Alan Shatter (Dublin South, Fine Gael)

I move: "That the Bill be now read a Second Time".

I am pleased to present the Bill to the House. This is the first Bill I will take in the House in my capacity as Minister for Defence. Anyone seeking to join the Defence Forces chooses a challenging and demanding career but one that is also fulfilling and rewarding. Each member takes a solemn oath to be faithful to Ireland and loyal to the Constitution marking them out from every other profession. In addition, each member undertakes to obey all lawful orders issued by a superior officer and to submit to the unique code of discipline which is an essential ingredient of military life. The men and women of our Defence Forces have from time to time been asked to undertake dangerous and difficult missions on our behalf, both within the State and while engaged in peace support or humanitarian missions abroad.

I do not need to remind Members of the high regard in which our military personnel are held both at home and overseas. Our military personnel are widely admired for their outstanding commitment and professionalism. Ireland currently contributes 560 Defence Forces personnel to 11 different missions throughout the world. Also, approximately 150 additional personnel who have been on standby for rapid deployment as our contribution to the Nordic battlegroup were stood down at the end of June. The Defence Forces are now planning and preparing for Ireland's participation in the Austrian-German battlegroup, which will be on stand-by for the second six months of 2012.

In November 2010, the UN requested Ireland and Finland to contribute a mechanised infantry battalion amounting to 500 personnel to the United Nations Interim Force in Lebanon, UNIFIL. The Defence Forces deployed an advance group of the 104th Infantry Battalion to southern Lebanon on 30 May 2011 and the main contingent deployed on 23 and 27 June 2011. The Irish battalion, comprising 437 personnel, is based in Sector West of UNIFIL's area of operations, centred on the major towns of Tibnine and Bint Jubyal and the 'Blue Line', which separates Lebanon and Israel. The Irish contingent will be joined by the Finnish armed forces early next year to form a joint Irish-Finnish contingent.

A contribution of 560 personnel to overseas missions is a very significant contribution in the context of the reduced resources available and reflects the Government's continued commitment to international peacekeeping and to the ongoing development of the Defence Forces. Over many years the Defence Forces have continued to evolve through an ongoing process of modernisation, organisational restructuring, enhanced training and with significant investment in new equipment. The Department of Defence and the Defence Forces have spent the past decade progressively improving the quality of services provided to client organisations at home to the security of the State and enhancing our peacekeeping capacity overseas.

Prior to the current economic difficulties, the modernisation agenda and the associated development strategy outlined in the White Paper on Defence, which was published in 2000, delivered significant efficiencies within the defence organisation. Since 2000, new capabilities have been developed throughout the organisation, even though civil and military staff levels have been reduced significantly. The Permanent Defence Force has reduced in size from 15,201 members in 1981 to 9,595 members on 30 June 2011, the latest date for which figures are available.

The ability of the Defence Forces to continue to maintain the high standards demanded of them requires complete clarity with regard to the exercise of command authority whether at home or abroad. In order to maintain standards and rise to the challenges of a military environment and all of the associated tasks, it is important to uphold a chain of command that is clear and unambiguous at all times. Indeed, this is critical to the maintenance of unit cohesion and operational effectiveness.

The importance of upholding an independent, effective and efficient system of military discipline cannot be underestimated. Discipline is the essence of a military force. Commanding officers are responsible for discipline within their units. They exercise authority primarily through leadership and by inspiring the confidence, loyalty and trust of all those they command. This is underpinned by the legal authority given to commanders in respect of soldiers under their control. In that regard, it goes without saying that the Defence Forces must retain the power to enforce discipline through their own unique code of discipline within the military justice system. This disciplinary code must support operational effectiveness. It must be efficient and effective and, above all else, it must be fair to the individual. The system of military discipline is provided for under Part V of the Defence Act 1954. Following the enactment by the Oireachtas of the Defence (Amendment) Act 2007, military disciplinary procedures were brought up to date in order to reflect developments and innovations both in Ireland and internationally and ensure that members of the Defence Forces have an effective and modern disciplinary and judicial system.

