Micheál Martin (Cork South Central, Fianna Fail) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I am pleased to present this Bill, which will play a key role in driving the necessary transformation of the Defence Forces. Senators will be aware that high-profile reviews have been undertaken on matters relating to the defence sector in recent years. Key reports include those of the Commission on the Defence Forces and the independent review group on dignity and equality issues in the Defence Forces. As I outlined on a number of occasions, there will be a requirement for an extensive programme of legislative reform to give effect to the recommendations set out in those reports. The strategic framework on the transformation of the Defence Forces, which I published in September of last year, brings together into one overarching document the immediate actions to be taken to support the transformation of our Defence Forces. The framework includes my commitment to bring forward two separate Bills this year to amend the Defence Acts. This is the first of those Bills.

It is intended that this extensive Bill, which covers many aspects of the Defence Acts, will give effect to a key recommendation of the independent review group on dignity and equality issues in our Defence Forces regarding the establishment, on a statutory basis, of an external oversight body of the Defence Forces, establish a statutory framework for the Minister for Defence to consent to the military representative associations to associate with ICTU and bring forward a number of important miscellaneous amendments to the Defence Acts, including an amendment to the Ombudsman (Defence Forces) Act 2004.

The general scheme was approved by the Government last December and the drafting of the Bill commenced early this year. As is normal practice during the drafting process, the wording of the Bill includes a number of refinements and modifications to the provisions set out in the general scheme. The general scheme was referred to the Oireachtas Joint Committee on Foreign Affairs and Defence for pre-legislative scrutiny. As part of this process, there was constructive engagement and discussion between committee members and my officials on my draft legislative proposals. In the context of this engagement, a full list of proposed amendments to the general scheme and the associated rationale was provided by my officials to the committee on 2 April, with further communication concerning another amendment on 16 April.The committee also heard from other key stakeholders. As is evidenced in the correspondence with the committee which I have referred to, my officials and I listened carefully to what the stakeholders and the committee had to say. Accordingly, I am pleased to advise the House that the Bill as published includes a number of modifications and clarifications which take account of a number of the issues highlighted during the pre-legislative scrutiny stage.

I thank all members of the Joint Oireachtas Committee on Foreign Affairs and Defence for their engagement and for completing the pre-legislative scrutiny process in a timely and effective manner. As is common with any proposed Bill, there are some recommendations arising from the pre-legislative scrutiny process which I carefully considered but which I was unable to accede to, and I will elaborate on the reasons for this during my speech.

I turn now to the main provisions of the Bill.

Part 1 includes standard sections regarding the Title, commencement provisions, the repeal of an obsolete section of the Defence Act 1954 and the definition of key terms.

Part 2 sets out a number of important amendments to the Defence Act 1954.

Sections 6, 7 and 17 bring forward technical amendments to sections 48, 53A, 196 and 248 of the Defence Act 1954 to update and clarify the wording of the sections in question.

Sections 8 and 9 amend the sections in the Defence Act 1954 relating to the re-engagement of enlisted persons which takes place following the completion of a member's original term of enlistment. The proposed amendment will allow for greater flexibility in the length of the period of re-engagement that may be approved and will also remove an obstacle to increasing the maximum age limits for enlistment in the Defence Forces. This will, I hope, be a useful tool in our efforts to address recruitment and retention challenges.

Sections 10 and 20 remove the outdated requirement for the Minister for Defence to prescribe in regulations changes to the rates and scales of pay for members of the Defence Forces and the Army nursing service. Under these revised provisions, we will move to a more modern way of disseminating pay scale updates to all members. The proposed amendments are about improving administrative efficiency.

Section 11, which amends section 103 of the Defence Act 1954, concerns the codification in primary legislation of restrictions on activities of a public or political nature by individual members of the Defence Forces. There has also been some commentary that this provision might be construed as being disproportionate. There has also been concern that the provision might adversely impact the ability of members of the Defence Forces to fully engage in the activities of the military representative associations. It is my clear view and that of the Attorney General that these concerns, while genuine, are misplaced, and we have dealt with that also in terms of the inclusion of "without prejudice" to the role of representing members. In view of the apolitical nature of the Defence Forces, the Defence Act 1954 has always contained restrictions on the involvement of members in political activities. This is clearly reflected in the oath taken by all members of the Defence Forces when joining and in existing provisions of the Defence Act 1954 and associated regulations. The Bill does not change existing rights and obligations as set out in primary and secondary legislation.

