Oireachtas Joint and Select Committees
Tuesday, 20 February 2024
Joint Oireachtas Committee on Foreign Affairs and Trade, and Defence
General Scheme of the Defence (Amendment) Bill 2023: Discussion
Charles Flanagan (Laois-Offaly, Fine Gael)
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The main item on our agenda today is the pre-legislative scrutiny of the general scheme of the defence (amendment) Bill 2023. We are pleased to have the opportunity to meet representatives from the Representative Association of Commissioned Officers, RACO, the Permanent Defence Forces Representative Association, PDFORRA, the European Organisation of Military Associations and Trade Unions, EUROMIL, and the Irish Congress of Trade Unions, ICTU, for our pre-legislative scrutiny of this important legislation. It is no secret that, as far as our committee is concerned, this is the most important legislation we will consider this year. Therefore, it is the most important legislation we will consider between now and the end of this parliamentary session. It is the intention of the Government to complete this legislation before the end of its term. We have a statutory duty to engage in pre-legislative scrutiny and we are keen to have an open session this afternoon. We have met all the various groups in the past, but today is different as our discussion will be about the legislation. The committee is charged with the responsibility of preparing a report for the Government and we hope in that report to include the representations the witnesses have already made to us and those they will make to us over the course of this afternoon.
I welcome from RACO, Lieutenant Colonel Conor King, general secretary, and Colonel Derek Priestley, deputy general secretary; from PDFORRA, Mr. Gerard Guinan, general secretary, and Mr. Mark Keane, president; from EUROMIL, Mr. Emmanuel Jacob, president; and from ICTU, Mr. Liam Berney and Dr. Laura Bambrick.
The meeting will be in the usual format. We will hear opening statements from Mr. Berney, Mr. King, Mr. Guinan and Mr. Jacob, in that order, after which we will have a question-and-answer session with members. I ask speakers to be concise in their questions to allow all members the opportunity to participate.
I will read a technical note on privilege. I remind witnesses and members of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make them in any way identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if any statements are potentially defamatory in relation to an identifiable person or entity, witnesses will be directed to discontinue their remarks. It is imperative that any such direction be complied with. In the circumstances, I do not expect this will be necessary.
I remind members that they are only allowed to participate in this meeting if they are physically located in the Leinster House complex. I remind witnesses that since Covid we are still operating a hybrid system to the extent that members may participate in the committee room or from their offices in Leinster House. I do not see any members online but that may change later. I will indicate to the witnesses should it be the case that a member wishes to make a contribution or ask a question from the confines of his or her office.
I invite Mr. Berney to make his opening statement.
Mr. Liam Berney:
On behalf of the Irish Congress of Trade Unions, I thank the committee for the invitation to make an input to its pre-legislative scrutiny of the heads of the defence (amendment) Bill 2023. I am accompanied by my colleague, Dr. Laura Bambrick. As members will know, congress is the representative body for 46 unions and seven associate members, and the largest civil society organisation on the island of Ireland. We represent the interests of some 800,000 workers in all sectors of the economy.
In the brief time available to me to make my opening remarks, I will focus on our key observations of the draft Bill, which will amend the Defence Acts 1954 to 2015. The main purposes of the new Bill are to establish on a statutory basis an external oversight body for the Defence Forces; provide a statutory basis for the Minister to authorise the military representative associations, PDFORRA and RACO, to associate with the Irish Congress of Trade Unions; and to make a number of miscellaneous amendments proposed as part of the Bill.
Heads 3 to 24, inclusive, detail the provisions relating to the establishment on a statutory basis of an external oversight body for the Defence Forces. The establishment of this body was recommended by the independent review group on dignity and equality issues in the Defence Forces and it has operated on a non-statutory basis since 5 April 2023. Head 8 details the provisions relating to the membership of the oversight body. Congress strongly recommends that this be amended to provide for a representative from PDFORRA and RACO in the membership of the oversight body. There are provisions within the legislation to extend the membership of the body and we believe that RACO and PDFORRA should be included in its membership.
Heads 25 to 28, inclusive, detail the provisions providing a statutory basis for the Minister to authorise the military representative associations, PDFORRA and RACO, to associate with the Irish Congress of Trade Unions. While we welcome the decision to legislate to facilitate PDFORRA and RACO to associate with Congress on a longer term basis, we have grave concerns about some of the conditions proposed. Head 25(a) amends section 2 of the Defence (Amendment) Act 1990 by inserting a new subsection. Under this subsection, the director of military prosecutions, a military judge or any other post specified by the Minister may be precluded from being a member of a military association. Congress colleagues are deeply concerned that the Minister would seek, through legislation, to preclude employees from membership of a trade union or association. To proceed to legislate as proposed would have far-reaching consequences. There is no requirement for such a provision.
The stated justification for head 25(a) is that a holder of one of the specified posts is required to be independent in the performance of his or her functions and if he or she were a member of a military association, this would prejudice his or her independence. For example, a person who is the director of military prosecutions and a member of RACO may be reluctant or unwilling to prosecute another member of RACO. We reject this analysis. To claim that a holder of the specified posts would be deterred from fulfilling his or her duty by virtue of membership of a military association is baseless. To restrict membership is disproportionate and potentially discriminatory. What is more, the Government is required by the end of this year to transpose into Irish law the EU directive on adequate minimum wages. The purpose of this directive is to improve living standards and working conditions. The directive now obliges the State to promote collective bargaining coverage. The directive is very clear that collective bargaining takes place between employers and trade unions. To preclude workers from being members of a trade union flies in the face of the requirements and aims of this directive. In light of the reasons I have set out, congress is firmly of view that the provisions under head 25(a) should be withdrawn.
Head 26 sets out a number of conditions that PDFORRA and RACO are required to observe if they are to be permitted. on a longer term basis, to associate with the Irish Congress of Trade Unions. In May 2022, an agreement was reached in the High Court that allowed PDFORRA and RACO to associate with ICTU on a temporary basis. Some conditions were attached to that settlement. However, it is our understanding that the conditions set out in head 26(2A)(a) to (j) go far beyond what was agreed in May 2022 and have been described by some as
tantamount to a "gagging order" that is hindering the military associations from representing their members. It is clear to us that a significant rewrite of head 26 is required. Indeed, the explanatory notes readily acknowledge that this requires "further development and discussion."
We are further concerned that head 28 places unnecessary and disproportionate limits on individual members of the Defence Forces and, like head 26, it requires development and discussion.
To conclude, congress is recommending to the committee that the Bill provide for a representative of PDFORRA and RACO in the membership of the oversight body; not exclude the holders of the specified posts, or any post, from being a member of the military associations; not obstruct PDFORRA and RACO from acting to represent their members effectively; and not disproportionately limit the capacity of an individual member of the Defence Forces from participating in wider civil society.
I thank members for their attention. My colleague and I will be happy to take any questions they may have.
Charles Flanagan (Laois-Offaly, Fine Gael)
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I thank Mr. Berney. I invite Lieutenant Colonel Conor King to make his opening statement.
Mr. Conor King:
Chair, Deputies and Senators, we thank you sincerely for the invitation to appear before the committee today and participate in this pre-legislative scrutiny process of the heads of the defence (amendment) Bill 2023. I am accompanied by the RACO deputy general secretary, Lieutenant Colonel Derek Priestley.
The provisions of Defence Force Regulation, DFR, S6 (Third Schedule) provide, explicitly under paragraphs B(q) and (r), for consultation with RACO on the application to the Permanent Defence Force, PDF, of legislation which affects matters coming within the scope of representation. The Department’s actions in publishing the general scheme of the defence (amendment) Bill 2023 without consultation with the Defence Forces representative associations leaves RACO with no choice other than to seek amendments to the heads of Bill through this pre-legislative scrutiny process.
As the committee heard, heads 3 to 24, inclusive, relate to the statutory establishment of the oversight body for the Defence Forces. RACO welcomes the return of independent oversight to our organisation, which has been absent since the independent monitoring group was unilaterally discontinued by the Department.
Head 6(1) and (2) provide that the new oversight body shall oversee, monitor and advise the Minister on the implementation by the Defence Forces of human resource management matters,
including recruitment, training, other than military training exercises, education and performance management, and promotion of members of the Defence Forces. All of the included matters fall within the scope of Defence Forces representation under the Acts. For example, the promotion systems for Defence Forces personnel are negotiated between the representative associations, the Department and military management and voted upon by association members.
We require clarity as to the powers comprehended by the actions to “oversee, monitor and advise”. The intent of the oversight body with regard to consultation and engagement with the association in these areas also remains unclear. We sincerely hope the oversight body will assume the vital function of monitoring staffing levels in operational and training units, a function formerly carried out by the independent monitoring group.
Head 8(4) prescribes the composition of the body and includes the Secretary General of the Department of Defence as an ex-officiomember. The previous oversight body in the Defence Forces included both general secretaries of the PDF representative associations as ex-officiomembers, along with a member of the Department of Defence and military management, under an independent chair. It is unclear why this has not been replicated in the new oversight body when one considers the continued presence of the Department on the body. Our association seeks the continued membership, on an ex-officiobasis, of the general secretaries of the associations to ensure member buy-in and to provide much-needed context and the benefit of the considerable experience and corporate knowledge of over 30 years of effective, constructive representation of the personnel of the Defence Forces.
The extremely limited engagement of the oversight body with our association to date, a sum total of 45 minutes in nine months, is of significant concern to our members. According to the accompanying explanatory note, the head, based on one chairperson and six ordinary members, “would need to be amended if, as allowed under its Terms of Reference, the interim External Oversight Body were to advise the Tánaiste of a need to expand its membership”. Our association strongly believes the membership should be expanded to include the general secretaries of both representative associations on an ex-officiobasis.
Head 25(a) provides for the insertion of a new subsection 2(2A) into the Defence (Amendment) Act 1990 to provide as follows:
An officer holding any of the following positions shall not be a member of an association: (a) Director of Military Prosecutions;
(b) military judge; or
(c) any post as may be prescribed by the Minister:(i) where the post holder is independent in the performance of his or her functions; and
(ii) where the post holder shall neither report on, nor be the subject of any report in respect of, the performance of his or her functions under the Defence Act 1954.
This is held by RACO to be unnecessary and discriminatory, a point that had been made in detail by RACO to the Department and endorsed by the finding of the Government-appointed adjudicator for our conciliation and arbitration scheme, finding that has been laid before the Oireachtas. The adjudication finding has been provided to the committee. The Department of Defence has appealed this finding, but rather than awaiting the outcome of the appeal, which has yet to be heard, it has moved to enshrine the prohibition in primary legislation, completely ignoring the finding. It should be noted that the Department has provided no evidence that membership of our association has or would ever negatively impact the independence of any appointment holder in the performance of his or her functions.