The 2007 Act created a system that reflects the civil legal process to the extent possible in a military environment. The Act radically overhauled the procedures for the investigation, summary disposal or trial by court martial of offences against military law committed by persons subject to military law. In summary, the 2007 Act provided for the following: the summary disposal of charges against military law; the establishment and jurisdiction of the summary courts martial; the appointment of a courts martial administrator, a director of military prosecutions and a military judge; the constitution of courts martial and membership of a court martial; matters of procedure before courts martial, including the award and execution of punishments and the suspension of sentences; and the establishment of a courts martial rules committee and the making of court martial rules.

The first case to be tried under the new military justice system was held on 9 September 2008 in Cathal Brugha Barracks, Rathmines, Dublin. Since then, 39 cases have been heard before the military judge. There are currently 22 cases awaiting dates for court martial. There have been a total of three appeals to the Courts Martial Appeal Court.

The new military justice centre in McKee Barracks, Dublin, was officially opened on 6 July 2009. This facility boasts a modern courtroom with built-in digital audio recording system, waiting area, consultation rooms and related administrative and office facilities.

The Bill is technical in nature and seeks to address a number of issues which have been identified subsequent to the enactment of the Defence (Amendment) Act 2007 which need to be addressed to ensure the smooth and continued operation of the military judicial system. Like any new system introduced, there is always a period of "bedding down" as an organisation adapts to new processes and procedures.

The first of these issues concerns the provisions in the Act of 2007 relating to the posts of director of military prosecutions and military judge. These provide that to qualify for appointment to the positions, a person must be an officer of the Permanent Defence Force who is a practising barrister or a practising solicitor of not less than ten years standing. This qualification criteria means that there are limited qualified personnel in the Permanent Defence Force for the posts. It is essential that those eligible for these important posts have the necessary experience to discharge the duties of the position. However, the current eligibility criteria means there is a very limited pool of officers who are eligible at any one time to compete for the posts. Indeed, given the small pool of legal officers that is likely to continue to be an issue into the future.

In order to illustrate clearly this point and lest there should be any misunderstanding of the serious situation in which the Defence Forces find themselves with regard to filling these posts from existing internal structures, as it stands today there are currently eight legal officers in the legal service of the Defence Forces. Only two of these legal officers have ten years service and are eligible to compete for the vacant post of military judge, one of whom is already the serving director of military prosecutions, and the other is due to retire in September.

Last week in the Seanad it was suggested that in order to counteract the shortfall of eligible candidates I should simply lower my sights and reduce the eligibility criteria from ten years service to eight years service. To suggest that as an alternative is to apply a very simple solution without having any appreciation or regard to the complexity and nature of the tasks required to be performed by an individual as either a military judge or director of military prosecutions. Both of these posts may involve the post holder making decisions leading to the termination of an individual's career in the Defence Forces, their incarceration or both. It is essential that anyone exercising the functions of either the director of military prosecutions or those of a military judge must be in a position to weigh such onerous considerations appropriately and that only comes with experience. Ten years service is the minimum service requirement in respect of appointment as Director of Public Prosecutions and in respect of judges of the District or Circuit Courts. It was also the basis upon which the Defence (Amendment) Act 2007 was drafted and enacted by the Oireachtas.

Furthermore, were one to consider a reduction to eight years service the impact of that as of today's date would be to pull a further two candidates into the net for consideration giving a total of four candidates, bearing in mind one is due to retire in September 2011, so technically there would only be three candidates eligible for such appointment. The three candidates would be the only candidates technically eligible for appointment to two posts. Therefore, there is a need to widen the pool and ensure there is an adequate number of people to choose from.

In the context of the continued modernisation of the disciplinary and judicial system of the Defence Forces it is essential that competition exists for any appointment to either the post of director of military prosecutions or as a military judge. The competition must be real. One of the key elements of the Bill we are considering today seeks to ensure that this will be the case.

