Private Members' Business. - Defence (Amendment) Bill, 1990: Second Stage (Resumed).

Tuesday, 13 March 1990

Dáil Éireann Debate
Vol. 396 No. 9

First Page Previous Page Page of 153 Next Page Last Page

The following motion was moved by the Minister for Defence, Deputy Lenihan, on Tuesday, 13 March 1990:

That the Bill be now read a Second Time.”

Debate resumed on amendment No. 1.

To delete all words after “That” and substitute the following:

“Dáil Éireann declines to give the Bill a second reading until such time as the document entitled Permanent Defence Force — Representative Groups has been published generally and has been considered and debated by Dáil Éireann.

An Leas-Cheann Comhairle: Information on James C. Tunney  Zoom on James C. Tunney  Deputy McCormack has a maximum of 13 minutes.

Mr. McCormack: Information on Pádraic McCormack  Zoom on Pádraic McCormack  Thirteen minutes.

An Leas-Cheann Comhairle: Information on James C. Tunney  Zoom on James C. Tunney  The Deputy has already lost one. He has only 12 left now.

Mr. McCormack: Information on Pádraic McCormack  Zoom on Pádraic McCormack  I am concerned about the loss of time but also about various aspects of this Bill. I am concerned about the document, Permanent Defence Force — Representative Groups, sent out to Army personnel containing a letter from the Chief of Staff which provides among other things, and I quote:

3. The first and most important step [2445] will be the conduct of the elections. Once the elections are over, full consultation as the Tánaiste has said, will take place with the elected representatives on all aspects including the electoral process itself, the voting system, structures and procedures.

I find that very strange. After the election is over the consultation will take place. This Bill went astray and was not accepted by the people concerned because it did not provide for the consultation to take place in advance of rather than after the event. On page 2 of the document it is provided on the system of election that, and I quote:

The Officer representatives who form the command group will in turn elect one of their number to go forward to DF HQ level. All these elections will be by secret ballot using the single non-transferable vote system.

I query that. Why not use the PR system, the recognised electoral system in Ireland which was twice maintained by the people in referenda when the Fianna Fáil Government tried to abolish it? I cannot for the life of me see why the proposed system would have to be adopted when a number of people contest a position. The only fair way of coming to a result is by PR.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  We can do that.

Mr. McCormack: Information on Pádraic McCormack  Zoom on Pádraic McCormack  Why would the Minister not do that the same as anybody else?

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  I said in my opening speech that would be the subject matter of discussion for the returning officer. They are all only proposals.

Mr. McCormack: Information on Pádraic McCormack  Zoom on Pádraic McCormack  I thank the Minister. It is good to know there is flexibility still in the matter. Knowing the Minister, I know there will be flexibility before this Bill becomes law.

Section 2 (3) of the Bill provides that, and I quote: “An association shall be independent of and shall not, without the [2446] consent of the Minister, be associated with or affiliated to any trade union or any other body.”. Again that is restrictive but apparently nothing can be done without the consent of the Minister. That is what makes many aspects of this Bill questionable from the point of view of the people it is supposed to serve.

The most surprising and serious aspect is section 6, particularly subsection (2) which provides that: “A person who is not subject to military law who endeavours to persuade or conspire with any other person to endeavour to persuade a member to join a trade union or other body (other than an association) aforesaid shall be guilty of an offence and shall be liable to the penalties provided for a contravention of section 257 of the Principal Act”. That penalty is up to a maximum of six months in jail. That seems very serious. Does it mean it would be dangerous to associate with or speak to any member of the Defence Forces? It seems extraordinary and completely unnecessary and I hope it will be removed by some amendment before the Bill is passed.

I have confidence in the Minister and I hope he will be able to accept the many reasonable amendments which will be put down by the various Opposition parties on Committee Stage. Perhaps we can reduce some of the harm by considered amendments to the Bill as presented to us.

In Galway city we are privileged to have an Army barracks in my parish of Renmore, Dún Uí Mhaoilíosa Barracks, where we have a large number of Army pesonnel and here I pay tribute to them. They are great asset to our community. They are involved at every level, social, cultural and economic. I hope the other Dáil representatives from Galway West will take note of the high feelings of the members of the Defence Forces in Galway and of their families in their opposition to this Bill in its present restrictive form. I will be watching with interest their contributions, if any, to this debate. Members of the Defence Forces in Galway will take more than a passing interest in the actions of their elected [2447] representatives and how they will vote on this Bill or how they will contribute to this debate. This Bill concerns the future and wellbeing of a large section of our community within our constituency of Galway. The people of Galway are watching this debate with interest, as I know from the activities particularly of the Army Wives Association over the weekend and the way they lobbied their Dáil representatives, outlining their feelings and beliefs about the inadequacies of this Bill. I will watch with interest the actions — or inaction — of my fellow representatives from Galway.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  This Defence (Amendment) Bill, 1990, which will allow for representative associations for members of the Defence Forces is major legislation. This is a historic day for the Defence Forces and I am delighted that the Minister for Defence has brought the Bill before the Dáil. It is long overdue and I think we all agree that the members of the Defence Forces have had grievances, they have something to say, and they should have structures within and through which they can voice their opinions and improve their conditions, and that will have the knock-on effect of improving their morale.

As the previous speaker said, we have a Defence Force of which at all levels we should be proud. At UN level our Army have served and are serving us with distinction and courage, playing their part admirably on the international stage in the Middle East and southern Africa. They bring with them to these divided regions the unique Irish characteristics of passivism and diplomacy, characteristics that are truly evident in the personality of the current Minister, Deputy Lenihan, who has over the years as Minister for Foreign Affairs and in his capacity in other Departments been a respected advocate of peace and reconciliation worldwide. The reputation of the Irish members of UNTAG in Namibia is recognised internationally. They have the ability to get on with both sides, to act as mediator, to build bridges. Because of [2448] this nation's pivotal role internationally — after all we are neutral and are using this position positively abroad — our Defence Forces command unique respect. We must give them the scope to develop and to respond to modern times. We must give them the facilities and equipment, and this enabling Bill is the first step in bringing about this process.

Because of the Defence Forces' binding association with the security of the State it is clear that the structures being set up must not and will not impinge adversely on the command, control and discipline of the forces. I believe the armed forces recognise this and the public who are protected by them would not want it any other way, so the associations will represent members in relation to pay, welfare and other matters to be prescribed by regulations. Issues such as operations, command and discipline will not come within the remit of the associations. The Minister's approach is correct. He is initiating a general framework for a representative system. The details of this new framework will be worked out in consultation with the elected representatives of the Defence Forces following democratic elections by secret ballot. The Army have fallen behind in relation to some welfare and pay matters, medical benefit systems and family support schemes. These are issues which must be addressed and they will be addressed as a result of this Bill.

The representative group will be entitled to speak to the media once they have their own representative association. The situation at present is most unsatisfactory. It has been left to the wives of the Defence Forces personnel to put forward their grievances through the media. They do a good job but I am sure they would prefer their husbands to speak directly for themselves. The associations will have a clear right to talk to the media. They will not have to go through a military chain of command. This is one of the many aspects of this debate which needs to be cleared up. I hope as a result of this debate that many of the problems which have been put before us here and by the media will be cleared up.

[2449] A very important and necessary proposal is the establishment of a new system of conciliation and arbitration. This in effect will be the same as the system in place for the gardaí. Reference has been made to the PDFORRA which was set up on an ad hoc basis and also to the spouses association who have been speaking for the Defence Forces. It is clear that we must start afresh. We must have free, fair, democratic elections in the interests of the Defence Forces. There must be elections for new associations. Members will decide on the structures and on the direction they will take. The irony is that if these new associations are allowed to develop they will protect the rights of members and give them the right to speak. The alternative facing the Minister is to do nothing. In that case the PDFORRA would remain a talking shop with no real function. This situation is most unsatisfactory.

