I welcome the Minister of State, Deputy James Browne.
Sex Offenders (Amendment) Bill 2021: Committee Stage
Sections 1 to 6, inclusive, agreed to.
NEW SECTION
I move amendment No. 1:
In page 7, between lines 31 and 32, to insert the following:
“Amendment of section 7 of Principal Act
7. Section 7 of the Principal Act is amended by the insertion of the following subsection after subsection (2):
“(3) A person convicted by court-martial in a military court should be subject to all of the same notification requirements outlined in this Act as a person convicted of the same crime in a civilian court.”.”.
I thank the Minister of State for attending. As he may or may not be aware, currently, members of the Defence Forces who are convicted of sex offences under the Defence Acts are not registered as sex offenders. Statements issued by the Department of Defence and the Defence Forces have confirmed that nobody has been referred to the sex offenders register.
Twenty-three years ago, as a serving captain in Óglaigh na hÉireann, I completed a PhD on the experiences of my female colleagues in the Defence Forces. That research showed there were exceptionally high levels of gender-based discrimination and gender-based violence within the Defence Forces, up to and including routine sexual assault and rape. I sounded that warning 23 years ago and, for my troubles, I was subjected to a campaign of character assassination, and what is now termed whistleblower reprisal, by the members of the general staff. It was before their time. They engaged in what is called cancel culture. Rather than deal with the substantial issues that were presented to them comprehensively, they failed and instead resorted to this cowardly and ongoing practice of reprisal and cancellation.
I sought an independent Government inquiry from the then Minister for Defence, Michael Smith, and in 2001, he put in place a study review group that investigated my research. In 2003, that group issued its preliminary findings and confirmed that Óglaigh na hÉireann, the Defence Forces, was a toxic workplace environment. It also confirmed the level of sexual violence, sexual assault, sexual harassment and rape within the organisation. Not only was it an experience for female personnel, but the group also looked at the experiences of male personnel and found that vulnerable men within the Defence Forces had been targeted in the same way.
As the Minister of State is probably aware, the independent review group has published its report and it is now with the Cabinet and the Attorney General. It was to have been published before the end of January; it is now March. I have requested a copy from the Tánaiste. As yet, I have received no sight of it, but I believe the results of the judge-led, independent review group will show quite clearly that the Defence Forces have not improved in the past 23 years and that, in many respects, circumstances may have deteriorated, which raises the question as to what successive general staffs have been doing for the past 23 years. This deterioration, if it is the case, happened on their watch. I ask them to cease and desist from their ongoing campaign of cancellation and reprisal against people such as me who have raised these issues. As part of that, I ask the Minister of State and my colleagues, on International Women's Day, to accept the amendment. Why would they not accept it?
I am aware of at least two incidents where members of the Defence Forces who had been found guilty of sex offences but were not recorded on the sex offenders register went on to rape women in the wider community. The Defence Forces are charged, in their mission statement, with protecting the State from external and internal threats. I suspect that whenever the independent review group’s report is published by Cabinet, it will show that our Defence Forces, Óglaigh na hÉireann, are not a safe place for women. They are not a safe place for 51% of the population. That being the case, the Defence Forces cannot purport to protect or defend the State from any external aggressors, nor should we send them into an environment where there are vulnerable women and children in conflict zones if we do not have in place at home all the transformative structures required to bring them into line with international best practice in the military and with all the evidence-based approaches to sex offending and the registering of sex offenders.
Will the Minister of State please accept the amendment? It is self-evident as to why it is necessary. We must end the culture of secrecy, reprisal and cancellation around the phenomenon of sexual violence that is persistent and pervasive within Óglaigh na hÉireann. That is the least we owe the serving air crew, sailors and soldiers of our Defence Forces and it is the least we owe the public. Moreover, in fairness, we owe the current general staff and Chief of Staff, who have inherited this situation, and the Secretary General of the Department of Defence some sort of assistance in getting to grips with this appalling and vile phenomenon within our Defence Forces.
I support the amendment, which seems to have identified a lacuna in the 2001 Act. We often talk in this country about the sex offenders register as though somewhere, there is an enormous ledger that can be opened and the name of a given offender found. Of course, that does not exist. What we call the sex offenders register is a set of obligations on people who have been convicted of certain offences, and they are not minor sexual offences. They are serious sexual offences and 20 of them are scheduled to the 2001 Act, including rape, sexual assault, aggravated sexual assault and many other serious sexual offences. This is not a piecemeal matter; it is serious. Indeed, the principal Act provides in section 13(1) for the provisions of that sex offenders register to apply even to people who have been convicted of those offences outside Ireland.
Therefore, a foreign person who becomes resident in Ireland, having been convicted of a similar offence in another jurisdiction, can also be the subject of a sex offenders register and the obligations that come with that. They are primarily reporting obligations relating to people's whereabouts, address, etc. The notion that somebody could be convicted of such a serious offence under a court martial because he or she is a member of the Defence Forces and then, most likely, I would think, dishonourably discharged into society, without the same obligations that would apply to him or her if he or she was not part of the Defence Forces when convicted seems to me to be a gap. I understand that it may not be easy to accept it at this stage. I am quite sure that the officials have given it consideration but it seems that this is something that should have been in the 2001 Act from the word go. There is now an opportunity for us to remedy that. I hope the Minister of State will give it consideration, if not now then on Report Stage to plug that gap.
