Wednesday, 13 July 2011
Defence (Amendment) Bill 2011 [Seanad]: Second Stage
I move: "That the Bill be now read a Second Time".
I am pleased to present the Bill to the House. This is the first Bill I will take in the House in my capacity as Minister for Defence. Anyone seeking to join the Defence Forces chooses a challenging and demanding career but one that is also fulfilling and rewarding. Each member takes a solemn oath to be faithful to Ireland and loyal to the Constitution marking them out from every other profession. In addition, each member undertakes to obey all lawful orders issued by a superior officer and to submit to the unique code of discipline which is an essential ingredient of military life. The men and women of our Defence Forces have from time to time been asked to undertake dangerous and difficult missions on our behalf, both within the State and while engaged in peace support or humanitarian missions abroad.
I do not need to remind Members of the high regard in which our military personnel are held both at home and overseas. Our military personnel are widely admired for their outstanding commitment and professionalism. Ireland currently contributes 560 Defence Forces personnel to 11 different missions throughout the world. Also, approximately 150 additional personnel who have been on standby for rapid deployment as our contribution to the Nordic battlegroup were stood down at the end of June. The Defence Forces are now planning and preparing for Ireland's participation in the Austrian-German battlegroup, which will be on stand-by for the second six months of 2012.
In November 2010, the UN requested Ireland and Finland to contribute a mechanised infantry battalion amounting to 500 personnel to the United Nations Interim Force in Lebanon, UNIFIL. The Defence Forces deployed an advance group of the 104th Infantry Battalion to southern Lebanon on 30 May 2011 and the main contingent deployed on 23 and 27 June 2011. The Irish battalion, comprising 437 personnel, is based in Sector West of UNIFIL's area of operations, centred on the major towns of Tibnine and Bint Jubyal and the 'Blue Line', which separates Lebanon and Israel. The Irish contingent will be joined by the Finnish armed forces early next year to form a joint Irish-Finnish contingent.
A contribution of 560 personnel to overseas missions is a very significant contribution in the context of the reduced resources available and reflects the Government's continued commitment to international peacekeeping and to the ongoing development of the Defence Forces. Over many years the Defence Forces have continued to evolve through an ongoing process of modernisation, organisational restructuring, enhanced training and with significant investment in new equipment. The Department of Defence and the Defence Forces have spent the past decade progressively improving the quality of services provided to client organisations at home to the security of the State and enhancing our peacekeeping capacity overseas.
Prior to the current economic difficulties, the modernisation agenda and the associated development strategy outlined in the White Paper on Defence, which was published in 2000, delivered significant efficiencies within the defence organisation. Since 2000, new capabilities have been developed throughout the organisation, even though civil and military staff levels have been reduced significantly. The Permanent Defence Force has reduced in size from 15,201 members in 1981 to 9,595 members on 30 June 2011, the latest date for which figures are available.
The ability of the Defence Forces to continue to maintain the high standards demanded of them requires complete clarity with regard to the exercise of command authority whether at home or abroad. In order to maintain standards and rise to the challenges of a military environment and all of the associated tasks, it is important to uphold a chain of command that is clear and unambiguous at all times. Indeed, this is critical to the maintenance of unit cohesion and operational effectiveness.
The importance of upholding an independent, effective and efficient system of military discipline cannot be underestimated. Discipline is the essence of a military force. Commanding officers are responsible for discipline within their units. They exercise authority primarily through leadership and by inspiring the confidence, loyalty and trust of all those they command. This is underpinned by the legal authority given to commanders in respect of soldiers under their control. In that regard, it goes without saying that the Defence Forces must retain the power to enforce discipline through their own unique code of discipline within the military justice system. This disciplinary code must support operational effectiveness. It must be efficient and effective and, above all else, it must be fair to the individual. The system of military discipline is provided for under Part V of the Defence Act 1954. Following the enactment by the Oireachtas of the Defence (Amendment) Act 2007, military disciplinary procedures were brought up to date in order to reflect developments and innovations both in Ireland and internationally and ensure that members of the Defence Forces have an effective and modern disciplinary and judicial system.
The 2007 Act created a system that reflects the civil legal process to the extent possible in a military environment. The Act radically overhauled the procedures for the investigation, summary disposal or trial by court martial of offences against military law committed by persons subject to military law. In summary, the 2007 Act provided for the following: the summary disposal of charges against military law; the establishment and jurisdiction of the summary courts martial; the appointment of a courts martial administrator, a director of military prosecutions and a military judge; the constitution of courts martial and membership of a court martial; matters of procedure before courts martial, including the award and execution of punishments and the suspension of sentences; and the establishment of a courts martial rules committee and the making of court martial rules.
The first case to be tried under the new military justice system was held on 9 September 2008 in Cathal Brugha Barracks, Rathmines, Dublin. Since then, 39 cases have been heard before the military judge. There are currently 22 cases awaiting dates for court martial. There have been a total of three appeals to the Courts Martial Appeal Court.
The new military justice centre in McKee Barracks, Dublin, was officially opened on 6 July 2009. This facility boasts a modern courtroom with built-in digital audio recording system, waiting area, consultation rooms and related administrative and office facilities.
The Bill is technical in nature and seeks to address a number of issues which have been identified subsequent to the enactment of the Defence (Amendment) Act 2007 which need to be addressed to ensure the smooth and continued operation of the military judicial system. Like any new system introduced, there is always a period of "bedding down" as an organisation adapts to new processes and procedures.