The Minister announced last July that this new system would be established. Since then much time and energy has been put into the type of framework envisaged and how it could proceed in a democratic manner. Now we have a Bill and we know where we are going. In many ways the new framework is like that of the Garda representative body. If the gardaí representatives have a grievance they go to the commissioner; if this fails they avail of conciliation and arbitration machinery. In the case of the Army, representatives will go the Chief of Staff and if necessary they can avail of the conciliation and arbitration mechanism. The system is backed up by law and the courts. The Minister's approach is non-confrontational. It has been suggested that in some way the Bill is a con, that there is a trick in it somewhere, that the Minister is trying to get these structures in place and then nothing will be done. This could not be further from the truth. I am convinced that it was introduced in a generous spirit of co-operation and the whole appoach is to tackle a fundamental and real grievance.

Deputy McCormark suggested that section 6 was targeting the Army spouses association. I think the inference was that [2450] they would be silenced. The Minister has already made it clear that this is not true. The section refers to people who try to persuade a member to join a trade union or other body other than the association. Such persons shall be guilty of an offence. It does not prevent these spouses from meeting or speaking out. I hope there will no need for such a forum but if the spouses wish to meet or to speak there will be no problem and they can continue to do so.

This is an historic occasion. Two central measures were initiated last year by the Minister. The first was the setting up of a representative association with legal standing and the second is an independent pay commission. Nobody wants public controversy in relation to armed forces. It is not good for the morale of the forces themselves or for the morale of the country. If this controversy persisted it would impinge on the very core of the authority of the State. The Constitution states that laws may be enacted for the regulation and control in the public interest of the exercise of the right to form associations. That is what we are about tonight. There is a right and proper way to do this but there is no quick solution. This House has a specific constitutional responsibility regarding the armed forces and careful consideration is called for. The Minister has responded properly with care, conscious of the need to initiate some fresh thinking that will have the end result of improving the lot of privates, non-commissioned officers and officers. If members feel the need for change or for some sort of amalgamation, the arrangements can be reviewed. That is part of the success of the Bill. There is great scope for flexibility. It is enabling legislation. The details are left for incorporation in regulations which are more flexible. This is appropriate since we are dealing with matters which are evolving. The Minister has asked for consultation as part of this process. No doubt there will be change as time goes on.

Deputy McCartan referred earlier to EUROMIL, which is the European umbrella organisation of military associations. Deputy McCartan supported an [2451] association with EUROMIL. I must state my serious concern at the possibility of such an association. I firmly hold and believe that our military neutrality must be zealously guarded and I would strongly oppose any suggestion of affiliation with or membership of a European group of military associations. Deputy McCartan could find himself in deep water if he pursued this line of argument. He was always a strong promoter of the PDFORRA. In some respects it is typical of his party's style. They have the advantage, because of their size, of being able to be for everything because they will never have to be accountable in Government for making responsible decisions, unless they form an alliance with some larger party.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  Fine Gael.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  They have a problem with numbers and I doubt that alliance will ever come to fruition.

Mr. McCormack: Information on Pádraic McCormack  Zoom on Pádraic McCormack  Stranger things have happened.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  I listened carefully to Deputy McCartan when advocating the establishment of PDFORRA. I can only describe such an approach by an elected Member of Dáil Éireann as reckless and irresponsible. He should know, as one who participates in a parliamentary democracy, that we must act responsibly on this issue. This House has a responsibility and a right under the Constitution to raise and maintain military or armed forces. In effect, the organisation of the Defence Forces is a matter for Government. The Constitution recognises the unique position of the Defence Forces and the manner in which the State may provide by law for their organisation and control. In trying to set up a new institutional arrangement we must be conscious of this special position and, at the same time, allow for the setting up of representative voices in relation to pay and other conditions of service. As the [2452] Minister said earlier, it is a matter of getting the balance right.

The Workers' Party attitude to the issue is the same as their stance on other economic and social proposals from the Government. They oppose it. This response is an insult to the Defence Forces. This is not just another issue, it is different and unique. I have hoped that they would have waited for the Minister's proposal, allow this legislation to evolve and the democratic process to unfold. Careful consideration was required to provide for the setting up of these associations to give a voice to the members of the Defence Forces while not compromising the essential military systems of command and control. The Minister got the right balance; he stated today that the process of consultation is the essence of the new arrangements and will continue as a integral part of them.

I agree with the remark by Deputy McCartan that the loyalty and competence of the men in the Defence Forces are not in question. All politicians accept this and they and the public appreciate it. We all look forward to the conclusion of the Gleeson report on pay and conditions because we want to see the conditions and pay of our armed forces improved. Deputy McCartan is a spokesman for the PDFORRA and he spoke today on their behalf. He said he would wait for the outcome of the Minister's deliberations but I find it difficult to take that kind of thing when we are dealing with such a delicate and sensitive matter. The same Defence Forces' representatives appreciate that one should not be involved in a destructive manner in this debate and it is difficult to accept that a TD would approach such a debate with this attitude.

The Minister is taking the first step towards establishing something important and a new structural framework will be put in place. The representatives of the Defence Forces understand the special position they hold in relation to the State and it is appreciated by the public. The representatives understand what the Minister has in mind for the [2453] future now that the Bill has been introduced. It is an historic breakthrough and it is time to join the Minister in making the system work because it is in their interests and those of the country as a whole.

Mr. Durkan: Information on Bernard Durkan  Zoom on Bernard Durkan  The fact that we are here discussing this Bill is an achievement in one sense because the right to do so was hard fought and contributed to by various people. I must give all due credit to the Army spouses' association who initially took up the cudgels on behalf of the Army personnel because nobody was allowed, legally, to take up their case. I will deal with that in a little more detail in a few moments.

It was sad that we allowed the situation to deteriorate to such an extent that the Army wives had to protest outside this House before they got a hearing from Parliament and, more especially, from the Government. The Minister was not then responsible for the Department but I am extremely critical of the Government for allowing a situation to develop over a long period of time — throughout 1988 and 1989 — when a lot could have been done to redress the obvious problem. The dogs in the streets were barking the problem that had arisen in the Defence Forces but the Government sat idly by and did nothing.

The previous speaker said that those involved in PDFORRA should have waited. However, they have waited long enough. Many promises were made to them over the last six or eight months in particular and a glorious opportunity was missed by the Government, in the early stages of the year and especially at budget time, when it would have been easy to say that as an indication of their seriousness and intent they were awarding something on account. They did not do so.

It is all very well to say that we hold our Defence Forces in very high regard and that they conduct themselves well with UNIFIL and so on, but what good is that if we do not respond quickly to solve their problems? This has been going on for several years but in the last 18 [2454] months there have been repeated representations and statements made on both sides and, far from reconciliation, the two sides were at daggers drawn. The Minister and the Government had a serious responsibility to try to ensure that the matter was resolved long before we got to the stage where the Minister had to bring a Bill to the House to set up some kind of framework to deal with the problem. He is not too sure about it, he has circulated a document, Permanent Defence Force — Representative Groups, which purports to say a great deal but which in reality says nothing.

Let us go back to the origins of the problem. In the beginning I felt that there was a serious problem which should have been addressed in relation to pay, working conditions, housing and many other issues which do not impinge on the day to day discipline within the Army. They were not dealt with and I felt — I still feel — that if they had been responded to at that time the problems would not have magnified. The ideal structure would have been something which was representative of officers, other ranks and NCOs. Perhaps a chairman could have been provided by the Minister who would not have had a veto. The whole question could have been dealt with in that way and the body — a statutory one — made up of representatives of the groups I mentioned could have adjudicated on the various issues raised. They could also, in the case of disagreement, refer their problems to an independent arbitrator. I admit that I do not know which would be the best kind of structure in that case.

