Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

I find it strange that the Minister for Defence, Deputy O'Dea, is not present in the House. I know he is representing the State abroad but we were aware of this before the Bill was scheduled and it is strange not to have him here at the beginning, or at very least the end, of Second Stage. I made clear my objections to the short length of Second Stage earlier.

This Bill is welcome, long overdue and similar to some of the other changes the Minister has introduced in response to problems within the Defence Forces. One of the key motivations for new Defence Forces legislation came from the report of the external advisory committee on the nature and extent of harassment, bullying, discrimination and sexual harassment in the Defence Forces. This became known as the Doyle report, which was commissioned by the Minister for Defence on foot of the revelations of an earlier report by Dr. Tom Clonan into sexual harassment in the Defence Forces which was published in November 2000. This is why we welcome the changes suggested here and the changes that have come into force following other legislation.

Dr. Clonan's report and later Dr. Doyle's report found that while women make up only 4% of all soldiers, approximately one third of these women soldiers had suffered sexual harassment by colleagues or superior officers. Significantly, the Doyle report found that despite the complaints procedure, many women in the Defence Forces were too afraid to report harassment or rape by their colleagues or superiors. They believed, and some found out first-hand, that the internal complaints system could not result in the justice and redress they deserved.

Ultimately, the Government accepted the report's recommendations in full and the Minister acknowledged that under the next phase of modernisation, it would be necessary to deal with bullying and harassment which, he stated, had "no place in the Defence Forces". A "new culture and values" were also needed, he said. PDFORRA also accepted the report's conclusions and supported the introduction of the Ombudsman (Defence Forces) Act. I welcomed these developments at the time.

Another study should be carried out to report on the impact, if any, the enactment of the Ombudsman (Defence Forces) Act has had on bullying and harassment levels and the number of women in the Defence Forces. If harassment and bullying were to be addressed, many more women would join the military.

The Bill creates further positive modernisation in the form of much improved provisions for disciplinary proceedings. From a human rights perspective, good work has been done in drafting the Bill to ensure compliance and I understand the Human Rights Commission is largely satisfied with the legislation.

Nevertheless, as with all legislation, the Bill would benefit from some minor improvements. For instance, the restriction in section 34 providing that persons from a civilian background may not be appointed military judges is unnecessary. Persons from a civilian background could bring different views to bear and could learn and prosecute military law to the same effect as they prosecute conveyancing law, criminal law and so forth. It is a strange restriction. While it is possible that few practising barristers would seek appointment as military judges because military law is a different field, the restriction is unnecessary. The appointment of independent persons or civilians as military judges to decide on military as opposed to civil matters would enhance oversight and the independence of proceedings.

It is important that disciplinary mechanisms and procedures are fair and respect the due process rights of those who are subject to them. The Bill moves in this direction. Nevertheless, military courts and procedures have resulted in abuses and miscarriages of justice in the past, with grave and ongoing consequences for those affected. For example, Dónal de Róiste has maintained his innocence for 37 years since being retired, as the decision was then described, from the Defence Forces, allegedly in the interests of the service. In 2002, the then Minister for Defence, Deputy Michael Smith, decided to request a special report from the Judge Advocate General on the 1969 decision to retire Dónal de Róiste. His decision amounted to an acknowledgement that the case warranted further investigation. In 2005, the High Court ruled that the conduct of the Judge Advocate General's inquiry denied Mr. de Róiste fair procedures. In light of this ruling, it is clear the case still warrants further investigation.

The Judge Advocate General's refusal to meet retired Army Commandant Patrick Walshe, a significant witness to events leading to Mr. de Róiste's dismissal, further supports the need for an investigation into the case. Witnesses such as Mr. Walshe should be afforded a formal hearing in the context of a review of the case. I call on the Minister to establish an independent inquiry under the Commissions of Investigation Act 2004 to grant Mr. de Róiste fair procedures for the first time.

Dónal de Róiste was retired 33 years before he was allowed to access the files and documents relating to his case. In the interests of justice, an independent inquiry should be established to review the case and either confirm the decision on the basis of objective evidence or clear Mr. de Róiste. In the long and drawn out aftermath of the case since 1969, it has emerged that the Government's advice to the President at the time was based on grounds of security. The wider issue in this regard is the grave potential for abuse of powers linked to the use of security grounds, which arises from the virtual absence of transparency and accountability involved. Will the Minister confirm that the Bill will ensure greater transparency and accountability when disciplinary proceedings are undertaken against a person or persons on purported grounds of security? The legislation must ensure that courts martial do not result in cover-ups or prevent individuals from accessing relevant information for long periods, as occurred in the case of Mr. de Róiste. Will he detail the improvements the Bill introduces in this specific area?

I will also highlight the case of Mr. Michael Donnelly, a former military policeman from my constituency. In the early 1970s, Mr. Donnelly was wrongly accused and discharged from the Defence Forces without proper recourse to means of defending his good name and status. He was prevented from securing gainful employment for years afterwards as a result of the slur cast on his name and being blacklisted by the State. He was forced to go to the High Court and Supreme Court to have his good name reinstated to some degree, although he has not yet received an apology and the authorities have still not admitted they were wrong in the case. They engaged in a cover-up, did not follow proper procedure and involved the Garda Síochána in the case. I urge the Minister to re-examine the case and give Mr. Donnelly the apology and respect he deserves for having his career in the Defence Forces cut short due to the failures of the system and the military authorities.

I invite the Minister to use the opportunity provided by the Bill to introduce provisions on Committee Stage allowing for retrospective investigations by the Ombudsman, including into complaints centred on the fairness of disciplinary proceedings undertaken in the past. I broadly welcome the Bill and hope it will be tightened up by addressing the points I have raised. I hope proper procedures will be in place in future and the cases cited by me and other Deputies will be re-examined. It is fair and proper that this small number of cases be examined.

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