The first of these issues concerns the provisions in the Act of 2007 relating to the posts of director of military prosecutions and military judge. These provide that to qualify for appointment to the positions, a person must be an officer of the Permanent Defence Force who is a practising barrister or a practising solicitor of not less than ten years standing. This qualification criteria means that there are limited qualified personnel in the Permanent Defence Force for the posts. It is essential that those eligible for these important posts have the necessary experience to discharge the duties of the position. However, the current eligibility criteria means there is a very limited pool of officers who are eligible at any one time to compete for the posts. Indeed, given the small pool of legal officers that is likely to continue to be an issue into the future.
In order to illustrate clearly this point and lest there should be any misunderstanding of the serious situation in which the Defence Forces find themselves with regard to filling these posts from existing internal structures, as it stands today there are currently eight legal officers in the legal service of the Defence Forces. Only two of these legal officers have ten years service and are eligible to compete for the vacant post of military judge, one of whom is already the serving director of military prosecutions, and the other is due to retire in September.
Last week in the Seanad it was suggested that in order to counteract the shortfall of eligible candidates I should simply lower my sights and reduce the eligibility criteria from ten years service to eight years service. To suggest that as an alternative is to apply a very simple solution without having any appreciation or regard to the complexity and nature of the tasks required to be performed by an individual as either a military judge or director of military prosecutions. Both of these posts may involve the post holder making decisions leading to the termination of an individual's career in the Defence Forces, their incarceration or both. It is essential that anyone exercising the functions of either the director of military prosecutions or those of a military judge must be in a position to weigh such onerous considerations appropriately and that only comes with experience. Ten years service is the minimum service requirement in respect of appointment as Director of Public Prosecutions and in respect of judges of the District or Circuit Courts. It was also the basis upon which the Defence (Amendment) Act 2007 was drafted and enacted by the Oireachtas.
Furthermore, were one to consider a reduction to eight years service the impact of that as of today's date would be to pull a further two candidates into the net for consideration giving a total of four candidates, bearing in mind one is due to retire in September 2011, so technically there would only be three candidates eligible for such appointment. The three candidates would be the only candidates technically eligible for appointment to two posts. Therefore, there is a need to widen the pool and ensure there is an adequate number of people to choose from.
In the context of the continued modernisation of the disciplinary and judicial system of the Defence Forces it is essential that competition exists for any appointment to either the post of director of military prosecutions or as a military judge. The competition must be real. One of the key elements of the Bill we are considering today seeks to ensure that this will be the case.
The second issue relates to the post of military judge. Given the scale of the military justice system, one military judge is deemed sufficient to undertake the case load. However, concerns have been raised that if an officer appointed as a military judge had a previous involvement in a case, or is ill or absent or otherwise unable to carry out his or her functions, this may give rise to a need for the availability of an alternative judge. For example, given the small cadre of legal officers, there is a significant possibility that a judge could have knowledge of persons who come before him or her. Such a scenario is not currently provided for, unfortunately, under the Defence Acts, and the Bill before us seeks to address the issue.
The final issue being addressed in the Bill relates to the fact that there are a number of personnel within the Defence Forces who are qualified barristers or solicitors and who use these qualifications as part of their day-to-day duties, but who do not work within the Defence Forces legal service structures. While the Defence Forces are introducing more clarity in the job specifications for such posts, which will make clear whether being a barrister or solicitor is a requirement for a particular job, the fact remains that some individuals have been undertaking such work over many years and some clarity is required as to whether this service meets the service requirements for appointment to the post of Director of Military Prosecutions or as a military judge.
Last week in the Seanad, it was put to me that there was a back-story to the introduction of this legislation and there was some suggestion that a particular individual was being facilitated by it. The situation is very simple. For the sake of clarity and lest there be any misunderstanding, I will re-iterate the position as outlined by me last week in the Seanad. It is not usual to go into details of this nature about an individual's circumstances, and I regret the necessity to do so as I believe it is particularly unfair to the person concerned. However, in the context of the issues raised in the Seanad last week, it is important for me to outline to the House the facts pertaining to the filling of the military judge post last year, when my predecessor Tony Killeen was the Minister for Defence.
When I came into office, there was a problem in this area of which both Mr. Killeen and Deputy Ó Cuív, who was briefly Minister for Defence, were aware. The problem was simple. A selection committee, as provided for under the 2007 Act, comprising of the Judge Advocate General, the Chief of Staff and a High Court judge nominated by the President of the High Court, who chaired the selection committee, properly selected an individual to fill the position of military judge. Following the selection of the individual and prior to his appointment as military judge, an issue arose, as a result of some other intervention, with regard to whether he fulfilled the legal eligibility criteria. When the selection committee was reconvened last September, I am advised it was unable to resolve the issue. It was not that the individual was determined to be ineligible; rather, the committee could not resolve the question of whether he was eligible because of the manner in which the current legislation is phrased.
The committee found that the person it had selected was qualified and suitable in all relevant respects to be appointed as a military judge, including the fact that he had been a qualified barrister for at least ten years. The issue the committee felt it could not determine conclusively was whether the post the person had previously held had had as a requirement and prerequisite that the person be a qualified barrister or solicitor. The committee was unable to resolve the issue because of the obscure wording in the defence legislation, particularly the Defence (Amendment) Act 2007. The matter has rested since September and, as a result, a further problem has now arisen in that the court martial system is in a state of paralysis. As I already mentioned, the number of cases currently waiting to be heard before court martial is 22. If I had simply ordered a new competition to be run it would not have solved the issue at hand as the doubt about the eligibility of the individual in the first instance would still remain. Accordingly, I determined that we would need to redefine eligibility and that it was urgent to introduce legislation to the House to address the issue. This Bill seeks to address comprehensively a problem that, frankly, the former Government chose to ignore.
