Joe Costello (Dublin Central, Labour)

We know that he cannot be with us because he is in Lebanon, but he is there for three days and I would have thought that he might have tabled this Bill for a date on which he was in the country, meaning that he might be available in the House. It is not that often that we have legislation on the Defence Forces. The Minister might have made an effort to ensure that it was on the agenda when he was present. He could have instructed us or discussed it with the Government Whip to that effect. He has certainly not held back from making statements on his travels and we read about him every day in the newspapers. Lebanon seems to be a new forum for major statements from the Minister for Defence. I would have thought that this House should merit proper respect from the Minister by his attendance for this debate. Having said that, however, I welcome the Bill.

The opening statement in the explanatory memorandum states:

The primary purpose of this Bill is to amend and update the disciplinary provisions of Part 5 of the Defence Acts, having due regard to the prevailing human rights norms.

I am sure the Minister of State will agree that is a straightforward and simple statement of the legislation's purpose. However, the Bill's 94 pages contain pretty turgid, impenetrable and unintelligible language. I do not know if the Minister of State has had a chance to dip into his own Government's White Paper entitled Regulating Better, which was published in January 2004. The principles set out in that document were to inform the regulatory process for this and future Governments. In particular, the White Paper stated that there should be improved access for citizens to the existing stock of legislation, maximum clarity and openness in the operations of the Government and public administration, and that the Government should improve the coherence of legislation through revision, restatement and repeal.

I contend that the Bill makes a nonsense of that White Paper which was published just three years ago. The Bill has been drafted in a manner calculated to make the applicable provisions of the law more obscure, harder to access and therefore less coherent and intelligible. It is designed to deprive, whether intentionally or otherwise, the ordinary citizen of access to its contents and meaning. Only members of the legal profession will be able to interpret it. It would be a holy and a wholesome thought if the Minister of State was to withdraw the Bill. He should provide a copy of the White Paper to the parliamentary counsel who could then return to the drawing board to draft a Bill in accessible language, which would consolidate the existing Defence Acts. It could also incorporate in its text the amendments the Minister of State seeks to make to this rather bloated and unintelligible Bill.

In his opening remarks, the Minister of State said he had further provisions in the pipeline which he intends to deal with at a later stage. That is an optimistic statement given that it certainly will not happen in the lifetime of this Dáil. In fact, the scenario I have outlined is unlikely to happen with this Bill either. Nonetheless, the Minister should consult with the parliamentary counsel in the context of the Government's policy to make legislation accessible to citizens and begin work on a meaningful, legible and intelligible consolidation Bill. Perhaps the parliamentary draftsman could be informed of the White Paper's contents vis-À-vis the work being undertaken on the proposed Bill. In future, the Minister might also consider an integrated consolidation Bill on Defence Forces legislation. The Minister for Justice, Equality and Law Reform is doing this for criminal justice legislation as well as for the liquor licensing laws.

We are all proud of our Defence Forces whose members have served the country well since the 1920s. Their role is to ensure that our sovereignty and neutrality are not infringed. Since the late 1950s, they have undertaken a valuable peacekeeping role under the auspices of the United Nations. At any given time, approximately 800 of our soldiers are serving with UN-mandated missions, helping to maintain the peace in a variety of the world's trouble-spots from Liberia to the Lebanon, where the Minister for Defence is currently visiting our troops.

Good quality training and leadership are the hallmarks of a committed and professional force. A code of discipline is essential but it must be fair. Disciplinary proceedings are essential and they, too, must be fair. They should respect the individual as well as reflecting prevailing human rights norms. In this respect, the Bill is most welcome. It seeks to modernise and amend the current military administration of justice, which is somewhat wanting. It provides for new structures and procedures, new penalties and appeal mechanisms governing summary investigation and courts martial. It also provides for an independent military prosecuting authority and an independent military judicial office, the appointment of a courts martial administration and the establishment of a new summary court martial. All of these steps represent welcome changes to the existing structures.

I have no doubt that if these new procedures had been in place in 1969, the outcome of the Dónal de Róiste case would have been radically different. The evidence against de Róiste was second-hand and virtually non-existent. I do not know if the Minister of State has seen it, but I would like to quote from a book by Don Mullin who has done such great work on Bloody Sunday and other issues. It is entitled Speaking Truth to Power: the Dónal de Róiste Affair, and contains some information that became available via the various tortuous attempts to find out what actually happened in 1969. The book reproduces a letter, marked "secret" and dated 1 May 1969, to the then Army Chief of Staff from Colonel M. Heffernan who was then director of intelligence. We read all about him during the 1970 Arms Trial. The letter states:

As you are aware, we would have preferred to develop this case more fully before moving on Roche, but in view of the extreme sensitivity of Clancy Barracks, it was felt that delay in bringing the association into the open would not have been an acceptable risk. It has not been possible to confirm Roche's association with other members of the group, as reported by our confidential source. We were somewhat handicapped by our inability to question directly the original source of information, although the questioning and requisitioning through a third party was reasonably satisfactory. [That whole sentence is damning]. While an unsupported report must be viewed with reserve, it is significant that the report was accurate in its other respects and my view is that it must be considered as likely to be accurate on this count as well.