The second issue relates to the post of military judge. Given the scale of the military justice system, one military judge is deemed sufficient to undertake the case load. However, concerns have been raised that if an officer appointed as a military judge had a previous involvement in a case, or is ill or absent or otherwise unable to carry out his or her functions, this may give rise to a need for the availability of an alternative judge. For example, given the small cadre of legal officers, there is a significant possibility that a judge could have knowledge of persons who come before him or her. Such a scenario is not currently provided for, unfortunately, under the Defence Acts, and the Bill before us seeks to address the issue.

The final issue being addressed in the Bill relates to the fact that there are a number of personnel within the Defence Forces who are qualified barristers or solicitors and who use these qualifications as part of their day-to-day duties, but who do not work within the Defence Forces legal service structures. While the Defence Forces are introducing more clarity in the job specifications for such posts, which will make clear whether being a barrister or solicitor is a requirement for a particular job, the fact remains that some individuals have been undertaking such work over many years and some clarity is required as to whether this service meets the service requirements for appointment to the post of Director of Military Prosecutions or as a military judge.

Last week in the Seanad, it was put to me that there was a back-story to the introduction of this legislation and there was some suggestion that a particular individual was being facilitated by it. The situation is very simple. For the sake of clarity and lest there be any misunderstanding, I will re-iterate the position as outlined by me last week in the Seanad. It is not usual to go into details of this nature about an individual's circumstances, and I regret the necessity to do so as I believe it is particularly unfair to the person concerned. However, in the context of the issues raised in the Seanad last week, it is important for me to outline to the House the facts pertaining to the filling of the military judge post last year, when my predecessor Tony Killeen was the Minister for Defence.

When I came into office, there was a problem in this area of which both Mr. Killeen and Deputy Ó Cuív, who was briefly Minister for Defence, were aware. The problem was simple. A selection committee, as provided for under the 2007 Act, comprising of the Judge Advocate General, the Chief of Staff and a High Court judge nominated by the President of the High Court, who chaired the selection committee, properly selected an individual to fill the position of military judge. Following the selection of the individual and prior to his appointment as military judge, an issue arose, as a result of some other intervention, with regard to whether he fulfilled the legal eligibility criteria. When the selection committee was reconvened last September, I am advised it was unable to resolve the issue. It was not that the individual was determined to be ineligible; rather, the committee could not resolve the question of whether he was eligible because of the manner in which the current legislation is phrased.

The committee found that the person it had selected was qualified and suitable in all relevant respects to be appointed as a military judge, including the fact that he had been a qualified barrister for at least ten years. The issue the committee felt it could not determine conclusively was whether the post the person had previously held had had as a requirement and prerequisite that the person be a qualified barrister or solicitor. The committee was unable to resolve the issue because of the obscure wording in the defence legislation, particularly the Defence (Amendment) Act 2007. The matter has rested since September and, as a result, a further problem has now arisen in that the court martial system is in a state of paralysis. As I already mentioned, the number of cases currently waiting to be heard before court martial is 22. If I had simply ordered a new competition to be run it would not have solved the issue at hand as the doubt about the eligibility of the individual in the first instance would still remain. Accordingly, I determined that we would need to redefine eligibility and that it was urgent to introduce legislation to the House to address the issue. This Bill seeks to address comprehensively a problem that, frankly, the former Government chose to ignore.

My concern in introducing this legislation was not to address the position of any individual but to establish coherent legislation in respect of which there could be no confusion about eligibility criteria, and to go further by extending eligibility to a broader pool of people. I did not believe it was appropriate that such important positions should be confined to such a small number of people, as is currently the case. I did not wish simply to address the circumstances of one individual.

The Bill I have produced is not designed to hand this post to any particular individual. In order to fill the post of military judge, a new competition will be required following its enactment. I have no doubt this legislation is in the public interest and in the interests of both the Defence Forces and the individuals who are awaiting the determination of their cases by the military tribunal.

In order to address the aforementioned issues, the Defence (Amendment) Bill 2011 provides for amendment to the Defence Acts 1954-2007 to expand the potential candidature for appointment to the posts of military judge and Director of Military Prosecutions to persons other than members of the Defence Forces, and for an amendment to the powers of the selection committee to determine a candidate's qualification for appointment to these posts. With regard to the issue of an alternative judge, it also provides for the appointment of a Circuit Court judge to perform the functions of the military judge where the military judge is not available for whatever reason.