My concern in introducing this legislation was not to address the position of any individual but to establish coherent legislation in respect of which there could be no confusion about eligibility criteria, and to go further by extending eligibility to a broader pool of people. I did not believe it was appropriate that such important positions should be confined to such a small number of people, as is currently the case. I did not wish simply to address the circumstances of one individual.
The Bill I have produced is not designed to hand this post to any particular individual. In order to fill the post of military judge, a new competition will be required following its enactment. I have no doubt this legislation is in the public interest and in the interests of both the Defence Forces and the individuals who are awaiting the determination of their cases by the military tribunal.
In order to address the aforementioned issues, the Defence (Amendment) Bill 2011 provides for amendment to the Defence Acts 1954-2007 to expand the potential candidature for appointment to the posts of military judge and Director of Military Prosecutions to persons other than members of the Defence Forces, and for an amendment to the powers of the selection committee to determine a candidate's qualification for appointment to these posts. With regard to the issue of an alternative judge, it also provides for the appointment of a Circuit Court judge to perform the functions of the military judge where the military judge is not available for whatever reason.
I will now turn to the specific provisions of the Bill. Section 1 outlines the definitions for the purposes of the Bill. Sections 3 and 4 provide that the committee established under section 184D of the Defence Act 1954 for the purposes of identifying candidates and informing the Minister of their suitability for appointment to the post of Director of Military Prosecutions may determine a candidate's qualification for the post. In addition, the existing legislative provisions mean that there is an extremely limited candidature from within which the post of Director of Military Prosecutions can be filled. In this context, sections 3 and 4 also provide for an expansion of the potential candidature for appointment to the post of Director of Military Prosecutions to persons other than officers of the Permanent Defence Force.
Sections 5 and 6 provide that the committee established under section 184K of the Defence Act 1954 for the purposes of identifying candidates and informing the Government of the suitability of those candidates for appointment to judicial office may determine a candidate's qualification for the post of military judge. As with the post of director of military prosecutions, the existing legislative provisions mean that there is an extremely limited candidature from within which a person can be appointed as a military judge. I have already detailed in full the extent to which it is limited. In this regard, sections 5 and 6 also provide for an expansion of the potential candidature for appointment as a military judge to persons other than officers of the Permanent Defence Force.
Section 7 provides that the Minister for Defence, having consulted the Minster for Justice and Equality, may request the President of the Circuit Court to temporarily designate a Circuit Court judge to perform the functions of a military judge under certain circumstances. This would include circumstances in which no person has been appointed as military judge; a military judge appointed under the principal Act is ill, absent or otherwise unable to carry out his or her functions; or a military judge cannot properly deal with a matter before him or her. The current position is that if the military judge is absent for whatever reason, the military justice system simply cannot not function and grinds to a halt. It is essential that the system is capable of functioning at all times and by providing for circumstances in which a temporarily designated Circuit Court judge can perform the functions of a military judge, I am seeking to ensure this is the case.
Sections 2, 8, 9 and 10 provide for amendments to section 2 of the Defence Act 1954, the Courts of Justice Act 1947, section 240 of the Defence Act 1954 and section 240B of the Defence Act 1954, respectively, consequent to the provisions of section 7. Section 11 provides for the Courts-Martial Appeals Act 1983 to be amended to provide that a Circuit Court judge temporarily designated under section 8 of this Bill to carry out the functions of a military judge under the Defence Acts and any instruments made under that Act may also perform the functions of a military judge under the Courts-Martial Appeals Act 1983 and any instruments made under that Act. This new section was introduced by way of amendment on Committee Stage in the Seanad last week. Section 12 provides for the Short Title, collective citation, construction and commencement of the Bill. Essentially, the provisions of the Bill extend eligibility to barristers and solicitors of ten years' standing for the two specific appointments mentioned, as well as addressing the difficulties that could arise in determining whether an individual applicant for either post is eligible to be appointed to such a post. I am very pleased to submit this legislation for the consideration of the House. I firmly believe the changes to the Defence Acts 1954-2007 are both necessary and desirable to ensure the military law justice system operates in a smooth, efficient and expeditious manner and will continue to contribute significantly to the maintenance of discipline within the Defence Forces.
It would be damaging to the Defence Forces if this legislation were not rapidly enacted to facilitate the operation of the military justice system and unfair to the 22 individuals who await issues to be addressed by military courts. It is unfortunate that legislation of this nature was not introduced in autumn 2010 when the nature of the difficulty that had arisen with the criteria in the legislation became clear. I hope the legislation will have the support of the House.
I also hope there will be a more careful and considered debate about this legislation than the one that occurred in the Seanad. I am concerned that the reputation of an entirely innocent individual, who found himself in difficulties through no fault of his own due to the obscure provisions contained in 2007 Act, was traduced and his personal circumstances unnecessarily aired in public. I hope this will not be repeated in this House which is neither in the public interest nor that of the Defence Forces.
I look forward with anticipation to hearing the views and contributions of Deputies in their deliberations and reflections on the Bill. I commend the Bill to the House.
The Defence (Amendment) Bill 2011 contains four main provisions, the first of which is the most important. Following on from the Seanad debate, Fianna Fáil does not agree with this first element.
The first provision seeks to allow persons who are not members of the Defence Forces to be appointed to the posts of military judge and Director of Military Prosecutions. When the Bill was going through the Seanad, Senator Denis O'Donovan spoke out against it because he felt it was introduced to suit one specific person. Creating legislation for a particular individual's circumstances is undemocratic and wrong.
