Willie O'Dea (Limerick East, Fianna Fail)

I thank Senators for their further contributions on this matter on which we had an extensive discussion on Committee Stage. If someone had a general complaint of the sort envisaged in the context of these amendments, he or she would have recourse to the ordinary Ombudsman for the public services. From what I recall of the debate on Committee Stage, Senators Minihan and Maurice Hayes stated explicitly that they did not envisage a role such as this for the ombudsman for the Defence Forces.

Amendment No. 1 if applied would change the definition of "complaint" in section 1. The term "complaint" could then be interpreted by the ombudsman as referring to any matter not being a matter arising from a specific complaint made to him or her by a particular individual. The ombudsman might decide to investigate such a complaint spontaneously on his or her own initiative in the public interest.

Amendment No. 5 seeks to insert a new subsection into section 4 of the Bill on the functions of the ombudsman. The new subsection would explicitly empower the ombudsman to investigate any matter where in his or her opinion an investigation was required in the public interest. There would be no need for a specific complaint to have been made and, presumably, no need to have an identifiable complainant to hand.

Similarly, amendment No. 6 proposes the addition of an entirely new subsection in section 4. The amendment is a variant of amendment No. 5. Under its provisions, the ombudsman could act spontaneously on his or her own initiative in the absence of a complaint in circumstances in which it appeared to him or her that a member of the Defence Forces may have committed an offence, presumably under military law, or behaved in a manner justifying disciplinary proceedings. I indicated on Committee Stage that it would be entirely unacceptable under any circumstances for the ombudsman to venture into suggestive preliminary opinions as to whether an offence under military law may or may not have been committed. That is not the function of the Defence Forces ombudsman but is a role strictly confined to the relevant military legal authorities at brigade or service level and at the level of the Office of the Director of Legal Services, the deputy Judge Advocate General. As the ombudsman has no legal power, competence or qualifications to attempt to make such a professional judgments in the area of military law, I must reject the three amendments.

The underlying concept at the heart of the amendments is alien to the specific role and functions of the type of ombudsman for which this legislation specifically provides. The Bill was drafted as a result of a long period of consultation with representative associations, most particularly PDFORRA. PDFORRA sought the establishment of a statutory, independent entity to which enlisted members of the Permanent Defence Forces could take applications for redress of wrongs under the Defence Act after the internal military redress system had been fully utilised up to Chief of Staff level. Where an individual was not satisfied with the response of the military authorities, PDFORRA wanted him or her to have access to an entirely independent person operating as a special statutory ombudsman for members of the Defence Forces.

This is the specific concept addressed in and fully satisfied by the Bill. It was agreed with the representative associations and secured Government approval to inform the drafting of suitable legislation. The type of ombudsman set out is the one the Government agreed to provide for in law. If made, the amendments under discussion would mark a radical departure from the original founding principles of the legislation and constitute a completely new policy framework within the legislation. An investigating authority such as that envisaged by the amendments is not in keeping with the concept agreed with the representative associations nor, moreover, with the policy previously approved by the Government. The effect of the amendments would be to create a roving inspectorate which would provide us with a very different office from that of an independent statutory entity to which an individual soldier could make an application for redress having exhausted the internal military redress procedures.

From a practical legal perspective, the roles and functions outlined in the amendments are inconsistent with numerous aspects of the legislation as drafted. The entire Bill would have to be redrafted from scratch to give effect to the concepts outlined, even if they were acceptable in principle. Section 5 deals with exclusions, which refer to the investigation of any complaint received from a complainant as defined in the Bill concerning an action. As drafted, section 5 would not apply to the ombudsman where he or she was investigating any matter not the subject of a complaint to him or her but it would apply to him or her where he or she was investigating a complaint from an individual soldier. It is an essential principle of the legislation that, subject to the provisions of the Bill, the Defence Forces ombudsman may investigate an action which is the subject of a complaint made to him or her by a specific person affected by an action. It is an essential condition, therefore, that there must be an identifiable individual complainant in place with a specific complaint about a specific action.

The proposed amendments contain provisions which depart from that basic concept. One cannot envisage how in practice the Defence Forces ombudsman could autonomously commence an investigation into an action in the absence of either a complainant or a complaint. Regrettably, I must therefore reject the amendments.