At present we have got almost what PDFORRA were looking for but with a number of fundamental differences. The only reason this Bill has been introduced is to slow down the momentum which started because of the Government's failure to respond to the legitimate representations and requests of the Army personnel. That applies to officers, NCOs and enlisted men.

The biggest single military establishment in the country is housed in the Curragh in my constituency. From 20 [2455] January last there has been no communication between the bodies investigating at senior staff level and the officers there.

A lot has been said in the last couple of hours about consultation and communication. A great deal can be achieved if consultation is entered into at the initial stages. However, a great deal of harm can be done if that process is ignored. I am not suggesting that the Minister is the only person responsible, the Government are also responsible. They should get off their high horse and recognise that a problem exists. They should enter into some sort of negotiation with, for example, PDFORRA. They are not a statutory body so the Government can talk to them. It has been suggested that an individual who has a legitimate submission — assuming of course that it was possible to do so in the current climate — might be put on report. That is not constructive, advisable or helpful in any way at present.

What in Heaven's name are the Army personnel to do? Individuals step out of line or make representations to any quarter whatsoever, they can proceed through the normal command structure, which has always been the case, and that is all right up to a point for certain issues but the problem is that the issues that have caused the serious problems in the last 18 months or so were not of that type; they were basic, fundamental, almost human rights issues which were ignored by the Department. If the Minister wants to accept responsibility for that, so be it. Somebody somewhere must accept responsibility for the problems that have arisen mainly because of the deafening silence in the face of the legitimate submissions that have been made.

Let us look at the conciliation and arbitration proposal the Minister has made in this document. I see nothing wrong with it. I am sure PDFORRA or the officers' representatives, when and if they are allowed to set up a structure, will see nothing wrong with it either. The problem I see is that it leaves a great deal [2456] of speculation. It refers to what happens in the rest of the public service and the confines within which the conciliation and arbitration system could work but it does not tell us exactly what happens in the case of an impasse developing and the matter being referred to an arbitrator. Who appoints the arbitrator? Where does the arbitrator come from? Does this commission consist of just one person? If so, I presume such a person is deemed to hold the fountainhead of all knowledge. That would be a very difficult position to be in. It would be preferable to have a body that would be representative of the men, officers and NCOs and if they failed to achieve some degree of common ground there could be further reference to an independent arbitrator.

I fully accept, as I am sure everybody in this House accepts that the Army have a very difficult and responsible role to play. I do not accept for one moment that every minor detail or problem, disciplinary or otherwise, should have to be referred to any quarter other than through the normal channels. In the type of situation that is now developing we in this House and especially the Government, have a responsibility to recognise that the problem has arisen simply because of a slow response. It is fine to suggest that this could be a dangerous type of association, that it is not exactly what we have in mind, that we have to make certain changes or that certain procedures will have to be followed in relation to elections and so on. I do not think the people involved have any objection to that. They accept that elections will be democratic elections and that, having been elected, those people will then be given the responsibility of making their case but there is one thing missing in all of this. Surely the Government, the Minister or the officials in the Department, should have talked directly to the people concerned. I know somebody will say this has been done and perhaps it has up to a point but generally speaking in any command you will find again and again the same response; that there has been little or no consultation. If the Minister is serious about setting up a structure [2457] to resolve the problems that have bedevilled the Defence Forces for the last few years, consultation should have been the first chapter in anything he intended to do but I am sorry that does not appear to be the case.

It was in response to questions from a number of people in this House that the Minister indicated his intention to set up three bodies. I accept there may be difficulties in having one body and I think the Minister's proposals to set up three representative groups would not receive too much opposition, even from within the Defence Forces. The only problem I would see relates to the old adage of divide and conquer. If you divide often enough you weaken the thrust of the representation that is going to be made. Again, this is something that is not desirable and certainly is not necessary.

The Defence Forces have always shown themselves to be highly responsible and they and their families have made great sacrifices. If anybody wants to visit some of our barracks they will recognise fully the extent to which families have made sacrifices and one can then recognise the degree of annoyance and utter frustration with which the Defence Forces have responded to the Government's lethargy over the past 18 months to two years. I do not want to dwell too long on that aspect of the matter but I want to state that the housing conditions in which many families and single people in the Defence Forces have lived over the years are not exactly what one would expect of a civilised society in the 20th century, especially a society that purports to give great recognition to the work of the Defence Forces, including their work abroad. Small issues like basic housing accommodation should come high on the priority list when dealing with the issues that have been raised.

I know considerable discussion has taken place within every command in the country and the Curragh is no exception. Discussions have taken place there at officer level with a view to determining what kind of structure they would like to have representing them. Essentially the structure they are thinking about is more [2458] or less the same as that put forward by PDFORRA, with one or two differences. Again the one thing that comes up is that there seems to be little co-operation, assistance or consultation with the Minister or the Department, the powers that be. The people concerned are a very responsible group of people who do not wish to offend anybody but at the same time they wish to ensure that their rights are recognised. They have legitimate rights just the same as every other branch of society and they have every right to have their case heard. It would be only a small thing for the Minister to send somebody along to have discussions with them on a fairly regular basis. The situation should not arise again whereby there have been no discussions since 20 January while somebody decided the framework of a Bill. With no disrespect to the draftsman or anybody else, it could scarcely have taken from 20 January until now to produce a Bill of that size. The time in the interim would have been extremely well spent having regular, on-going discussions with the people concerned in order to ensure that when this document, Permanent Defence Force Representative Groups, was produced there would be sufficient provision in it to meet the requirements of the times.

We are not expecting too much at this stage. I, too, support the amendment put down by my colleague, Deputy Ted Nealon, who is our spokesman on Defence. I hope the Government will consider, even at this late stage, accepting that amendment in order to give us an opportunity to discuss the document in question. Considerable progress might be made in evening out some of the corners and taking some of the difficult or more obstructive edges out of the document if we had an opportunity of discussing the matter at some length in the House but we do not have that facility. This document was only issued in the last few days but I happened to see an unofficial copy of it earlier — an unofficial copy for the simple reason that we all know what could possibly happen to members of the forces who make representations to public representatives, [2459] which again is a matter for further discussion during the course of this Bill. All Members of this House should have had the same access to this document in the initial stages as the members of the Defence Forces to whom it directly relates. I do not want to delay the House as I realise time is running out, but I would point out that the representative groups in the structure proposed by the Minister are not too far from what PDFORRA have talked about.

There are a number of difficulties, and one is a lack of trust. The Defence Forces would have more confidence in the Government if they had responded to them at an earlier stage. The Minister and the Government should have said they recognised the difficulty the Defence Forces have with pay and working conditions. After all, the Minister for Finance started out on budget day with a surplus but in the evening ended with a deficit.

I am sure it would not have been impossible to deal with this problem and recognise the issue that drove the Army spouses to seek election at the polls of June last year. Surely somebody recognised the necessity to respond at an earlier stage and that the people concerned were genuine and had no axe to grind, other than to obtain a reasonable standard of living for their households. I believe the Government could have done something constructive at that time by simply saying, or having the Minister for Defence say on budget day, that he proposed to respond to them in a positive fashion.

There is a great deal of distrust on the Army side in the sense that they do not trust the Government to do what they have set out in the Bill before the House tonight. They have their doubts, and quite frankly, I have doubts too because far too much time has been allowed to drag by. The situation has been allowed to ferment for far too long. The few bob involved will not make or break anybody and could have done a great deal to resolve the problem in the Defence Forces.