Furthermore, in addition to the removal of rights of membership of a representative association from the appointment holders specified in (a) and (b), the contents of (c)(i) and (c)(ii) are hugely broad and ill-defined, and provide scope for further members to have their rights, protections and benefits of membership of a representative association stripped away. RACO strongly believes head 25(a) should be removed in its entirety as it is unnecessary, disproportionate and discriminatory, with no analogous example in the rest of Irish society.
Moving to head 26, the explanatory notes for this assert that "It is based largely on the terms of the 2022 High Court settlement with the representative associations and requires further development and discussion". It further states that "Draft prohibition ... (j) [reflects] ... the existing Defence Force Regulation S.6". This assertion is only partially true in the case of draft prohibition (j). Paragraph 2A(j) of head 26 states that a representative association or a representative of an association "shall not ... make a public statement or comment concerning a political matter [orquestion or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such policy]”.
Defence Force Regulation S6 does not include this additional restriction regarding commentary on Government policy. This language is taken directly from the restrictions contained within the Policing, Community and Safety Bill 2023 that are placed on the Garda Commissioner, the director of community safety, the chief executive of the Policing Authority and the Police Ombudsman when appearing before committees of the Oireachtas. No such restrictions regarding commentary on Government policy are placed on Garda representative associations. To impose such restrictions on Defence Forces representative associations or representatives of an association would have the effect of completely silencing and frustrating the ability of the associations to advocate for their members on matters that fall within the scope of representation under the Defence Forces regulation. The application of the line "shall not ... [ ... question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such policy]” is unnecessarily draconian, repressive and restrictive for a representative association and should be removed, particularly when it is noted that the Department of Defence has advised this committee and our association it is not intended to remove or alter any of the rights or obligations that have applied to Defence Forces representation since 1990.
Turning to head 28, the inclusion of the additional language relating to Government policy would make it impossible for elected representatives of an association at, for example, an annual delegate conference to advocate for improved terms and conditions of service. Head 28(1)(d) would also prohibit representatives from participating in meetings of congress or other associations that seek to influence government policy, and it would also potentially make it unlawful for members of the Defence Forces, whether acting in a representative capacity or not, to participate in a range of aspects of wider civil society. We firmly believe that the reference to influencing government policy should therefore be removed.
Our association thanks the committee for the opportunity to participate in this process. We respectfully seek amendments to facilitate ex-officiomembership of the oversight body, to remove head 25(a) entirely and to amend heads 26 and 28 to remove the unnecessarily restrictive references to Government policy. We are happy to take questions from the committee members.
Charles Flanagan (Laois-Offaly, Fine Gael)
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I thank Mr. King. I now move to Mr. Guinan.
Mr. Gerard Guinan:
On behalf of the members represented by PDFORRA, I thank the committee for the opportunity to address it. Transparency, an ability to speak freely, accountability and the freedom to associate are some of the core values necessary in any democracy. This is why this committee and our ability to present here today are so important. Recently, I had cause to write a draft position paper for EUROMIL. When I wrote it, I expressed concern that as tensions rise on the eastern flank of Europe governments across Europe may seek to reduce rights or inhibit the role of representation. From PDFORRA's perspective, at times such as these the role of representation is ever more important. True representation allows service personnel to articulate what they feel are defects in the system, encourages representatives to engage with the armed forces and illustrates the measures being undertaken to protect the State's interests. Measures designed to gag or inhibit freedom of speech undermine confidence, give rise to bad actors and result in diminishing recruitment and retention figures. This is why the work of the committee and our voice are so important here today.
In general, PDFORRA has little difficulty with the majority of the general scheme of the proposed Bill as it arises from recommendations from the independent review group and the Commission on the Future of the Defence Forces. However, certain aspects are of concern to our members as they could, potentially, diminish the ability of PDFORRA to appropriately represent our members. With the Defence Forces in a state of crisis currently, it is important that members now have a strong voice through the representative associations. The absence of strong, adequately resourced and capable representative associations may result in outside malign actors seeking to influence and voice the concerns of members, which, ultimately, would undermine the Defence Forces as a backstop to our democracy. Premised upon the foregoing, PDFORRA wishes to point to several heads of the Bill, which in our estimation, would, if passed, undermine the role of the representative associations and act as an impediment to effective representation.
Starting with head 26(2A)(j), its ratification would make it unlawful for PDFORRA to express an opinion on the merits of any policy of the Government, of a Minister of the Government or the merits of the objectives of such policy. The legal settlement between PDFORRA and the Department in 2022 provided for PDFORRA to associate with the ICTU and allowed the representative associations to retain the right to highlight failings where we believed they existed. This section, in its current format, would undermine the pre-approved entitlement that the representative associations have had since 1990.
Moreover, PDFORRA believes that this section falls foul of Article 10 of the European Convention on Human Rights. It is important to note that the European Court of Human Rights held, in the Engels case, that "freedom of expression guaranteed by Article 10 applies to servicemen just as it does to other persons within the jurisdiction ... ".
While PDFORRA understands that restrictions on comments of a political nature are necessary and has always adhered to this restriction, what is proposed in this amendment goes far beyond what we believe to be reasonable, proportionate and necessary in a democratic state. We believe that it will, in fact, serve to undermine the institution that is the Defence Forces for those reasons set out above. Consequently, our association would welcome the removal of the aforementioned provision.
On head 28(1)(d), PDFORRA and its members have always accepted the need for political impartiality; however, this provision limits the ability of members to speak or give an opinion to any political organisation, society or grouping. This provision would, if enacted, make it unlawful for members of PDFORRA to address political groupings on service matters, despite having been registered under the Lobbying Act 2015.
Furthermore, it would make it unlawful for serving members to attend, should they wish, public demonstrations, either in, or out, of uniform. For example, should a service person with a sick child wish to demonstrate his dissatisfaction with local hospital services or anything else arising in his local community, he could face military charges for doing so. Article 40.6.1° of the Constitution provides for the right to assemble or meet peacefully. While constitutional rights are not absolute, PDFORRA would suggest that any restriction must be narrowly confined and necessary to achieve a specific aim.
Together with the Constitution, this fundamental freedom is enshrined within the European Convention on Human Rights. The European Court of Human Rights has held in the case of Ezelin v. France that any restrictions must satisfy a criteria of necessity and proportionality. Soldiers are citizens in uniform and should be vested with the rights and entitlement of normal citizens while not in uniform. PDFORRA and our members have for the past 30 years accepted the restriction placed on us through service without major controversy, and thus cannot understand the reason for the amendment of this section and the draconian restriction that this section places on us and our members.
On head 25, section 2(2A)(c), while the proposed section purports to limit the ability of certain officers from being members of a representative association, PDFORRA contests that the proposed amendment is too broad and could, if enacted, extend to serving enlisted personnel by virtue of the exercise of the aforementioned provision.PDFORRA believes that the right to freedom of association is a constitutionally protected right under Article 40 of the Constitution. Moreover, it is a fundamental right that should only be limited, where necessary, for the preservation of national security or where it is necessary in a democratic society. In the foregoing regard, the representative associations have existed in law since 1990, and during that period no example can be provided to show that membership of the representative association has compromised either of the foregoing explicit provisions - that of State security or democratic necessity.
Additionally, PDFORRA requests that consideration be given to the determination of the ECHR that a law that “allows the exercise of unrestrained discretion in individual cases will not possess the essential characteristics of foreseeability and thus will not be a law for present purposes. The scope of the discretion must be indicated with reasonable certainty”.
PDFORRA believes that the proposed stripping away of someone's constitutionally protected right must be the subject of detailed discussion with the representative body, and that the party seeking to extinguish the right must be in a position to stand over such removal through a process that involves consideration by a third party, for example, adjudication.
On head 6, PDFORRA notes the proposals within the proposed Bill with respect to the oversight body; specifically, the proposed functions regarding promotion, recruitment and training of personnel. The proposed Bill sets out in general terms that the oversight body will oversee, monitor and advise the Minister on the implementation of HR matters. Additionally, section 2 of the proposed Bill specifically provides that the oversight body will oversee recruitment, matters related to induction, training, performance management and selection for promotion.
The current promotion system within the Defence Forces arises from an initiative taken under the Croke Park agreement by the Department. Moreover, the current system was negotiated between the official side, military management and PDFORRA and voted upon by our members as part of that agreement.
Therefore, PDFORRA would have strong reservations regarding the potential for unilateral action by an external body and the exclusion from any process of our association. It is our considered opinion that our association should be permitted to be an ex-officio member of the oversight body. This is a view that we have long held and communicated to the Department.
I wish to finish up by thanking the committee for its time and effort. I sincerely hope that the proposals outlined above are acted upon in the interests of the State, our members and our democracy, which should not be taken for granted.
Charles Flanagan (Laois-Offaly, Fine Gael)
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I thank Mr. Guinan. Finally, I call Mr. Jacob.
Mr. Emmanuel Jacob:
First, I thank the Chair, Deputies and Senators for having EUROMIL in to make a statement at this important meeting of the Joint Committee on Foreign Affairs and Defence. European Organisation of Military Associations and Trade Unions, EUROMIL, is an umbrella organisation composed of 38 military associations and trade unions from 23 European countries. It is the main Europe-wide forum for co-operation among professional military associations on issues of common concern. EUROMIL strives to secure and advance the human rights, fundamental freedoms and socio-professional interests of military personnel of all ranks in Europe and promotes the concept of "citizen in uniform". As such, for EUROMIL, a soldier is entitled to the same rights and obligations as any other citizen. Therefore, EUROMIL particularly calls for the recognition of the right of servicemen and servicewomen to form and join trade unions and independent associations and for their inclusion in a regular social dialogue by the authorities.
The concept of "citizen in uniform" is an important element for modern armed forces. In European armed forces, this principle refers to a concept rooted in democratic values and civic duty. It emphasises the idea that military service is not only a professional occupation but also a civic responsibility and a reflection of broader societal values. Key aspects of this principle include: universal citizenship, civic education and values, integration of military and civilian life and democratic control over the military.
Furthermore, the concept of "inner leadership", in German, "innere führung", aligns closely with the "citizen in uniform" principle. Inner leadership involves the development of personal qualities, values and skills that contribute to effective and ethical leadership. When combined with the citizen-in-uniform principle, it enhances the overall capability and character of military personnel. Inner leadership fosters a sense of responsibility and accountability, encouraging individuals to take ownership of their actions. Applied to the citizen in uniform, this means that military personnel are not just following orders blindly but are actively engaged citizens who understand the impact of their decisions on the broader society.
Overall, the integration of inner leadership with the citizen-in-uniform principle helps shape military personnel into well-rounded individuals who not only serve their countries in a military capacity but also contribute positively to the broader social fabric as responsible and ethical citizens.