This legislation needs to be examined further. I have serious reservations about an individual who has minimal court experience working as a judge in a military situation. Are there not qualified people in the Defence Forces able and willing to be a military judge? Does it not make sense for a military judge to have served time in the military and, accordingly, know the ins and outs of the military system, rather than an outsider with no internal knowledge of the military system? If this legislation is passed, and certain favouritism given to certain individuals in the armed forces, it will not only raise a moral issue in what is right or wrong but could have a constitutional element which may reflect badly on the running of the House.
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.
I am sure the Minister thought he was going to have an easy time of it today. However, as was the case when the Bill was debated in the Seanad, certain circumstances have been referred to and particular accusations have been made. I will return to that matter later.
When I first read the Bill, I was of the view that dealing with it would be a simple matter but that is not the case. The White Paper on Defence published in 2000 has provided the main policy framework for the Defence Forces during the past decade. It outlined ways in which we could modernise the Defence Forces by downsizing them and reorganising their structures. As the previous speaker indicated, the number of personnel within the Defence Forces has decreased dramatically in recent years from in the region of 15,000 to approximately 10,500. With further reductions, it is hoped that this can be decreased further to 9,600.
I have no doubt that it has been a challenging exercise for the Department to try to remove that many personnel from the Defence Forces while maintaining the latter's operational effectiveness and discipline. Such a process cannot be easy for anyone involved, including the Minister and the Defence Forces themselves. However, the greatest challenge that arises is probably that of reducing numbers while maintaining the professionalism we expect of the Defence Forces.
Discipline is the rock upon which any military organisation is built. Without discipline, there is anarchy. In order to maintain high standards, it is important that there should be clear lines of responsibility and command. Operational effectiveness and cohesion cannot exist if those lines are blurred. In the context of discipline, it is extremely important that those who rule on cases of indiscipline must meet the highest standards, must apply the rule of law in an impartial and fair way and must ensure that human rights are always to the fore when carrying out their duties. In essence, that is the purpose of the Bill. We are setting down in legislation mechanisms to allow the Defence Forces to avail of the talents on offer from the best legal minds.
The reduction in numbers experienced by the Defence Forces as a result of their reorganisation has put pressure on them to maintain their high standards of military law. In 2001, the review of the existing law was carried out by the military law review board. That review led to the passing of the Defence (Amendment) Act 2007, which completely overhauled the old system of military justice in the State and applied civil and legal principles to particular aspects of the military legal process. The Bill attempts to further improve and clarify matters in that area. Sections 3 to 6, inclusive, amend the 2007 Act to expand the scope of the candidature for appointment to two posts, namely, those of military judge and Director of Military Prosecutions. If passed, the Bill will allow individuals who are not members of the Defence Forces to be eligible for consideration for appointment to these posts.
I listened to the debate on the legislation in the Seanad and there was a great deal of discussion with regard to reducing the requirement relating to experience from ten years to eight. I agree with the Minister that it is important to retain a ten-year requirement. There are two reasons for this. First, a similar requirement applies in respect of the appointment of District Court and Circuit Court judges and the Director of Public Prosecutions and, second, as the Minister pointed out, even if it were reduced to eight years, the cohort of people who could be considered for appointment would not be expanded. It would not, therefore, make sense to lower this requirement to eight years. The Minister's proposal in this regard is correct.
Section 7 provides for the appointment of a Circuit Court judge to perform the functions and duties of a military judge where the latter is not available. The section also outlines the circumstances in which a Circuit Court judge can be asked to perform those functions. As already stated, following my initial reading of the Bill I did not have any problem with it. I was of the view that what is being done in this regard represents a prudent move on the part of the Minister, particularly when it is placed in context with the decreasing numbers of personnel within the Defence Forces. That is why I was surprised by the nature of some of the debate which took place in the Seanad. The previous speaker echoed certain aspects of what was stated in the Upper House.
I read with interest the contributions on the Bill by Senators Denis O'Donovan and Rónán Mullen. Both Senators raised various questions with regard to the reasons why the Bill was brought forward and queried the motives of the Minister. For example, Senator Mullen stated:
With all the talk about widening the pool and ensuring competition, the back-story to the legislation raises the suspicion that the provision is not simply about ensuring competition in the future but is designed to eliminate the competition in the present...
while Senator Denis O'Donovan stated:
Let us remove the fluff from the Bill and get rid of the notion that the Bill contains measures to expand the pool of people who are entitled to be appointed as judges. If we take away the flesh and get down to the bone, we can see the truth of the contention I made that this Bill is primarily to facilitate a particular individual and to ensure the Department and the new Minister are not sued in the courts...
I do not know the back story to this matter. I do not even know if there is a back story to it. The Minister clarified the position during his contribution but it is regrettable that this matter was raised during the debate in the Seanad. If individuals had concerns about the Bill when it was published, they could have approached the Department and the Minister without airing this matter publicly. That would have been the proper way to proceed.
As the Minister indicated, some 22 people are awaiting courts martial. It is important that a degree of clarity be brought to the situations of these individuals. That this is what the Bill is designed to achieve. Section 11, as a result of the amendment, will ensure that the position will be rectified. In such circumstances, it is regrettable that we are discussing side issues rather than the substance of the Bill.
I accept that the Minister provided clarification. However, if there is additional information available, I ask that he consider sharing it with Opposition spokespersons by way of a briefing session. This would ensure that everyone would be comfortable in respect of the Bill. I am not trying to muddy the waters but this matter was raised in the Upper House and it was referred to again by the previous speaker. I would not be fulfilling my role as an Opposition spokesperson if I did not comment on it. However, I will say no more on the matter.