[2460] Great responsibility rests on the Government collectively. There is no use in anyone trying to skive off and let the responsibility rest on one individual, because the Government, collectively, must accept responsibility. The Cabinet sit around the Cabinet table and they have their responsibilities. The members of the parliamentary parties which make up the Government have a responsibility and they should have known about the problem that has existed since last June when the arrangement, which some people referred to as temporary, was entered into. Surely somebody should have recognised that a response from Government would have been well received and that that would have generated trust and confidence that has been lacking. Until such time as the Government come up with a positive responsible approach to these problems, there will be that distrust.

In conclusion, I think it would be better to accept the Fine Gael amendment than to rush ahead and superimpose these structures without going into the finer detail. The Minister should have gone in a different direction. He should have started at the top and told us in fine detail the structures he had in mind. He could have laid the groundwork so that every member of the Defence Forces, whether an enlisted man or woman, officer or non-commissioned officer, would know before the elections took place that they could make representations to a particular body or bodies and they had to go about drawing up their representative bodies. That would have been the responsible way to go about it.

At present PDFORRA has been virtually set up and the officers' representative body has been almost set up unofficially with nobody knowing whether their body will be official or unofficial after this. If the Government had responded more quickly at the beginning we would not have this situation. I call on the Minister and the Government to give serious and careful consideration to the amendment tabled in the name of Deputy Nealon to the effect that: [2461] Dáil Éireann declines to give the Bill a Second Reading until such time as the document entitled Permanent Defence Force — Representative Groups has been published generally and has been considered and debated by Dáil Éireann.

I hope the Government may yet respond positively to that and even at this late stage establish a confidence between the Government and the Defence Forces which does not exist at present.

Mr. McGahon: Information on Brendan McGahon  Zoom on Brendan McGahon  I come from the Border town of Dundalk and in the past 20 years I have had first hand experience and a grandstand seat of the role the Defence Forces, both the Garda Síochána and the Army, play in safeguarding our country from the threat of subversive forces which has hung over this country like a pall for the past 20 years. Over the past two decades I have observed the Irish Army out at all hours of the night performing duties necessary to ensure that our country is safe from the IRA and the UDA.

It is regrettable that it has taken until 1990 for the Army to be given a hearing. Almost 70 years after the founding of the State the fact that the Defence Forces have not had a representative body is surprising and very regrettable. It is also particularly regrettable that the Fianna Fáil Government, and possibly my own party when in Government three years ago, did not recognise that need. It is very easy to recognise it now in Opposition but the fact is the Defence Forces have been denied a basic right to air legitimate grievances.

It is progressive that the Government, however belatedly, have recognised the right of the Defence Forces as some time ago the Garda Síochána were given the right to have representative bodies. However, confrontation by the Fianna Fáil Government with the various Defence Forces, be it the Garda Síochána or the Army, is nothing new and I believe the present Taoiseach when he was Minister for Justice suspended several leading [2462] members of the Garda Síochána, including, I believe, Jack Marrinan who recently stood for office as a Fianna Fáil candidate. However they won their battle. It is only just that the Government should have decided, no matter how belatedly, to recognise that there is a need to introduce representative bodies in the Army.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  For obvious reasons, it would be better if no reference was made to persons outside the House.

Mr. McGahon: Information on Brendan McGahon  Zoom on Brendan McGahon  I accept your ruling, A Cheann Comhairle, but it is a fact that that happened. I did not invent it.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  This is a privileged assembly.

Mr. McGahon: Information on Brendan McGahon  Zoom on Brendan McGahon  I am stating a fact and I cannot look at it any other way.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  That may be so.

Mr. McGahon: Information on Brendan McGahon  Zoom on Brendan McGahon  In his contribution Deputy Durkan referred to various matters which give rise to grievances. He stated that housing conditions are not as they should be in different barracks around the country. I have to say that this is not so in the town of Dundalk where a magnificent barracks was built which would serve as a monument to the efforts made by my illustrious predecessor, the former Deputy Paddy Donnegan, who gave the go ahead for a building which could not be surpassed for comfort. That is as it should be. I would like to see the same standard achieved in other barracks. I am confident that will be the case.

The fact that Army wives had to take to the streets to air the grievances of soldiers, many of whom are paid very low salaries and who can only make ends meet by working long hours of overtime, illustrates the real grievance being felt by many Army personnel at the rank of private and corporal. Some of these soldiers have to put in between 90 and 100 hours a week before they can earn a reasonable salary. Surely, and I am no [2463] admirer of trade unions, something needs to be done about this. I do not believe in street politics but if the National Army Spouses Association had not taken the initiative nor had the courage to take to the streets in peaceful protest the Government would not have recognised the need which everybody else in the country has recognised but then when the Government did not recognise that there was a crisis in the health service it is hardly surprising that they failed to recognise the unease being felt within the Defence Forces.

The National Army Spouses Association have been spectacularly successful by means of their peaceful protests and they have brought the Government, screaming, up to the mark. Deputy Durkan hinted that the commitment of the Government is not all it should be and I am sure that Deputy Power, coming as he does from a county where there are so many Army personnel, will be well aware of the unease being felt within Army circles. I do not want to have a dog in the manger attitude but it is a fact that the Government, no matter how belatedly, have recognised this need.

In relation to joint Garda and Army patrols which I have observed on many occasions along the Border, it is wrong that Garda personnel are paid handsome sums for overtime while the hapless unfortunate soldiers have to work for virtually nothing, although in recent times they have been given a significant Border duty allowance. Many of these soldiers are young, married and buying homes and they would not be able to pay for their mortgages except for the fact that this Border duty allowance was introduced. Before they can get a reasonable salary they have to work a bizarre and unacceptable number of hours, between 90 and 100 hours a week which is totally unacceptable in the modern world.

I make a reasonable request that the Government accept Deputy Nealon's amendment which proposes that the House should decline to give the Bill a Second Reading until such time as the representative groups in the Army have [2464] had the time to absorb what is contained in the Bill and to consider it fully. This is a reasonable request which I think should be granted by the Government.

Mr. Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  Earlier I listened to Deputy Kitt speak about coalition which is a theme I would like to take up for a few moments as I wish to talk about the present position of the coalition in relation to representation in the Defence Forces. It is remarkable that in the Programme for Government drawn up by Fianna Fáil and the Progressive Democrats there is no mention of the Defence Forces despite the fact that the question of pay and conditions in the Defence Forces was an issue long before the general election as it was during the campaign itself. The omission is also remarkable given the fact that the Minister for Energy, who is a former Minister for Defence and who had much to say about the Defence Forces prior to the general election, apparently was one of the negotiators of the document.

Deputy Kitt also had some things to say about democracy. One of the fundamental tenets of democracy is the right of people to organise. There is a constitutional right which guarantees freedom of association and the right to organise. Section 2 of the Bill as presented provides for the establishment of representative associations but it seems to be concerned as much about suppressing the associations which have arisen voluntarily within the Defence Forces as it is about the establishment of new associations. This appears to be a negation of the democratic principle of freedom of association and the right to organise.

There is much talk at present about the implications for discipline and operations in allowing organisations and representative bodies within the Defence Forces. When the record of this debate is read 20 or 30 years from now, when the principle of representation in the Defence Forces is long established and when people will be looking back at 20 to 30 years of representation within the Defence Forces, they will be somewhat bemused by the [2465] extent to which Members of this House were concerned about what the establishment of representative bodies might lead to within the Defence Forces. It is not all that long ago that the same arguments were put forward about nurses, and people asked what the implications would be for the hospital service if nurses were allowed to join unions or form their own associations. There is a long record of that and I have no doubt that in years to come there will be a long record of representation within the Defence Forces without that causing anarchy or a breakdown of discipline.

