Brian O'Shea (Waterford, Labour)

The Fine Gael spokesperson on defence, Deputy Jimmy Deenihan, is unable to be here today as his mother, Mary Ellen Deenihan, has passed away having reached the great age of 90 years. I pass on my deepest sympathies and those of the Labour Party to the Deenihan family. I trust that Deputy Deenihan and the other family members will be granted all the strength they need in the difficult days and weeks ahead.

I offer the sincere sympathies of the Labour Party to the families of Captain Derek Furniss and Cadet David Jevens on the terrible tragedy on Monday evening of last week when both these Air Corps pilots lost their lives in an air accident in Connemara. I also offer my deepest sympathies to the Chief of Staff of the Defence Forces, Major General Dermot Earley, to the General Officer Commanding the Air Corps, Brigadier General Ralph James and to all members of the Air Corps on the very tragic loss of Captain Derek Furniss and Cadet David Jevens. Go ndéana Dia trocaire ar a n-anamacha dílse. I thank the Minister for Defence for arranging for both Deputy Deenihan and me to attend the memorial service in Casement Aerodrome.

Bille gairid is ea an Bille Cosanta (Forálacha Ilghnéitheacha) 2009 agus níor foilsíodh meabhruchán mínithe leis. Foilsíodh an Bille an 7 Meán Fómhair seo caite, beagnach mí sular chaith saoránaigh na h-Éireann a nguthanna sa dara reifreann ar Chonradh Liospóin. Bhí an foilsiú seo tábhachtach ó thaobh oscailteacht agus trédhearcachta de. Molaim an Aire faoi sin. Bhí eagla ar dhaoine áirithe faoin arm Eorpach agus faoi coinscríobh. Ba cheart go mbeadh an t-eolas go léir faoi chúrsaí cosanta agus neodrachta ar fail i gconaí. Ba cheart a rá um an dtaca seo, áfach, nár chuir chonradh Liospóin an Ghníomhaireacht Eorpach um Chosaint ar bun. Cuireadh an ghníomhaireacht ar bun i 2004 faoi Uachtarántacht na hÉireann. Tá an tír seo mar bhall den ghníomhaireacht ó shin. Níl iachall an aon stáit den Aontas Eorpach bheith ina bhall den ghníomhaireacht, dár ndóigh. Beidh Partí an Lucht Oibre ag tacú leis an mBille tábhachtach seo.

The Labour Party will support the Defence (Miscellaneous Provisions) Bill 2009. I compliment the Minister for Defence for publishing this Bill on 7 September 2009, well in advance of the vote on the Lisbon treaty. This was proper openness and transparency and ensured that the text of the Bill was public before votes were cast in the referendum on October 2. There were fears among the electorate regarding the creation of a European army and even of conscription during the course of the campaign on the first Lisbon referendum, and some of this lasted right up to the recent referendum.

It bears re-stating that Ireland secured a legal guarantee on security and defence issues in June 2009. This is legally binding. At a later date, this document will be attached as a protocol to the European treaties. It is a guarantee that the Lisbon treaty will not affect or prejudice this country's policy of military neutrality. There is no provision under the Lisbon treaty for the creation of a European army or conscription to any military entity. Under the guarantee, Ireland can continue to exercise its rights with regard to matters like defence, security, expenditure and other defence capabilities. If a member state is a victim of armed aggression on its territory, under the legal guarantee Ireland will determine what aid, if any, will be provided to that state. The EU's Common Security and Defence Policy gives it an operational capacity to use on missions outside the Union, such as peacekeeping, conflict prevention and strengthening international security in accordance with the United Nations principles. At present, the EU may undertake humanitarian activities, rescue tasks and peacekeeping in the Common Security and Defence Policy area. Task forces may also get involved in crisis management, including peacemaking. The list is being expanded under the Lisbon treaty to include disarmament operations, military advice and assistance tasks and post-conflict stabilisation. The Labour Party supports this position as it is fully in line with our peacekeeping tradition.

The Lisbon treaty changes nothing in regard to our traditional policy of military neutrality. It requires the approval of all member states before any crisis management mission can be embarked on. Ireland retains the right to decide on its participation in any mission that is subject to the triple lock arrangements. There must be a UN mandate and the mission must be approved by the Government and the Dáil. Furthermore, our Constitution requires that there must be a referendum seeking the prior consent of the people before Ireland can participate in a common UN defence. The Lisbon treaty states that if a member state is a victim of armed aggression on its territory, the other member states shall provide aid by all means in their power in accordance with Article 51 of the United Nations charter. However, it is made clear that this obligation shall not prejudice the specific character of the security and defence policies of certain member states. In effect, this means Ireland will not be bound by any mutual defence commitment.

