Tom Kitt (Dublin South, Fianna Fail)

I thank all the Deputies who spoke for their constructive contributions and comments during the debate. I will respond as best I can to the points made. Looking back to the Order of Business this morning, I believe Deputy Rabbitte was correct to request a change in the allocation of time between the Building Control Bill and this Bill because we seem to have adequately dealt with it in the contributions made.

Deputy Timmins spoke about a review of the Defence Act. This Bill is the first phase of a two-part process to update the military disciplinary system and work on the second phase will begin later this year. That phase will provide an opportunity to review the provisions included in the Bill. The Deputy also asked about members of the Defence Forces who are under 18 and I will examine the matter in advance of Committee Stage. He proposed a five-year review of the Bill, which we will consider in conjunction with the Parliamentary Counsel.

Deputy Costello spoke about restatement, an ongoing issue that needs consideration. In this case we are amending part of the 1954 Act, which is a very complex Act. When the Bill is enacted we will prepare a restatement of the Act, which will put the amendment in context. The provisions of the Bill have been fully explained to PDFORRA and RACO, which have indicated their satisfaction with the Bill as drafted. After the second phase of the process, consolidation of the Act will be considered.

The Deputy also spoke about gender neutrality and language. The matter was raised a number of times in the Seanad, following which I have taken the advice of the office of the Parliamentary Counsel. There are several approaches that can be taken to the amending of Acts that are not gender-proofed. Rather than adopting a blanket approach, each instance is examined on its own merits. It would be difficult to avoid the use of pronouns by referring to "the person" as we are amending only part of the 1954 Act. If the words "he or she" were adopted, it would interfere with the integrity of the 1954 Act. The matter is academic as the provisions of the 1954 Act which are unaffected by the Bill will continue to use the pronoun "he" only. In any case, the Interpretation Act 2005 provides that a word importing the masculine gender shall be read as also importing the feminine gender. If the 1954 Act were to be rewritten or consolidated, full gender proofing would occur and an effort made to avoid personal pronouns where possible. The arguments in this context have been well made.

The provisions of the Bill apply to members of the Reserve while they are subject to military law. The amendment of the Ombudsman Act suggested by Deputy Costello is outside the current scope of the Bill. On the IHRC report, the Department received a draft copy only today. When the report is finalised, it will be made available as a matter of course.

Deputy Ó Snodaigh referred, inter alia, to the merits of appointing a uniformed, as opposed to civilian, military judge. The issue of whether the military judge should be uniformed or civilian was considered in detail by the military law review board and at great length during the drafting of the Bill. Existing ECHR and other relevant case law was reviewed thoroughly while regard was had to the position in other common law jurisdictions. External senior counsel were also asked to advise on the matter. The UK model of both full-time civilian judge advocates and continued involvement by non-legally trained military officers in the performance of judicial duties was not considered suitable for Ireland to follow. Practicality in Ireland suggests the appointment of a uniformed military judge for numerous reasons, including the requirement for flexibility within the system and of the incumbent, the low numerical size of the Defence Forces and the anticipated volume of judicial duties to be performed.

The judge will be required to travel around Ireland and abroad, often at short notice. Time will often be of the essence with regard to the function of the proposed military judge. Within the military, there is a substantial body of knowledge of the peculiarities and exigencies of military service and the application of the system of military discipline and justice. A uniformed military judge will ensure a rapid, smooth transition and acceptance of the new system. In the final analysis, it was felt that a uniformed military judge with statutory safeguards of his or her independence and impartiality, including security of tenure, financial security and institutional independence, would best suit the needs of the Defence Forces.

Deputy Costello spoke of serious offences, including murder and rape, being tried by court martial and asked what punishment would apply. Currently, the most serious offences, including treason, murder, genocide, manslaughter, rape and aggravated sexual assault, can only be tried by court martial if the offence is committed by a person on active service, which normally means overseas service where the ordinary courts do not have jurisdiction. Punishment available to a court martial for these most serious offences are the same as those provided for in the normal criminal justice system up to and including life imprisonment.

Deputy Costello also asked how many courts martial take place each year and whether the number is expected to rise under the new system. In recent years, there have been less than 20 courts martial per year. However, the impending changes have meant that there were none in 2006. I expect the number of courts martial under the new arrangements to increase significantly to reach or even exceed 200. The increase will be due mainly to the introduction of an absolute right of appeal to the new summary court martial procedure from a determination or punishment of a commanding officer. After an initial significant increase, the numbers coming forward are likely to settle down to a rate of approximately 10% of all summary cases. According to recent annual figures of cases for summary disposal of approximately 1,600, this should equate to an additional 160 courts martial per annum. The abolition of detention as a punishment awardable by a commanding officer and the new right to elect for trial by court martial from the outset are also likely to lead to small increases in the number of courts martial per annum.

The current strength of the legal service within the Defence Forces is nine officers and it is not expected to increase significantly. Deputy Costello asked about a whistleblower's charter, which matter has also been raised in the Seanad. Having considered such a charter, we have determined it to be outside the scope of the current Bill. I note, however, that a great deal of work is being carried out on the matter on a sectoral basis.

Deputies Gormley and Finian McGrath raised a number of cases, including the de Róiste, Kenny and Fitzpatrick cases, none of which are relevant to the proposed legislation. I will, however, convey the strong views expressed by the Deputies to the Minister. I suggest the Deputies make any representations on the cases directly to the Minister for Defence if they have not already doneso.

Deputy Gormley referred to the Lebanon. I suggest strongly to the Deputy that the questions be taken up with the Minister on his return. I agree that it is important to discuss the issue raised.

Deputy Gormley also spoke about bullying, which is an issue I pursued vigorously as Minister of State with responsibility for labour. I introduced the first task force on workplace bullying which led to the introduction of a code of practice. A great deal of work has continued to be carried out in the Department of Enterprise, Trade and Employment and is being developed by my colleague, Deputy Killeen. Dr. Eileen Doyle, who chaired our task force, carried out strong investigations of practices and behaviour in the Defence Forces and issued a report and recommendations which are being pursued. Bullying is a very important issue in any workplace, but there are issues specific to the Defence Forces which fall to be addressed. I support the continuation of work in this area. Deputy Ó Fearghaíl made thoughtful, supportive comments on the Bill for which I thank him. He has considerable knowledge in this area.

I thank Deputies for their contribution which has been most instructive and helpful. It is intended that the Bill will reflect and further enhance the non-statutory interim measures implemented to date for the summary investigation of offences and the conduct of courts martial under the Defence Act. The Bill represents a significant advance and a sensible, practical model for the operation of the Irish military disciplinary system for the years ahead. The measures provided for are proactive on human rights while facilitating the effective maintenance of discipline within the Defence Forces. The House may rest assured that any amendments proposed which are fundamentally consistent with the general spirit and objectives of the published Bill will be fairly and objectively examined.

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