It has been said repeatedly in the House that we are fortunate that the Defence Forces are committed to the force and, indeed, are committed to the democracy which guides those forces in the first place. That is very valuable and it must be defended. It is regrettable that the pay and conditions of the members of the Defence Forces were allowed to deterioriate to such an extent that there was concern about the establishment of the Army wives association to raise the issue, and the establishment within the Defence Forces of PDFORRA. The level of concern and activity arose because of deterioration in regard to pay and conditions. I do not believe that that should have been allowed. The fact that there was not a representative body within the Defence Forces, or a forum through which members of the Defence Forces could express their grievances on these matters, was exploited through neglect and allowed to degenerate. The members of the Defence Forces are concerned that where they work side by side with the Garda on security duties they must do so under conditions that are considerably worse than those enjoyed by the Garda. It is clear that that gives rise to bad morale among the members of the Defence Forces.

I should like to express concern about a number of aspects of the Bill. Members of the Defence Forces should have the right to organise themselves. There is always a danger in prescribing the type of organisation to which people may belong. There is a danger in section 3 which, [2466] effectively, is aimed at outlawing PDFORRA. Members of the Defence Forces who have joined PDFORRA may have done so out of frustration at the lack of progress on their grievances. It is very dangerous to challenge the method by which many members of the Defence Forces chose to organise themselves. The Bill is seeking to do so by effectively repressing that organisation and putting a new body in its place. That is a bad principle. The question of representation could have been better tackled had the Bill laid down procedures for elections and the conduct of business within an organisation that was voluntarily established by members of the Defence Forces.

I am concerned about section 4 which states that an association shall not represent or have as a member of any governing or other body or committee of the association a member who is on active service. That provision is wide open to abuse. Is it not possible through that section for an active member of the association for one reason or another to suddenly find himself put on active service? There are many examples of members of trade unions or staff associations finding themselves in that position. For one reason or another after they had become active a person in authority decided that the easiest way to deal with him or her, particularly if they were active and articulate, was to put them on active service.

There is no provision for the appointment of a full-time secretariat for the new bodies. One of the strengths of the Garda Representative Association has been the fact that they have had their own general secretary and secretariat. Those officials are not in active Garda service and have, therefore, been able to represent their members without fear of any comeback through the normal system of authority and discipline within the organisation. I hope the Minister will correct that weakness in the Bill.

The Bill states that the association shall not, without the consent of the Minister, be associated with or affiliated to any [2467] trade union or any other body and I consider that to be a repressive measure. I can understand the fear that has motivated it but it is a fear that is not well founded. I have no doubt that in the course of time the Minister will find that that is not the case. I am concerned that the Bill, far from providing a satisfactory method for representation within the Defence Forces will give rise to more unrest than it was intended to resolve. It would be a better approach to accept that members of the Defence Forces are voluntarily organising themselves into a representative body. Certain measures and regulations could be set down as to the method to be adopted but it is a dangerous principle and a dangerous approach to attempt to set about the suppression of organisations which have been voluntarily established within the Defence Forces and to put in their place bodies which may not have the confidence or the active participation of the members of the Defence Forces. Those bodies will be established in a way which will severely restrict them and they could give rise to a lot of frustration and difficulties within the Defence Forces. Far from resolving the problem this may exacerbate it.

Mr. Noonan: Information on Michael Noonan  Zoom on Michael Noonan  (Limerick East): I should like, like other Members, to pay tribute to the Army. Like many of the institutions of the State, the Army grew out of the War of Independence and, subsequently, out of the Civil War. It was a major constitutional achievement for an Army that took a particular side in the Civil War to be able to develop as the Army of an independent State between 1922 and 1932. It is possible that the Army's finest hour was when they could accommodate a change of Government in 1932 when the political representatives of the opposing side in the Civil War got into Government. The loyalty of the Army was sufficient to accommodate that change in a manner which was unique in emerging nations, particularly in the type of emergence from colonialism that we [2468] have seen across the world in the last 50 years.

That type of tradition was laid down by Michael Collins in his time. On the occasion of the death of Michael Collins the House will recall the tribute, in the first instance, of Risteárd Mulcahy and his appeal to the forces that no act would sully the proud name of the Army. There is a long tradition and one of which we can be proud. The Army has served the people of this country and every Administration without fear, favour, rank, or prejudice and has done so in an outstanding manner. Their role has changed over the years, as the role of any Army will change. Certainly they played a crucial role in the life of this country. It is remembered with great fondness by many older people that during the Second World War when units of the Army were billetted in all parts of the country and civilians from all walks of life joined in what we euphemistically called the “emergency” friendships were established between the new entrants to the Army and members of the regular Army who were transferred subsequently in civilian life, and formed the basis for many endeavours throughout the fifties and the sixties.

The Army of the small emerging nation became an international force subsequently when we were honoured by being accepted as members of the United Nations and when our forces were deployed overseas in a peacekeeping role. I can still remember the march through O'Connell Street when the Irish Army sent the first units to the Congo. I can also remember the great mixture of pride and sorrow that greeted the returning cortege from the Congo when our small nation, which had stood aside from the events of 1939 and 1948 and which had no record of coffins coming home, was suddenly faced with the tragedy of young Irishmen playing their part in keeping the peace in an emerging nation being brought back to Dublin and corteges moving through the streets of Dublin. Many of us in this House can recall that event. Since then they have fulfilled the peacekeeping role in many [2469] parts of the world, in Cyprus, in various observer status missions in the Middle East and at present in the Lebanon always with pride, making us feel proud of them and more than anything else being distinguished by the very good relationships they establish and maintain with the civil populations in those countries. We have example after example in areas of conflict where we got the word back home that the Irish were the most popular peacekeepers. They seem to understand the problems of ordinary people. That is true because we have shared the kind of experiences of emerging nations, except that we shared them in an earlier generation.

In later times the army became the last arm of government, the last defence, the last provider of essential services. I saw members of the Army driving oil lorries to provide oil and petrol when it could not be done any other way. I saw the Army providing an alternative transport service in Dublin when the buses were on strike. I saw the Army emptying refuse when it became a health hazard in the streets. I saw the Army, during my time as Minister for Justice, providing the housekeeping in the prisons when the Garda Síochána carried out the duties of the prison officers. Sometimes the work they had to do was unpleasant and sometimes it was a potential for conflict between legitimate trade union movements as they carried out work which was not done by people who were legitimately on strike. Something we can all be proud of is that despite all the potential for conflict there was never real conflict between the trade union movement and the members of the Army who went in to do the jobs of striking workers. That says something about the Army as well.

We have an Army of which we should be proud that has served all Administrations very well and ultimately has served the Irish people and I have no doubt they will continue to do so in the future. That is why many of us were depressed by the massive decline in morale over the last three years or so.

A Deputy:  Seven years.

[2470]Mr. Noonan: Information on Michael Noonan  Zoom on Michael Noonan  (Limerick East): It is not that the problems in the Army began three years ago, there have been problems in the Army for quite some time. I think that the problems of the Army arose from the fact that the population at large and probably Depities from all sides of this House came to take for granted the service they provided and we did not look to the day to day concerns of the Army. There is no doubt that whatever the failings of past Administrations, the performance of the two year Fianna Fáil Government in respect of the Army was absolutely abysmal. I do not want to say any harsh things but I think we all know, especially those of us who have barracks in our constituencies, that Army morale reached an all time low between 1987 and 1989. I do not blame the unfortunate Minister for Defence for that. Sometimes I took the blame for him because there was confusion between our two names. I blame the Taoiseach because he should have been aware of what was happening. During the 1989 budget I remember standing where Deputy Nealon is now sitting and describing in detail why the Taoiseach and the Minister for Finance should have moved in the budget to solve the immediate pay problems concerning the Army. By the summer of the same year Army wives were on the streets, Army wives were lobbying Deputies, Army wives were picketing Leinster House, Army wives were standing for election, Army wives were doing what their menfolk were forbidden to do, they were seeking to represent in an organised way and to bring to the attention of the Department of Defence and members of the Administration, the problems that existed within the Army.

