Michael McDowell (Independent) | Oireachtas source

I thank the Chair and my colleagues for allowing me to intervene at this point. I was listening to what Gerard Guinan was saying about politics and the Civil War and military men being involved in politics and reflecting when he said that. I was loaned a bound copy of An tÓglach for 1922-23. It is a weekly magazine published by the Army. It congratulated Richard Mulcahy, the Commander-in-Chief, for being elected in Dublin North with two quotas, which just shows you times have changed. Those were very different times.

On a more serious note, there are a number of features on which I would ask for a reaction from our guests here today. One is head 8 of the heads of Bill before us and in particular subsection (4), paragraph (e). That subsection says that the external oversight body shall be comprised of a number of persons and then adds in, as the last of the people, the Secretary General of the Department of Defence. It struck me that it is stated in head 6 that this external oversight body is expected to be independent in the discharge of its functions. How do our guests view the point of whether it can be really independent if the Secretary General, who is the chief civil servant in the Minister’s Department, is also a member of the body? That seems to me to be a little inconsistent.

Second, the point has been made that the Director of Public Prosecutions in non-military matters and his or her staff are not excluded from membership of Civil Service representative bodies or unions, like the Association of Higher Civil and Public Servants. Do our guests see an issue with why the director of military prosecutions should be different? It occurred to me that day to day, from my experience of the Defence Forces, which I must say is very limited, commanding officers, who are members of RACO or whatever, carry out minor judicial functions relating to discipline, punishments and the like in relation to enlisted men and their own colleagues. If I am wrong on this, I could be enlightened, but I do not see how membership of RACO would be unsuitable in the case of a military judge but is suitable in the case of ordinary members of a court martial who act as a judge and are bound to act judicially and as commanding officers in their day-to-day disciplinary functions.

I wish to touch on something to which I think Colonel King referred. There was an adjudication in the issue of whether the director of miliary prosecutions could be a member of RACO. As I understand it, this matter was subject to adjudication or arbitration by both parties, RACO and the Department of Defence. Daniel Murphy, the adjudicator on 24 May 2023, issued a determination. I will quote two passages:

Denying a person freedom of association in the context of quasi-trade union membership is a very serious matter and, if it were to be denied, I consider that it would be reasonable to expect that the Oireachtas would legislate for it specifically having considered the pros and cons in open parliamentary debate, not that it should arise from secret exchanges between a Government Department and its legal advisors.

This was in the context, as I understand, that the Department simply said in its circular that whoever got the job could not be a member of RACO. Mr. Murphy went on to say:

In the circumstances, I conclude that the prohibition on membership of RACO for the Director of Military Prosecutions is not reasonable against the background of all the facts set out above. Therefore, I find Paragraph 25 of the Terms and Conditions of Service for the appointment of the Director of Military Prosecutions which provides that the Director should not be a member of an association established pursuant to Section 2, Defence Amendment Act, 1990 should be deleted from those Terms and Conditions so that the current and any future such Director should be free to be members of RACO.

In those circumstances, is it the case that we are actually being invited by the Department to overrule an adjudication to which it was party and that this is what Mr. Murphy, the adjudicator was saying, that the pros and cons would have to be discussed in a parliamentary committee? Maybe our guests would comment on the oddity of that where there is a system for dispute resolution and then you put into an Act a section overruling the decision by which you yourself were bound.

Those are the questions I would like to put to our guests.