Examples of the citizen-in-uniform principle and the integration of inner leadership in European armed forces can be observed in various countries, each with its unique approach. Herein, examples from a few European nations are illustrated. The German Armed Forces emphasise leadership training throughout a soldier's career. Training academies focus not only on technical and tactical skills but also on ethical decision-making, communication and adaptability.
This reflects the integration of inner leadership principles within the military framework. For employees in business and the public sector as well as civil servants, democratic participation rights in personal, social and organisational matters, from consultation to participation to co-determination, are now a given. The soldiers must also have a full share in these democratic rights as part of the internal leadership. Individually or through their membership of the German Bundeswehr Association, in this case, German soldiers can participate fully in the political society by expressing themselves as any other citizen.
Similar freedom of expression and participation in normal community life, including political matters, are legal rights in, for example, the Scandinavian countries as well as the Benelux countries. Individually or through their membership in military unions affiliated with trade union federations, the military has a great deal of freedom to express itself. A restriction that is acceptable for military personnel is the restriction to express themselves, for example, on behalf of the armed forces as such or in operational situations that would endanger national and international security.
In Greece, for example, trade union work in the armed forces has been legally established since 2016, including freedom of expression. Contrary to what was often the case in the past, conflicts between defence employees and the Government are now resolved in a democratic manner. With mutual acceptance and respect of rules, lengthy, time-consuming and costly lawsuits that plagued the military and overwhelmed the legal system are now being minimised.
Let me refer, briefly, to one or two points in Recommendation 2010(4) of the Council of Europe’s Committee of Ministers recommendations - I underline Committee of Ministers - on the human rights of the members of the armed forces. This mentions, in the chapter on members of the armed forces and the right to freedom of expression, in Article 47:
The right to freedom of expression includes freedom to hold opinions and to receive and impart information and ideas. The exercise of these freedoms by everyone, including members of the armed forces, carries with it duties and responsibilities. It may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority or impartiality of the judiciary. Such measures should be proportionate, should not be arbitrary and should be reasonably foreseeable.
It continues with Article 48:
Any restrictions on freedom of expression which are imposed where there is a real threat to military discipline, given that the proper functioning of the armed forces is not possible without legal rules designed to prevent members of the armed forces from undermining it, should respect the above-mentioned requirements.
The last phrase of Article 48 is important:
These restrictions may concern, for example, how military duties are performed or whether the political impartiality of the armed forces is affected.
EUROMIL is of the opinion that the question of whether military trade unions guarantee military personnel the same right as any other employees - namely, the right to form and join trade unions to protect their interests, negotiate for better working conditions, and ensure fair treatment - and the opinion that such right might undermine discipline or hierarchy, as well as harm the political impartiality of the armed forces, is irrelevant. Different countries have varying perspectives on this matter, and opinions may differ among military personnel, policymakers, and academics. However, one cannot cite a single study or concrete fact in which, in recent decades, the functioning of an armed force or military operational mission has been disrupted by the right of the soldiers involved to abuse their trade union rights, including freedom of expression, individually or through their organisation.
EUROMIL has stood behind its Irish colleagues since the first steps in the implementation of association law. Despite some limitations, Irish progress over the decades has been used as a positive example of how to gradually establish a system based on consultation and national traditions and culture. The decision on the merits of the European Committee of Social Rights regarding collective complaint No. 112/2014, EUROMIL v.Ireland, published in February 2018 and adopted by the Committee of Ministers in April 2018, was very clear regarding the violation of Articles 5 and 6.2 of the European Social Charter. However, EUROMIL fears that the positive progress and implementation of various rights, through proposed restrictions, in particular in heads 25 and 26 of the Defence (Amendment) Bill 2023, will hinder the social dialogue and relationship in a framework of mutual respect. This would not only be detrimental to the military personnel themselves but also to the Irish forces as a whole. In modern armed forces, the principles of freedom of speech, the right of consultation and freedom of expression are considered essential pillars, fostering a culture of open dialogue, collaboration and individual expression to enhance effectiveness, adaptability and democratic values within the military framework. I thank the committee for its attention and for the invitation.
Charles Flanagan (Laois-Offaly, Fine Gael)
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I thank Mr. Jacob. I will now open proceedings to the members of the committee. We may not have a full house but we have the next best thing. We are limited in our time. I propose that members be as succinct as possible in their questioning. The purpose of our deliberations this afternoon is to elicit concerns from our witnesses that may form part of our report on our pre-legislative scrutiny.
I ask members to desist from making general speeches or Second Stage-type speeches. There will be lots of time for that in the other House and indeed here if we advance to Committee Stage. In order to maximise our time, I would like to hear questions seeking further information or concerns from our witnesses.
I will start with Deputy Carthy. I am also conscious that there is a debate in the plenary session of Dáil Éireann which will necessitate the attendance of the Deputy shortly. I apologise to Deputy Carthy for that. What the Dáil might order from time to time is outside of the control of our committee but this is not the first time that there has been something of a clash. I know it is unsatisfactory to Deputy Carthy and others. I propose to contact the Business Committee to ensure that Tuesday afternoon is kept free at plenary session from either foreign affairs or defence debates in order to facilitate our members attending here for our once-a-week committee meeting. With that, I will give the floor to Deputy Carthy.
Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Gabhaim buíochas leis an gCathaoirleach. I thank him for that, and I apologise that I will have to leave in the next few minutes. I expect others will be asking something similar to some of the questions I will ask because I gather from each of the four presentations - I thank all four organisations for being here - that there are three particular elements in the heads of this Bill that these organisations have concerns about. From our initial engagement with the Department, those concerns are broadly shared by the members of this committee.
My first question is around, in particular, the representative organisations. I specifically refer to head 25, in respect of the prohibition of certain position holders from being members of these organisations; head 26, which is around the restrictions on expressing an opinion that would have an influence on Government policy or the objective of that policy; and head 6, in respect of the membership of the oversight body.
Were any of those three issues covered in the recommendations of the independent review group, considering that much of this Bill flows from its recommendations?
Let me refer to the three specific issues. Head 6 concerns the oversight body. The membership organisations had ex officiomembership of the oversight body before its previous incarnation was disbanded. In what way was the organisations' membership of that body useful? What implications, particularly negative ones, do the witnesses' organisations envisage might arise from having an oversight body that does not have representation from PDFORRA and RACO?
On head 25, on the prohibition of officeholders, my question is for the ICTU representatives. Is there anywhere else in Irish legislation where specified employees are debarred from membership of a stated trade union or representative organisation? Perhaps they could clarify that.
My next question is for any or all of the organisations. Head 26 prohibits the making of "a public statement or comment concerning a political matter" or the questioning or expression of "an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such policy". Perhaps our guests will try to outline what that would mean in practice. The potentially far-reaching impact of such a sweeping restriction has already been referred to. Is there any basis on which such a provision could be considered reasonable?
Concerns have been raised about the removal of representative organisations from the membership of the oversight body, even in ex officioterms; the prohibition of some members of the Defence Forces from becoming members of representative organisations; and the prohibition on expressing an opinion on Government policy. Do these concerns indicate a cultural problem whereby the Department of Defence somehow regards representative organisations as bodies to be contended with as opposed to partners in building our Defence Forces, the forces' morale and the ability of the forces to do their job and overcome the obvious internal problems that the witnesses previously highlighted to this committee?
Charles Flanagan (Laois-Offaly, Fine Gael)
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Mr. Berney, who has been mentioned as a likely respondee, might comment first, followed by Mr. King or Mr. Guinan.
Mr. Liam Berney:
We were asked to comment specifically on whether, to our knowledge, there exists in other legislation a prohibition of a person who holds a particular post from being a member of a representative organisation. We are not aware of such a provision in any other legislation. We stand to be corrected if there happens to be one. We have sought advice and could find no example of such a provision existing anywhere else.
Mr. Conor King:
The Deputy mentioned heads 6, 25 and 26 and membership of the oversight body. To my knowledge, the IRG was strangely specific regarding membership of the oversight body and it did actually specify what members it should have. It specified experts in certain areas and someone with experience in organisational transformation, and it also specified an ex officiomember, namely the Secretary General of the Department of Defence. The relevant head did not prohibit the general secretaries of the representative associations specifically; however, it did prohibit members of the Defence Forces from being members of the oversight body. When we spoke to the IRG, which sat for well over a year and did extremely important work, we were disappointed with the level of engagement. We spoke to it once, for about an hour and half. In that hour and half, we spoke about the value of and need for oversight. We are quite satisfied that our efforts in speaking to the IRG acted as some sort of catalyst for the return of oversight to Óglaigh na Éireann, but we did not expect to be removed from that oversight ourselves. We are satisfied, however, that the heads of the Bill provide for the expansion of the membership of the oversight body.
Moving on to the point the Deputy made on the value of membership of the oversight body for representative associations, we firmly believe we can provide much-needed context on what our members think, how they feel, what they need and what they want. We, like PDFORRA, represent well over 90% - 95% to 96% - of all commissioned officers and PDFORRA enlisted personnel. Therefore, we have been representative of practically every member of the Defence Forces since 1990. To ensure context, but also buy-in, which is very important in any transformation process, it is important that we be included. We believe we have much value to offer the oversight body and we want to offer this with a heart and a half.
There has been much unease among our members on coming back from visits to the oversight body in that they realised belatedly that neither RACO nor PDFORRA officials were in the room or invited to attend. We have been informed of considerable concern among our members in this regard. As mentioned in my opening statement, we have had 45 hurried minutes with the oversight body in nine months. We wanted to be part of the oversight body. I will defer to Mr. Guinan on this.
Mr. Gerard Guinan:
I thank the Deputy for the questions. The oversight body was recommended by the IRG. As Mr. King stated, we seem to have been excluded. Our interaction with the IRG at the time in question amounted to one hour or possibly an hour and half, plus a couple of submissions. Therefore, we did not know what was coming down the tracks. Had we known, we would definitely have recommended that the representative bodies be placed on an oversight group.
On the question on the usefulness of membership of the oversight group, early input into decision-making and policymaking is always helpful. If an input is had too far down the tracks, people in an organisation such as ours become anxious and apprehensive about the promotion system. It is important for the representative associations to allay people's fears in the organisation. In an organisation such as the Defence Forces, morale and esprit de corpsare necessary. I am referring to the values associated with membership of a military organisation. You can destroy the organisation very easily by not taking our members' views into account at an early stage. Many commissions and bodies have examined the Defence Forces over recent years. People are apprehensive about what may come from these bodies. Therefore, it is important to have an early input.
I was asked about the language in head 26. The Deputy said it is very sweeping. Indeed it is, and we do not believe it is necessary. In our history of representation, we have not strayed outside the pale regarding what was deemed appropriate. That is not by accident; it is by design. We believe in the State and the democratic values that underpin it.
