Brian Hayes (Fine Gael)

I welcome the Minister and thank him for presenting the Bill. I commend his hope that he will still be in office in the second half of 2007 to bring forward the new general scheme of the Bill. He might even get a promotion following the general election. One never knows. However, I commend his bold assertion that he will be in office throughout 2007 to bring this a step further.

When speaking on defence matters in the House, I always ensure we put on the record our appreciation of all Defence Forces' personnel for their continued contribution to this country and the way they perform their duties at home and abroad in our names. I have made a habit of doing so since I was appointed defence spokesperson for my party in the House. It is important other Senators do so too.

It is very important that whatever changes we support in this Bill, which, in effect, modernises existing law in this area dating back to 1954, we understand that neither House of the Oireachtas can introduce a law which is repugnant to the Constitution. It is, therefore, important to state that although the Defence Forces have a special place and special rules apply to them, all the rules in the primary legislation and the amendments proposed in this Bill must not be repugnant to the Constitution and they must comply, in every sense, to our constitutional law because, in effect, some of the changes being made limit rights. One understands, in the context of the Defence Forces and of people following specific orders, it is a requirement that sometimes those rights must be limited. Nonetheless, it is important we ensure these special provisions, which will apply to a group of citizens who have signed a contract to work in our Defence Forces, are totally ad idem with all aspects of the Constitution.

The Minister said he had discussions with the various organisations representing the Defence Forces, which I welcome. Has he had discussions with Irish Human Rights Commission? He said one of the reasons we are amending the primary legislation 50 years after it was introduced is because of developments in human rights legislation not only from a European perspective but from a domestic one as well. When discussions on this Bill were taking place at Attorney General level in 2003 or when the scheme was being put in a more concrete form, did the Department have discussions on the provisions with the Irish Human Rights Commission? If that did not happen, I wish to state why it is important that it should have. We cannot lecture other jurisdictions, whether on this island or in other parts of the world, on recourse to human rights legislation if we bypass the very institution which both Houses of the Oireachtas established. It should be a matter of course in the drawing up of any Bill concerning the human rights of any group of citizens that the Irish Human Rights Commission is involved in the process and that its views are made known. I would be interested to know whether that happened in this case because it is important we get into the habit of doing that when dealing with human rights. I accept what the Minister said that many of the amendments are based on that new human rights code, domestic law and military justice systems in other common law jurisdictions.

There is little information in the public domain on this issue. How many courts martial take place annually? Are proceedings recorded? Is there a written transcript which one would get in a court room or in this House? It is important to establish that for the record, particularly when debating a matter such as this which has not been debated for a long time. Will the Minister also elaborate on the appointment of military judges? How are such appointments made? Although we will have the chance to go through this on Committee Stage, I would be interested to know.

It is important there is not a two-tier system within the Defence Forces and that it is clear to all serving officers and non-commissioned officers who is in control of this process, how they are appointed and that the chain of command in terms of the decision-making process is not only based in law but that it is transparent and above board. We do not want a two-tiered system. I am not suggesting we have such a system but the fact we are debating these matters allows us to at least look at the existing system and comment on it. I would be interested to know how a person is appointed to this position in the military because it is important we get it right.

Fine Gael supports this Bill in principle and we will go through it in more detail on Committee Stage. It is important this legislation ensures that whatever system of justice applies to the Defence Forces, it is compatible with all human rights provisions, domestic and international.

Fine Gael also believes it is important for the statute to be comprehensive and comprehensible for all members of the Defence Forces who are charged, as well as for those who are charged with the Defence Forces' management. In addition, it is vitally important that all such provisions are straightforward, fair and equitable for those who involve themselves in the process.

I heard the Minister's comments regarding serving officers abroad. The issue regarding the occurrence of alleged offences abroad has been highly contentious for military establishments in other jurisdictions. I refer to the question as to whether the officers involved should be charged under domestic law in the country in question or are subject to courts martial in their own jurisdiction. I wish to tease out this issue further because, as the Minister is aware, a significant number of Defence Forces personnel now serve abroad. They frequently do so in a third world environment in which the level of jurisprudence and the operation of the courts may not be as advanced as it is in the domestic setting in Ireland. When Irish soldiers serve in such conditions, it should be abundantly clear as to where the chain of command lies in respect of their accounting for their behaviour abroad. I do not make any negative comments in this regard. I am simply stating this has been a problem in other military establishments in which the question has been posed as to whether people should account for themselves at home or abroad, where the actual incident occurred.

I presume I am correct to state that ultimately, in respect of a question of law, any Defence Forces member can take his or her case to a higher court and ultimately to the Supreme Court. I refer to the question as to whether they have been given fair and natural justice. It is important to state that while these special provisions exist within the military to deal with the issue of a chain of command and with discipline within the Defence Forces, ultimately the Supreme Court remains the final court of appeal regarding any aspect of Irish law and specifically when citizens believe their rights have been infringed, in terms of a point of law.

The Minister referred to free legal aid and I presume that if a charge is laid against a serving member of the Defence Forces, he or she can select his or her defence. I am unclear as to whether the defence must come from within the military legal establishment, as opposed to a defence barrister or advocate who comes from outside that system and the Minister should clarify this point.

In general, Fine Gael is supportive of this Bill and its Members will work with the Government to ensure that when passed, the legislation will be an effective and modern piece of law to deal with a special circumstance existing within the military.