Simon Coveney (Cork South Central, Fine Gael) | Oireachtas source

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

I am pleased to present this Bill to the House. As Deputies may be aware, the Bill was published earlier this year but it was not possible to progress it before the dissolution of the previous Dáil. Although it is relatively short, the Bill addresses some important matters.

Before dealing with the detailed provisions, I will outline briefly the background to the Bill. From time to time, there is a requirement to amend the Defence Act 1954, the primary Act relating to defence matters, to address ongoing issues which arise in respect of the Defence Forces. The purpose of this Bill is to make a number of miscellaneous amendments to the Defence Act to update certain provisions.

The principal issue dealt with by this legislation relates to overseas operations as well as the provisions in the Defence Act for the enlistment of minors. In addition, the opportunity has been taken to make a number of other minor amendments to the Defence Act.

In advance of outlining the provisions of the various sections, I refer to section 4 of the Bill. This section amends the Defence Act to provide, in certain circumstances, for the re-enlistment of former members to the Permanent Defence Force to fill specialist appointments. However, as Deputies will be aware, this particular amendment to the Defence Act was accelerated and enacted pursuant to the Emergency Measures in the Public Interest (Covid-19) Act 2020. Accordingly, I will move an amendment on Committee Stage to delete section 4 from the Bill. Although re-enlistment is no longer being dealt with by this legislation, I hope to have an opportunity during my closing statement to update Deputies regarding the scheme for the re-enlistment of formerly enlisted persons, which is an important part of our current recruitment efforts.

On the main provisions of the Bill, section 1 provides definitions for key terms used in the Bill. Section 2, insertion of section 17A in the Principal Act, inserts a new section into the Defence Act 1954 to provide for the delegation by the Minister for Defence of a limited degree of control and authority, referred to as operational control in the Bill, over a Defence Forces contingent deployed as part of an international force to the force commander of that force.

The purpose of the amendment is to underpin and provide legal certainty in respect of existing practice. Where a contingent of the Defence Forces is deployed overseas, a limited degree of control and authority over that Irish contingent is delegated to the force commander of that force. This is done by means of a written direction to the Irish contingent commander from the Minister for Defence. This has been the case since the first deployment of the Defence Forces on peacekeeping operations decades ago. This limited delegation of authority is necessary to allow for the efficient operation of a mission with which the Irish contingent is serving.

The amendment provides legal certainty in respect of the long-standing practice of delegating such authority to the force commander. It will not alter, in any shape or form, the current command structure within the Defence Forces and full command of the Irish contingent will remain with the Irish Defence Forces command.

Specifically, the amendment provides that a delegation of operational control by the Minister for Defence to the force commander will be in writing and may be subject to such exemptions and limitations as the Minister may determine, having had regard to such requirements as are necessary for the efficient operation of the mission concerned.

I will explain briefly the exemptions and limitations that would typically be included in a delegation of operational control. First, a delegation of operational control relates to a particular mission. The principal exception and limitation included in a delegation is that the Irish units and sub-units of the Irish contingent assigned to the mission are at all times under the command of an Irish officer. In this regard, the amendment specifically provides that a delegation of operational control does not include the authority to assign separate employment of any component of the Irish contingent that has been assigned to the international force. This means that an officer of the Irish Defence Forces always remains in overall control of the deployed units and personnel of our Defence Forces. In addition, matters relating to discipline are not included in a delegation.

This amendment will allow the military police component of an international force, under the authority of a force commander, to arrest and detain a member of the Irish Defence Forces serving with the international force in question, in appropriate and relevant circumstances.

This, however, is subject to the member in question being handed over to Irish military authorities as soon as is practicable. Any subsequent disciplinary issues that may arise may only be dealt with by the Irish military authorities.

The other principal exceptions and limitations in a delegation of operational control relate to the safety and welfare of the members of the Irish contingent. As previously advised, the amendment reflects the existing long-standing practice on overseas operations. Its sole purpose is to ensure that there is an explicit legal basis for the long-standing practice on delegation of operational control, OPCON, which, I am advised, represents a lacuna in the legislation.

It is not unusual that, on foot of case law, issues arise whereby the enabling authority of legislation, as had been understood, is found to be deficient and requires amendment. That is the case in this instance and this section rectifies that. It has been developed following extensive consultation with the Office of the Attorney General and the Defence Forces so as to arrive at a reasonable balance of providing the limited essential control to be provided to commanders of international United Nations forces, consistent with the Constitution and the Defence Acts. I assure the House that the delegation in no way undermines overall command of the contingent by the Irish authorities, as provided for in the Constitution and the Defence Acts.

The purpose of sections 3 and 7, which relate to the non-enlistment of minors, is to make a number of amendments to the Defence Acts to remove the references to the enlistment of minors. Historically, minors were allowed to enlist in the Defence Forces but this has not been the practice for a number of years. In this regard, under regulations made pursuant to the Defence Act 1954, persons under the age of 18 are not allowed to enlist in the Permanent Defence Force or the Reserve Defence Force. However, notwithstanding these provisions, the Defence Act 1954 still contains references to the enlistment of minors. These amendments remove any such references. The amendments give full effect, in the Defence Act, to the optional protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.

Sections 5 and 6 make some minor amendments to the Defence Act and provide for the repeal of section 318, which is redundant. Section 5 provides for a minor amendment of section 178E of the Act, which deals with appeals to summary courts-martial. The amendment clarifies the timeframe in which a summary court martial may consider an application for an extension of time to submit an appeal to the court martial. An appeal or an application for extension of time to submit an appeal must be submitted within a defined period. The current arrangements are rigid and can cause difficulties if a military judge has insufficient time to consider an application for an extension of the period to bring forward an appeal. This amendment will allow a more flexible timeframe during which a summary court martial may consider any such application.

Section 6 makes some minor amendments to the Defence Act to provide for the restatement in modern form of section 74, relating to the discharge of reservists elected to public office and the repeal of the now-redundant section 318. Section 318 provided that service with the Defence Forces during the emergency period of the 1940s might, subject to certain conditions as might be determined by the Incorporated Law Society of Ireland, be reckonable for apprenticeship purposes in the case of a person who served with the Defence Forces during this period and who had entered or subsequently entered into an apprenticeship with a practising solicitor. Obviously, the provision is now obsolete and needs to be repealed.

Section 8 is a standard provision dealing with the Short Title to the Bill in addition to arrangements for the commencement of the legislation.

The general scheme of this Bill was previously referred to the then Joint Committee on Foreign Affairs and Trade, and Defence for consideration as to whether there was a requirement for pre-legislative scrutiny. Having considered the heads of the Bill, the joint committee decided not to proceed with pre-legislative scrutiny. That is understandable because what we are doing legislatively is so straightforward. While this is mainly a Bill that is designed to tidy up existing legislation, the main provisions concern important matters that do need to be addressed. I am pleased, therefore, to submit this legislation for the consideration of the House. I commend it to the House and look forward to colleagues' comments.

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