Micheál Martin (Cork South Central, Fianna Fail) | Oireachtas source

I move:

That Dáil Éireann:

bearing in mind the serious allegations of discrimination, bullying, harassment, sexual harassment and sexual misconduct in the Defence Forces;

noting the decision of Government, in January 2022, to establish an Independent Review Group (IRG) to examine such issues and provide recommendations and guidance to the Minister for Defence on measures and strategies required to underpin a workplace based on dignity, equality, mutual respect, and duty of care for every member of the Defence Forces;

noting that, having completed the IRG review, it is the opinion of the Group, that the establishment of a statutory fact-finding process to identify systemic failures, if any, in the complaints processes in the Defence Forces, represents the only comprehensive method of inquiry to resolve outstanding issues of fundamental public importance;

mindful that the Minister for Defence has consulted with the Attorney General and the observations and comments from key stakeholders have been considered in the development of the terms of reference and the type of inquiry;

noting that:

— "Abuse" means discrimination, bullying, harassment, physical torture, physical assault, psychological harm, sexual harassment and any form of sexual misconduct (including sexual assault, aggravated sexual assault and rape);

— "Complaints of Abuse" means complaints made by:

— serving or former members of the Defence Forces to the Defence Forces/Minister for Defence;

— current or former civilian employees to the Defence Forces/Minister for Defence; and

— current or former Civil Servants to the Defence Forces/Minister for Defence,

in respect of Abuse suffered by the complainant in the course of his or her training, work and/or career with the Defence Forces, or in the case of Civil Servants and civilian employees, in respect of their interactions with the Defence Forces;

— "Complaints of Hazardous Chemicals" means complaints made by:

— serving or former members of the Defence Forces to the Defence Forces/Minister for Defence;

— current or former civilian employees to the Defence Forces/Minister for Defence; and

— current or former Civil Servants to the Defence Forces/Minister for Defence,

in respect of the use of hazardous chemicals within Air Corps' headquarters at Casement Aerodrome, Baldonnel; and

— "Complaints Processes" includes, but is not limited to, processes covered by:

A. the Defence Forces Administrative Instruction A7 Chapter 1;

B. section 114 of the Defence Act 1954 (Redress of Wrongs procedure);

C. section 169 of the Defence Act 1954 (civil offences punishable by military law);

D. the Ombudsman (Defence Forces) Act 2004;

E. the Protected Disclosures Act 2014;

F. where applicable, the Protected Disclosures (Amendment) Act 2022; and

G. in so far as (vii) below is concerned, the Safety, Health and Welfare at Work Act 2005 (as amended) or where applicable, the Safety, Health and Welfare At Work Act 1989;

resolves that it is expedient a tribunal be established under the Tribunals of Inquiry (Evidence) Acts 1921 to 2011, to be chaired by Ms. Justice Ann Power, to inquire into the following definite matters of urgent public importance to:

(i) establish whether the Complaints Processes in the Defence Forces in relation to Complaints of Abuse were appropriate and fit for purpose;

(ii) establish whether the Complaints Processes in the Defence Forces in relation to Complaints of Abuse were followed;

(iii) consider and report on the response and outcome of Complaints of Abuse, and to identify any systemic failures in the Complaints Processes in the Defence Forces;

(iv) investigate whether Complaints of Abuse were actively deterred or whether there was a culture that discouraged the making of the Complaints of Abuse;

(v) investigate whether there were:

(a) retaliation or reprisals against those who made a Complaint of Abuse;

(b) intimidation consequent on the making of a Complaint of Abuse; or

(c) the imposition of any penalty or burden upon a person who made a Complaint of Abuse;

(vi) investigate the nature and performance of the statutory role of the Minister for Defence/Department of Defence in the systems and procedures for dealing with Complaints of Abuse; and

(vii) investigate the response to Complaints of Hazardous Chemicals and to consider the adequacy of the Complaints Processes in light of the responses to same;

further resolves that:

(I) the Tribunal of Inquiry:

(a) is requested to report on its investigation into the matters set out in this resolution and to make any appropriate recommendations arising out of this investigation;

(b) shall consider Complaints of Abuse and Complaints of Hazardous Chemicals advanced by serving and former members of the Defence Forces, to include members of the Army Nursing Service, Chaplains to the Defence Forces, civilian employees and Civil Servants working within the Defence Forces and Civil Servants working within the Department of Defence;

(c) shall have due regard to any criminal or military prosecution or civil proceedings, currently in train or pending, that may be affected by evidence adduced at the Tribunal of Inquiry;

(d) in the context of its investigation into Terms of Reference (i) to (v), may permit evidence of Abuse and the consequences of Abuse to be led, but the Tribunal is precluded from investigating into, or making findings of fact upon any matters that would, if established in a court of law, be criminal in nature;

