John Minihan (Progressive Democrats)

I join other speakers in welcoming the Minister and his officials to the House. I welcome the Bill. In recent years, we had many changes in our Defence Forces with the modernisation of equipment, training and facilities. It is only right and proper that we also have the modernisation of the legal system.

Military law is a distinct legal system to which members of the Defence Forces are subject. Most countries have special, additional laws and often a legal system applicable to members of the military and not usually to civilians. Military law deals with issues such as the procedures for military discipline, what is a lawful command and obligations of service personnel. It is important that military law is kept in line with civilian law and developments in civilian law.

The primary purpose of the Bill is to amend and update the disciplinary provisions of Part V of the Defence Acts having due regard to prevailing human rights norms. The Bill provides for the summary disposal of charges, the establishment and jurisdiction of summary courts martial and the appointment of the court martial administrator, the director of military prosecutions and a military judge.

The Bill also provides for the constitution of courts martial and membership of the court, the procedures before courts martial, the award and execution of punishments by courts martial and the suspension of sentences. As a former member of the Defence Forces, I partook in the military legal system, both as a commanding officer and as a member of courts martial. I defended people when directed or requested to do so. Thankfully, I was never a defendant myself.

I have a certain amount of knowledge and experience of military discipline procedures and the uniqueness of how it operates. When one transfers into political life and is on the other side of the fence when dealing with cases, one can see a great need for fairness in the administration of military law to ensure it is kept in line with the norms of civilian life and, more particularly, the European Court of Human Rights and the European Convention on Human Rights which is now enshrined in Irish law. I welcome the Bill as being both progressive and positive. It is based on the best international practices and human rights norms.

Summary disposals of charges by commanding officers will now be confined to charges mainly of a disciplinary nature. This is very important and is one of the major steps in this Bill. The United Kingdom updated its system some time ago but did not go as far as we and, earlier this year, was found wanting in this regard by the European Court of Human Rights. The 1954 Act was badly in need of review and modernisation and I commend the military authorities for taking the initiative in 2001 to establish a review board to that end. The Minister said a number of cases were being put forward for judicial review and, as he rightly said, they will take their course. However, we should acknowledge that this action is not in response to those cases but was in train before they were initiated. The initiative of the Defence Forces in the area of criminal law and courts martial is proactive and in keeping with national and international norms.

I will deal with a couple of points in the Bill. The punishment awarded by a commanding officer can now be appealed to a summary court martial and the defendant will not be at risk of a custodial sentence should he or she decide to do so. That is an important step as we have moved on from the time when a soldier could be marched off the square for a minor indiscretion, such as having dirty boots, and suddenly find himself in front of a commanding officer, being tried and sentenced in a matter of an hour. The defendant now has the right to see the charges and the list of witnesses and to take advice and that is a step in the right direction. The removal of the power of detention at that level is vitally important. Detention and the removal of liberty are major steps and should only be carried out after due process and a fair legal hearing. This Bill enshrines the principle that detention as a result of military discipline will happen after due process.

The provisions for a defendant to be allowed time to elect for trial by court martial in advance of the summary trial, as distinct from after the summary officer has found guilt and passed sentence, are also important rights. The fact that a defendant can be accompanied by an assisting person during the process is also important. It is right and proper that a soldier in a military disciplinary procedure has somebody present to provide advice. The fact that he or she can ask for an adjournment for 48 hours to consider the case is also welcome.

Legal aid is also an important issue and was raised by Senator Brian Hayes. It is not acceptable that a member of the Defence Forces go through the legal system, particularly a court martial, without proper legal aid. My understanding is that legal aid will be provided in courts martial but not in summary trials. The option to elect for court martial protects legal rights. I hope the Minister will mention the legal aid system in his reply. Will outside lawyers be available, paid by the State? I presume they will.

I welcome the fact that senior NCOs, such as sergeant majors and battalion quartermaster sergeants, will now serve on a court martial. It will help military discipline, avoiding a them and us scenario of officers versus enlisted personnel. I also welcome the fact that senior NCOs form part of the disciplinary process.

I ask the Minister to refer to section 42 in his reply. It provides that, when acting as an appeal court, a summary court martial cannot award a custodial punishment or any punishment greater than which could have been awarded at the summary investigation. That strikes me as a message to defendants to appeal everything and I am concerned about it. If a person appeals, he or she must take on some risk of a greater sentence. What is to stop everyone appealing a summary decision if they do not run the risk of a greater sentence? It strikes me that every summary trial will now be appealed, though that may not be the case.

The new system will increase the workload of the legal branch of the Defence Forces. I wish it well, however, because the changes are necessary. We must ensure that the legal system within the Defence Forces is adequate and that there are adequate numbers of trained legal personnel. As Senator Brian Hayes pointed out, Irish troops currently serve overseas and it is important we are able to stand over our legal system and that it is in keeping not only with our national laws but with best international practice.

The fact that both representative bodies have welcomed this Bill must be a positive step for the future of our Defence Forces and for military discipline. I particularly welcome the appointment of one or more military judges, which is a positive move.

This is not a brief Bill. It is comprehensive and I congratulate those associated with its drafting. I congratulate the Defence Forces on the work they do at home and abroad. They are the true ambassadors of this country on the international stage, a fact about which we do not speak often enough in these Houses. A telling remark was made to me by a politician visiting our troops overseas some years ago to the effect that they were the best kept secret from the Irish people. If that is the case, we should ensure they do not remain a secret and avail of every opportunity to congratulate them and highlight the tremendous work they do, both at home and abroad.