The Bill is needed and is welcome because we need to bring clarity to the situation for those awaiting court martial. Therefore, Sinn Féin will support the passage of the Bill without amendment.
I will share time with Deputies Mattie McGrath and Maureen O'Sullivan. I welcome the opportunity to speak on the Bill and on the Defence Forces generally. I have listened to the Minister and previous speakers and welcome the debate on this important issue.
The Bill is driven by a number of elements. There have been international developments in this area, particularly in Australia and the United Kingdom, in recent years. There are also existing difficulties within the Defence Forces to which the Minister has referred. He described these in terms of the "paralysis in the current situation". The Minister also mentioned another element, namely the background to the White Paper on defence in 2000 and the consequence of that in that there is now a small pool of officers available for this type of duty. I often wonder whether a member of the Defence Forces should be entitled to have access to the normal legal procedures to which each of us is entitled and would like to see serious consideration given to this.
I hope there was consultation on this Bill with organisations such as the Permanent Defence Forces Other Ranks Representative Association, PDFORRA, RACO and the Ombudsman for the Defence Forces. Was there such consultation and discussion with these and other relevant organisations prior to the drafting of the Bill? I believe the trade union movement and trade union representation should be available to members of the Defence Forces. We are all entitled to such representation as a right and the members of the Defence Forces should not be discriminated against in that regard. Some international defence forces have that entitlement. Trade union representation should be available to members of the Defence Forces.
Reference has been made to the 2000 White Paper on defence by a number of speakers. The background to that White Paper was the rationalisation and downsizing of the Defence Forces. It is now clear that significant reductions in numbers and facilities have taken place over the past number of years. Expenditure on defence as a percentage of overall gross Government expenditure has decreased from 3.31% in 2000 to 1.59% in 2010. Over the decade, expenditure on defence as a percentage of the gross national product decreased from 0.85% to 0.7%, while expenditure as a percentage of gross domestic product has decreased from 0.72% to 0.58%. There has also been a decline of €41 million in the 2010 budget and this will be followed by a reduction of another €109 million in targeted savings between now and 2014.
There has been a significant decrease in the numbers in the Defence Forces, with a drop from over 15,000 in 1991 to 9,595 as of 30 June 2011. I believe this should be the end of the downsizing of the Defence Forces. We in Clonmel and the south Tipperary area in general would like to put down a marker with the Minister with regard to the retention of the Defence Forces at Kickham Barracks in Clonmel. There has been a military presence in the town since Clonmel defeated Cromwell in 1650. In recent years, the proposals put forward by a number of governments have been successfully opposed by the people of the town. Kickham Barracks is vitally important to south Tipperary and is an essential element of the local community in Clonmel. I thank the Defence Forces nationally, but particularly in Clonmel where they are part and parcel of the fabric of the town and its communities. Individual members of the Defence Forces work across the spectrum, whether through charitable work, sports, cultural or education work. They are a vital element of the life and work of the people of Clonmel and south Tipperary and I would like to thank them in particular for the work they have done in supporting the population of Clonmel during flooding emergencies.
The presence of the Defence Forces in the town of Clonmel is also hugely important for the economic life of the town. The 12th battalion at Clonmel barracks brings millions of euro into south Tipperary on an annual basis and provides significant employment in the area. Also, members of Óglaigh na hÉireann and ex-members in the Irish United Nations Veterans Association work tirelessly within local communities. I would like to acknowledge the work done by people like Billy Keane and Martin Fennessy. Billy is a retired member of the Defence Forces and is chairman of the Clonmel boxing club, while Martin Fennessy, currently a serving member of the Defence Forces, is chief coach and manager for the club. The club has been very successful over the past number of years. I would like to thank the Defence Forces for their work at home and abroad.
I am sure that further amendments to the legislation will come before the House. We will consider any amendments coming forward before making a judgment on them.
I am pleased to have an opportunity to contribute to this debate. The purpose of military law is the maintenance of good order and discipline within the Defence Forces. Matters arising in a military force should be investigated swiftly and be seen to uphold military law in a fair and transparent manner. The principal role of the Defence Forces is to defend national security. In carrying out that duty, a soldier may be called on to put his or her life on the line or to entrust his or her life to fellow soldiers. Obedience to commands is integral to a soldier's existence. Therefore, the maintenance of good order and discipline is a key element of army life. Nobody would question that.
I take this opportunity to voice my great respect and regard for Óglaigh na hÉireann since its formation. As well as the important duties it carries out within the State, it has played its part in world affairs through its many overseas missions, which have earned its members the respect of world leaders and opposing factions. Soldiers who engage in overseas missions do so from a sense of duty to the tricolour, serving Ireland with dignity and decorum. They have earned huge respect.
The key goal of the White Papers on Defence was to ensure the existence of a modern and sustainable Defence Forces with the capacity and flexibility to undertake all roles assigned by the Government. One of the key policy decisions was the reduction in size of the force. As other speakers observed, that rationalisation has been carried out and we have had barracks closures throughout the State. For the future security of the State, it is now time to bring that downsizing to an end. The Defence Forces cannot operate without adequate numbers. We can introduce all the rules and procedures we like, but if there is not a sustainable and adequate presence in the forces, members' self-esteem will suffer and we will not have an organisation of which they and we can be proud.