One could deem it insulting to see that language or that there is a need for that language to be placed on us. I will say that I do not believe it was intentional on anybody's part. It was an accident.
I cannot countenance a belief that the State would seek to gag us. However, I ended up in the High Court before Mr. Justice Sanfey two years ago in relation to a different case relating to freedom of assembly. Words matter. If you allow the general scheme to include the words that are there, I have no doubt that at some point the general secretary of an association will him himself or herself in front of the courts answering questions about why he or she said a particular thing. It is important to get this right and that it is fair, transparent and predictable for general secretaries, going forward. That is why I would implore the committee to remove paragraph (j) from head No. 26. We do not need a situation whereby the representative associations feel constrained in any sense in saying what needs to be said. The situation that might arise could be similar to the application of the working time directive. That directive does not fall within the scheme of the Defence Forces but it is only right and proper for the representative associations to take the stance we have taken over the past couple of years.
The Deputy asked about a cultural problem with the Department of Defence. I do not know if that is a fair assessment. Have we been sidelined in the context of a number of matters? Have we been informed at the last minute in respect of a number of matters? That is correct. I would say that is a true statement and it is regrettable. Is that a cultural thing? I would not venture an opinion.
Mr. Conor King:
The Deputy mentioned heads Nos. 25 and 26. Mr. Guinan has covered head No. 26 well. I want it to be understood by everybody that there is no objection to the provisions preventing public commentary on a political matter. That is part of paragraph (j) of head No. 26. It is everything else that follows that is abhorrent to us and our ability to do our work on behalf of our members. We advocate on pay and pensions policy and, as Mr. Guinan said, on working time policy, and on a range of other issues, such as health and safety and other HR matters. All of those matters are covered under in the third schedule - scope of representation - to Defence Forces Regulation S6. The latter was established under the Defence (Amendment) Act 1990, which is the primary legislation. If the proposed words are now put into the primary legislation, overarching the secondary legislation, they will be the bible and all of a sudden everything we have known since 1990 will be out of kilter. As Mr. Guinan said, words matter. This is important for accuracy purposes and to allow us to continue to do our jobs effectively.
Mr. Berney has talked about head No. 25 in the broader sense but we have been struggling with the issues in that head for more than four years. The unilateral removal of the rights and protections of one of our members who had his membership stripped in 2020 has been a source of serious concern and has been the subject of an adjudication that has been laid before the Houses of the Oireachtas. In that adjudication were severe criticisms of how RACO and its members had been dealt with in terms of the withdrawal of those rights on a unilateral basis. The point is that membership of a representative association does not define commissioned officers or enlisted personnel. That has nothing to do with who you are as a member of the Defence Forces. Such membership is nice to have and relates to your rights in civil society but it is something you look to if you need help on an industrial relations or HR matter. It is the oath you take on commissioning and enlistment that defines you as a member. It is your subjection to militarily law and willingness to put yourself in harm's way for the State that defines you. It has nothing to do with your membership of a representative association. It does not make sense to us that our association or any other would be targeted in this manner.
Charles Flanagan (Laois-Offaly, Fine Gael)
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I note we have Members of Dáil Éireann and Seanad Éireann, members of Government parties and Opposition parties, and members of no parties, members of the committee and non-members of the committee. Precedence suggests I should deal in the first instance with members of the committee but it has been put to me on the part of the Independent members that they wish to defer their speaking rights. That applies to Senator McDowell. I understand that Senator Wilson has made a similar suggestion in favour of Senator Gallagher, who has left. By a process of selection, that means Deputy Stanton is next, if he wishes, after which I suggest we go to Senator McDowell.
David Stanton (Cork East, Fine Gael)
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I will be brief. I thank the witnesses for being here and for their presentations, which were interesting from a philosophical and political point of view, and from the perspective of human rights. They were very well put. I was at one stage a commissioned officer in the Reserve Defence Force. In that position, I was able to join a political party and stand for election. When I was elected, I got a letter from the President stating that my service was no longer required and I was being decommissioned. That was the way it worked. I was a member of the Defence Forces. When we talk about political impartiality, one question came to me. While it is not directly related to these matters, it might be understood as implied. Should members be able to join a political party? I know Mr. King mentioned Defence Forces regulations, DFRs, but primary legislation supersedes many DFRs, statutory instruments and so on. That is a question I would like to put to the witnesses and ask for their views. Should members of the Defence Forces at whatever level be able to join political parties, considering members of the Reserve Defence Force can and do? I note the Reserve Defence Force is not represented today, which is an oversight. Perhaps it should have been represented at the meeting. What are the witnesses' views on that issue?
Mr. Gerard Guinan:
There are models in Europe that could be followed. Mr. Jacob is probably better placed to answer the question than me but in certain countries, one can join a political party but has to leave the armed forces prior to seeking election. A special type of leave is granted in those situations to allow one to run for election. Would I believe in it here in Ireland? I have to believe it is a right that should be available. Soldiers should have the greatest possible access to rights that are available to any citizen in a democratic state. I would say that one cannot be a member of the Defence Forces and serve in a political party. However, one should be granted leave and depart the Defence Forces in order to seek election. That is my view as a result of engaging with colleagues in Europe. A minister was recently elected from the armed forces in France, and I am sure there are multiple other examples. In Ireland, it applies broadly to civil servants and the concept of political impartiality has a broad meaning. I note that in Dáil Éireann, there are many Deputies, and a former Taoiseach, who are members of Tusla, social workers, teachers and things like that.
Our belief that a member of the Defence Forces cannot join a political party probably goes back to Civil War politics. I am not an historian. I believe in the future. I believe in a modern armed forces where the rights and entitlements of members are broadly aligned with those of citizens.
David Stanton (Cork East, Fine Gael)
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The ultimate expression of political participation is being a member of a party and standing for election. Mr. King wants to come in.
Charles Flanagan (Laois-Offaly, Fine Gael)
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Perhaps I should ask what constituency Mr. Guinan might stand in.
Diarmuid Wilson (Fianna Fail)
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There may be a by-election coming up.
Mr. Conor King:
I will hand over shortly to Mr. Jacob to talk about some of the norms in other member states. It is probably a fair bit outside our scope under Defence Forces Regulation S6 to talk about whether we should be members. All I can speak about is what currently exists. We are not allowed to be a member of a political party or - the language is quite archaic - a secret society. We are also not allowed to make a public comment on a political matter. To our mind, that would be favouring one political party over another, for example, or encouraging our members to vote in a certain way in our democracy or in terms of our political system. However, I have to come back every single time to the addition of the new language that has appeared in this head of Bill, which now talks about any aspect of Government policy. This has gone too far, in our opinion.
I have so many different examples that I can give about how this could restrict a member of the Defence Forces from taking part in normal civil society, from a member of the GAA, for example, to a member of a residents association talking to local government. In particular, it might restrict us from addressing a meeting of the ICTU public services committee, which is, by necessity, a body that seeks to influence Government policy. Delegates at our conference, with the Minister or Members of the Oireachtas present, could be construed as trying to influence Government policy. That is why the legislation as it is currently proposed is abhorrent and does not compute with regard to how we should be able to do our jobs.
David Stanton (Cork East, Fine Gael)
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We could tease it out further and argue that Government policy at a certain level could be equated with criticising the Government. Is there a thin line there that we have to be careful about? The first part of the paragraph contains the phrase “make a public statement or comment concerning a political matter”, and it then goes on to the next part that Mr. King is concerned about. We agree on the first part regarding political matters, which could be explicitly saying to the members of the representative association not to vote for, say, Charlie Flanagan or whomever else, as against criticising health policy, for instance, which is a separate matter. There is a thin line there because you could stray one way or the other very easily.
David Stanton (Cork East, Fine Gael)
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That is fair enough.
Mr. Emmanuel Jacob:
I thank the Deputy for the questions. It is hard to give a one-line answer on the situation all over Europe. It would be something new that we have one line across Europe and everybody is treated the same way. There are some countries where military personnel have political rights, and what I mean by political rights is the freedom to stand for election, not just participate in the election, because even that was a discussion in some countries before. However, even with these places, there are some differences between them. We have examples where from the moment a person stands for election and is a candidate, they have to leave the armed forces or go on a kind of military leave while waiting for the result. In other places, while a person is standing for election, they remain in the armed forces and then, at a certain moment, they are elected or not elected. In cases where the person is not elected, nothing has changed and they remain in the armed forces. In cases where the person is elected, there are two possibilities: either the person leaves the armed forces at that moment or they go on political leave. For example, there are Swedish Members of Parliament who have been 20 years on political leave. If something happens, they could go back one day, although, of course, they will not go back, but they still have military status.
One thing is very clear - and it is also one of the points mentioned in the OECD handbook on human rights in the context of armed forces, where political leave and standing for elections is the subject of one of the chapters - it is not about the armed forces; it is about the individual. There is no discussion about the fact that armed forces, as such, should be neutral and not political, but when it comes to the individual, that is something else. Where we all agree is on the point that somebody who is politically engaged and is in the military should never be able to do that in uniform. They do that as a citizen.
This is one of the famous points with regard to the concept of the citizen in uniform. For information, I would add that the this concept is something I have referred to quite often in the context of Germany. To be clear, I am not German; I am Belgian. However, we can draw lessons from what happened in the past. The principle of the citizen in uniform is something that has been established and implemented together with building up the new German armed forces. The meaning of the whole thing, in a short phrase, is making sure that soldiers are part of society and never again beside society or something separate. I think that is quite important.
I would make one further remark in conclusion. I certainly do not want to get into the Irish discussion as that is for my colleagues from PDFORRA and RACO. Nevertheless, the whole discussion is about one principle, which is making sure that what we have on the table is not weakening these rights. Every time we go for new legislation or new rules, we have to make sure that we make them better and stronger. Perhaps there are sometimes small things that have to be rectified but to weaken rights is the worst thing that can happen and, as I said in my opening statement, will surely not help the armed forces be a democratic part of society.
David Stanton (Cork East, Fine Gael)
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Earlier, Mr. Guinan used the phrase “outside malign actors seeking to influence and voice concerns of members”. Has he had experience of that or why did he bring that in? Where is it coming from?
David Stanton (Cork East, Fine Gael)
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Such as?
Mr. Gerard Guinan:
Commentary that seeks to bring the armed forces into the political sphere. Mention was made last week of things in the long grass and stuff like that. Soldiers vote, but we are apolitical. However, I would be concerned about malign actors seeking to influence in the absence of a strong and credible voice through representation.
David Stanton (Cork East, Fine Gael)
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I thought that was what Mr. Guinan meant. I thank him for clarifying that because it was just hanging there.
The ICTU statement said that the eventual bill must “not disproportionately limit the capacity of an individual member of the Defence Forces from participating in wider civil society.” The word “disproportionately” is defining certain things. Will Mr. Berney expand on that?