(e) will require appropriate assurances from the Minister for Defence and the Chief of Staff of the Defence Forces that any serving member of the Defence Forces will not be penalised by reason of their disclosure of any Complaint, Complaint of Abuse, or Complaint of Hazardous Chemicals at the Tribunal;

(f) may request, in the exercise of its jurisdiction, information pertaining to matters relating to a confidentiality agreement; and in making such request, it is a matter for the Tribunal to determine what (if any) obligations may be imposed in relation to such disclosure;

(g) shall have due regard to the independence of any statutory body and/or statutory Office Holders in the performance of their functions;

(h) may engage with the interim supports put in place to date by the Minister for Defence, including Raiseaconcern – Confidential Contact Person (CCP), INSPIRE Counselling Service and the Dublin Rape Crisis Centre, as well as the already established Defence Forces Personnel Support Services (PSS), Defence Forces' psychologist and psychiatrist and medical supports within the Defence Forces Medical Branch;

(i) is charged with investigating the matters provided for in its Terms of Reference from 1st January, 1983 to the date of its establishment;

(j) may examine Complaints of Abuse whether made in respect of matters occurring within the jurisdiction, while serving overseas or on board a State ship or aircraft; and

(k) shall endeavour to complete its work no later than three years from the date of its establishment; and in order to achieve this objective, the Tribunal shall be entitled to exercise a discretion in relation to the extent of the evidence that it hears and will be entitled to consider that a sample of evidence on particular issues is sufficient for it to make conclusions and report upon its findings; and the Minister for Defence may at any time request the Sole Member of the Tribunal of Inquiry to provide updates on the progress of the Tribunal;

(II) the Tribunal shall report to the Taoiseach and make such findings and recommendations as it sees fit in relation to these matters as expeditiously as possible;

(III) all costs incurred by reason of the failure of individuals to co-operate fully and expeditiously with the Tribunal should, as far as it is consistent with the interests of justice, be borne by those individuals;

(IV) any records made, received or held in the course of the Tribunal of Inquiry shall be subject to the terms of the National Archives Act 1986 and Part 15 of the Civil Law (Miscellaneous Provisions) Act 2011; and

(V) the Taoiseach shall, upon receipt of any Report from the Tribunal, either apply to the High Court for directions regarding publication of the Report or arrange to have it laid before both Houses of the Oireachtas.

The Government last week approved a motion to establish a tribunal of inquiry. I now move the motion for resolution by Dáil Éireann. This House will be aware that the report of the independent review group, established to examine dignity and equality issues in the Defence Forces, was published following Government approval on 28 March 2023. The contents in the report were shocking and stark. The group’s analysis and assessment of the current culture in the Defence Forces shows: deep, long-standing issues around unacceptable behaviours, including sexual misconduct, sexual harassment, bullying and harassment; a complaints-handling system that is not fit for purpose; and legislative frameworks, policies, systems and procedures that are out of date and out of step with modern human resources practice. The report was a very important and useful initiative. It represented an essential scoping exercise to establish the extent to which the current legislative frameworks, policies, procedures and practices and the workplace culture were not aligned with the fundamental principles of dignity, equality, duty of care and mutual respect.

The Government agreed to progress the recommendations in the report. This included approval in principle for the establishment of a judge-led statutory inquiry to investigate whether there have been serious systemic failures in the complaints system in the Defence Forces in relation to interpersonal issues, including, but not limited to, sexual misconduct. I consulted extensively in respect of the establishment of the inquiry and in respect of terms of reference for the tribunal. Draft terms of reference were initially prepared last May and shared with a wide variety of groups and individuals.

I want to take a moment to pay tribute to Women of Honour. At a time when it was not easy to do so, they stood up and told the country what happened to them. The clarity and power of their account had a catalytic effect, setting in motion a journey of accountability that has brought us to this point. I also want to pay tribute to Men and Women of Honour who also shared their experiences with us, and PDFORRA, RACO, and all the other groups and individuals with whom the Department and I interacted in this process. The personal courage, dignity and resilience shown in the journey to this point by those who came forward and shared their often horrific personal experiences has made a deep and lasting impression on me.

Reflecting on the range of views expressed, I determined that an open, independent and transparent appraisal of the issues raised by the various groups and the independent review group is the best way to examine those issues. On that basis, last July I obtained the approval of the Government to establish a judge-led tribunal of inquiry, pursuant to the provisions of the Tribunals of Inquiry (Evidence) Act 1921 (as amended). The truth is that a variety of views were expressed at the time as to the best format. The Women of Honour argued strongly for a public inquiry. Others did also. Some would prefer a different format. Some articulated they might be reluctant to share their experiences in public. The chairperson will have that capacity to facilitate some in camerahearings for people. In the end we took the view that an open and public inquiry was the optimum way forward.

