Séamus Kirk (Louth, Fianna Fail)

What role did the Representative Association of Commissioned Officers, RACO, play in formulating this policy and legislation? Did RACO, through one source or another, lobby the Minister's office on the appointment of a particular individual? This could be seen as a grey area but needs to be investigated further in the hope that RACO had not lobbied the Minister on behalf of one individual.

Elements of the legislation are seriously flawed and may give rise to constitutional challenges. I hope the Minister is aware of this and will reformulate the Bill to address these issues. The Bill amends the powers of the selection committee to determine a candidate's qualification for appointment to these posts. It also provides for the appointment of a Circuit Court judge to perform the functions of the military judge when the military judge is not available.

Previous Fianna Fáil-led Governments were committed to the protection and successful delivery of a strong and efficient Defence Forces. The Defence (Amendment) Act 2007, introduced by the then Minister for Defence, Deputy Willie O'Dea, made several changes to the military justice system. It revised disciplinary provisions of the previous Acts, implemented a new system of military justice and applied civil and legal principles to aspects of the military legal process. The 2007 Act provides that the Director of Military Prosecutions must be an officer of the Defence Forces and a lawyer of not less than ten years standing. The position of director is independent of the chain of command with powers similar to those of the Director of Public Prosecutions. In a similar vein, the 2007 Act states the military judge must be an officer and a lawyer of not less than ten years standing. The military judge is also independent of the chain of command with powers similar to those of a judge of the ordinary civilian criminal courts.

When introducing the Act, the then Minister for Defence, Deputy O'Dea, stated the new military justice system would bring military procedures into line with civilian legal developments in Ireland and internationally and would ensure the procedures fully comply with the European Court of Human Rights. Key provisions included the establishment of a new summary court martial, the restructuring of general and limited courts martial, the appointment of a courts martial administrator, the establishment of an independent prosecuting authority, the Director of Military Prosecutions and the creation of an independent military judicial office, the military judge.

The changes of the 2007 Act were described by the legal commentator, Mr. James Mulcahy in the Irish Law Times "as a radical overhaul of the existing structures and procedures governing summary investigations and courts-martial". Along with the Defence Act 2007, the White Paper on Defence 2000 has provided the main policy framework for the Defence Forces over the past ten years. Under it the Defence Forces have experienced a period of reform which, according to the Department of Defence, has seen them downsized and transformed into a more effective force, which costs less. It is maintained it has delivered significant savings to the Exchequer and that this modernisation programme is unique to the public sector as it has been funded by cuts and closures within the organisation itself.

According to the Department of Defence, defence expenditure as a percentage of overall gross Government expenditure has decreased from 3.31% in 2000 to 1.59% in 2010. Over the decade, defence expenditure as a percentage of gross national product decreased from 0.85% to 0.7%, while expenditure as a percentage of gross domestic product decreased from 0.72% to 0.58% in the same period. In 2011, gross expenditure, excluding capital carryover, is estimated at €933 million.

Further to this, the National Recovery Plan 2011-2014 sets out a requirement for the Department of Defence to deliver an additional €109 million in savings by 2014. These savings comprise both payroll savings and non-pay savings. Employment in the Defence Forces has decreased from 18,603 in 1981 to 10,647 at the end of January 2011. The national recovery plan provides for further reductions in the numbers in the Defence Forces, which will reduce the strength of the Permanent Defence Force to 9,600.

There have been several developments in other countries which have a link to military law. In the United Kingdom, the Armed Forces Act 1996 strengthened the independence of courts martial. This was due in part to several challenges before the European Court of Human Rights. The Armed Forces Discipline Act 2000 amended the military discipline system so that a judicial authority can determine whether a suspect or accused should be held in custody. It also gives the accused an earlier opportunity to elect to be tried by court martial and it establishes an appeals procedure summary cases, verdicts for which there was no jury.

It is important to determine the differences between civilian and military judges and highlight the specific nature of the military judge. The form of military justice is dictated by the unique position of the military and the greater demands placed on soldiers than those demanded of any other category of person in the State. This is seen as needed to protect structure and discipline, necessary elements in military structure and function.

In addition, there are several offences under military law - such as being absent without leave - that could not be deemed offences within a civilian environment. It is clear that what is needed is a military judge who has military experience. Individuals might be experts in civil and criminal law cases but I am of the opinion that hands-on experience is needed for the protection and honour of our Defence Forces.

The armed forces of Ireland, known as the Defence Forces or Óglaigh na hÉireann, encompass the Army, the Naval Service, the Air Corps and the Reserve Defence Force. We are proud of the work they do, not just in Ireland but also in conjunction with the UN overseas. There are currently 10,647 brave men and women who serve our country as members of the Defence Forces. There needs to be a bottom-up rather than a top-down approach in respect of military judges. More respect is shown for a military judge who has represented his country than would be shown for certain individuals who have no expertise in military law.

Ireland has always been perceived as punching above its weight in respect of its Defence Forces. Long may that continue. At present, we are contributing 560 Defence Forces personnel to 11 missions throughout the world. Relative to its size and resources, Ireland is proportionately a very large contributor to peacekeeping within the international community.

I reiterate what I said earlier, namely, that my party does not support some elements of the Bill. Specifically, we are opposed to the fact that it is being introduced to benefit one person. This is a constitutional matter and what is being done is wrong and immoral. I urge the Minister and the Government to seek solutions to this problem in order that Óglaigh na hÉireann will be protected and will continue to be a strong, unified organisation responsible for protecting our country. I hope that the Government will listen to the Opposition in this regard.

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