The Department of Defence has stated that under the process of reform set out in the 2000 White Paper, the defence organisation has been downsized and transformed into a more effective force which costs less in real terms. We are told that this has delivered significant savings to the Exchequer and that the modernisation programme is unique to the public sector as it has been funded by cuts and closures within the organisation itself. I wonder whether the views of the Representative Association of Commissioned Officers, RACO, and the Permanent Defence Forces Other Ranks Representative Association, PDFORRA, were heeded in this process. It is easy to downsize the Army because members have nobody to speak for them, with PDFORRA and RACO being relatively new bodies which do not enjoy the same status as regular representative organisations. I am concerned that this process is being set up as a model of reform without due consideration to the type of service members of the Defence Forces give. Soldiers must obey orders at all times and cannot take to the streets to protest at aspects of their employment conditions.
The establishment of a new summary court martial and the changes regarding the appointment of military judges and so on are generally welcome. However, I am concerned that we might be legislating for a minority situation, which is never a good approach. Rather, we must legislate for the greater good of the entire force. As I said, both White Papers on defence, in 2000 and 2007, set out meaningful objectives, many of which have been achieved, but it is vital that the professionalism of the Army is maintained. Its strength has been reduced to approximately 10,000 and we cannot blindfold its members and tie their hands behind their back. If we want a professional organisation, we must supply soldiers with the tools of the trade. One of these tools is the dignity of knowing they are secure in their future and will not be shifted from one location to another willy-nilly. These people have families and children and need to know with some degree of security what is around the corner. Members of the armed forces wish to serve their country and its people. Greater recognition must be afforded to PDFORRA and RACO and they must be given some role in the decisions that affect their lives, rather than reading about them in newspaper headlines and Government statements.
I understand approximately a dozen members of the Defence Forces are awaiting court martial. I am a strong believer that justice delayed is justice denied. Problems have arisen in this regard in the civil courts, with some cases in the Circuit Court taking six or seven years to process. Allowing members of the Judiciary in the civil court system to be appointed to the military justice system might make these delays in the civil system worse, given the moratorium on recruitment that is in place. I am not saying that we must protect the civil judicial system at the expense of the military judicial system; I am saying that the entire courts system, civil and military, requires radical reform. It is farcical and unsustainable that we have such lengthy delays in Circuit Court cases.
I took it upon myself in the last Dáil to coax - "insist" is the wrong word - the previous Ministers for Defence, Deputy Willie O'Dea and Mr. Tony Killeen, to visit the excellent facility that is Kickham Barracks in Clonmel so they could see for themselves what is being done there and the discipline, character and professionalism of the soldiers serving there. Like Deputy Seamus Healy, I pay humble tribute to the officers from top to bottom in Clonmel who have given vital service over the years. On the various occasions of flooding in the town in recent years they are always first on hand to assist the public and the civil authorities with transport and so on. Design engineers and consultants are studying how to prevent the flooding in the town, which has arisen to a great extent as a consequence of poor planning decisions. The use of the Army has been factored into their plans to maintain the flood defences. Some €25 million has been spent and an important part of this is the temporary erection of flood defences on top of the walls. Without the assistance of Army personnel it would not be possible to do this in the necessary timeframe.
The Army has made an enormous contribution to the economy of the town and to its cultural life, as well as to various sports including boxing. I join Deputy Seamus Healy in complimenting retired officers Billy Keane and Martin Fennessy in this regard. Their efforts have brought great accolades to members of the Defence Forces and to members of the community. It is vital that Defence Forces members throughout the State are offered reassurance and a greater degree of security. There is concern in Clonmel that the facility will be amalgamated into the Limerick region. Will it be a case of a stroke of the pen and all the soldiers will be gone from Clonmel? The service they provide is invaluable and it is a fabulous facility. Last year a parish field day was held in the barracks and local people had a chance to see what the Army does and the gratitude owing to its members.
I am in broad agreement with the principle of the Bill. However, the proposal to allow individuals who are not members of the Permanent Defence Force to be appointed as director of military prosecutions and as military judges is fine in theory, but we must always bear in mind past experience. In recent times the Minister has had his own difficulties with the Judiciary and should be careful of holding up the civil system as an example of best practice for the military. My main concern is that the Army has been slimmed down enough, if not too much, and must now be maintained at its current size. Members of the forces must be treated with dignity and respect so that they can perform their duties with confidence and self-esteem. In times of crisis the Army is the first port of call and its members always behave with dignity and decorum.
I note the Defence (Amendment) Bill 2011 seeks to expand the candidature for appointment to two posts, military judge and director of military prosecutions, to individuals who are not members of the Defence Forces and to increase the potential pool of qualified personnel who can be appointed. It also provides that a Circuit Court judge can perform the functions of the military judge where the military judge is not available. The Bill must be looked at in the light of recent changes in military justice and the modernisation of the Defences Forces is central to this.
The military court system is provided for in Bunreacht na hÉireann and a radical overhaul came about in 2007, which revised disciplinary provisions of previous Acts and implemented a new system of military justice. I find the terms "military justice" quite strange because justice is justice. Why is there a need to call it military justice? Does this or could this give rise to doctors' justice, teachers' justice or bus drivers' justice? Why the need for military justice separate from our justice system? The Library and Research Service looked at the European Convention on Human Rights which states that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by the law. Why is there a need for a separate judicial system for members of the Defences Forces? This appears to come down to a recognition that military justice is different due to the unique position of the military and the greater demands placed on soldiers, which are more than demanded of any other category of person in the State. Now we are told there is a need to protect the structure and discipline that is vital in the military and that there are offences in military law not found in the civilian environment, for example, absence without leave. I find it difficult to accept that a soldier absent without leave is different from any other member of society not being present to perform his or her vital duties. Seemingly, according to Judge Carroll, it comes to obedience to commands being integrated into a soldier's existence.
