Michael McNamara (Clare, Labour) | Oireachtas source

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

This Bill arises out of the exclusion of members of An Garda Síochána and the Defence Forces from industrial relations law that applies to all other workers in the State. Gardaí and members of the Defence Forces are precluded from joining a trade union, engaging in collective bargaining and taking industrial action, while their representative associations are precluded from affiliating to the Irish Congress of Trade Unions, ICTU.

The Haddington Road agreement included a series of appendices governing pay for various individual sectors, including prison workers, firefighters, gardaí and the Defence Forces. Despite this, representatives of gardaí and members of the Defence Forces were barred from participating in the negotiations, whereas representatives of prison officers and firefighters were permitted to participate and did so. In advance of the negotiations on the successor agreement to the Croke Park agreement, the Garda representative associations met a number of Deputies from across the political spectrum, including me, to press on them the unfairness of the current position in this regard. The Defence Forces representative associations could not even do this much, however, as they feared that disciplinary proceedings could be brought, such is the legal bar even on engagement with their elected representatives.

Ireland is not unique in this regard. Similar provisions in place in France have resulted in the issuing of two recent judgments against the French rules by the European Court of Human Rights. In 2012, the European Confederation of Police, which is commonly known by the acronym EuroCOP and to which the Association of Garda Sergeants and Inspectors is affiliated, took a case to the European Committee on Social Rights alleging that Ireland was in breach of the European Social Charter. The Social Charter is a Council of Europe treaty which guarantees social and economic human rights. In his address to the Parliamentary Assembly of the Council of Europe in January this year, the President had this to say about the charter:

In the area of socio-economic rights, the adoption of the European Social Charter was a milestone in suggesting that human flourishing entails the effective enjoyment of social rights, as well as civil and political ones. I am glad to say that Ireland has been a supporter of both the original and the revised Charter, and that it has accepted the collective complaints mechanism presided over by the European Committee on Social Rights. The Irish have also backed the more recent initiatives aimed at strengthening the system of protection under the European Social Charter, including the Turin process.

It goes without saying that the Labour Party, the party I was elected to represent, the Party of European Socialists, PES, to which it is affiliated in Europe, and all of the trade unions associated with my party and the PES, view the Social Charter as one of the cornerstones of the European peace settlement following the Second World War. Social and economic rights are indivisible from civil and political rights.

Ireland also signed without reservation as to ratification a 1991 protocol amending the European Social Charter which provides for the committee of independent experts to assess from a legal standpoint the compliance of national law and practice with the obligations arising under the charter. On 2 December 2013, the European Committee on Social Rights adopted a decision that Ireland was in breach of its international obligations under the Social Charter. While the committee concluded by ten votes to one that Ireland was not in breach of Article 5 on the ground that it prohibited representative associations of An Garda Síochána from establishing trade unions, it found unanimously that there was a violation of Article 5 on the grounds that police representative associations were prohibited from joining national employee organisations such as ICTU.

It concluded unanimously that there is a violation of Article 6.2 of the Charter on grounds of restricted access of police representative associations into pay discussions such as the Haddington Road process and the Croke Park process which predated it and by six votes to five, a very narrow margin, that there was a violation of article 6.4 of the Charter on grounds of the prohibition against the right to strike for members of the police. It is not I who think police should have the right to strike. It is not Fianna Fáil. It is not for anybody else to determine: it is for the European body which states have determined should decide these matters. That body, the European Committee on Social Rights, has decided that Ireland is in breach of its obligations.

It should be pointed out that Ireland tried to defend the case on the basis of technicalities, claiming that the complaint was inadmissible, but the committee dismissed its claims. Rather than engage with the substantive merits of cases alleging a violation of the State's human rights commitments in Strasbourg, there is a marked tendency by successive Irish Governments to try to get out of the case on a technicality - the recent O'Keefe case and the case of D v. Ireland and this case. There is a further case which I will come to later which Ireland, notwithstanding its professed attachment to human rights, is fighting on a technicality.

In any event, in a resolution on the case, adopted by the Council of Europe's Committee of Ministers on 8 October 2014, the committee noted a commitment by the Irish Government to a review of the national situation in law and in practice in light of the decision. It is interesting to note that a press release, for domestic consumption, which accompanied the Minister for Justice and Equality's formal response to the Committee of Ministers referred to the committee's "non-binding ruling". This canard of a "non-binding ruling" is exclusively for domestic consumption. I do not believe the State would dare to appear before the Committee of Ministers and argue that a breach of its international legal obligations is non-binding or that it does not have to do something about it, particularly as these obligations are binding in international law upon all states that freely assume these obligations as sovereign states when they accede to and ratify a treaty, as Ireland did, and boasts in the international community as having done so.

The Bill seeks to introduce the necessary amendments to primary legislation to bring Ireland into compliance with the Social Charter, as interpreted by the European Committee on Social Rights. Section 2 provides that associations established under the Garda Síochána Act 2005 are exempted from the requirement to obtain a negotiation licence to carry on negotiations for the fixing of wages or other conditions of employment. Section 3 of the Bill amends the Garda Síochána Act 2005 to allow Garda representative bodies to associate with a national umbrella organisation of employees, such as the Irish Congress of Trade Unions.

Section 5 of the Bill amends the Industrial Relations Act 1990 to allow members of the Garda Síochána to strike and section 6 clarifies that actions by members of the Garda Síochána while on duty shall not be considered assistance to an employer who is a party to the trade dispute for the purposes of frustrating the strike or other industrial action for the purposes of section 11 of the Industrial Relations Act 1990. This, I believe, is quite important for the maintenance of public order at a picket. There are safeguards built into the Act. If the Minister was minded to put in additional safeguards I would be happy to consider those on Committee Stage.

