Micheál Martin (Cork South Central, Fianna Fail) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I am pleased to present this Bill that will play a key role in driving the necessary transformation of the Defence Forces to the House. A number of high-profile reviews have been undertaken on matters relating to the defence sector in recent years. Key reports include those of the Commission on the Defence Forces and the Independent Review Group, IRG, on Dignity and Equality Issues in the Defence Forces.

As I outlined previously, and as we have discussed extensively in this House, there will be a requirement for an extensive programme of legislative reform to give effect to the recommendations set out in those reports. The strategic framework on the transformation of the Defence Forces, which I published in September 2023, brings together into one overarching document the immediate actions to be taken to support the transformation of the Defence Forces. The strategic framework includes my commitment to bring forward two separate Bills this year to amend the Defence Acts. This is the first of those Bills.

In summary, it is intended that this extensive Bill, which covers many aspects of the Defence Acts, will give effect to a key recommendation of the independent review group in respect of the establishment on a statutory basis of an external oversight body, EOB, of the Defence Forces; establish a statutory framework for the Minister for Defence to consent to the military representative associations to associate with ICTU; bring forward a number of important miscellaneous amendments to the Defence Acts; and an amendment to the Ombudsman (Defence Forces) Act 2004.

The general scheme was approved by the Government last December and the drafting of the Bill commenced early this year. As is normal practice during the drafting process, the wording of the Bill includes several refinements and modifications to the provisions set out in the general scheme. This was referred to the Oireachtas Joint Committee on Foreign Affairs and Defence for pre-legislative scrutiny. As part of this process, there was constructive engagement and discussion between committee members and my officials on my draft legislative proposals. A full list of proposed amendments and the associated rationale was provided by my officials to the committee on 2 April, with further communication of another amendment on 16 April. I am not sure if that correspondence was reflected in the committee's subsequent report but it was quite extensive. The committee also heard from other key stakeholders. I and my officials listened carefully to what the stakeholders and the committee had to say and I thank all the members of the committee for their engagement and for completing the pre-legislative scrutiny process in a timely and effective manner. I am pleased to advise the House that the Bill as published includes a number of modifications and clarifications that take account of several issues highlighted during that process. Some recommendations arose from the pre-legislative scrutiny process, which I carefully considered but which I was unable to accede to, and I will elaborate on the reasons for this during my speech.

I turn now to the main provisions of the Bill.

Part 1 includes standard sections regarding the Title, commencement provisions, the repeal of an obsolete section of the Defence Act 1954 and the definition of key terms.

Part 2 sets out a number of important amendments to the Defence Act 1954.

Sections 6, 7 and 17 bring forward technical amendments to sections 48, 53A and 248 of the Defence Act 1954 to update and clarify the wording of the sections in question.

Sections 8 and 9 amend the sections in the Defence Act 1954 relating to the re-engagement of enlisted persons that takes place following the completion of a member’s original term of enlistment. The proposed amendment will allow for greater flexibility in the period of re-engagement that may be approved and will also remove an obstacle to increasing the maximum age limits for enlistment in the Defence Forces. This will, I hope, be a useful tool in our efforts to address recruitment and retention challenges.

Sections 10 and 19 remove the outdated requirement for the Minister for Defence to prescribe in regulations changes to the rates and scales of pay for members of the Defence Forces and the Army nursing service. Under these revised provisions, we will move to a more modern way of disseminating pay scale updates to all members. The proposed amendments are about improving administrative efficiency.

Section 11, which amends section 103 of the Defence Act 1954, concerns the prohibition of activities of a public or political nature by individual members of the Defence Forces. The pre-legislative scrutiny report in considering the draft head for this section expressed the view that this provision might be construed as being disproportionate. There has also been concern that the provision might adversely impact the ability of members of the Defence Forces to fully engage in the activities of the military representative associations. In view of the apolitical nature of the Defence Forces, which is a long-established principle, the Defence Act 1954 has always contained restrictions on the involvement of members in political activities. This is clearly reflected in the oath taken by all members of the Defence Forces when joining.

Strong military advice has been received that provisions along the lines set out in the Bill are appropriate and necessary. Similar restrictions already operate across the wider public service and the text of the Bill clarifies that the relevant section will operate without prejudice to the rights of individual Defence Force members to engage with, or be represented by, their representative associations. In essence, nothing in this Bill will in any way impede the ability of the representative associations to robustly articulate views on behalf of their members and represent them. I am happy to clarify this point. Having considered the matter overall, I am strongly of the view that the provisions outlined in this section are proportionate to protect the apolitical nature of the Defence Forces.

Section 12 relates to the programme of random drug testing for members of the Defence Forces that has been in place for several years.

Sections 14 and 15 make technical amendments to sections 177 and 177A of the Defence Act 1954 that relate to the investigation of disciplinary charges that may be brought against an officer of the Defence Forces.

Section 16 amends section 184F of the Defence Act 1954 to give the Director of Military Prosecutions greater flexibility in the appointment of persons as prosecutors in court-martial cases and thereby assist in the efficient functioning of court-martials.

I am particularly pleased to bring forward section 18, which amends the Defence Act 1954 to provide statutory protection to the term Óglaigh na hÉireann and to confine its use to the Defence Forces established and maintained under the Defence Acts. A person who commits an offence under this new provision shall be liable on summary conviction to a class D fine. The provision reflects the thrust of the Private Member’s Bill introduced in the Seanad by Senator Malcolm Byrne and I commend the Senator on his work on this issue.