The Defence (Miscellaneous Provisions) Bill 2009 gives effect to the provisions of the national declaration on the Lisbon treaty in relation to the European Defence Agency and permanent structured co-operation. As no law on the provisions of the national declaration relating to the agency and permanent structured co-operation has been implemented to date, Ireland's participation will require the approval of the Dáil in accordance with Irish law. The Bill before the House addresses this matter. In essence, the legislation confirms that Ireland's participation in certain European Defence Agency projects and programmes and in permanent structured co-operation will be subject to the prior approval of the Government and the Dáil. The Government must be satisfied that such participation would enhance the capability of UN-mandated missions engaged in peacekeeping, conflict prevention or the strengthening of International security in accordance with the principles specified in the charter of the United Nations. In effect, this extends the triple lock mechanism to the agency and to permanent structured co-operation. Ireland has an obligation to contribute to the budget of the European Defence Agency. Other than that, there are no specific obligations on Ireland. National decisions on participation in the agency's various projects will be taken on a case-by-case basis.

Section 2 of the Defence (Miscellaneous Provisions) Bill 2009 sets out the arrangements for the approval of Ireland's participation in projects and programmes under Articles 20 and 21 of the Council's joint action 2004/551/CRSP of 12 July 2004, which established the European Defence Agency. Section 3 deals with the arrangements for approving Ireland's participation in permanent structured co-operation. This is provided for in Article 42.6 of the Lisbon treaty. The short Bill before the House does not have a published explanatory memorandum. Ireland joined the European Defence Agency when it was established during the Irish Presidency in 2004. The agency was set up to support the member states and the Council in their efforts to improve European defence capabilities in the field of crisis management and to sustain European security and defence policy as it stands and develops in the future. The joint investment programme on forced protection has a three-year budget of €55 million. I understand that Ireland joined the programme in 2007 and has contributed €700,000 over the past three years. The Labour Party welcomes Ireland's key interest in the programme, which is in the development of technologies and capabilities to protect troops from threats such as snipers, booby traps and improvised explosive devices. We also welcome the fact that body armour sensors and counter explosive devices are key elements of the programme. We are pleased that Ireland is participating in the European Defence Agency's code of contact for defence procurement and code of best practice in the supply chain, which have been developed to ensure transparency in procurement and security supply of defence equipment. We are glad the agency has developed a European bulletin board to act as a single portal for defence contract opportunities. In these days of financial crisis, anything that enables wider advertising of Ireland's Defence Force contracts to achieve better value for money for Ireland's expenditure on defensive equipment is to be welcomed.

It is important to emphasise that the European Defence Agency is not a new body that has been created under the Lisbon treaty. The agency supports EU countries in buying necessary equipment for their defence forces more effectively and in sharing technology research. Its main purpose is to make sure that the humanitarian work done by the EU is made easier and that soldiers involved in EU missions are better prepared. In light of the changing nature of peacekeeping, every army that takes part in peacekeeping missions, including the Irish Army, must upgrade its military equipment at all times. The agency will help Ireland to get its military supplies cheaper, while appreciating that we have the same equipment as other EU countries. It should be emphasised that no article in the Lisbon treaty obliges any state to spend money on arms - the treaty cannot force any state to do so. While the Lisbon treaty officially recognises the agency, it is not a new institution. It is a matter for each EU member state to decide whether to participate in it.

The two distinct mechanisms established under this Bill are designed to encourage military capacity-building. The key concept underpinning the Bill is neutrality. It is important that we reflect on the concept of Irish neutrality. From the point of view of Irish law, it has neither operational parameters nor any necessary legal status. The Hague Convention of 1907 formulated an exhaustive definition of the concept of neutrality. Ireland was not a signatory to the 1907 Hague Peace Conference, which is understood to have established the basic tenets of neutrality. The conference agreed that the substance of the principle of neutrality could be captured in two short articles, one stating the territory of neutral powers is inviolable and the second stating that belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral power. However, Ireland has, since the Second World War, departed from this strict version of neutrality. Prior to joining Partnership for Peace, the Department of Foreign Affairs indicated that Irish neutrality required only that Ireland not actively participate in belligerent alliances. It is stated that Irish military neutrality is a policy to which this Government is deeply attached. It is a policy espoused by successive Governments and its core defining characteristic is non-membership of military alliances.

