Mr. Justice Alan Mahon:

As "the Ombudsman for the Defence Forces" is a bit of a mouthful, I will refer to the role as the ODF. I thank the Chairman for the invitation to appear before the committee to discuss the activities of the Office of the ODF over the past number of years.

I will commence by stating that the relevant legislation for the work of my office is the Ombudsman (Defence Forces) Act 2004 and the Defence Act 1954, as amended. My jurisdiction is governed by the provisions of the 2004 Act, in particular. The Office of the Ombudsman for the Defence Forces was created as a result of protracted lobbying by PDFORRA and as an acknowledgment of the need for a transparent, external, independent and rigorous procedure to deal with complaints across the Defence Forces. It provides military personnel with an independent and impartial external statutory complaint investigation system. It is entirely separate, distinct and independent of both the military chain of command and the Department of Defence and complies with the generally recognized principles of ombudsmanship. In that regard, the office is recognised by both the International Ombudsman Association and the International Conference of Ombuds Institutions for the Armed Forces, ICOAF.

On a comparative basis, I should tell the joint committee that there are three models for military ombudsmen throughout the world. The first is where the ombudsman is integrated within the defence forces, which is sometimes referred to as an inspector general. The second model is one in which the ombudsman has exclusive jurisdiction in respect of the operation of an external complaints process and the third is where oversight of the armed forces is subsumed into the functions of the general ombudsman.

In 2004, Ireland opted for the appointment of a civilian ombudsman, entirely independent of the Defence Forces and the Department of Defence, the second of the three models I mentioned. We share this arrangement with Austria, Canada, Germany, Norway, South Africa, the UK, and, more recently, Bosnia and Herzegovina, all of which have similar military ombudsmen. Independence is of critical importance for any ombudsman. International standards show that the primary indicators of independence for ombudsmen are being independent of government and of those they are appointed to oversee.

I am satisfied the 2004 Act contains appropriate statutory provisions for the independence of my office along those lines, and in my experience that independence has always been respected by the Minister for Defence, the Department and the Defence Forces.

Members of the Defence Forces who wish to lodge a complaint concerning a work-related issue are entitled to utilise the decades-old internal investigation process within the Defence Forces, often referred to as the section 114 process. That process provides for the appointment of a military investigation officer who will undertake a detailed inquiry into the matters complained of. If the matter is not resolved at that stage, it is then considered by the complainant's commanding officer, and a final determination is then made by the Chief of Staff. It is quite an exhaustive process and, in my experience, very detailed. It leads, in the great majority of cases, to a resolution. It is always preferable, for all concerned, to have complaints resolved within the organisation, if at all possible. The vast majority of serving personnel request the ODF to intervene only after the full internal investigation process, as outlined, has been exhausted. However, a complainant does have an entitlement, at any stage of the internal process, or indeed by avoiding it altogether, to request the ODF to investigate.

The referral of a complaint to the ODF must take place within 12 months of the date of the occurrence in question or within 12 months of the complainant becoming aware of it, whichever later occurs. There is no limitation period concerning complaints submitted to the Defence Forces, however.

Section 5 of the 2004 Act excludes the following from the jurisdiction of the ODF: security or military operations; organisation, structure and deployment of the Defence Forces; terms and conditions of employment; and the administration of military prisons.

Section 4 of the 2004 Act sets out the types of occurrences or actions that can be investigated. They are actions taken without proper authority; actions taken on irrelevant grounds; the result of negligence or carelessness; based on erroneous or incomplete information; improperly discriminatory; unreasonable, notwithstanding consideration of the context of the military environment; based on undesirable administrative practice; or otherwise contrary to fair or sound administration.

The ODF is not entitled to investigate complaints relating to "an order issued in the course of a military operation". It is not empowered to make an award of damages or compensation.

I should emphasise that the foregoing is simply a brief summary of the main provisions of the 2004 Act regarding the ODF's jurisdiction and is certainly not intended to be exhaustive.

I now wish to turn to some statistical data. Since my appointment in July 2018, a total of 137 complaints have been brought to a conclusion by my office. The majority of these cases dealt with complaints concerning promotion competitions or courses and general maladministration. Detailed statistics are provided in my annual reports.

Of note is the fact that the significant backlog of approximately 100 cases that existed at the time of my appointment in 2018 has been dealt with. Now, in excess of 95% of new referrals are fully investigated and reported on within four weeks. Indeed, in one particularly urgent case in recent times, a complaint was investigated and reported on within 24 hours. In a small number of cases, unavoidable delays occur, primarily in circumstances where there is a need to seek additional information or documentation. It is important to provide a speedy turnaround in complaint referrals because, generally speaking, the nature of most complaints is such that they require a quick decision if justice is to be done.

More generally, with the benefit of experience gained in over three years as ombudsman, I have identified three areas in which I believe the service provided by my office to current and past members of the Defence Forces might be significantly improved. I have advised the Minister for Defence of my views, and I am aware that he and the Department are in the process of considering them. All would require amending legislation. They are as follows. First, section 6(3) of the 2004 Act provides for a limitation period of 12 months in which a complaint must be referred to the ODF in order for it to conduct an investigation. The 12 months is measured from the date of the occurrence or action complained of, as under section 6(3)(a), or 12 months from the date on which the complainant becomes aware of it, as under section 6(3)(b), whichever later occurs.

In a small number of cases over the past three years or so, I have found it necessary to decline to investigate because of these provisions. A number of cases fall foul of the 12-month limitation period because, for example, a complaint might be submitted some months after the date of the occurrence of the action giving rise to it. The internal Defence Forces investigation then takes a number of months to conclude, meaning that the referral to the ODF does not occur until after 12 months have passed. In most instances, the delay will not be the fault of the complainant or, indeed, the Defence Forces. The current legislation affords me no discretion to extend the limitation period, no matter how deserving that might be.

Second, the categories of complaint provided for in section 4 of the 2004 Act, to which I have referred, may not, in my view, adequately provide for certain types of interpersonal complaints, such as inappropriate behaviour, sexual abuse and sexual harassment, to give but a few examples. I have suggested that section 4 be amended to include additional categories.

Third, the Act of 2004 does not permit the ODF to conduct "own initiative" investigations — in other words, investigations that are not dependent on an actual complaint being referred to the ODF by an individual. Such a power, which I believe would be used sparingly, would be beneficial for Defence Forces personnel and for the Defence Forces as a whole. It would permit the ombudsman to target for investigation matters in a proactive manner, detached from any particular complaints. An example might be an investigation into an issue that repeatedly arises in individual complaints, systemic administration failures, or issues of possible gender discrimination. Such a power is being increasingly provided to ombuds-institutions around the globe and here in Ireland — for example, our own public services Ombudsman, the Garda Síochána Commission, the Northern Ireland Public Services Ombudsman, the Canadian defence ombudsman, and ombuds-institutions in Australia and New Zealand, to name but a few.

It would be remiss of me not to take this opportunity to pay tribute to the men and women of Óghlaigh na hÉireann, the Irish Defence Forces, for the work they have undertaken over almost two years in providing aid to the civil power during the Covid-19 pandemic. They have provided vital assistance in a range of activities, including transport and logistics; the provision of medical staff for both testing and vaccination delivery; contact tracing; and mandatory quarantine. They really have been a credit to their uniform. More generally, the Defence Forces are to be congratulated and are widely admired, both at home and abroad, for their invaluable work in their many areas of operation in the Army, Air Corps and Naval Service, including peacekeeping in the Middle East, Africa and elsewhere. Their dedication to duty and the skill sets are impressive. That concludes my opening statement.