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.