Mr. Ciarán Murphy:

By way of an opening statement, I will introduce myself and my background. I will then offer some comments and context regarding the legislation. I served as assistant secretary and defence policy director in the Department of Defence for about 15 years from 2007 to 2022. In that role, I was responsible for all aspects of defence policy on Ireland’s engagement with the UN, the EU Common Security and Defence Policy, the OSCE and NATO PfP, including policy on all defence operations overseas and related legislation. My work on the EU CSDP included the defence aspects of Lisbon treaty protocols. It also included Ireland’s policy engagement with the European Defence Agency, PESCO, the European Defence Fund and the European Peace Facility and negotiations on their founding statutes.

I was responsible for the Defence (Amendment) Act 2006, which the current Bill updates. It is a common feature of public administration that nothing can remain static. Legislation across all aspects of public policy and administration changes and evolves. The Defence Acts are no different. They have been amended in respect of overseas service on a number of occasions to reflect changes in UN missions and Ireland’s policy on international security, conflict resolution and peacekeeping.

The original 1960 Act limited peacekeeping activities to the “performance of duties of a police character”, which has been mentioned a number of times during these committee hearings. However, this limitation was deleted from the legislation through the 1993 Act as UN missions were increasingly being authorised as peace enforcement missions under Chapter VII of the UN Charter. The missions in which we were involved in Ethiopia, Eritrea, the Balkans, Liberia and Chad were all Chapter VII or peace enforcement missions.

Over the 1990s, the wording of UN Security Council resolutions expanded substantively from the UN establishing what are referred to as "blue hat" peacekeeping forces to the UN supporting members states “acting together or through regional organisations” - a phrase I have taken from UN Security Council resolutions - to deploy forces to maintain international peace and security. For Ireland, this raised legal interpretation issues as regards the 1960 Act, even as it was amended in 1993. The wording no longer reflected the evolution of UN mandates. The scope of the term "International United Nations Force" was expanded again in the 2006 Act to better reflect the fact that many UN missions were not blue hat missions. The Act also contained provisions relating to the rapid deployment of forces as part of an EU battle group, a development which was welcomed by successive UN Secretaries General.

As we have seen, defence legislation has been amended several times to reflect changes in the UN, changes in the international security environment and the need for rapid response capabilities in the face of emerging conflicts to maintain Ireland's capacity to provide forces for these missions. In my opinion, the current Bill reflects further changes within the UN system and Ireland's ongoing commitment to peacekeeping.

Gridlock within the Security Council can preclude Ireland from acting to support international peace and security through the provision of forces for international peacekeeping. The current triple lock has enforced both mission non-participation, as with the mission in Macedonia from which we were excluded, and planned and actual mission exit, not least Ireland's enforced withdrawal from the UN mission in Chad. We did not want to leave but had to because of uncertainties around the UN mandate. The Bill also expands on section 3 of the 2006 Act to recognise that there will be circumstances where we wish to deploy the Defence Forces where there will never be a UN mandate. For example, the UN Security Council is not going to get involved with security issues or the evacuation of civilians. Without a resolution, even if we want to deploy to protect our citizens, we will not have a UN mandate to do so.

The main element of the current Bill is to revise the exclusive requirement for a UN Security Council mandate for Defence Forces operations overseas and to include additional potential mandates for deployment to international forces that will, to quote the general scheme, "operate for the purposes of peacekeeping, conflict prevention and strengthening international security consistent with the principles of the United Nations Charter." This language is consistent with the assurance that was given to the people in Article 3 of the Lisbon treaty protocol and which was approved by the Irish people in the second Lisbon treaty referendum. The language in the Act is actually taken directly from the Lisbon treaty protocols.

There has been significant discourse to the effect that Ireland’s UN membership and the triple lock are inextricably linked to our policy on military neutrality. That discourse also suggests that Ireland’s UN membership and the subsequent triple lock represented a fundamental affirmation and reinforcement of Ireland’s neutrality policy. However, as shown in a recent paper I have circulated to the committee, the Oireachtas record of the debates on both UN membership and the 1960 Act demonstrates the polar opposite. At that time, membership of the UN was seen as substantively undermining and obviating Ireland’s neutrality.

It was considered that Ireland would be forced to exit the UN to maintain its policy of neutrality in the face of a UN Security Council resolution that required it to go to war with another state. That 1946 debate also included discussion on the constitutional provisions in Bunreacht na hÉireann regarding a declaration of war, where the State may have had to go to war pursuant to a UN mandate, and the role of Dail Éireann in that regard, as provided for in the Bunreacht. The view of the then Government, and the Opposition, was that membership of the UN would substantively undermine this constitutional provision, that is, the precedence of Dáil Éireann on such matters would be moot by virtue of UN Charter obligations.

In 1946 and again in 1960 when the initial Act was introduced, the obligations of UN membership were seen as a threat to Ireland's foreign, security and neutrality policy and its sovereignty in this regard. To address that, the third element of the triple lock was to cement, in legislation, the primacy of Dáil Éireann in protecting Ireland’s policy on neutrality, Ireland’s independence and sovereignty on foreign policy. The key element of the 1960 triple lock is not the UN Security Council resolution. That was a given, by virtue of our obligations of membership of the UN. This had already been accepted by Ireland as such an obligation. They key objective of that was to protect and enshrine in law the requirement for Dáil approval for any such decision to deploy forces. Dáil Éireann, not the UN, was the bulwark to protect Ireland’s neutrality, independence in foreign policy and sovereignty.