Maintenance of good order and discipline is a key element in Army life and it further comes down to the soldier's principal role in defending national security where he or she may be called upon to put their lives on the line or to entrust their lives to fellow soldiers. It seems that breaches of discipline in the Army are more catastrophic than breaches of discipline in any other walk of life. If we talk about military law and military justice being separate and distinct from civil law and justice, I find that alarming.
Any member of the State, military or otherwise, is entitled to justice, to a fair and open trial with judges who are impartial. How impartial is a military judge when it comes to breaches of discipline in the military when his whole life has been dedicated to maintaining that discipline above any other consideration? We talk about the integrity of our District, Circuit, High and Supreme courts. That same integrity must be central to military courts also.
If we look at the White Paper on Defence, the goal was to ensure that the State had a modern defence force. I also want to pay tribute to our Defence Forces on their overseas missions, where they are held in very high regard on peacekeeping missions. Their respect for the native people in those areas has been acknowledged, as has their engagement and interaction there. Within Ireland the role of the Air Corps in rescue operations and our Naval Service in patrolling our waters has been acknowledged. Going back to the White Paper, certain reforms were set out, downsizing and transforming it into a more effective force and supposedly bringing about savings. We can see from the statistics the significant drop in numbers. I know this is disappointing for many young men and women who are interested in joining the Defence Forces. I hope that interest will continue.
Expanding the candidature for appointment, which will increase the potential pool of qualified personnel, makes sense, as does the section which permits the Circuit Court to perform functions of the military judge in certain circumstances. There are times when additional support is needed for an alterative. What is being proposed for Ireland has happened in other countries, such as Australia and Britain where civil and legal principles and standards are applied to aspects of the military legal process. I agree with the system that operates in Australia, where a committee set up to investigate this area criticised the existing military discipline system and recommended major change to ensure "independence and impartiality in the military justice system". Our Defence Forces deserve that independence and impartiality, but I note the story is not over yet in Australia.
Going back to our Defence Forces, according to the Minister for Defence they are primarily deployed on overseas missions in support of international peace and security under the UN mandate. We are, in theory at least, a neutral country, so why is Shannon Airport being used by US troops in the way it has been since the Iraq war? Our troops are on peacekeeping missions while our airport is being used by a country on aggressive action, using horrendous methods of torture on those taken prisoner. It is time to stop Shannon Airport being used in this way. Another issue is the amount of Garda resources being expended to control peaceful demonstrations. It appears under the current Government that there has been an increase in the numbers of gardaí involved in that regard.
I am interested in the presence of seven members of our Permanent Defence Force in Afghanistan, three in the Democratic Republic of the Congo, two in the Ivory Coast and five in Somalia, training Somalian security forces. This is a token military presence in countries which have appalling records on human rights issues and I wonder about the role of our troops there.
The Minister stated that discipline is the essence of military force and referred to what he termed the unique code of discipline in the Army necessary to support operational effectiveness, but also to be fair to the individual. The Bill is technical in nature, and it is sensible given the limited number of qualified personnel in the Permanent Defence Force available for these jobs. I was alarmed to read about the personal situation and the speculation regarding a particular individual but I will take the Minister's word - rightly or wrongly - that, as he stated, this legislation is in the public interest and in the interest of both the Defence Forces and the individuals who are awaiting the determination of their cases. I believe our Defence Forces deserve a high standard in the courts.
As I was a member of the Permanent Defence Force for three years I have a good understanding and knowledge of how the Defence Forces work. Subsequent to the enactment of Defence (Amendment) Act 2007, which modernised the military justice system, a number of issues have been identified which need to be addressed to ensure the smooth operation of the system.
The first point concerns the provision relating to the post of director of military prosecutions and a military judge. To qualify for appointments to either, a person must be an officer of the Permanent Defence Force and be a practising barrister or solicitor of ten years standing. This criteria means the post is open to the limited number of qualified personnel in the Permanent Defence Force for such posts. The second issue relates to the post of military judge. Given the scale of the military justice system, one military judge has been deemed suitable to undertake the case load. However, if an officer who is appointed a military judge has a previous involvement in the case, is ill or absent or for some other reason is unable to carry out his or her functions, there may be a need for an alternative judge. Such a scenario is not provided for at present and to address these issues, the Defence (Amendment) Bill 2011 provides for the amendments to the Defence Acts to expand the potential candidates for the appointment to the post of military judge and the director of military prosecutions to persons other than members of the Defence Forces and for an amendment to the power of the selection committee to determine a candidate's qualifications for the appointment of these posts. In relation to the alternative judge, it also provides for the appointment of a Circuit Court judge to perform the functions of the military judge while the military judge is not available for whatever reason.
I welcome the opportunity to contribute to the debate. I welcome the provision for the establishment of a director of military prosecutions and a military judge. It is good that both people will be practitioners in the area of law and also be officers in the Defence Forces.
The Minister referred to the changes that have confronted the Defence Forces. It is obvious that, in the past number of years, the threat from subversives has reduced but, nonetheless, there is a need to maintain a good level of numbers because of the unique position of Óglaigh na hÉireann, which is the only legitimate Irish Army. The Defence Forces should be property resourced while recognising that the threat to the State is not as great as it was. The changes that have been made, even by the previous Fianna Fáil Minister, Deputy Willie O'Dea in terms of up-skilling and improving the facilities and equipment that have been made available to the Defence Forces, are very welcome. The work of Deputy O'Dea, a Limerick man, must be acknowledged.