We should not have been too surprised here in Leinster House that it was done through the wives because there had been a long tradition that if an individual soldier had a problem he was forbidden to visit his TD. How many of us have had the experience of the private's wife or the corporal's wife calling to our clinics or houses and telling us, “He cannot come himself because he would not break or bend the regulations” but that she was [2471] coming to speak for him, because what was happening was not fair and could not be allowed to continue? When that individual form of representation was magnified with Army wives providing the main focus for protest against conditions which their husbands found intolerable, then it was inevitable that the type of legislation which is being proposed by the Minister here tonight would come before the House.

It is a pity that it was a decline in morale in the Army, that it was a response to circumstances that had become almost intolerable, which eventually forced the Government to give the right of representation to the Army and to various ranks in the Army. With the proud record of our Army would it not have been better if, when morale was high and there had not been anguish, tension or protest in the Army, a Minister for Defence had magnanimously come into this House and said: “We must move with the times; we must do what the majority of our partners in the European Community have already done and freely, openly and generously allow the right of representation to people in the Defence Forces”. But this has been dragged out of the Government. I hope that the damage which was done to the Army over the last two-and-a-half years can be remedied by this belated action in the House.

One would have thought that, having become aware of the problem, if not 12 months ago, at least in the course of the general election, the incoming administration would have taken the opportunity to have the widest possible consultation, that this would have been the top of their priority list and that they would have firm proposals to bring before this House. Instead, we have the spectacle of the Minister coming in here tonight with an extraordinary proposal, a Bill to enable some sort of representative groups to be set up. When the Bill was circulated we had no idea as to what the Minister had in mind. Latterly we discovered that a document had been distributed in the Army, copies of which were available in the House yet we have [2472] no facility to debate this document and we are not sure of its status and about how firm the proposals are. The Minister is asking us to buy a pig in a poke by passing a Bill which is merely a series of enabling sections to allow him to set up representative organisations. We in this House who should have the final say in these matters will have no say at all, because the statutory regulations which will detail the provisions of the representative bodies will not require anything but the silence of this House.

Section 7 is a normal section which says that in the absence of a veto in this House, after 21 days the regulations will become law. That is not the way to treat this House or the Army. I understand from the media and from members of the Fianna Fáil Party that the Minister for Defence has aspirations to becoming the commander-in-chief of the Army. If that is his intention, he owed it to the Army to come in here tonight with firm proposals and he owed it to this House to outline the proposals in detail. If the Minister had not finalised his consultations and discussions with members of the Defence Forces of all ranks, he should have said so, and come in with a proposal to allow us to discuss on Committee Stage or, subsequently by affirmative motion in the House, the proposed regulations under which the representative bodies will be set up.

It is extraordinary that when challenged by Deputy Nealon tonight the Minister could say there was no problem with the voting system and that we could have PR now and a single transferrable vote even though this document says something different. When challenged by Deputy Nealon the Minister also said that the meetings need not take place inside Army barracks even though that is what this document says. As Deputy Gilmore said no secretariat is provided, yet the Minister when challenged by Deputy Nealon said that there was no problem in giving a secretariat. However, that is not in this document. The draft regulations say in relation to eligible candidates that members of the Defence Forces will have to have “good conduct” on their records [2473] before they can represent their fellows. Again, when challenged by Deputy Nealon tonight, the Minister said we did not need this “good conduct” thing and that he appreciated the Deputy's concern that somebody whose superior officers might regard him as undesirable, might have this “good conduct” status removed for reasons other than that he deserved it and yet the Minister can say that there is no problem, that we do not need the “good conduct” regulation any more.

It is not in the regulations, but it has been sounded abroad that the Army Wives Association will be suppressed when this goes through. When Deputy Nealon challenged this, the Minister said that the organisation can continue. I am not saying that the Minister is wrong in what he has conceded. I thank the Minister for his concession, but is that any way to legislate for representative bodies to represent all the ranks in the Army, an Army of which we are so proud? Is that not to add insult to injury after neglecting the Army in a most outrageous fashion for the last two and a half years? Are the same people to come here and in a slip shod fashion put through enabling legislation to enable the Government to do we know not what? It certainly transpires now that the document accompanying the Bill is not a firm proposal at all.

We have to move with the times. The Army must be represented. I welcome the statement in the Minister's speech that he envisages that this will involve a system of conciliation and arbitration. That is normal practice. It is also a good idea that full trade union status is not being granted. There are certain obligations on the security forces of the State and there are certain restrictions on the way in which they can organise. The High Court in Aughey v. Ireland on 29 August 1985 held that:

the right of association in Article 40.6.1 (iii) of the Constitution is subject to public order and because of their close connection with the security of the [2474] State, Gardai may have to accept limitations on their right to form associations and unions which other citizens would not have to accept.

The Garda Síochána are well aware of that restriction. As Minister for Justice I have dealt on the employer side of the table with representatives of the Garda, The Garda Representative Association and the Association of Sergeants and Inspectors and with an association representing the superintendents and chiefs. I found admirable the way they conducted their business. When the Garda Representative Body was formed the administration of the day was dragged kicking and screaming into the 20th century to allow that representation. I remember a time in Dublin when all the young gardaí took sick leave on the same day and threatened to take it on another famous occasion when an important visitor was visiting Dublin. I remember the meetings in Parnell Square when people like Jack Marrinan were suspended from the force because they took part in representative associations. Yet, those associations were admirable. Their executives and chief executives were admirable and they always had the interests of the State at heart in their negotiations. They never exceeded what one would think proper for a security force.

The Army will also treat the new freedom of association which will be granted to the Houses of the Oireachtas in the same way as they have carried out their roles since the foundation of the State. I have absolute confidence in the Army. We have a right to be proud of the Army, but this is not the way to legislate. We must have some clarity in the Minister's intentions.

Deputy Nealon's amendment is a reasoned one and it will be put at the end of the debate. What we want, by whatever formula the Minister can devise, is an opportunity to discuss and ratify the details of the regulations. It is not sufficient for us to say “yes, we understand that this is an enabling Bill; carry on; do [2475] whatever you like, sir.” That is not the way that provisions for associations to represent all ranks of officers in the Army should be dealt with, in this House.

There are precedents for doing as we ask. For example, the Minister could put down an affirmative resolution in place of Resolution No. 7 so that when the regulations are brought before this House they would need an affirmative order of the House. The Minister could go further and give a commitment to make the arrangement I made when the Criminal Justice Bill was introduced. People were extremely worried that some of the accompanying legislation which was being dealt with by way of regulation could not be debated. I refer in particular to all the regulations which deal with the treatment of people in custody. That whole corpus of legislation by way of regulation was discussed in this House by way of a committee-type debate. It was not possible for the Opposition to put down amendments but it was possible for them to suggest amendments to the Minister which he could take on board and incorporate subsequently in the legislation.

Some such formula will have to be found in regard to these regulations. It is not sufficient to treat this House as a rubber stamp before the event. It is bad enough to be treated as a rubber stamp which stamps regulations which have already been decided but it is not good enough to treat us as a rubber stamp in advance of decisions. It is quite clear from the toing and froing between Deputy Nealon and the Minister that the Minister is very flexible on this issue. While his flexibility is admirable the fact that he has not made up his mind firmly about the most important sections of the regulations suggests that this Bill is prematurely before the House. I ask the Minister of State to communicate this view very strongly to the Minister.