Ireland cannot enter belligerent military alliances but the Irish concept of neutrality was sufficiently flexible to accommodate the provision of logistical support to one or more belligerents.

Neutrality is not mentioned in the Constitution, which addresses Ireland's foreign affairs powers only indirectly. Article 29 states:

1. Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality.

2. Ireland affirms its adherence to the principle of the pacific settlement of international disputes by international arbitration or judicial determination.

3. Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.

It is interesting that nothing in Article 29 obliges Ireland to be neutral or prohibits the Government from departing from this policy.

The report of the All-Party Oireachtas Committee on the Constitution noted:

The Review Group considers that, in constitutional terms, the Articles cited above [in this case, Article 29.3], besides committing the State to peaceful resolution of conflict, establish a proper balance between Dáil control over the State's involvement in armed conflict and freedom for the Government to conduct external relations in the national interest. Neutrality in Ireland has always been a policy as distinct from a fundamental law or principle and the Review Group sees no adequate reason to propose a change in this position.

Ultimately all deployments by the Defences Forces must have government and Oireachtas approval and must operate under a UN mandate. The position is that although the Constitution grants the Executive almost complete power in terms of prior foreign policy, the convention of the triple lock amounts to a voluntary alienation of that power of military deployment to the UN Security Council.

Interestingly, the triple lock mechanism has no formal standing in legislation and is perpetuated only as a convention of the Executive. There has been extensive controversy in regard to the triple lock mechanism as the requirement for UN approval has checked Irish participation in humanitarian missions with EU approval but not UN approval. Thus, because of the Chinese veto at the UN Security Council in 2003, Ireland was precluded from participating in subsequent EU action aimed at keeping warring ethnic factions apart in Macedonia.

I will outline the legal background against which we must deal with this Bill. There is no legal or constitutional restriction on, or definition of, neutrality. As neutrality has no legal status it would be difficult to attempt to restrain a particular exercise of military power by the Government. With the exception of declaring war, or subject to the normative expressions of belief in the benefit of specific conflict resolution, the Government may exercise its discretion as it deems appropriate. It would be extremely difficult to curtail the foreign policy prerogatives of the Government by judicial review. The policy of neutrality is bespoke to a certain extent and may be crafted by the Government as it sees fit. State neutrality has, since Ireland's membership of the United Nations, been governed by the policy of the triple lock. This policy essentially precludes the physical deployment of Irish personnel in the absence of a UN mandate.

I draw the Minister's attention to the Government's declaration to clarify the meaning of the Lisbon treaty:

The Treaty of Lisbon does not affect or prejudice Ireland's traditional policy of military neutrality.

It will be for Member States - including Ireland, acting in a spirit of solidarity and without prejudice to its traditional policy of military neutrality - to determine the nature of aid or assistance to be provided to a Member State which is the object of a terrorist attack or the victim of armed aggression on its territory.

Will the Minister confirm that a national response on a case-by-case basis is sufficiently robust when considered alongside the strongly worded mutual defence clause? Some misgivings in this context are reported.

In regard to permanent structured co-operation, the Minister for Defence instanced the fact that heavy-lift helicopters in Chad show the value of this mechanism. The case was such that Ireland could not afford to maintain itself but potentially could procure the capability in concert with other small European powers under the permanent security co-operation mechanism.

Irish neutrality, defined as non-participation in military alliances, sits squarely with participation in European Defence Agency programmes and projects. In operational terms, the European Defence Agency remit extends only to issues such as procurement, research and development and the encouragement of capacity building for European defence industries.

Under permanent security co-operation, the State is allowed to engage in procurement and capacity building exercises designed to facilitate the Permanent Defence Force's participation in high-intensity missions. Does the Bill allow for military capability building for missions not definitively or absolutely yoked to UN mandates? Does the Minister hold that there is a presumptive obligation on the Government only to authorise such deployments when that engagement will assist the State's ability to contribute to UN-mandated missions? Is the case the same for the European Defence Agency?

I look forward to the Minister's response. The Labour Party will support the Bill.

See this speech in context