Defence (Amendment) Bill, 1990: Committee Stage (Resumed).

Wednesday, 28 March 1990

Dáil Éireann Debate
Vol. 397 No. 6

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Debate resumed on amendment No. 5:

In page 2, subsection (1), line 27, after “remuneration” to insert “, welfare, schemes of medical benefit and family support systems”.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  I would like briefly to recap on what is being sought to achieve by amendments Nos. 5, 6 and 7 in the names of Deputies Nealon, Ryan and myself. We want to expand on what is [1392] currently permissible under section 2 (1) as issues to be dealt with by any representative association as already established. The section as drafted by the Minister, allows for the issue of remuneration only and such other matters if any as the Minister may specify in the regulations. The position of the Deputies on this side of the House is that as the Minister has taken the regulations away from us and because this House will have no further say, good, bad or indifferent on the content of those regulations and on the basic structure and terms of reference of any representative association once established, we are anxious at this stage to write into the legislation the features we consider to be important and essential to the proper working of such a structure or scheme once in place. The Minister has adopted a very curious and, perhaps, misguided formula for laying down the terms of reference because of the primary emphasis being placed on remuneration. The Workers' Party believe that there are many other concepts and issues such as welfare, health, education, housing and related matters that should be specifically in the remit and terms of reference of any representative association be it for officers or other ranks.

In the guiding Act that has been borrowed for arguments on the Government side, the Garda Síochána Act, 1977, they have used a different and far wider formula allowing the Garda representative associations to deal with all matters concerning their welfare and efficiency. Even the concept of welfare could embrace a far wider range of issues and bring it out of the narrow define. In relation to efficiency it would allow for debate and discussion and the better ordering and running of particular barracks or commands, the better deployment of personnel, the better scheduling of hours of duties and any number of matters that would improve on the standard of performance, if that is possible, of our Defence Force members. Remuneration is a much too narrow concept and the Minister is allowing us to have no say in any of the other matters he might [1393] consider, because they are for the regulations, and for that reason it is important that we stamp our imprint in some way on the legislation. We must go beyond the issue of remuneration. Certainly the issues of welfare and efficiency are an advance on what is contained in the 1977 Act but the concepts outlined by Deputy Nealon in amendment No. 5 where he goes beyond welfare to talk about medical and family support systems and in amendment No. 7 where Deputy Ryan talks about conditions of service and my own amendment which deals with health, education and housing, are matters that can easily be accommodated and should, as a matter of record and principle, be written into the legislation at this stage.

Mr. Ryan: Information on Seán Ryan  Zoom on Seán Ryan  I wish to support amendments Nos. 5 and 6 and I want to speak on my own amendment No. 7. I would say to the Minister that the narrow definition contained in the Bill is unsatisfactory. It is in deep contrast to the opinions expressed by the Minister at various stages. The aspects we mentioned in our amendments would seem to be very much in line with the Minister's interpretation of what he is prepared to give. At the end of the day we have to look at the Bill and I would say that the remuneration aspect is too narrow. In relation to the words “and such other matters (if any)” I would hope that the Minister would take on board what we are saying that we can exclude “if any”. By taking on board a combination of amendments Nos. 5, 6 and 7 and if the Minister looked at a different form of words he might come forward with his own amendment to take cognisance of what we are saying. This would enable us to omit the whole aspect of “if any”. In looking at that section one would have to ask what are the wider implications of this section? It is not satisfactory to come along and say: “We may discuss it”. At the end of the day, who is going to decide what shall be discussed? That is the reason we feel it has to be elaborated on in the Bill. There are a wide range of aspects that have to be discussed and it is up to the new organisation to get involved and have [1394] discussions. That is the reason we say in our amendment we want to insert “and conditions of employment or service”. That is a very wide-ranging aspect of conditions of employment and we would hope the Minister would take on board that amendment and also amendments Nos. 5 and 6. I hope we will have a fruitful report from the Minister.

Mr. Bell: Information on Michael Bell  Zoom on Michael Bell  The suggestion made by Deputy Ryan is a reasonable one. If you look at the letter to the Chief of Staff, you will find that virtually all the words contained in the three amendments are included in the section.

Minister for Defence (Mr. Lenihan): Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  That is my point.

Mr. Bell: Information on Michael Bell  Zoom on Michael Bell  Perhaps the Minister might consider bringing forward a simple amendment on Report Stage, because almost all the words are contained in the structures. I want to point out that this is something that the Army personnel with whom I spoke, at every level, felt very strongly about.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  I feel very strongly about it. It is precisely because I feel strongly about it that I intend to incorporate all of these points concerning conditions of service and related subjects and the whole range of welfare matters in the regulations. These discussions will incorporate all aspects of welfare which are envisaged. I believe it would be very foolhardy and not be in the interests of what all of us want to do to incorporate the amendment in the legislation in this manner. I will give my reasons for saying this.