Mr. Liam Berney:
I have been listening to the debate about what happens in other jurisdictions. When restrictions are placed on groups for particular reasons, we should always be open to the idea that those restrictions might not be necessary as a permanent restriction. We should be constantly open to the idea that things that have been put in place at a particular point in time for particular circumstances are subject to review, particularly where restrictions like the ones we are talking about actually prevent people from participating in civic society. We have all watched in recent times the emergence of extremes in political discourse. We should make sure that everybody feels they can participate in political discourse in such a way that they can make their contribution as citizens.
Mr. Derek Priestley:
I will go back to the previous question on head 26. It is important that we make a distinction between the individual soldier and the representative association.
It is not lost on me that there are five former members of the Defence Forces sitting in front of me. I think we all know who they are and that is a good thing. There is a clear distinction between this side of the table and the currently serving members and our former serving members. I think the public know that and the politicians know that. That goes to the heart of the question of what is appropriate. For 34 years - nearly 35 years - we have been allowed to speak within our lane, based on secondary legislation, on matters of pay, allowances, health and safety and the working time directive, and that can only be a positive thing. We are being told that nothing is to change but we are now bringing in primary legislation that will force a change in the current secondary legislation. That is key to everything we are talking about here. We are going way beyond what the legislation wanted to do in 1990. What is the trigger for that? It is our application to join as limited members - associated members - of the ICTU. That is a concern for us. We see it as something that will limit our rights to do what we do daily.
Charles Flanagan (Laois-Offaly, Fine Gael)
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Senator McDowell is next on the list. He is not a member of the committee but he is very welcome nevertheless.
Michael McDowell (Independent)
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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.
Mr. Conor King:
As the issue of the director of military prosecutions is so currently personal to our association, I might take the lead on that and I might give over the issue of the oversight body.
Our understanding is also that the Director of Public Prosecutions staff are allowed to be members of public sector trade unions, as they should. We also note that we now have the unilateral removal of the military judge who is also a member represented by RACO through this proposed legislation. The Association of Judges of Ireland advocates for pay and conditions of service. For proof, you can look at the paycommission.gov.ieand you will see letters from the Association of Judges of Ireland to the chair of the Public Service Pay Commission talking about judges' pay. It is publicly available information.
It is very interesting that the Senator raised the point of the quasi-judicial or minor judicial function of commanding officers and ordinary members of the Defence Forces who may be detailed to appear in a court martial, which is extremely serious. A member of RACO could, hypothetically, be sitting in the dock. Do they relinquish their membership for the purpose of that court martial?
The adjudication in relation to the director of military prosecutions was something we have fought for, as I said, over years now. The Senator rightly says the adjudication outcome was that the director of military prosecutions should be a member of the association, but we have to look back at where the director of military prosecutions came from.
It came from the Defence (Amendment) Act 2007. Between 2007 and 2019, the director of military prosecutions functioned as a member of RACO and conducted many court martials. Are we now to call into question all of those court martials? I would say not but it is a question that should be answered by the Department.
The terms and conditions were not circulated to the association. We found them on publicjobs.ieby chance. The Department retrospectively wrote a Defence Force regulation to then give rise to the prohibition of membership and did not share it with the association in flagrant contravention of our rights under Defence Force Regulation S6, which concerns any amendments to legislation that affect the scope of representation, with this being another example. We went through an adjudication process and an arbitration board process where the arbitration board determined that it was arbitrable or could be adjudicated upon with all the facts that are before the board. The adjudicator made his finding, which was laid before the Houses of the Oireachtas. One piece that is missing that I have to talk about is the fact that the Department appealed that adjudication but that appeal has not yet been heard. Rather than affording the arbitration board, which again was appointed by the Government, the procedural courtesy to hear the appeal within our conciliation and arbitration scheme, the Department has moved to change primary legislation and it is a case of "who cares about the consequences?", so there is no accountability from our perspective and it is abuse of a dominant position.
I reiterate that this strikes at the heart of representation not just in the Defence Forces but in the wider public sector. It is unreasonable, disproportionate, unnecessary and discriminatory to remove the rights and protections of a member of the public service or a member of the Defence Forces - it does not matter which - to be a member of a representative association. There are many benefits to membership that everybody knows globally but are also specific to our association that we have fought to secure for our members. They include preferential offers on travel insurance or health insurance - things that are now unavailable to the director of military prosecutions. The question that needs to be asked is whether the director of military prosecutions believes that he should not be a member of the association. Was he asked? Does the military judge believe he should not be a member of a representative association? Was he asked because we know we were not asked? How does membership of an association infringe upon the independence of an officeholder in the performance of his or her functions because nobody has explained that to us?
Michael McDowell (Independent)
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I mentioned the Secretary General of the Department of Defence being ex officio a member of a body that is supposed to be an independent adviser to its own Minister. I think back to a time when I was Minister for Justice. It never occurred to me to appoint the Secretary General of the Department of Justice to be part of the Garda management or its oversight body. Is that consistent-----
Charles Flanagan (Laois-Offaly, Fine Gael)
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I think it could be well received.
Michael McDowell (Independent)
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Maybe I was not sufficiently imaginative. The result of these provisions would be that the director of military prosecutions and the military judge will have nobody to stand up for them - no union or representative body - in their dealings with the Department. Is that right?
Mr. Conor King:
That is correct and this is a right that is being taken away. I will address the oversight body. Nobody sitting here intends to personalise anything. It is very instructive to note and remember that independent oversight did exist in the Defence Forces and did include the Department of Defence but it also included representative associations and military management. There was balance and it was chaired independently and was viewed as being independent. The current iteration of oversight that has existed in a non-statutory guise and is now purported to become statutorily established lacks balance in that regard. We have no issue with any ex-officiomember of the Department of Defence being a member of an oversight body but without representation on it, it does lack balance and it could be perceived to not be independent and that is the way our members have viewed it.
Mr. Gerard Guinan:
The Senator said that commanding officers are members of RACO. I would counter that and say that they are not obviously members. Membership of a representative association is not tattooed on someone. Someone goes in and expects impartiality and proper rules and procedures and for the law to be applied equally and fairly. I would see membership of a representative association as meaning nothing in terms of someone's work within the Defence Forces. We work for those members. We make sure their rights and entitlements under law are upheld. The Senator is correct in his observation that these people would not be represented. While it is primarily involved with RACO members and it is well capable of defending its members' rights and entitlements, our concern extends to the provision that allows for the Minister to designate other parties as members of an association and then deny them representation in much the same way as our colleagues in ICTU and RACO. We think it is abhorrent that the freedom of association would be stripped from somebody so unnecessarily.
We believe head 25 should be removed. It is unnecessary. Nobody can point to an example of where membership of a representative association has impinged or infringed upon the ability of members to do their duty. We swear solemn oaths to uphold military law and to do our duty to the best of our ability and that is what underpins us not membership of a representative association. People can come and go in that regard but you uphold your oath for the duration of your service. That is the core of our being. I find it unconscionable that somebody would seek to remove your human right to freedom of association.
Regarding the impartiality of the general secretary, members are more learned than I am. They have held high office within the State and know how things work. Again, we do not want to personalise it. What we asked for all along was that we be included as ex-officiomembers of the oversight committee. The oversight committee came out of the IRG. We had one meeting with the IRG where we expressed views about a multitude of issues but we were not informed that the oversight body was something that was likely to fall out of the IRG at that point in time, so we would not have made strong recommendations. We were more focused on what was happening in the Defence Forces there and then, the treatment of people and the grievance mechanisms as opposed to an oversight body.
We would necessarily have a problem with the Secretary General being on it. The Senator may know some procedural defect and the reason this may not be the case or would not be appropriate. All we want is to be included and to contribute to the balance necessary in such a body. In the absence of the representative associations, that body may make recommendations that give rise to anxiety, stress and concern among members and it is our job as representative bodies to allay those fears and make sure our members' voices are heard and considered in any decision-making process.
Mr. Liam Berney:
I concur with colleagues in terms of their concerns. For ICTU, there is a wider concern. If you legislate in primary legislation that somebody is precluded from being a member of a trade union or a representative association, where does that stop?
Does that give rise to bad thoughts in the heads of bad people in future? It is a very dangerous thing. We have raised these concerns with the Department. In fairness, we all got emails in the course of last week to say the points we made directly to the Department are being considered, including this one. For our organisation and for the trade union movement as whole, it is important to record here that we do not see any justification whatsoever for this and it is a very dangerous place to be going into in our view.
Michael McDowell (Independent)
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I have a final comment. The point I was making was the function of this oversight body is to advise the Minister and it is stated to be independence advice, yet his or her right-hand person is on the body that is supposed to give him independent advice. If I had tried that with An Garda Síochána, I would not have got away with it. That is all I am saying.
Mr. Liam Berney:
On the question of the membership of the oversight body, again I do not wish to personalise things, but what colleagues have said about the importance of balance is really the important point here. Precluding or not providing for membership of the representative associations in the oversight body is a gap that needs to be addressed. Like all these things, if we have the right balance of membership, then the organisation, if you want to call it an organisation, will work effectively.
Robbie Gallagher (Fianna Fail)
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I thank the Chair and members for affording me the opportunity to say a few words. The justice committee, of which I am a member, is sitting next door so I had to pop out there and I will have to go back afterwards and get the response from our guests. I compliment them and the committee on this engagement. It certainly shows the importance of pre-legislative scrutiny so we get an opportunity to hear first hand from the people at the coalface about how proposed legislation is going to affect the day-to-day running of whatever organisation it relates to at a given time.
I will talk in general terms before I pose a few questions. The road we are going down is a very dangerous one. It is a very dangerous precedent to be setting. As was said earlier, if it is the Defence Forces today, will it be the Garda tomorrow, or another aspect of the public service? The old adage "If it's not broken don't fix it" springs to mind here. Going back through the past 34 or 35 years, both RACO and PDFORRA have provided excellent representation to their members. I have always listened to them and come away with the belief the representatives were very sensible, intelligent individuals who put forward very practical solutions. They were not just about raising problems from their membership but also coming forward with proposals that would provide solutions to those problems. I am a bit aghast at this proposed legislation in front of us. I just do not know where it is coming from or what the motivation behind it is. I am at a loss, to be honest, that someone would draw up and place before us legislation that proposes to be nothing more than a gagging order, going forward, for both representative bodies and the membership they represent. It is a very backward step.
I will move on to a few questions. I welcome Mr. Jacob, who has had the longest journey of all to attend this afternoon. I thank him for being here. His organisation stretches over 23 EU countries, I think he said. From his perspective and experience, is this the most far-reaching legislation he has come across? Does this overstretch or overreach more than any other EU country he has jurisdiction over?