We are all good at simple arithmetic. The Government can put their troops through the lobbies when the vote is called so that this side will lose and that side will win but that is not the way to [2476] legislate. We must be afforded the opportunity of going through the ultimate set of regulations which will be the code by which the association will be set up, live and operate. We need an opportunity to discuss the details of this code in this House. If the procedures of the House are so restrictive as not to enable us to do so that we can have a full Committee Stage debate on the regulations then we should at least be afforded the opportunity to have that type of Committee Stage debate where the regulations can be taken seriatim and the views of all Members of the House on this most important matter can be taken on board by the Minister. When an interval of time has passed subsequent to the Committee Stage type of debate on the regulations, the Minister can come back into the House and present an agreed set of regulations which can go through by either positive or negative resolution. I am not too worried about what happens at that stage.

This might be our last chance to do the right thing by the Army. I am not alarmist — I have great confidence in the Army — but the Army have been badly treated and there is a sense of grievance among members which runs right down from the officers to the men. I strongly advise the Government to proceed with prudence and caution so as to ensure they do not find themselves isolated from this House as a result of this legislation being regarded as legislation of the Government and the Minister for Defence but not the legislation of this House. It would be very unwise for the Government to proceed in a manner which muzzles the views of the House, presents us with an enabling Bill and rams the regulations down our throats subsequently. The Government will be taking a shot in the dark if they proceed in that way. The Government may succeed and the Army may ultimately accept what they decide but they will be in a much stronger position if they have the support of all of us on this side of the House for the regulations. No party owns the Army. The Army is not the property of any political party or group. It is a national [2477] institution set up under the Constitution. The best way to put regulations such as these through the House is to try to get as much support as possible for them within the House.

In blunt terms, the Bill before us tonight is nothing short of a refined form of parliamentary guillotine to force a form of association on the Army, the nature of which is unclear to the Members of this House who are being asked to endorse it. I appeal to the Minister of State to communicate our views to the Minister and to give the House the opportunity — I do not mean this in any party political fashion — to discuss the regulations in detail and endorse them, otherwise he could be storing up a lot of trouble for himself in the future.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  Deputy Ryan has outlined the Labour Party attitude to this Bill. Among the first of the arguments he put forward this afternoon was the Labour Party's serious reservations about the constitutionality of the Bill if passed into law, about the fact that the regulations proposed to be made are not being made available for prior debate and — perhaps this is the most important reservation from the point of view of the Defence Forces — that consultations have not taken place between the Minister and the interested parties to this legislation on the relevant matters.

I want to refer at the outset to the clear constitutional flaw in the Bill. During my time in this House and in the Seanad I have not seen draft legislation in so clear a violation of both the letter and spirit of the Constitution as this is. Indeed it is not accidental that the Minister took up so much of his speech this afternoon in addressing this issue. He spent a considerable amount of time addressing what he knew to be the weak constitutional basis upon which the Bill rests. He said, and I quote:

There are fundamental constitutional and policy issues involved in this matter. The constitutional right to form an association is not an absolute or unqualified right. Article 40.6.1 [2478] provides that laws may be enacted for the regulation and control in the public interest of the exercise of the right — thus explicitly providing for the limitation of the right. The courts have made the position very clear in a case involving the Garda Síochána; in Aughey v. Ireland, it was held by the High Court on 29 August 1985 that—

the right of association in Article 40.6.1 (iii) of the Constitution is subject to public order and because of their close connection with the security of the State, Gardaí may have to accept limitations on their right to form associations and unions which other citizens would not have to accept.

Taking this issue as a starting point, the case law quoted is partial. There are other cases which could be quoted in regard to the exercise of the right to, for example, join trade unions. There are also the cases of the Educational Company v. Fitzpatrick and the case of Meskal v. CIE, both of which are relevant.

There is another issue which arises, that is, one cannot say that the constitutional right to form an association is not an absolute or unqualified right and then ignore the terms of the High Court decision of 29 August 1985. I want to draw attention to the text of the quotation by the Minister which used the phrases “is subject to public order” and “the security of the State”. It would be incumbent on anybody seeking to curtail the rights of people who have been described as “citizens in uniform” to show how their purported activities or intentions in forming associations endangered public order. In addition to that there is an interesting example of constitutional rights being trampled.

Under section 6 of the Bill the Army are to be subjected to considerations of security and to public order to the extent that they have to sacrifice, in an unqualified and a priori way, their rights as citizens. In passing let me say that the Irish Government, when they signed the United Nations covenant on civil and political rights — article 19 refers — did [2479] not enter, as was clear at Question Time today in the answer given to the question that I put to the Minister for Foreign Affairs, any reservation whatsoever in this regard.

In addition to this question of curtailing the constitutional liberties of citizens in uniform, there is, with one leap, a move from section 6 (1) of the Bill to section 6 (2). It is suggested that one can move from considerations of limitation in the case of Army personnel and then go on to limit the right of citizens to make statements which affect those covenants we have signed in relation to the right to both receive and transmit information. It states, for example, in section 6 (2): “A person who is not subject to military law who endeavours to persuade or conspires with any other person to endeavour to persuade a member to join a trade union or other body (other than an association) aforesaid shall be guilty of an offence and shall be liable to the penalties provided for a contravention of section 257 of the Principal Act”.

I would like the Minister, because I want to be constructive, to seriously consider the implications of section 6 of this legislation. There is, in relation to the points that have been made by Opposition speakers, the need that the representative bodies that will emerge within the armed forces enjoy the confidence of those who are serving in the forces. I might say that in a curious way there is a paradox in relation to the Minister's arguments as represented in his speech also when he says “an important consideration in that connection is the fact that unlike the majority of other armies in western Europe the Permanent Defence Force is an entirely volunteer force”. One can argue that if it is an entirely volunteer force the one thing that people who have the courage and the commitment to their country to take up service in the Defence Forces are not doing if they are volunteering for service is volunteering to suspend their constitutional rights. It is a very daft argument in my view to move from what I [2480] have just been discussing to this later comment of the Minister.

I want to dwell a little more on the full implications of section 6 (2). There are implications, unfortunately, in this section for those who are interested but not subject to military law. There could in fact be knock-on effects for trade unions in general. If I were a member of the executive of the Irish Congress of Trade Unions, I would certainly look very seriously at section 6 (2). It makes it an offence to advocate, even as an opinion, even if it is unrealisable that the forces should unionise. What this proscription refers to is something very interesting as well. A person who felt that at the end of the day perhaps representation was not working internally might offer an opinion that something that was within the context of trade union law might be better. The Minister may not agree with that opinion: I may not hold that opinion. What is clear from section 6 (2) however, is that it will be illegal to express such an opinion. It would be illegal, for example, for the wife of a person serving in the Army to suggest some evening in the security of private company that her husband would be better off if he were a member of a trade union like many other workers. That becomes an offence under section 6 (2).

Because I am anxious to be as constructive as other members of the Labour Party are, I feel that it is in the interests not only of this issue that we are discussing in relation to the Defence Forces but of the Constitution, of the protection of rights, and of orderly and proper legislative functions, that the Members of this House should not create a situation in which they are limiting their own rights as public representatives outside of this House and limiting the rights of others. I have to make that point very strongly because when I first read a version of this Bill which was circulated on Friday I immediately saw section 6 as a provision that I believe cannot stand the test of constitutionality. I also believe that if it is in violation, as I think it can clearly be shown, of the letter of the Constitution, it is certainly in violation of the spirit of [2481] the Constitution. When one thinks of the purpose of that section of the Constitution which occurs at about article 46 and some of the succeeding subsections, what was involved in relation to that freedom was a right that might be qualified in times of emergency or in the interest of public safety or security; but to take public safety and security which may arise in particular times and in particular circumstances and to say that one should, for example, anticipate the normalcy of the future and bring these conditions to bear on it is an outrageous abuse of those sections of the Constitution as may make the mitigation of these rights proposable or defensible. It is, quite frankly, an untenable argument to suggest that one should behave in this way.