I also welcome the Minister of State to the House. I just listened to Senator Clonan and I commend him on tabling the amendment. I look forward to the Minister of State’s response. From where I am sitting he seems to have identified a serious gap that needs attention.
Cosúil le comhghleacaithe eile, beidh Sinn Féin ag tacú leis an leasú ón Seanadóir Clonan. Senator Clonan’s amendment is important. I am sorry that I missed his contribution. I am sure that, as ever, it was well-informed, insightful and comprehensive. The amendment seeks to ensure there is legal consistency across all sectors of our society whether civilian or military when it comes to sexual assault. I am sure it has been mentioned that the exposure by the Women of Honour, in particular, of the scale of sexual violence against women in the Defence Forces highlights the importance of accountability and transparency based on law and practice. One thing that was said on Senator Clonan’s election to this House was that he would bring tremendous experience around these issues. We know his background on this. The amendment makes absolute sense. We support it and I hope the Minister of State will accept it.
I thank Senator Clonan for his contribution. However, I assure him that the requirements under the Sex Offenders Act apply equally to any person convicted of a sexual offence in a criminal court or by court martial. The 2001 Act requires that any person convicted of a relevant sexual offence must comply with the notification requirements. If a person is convicted of a relevant offence either in a civilian court or a military court martial, they must comply with the notification requirements. When a person is convicted of a sexual offence the Act requires the court, including a military court martial, to issue a certificate to the offender, An Garda Síochána and the person in charge of the place of imprisonment stating that the offender has been convicted of the offence and is subject to the requirements of the Sex Offenders Act. In addition, the person in charge of the place where the offender is imprisoned is required to notify An Garda Síochána prior to the offender’s release from prison that he or she is subject to the requirements of the Sex Offenders Act. As the notification requirements of the Act already apply to persons convicted of a relevant offence in a court martial, unfortunately I cannot accept the amendment.
In a court martial trial, the person would be tried using ordinary criminal law for offences such as rape under the 1981 Act or rape under section 4 of various Sexual Offences Acts. If found guilty of the offence, they will be subject to the requirements of the Sexual Offenders Act 2001. I would point to the definitions under that Act in section 2 where a court means any court exercising criminal jurisdiction and includes courts martial. I understand the Senator’s sentiment and his reason for putting forward the amendment. I say it is not necessary but that is not to say that there are not issues elsewhere.
The Secretary General of the Department of Defence, Ms Jacqui McCrum, is a person of considerable ability and of the upmost integrity who has come to the Department and the role from a background in international finance and banking. I know that she would not mind my saying that she cut her teeth in international finance and banking in the city in London during the 1990s. I imagine, from a gender equality perspective, it would be like spending time in Jurassic Park with all the predatory creatures you might find there. Jacqui Mc Crum is an exceptional Secretary General of the Department and I have no doubt that in her tenure she will bring Óglaigh na hÉireann through the process of transformation that it so badly needs. I have said in the House previously and it is set out in my PhD dissertation, that in 1922 we inherited the physical infrastructure that the British Army left behind. For some reason, Óglaigh na nÉireann, or the Irish Free State Army, adopted the cultural infrastructure of the British Army of the 1920s. It is overly hierarchical; fetishistic in terms of power differences between people; it has an artificial class divide within in it; and it needs to be decolonised. Our Defence Forces have to move from being one based on ritual and an anachronistic echo of our colonial past to being an evidence-based, diverse, inclusive and effective military for the 21st century, which it is not. The way the military operates, and I am intimately acquainted with this for the last 23 years, is that when someone is charged with a sexual offence, they break it down into sample charges, 168s which are administrative offences, so that it does come under the radar of serious sex offences. I have given expert reports at court cases where I have seen serious sexual assaults broken down in this absolutely scurrilous practice in an effort to diminish the offence and in that way the offenders have escaped.
There is also a practice in the recent past of requiring people who have brought claims of sexual assault and harassment to sign non-disclosure agreements, NDAs. For shame. How dare taxpayers’ money be used in this way to coerce or persuade people to sign an NDA around this very sensitive issue. This is not the fault of the Secretary General of the Department and I would give the Chief of Staff the benefit of the doubt for now in that he is newly appointed and has stated his commitment to ending this practice. However, the way the Defence Forces operates is exactly the same way the Catholic Church operated when the first properly concerted efforts to reveal clerical child sex abuse began. The church relied on canon law to conceal and to diminish the problem and make it go away.
