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.