I will now turn to the specific provisions of the Bill. Section 1 outlines the definitions for the purposes of the Bill. Sections 3 and 4 provide that the committee established under section 184D of the Defence Act 1954 for the purposes of identifying candidates and informing the Minister of their suitability for appointment to the post of Director of Military Prosecutions may determine a candidate's qualification for the post. In addition, the existing legislative provisions mean that there is an extremely limited candidature from within which the post of Director of Military Prosecutions can be filled. In this context, sections 3 and 4 also provide for an expansion of the potential candidature for appointment to the post of Director of Military Prosecutions to persons other than officers of the Permanent Defence Force.

Sections 5 and 6 provide that the committee established under section 184K of the Defence Act 1954 for the purposes of identifying candidates and informing the Government of the suitability of those candidates for appointment to judicial office may determine a candidate's qualification for the post of military judge. As with the post of director of military prosecutions, the existing legislative provisions mean that there is an extremely limited candidature from within which a person can be appointed as a military judge. I have already detailed in full the extent to which it is limited. In this regard, sections 5 and 6 also provide for an expansion of the potential candidature for appointment as a military judge to persons other than officers of the Permanent Defence Force.

Section 7 provides that the Minister for Defence, having consulted the Minster for Justice and Equality, may request the President of the Circuit Court to temporarily designate a Circuit Court judge to perform the functions of a military judge under certain circumstances. This would include circumstances in which no person has been appointed as military judge; a military judge appointed under the principal Act is ill, absent or otherwise unable to carry out his or her functions; or a military judge cannot properly deal with a matter before him or her. The current position is that if the military judge is absent for whatever reason, the military justice system simply cannot not function and grinds to a halt. It is essential that the system is capable of functioning at all times and by providing for circumstances in which a temporarily designated Circuit Court judge can perform the functions of a military judge, I am seeking to ensure this is the case.

Sections 2, 8, 9 and 10 provide for amendments to section 2 of the Defence Act 1954, the Courts of Justice Act 1947, section 240 of the Defence Act 1954 and section 240B of the Defence Act 1954, respectively, consequent to the provisions of section 7. Section 11 provides for the Courts-Martial Appeals Act 1983 to be amended to provide that a Circuit Court judge temporarily designated under section 8 of this Bill to carry out the functions of a military judge under the Defence Acts and any instruments made under that Act may also perform the functions of a military judge under the Courts-Martial Appeals Act 1983 and any instruments made under that Act. This new section was introduced by way of amendment on Committee Stage in the Seanad last week. Section 12 provides for the Short Title, collective citation, construction and commencement of the Bill. Essentially, the provisions of the Bill extend eligibility to barristers and solicitors of ten years' standing for the two specific appointments mentioned, as well as addressing the difficulties that could arise in determining whether an individual applicant for either post is eligible to be appointed to such a post. I am very pleased to submit this legislation for the consideration of the House. I firmly believe the changes to the Defence Acts 1954-2007 are both necessary and desirable to ensure the military law justice system operates in a smooth, efficient and expeditious manner and will continue to contribute significantly to the maintenance of discipline within the Defence Forces.

It would be damaging to the Defence Forces if this legislation were not rapidly enacted to facilitate the operation of the military justice system and unfair to the 22 individuals who await issues to be addressed by military courts. It is unfortunate that legislation of this nature was not introduced in autumn 2010 when the nature of the difficulty that had arisen with the criteria in the legislation became clear. I hope the legislation will have the support of the House.

I also hope there will be a more careful and considered debate about this legislation than the one that occurred in the Seanad. I am concerned that the reputation of an entirely innocent individual, who found himself in difficulties through no fault of his own due to the obscure provisions contained in 2007 Act, was traduced and his personal circumstances unnecessarily aired in public. I hope this will not be repeated in this House which is neither in the public interest nor that of the Defence Forces.

I look forward with anticipation to hearing the views and contributions of Deputies in their deliberations and reflections on the Bill. I commend the Bill to the House.

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