it not true that the adjudicator has already condemned the lack of communication and engagement with the representative bodies?

Ms Clare Tiernan

The adjudicator was looking at a particular issue that is going to arbitration. I do not really want to comment further on that process, because it is happening.

To go back to the issue of consultation on the legislation, we have met with the representative associations about this. It is not just a matter of having a formal written submission. That will continue and I think that is reflected in the explanatory note to head 26, which says that this will require further development and discussion. That has commenced. The explanatory note under head 26 is really important. It is not the case that we are ignoring the need to consult, and that is actually provided for in the explanatory note.

An Cathaoirleach Gníomhach (Deputy David Stanton)

I am sure there will be tonnes of consultation on this as we go forward-----

Ms Clare Tiernan

Yes.

An Cathaoirleach Gníomhach (Deputy David Stanton)

-----both with us and the interested parties. As Deputy Carthy also said, the Chair is anxious to involve various groups in the committee by having them give written and oral submissions.

Can we come back to the actual-----

Senator Gerard P. Craughwell

I want to move on to head 26(j), which speaks about the non-involvement in politics. The rest of head 26 mutes the organisations. They cannot speak on Government policy, etc. I assume all the representatives of the Department who are present are members of a trade union. It may be the Association of Higher Civil and Public Servants or some union for the Civil Service or public service. I assume their union can speak about their terms and conditions of employment, health and safety and Government policy that impacts their everyday role. Regarding head 26(j), why was it necessary to add all that after the word “politics”?

Ms Clare Tiernan

For the purposes of this legislation, at the outset I should say that there are already provisions in place regarding what representative associations or individuals can do in terms of public commentary and it is not intended to change those. Under the regulations governing representative associations, they have the right to comment on any matter within the scope of representation, and that is not intended to change. Similarly, provisions are already in the legislation regarding the regulation of individuals and the general scheme is reflecting what is already in place.

Senator Gerard P. Craughwell

I want to come back to that. The representatives could have stopped at the first line where it finishes at the word “politics” and deleted the rest. There is absolutely no need for the rest to be there. It could be interpreted as a gagging order on the representative bodies so that they could not make a comment, irrespective of custom and practice to date. This legislation could change the customs and practices going forward and that is extremely worrying. No representative body and no soldier I have ever known has made a public comment on politics. Yet, there was no need to continue by adding the part on public comment on other issues and I am therefore really concerned that there is the potential to gag the representative bodies. When looking at that part of head 26, I think of the annual conference for next year. They could not have an annual conference, because they could find themselves in breach of that legislation. I want to leave it at that, but I am deeply concerned that consultation is not taking place and respect is not being shown.

An Cathaoirleach Gníomhach (Deputy David Stanton)

Let us deal with what is before us here today. Regarding head 26, (a) to (i) of it are fine, and I can see the merits of those, but the last bit could be interpreted very widely. When we look at the Bill, we might tighten that up to ensure it cannot be widened to, as the Senator said, a complete gag on the association from commenting on anything or making representations. I have a question for the witnesses. Can they explain the difference between having associate status and being a full member?

Ms Clare Tiernan

As a full member of the trade union, one has full voting rights and is a full participant of ICTU. An active associate membership effectively gives one the right to take part in negotiations around pay and conditions. That is probably the fundamental difference between the two of them.

An Cathaoirleach Gníomhach (Deputy David Stanton)

I thank Ms Tiernan. If colleagues are satisfied, we can move on to Part 4, which relates to miscellaneous amendments to the Defence Act 1954. This is about the head relating to ‘Protection of the Term “Óglaigh na hÉireann”’, heads related to compulsory random drug testing and the miscellaneous heads. Does any colleague want to come in with questions, comments or observations on what is left? No. I do not have much to say on that either.

I invite Ms Maguire to make her final remarks.

Ms Bernie Maguire

I thank the Chair and the committee. Many very useful comments were made today and they will help us in this process. I confirm that we are at the very early stage of consultation. We welcome views from all the groups involved in this legislation, including our colleagues in the Defence Forces. We look forward to working closely with the committee over the coming weeks. I suggest we work closely with the secretariat in the report. If any major issues come to the fore, we will be happy to work behind the scenes to get the legislation right.

An Cathaoirleach Gníomhach: (Deputy David Stanton)

I have no doubt.

