Simon Coveney (Cork South Central, Fine Gael) | Oireachtas source

From a legal perspective, it might be helpful to the House if I did. I thank Senators for their accommodation, in particular the other party spokespersons. I thank Senator Malcolm Byrne and the other proposing Senators for bringing this Bill before the Seanad. I appreciate the honourable intentions and efforts of Senator Malcolm Byrne and his colleagues in bringing forward this Bill and I fully concur with his sentiments and the principles he is seeking to protect.We all hold our Defence Forces in high esteem. I am also sure that we would all be concerned at any attempt by any person or organisation to lay claim to, or to represent themselves as, the lawfully raised Defence Forces of the State which, under section 16 of the Defence Act 1954, are to be called and known as "Óglaigh na hÉireann".

I wish to advise the House that the Government will therefore not be opposing the Bill on Second Stage. The Government fully respects and supports the intent of the Bill. However, there are major issues around the construction of the Bill as currently drafted and the extent to which it can successfully address the objectives of the proposers in protecting the title in a legally enforceable manner. There will, therefore, be a requirement to bring forward substantive Government amendments on Committee Stage to address certain difficulties identified following a review of the legislation by my Department and the Attorney General's office.

This Bill, as it stands, endeavours to address an issue that I am very much aware has been a sensitive one and has been raised on many occasions over the years. Successive Governments, Members of the Oireachtas, the Defence Forces and, indeed, many political commentators have expressed objections to the use of the title "Óglaigh na hÉireann" by non-Defence Forces institutions and, most particularly, by paramilitary and dissident organisation. Since the enactment of the Defence Forces (Temporary Provisions) Act 1923, the official Irish name of the Defence Forces of the State has been "Óglaigh na hÉireann". As such, the Defence Forces remain the only organisation entitled to use this term.

In brief, the focus of the proposed Bill is to amend the Defence Act 1954 to insert a new section 258A to provide that it shall be an offence for a person without lawful authority to establish a body of any description which uses either of the titles "Óglaigh na hÉireann" or "Defence Forces" and, second, for a person to join or act as a member of any such organisation.

The Bill further provides that a person found guilty of an offence under this new section will be liable on summary conviction to a class D fine, which is to a maximum of €1,000. In addition, the Bill contains a wide range of exemptions for organisations using the titles in question for various purposes, for example, historic reasons or the provision of services to serving or former members of the Defence Forces.

Following a review of the Bill, my Department identified a number of issues with the Bill which might potentially give rise to difficulties. The Attorney General has also reviewed the legislation and provided legal advice confirming the Department's concerns. Given the historical resonance of the title "Óglaigh na hÉireann", which dates back to the foundation of the Irish Volunteers in 1913, I am concerned that it might prove difficult, on the basis of the Bill as currently drafted, to mount a successful prosecution for the unlawful use of such title.

In addition, the following difficulties have been identified on the basis on an initial review of the Bill. First, the provisions in the Bill concerning the formation of the prohibited type of body, and membership of it, would be difficult to prove in court. Second, under the Bill it would be for the Minister for Defence to prosecute the offence, further to section 7 of the Defence Act 1954. However, the procurement of evidence on the organisations targeted by the Bill would be complex and risk straying into the remit of An Garda Síochána. Obviously, this provision will require further consideration and consultation with my colleague, the Minister for Justice.

Further consideration would also be required to be given to the exemptions from prosecution provided for in the Bill. As currently drafted, any organisation prosecuted under the Bill is likely to claim that the exemptions provided for in the draft Bill apply to that organisation and would, potentially, be successful in that regard, thus undermining the very intent of the Bill. Finally, an organisation prosecuted under the Bill could claim it had used the title prior to the law's enactment and, consequently, the provision could be determined to amount to a retrospective sanction. This element of the legislation also requires further consideration.

Based on the advice of the Attorney General, there are substantial concerns that the Bill as currently drafted will not achieve the intent of the proposers. The Attorney General has also raised significant doubt about the potential to mount a successful prosecution of a person or organisation under the Bill as currently drafted. Further consideration will be required to ensure that the provisions of the Bill do not undermine the very purpose of the Bill in the first place. I hope that everybody will work with me on that point.

As I stated at the outset, the Government is not opposing this Bill and, indeed, fully supports its intent. However, delivering on that intent will require significant amendments to the current draft. My Department will need to engage with the Attorney General's office in that regard and will bring forward amendments on Committee Stage to that effect. My Department will also be consulting with the Department of Justice and the Attorney General's office in the course of the drafting of the required Committee Stage amendments. My Department will also engage, of course, with Senator Malcolm Byrne in advance of the Committee Stage debate.

It may take some time to draft those amendments given the demands on the Office of the Parliamentary Counsel. However, I would like to assure Senators that I will bring forward the requisite amendments as quickly as possible. In other words, we support what Senator Malcolm Byrne is trying to do here. His intent is correct but the legal advice of my Department and of that provided by the Attorney General, with whom I have spoken personally in respect of this Bill, is that we believe, with the input of the Department and of the Office of the Attorney General, we can deliver on the intent of the Bill as outlined.