Strong military advice has been received that provisions along the lines set out in the Bill are appropriate and necessary. Similar restrictions already operate across the wider public service and the text of the Bill clarifies that the relevant section will operate without prejudice, as I said, to the rights of individual Defence Force members to engage with, or be represented by, their representative associations. Having considered the matter, I am strongly of the view that the provisions outlined in this section are proportionate to protect the apolitical nature of the Defence Forces. It is also important to provide clarity in primary legislation to that effect.

Section 12 relates to the programme of random drug testing for members of the Defence Forces which has been in place for several years.

Sections 14 and 15 make technical amendments to sections 177 and 177A of the Defence Act 1954 which relate to the investigation of disciplinary charges that may be brought against an officer of the Defence Forces.

Section 16 amends section 184F of the Defence Act 1954 to give the Director of Military Prosecutions greater flexibility in the appointment of persons as prosecutors in court martial cases and thereby assist in the efficient functioning of courts martial.

I am particularly pleased to bring forward section 19, which amends the Defence Act 1954 to provide statutory protection to the term "Óglaigh na hÉireann" and to confine its use to the Defence Forces established and maintained under the Defence Acts.A person who commits an offence under this new provision shall be liable, on summary conviction, to a class D fine. The provision reflects the thrust of the Private Members' Bill introduced in the Seanad and sponsored by Senators Malcolm Byrne, O'Loughlin and Casey. I commend Senator Malcolm Byrne and his colleagues on their work in respect of this important issue.

Section 21, which inserts a new Part XIII into the Defence Act, provides for the establishment, on a statutory basis, of the external oversight body. Section 21 will insert a Thirteenth Schedule into the Defence Act to include additional provisions concerning the external oversight body.

In its report, the independent review group concluded that to implement a successful culture change and transformation programme, a new governance and oversight structure is required to increase transparency and accountability and to hold the leadership of the Defence Forces to account for progress on culture change. Following the acceptance by the Government of the independent review group's recommendations, the external oversight body was established on a non-statutory basis in April 2023. That was totally in line with the recommendations of the independent review group. This Bill puts the external oversight body on a statutory footing, as promised, and ensures that it will have the necessary powers and independence to carry out its remit. The body's function will be to oversee, monitor and advise the Minister for Defence on the implementation by the Defence Forces of a series of organisational reforms. Accordingly, the body will play a key role in driving the necessary cultural transformation of the Defence Forces.

I should clarify that the day-to-day human resource management will continue to be carried out by the Defence Forces on behalf of the Chief of Staff. The new oversight arrangements do not interfere with current management arrangements. Some views have been expressed, including in the pre-legislative scrutiny report, concerning the categories of persons that may be appointed as members of the body. In considering the composition of the membership of the external oversight body, I have been guided by the clear recommendations in the report of the independent review group. I am satisfied that these provisions closely reflect the independent review group's recommendation, including its specific recommendation that membership of the body should include the Secretary General of the Department of Defence. There has been some debate about the inclusion of the Secretary General as a member of the body on an ex officiobasis. I respect the good faith of those who have raised concerns. I thoroughly reflected on the issue following the various debates on the subject and I am satisfied that the presence of the Secretary General is appropriate and important to the effective functioning of the external oversight body as it interacts with the Department and the Minister.

Prior to the publication of the independent review, I recall that Members of both Houses pleaded with me to ensure that I would implement all of the recommendations of the independent review group. It was clear that this body could not be a representative one for the various organisations. The independent review group represented the Defence Forces not the Department. There is a logic to the recommendation from the independent review group in terms of how the Minister effectively carries out his or her duties. I am somewhat concerned about some aspects of this debate at it has unfolded as a result of a kind of them-and-us approach, which is unfortunate. The relationship between the Department of Defence and the Defence Forces was fully understood by the review group in conducting its work. I met with the review group. It was very clear that this body must be different to any other type of body that was set up in the past 20 years, as the review group felt that monitoring groups and so on were not effective in effecting change and transformation. That is a very important point. That is the context.