That, therefore, is the level of evidence in one of the more celebrated cases. Under some pressure, Dónal de Róiste was exhorted to confess to an unspecified crime and induced to resign his post. His own request for a court martial was refused. In other words, due process was not granted. He was retired from the Army on grounds that "the retention of Lieutenant Roche in the army would involve a grave hazard to military security and the security of the State". Thus, at every turn, due process and civil and human rights were disregarded. It is time to leave that type of treatment well behind us.

The establishment of an Ombudsman for the Defence Forces in 2004 was a positive development as it provided the Defence Forces with an independent mechanism for investigating their complaints and grievances, which was long overdue. It provides a useful corrective antidote in a system that can be quite removed from normal experience. Unfortunately, the powers of the Ombudsman are not retrospective, although I believe they should be. The Ombudsman should be allowed to examine the de Róiste case. Incidentally, the Minister for Defence retains the power to request the Ombudsman to discontinue an investigation.

Again, this smacks of political interference. The Ombudsman should have full independence and in the spirit of human rights and due process permeating this Bill, the Minister of State at the Department of Defence, Deputy Kitt, might introduce an amendment to the Ombudsman (Defence Forces) Act 2004 to effect these changes that would greatly advance these desirable principles.

The catalyst for this legislation was, as the Minister of State said in his address, the European Convention on Human Rights, particularly its transposition into domestic law in 2003. It imposes more stringent requirements on the State to protect the civil and human rights of all its citizens. It is important that these principles are enshrined in defence legislation. The Minister referred the Bill to the Irish Human Rights Commission, IHRC, and was awaiting its response when the Bill was debated in the Seanad. The Minister of State received the response of the Irish Human Rights Commission today and I ask him to make it available to Deputies in its entirety rather than the cursory remarks he made on the subject.

The Bill requires gender proofing as reading it one would think the Irish Defence Forces were an exclusive bastion of masculinity. The phraseology of the Bill is archaic and the language needs to be modernised. It is important that the disciplinary procedures in the Army approximate as closely as possible to procedures relating to the administration of justice in the civil domain. I am glad the Minister consulted with the Representative Association of Commissioned Officers, RACO, and the Permanent Defence Force Other Ranks Representative Association, PDFORRA, in regard to these matters and that these organisations have given their support to the provisions of the Bill.

Has the Minister had similar consultations with the Reserve Defence Force Representative Association, RDFRA? I understand it has been seeking access to the conciliation and arbitration scheme for some time without a positive response from the Department and Minister. Is it the Minister's intention to exclude the Reserve Defence Force from the provisions of this legislation because they are volunteers? The Reserve Defence Force is now being integrated into the Permanent Defence Force in a training and operational capacity. Moreover, the Minister made an important statement in Lebanon yesterday when he proposed to recruit professionals, such as doctors and engineers, into the Reserve Defence Force and then send them on secondment to United Nations missions overseas with the regular Army for up to 12 months. It is Government policy to give members of the Reserve Defence Force the opportunity to serve with the Permanent Defence Force overseas. To what extent will the new status being granted to the Reserve Defence Force bring its members into contact with the new disciplinary provisions in this legislation and what are the implications in this respect?

I believe offences of a civilian nature should be dealt with by the courts of the land. A number of issues were raised in this regard in the Seanad and the Minister of State mentioned this in respect of section 42, which refers to manslaughter, rape and aggravated sexual assault under section 4 of the Criminal Law (Rape) (Amendment) Act 1990. While the penalties will be the same as the ordinary courts, the offences are of such a nature that a military court is not the proper setting in which to deal with them. Offences of this nature are best addressed by civilian courts rather than the courts martial system. Such prosecutions will further extend the need for greater legal resources in the Permanent Defence Force. The Minister of State might inform us of the strength of its legal section, the number of summary investigations and courts martial that occur each year and whether this Bill will result in further legal recruitment to the Defence Forces. Advocates will operate on a permanent basis.

I urge the Minister of State to seek to emulate the initiative of his colleague, the Minister for Justice, Equality and Law Reform, Deputy McDowell, not only in respect of consolidation, but in respect of the introduction of the equivalent of a whistle blowing charter. The Minister for Justice, Equality and Law Reform introduced a section of the Garda Síochána Bill 2005 that guaranteed immunity for whistle blowers in the Garda. There are considerable similarities between the Garda and the Army. Both are branches of the security forces, they are of a similar size in terms of personnel, they have strong codes of discipline and strong internal loyalties. In the interests of promoting and advancing civil and human rights, provisions recognising and protecting whistle blowers should be included in this legislation.

I welcome this Bill, warts and all. I would have preferred if it had been dealt with in a different fashion with more accessible language and I believe there are a number of areas in which the nuts and bolts of the provisions need to be teased out. I would like the Minister to consider the consolidation of Defence Acts. I will introduce a number of amendments on Committee Stage.

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