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.