Willie O'Dea (Limerick East, Fianna Fail)

I thank Senators for their contributions to this interesting discussion. Some of the points raised have already occurred to me, although I confess I had not considered others.

Senator Brian Hayes asked whether I was satisfied that all the provisions of the Bill were constitutional. Before we publish legislation, the Attorney General examines it for constitutionality and we do not pursue any aspects which do not receive a clean bill of health. This Bill has been approved by the Attorney General. With regard to the Senator's question of whether the Department has had any discussions with the Irish Human Rights Commission, we have referred the Bill to the commission and are awaiting its response. The Senator also asked the annual number of courts martial. I understand that approximately 12 are held per year, although that number will increase as a result of the provisions of this Bill on the right to appeal and other matters.

With regard to the appointment of military judges, section 34 sets out that judges are appointed by the President on the recommendation of the Minister for Defence. We can debate that section on Committee Stage if anybody is unhappy with any aspect of it.

Several Senators asked whether it will be possible to appeal judgments of the military justice system to civilian courts. Every decision of a court martial can be appealed to the Courts Martial Appeal Court, which is a division of the Court of Criminal Appeal. If somebody wishes to go further under ordinary criminal law, he or she can take a case to the Supreme Court on a point of law, and the same procedure will apply in respect of courts martial.

Several Senators raised the issue of access to free legal aid. When availing of free legal aid, military defendants can select civilian solicitors and barristers from a panel, in addition to military officers.

I welcome the comments made by Senator Dardis and Senator Moylan on the reputation enjoyed abroad by members of the Defence Forces. That reputation is certainly well deserved, as I have seen at first hand and hope to see again when I visit Lebanon shortly.

Senator Cummins asked the potential penalty for rape or other serious sexual assault on conviction by a court martial. Sections 57 and 58 provide for a term of imprisonment at the discretion of the court martial up to and including life imprisonment. There is no difference between that and the ordinary criminal law.

Senator Minihan asked whether the State would pay for legal aid and it will. I answered the question about outside lawyers. The Senator raised an interesting point about the provision whereby a court martial's appeal court cannot award a higher penalty. I take his point and we may need to reconsider the wording, as it may not be absolutely clear. If it is not clear enough we may need to amend it. The intention of the provision is that if the court of first incidence applied the maximum penalty it could apply, that penalty could not be increased on appeal. However, the court of first incidence might apply a much lesser penalty, which, of course, could be increased on appeal.

Senator Mansergh asked about the reference to the word "man". This comes from the 1954 Act, upon which this legislation is dependent — both need to be read together. There is a certain amount of case law regarding that phraseology in the 1954 Act. If we were writing the legislation from scratch we would not need to make that reference. I can assure the Senator that "man" includes woman for the purposes of this legislation. The point he made about court martial and modernising the language is worth considering. One note of caution is that the term "court martial" is used in the Constitution and we would need to be careful.

Senator Mooney asked about the use of the word "disgrace" in place of "ignominy". The Parliamentary Counsel regards "disgrace" as a more modern term than "ignominy". The Senator also asked about the role of the President. The only mention of the role of the President that I can find in the Bill is that the President appoints the military judge on the recommendation of the Minister for Defence. In ordinary criminal law there is no appeal to the President. A person exhausts the appeal system and that is it. I believe the Government can award a pardon. There is the system of presidential pardon. The same presidential pardon rules apply to people convicted by court martial as apply to people convicted in the ordinary criminal courts.