Another issue which the Bill seeks to address is access to insolvency arrangements by the Garda Síochána. Given the failure of the Government to date to introduce an insolvency regime that anyone, other than the richest and more indebted property developers could avail of, this may seem superfluous, but hope springs eternal, especially in the Government backbenches, that something will eventually be done with regard to the insolvency regime.

Garda representative bodies have expressed concern that the wording of the breach of discipline provisions could operate so as to exclude members of An Garda Síochána. A previous Minister for Justice and Equality in 2013 said there was nothing in the code which would prevent the Garda from availing of the service but as we know Ministers for Justice and Equality change. Section 7, therefore, makes it explicit in law that there is nothing to prevent the Garda from availing of any of the procedures described in the Personal Insolvency Act 2012.

I turn to the provisions of the Billl which relate to members of the Defence Forces. Section 2 of the Bill also provides that associations established under the Defence (Amendment) Act 1990, that is, PDFORRA in the case of enlisted personnel and the Representative Association of Commissioned Officers, RACO, can carry on negotiations for the fixing of wages or other conditions of employment. Section 4 of the Bill amends the Defence (Amendment) Act 1990 to allow Defence Forces' representative bodies to join or associate with a national umbrella organisation, such as the Irish Congress of Trade Unions.

The Parliamentary Assembly of the Council of Europe of which I am one of the many Irish representatives - all the major political parties, Sinn Féin, Fianna Fáil and Fine Gael are represented as are the Independents and the Technical Group in this Dáil - recalled in its recommendation 1572 of 2002 and resolution 903 of 1988, the right to association for members of the professional staff of the armed forces and called on all member states of the Council of Europe to grant professional members of the armed forces the right to association. The explanatory memorandum called for a recognition that military personnel be considered as "citizens in uniform" and, therefore, enjoy basic social rights. The recommendation did not call for the removal of the prohibition of the right to strike which operates in many member states. Similarly, this Bill does not propose any change to the prohibition of the right to strike by members of the Defence Forces.

I understand that PDFORRA, a representative association of enlisted personnel serving in the Army, Naval Service and Air Corps has lodged a complaint to the European Committee on Social Rights, through EUROMIL to which it is affiliated. It is seeking to be permitted to join the Irish Congress of Trade Unions, to participate fully in collective bargaining and is also seeking the right to strike which is not covered by this Bill. The State, unsurprisingly, is contesting the admissibility of the case on the basis of a technicality.

This seems like an inordinate waste of taxpayers' money. Even if the State succeeds, any technical defect will be cured and a new complaint lodged. Eventually, the State, after having expended or wasted, depending on how one looks at it, considerable sums of taxpayers' money on legal fees will then have to grapple with the substantive merits of the case.

Two recent judgments of the European Court of Human Rights against France - Matelly v. France and ADEFDROMIL v. France, both handed down on 2 October 2014, support the case against the State. The court's reasoning in both cases was similar. It is important to bear in mind that the European Committee on Social Rights pays particular attention to the case law of the court and specifically stated that it seeks to avoid any divergence of approach. In the two French cases, the court emphasised that under Article 11 of the convention restrictions, even significant ones, could be imposed on the forms of action and expression of a representative association and of the military personnel who joined it, provided that such restrictions did not deprive them of the general right of association in defence of their occupational and non-pecuniary interests. That is quite important because the court stressed that the guarantees provided in Article 11 of the European Convention on Human Rights could not be hollowed out to the extent that they became meaningless. Article 11 states that:

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, or the police or of the administration of the State.

Traditionally, the second sentence of Article 11(2) is considered as a separate ground for restrictions on the exercise of the freedom of association of members of the armed forces, the police and the administration of the state. However, the court, by applying the requirement which allows for the restrictions on the exercise of these rights only when its stipulations contained in the first sentence are fulfilled, that is, that the restrictions be prescribed by law, be necessary in a democratic society in the interests of national security or public safety, be for the prevention of disorder or crime, be for the protection of health or morals or for the protection of the rights and freedoms of others, implicitly rejected its previous approach. It reversed its earlier case law and adopted a similar approach to that adopted by the European Committee on Social Rights in the AGSI case against Ireland.

It would be easily open to the State to argue that removing the prohibition on the right to strike by members of the Defence Forces could endanger national security or public security. The court always looks at the proportionality of an interference with the right, as does the European Committee on Social Rights.

It will be very difficult for the State to argue that for representative associations of the Defence Forces to be able to engage in collective bargaining in the same way as firefighters, teachers and every other worker in the State somehow impinges on national security. I do not see how that argument could be sustained. I do see how the prohibition on the right to strike could be sustained, but not that on affiliation with ICTU. How does that impinge on national security, particularly as those in the Defence Forces are bound to follow orders? How would the fact they can fully engage in collective bargaining threaten the security or viability of the State? Notwithstanding its technical arguments against this case, the State faces an uphill battle and will probably waste a lot of money and time before it grapples with the core issue. A state which professes internationally to have respect for human rights as such an important part of the international architecture should not adopt the approach of a property developer in the Four Courts whose property empire is threatened, relying solely on technicalities. It should engage with the rights that are alleged to be impugned, because that is what it agreed to do in the various conventions it signed up to.

In addition, the European Court of Human Rights, in its judgment, made no distinction between the police and the military. That will also mitigate against Ireland. Earlier this week, the Minister for Foreign Affairs and Trade, Deputy Charles Flanagan, said: "Ireland attaches the highest importance to European Court of Human Rights as the cornerstone of human rights protection in Europe." This Bill presents the Government with an opportunity to follow the case law of the court without being dragged there kicking and screaming, and to vindicate the rights of those who defend our rights.

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