Brendan Howlin (Wexford, Labour) | Oireachtas source

My amendment No. 7 is in this grouping. As the previous speaker said, these proposals concern the membership of the very important external oversight body. The recommendation to establish such a body to oversee the operations of the Defence Forces really is the kernel of the Bill. The Tánaiste agreed, both at committee and again in our discussions on my first Report Stage amendment, on the need for a structural separation between Defence Forces management and the Department of Defence. Pending that, Defence Forces Headquarters, as I have said previously, is the military branch of the Department, headed by the Secretary General. That is the current legal position. The headquarters of the Defence Forces is the military branch of the Civil Service Department and is headed by the Secretary General.

In this circumstance, and pending the reform we have discussed and the Tánaiste has promised, it surely is a nonsense to suggest the Secretary General could be part of an external oversight body. Following the Tánaiste's reference to the Public Service Management Act on Committee Stage, I had a look at that legislation. Taking the Defence Forces Acts and reading them in conjunction with the Public Service Management Act, it is clear we will have a situation, if this proposal goes through without amendment, whereby different parts of the applicable legislation will give rise to a certain scenario. That scenario is as follows. The raising and training of the Defence Forces will be a function of the Government. All executive and administrative powers in regard to the Defence Forces will be exercisable by the Minister. Defence Forces Headquarters, headed by the Chief of Staff, will be a military branch within the Department of Defence. It will be the responsibility of the Secretary General to manage his or her Department, including its military branch, which is an integral part, in law, of the Defence Forces Headquarters.

It is now proposed that the Secretary General will sit on the body that claims to exercise independent external oversight of the management of human resources of the Defence Forces, including recruitment and training, which are functions of the Government. What is proposed is a bit like the mystery of the holy trinity or perhaps the holy duality. The Secretary General will be a duality that will include one person who is external to himself or herself, with the first of his or her personalities independently overseeing the performance of his or her second personality as Secretary General of the Department. It is a nonsense. We cannot have people overseeing themselves or being part of a body that is intended to oversee themselves.

Principle one of the principles of natural justice is nemo judex in causa sua, or no one can be a judge in his or her own case. No one can independently judge a matter in which he or she has an interest. It is as plain as a pikestaff. I do not know what arguments have gone on to arrive at this position but it is, in my judgment, quite improper. In any other circumstances, we would not even be having a debate on whether a Secretary General should be part of a body with oversight of his or her own Department. In the case of the Department of Defence, military headquarters is an integral part of the Department in law. That is the legal position as of now. The Tánaiste can tell me he will change it in some future legislation but let us deal with the legislation we have in front of us.

I make this point in the strongest way I can. It is a very important principle. Even when the structure is changed as the Tánaiste has committed to do, the oversight body must be a completely independent body. The Tánaiste has it in legislation that no member of the Civil Service or elected person can be a member of that body. That is right and proper. However, there is an exception for the Secretary General of the Department. That is wrong. I hope the Tánaiste will not just stick to the view he has presented to us. We had this discussion on Committee Stage. Nobody was in any way convinced that he put forward a coherent argument for why the Secretary General of the Department of Defence should be part of the external oversight body that is envisaged to be independent and to be able, without let or hindrance, to give views. The only justification he presented was that the Secretary General would be knowledgeable in certain matters and would be a conduit. However, that is not the role of a member of the oversight body. That is the role of somebody who can give evidence to the body and be called in for discussions with its members.

I ask that this would be thought out again without prejudice to whoever holds the role in the future. I do not think it is the correct way to proceed with an independent oversight body

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