To the other three guests, some of them have said that in discussions with the Department, it is more or less putting them at their ease by telling them to relax, that there is nothing to see here and that it is not its intention to prohibit anybody from having a voice. Despite this the Department is moving ahead to put this into primary legislation. What do our guests think is the motivation behind that? What has gone wrong that the Department has come up with a proposal such as this, because, as I said it, seems very far-reaching? What do they think is behind how both bodies are going to be excluded from sitting on this new review group? When they asked the Department why it is going here, what response did they get back? What is the Department's motivation or what is it saying in response to that?
I sincerely hope this is not the end of the road in this regard. I hope common sense prevails at the end of the day in order that the final legislation that comes out is suitable. The general scheme is fine apart from, as was stated, heads Nos. 25, 26 and 28, but I hope common sense prevails and everyone is satisfied going forward.
Charles Flanagan (Laois-Offaly, Fine Gael)
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I thank the Senator. We will begin with Mr. Jacob.
Mr. Emmanuel Jacob:
I thank the Senator so much for the question and the remarks. I can go to all of Europe and say which are bad examples and go to Europe and say which are good examples, but that is not the meaning of the discussion we should have today. The meaning of the discussion we should have is that we have here draft legislation that is going back in time with a certain number of rights and is bringing existing rights down and weakening rights. As I already said, we have different examples all over Europe, but one of the points we use at EUROMIL when we discuss good practices with our members and support those who have a problem is that we are not looking towards the minimum standards but towards the highest standards and trying to bring everyone to that level.
We are talking about higher standards in the field of human rights, because this is one of the human rights that exists also for military personnel. I refer especially to the right to speak and to express yourself, within certain limits. We all would have known the day we started wearing a uniform there would be certain limitations there for us, but the point is we have to bring these rights up to the level that is acceptable for everybody and does not put us outside this normal framework. As I said in my opening statement, there is a long way that came from the moment Ireland granted the right of association to its military personnel. The Irish situation was one of the first ones I learned about when I joined EUROMIL. One of the very first people I met in Brussels in my first step at EUROMIL was someone from Ireland who everyone probably knows, namely, John Lucey. John was the first man who brought me into EUROMIL and had discussions with me. As of that point Ireland was for me and example, and not only because of John Lucey. That is why we also continue, every time we do round tables and conferences, to use it as an example. It would really be a shame and unacceptable, even if these seems like hard words, that we would be going back with what is happening today and the situation we have.
We believe that the demands of PDFORRA and RACO are correct, and are not an overreaction or overreach.
Mr. Mark Keane:
We have been reasonable and responsible in our interactions with the Department on this over many weeks and months. It is not just about our concerns but those of our members. We have also heard the concerns of our colleagues in ICTU regarding where this stops. In addition, we are confined by Defence Force Regulations, DFR, S.6. We have never strayed outside of that in more than 34 years. We are at a loss as to why this Bill is being brought in now. The word "draconian" comes to mind. It is eroding what little rights we have, when it comes to representation. If it were to be brought in, the conference would be akin to a silent disco. We could not talk to each other. We could not stand up to propose motions. PDFORRA functions as a democracy. We serve and protect this democracy. We have done nothing but stand by it, but now our rights are being eroded as citizens in uniform. We are at a loss as to why.
PDFORRA, RACO and the Reserve Defence Force Representative Association, RDFRA, have raised the issue of the oversight body with the Minister, the Department and the Secretary General. We have spoken off-field and inside on it, and at every opportunity we ever got to raise it. To answer the Senator's question, it seems the Minister wants somebody there who can report back to him, as with previous committees. I do not have experience in how government works, but that is what is being said to us. Unfortunately, the independent review group, IRG, was based on and came out of something called trust, and the lack of trust. Is the Government now saying that as representative associations we have no place in this? We represent more than 9,500 people. They feed into us. We are the people paid to represent them. We are the volunteers who go out to work for them. We are the citizens in uniform, as Mr. Jacob said, but the Government still wants to take away the most basic and fundamental rights we have because we might criticise something. We have never strayed outside DFR S.6. I cannot think of one example in 34 years where either we, RACO or RDFRA have been brought in by the Minister and told to cease and desist what we have done. To be honest, we are at a loss.
As the Senator said, if it is not broken, why fix it? Maybe that is something the committee should ask the Tánaiste and the Department.
Mr. Conor King:
To echo what Mr. Keane said, there is no example. Why would there be an example, when the Government has already said there is no intent to reduce our rights? That proves there is no example that exists. However, unless we see changes to the language in the document, then we cannot trust that we will not lose our rights at some time in the future. Primary legislation trumps secondary legislation.
Maybe what we are seeing is a gradual erosion of industrial relations norms within the Defence Forces, for which our predecessors fought very hard in the late eighties and into the nineties. We are now focusing more on legislation than on industrial relations norms. There is a move to legislate and rush things through the Oireachtas rather than sitting down, giving us the due respect we believe we deserve and have earned, talking about whether there are problems with the legislation, what the Government is thinking of putting in, and what we think from our experience. We are being denied that on multiple fronts. It results in us having to come from behind the curve to engage. We are so grateful we have the opportunity to engage through this prelegislative scrutiny process, but this is the first time we have had to do this on legislation, in my association's memory. We believe that while it is a fantastic right to have, we should not be before the committee, and would not be if we had a relationship where we were listened to more.
Charles Flanagan (Laois-Offaly, Fine Gael)
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Is Mr. King saying that some of the provisions we are discussing are a surprise to him and his organisation?
Mr. Conor King:
Absolutely. For example, this legislation is the first time we have seen a military judge come into the fray. We have no information on this. A quick phone call the night before a Cabinet meeting is not consultation. On the language about Government policy, we had to look up the Policing, Security and Community Safety Bill, where we found that language. It had never appeared previously as pertains to the Defence Forces.
We have time to get this right. We have current terms of settlement that have been referenced. I feel free to speak about this because those terms are referenced in the heads of Bill and in some of the correspondence that has come back and forward to our association. A clause in our terms of settlement references that we need this legislation enacted before the end of June, but there is also a clause that allows that to be extended, if it is not right. It is to be hoped that the committee sees that, at this point, it is far from right. That is certainly our experience and opinion. There is time to get this legislation right because if we do not, it will have profound consequences, not only for the Defence Forces but, as Mr. Berney said, potentially for the wider trade union movement.
Mr. Derek Priestley:
The Chair asked about surprise. If I may, I will reference one of the early paragraphs from our conciliation and arbitration, C and A, scheme, which states that the purpose of the scheme is to provide a means acceptable to the parties - that is obviously the Minister for Defence, the Minister for public expenditure and reform and the representative associations - for determination of claims and proposals relating to remuneration and conditions of service within the scope of the scheme for members of the PDF. The surprise should be on the committee's side, if we were to say to members that this proposed legislation was never spoken of at council. It was never brought previously. The first we all heard of it was on the eve of a Cabinet meeting. The committee should be very surprised that we are now in here saying we have not been spoken to on that. The surprise should be on the other side.
If this were done in accordance with the C and A scheme, it would have been brought up on the agenda by the official side, the proposals would have been brought out, the Bill would have been drafted and brought before the committee, and none of this would have been necessary. We would like to think that if it came out at council, the endorsement of the representative associations, RAs, would be there, but it is not there. That is the disappointing thing from our point of view. We have a scheme. A lot of energy and effort goes into it but none of it was brought to this. All of this is clearly within the scope of representation.
Charles Flanagan (Laois-Offaly, Fine Gael)
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Senator Craughwell is next, who will no doubt declare an interest.
Gerard Craughwell (Independent)
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Not much is left to be asked. For the PDFORRA and RACO representatives, has a member of their organisations, that they are aware of in the history of those organisations, ever been charged for making political statements or interfering in the political process?
Mr. Berney made a very important point. As a former president of a trade union myself, it has always been the case that changes implemented in one organisation have the capacity to move to other organisations, which in some way limits the capacity of both RACO and PDFORRA. Reading the heads of Bill, under either head 25 or 26, limiting those organisations' ability to speak out on Government policy could effectively cancel both their annual congresses because they could not speak publicly or, if they were to hold a congress, it would have to be in camera. If I am not mistaken, there is a concern in ICTU that if the legislation were allowed go ahead, it could possibly cause contagion in other parts of the trade union movement. Certainly, the employer side might like to be able to restrict what people could or could not do.
As Mr. King rightly pointed out, we have been told that there is an urgency in completing this prelegislative scrutiny. When departmental officials appeared here previously, I asked what engagement there had been. I was told they had a letter. Are the representatives telling us that there was absolutely no consultation with PDFORRA or RACO on any part of the proposed legislation before it came to the House?
Mr. Conor King:
The first question I noted was whether we know if any member of RACO or PDFORRA - I obviously speak for RACO - has been charged with making a political statement. I am not aware of it, but I have to specify that neither I nor the general secretary of PDFORRA are omnipotent. We do not know everything that goes on. However, we should focus on what is stated in the proposed legislation. It states, "An association, or a representative of an association, shall not". I do not know whether tomorrow one of my paying members will make a political statement, but the legislation references a representative association or a representative of an association. That is a distinction that should be drawn. To my knowledge, however, I have never heard of a RACO member making a statement and being disciplined under military law for that statement, politically.
I will deal with the question on consultation.
We made a good decision to go into the Irish Congress of Trade Unions as associate members. It was a very considered decision. Some 85% of our members voted for it. We balloted the entire membership. It was principally for the purposes of having a better influence and a better crack of the whip at pay negotiations. As members can see, we have benefited much more from our associate membership of the Irish Congress of Trade Unions, from its advice, guidance, experience and support. I will not speak for PDFORRA but we as RACO, and I, as an individual, were forced to sue the Minister for Defence to get associate membership of ICTU. We asked for a conciliation council report, CCR, where we would agree certain conditions and restrictions. It was the first and last time I have ever been in the High Court when I had to go to sue the Minister for Defence to become an associate member of the Irish Congress of Trade Unions.
The terms of settlement in that suit were that temporary conditional associate membership of the Irish Congress of Trade Unions would be provided under certain restrictions. It was a take it or leave it situation. There was no discussion. The court was about to go into vacation. The pay talks were around the corner. If we wanted to be in ICTU, we had to take what was being offered to us. There was no settlement, as such. There was an offer which could be accepted or not. Part of that settlement was that the conditional associate membership would last until the end of June 2024 unless the legislation was enacted before June 2024. The next part was that if there was a feeling that the legislation might not be enacted in time, by 30 June 2024, then the Minister should enter into consultation and consideration three months before June 2024, which would be March 2024, with a view to extending the period. I can only speak for our association. We have no problem with an extension to the period, as long as this legislation is correct and appropriate.
