Billy Timmins (Wicklow, Fine Gael)

This is a detailed Bill that may not excite the public's mind because it is very technical. The Minister of State spoke of the desire to maintain the discipline of the Defence Forces. I would prefer to see the Bill dealing with the administration of justice rather than maintaining discipline in the Defence Forces. The Fine Gael Party supports the Bill.

A person joining the Defence Forces is subject to the Defence Act 1954 from the moment he or she joins until the moment he or she leaves. This subsection to the Act applies even while a person is on leave in the privacy of his or her home. The provisions of the Defence Act are comprehensive, covering all aspects of the Defence Forces, of which discipline is only one part.

Not only is the individual subject to the Act, but the Defence Forces as a whole are a creature of statute. The Defence Forces owe their origin and maintenance to the provisions of the Constitution and the legislation of the Oireachtas. This overwhelming control by statute puts members of the Defence Forces in a unique position in the State, especially as a comprehensive system of justice, authorised by Article 38.4 of the Constitution, is included in the Act. This control places a special obligation on the Government and the Oireachtas to keep the Defence Act and its ancillary legislation under review, so they can be updated as circumstances change and any anomalies or errors corrected.

Article 46 of the 1922 Constitution of the Irish Free State granted the Oireachtas the exclusive right to regulate the raising and maintenance of armed forces, which would then be subject to Oireachtas control. Detailed regulation of the existing forces was then defined by statute in the Defence Forces (Temporary Provisions) Act 1923. This Act was largely based on the UK's Army Act of 1881. The UK's Naval Discipline Act of1866 was consulted by the draftsmen of the sixth Schedule of the Defence Forces (Temporary Provisions) (No. 2) Act 1940 in order to include offences relevant to the naval forces, which were, however, not established on a permanent basis until 1946.

Following independence, the Defence Forces (Temporary Provisions) Act 1923 was enacted to last for only one year until a permanent Act was passed. However, it was renewed annually, with many amendments, until 1954, thus following the procedure used by the British to comply with the Bill of Rights. General Seán MacEoin, the then Minister for Justice, presented the Defence Bill 1949 on behalf of the coalition Government and proposed retaining annual renewal, but this was rejected in the Defence Bill 1951.

The first amending Act was introduced in 1960, enabling members of the Defence Forces to serve abroad with United Nations in "duties of a police character". A second Act was passed while soldiers were serving in the Congo, nine having been killed in an ambush. Other Acts amended ranks, enabled women to join the Defence Forces and altered punishments which could be awarded.

In the late 1980s considerable dissatisfaction arose over levels of pay, leading eventually to Army wives standing for election to the Dáil. An outcome was the Defence (Amendment) Act 1990 which provided for the establishment of representative associations. The Defence (Amendment) Act 1993 authorised the Defence Forces to serve with the United Nations in situations more serious than of a mere "policing" nature. The 1998 Act provided for reorganisation at defence headquarters, the adjutant-general being re-titled the deputy chief of the defence staff (operations) and the quartermaster-general, the deputy chief of staff (support).

The Defence Act 1954 has also been amended by Acts of a general nature such as the Criminal Justice Act 1990 which abolished the death penalty. In spite of these amendments, the Government and the Oireachtas lack the discipline for regular review which especially keeps military law in line with criminal law. For instance, there is no provision for young members of the Defence Forces to be sent to St. Patrick's Institution instead of a sentence of imprisonment. Young members of the Defence Forces are excluded from the benefits of the Children Act 2001 by section 272 of the principal Act, which removed any benefits that they enjoyed under the Children Act 1908, creating a clear need for an amendment to the Defence Act. Will the Minister examine this limbo before Committee Stage? The Fine Gael Party will soon be launching its back on track policy which will provide for more progressive rehabilitation for young offenders. I am sure Deputy Costello will be glad to offer his support on this.

The Oireachtas has freedom to enact or repeal legislation, or not, as it thinks fit within the bounds of the Constitution. However, the European Court of Human Rights is directly critical of procedures which fall within the ambit of Article 38 of the Constitution, trial of offences. The Government should be sufficiently embarrassed to take legislative action. The British Parliament had enacted the Armed Forces Act 1996 in order to create compatibility with the convention before Findlay v. United Kingdom reached the European Court of Human Rights.

It could then make available to the court the legislation put in place to remedy the shortcomings of its defence legislation. There remain strong reasons for Irish legislators to follow the general principles of British military law, the most important being the fact that both Ireland and England and Wales follow common law. That is particularly significant when one bears in mind that the great majority of judges at the European Court of Human Rights are from civil law jurisdictions. Additionally, members of the Irish and British Forces are full-time professional volunteers, while the armies of many European countries rely heavily on conscripts.