Unfortunately, he is not here now but Senator McDowell, when he was Minister for Justice, said in frustration at the time that canon law should have the status of the rules of a golf club and that henceforth all issues around clerical child sex abuse should be dealt with in the criminal courts. It is exactly the same for our Defence Forces. Their internal military police and internal canon law, that is, military law, should not be used as a mechanism to deal with these serious offences. They should be dealt with by the criminal courts. I am echoing the advice that senior female officers gave to me and their subordinates: if a female soldier, sailor or aircrew is sexually assaulted, do not go to the military police; do not go through the chain of command; go to An Garda Síochána and report it. At least then it will be investigated and charges will possibly be brought through the DPP’s office. However, if we rely on the system of the Army investigating itself, we will face this completely and utterly deficient system.
I reiterate that we need to support our Defence Forces in this moment of change. Here on International Women’s Day, we have an opportunity to do what the Minister of State knows instinctively is the right thing to do. Everybody in this House knows that this is the right thing to do. They have used a loophole to evade, avoid, elide, and get away and hide and diminish this problem. It has been going on for too long.
What makes me really angry is that I know that hundreds of young men and women have had life-altering and life-limiting experiences of sexual assault in the Defence Forces. I gave the warning 23 years ago and am saying it here again. This amendment needs to be accepted. I appreciate the Minister of State's good offices, integrity and utmost good faith. I do not envy him his position in rejecting it here today. I would argue that there is a categorical moral and ethical imperative to accept this amendment.
I certainly hear the Senator and his sentiments. I cannot comment on anything regarding the Defence Forces. I am here from the Department of Justice. I can say that the Sex Offenders Act 2001 and the Bill before us are clear that the sex offenders legislation applies as much, and equally, to a situation in any court, whether that court has criminal jurisdiction or is a court martial. The law is clear at the moment. Unfortunately, the amendment does not actually change the law but simply repeats what is already the law. There is always a concern that if one accepts an amendment which creates duplication, that can be interpreted by the courts as somehow changing the law. I cannot comment on the Senator's concerns, save that those concerns are not with this legislation and the amendment will unfortunately not change the law in that respect. I think the concerns need to be addressed elsewhere.
Before we have the division, on this International Women's Day, I welcome the mother of our colleague and friend, Senator Hoey. Mrs. Elizabeth Hoey is in the Public Gallery. She is very welcome. I thank her for being here. It is nice, on International Women's Day, to have mum and daughter here in Leinster House. It is her first time here since Annie was elected as a Seanadóir. She is very welcome.
Amendment put:
The Committee divided: Tá, 11; Níl, 23.
Tá
- Black, Frances.
- Clonan, Tom.
- Craughwell, Gerard P.
- Flynn, Eileen.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Hoey, Annie.
- Keogan, Sharon.
- Mullen, Rónán.
- Ó Donnghaile, Niall.
- Sherlock, Marie.
Níl
- Ahearn, Garret.
- Ardagh, Catherine.
- Blaney, Niall.
- Byrne, Malcolm.
- Byrne, Maria.
- Carrigy, Micheál.
- Chambers, Lisa.
- Conway, Martin.
- Crowe, Ollie.
- Cummins, John.
- Currie, Emer.
- Daly, Paul.
- Davitt, Aidan.
- Doherty, Regina.
- Gallagher, Robbie.
- Garvey, Róisín.
- Horkan, Gerry.
- Martin, Vincent P.
- McGahon, John.
- McGreehan, Erin.
- O'Reilly, Joe.
- Ward, Barry.
- Wilson, Diarmuid.
Tellers: Tá, Senators Tom Clonan and Gerard P. Craughwell; Níl, Senators Robbie Gallagher and Joe O'Reilly.
“Pursuant to Standing Order 57A, Senator Rebecca Moynihan has notified the Cathaoirleach that she is on maternity leave from 6th February to 18th August, 2023, and the Whip of the Fine Gael Group has notified the Cathaoirleach that the Fine Gael Group has entered into a voting pairing arrangement with Senator Moynihan for the duration of her maternity leave.”
Amendment declared lost.
Sections 7 to 14, inclusive, agreed to.
SECTION 15
Amendments Nos. 2 and 3 are related and may be discussed together, by agreement. Is that agreed? Agreed.
Government amendment No. 2:
In page 22, line 6, after “Expenditure” to insert “, National Development Plan Delivery”.
These are simply administrative amendments. As Members will be aware, the Government formally agreed to change the name of the Department of Public Expenditure and Reform to the Department of Public Expenditure, National Development Plan Delivery and Reform with effect from 1 February. These amendments simply reflect that.
Amendment agreed to.
Section 15, as amended, agreed to.
Sections 16 to 24, inclusive, agreed to.
SECTION 25
Government amendment No. 3:
In page 29, line 37, after “Expenditure” to insert “, National Development Plan Delivery”.
Amendment agreed to.
Section 25, as amended, agreed to.
Sections 26 to 30, inclusive, agreed to.
Title agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
Next Tuesday.
Is that agreed? Agreed.
Report Stage ordered for Tuesday, 14 March 2023.
Cuireadh an Seanad ar fionraí ar 3.12 p.m. agus cuireadh tús leis arís ar 5 p.m.
Sitting suspended at 3.12 p.m. and resumed at 5 p.m.