The independent review group equally understood the benefits of including the Secretary General as a member of the body to expedite the urgent change so clearly identified. Given that the Government has agreed to implement the recommendations of the review group in full, it would not be appropriate for me to now deviate from its recommended membership model.

The Minister for Defence will be responsible for the provision of staffing, equipment and other services as may be required by the external oversight body to carry out its functions. Funding will be by means of an annual grant-in-aid provided by the Minister, subject to the annual Estimates process. In common with other State bodies, the external oversight body will be required to produce a statement of strategy and an annual report.

Part 3 sets out amendments to a range of other enactments. Section 23 includes a technical amendment to provide that the National Archives Act 1986 shall apply to the records of the external oversight body. Section 24 amends the Defence (Amendment) Act 1990, which is the Act relating to the establishment and operation of the military representative associations. This suite of amendments provides a statutory basis for the Minister for Defence to authorise the Permanent Defence Force representative associations to associate with the Irish Congress of Trade Unions, ICTU. The amendments reflect the commitment to implement the recommendation of the Commission on Defence Forces that the Permanent Defence Force representative associations should be facilitated, if they wish, to pursue associate membership of ICTU, as well as a commitment given in June 2022 as part of High Court settlements with the Representative Association of Commissioned Officers, RACO, and Permanent Defence Force Other Ranks Representative Association, PDFORRA. The provisions regarding associate ICTU membership will facilitate the attendance of military representative associations at future national pay talks. This represents a positive step forward.

The codification of conditions attaching to associate membership is underpinned by strong military advice relating to the potential implications for the security of the State. I also note that the provisions are underpinned by extensive legal advice. During the pre-legislative process, concerns were expressed that these conditions could potentially interfere with representative associations carrying out their current activities in representing their members. This was not the intention, and the text of the Bill has been drafted to clarify that these prohibitions will operate without prejudice to the purpose of an association to represent its members. To be clear, the provisions in this Bill will in no way affect the ability of the military representative associations to represent their members as provided for under existing legislation. Having fully considered the matter, I am satisfied that the limited restrictions on the activities of the military representative associations, clarified through these amendments, are necessary and proportionate to safeguard the apolitical nature of the Defence Forces and are in line with existing rights and obligations. In considering these issues, I have had full regard to the military advice seeking such restrictions, the views of key stakeholders raised during the drafting process, and the legal advices that have been provided to me. These provisions are necessary to ensure the associate membership of ICTU can continue to remain in place.

Section 25 amends the Ombudsman (Defence Forces) Act 2004 to provide that persons who serve or who have previously served during the previous five years as members of the Defence Forces, or worked either as a civil servant or a civilian employee during the previous five years within the Department of Defence, shall not be eligible for appointment as the Ombudsman for the Defence Forces. This amendment is intended to bolster the independence of the Office of Ombudsman for the Defence Forces.

I emphasise the importance of this Bill. We have debated and agreed in this House the need for significant cultural change within and for the benefit of our Defence Forces. In that context, it is vital that Senators recall the seriousness of the wider findings of the independent review group and the urgency for reform to be implemented. This legislation is an important step forward in that process. The implementation of this legislation will provide the external oversight body with the necessary statutory basis to operate effectively and carry out its crucial body of work. There will be an opportunity on Committee Stage for a more detailed discussion on this legislation. In the meantime, I am pleased to submit this legislation for the consideration of the House. It will not be the only legislation on the Defence Forces coming forward. I am working and have given proactive instructions to my officials to begin drafting Bills not just on the amendment to the triple lock but also with regard to the chief of defence, CHOD, the chain of command and the Chief of Staff of the wider Defence Forces, again as recommended by the Commission on Defence Forces.

I commend the Bill to the House.