There is a pressing need to legislate earlier rather than later to avoid cases going to the European Court of Human Rights, which would most likely result in embarrassment for the State. The need to amend the Defence Act 1954 is partly owing to the adverse judgments against the United Kingdom in the European Court of Human Rights. We have very similar systems of common and military law in this country and those judgments are directly relevant to Irish military law. Several of the judgments have affected courts martial and two have been relevant to the powers of the commanding officer, something mentioned in the legislation. Two very relevant cases were the Hood case of 1999 and the Thompson case of 2004.

As the Minister of State outlined, the Bill's main purpose is to put in place procedures in line with developments that have taken place in case law decisions of the Irish Courts Martial Appeal Court, statutory developments in this country and case law decisions in Irish criminal law and the European Court of Human Rights.

Regarding chapter 1, while there is a great deal of detail in the legislation, much of it is very technical and administrative. I remember that when I served in the Army, one of a young officer's great fears was having to defend someone. The rules were archaic and cumbersome. There was always a feeling that people going on trial, particularly at court martial, were unaware of their rights and being defended by someone without much legal experience. Often, one was reluctant to delve into matters too much to mount a good defence, since the general feeling was that if one tried to question the authority of the prosecuting officer, the defendant could end up with a more severe sentence. I imagine that it was so in many instances.

Thank God society in general has moved on from that. One thinks of the Shot at Dawn campaign for those executed for failing to tip their caps or get up on time, or for falling asleep involuntarily. While modern society has many ills, in many respects we have moved on a great deal, which is welcome. That has been the genesis of this legislation, which will give rise to a fairer and more equitable system, make greater expertise available to those in difficulty and provide a more structured and permanent courts martial system for those who go on trial. In that way, there can be a degree of consistency. Even if one is a member of the Defence Forces, one is entitled to a certain standard of human rights.

Chapter 1 amends the time limits for bringing a charge against a person who has left the Defence Forces. The Minister of State outlined that it will change from three months to six, while for minor offences it will be reduced from three years to one. Sections 22 to 30, inclusive, amend the existing law dealing with the investigation and the summary disposal of charges. I remember that if someone was due in at 8.30 a.m. and arrived at 8.35 a.m., he very often faced the rigours of the commanding officer, received detention and was fined. In civilian life, if one comes in a few minutes late, sanctions are not so tough. I am sure that matters have evolved in the Defence Forces too, since people cannot always be on time as they used to be owing to traffic congestion. In civilian life, someone would be told to be on time, with very little attention paid. One had rules and regulations that were archaic and their amendment is long overdue.

Chapter 4 deals with courts martial and some 24 sections cover the establishment and conduct of courts martial. Sections 57 to 64, inclusive, deal with punishments awarded by such courts martial, while section 60 builds in an important safeguard. I stated that a defending officer might not have the expertise. This section allows the defendant an opportunity between trial and the commencement of the sentence to gain access to qualified legal aid to assist him or her in the case. That is very welcome since it addresses one of the shortfalls in the existing system.

Perhaps on Committee Stage certain things in the Bill will leap out. No one contacted me or my party on the Bill. The only person of whom I am aware is a Mr. Hoare, who wrote a dissertation on the defects in Irish military law. Many issues that he raised in his thesis are pertinent to the Bill, which seeks to address some of them. I agree with one point that he put forward. I mentioned General Mac Eoin's speech in 1949, when he sought to institute an annual review of the legislation. That was rejected in the Defence Bill 1951. A Captain Cowan dismissed renewal as a relic of the British. Perhaps we should examine it in the context of this legislation since we are inclined to fall behind in defence disciplinary legislation. We could consider including a review in the Defence (Amendment) (No. 2) Bill 2006. In Britain, there is a five-yearly review and that could be included through an amendment on Committee Stage. Section 5 of the Defence Act 1954, as amended by this Bill, would then be reviewed every five years.

I also ask the Minister to consider the problem that may have been created by section 271 of the Children Act 2001, which leaves members of the Defence Forces aged under 18 exposed to the full rigours of the criminal law, including not only imprisonment, but also a mandatory life sentence. That may need to be addressed on Committee Stage so that we might reconcile membership of the Defence Forces by those aged under 18 with the Children Act 2001. We should weight any action that we take in favour of those aged under 18.

I thank the Minister of State for his speech. We support the Bill, although on Committee Stage we may table some amendments, depending on the Minister's actions and other issues that may come to light in the interim.

See this speech in context