Mr. Gerard Guinan:
I do not recall anyone ever having been charged in respect of a political statement. I know statements were made about the failure to apply health and safety legislation. There were moves at one point in time where the health and safety legislation was not going to be applied to members of the Defence Forces. I have made statements and know Mr. King has made statements about the application of the working time directive. Currently, under section 3 of the Organisation of Working Time Act, members of the Defence Forces are precluded from the scope of the working time directive. We have been critical of certain things that are Government policy or parts of legislation.
Gerard Craughwell (Independent)
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Can I interrupt for a moment? What Mr. Guinan is telling me is what any normal representative body does.
Mr. Gerard Guinan:
Exactly. On how things worked out, in 2014, I wrote the complaint along with Mr. Jacob, alleging a breach of our rights under articles 5 and 6 of the European Social Charter. In 2018, EUROMIL made a positive recommendation in respect of our complaint under articles 5 and 6. That was a hard-fought campaign to be allowed to associate with ICTU. As my colleague in RACO, Mr. King, has said, the dogs in the street know that it has been a hugely positive thing for members of the Defence Forces. We fought very hard for it. We ended up having to sue the Government in 2018. We felt compelled to at that point in time because it did not appear that the recommendations or findings of the European Committee on Social Rights were going to be implemented and we took legal action.
It came to a head in 2022. Despite the fact that we had fought from 2014 to 2022, that paragraph (j) was in the original mediated settlement that was put to our executive in PDFORRA in 2022. We would not sign that mediated settlement in 2022 with that clause in it. We sweated bullets. We were under extreme stress in 2022 to sign that settlement which provided for what we would say is the gagging of the representative associations. We were told by the Department that if we did not sign it then, it would be gone and the Department would not allow us to associate with ICTU. Our executive let that go for two weeks. We would not sign the mediated settlement with that clause in it. That is how important it was to us. Having fought for in excess of eight years, we were not prepared to allow ourselves to be associate members of ICTU and then have a gagging order placed on us, as we believed it to be.
Consequently, after about two weeks of back and forth, the Department put in a provision. That provision stated that nothing in this agreement would undermine our rights, but Mr. King is perfectly right that if we put this into primary legislation, it is different from a mediated settlement. We cannot allow this to happen. It has to be cut down to political statements only. It cannot be allowed to stand.
Regarding the rush, I have the mediated settlement from 2022 in front of me. I can tell the committee that a provision exists within that agreement that says that the Minister for Defence shall agree to give fair and reasonable consideration to the extension of the above date in the event that the amending legislation is not enacted. If the legislation is not enacted, providing for the general scheme and providing for us to be allowed to enter into ICTU, there is provision for the Minister to extend that timeline for us to be associate members of ICTU until such time as the legislation is correct. That is there in that legal settlement.
A stitch in time saves nine. We want it done right now. We do not want to rush it and have a mistake made that has adverse impacts on the rest of the public sector or on us and our members. We would rather do it right. We implore the committee to make such recommendations as are provided for in our opening statement. They are recommendations to remove that subsection (j). We do not believe head 25 is necessary. We ask for the re-examination of the provision in head 28(d), which states that a member of the Defence Forces shall not "address a meeting of a political organisation or society [or grouping seeking to influence government policy]". Previously, section 103 stated, "A member of the Permanent Defence Force shall not join, or be a member of, or subscribe to, any political organisation or society or any secret society whatsoever." It goes on to provide for various things. It has never gone so far as to completely deny members their right to address any group. As I said, we believe that members should be able to address their local hospital cancer care services and to have no fear about that. That is a body which may seek to influence Government policy but it would not be right for members of the Defence Forces to face military charges arising from a simple statement to say their son or daughter is going to this hospital and they do not believe the Government is right to remove this cancer care service.
Charles Flanagan (Laois-Offaly, Fine Gael)
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Is this matter the subject of any discussion at the Department?
Mr. Gerard Guinan:
The first I heard that legislation was going to be brought was when we met the oversight body a number of months ago by happenstance. It was mentioned by a member of the committee at that point in time. I was irate, to say the least, that I had heard about it from another body and that we had not been consulted on it. I know we have been informed that we cannot be consulted on the general scheme before it goes to Cabinet. It is seemingly a matter of law. However, I think one can be consulted on what is potentially going to be in legislation without actually discussing a general scheme in advance of it going to Cabinet.
Mr. Conor King:
From our perspective, we did not have the benefit of that oversight body meeting. It was not discussed at our meeting with the oversight body. We found out on the evening of 20 December in advance of a Cabinet meeting of 21 December.
I will back up to agree with what Mr. Guinan said. We were told that the Government would have loved to talk to us were it not for Cabinet confidentiality. We were advised there is a Cabinet handbook. I am not an expert in this at all, but I would have thought legislation might trump a Cabinet handbook. The legislation as it currently stands, under Defence Force Regulation S6, which falls out of the Defence (Amendment) Act 1990, provides that the representative organisations must be consulted on any amendments to the Defence Act, administrative instructions, general routine orders or Defence Forces regulations that impact on the scope of representation. We signed up to that, as did the Department of Defence and therefore the Minister.
Charles Flanagan (Laois-Offaly, Fine Gael)
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Mr. Berney is anxious to come back in.
Mr. Liam Berney:
I will make two or three very quick comments. PDFORRA and RACO are worker representative organisations and they should not be precluded from doing their jobs effectively by primary legislation. As a general principle, that is important. One of the things that has been spoken about is the sequence of events that might arise from here and the possibility that RACO's associate membership of the ICTU may lapse by virtue of the agreement reached in the High Court. That cannot be allowed to happen. It has been a positive experience for everyone, including our organisation, that RACO and PDFORRA have become associate members of congress.
On a wider note, in view of the remarks Mr. Guinan and Mr. King have made, we need to review the affiliation fees they pay us as clearly we are providing an excellent service.
Gerard Craughwell (Independent)
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My colleague, Senator McDowell, and others have raised the matter of the oversight body. RACO and PDFORRA were both members of the previous oversight body. There was no problem I was aware of and I have to put on record that this committee should insist there is counterbalance on the oversight body and that the representative bodies have membership, along with the Secretary General-----
Charles Flanagan (Laois-Offaly, Fine Gael)
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That is if the Secretary General stays.
Gerard Craughwell (Independent)
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Yes, or the Secretary General should leave and then there would be no requirement for any counterbalance. However, I would favour RACO and PDFORRA being members of the oversight body.
Diarmuid Wilson (Fianna Fail)
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I welcome the witnesses and thank them for their presentations. I support Senator Craughwell on that point. I firmly believe the representative associations should be members of the oversight body. That is without question and this committee should fully back that proposal. It cannot function properly as an oversight body without the representative associations having full membership.
I would be interested in the Chair's and Senator McDowell's guidance on this matter as they are both former Ministers for Justice. It relates to head 25(a), which amends section 2 of the Defence (Amendment) Act 1990 by inserting a new subsection. Under this, the director of military prosecutions, a military judge or - this is important - "any post as may be prescribed by the Minister" may be precluded from being a member of a military association. That is quite open to abuse. I ask the Chair and, through him, Senator McDowell to comment on this. Judges of the District Court, Circuit Court, Court of Appeal, High Court and Supreme Court are members of a representative body. Does that mean all judges should be precluded from being members of a representative body on the basis that they may have to judge one of their colleagues or former colleagues? It makes absolutely no sense. I agree with our colleague from ICTU. If this is put into primary legislation, where does it stop? I would be interested in that. Judges have a representative body of which they are all members. Should they be precluded from being members of a representative body because they may at some stage have to judge another member of that body?
Charles Flanagan (Laois-Offaly, Fine Gael)
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Do the witnesses wish to comment on any of the issues raised by Senator Wilson before we bring matters to a conclusion?
Mr. Conor King:
This potentially has far-reaching consequences. As Senator Wilson correctly pointed out, there is a contradiction in terms. It is accepted, certainly from what I hear, and it is our firm belief on this side of the table that it is unnecessary, disproportionate and discriminatory to strip away the universal right of freedom of association or the right to be a member of a representative association or trade union. Second, no one has been able to prove how representation or membership of a representative association has, or could ever have, impinged on the independence of individuals in the performance of their functions. Workplace Relations Commission, WRC, adjudicators are members of trade unions and they make adjudications on fellow trade union members. We look at equality officers, the aforementioned judges, members of staff of the Office of the Director of Public Prosecutions and, within our ranks, at the quasi-judicial functions of commissioned officers and no one has been able to prove or show how membership of a representative association, whether it be RACO, PDFORRA or any other association, can impinge on the independence of officeholders in the performance of their functions. Unless and until that can be done, this provision does not make sense and should be removed. That is all I want to say on that.
Mr. Mark Keane:
Our fear is that it will start with the military prosecutor or military judge. We have people who are enlisted NCOs who work in offices in various sensitive parts of the Defence Forces. Are they next? When will it stop? Will it be when representation is back where it was before 1990, in 1988 or 1989 when we were in the wilderness. PDFORRA and RACO were formed to service members and highlight the concerns of people who have enlisted and are commissioned in the Defence Forces. We have a mandate from the people who elect us. This cannot be allowed to happen. No other organisation is under threat. We already have the draconian measure, Defence Force Regulation S6, and now the Government wants to narrow that to make it tighter again. We would fail to function. People would be left without a voice. We are the only voice they have so I ask the committee to review this.
Charles Flanagan (Laois-Offaly, Fine Gael)
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We are heading towards a conclusion. I call Senator McDowell.
Michael McDowell (Independent)
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I will make one point. It occurs to me that there is a slightly sinister aspect to this - that the Government wants military judges and the military director of public prosecutions not to be members of RACO or whatever and, at the same time, it is proposed to amend the Defence Acts to make it an offence to make critical remarks about Government policy. Perhaps the Government thinks that if a charge was brought against a person for making a political statement, members of RACO would be in a slightly embarrassed position if such a charge came before them. The Government seems to be clearing the decks for prosecutions of soldiers and officers of representative associations breaching the terms of this new section 2A. Listening to the debate today, it suddenly struck me that perhaps that is what it is driving at. It wants to have the deck cleared so that people from RACO or PDFORRA or whatever can be punished through military law for breach of these provisions, which seem to fly in the face of ordinary human rights as they are understood right across Europe.
Mr. Conor King:
There is a trend we have observed whereby representation has been somewhat sidelined, so we would agree. We look at the oversight body and the stripping away of the rights of certain members of our association, which would not be tolerated anywhere else. We look at our conciliation and arbitration scheme not having an adjudicator or an arbitration board in place. We look at adjudications, when we do eventually get to an adjudicator, being completely ignored through the abuse of a dominant position. The conciliation and arbitration scheme is under review, and some of the provisions that have been suggested by the official side seek to completely narrow it down to have fewer meetings and to have sanction, for example. This has been successfully pushed back against, but it was very instructive and insightful as to where certain people would like to see representation in the Defence Forces go. We fundamentally believe, to echo Mr. Guinan's comments, that if we do not have strong, constructive, effective representation in the Defence Forces, or in any armed service or disciplined uniform force, nature abhors a vacuum. We are best placed to voice the concerns of our members in a reasonable and constructive way that can only be good for our democracy.