Let me go further and say what are the full implications of this because it is worth expressing it. There is a serious issue of civil liberties involved. It is that one is taking the constitutional rights of citizens, and the rights of citizens as elaborated in relation to the covenants that this country has signed. I refer to one of the three recent covenants of the United Nations in the protocol in the civil and political rights document. The Government, in accepting that article, issued no reservations, as far as I can understand it, to deal with this matter here — if I am wrong the Minister can correct me. This would not last a few minutes with a constitutional challenge.

There is the other question with which I want to finish this very important point. If one were to say that constitutional rights may be, in certain circumstances, curtailed or limited, that they are not absolute in their application, one is saying something else, and that is that it is not up to the incumbent of the office of the day, or even this House itself, by way of enabling such Ministerial or legislative decrees as can permanently disable those rights that we enjoy in the Constitution. That is something which is, if one likes, putting one branch of our administration even the legislation of the Cabinet itself before the very thrust of the Constitution's assertion of rights of citizens. [2482] It is to make the Constitution itself subservient to both the whim and the temporary nature of orders. I hope these comments are brought to the Minister for Defence because I am quite astonished that somebody who has himself practised in the courts would in fact be coming into this House with legislation so seriously flawed. I am being deliberately temperate in my comments, I can assure the Minister, because one could very easily spell out further ramifications of this. Let me conclude this point of my argument by saying that section 6 (2) is as outrageous a breach of the Constitution as I have read in my time in Dáil Éireann or Seanad Éireann. Section 6 (1) is also, I believe, a breach of the constitutional rights of people who have enlisted in the forces.

There are also two other flaws in relation to this Bill of a constitutional kind. One arises in relation to the question of the right to organise itself, which is rather obvious. There is another one in relation to the question of the curtailment to the right to information. I have said enough about it. I simply say that I am absolutely certain that it would be improper for people who respect individual liberties within the Constitution to vote for this legislation as it is placed before us.

A second major issue arises in relation to the legislation, if one could set aside this constitutional defect which I believe to be so basic. If I were in the Minister's position I would, quite frankly, withdraw that section. There is a fundamental involved here in relation to the concept of what is voluntary. There is a partial, very tendentious and confused use of voluntarism in the Minister's speech and in the Bill itself. For example, any sensible interpretation of the concept of a voluntary association presumes that it can arise by a voluntary process from the members of any organisation or group; it can come from themselves. As I said, if rights have been qualified earlier, this concept of voluntarism is also qualified because in the Minister's speech a voluntary action becomes the action of being free to opt out, which is a very negative and circumscribed right. What is being [2483] said in addition is that having circumscribed your civil and political rights, you will now, therefore, belong as freely as you like to structures that have been devised for you. There is an inescapable authoritarian interpretation to this. Also it is impractical within the structures as suggested, without consultation, ignoring the voluntary generic evolution that has taken place already. Whether the Minister likes it or not, the fact is that the Army Wives Association came into existence for very good reasons. In addition PDFORRA exists. Curiously, the Minister if he reads the constitution, objects and rules of the latter organisation will find it very difficult to suggest there is anything in those rules which threatens either security or public safety. How then can he proscribe such an organisation in anticipation and ask us through legislative action in a Bill of this kind to lend ourselves to that? The Opposition are quite correct to say that they are worried about — to mention one aspect of the Bill — the nature of the process of formation of this association to which it is suggested Army personnel should belong.

Other issues arise which are important. I am afraid there is a partial, tendentious construction in the Minister's speech on the report of the Legal Affairs Committee in March 1988 at the Council of Europe. The Minister dismissed the report blandly when he said, and I quote: “A report in March 1988 by the Legal Affairs Committee of the Council of Europe concluded that the number of members states of the Council of Europe which recognise the military right to form and join trade unions equals the number of member states which do not.” That is hardly and inspired comment. It is exercise of very simple arithmetic. That is not bad but what is very serious — of course, the Minister has no obligation to put forward an argument which does not suit his own purposes — is that that very report of the Legal Affairs Committee in March 1988 stated that there should be no legal impediment placed in the way of armed personnel joining a [2484] trade union. It is in that very report which is quoted for other purposes. That is an extraordinary use. It provides us with ambiguities such as the Bible has on occasion provided, but the report simply establishes that there is not and should not be a legal impediment placed in the way of personnel of the armed forces joining a trade union.

That report in March 1988 had been preceded, as other speakers including Deputy Ryan have suggested, by a very important resolution in the European Parliament of 12 April 1984. That decision has been quoted by, among others, EUROMIL, the European organisation of military associations founded in September 1972. They quote the resolution of 1984 being passed with some approval and they have gone on to look at the Irish case. Simply to dismiss the European view as saying there are many trade unionists and there are many who are not in trade unions is not an accurate construction of the situation in Europe. The European Parliament's view is as expressed in 1984, the Legal Affairs Committee's views is as expressed in 1988 and, as Deputy Ryan pointed out, there are people asking what extraordinary situation exists in Ireland that Ireland would want to be out of step with the spirit of the thinking and feeling and decisions of the European Parliament, the Council of Europe and those who are in charge of armies of very large size all over Europe. You might say, a point not made by the Minister's speech, that trade unionised army personnel are serving in NATO where there are now greater security issues involved than in the case of Ireland which is not in NATO. If I was a member of the Defence Forces I would reasonably argue, “What makes my service to Ireland through the Defence Forces so different from service in other armies in Europe, that it makes it necessary for you to tell me I cannot have an association to represent me which has 8,000 members, and you must decide for me the form of representative body which I will then be asked to volunteer myself out of, or if I do not volunteer myself out of, I will be presumed to be within?” It [2485] is an extraordinarily ungenerous approach. I am not surprised at it because it reflects an authoritarianism in relation to this approach which has previously brought trouble to the Army and to Army personnel. It is the last thing one needs in what the Minister calls a volunteer Defence Force.

Other speakers have paid tribute to the Army and I would like to pay my tribute. I am very familiar with the work of the Defence Forces. Only a few weeks ago I had the pleasure of seeing them in action in Managua with UNOCA and I have known of their work abroad, but particularly there is the work they do every day in the barracks in Renmore and others. There is some point in this that is terribly important. The inter-generational commitment to the Army is being abused. I read a letter in yesterday's paper from a retired member of the Defence Forces, two of whose sons had joined, one had died and one was still alive, and he said he would like full democratic representation to be available to the Army. There has been an inter-generational, familial commitment to service in our armed forces. We should not take that as a docility which would be required to take the form of the sacrifice of constitutional and internationally established rights.

The Minister is going down a perilous road if he proceeds as he is doing. The Labour Party are asking him simply to meet the association that exists, to cease placing restrictions on their right to operate and to negotiate with them the terms and procedures of such a representative bodies as will emerge. There is much common ground. For example, the Department, the Minister and PDFORRA are interested in such human situations and necessities as what people who have left the armed forces do by way of reintroducing themselves to civilian life, the questions of education, reintegration and so forth. There is so much in common to be talked about. The Labour Party amendment which suggests prior consultation on the whole question of regulations and so forth is reasonable, and the other Opposition Members who make the case for their discussion in the [2486] Dáil before elections take place are entirely reasonable.

The Minister would be very wise to take back the Bill at this stage. I recommend to him seriously to think again particularly about section 6. I have said enough on it and I want to be as constructive as possible. There will be no triumphalism here if he decides to withdraw the Bill at this stage to enable it to be redrafted or, better still, improved by way of amendment, but that will require something quite different from what obviously is the intent with which this legislation is introduced, that is to take all the Stages within a very short time and to have a curtailed discussion on Committee Stage. This is one of those measures which, because of the issues that have been raised, cannot be rushed through or curtailed on Committee Stage.

Debate adjourned.

Last Updated: 23/05/2011 16:31:30 First Page Previous Page Page of 153 Next Page Last Page