The Defence Forces are now providing a service and training officers from the Maltese defence forces. The Chief Whip might relay to the Minister for Defence that there is an opportunity for Ireland in terms of the capability of our cadet training schools to provide that level of service to other smaller European countries that do not have access to the training facilities we have.
Previous speakers alluded to the major challenges for the Department of Defence and every other Department. The Minister referred to improvements in the judicial area with regard to the provision of a new courtroom at McKee Barracks. Challenges will arise in respect of air and naval defences, particularly as the new challenge to the State may not come from political subversives but from those importing illegal narcotics. Last year, the Naval Service made a massive haul off the west coast. We are in difficult economic times but I implore the Minister for resources, which includes co-operation. Resources does not refer only to financial resources but to co-operation with our EU colleagues, particularly those with massive amounts of territorial waters like Ireland, in the exchange of information through Europol and countries' departments of defence. This applies to information on shipping movements of privately owned ships that move in and out of our territorial waters and using Ireland as a beachhead to import illegal drugs and arms into the EU. The role of the Defence Forces will be different in the future.
The Defence Forces have a proud history in defending the State, defending law and order and defending the private citizen. We need only consider the number of times the Defence Forces ordinance service has been called out in the recent past when pipe bombs were found on private property. Those engaged in gang war use pipe bombs to inflict their opinions on others. The Defence Forces have a role under the jurisdiction of An Garda Síochána.
I commend the Defence Forces for its work in Lebanon. It is fantastic that they can return to Lebanon with the acceptance of both sides. Ireland is not a country with a history of colonialism. We were colonised and we were victims in many cases, like other countries. Our peacekeepers are accepted around the world because of the history of this country, particularly its military history. The commitment of the Government to put the Defence Forces back in Lebanon is welcome. This legislation is a modernising Bill that allows the Defence Forces to conduct investigations and deal with proceedings within the organisation.
The previous speaker questioned why the Defence Forces need a separate judicial system. It is very obvious why a separate judicial system is needed because the Defence Forces are set apart from the civic authorities in many respects. They are the last line of defence upon which the civic authorities can call. It is essential that this independence, particularly at judicial level, results in the delivery of justice and the perception that it is fair and outside the chain of command. Two positions are being created under the Bill, the Director of Military Prosecutions and a military judge, and both are outside the chain of command. The Minister was explicit in stating the legislation is robust enough to ensure interference from rank-and-file members of the Defence Forces is limited.
I welcome this Bill and I wish the Minister and the Minister of State well. Challenging times lie ahead. Reference was made to the reduced number of members of the Defence Forces. We are living in different economic times and our Defence Forces will be smaller, our public service will be smaller and expenditure on everything must be smaller. We must do much more with much less. This involves the co-operation of all elements of the public service, including the Garda Síochána, and interstate co-operation with our sister countries in the European Union. This will be essential in the formation of a new mechanism of protecting the sovereignty and territorial borders of the State.
I welcome the debate on the Defence (Amendment) Bill and the reforms in the legislation. It is important to modernise Bills to bring them up to date with international standards. Before discussing the details of the Bill, I commend the Defence Forces for their magnificent work at home and abroad. We know the record of the Defence Forces over the past 20 or 30 years in acting as peacekeepers in different countries. They made a massive contribution to peace and are highly respected throughout the Middle East. It is very important that Ireland retains an independent, neutral foreign policy line because otherwise it will be damaged. I commend the work of the United Nations. We all know the history of the Lebanon and many people gave their lives for peace. UN soldiers giving their lives for peace and trying to end conflicts in other countries is a noble cause.
I refer to the situation in Gaza. From talking to the Palestinian population, some of whom met the Technical Group yesterday, I know they have a high regard for Irish troops because of the way they respect the Palestinian people in the Middle East, particularly Gaza. It is important to consider the humanitarian aspect of Sudan. Having a family member who served in Sudan, I know the major humanitarian job and the risks taken for peace in serving the community.
Ireland contributes some 560 Defence Forces personnel to 11 missions throughout the world. Some 150 additional personnel are on standby for rapid deployment. The Minister referred to our contribution to the Nordic battle group, which was stood down at the end of June. The Defence Forces are now planning for Ireland's participation in the Austrian-German battle group, which will be on standby for the next six months until 2012. I have a major problem with the term battle groups, which I raised with the previous Government. It disturbs me that, as an independent country, we are associated with battle groups because we are damaging the integrity of the word peacekeeper and United Nations flag. I ask the Minister to do something about this word because it sends out the wrong messages and I do not like it.
Let us consider the situation in Somalia, where millions of people are dying. I would like to see those so-called battle groups getting in there on a humanitarian level rather than arms training in the Austrian-German battle group. If we lose our integrity as an international peacekeeper, we lose respect internationally.
The purpose of the Bill is to amend and update the Defence Acts by providing for the expansion of the potential candidature for the appointment to the posts of military judge and Director of Military Prosecutions to persons other than members of the Defence Forces and the appointment of a Circuit Court judge to perform the functions of the military judge where the military judge is not available. The Bill also provides for an amendment to the powers of the selection committees established for the purpose of selecting a suitable and qualified candidate for appointment to the post of Director of Military Prosecutions and military judge. This legislation is important and the proposals are important.
Digging deeper, section 7 provides that the Minister for Defence, having consulted with the Minister for Justice and Equality, may request the President of the Circuit Court to temporarily designate a Circuit Court judge to perform the functions of a military judge under certain circumstances. Section 7 is a positive and constructive development.