Charles Flanagan (Laois-Offaly, Fine Gael)
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While we have had a positive discussion that has been instructive for this committee, I am not sure whether the levelling of sinister activity or behaviour on the part of the Department is entirely appropriate. That has been put but I am not sure whether, in the circumstances, it is-----
Michael McDowell (Independent)
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I will withdraw the term "sinister" and replace it with "unusual".
Charles Flanagan (Laois-Offaly, Fine Gael)
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I thank the Senator.
Cathal Berry (Kildare South, Independent)
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I welcome the entire team and thank them for their opening testimony, which was excellent. There have been a few improvements in the Defence Forces in recent years from an individual welfare point of view, with better pay, accommodation, gymnasiums, rations and medical care, and that is chiefly as a result of the testimony provided to this committee over recent years. To echo what Mr. Guinan said, we should not force people into using anonymous accounts on X or Facebook. We should do our business in an open and transparent fashion, and this committee is an ideal forum for that. In case the organisations’ members think their appearance here over the past four years has not had an effect, I would say the opposite is true. It has been a major catalyst for not just change but progress, so long may it continue.
I have just come from the plenary session of the Dáil, so some of the following questions may have been covered. If they have been, our guests might just gloss over them. It appears no meaningful consultation was carried out before this issue came before the committee. I am just a humble farm boy. I am not precious and do not have notions, as none of us does, but I would have expected that if draft legislation were coming before this committee, it should be almost at its final stages and we should just tweak it. We should not get the very first draft and expect to collect someone's homework, basically, but that is what we are getting here. There should have been at least face-to-face consultation and I am concerned that has not happened. The partnership approach, which has been mentioned by some of my colleagues, is the way to go. It is the direction of travel throughout society and the military should be no different.
On the gagging clause, I agree it is definitely an issue. I compliment the deputy spokesperson of the representative association in recent years. When he goes on radio or TV, he is absolutely sensible - that is the word that was used - rational, reasonable, respectful and courteous. I think we should encourage him to speak more often in public, if anything, and not try to double down on this culture of silence. It is worth remembering that the culture of silence is what got the Defence Forces into the fix they are in, and doubling down on that is not going to make it better but worse. Eighteen months ago, I attended an incredible event at a hotel in Dublin city centre. It was a Slándáil defence and security conference, with about 100 people in the room. I am not sure whether our guests were present. About half of the audience were military uniform personnel, while the other half were civilians, wearing suits or casual wear, and the military people were ordered to sit there mute for the entire day. They could listen but they could not speak. In fairness to Professor Brigid Laffan, she stood up and said it was highly unusual and that it would not happen in any other country but North Korea. We are treating our military people like primary schoolchildren. They have to sit there and we want them to be seen but not heard. That is highly unusual. We should encourage people to speak up and address this culture of silence.
On the stripping of the rights of the director of military prosecutions and the military judge, I am not sure what the Chair's thoughts are. It would be probably inappropriate, and we do not have the time in any event, to bring them before the committee but perhaps he could write to them asking them their views on this. Was it something they had sought and were they consulted? How would they recommend we go forward? Perhaps a letter to those two individuals is something we could consider.
On the oversight body, again, I am not personalising anything and it has been mentioned, but the independent monitoring group was a very effective forum. It was unilaterally discontinued only recently but I think we should go back to that forum. Everyone is in favour of proper, balanced oversight, but the constituent membership of this new oversight board is not balanced in any shape or form.
We have an excellent committee secretariat. It is top-notch. Not only is its first loyalty to the committee but its only loyalty is to the committee. I am 100% sure of that. In the case of the secretariat of the independent review group, IRG, however, two of the five members were drawn directly from the Department of Defence. That means 40% of the secretariat that drafted the report were from the Department of Defence. I am not sure if any of the team is aware whether there were any Chinese walls between these two civil servants and the Secretary General's office. It seems unusual that we would try to put in place a structure that is independent, as Senator McDowell said, and then populate it with people from the Department of Defence. Are we surprised at the exclusive instructions whereby only the Secretary General is an ex officiomember? I am not saying there was interference, but I am concerned that pressure could have been brought very easily and I think they have walked themselves into that position by allowing the perception to exist, whether it is the reality or not. I have to question the independence of that IRG if it were so constituted.
In respect of the deadline, to be honest, I am quite happy with the status quo. As someone said, if it is not broken, do not fix it. I do not see any rush with this. We have been waiting decades for this type of legislation, so let us just get right, not least when someone is trying to jump us into something we might not be comfortable with. There is a reason it is being delayed, namely, the preliminary steps of consultation have not taken place. I do not see why we should rush into this. We should do it properly. If somebody does want to get this over the line quickly, the easiest way to do that is to accept the amendments that have been put forward by the representative associations, which are consistently reasonable, sensible, implementable and absolutely something we should go for.
Those are the only points I have to make. I welcome the principle of the legislation, but it should not come before us in such a half-baked fashion. All these issues should have been teased out in open forum, face to face with the reasonable representative associations, ICTU and EUROMIL. I hope in the case of the next batch of legislation that is scheduled to take place later this year, namely, the higher level core function of the Defence Forces and structures, moving the Air Corps to the air force and the Naval Service to the navy, more meaningful consultation will take place prior to it coming before the committee. Again, we should not be looking into the weeds here. We should be looking at the higher level stuff and all these preliminary steps should have been done long before this.
Mr. Gerard Guinan:
We have dealt with some of the questions, such as those relating to pre-consultation and so on, and I will skip over them, if the Deputy does not mind. On the issue of improvements, he is 100% correct. We have seen significant improvements over recent years. I think I first appeared before the committee around 2017 and there have been significant improvements in the Defence Forces since then.
The last thing that PDFORRA wants is to have to fight but, mark my words, we will fight. If those provisions are enacted as is, then our next step will be the courts. We cannot countenance a situation where our voice and the voices of our members are impeded.
In terms of freedom of association, again with our colleagues in Europe we will fight the provision. If a member of PDFORRA is excluded from the scope of representation we will fight it. We do not want to have to do this. It is not good for the Defence Forces. We want to encourage young citizens to join the Defence Forces. We have a deficit in numbers. The last thing we need is to have an unseemly fight over things that we believe are simply unconscionable. Do the right thing now. As has been said, with regard to some provisions they would be simple amendments. We are in agreement with the vast majority of what is included in the general scheme. We have no difficulty with them. Our association cannot countenance those provisions that seem to inhibit representation.
Cathal Berry (Kildare South, Independent)
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It is like something out of Canon Law from the 1960s and we are trying to enshrine it in the Irish Statute Book. It is completely unacceptable.
Mr. Gerard Guinan:
Yes. This is our bottom line: we will fight this one way or the other if it comes about. We will be forced to do so. We do not want to have to do this. We want to encourage young men and women in this State to join the Defence Forces. It is an excellent career. It has great potential for the people who come in. They need a strong voice and they need adequate and appropriate representation. Nothing in our past indicates there is any reason to bring about, at this point in time, those measures with which we have a problem. Nobody can point to a situation and say former members of PDFORRA broke the law, or were political and did this, that or the other, or that they assembled and addressed political campaigns in a manner that was highly inappropriate. Nobody can show this to us. We cannot understand what is the catalyst for the provisions as they exist in the legislation. We simply ask that the Department removes them and that the committee, by its best efforts, seeks to influence the Department to have it amended.
Mr. Conor King:
I cannot add anything to what Mr. Guinan said. He is correct. All of the points have been covered already and covered well. The one thing I will say is that the last time we appeared, and we were lucky enough to come before the committee in October 2023, one of the committee members - I remember who but I will not say the name - was moved to speak about oversight and the oversight function of the committee itself. This would be the single most effective and beneficial oversight function the Oireachtas committee could enable to ensure that we are not written out of existence through primary legislation, that our members are not looking over their shoulders and wondering whether their rights and the benefits of membership will be stripped away, and that when our members are engaging in civil society they will not be worried that they are breaking the law. Oversight from the Oireachtas Joint Committee on Foreign Affairs and Defence in this regard, to bring in the reasonable amendments we have sought, would go a massive way to assuring and reassuring our members that the system is fair and that the Defence Forces is a good place where they can do their business and where they can work. I appeal to the committee's expertise, and to its powers as an oversight body and as an Oireachtas committee, to assist in any way it can to ensure the difficult, challenging and unreasonable provisions in the general scheme of the defence (amendment) Bill 2023 are amended.
Gerard Craughwell (Independent)
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It is important to say that I constantly get comments about the fact that people such as myself and my colleagues Deputies Berry and Stanton and Senator Wilson are negative about the Defence Forces. We have the representative bodies here this evening. Their final statement this evening was about the wonderful career that Defence Force membership offers people. We need to compliment them on this. I want to propose that we accept, as a committee, the amendments brought forward by the representative bodies and that we make this recommendation strongly to the Department.
Diarmuid Wilson (Fianna Fail)
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I second the proposal.
Charles Flanagan (Laois-Offaly, Fine Gael)
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It remains for me, on behalf of the committee, to thank our witnesses for coming here this afternoon and sharing with us their observations on and concerns about the proposed legislation, and for dealing with the questions of members in the manner in which they have done so. It has been put to us that it is intended that the Bill will provide for amendments in three areas, which we have dealt with. These are the external oversight body, the matter of the Irish Congress of Trade Unions and a number of miscellaneous amendments.
We acknowledged, not only in the course of our deliberations with the witnesses this afternoon but from previous engagement over the past couple of years, that this is a time of great challenge and great change in the Defence Forces. It is also a time of great opportunity in terms of investment and positive change. As a parliamentary committee representing Government parties, Opposition parties and Independent Members, our wish for the witnesses is that any change would be made in a spirit of co-operation and collaboration, and that there would be at all times an appropriate level of discussion and consultation, notwithstanding some legal constraints that may be evident.
We have taken careful note of the points at issue. I have received a proposal, which was seconded, for a certain course of action. I have not received any counterproposal. We will certainly give careful consideration to what has been discussed. We will be preparing a report at an early date. As has been said by Senator Craughwell, we are under some time pressure. It is fair to say the Government itself is under some time pressure having regard to the legislative programme and its priorities. This is a priority not only of the Department of Defence but also of the Government. We, as a committee, will certainly ensure that the witnesses are very much engaged as stakeholders along the way. The next step is for us to report back to the Department, following which progress will be made in the technical drafting of the legislation. I thank the witnesses for being with us. It has been a very useful and instructive exercise.
I remind members that we have some private business and I ask them to remain. It will not take too long.