Section 20, which inserts a new Part XIII to the Defence Act, provides for the establishment, on a statutory basis, of the external oversight body. The name of the body shall be Comhlacht Formhaoirsithe Seachtrach Óglaigh na hÉireann.

Section 21 will insert a Thirteenth Schedule to the Defence Act to include additional provisions concerning the EOB.

In its report the IRG concluded that 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 the acceptance of the IRG’s recommendations by the Government, the external oversight body was established on a non-statutory basis in April 2023. This Bill puts the EOB on a statutory footing and ensures it will have the necessary powers and independence to carry out its remit. The body’s function will be to oversee, monitor and advise the Minister for Defence in the implementation by the Defence Forces of human resource management. The body will accordingly play a key role in driving the necessary cultural transformation of the Defence Forces.

I should clarify that the day-to-day human resource management will continue to be carried out by the Defence Forces on behalf of the Chief of Staff. The membership of the EOB will consist of no fewer than seven and no greater than nine persons. In regard to the membership, the Bill reflects views expressed by the interim body of the need to provide flexibility in including additional members in the future with particular expertise, particularly so in the context of the interim body’s expressed interest in adding a further international dimension to its membership. Some views have been expressed, including in the pre-legislative scrutiny report, concerning the categories of persons that may be appointed as members of the body. In considering the composition of the membership of the body, I have been guided by the clear recommendations in the report of the IRG. I am satisfied that these provisions closely reflect the group’s recommendation, including its specific recommendation that membership of the EOB should include the Secretary General of the Department of Defence.

There has been some debate about the inclusion of the Secretary General as a member of the EOB on an ex officio basis. I respect the good faith of those who have raised concerns. Equally, I am satisfied that the presence of the Secretary General is entirely appropriate and important to the effective functioning of the body as it interacts with the Department and the Minister. The absence of the Secretary General from the EOB would simply require the body to develop a parallel business line of interaction with the Minister, which would do nothing to improve its effectiveness or advance its core mission.

The Bill also includes provisions enabling the EOB to conduct reviews, both on the Minister’s request and on its own initiative, into specific matters concerning the human resource management of the Defence Forces and to make recommendations to the Minister. On the issue of reviews, I listened to the discussions during the pre-legislative scrutiny process and I have taken the decision that the Bill will also include provisions enabling the EOB to conduct, on its own initiative, reviews into specific matters concerning the human resource management of the Defence Forces and to make recommendations to the Minister.

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

Part 3 of the Bill sets out amendments to a range of other enactments.

Section 22 includes a technical amendment to provide that the National Archives Act1986 shall apply to the records of the EOB.

Section 23 amends the Defence (Amendment) Act 1990, which is the Act relating to the establishment and operation of the military representative associations. This suite of amendments provides a statutory basis for the Minister for Defence to authorise the Permanent Defence Forces representative associations to associate with the Irish Congress for Trade Unions, ICTU. The amendments reflect the commitment to implement the recommendation of the Commission on the Defence Forces that the Permanent Defence Forces 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 settlements with the Representative Association of Commissioned Officers, RACO, and Permanent Defence Force Other Ranks Representative Association, PDFORRA. The provisions regarding associate ICTU membership will facilitate the attendance of military representative associations at future national pay talks and represent a positive step forward.

The codification of conditions attaching to associate membership is underpinned by strong military advice relating to the potential implications for the security of the State. I should also note that the provisions are underpinned by extensive legal advice.

During the pre-legislative process, concerns were expressed that these proposals could interfere with the ordinary role of associations. This was not the intention and the text of the Bill has been drafted to clarify that these prohibitions will operate without prejudice to the purpose of an association to represent its members. To be clear, the provisions in this Bill will in no way affect the ability of the military representative associations to represent their members as provided for under existing legislation. Having fully considered the matter, including the military advice seeking such restrictions, the views of key stakeholders raised during the drafting process and the legal advice provided to me, I am satisfied that the limited restrictions on the activities of the military representative associations, clarified through these amendments, are necessary and proportionate to safeguard the apolitical nature of the Defence Forces and are in line with existing rights and obligations. They are also necessary to ensure that the associate membership of ICTU can continue to remain in place.

Separately, the general scheme included proposed amendments to the Defence Acts to provide that officers assigned to the posts of Director of Military Prosecutions and military judge would be prohibited from being members of military representative associations. These proposed amendments were intended to reflect the fact that the holders of these posts exercise critical functions relating to the administration of military justice. However, the pre-legislative scrutiny report recommended the removal of these provisions and having reflected further on the matter, I will not progress these amendments to the Defence Acts.

Section 24 amends the Ombudsman (Defence Forces) Act 2004 to provide that persons who serve, or who have previously served during the previous five years as members of the Defence Forces, or worked either as a civil servant or a civilian employee during the previous five years within the Department of Defence, shall not be eligible for appointment as the Ombudsman for the Defence Forces. The amendment is intended to bolster the independence of the Office of Ombudsman for the Defence Forces.

I would like to emphasise the importance of this Bill. We have debated and agreed in this House the need for significant cultural change within and for the benefit of our Defence Forces. This legislation is an important step in that process. The implementation of this legislation will provide the external oversight body with the necessary statutory basis to operate effectively and carry out its crucial body of work. There will be an opportunity on Committee Stage for a more detailed discussion on this legislation. In the meantime, I am pleased to submit this legislation for the consideration of the House. I commend the Bill to the House.

I will be in a position to stay for some part of the debate. However, I have a Cabinet sub-committee meeting on migration so I hope Members will excuse me when I have to leave.

See this speech in context