Deputy Cathal Berry

We skipped head 34 and I wanted to come in on that. It deals with the re-engagement of personnel. There is mention of increasing the retirement ages and from this committee's point of view, it is important to hammer that message home. It does not make a whole lot of sense, if An Garda Síochána is allowing people to join at the age of 50, for the Defence Forces to make people retire at that age. I know they are two very different organisations but I would urge the Department to make those retirement ages as reasonable and as high as possible. If we could increase the maximum recruitment age and the maximum retirement age it would have a very beneficial impact, particularly from a retention point of view.

Senator Gerard P. Craughwell

I am a little concerned about the oversight body that is being established. The participation of the Secretary General of the Department, for me, is anathema. The idea of the Secretary General of a Department overseeing his or her own Department is fundamentally wrong. I just wanted to put that on the record, for what it is worth.

Deputy Réada Cronin

I have one question on heads 34 to 37, specifically Part 4, number 4.

An Cathaoirleach Gníomhach: (Deputy David Stanton)

Sorry, which part are you referring to?

Deputy Réada Cronin

Part 4, number 4, amending the provisions regarding re-engagement of enlisted personnel in heads 34 to 37. This matter is of personal interest to me. I wrote to the Tánaiste on the matter of age last November and I sent him a reminder again last week about the case of a person who will be 36 on his next birthday and who applied for the job of Army band conductor but was deemed to be too old. If the person was still a member of the Defence Forces, that would not have mattered. I ask the witnesses to have a look at this and to remind the Tánaiste that I have written to him about it twice. I am not sure if anyone in the Department is looking at it but I have a copy of the email here and can give it to the witnesses. It just seems strange that this person is deemed to be too old while serving members of the Defence Forces can take up that role until they are their late 50s. There does not seem to be much common sense here when a young, fit and musically highly qualified ex-member of the Defence Forces is denied consideration for the post because he is deemed to be too old to wield a baton. It just seems strange.

Deputy Cathal Berry

To back up Deputy Cronin, there was a suggestion that the retirement ages were going to be increased soon. Would our guests have any update on that and the timeline for implementation? I know there are lots of people in the corporal and sergeant ranks across the Defence Forces who are approaching 50. They are concerned about where they are going to be, career-wise, in the next five years and are wondering if they should leave the Defence Forces and make alternative arrangements or if they should stay. Can any clarity be brought to that issue?

An Cathaoirleach Gníomhach: (Deputy David Stanton)

That is not, strictly speaking, in the heads of the Bill before us but I will apply a little leniency and allow the Department to respond to Deputy Berry. If our guests do not have the answer now, they can send it to the committee later.

Ms Bernie Maguire

Ms Tiernan may be able to address that.

Ms Clare Tiernan

I will take the two issues together. Head 34 would address Deputy Cronin's concern. Addressing the overall issue of both mandatory retirement ages and recruitment ages is a commitment in the strategic framework. Currently privates and corporals can stay up to the end of 2024 even if they are over the age of 50 but we do expect something shortly in this area to address the longer term position on retirement ages.

An Cathaoirleach (Deputy David Stanton)

Okay. I have one final question on the role of the Ombudsman for the Defence Forces. Head 41 talks about people who would be deemed ineligible for appointment as Ombudsman and that is fair enough but is the opportunity being taken to look at the overall role and function of the Ombudsman and possibly update or change it, given that we are bringing through primary legislation anyway and the office is mentioned therein? Is that outside the scope of what we are discussing today?

Ms Bernie Maguire

It is something we have discussed ourselves in the context of preparing for future legislation. We are looking at revising the complaints system and the role of the Ombudsman will have to be revisited in that context but that is a bigger job and is outside the scope of this Bill. It is an issue for future legislation.

An Cathaoirleach Gníomhach: (Deputy David Stanton)

I have a sense that the Ombudsman has been slightly side lined and sent down a cul de sac to some degree. It would be timely to look at that in the round as well.

I want to thank our guests for their time and their responses and for the work they are doing on this very important legislation. We will obviously do our own work on this and will be making suggestions, which I hope will be of assistance to the Department in putting together the final Bill which will come before us again on Committee Stage.

The joint committee went into private session at 4.26 p.m. and adjourned at 4.42 p.m. until 3.15 p.m. on Tuesday, 13 February 2024.