Since then I have continued to engage with the stakeholder groups and individuals involved, including up to eight meetings with Women of Honour, and working closely with the Attorney General. On foot of the feedback we have received the terms of reference have been amended and expanded.

I reassure the House that I carefully considered all views and observations received in the consultation period. Some of the decisions on the terms of reference influenced by this process include: that the statutory inquiry will be by way of a tribunal of inquiry; physical torture, physical assault and psychological harm will be included within the definition of “abuse”; the Protected Disclosures Acts 2014 and 2022 will be included within the definition of "complaints processes"; the investigation of whether complaints were actively deterred; whether there was a culture that discouraged the making of complaints; provision for safeguards for serving members who give evidence to the tribunal; provision for the waiver of non-disclosure agreements; that the tribunal may permit evidence of abuse and the consequences of abuse to be heard; and provision for investigation of the response to complaints regarding the use of hazardous chemicals within Air Corps’ headquarters at Baldonnel and to consider the adequacy of the complaints processes in light of the responses to same.

I have also clarified - I reiterate this today in order to remove any doubt - a point Deputy Cronin raised with me last evening. Those who did not make a formal complaint at any stage in their careers while working within the Defence Forces or subsequently, or who did not come forward to engage with the independent review group process but have experiences similar to those that are now the subject matter of this tribunal, will be able to come forward and be heard by the tribunal.

The terms of reference now represent a thorough and fair basis for a full examination of the issues raised and the problems identified. In framing the terms of reference, I have endeavoured to properly capture the feedback I received and make a judgment on what I believe to be the best, fairest, most thorough and most effective way forward. That is what these terms of reference represent. Given the gravity of the issues before it and the fact there are many people out there who want to contribute it is important for everyone involved to now establish the tribunal and enable it to commence its work without further delay.

When the independent review group's report was published I told this House that I believed it was a watershed moment and had to be a catalyst for change. As Tánaiste and Minister for Defence, I have proceeded on that basis and in the time since publication I have driven forward a number of changes. At my direction, all complaints of alleged sexual offences by members of the Defence Forces are passed directly to An Garda Síochána for investigation. Last July, the Government agreed on legislation which will ensure that An Garda Síochána will have sole jurisdiction within the State to investigate alleged sexual offences committed by persons subject to military law. Any subsequent cases will be dealt with by the civil courts. The relevant Bill is progressing through this House and is currently on the Report Stage. I established an external oversight body, which will be a critical element in driving the necessary culture change throughout the Defence Forces and in increasing transparency and accountability. We approved its terms of reference last July and I recently sought and received Government approval for the drafting of the defence (amendment) Bill 2023, which will include provisions in relation to the establishment of the external oversight body on a statutory basis.

I also look forward to bringing forward legislation to establish an independent external complaints system for members of the Defence Forces. With the assistance of an external legal firm, extensive work is under way to ensure that Defence Forces policies and practices are compatible with the provisions of the relevant equality legislation. An associated but very relevant and important element of this work is in the area of maternity and protected leave policies.

The independent review group's report also called for the establishment of a complaints process for civilian employees and civil servants, whereby they can have access to redress in respect of complaints concerning grievances or dignity at work issues, where the matters concerned relate to their interactions with members of the Defence Forces. In this regard, I recently appointed Mr. Kevin Duffy as the independent chair of a new working group to develop a complaints process for civilian employees and civil servants who work with the Defence Forces. Taken together, I hope that this list of areas where progress is being made will reassure Members, and, more importantly, those women and men serving the country in our Defence Forces, of how seriously the Government takes the issues identified by Women of Honour and the various other groups and the conclusions of the independent review process.

I return to the immediate issue at hand, which is the establishment of this tribunal. Last week, the Government approved the appointment of Ms Justice Ann Power to chair the tribunal, and I thank her for agreeing to do so. Ms Justice Power brings a wealth of experience to the role having served as a Judge of the Court of Appeal since November 2019. She is also a judge of the World Bank Administrative Tribunal. Funding has been provided for this year and arrangements made for its future funding. My hope is that it is timely, efficient and effective in the hugely important work it will do.

The Defence Forces are a source of great pride throughout our country and represent one of the key institutions of our nation. The independent review group's report set out the path to their modernisation and was clear on what needed to be done to ensure a positive transformation into an organisation fully reflective of contemporary Irish society and fully respectful of all those who serve. This tribunal will play a critical role in this transformation and in my view it is important that we move forward with it. We wish Ms Justice Power and her team the very best in getting under way as early as possible this year. I commend the motion to the House.

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