Both Deputy McCartan and Deputy Ryan said that this section covers a wide range of aspects. Welfare does cover a wide range of aspects, a number of which are not covered by the amendments put down by the Deputies. The issues covered by welfare are infinite, various and flexible and will arise from month to month and year to year. As time goes on, additional areas of welfare and social impact will arise which will need to be [1395] considered and these can be incorporated in regulations which can be amended easily as the representative bodies settle into action during the course of their discussions and consultations. My point is that this is a perfect area for incorporation in regulations. It is not an area for incorporation in legislation. Incorporating some of the aspects of welfare in legislation in this manner would be restrictive and we would be confining certain aspects of welfare when, in fact, to use Deputies Ryan's phrase, the range of aspects which can be incorporated is almost infinite.

The section should be left as it is so that as welfare issues arise in the future the representative bodies can consider whether there is discrimination and injustice which should be remedied by way of a scheme which may not be in the legislation but which can be changed by way of a regulation. I ask the Deputies to consider the points I have made in greater detail. The point I have been making can be shown up in the amendments proposed by the Deputies. Deputy Nealon's amendment refers to pensions——

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  It does not.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  The Deputy's amendment proposes to insert the words “pensions, welfare, schemes of medical benefit and family support systems”.

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  On a point of order, the word “pensions” has been dropped in the corrected version of my amendment.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  That adds to the point I am making——

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  Everything adds to the point the Minister is making.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  Perhaps the Deputy will be patient and listen to me.

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  It is very hard to be patient.

[1396]Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  The fact that the word “pensions” has been removed from the Deputy's amendment elaborates my point that the range of areas is infinite. All of the areas covered in the amendments are interesting for incorporation in regulations, and must be incorporated in regulations, but they do not include some of the matters I committed myself to including in my letter accompanying the Chief of Staff's proposals. For example, credit unions are not covered in any of the amendments. Deputy Nealon has included a family support system in his amendment but neither Deputy McCartan nor Deputy Ryan have included it in their amendments. I have included recreational facilities but these are not included in any of the amendments.

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  They are included under welfare.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  Medical benefit schemes are included under the word “medical” in Deputy McCartan's and Deputy Nealon's amendments. I have included the words “welfare matter such as” in section 2 (1) which emphasises that these are only examples of welfare matters. If we put into legislation the specifics the Deputies are talking about we would be putting restrictive clauses into legislation when what we want is the inclusion of allembracing welfare matters in regulations.

I ask the Deputies to address their minds to this aspect. I want to repeat that this is enabling legislation and all we want to include is the central issue of remuneration. That is included in section 2 (1) and the definition of remuneration includes pay, allowances, gratuities, grants, etc. Remuneration is included because it is so central and basic to the Bill. Other matters are important but they are subsidiary to the matter of pay. Section 2 (1) refers to conditions of service, health and welfare matters and such matters as the Minister may specify in the regulations. All the matters I referred to in my letter enclosed with the proposals are for detailed discussion and consultation with the elected representatives of the [1397] Defence Forces. These include all welfare areas and conditions of service which they wish to have incorporated in the regulations. These regulations can be reviewed as the years go on and any additions or improvements made.

That is the secenario as I see it and it was explained very fully by me on Second Stage. It was also explained fully by Deputies Hillery and Kitt to the members of PDFORRA who were entirely happy with it. I want to repeat the open commitment I gave in this House that all of these conditions of service and welfare matters will be incorporated in the regulations reached after agreement with the Defence Force representatives. I hereby guarantee that every one of the representations in regard to the range of conditions of service and welfare issues they raise with me or my representative will be incorporated in the regulations. If we arrogate to ourselves the right to decide on our list of conditions of service and welfare matters we will be unduly restrictive. Such a list may not be comprehensive enough, may be too restrictive and the representative association may wish to add some nuance or other and put emphasis on what they regard as their priorities. I want them to be involved in the consultations and make the decisions, with which I will agree, about what they want in regard to conditions of service and welfare matters.

If the Deputies look at the issue in this light I believe they will agree that any further definitions would be harmful to the interests of the people whom we are seeking to help, the personnel of the Defence Forces. The amount of detail required to get it right would make the Bill very cumbersome and may not be exhaustive enough because human aspirations, wishes and requirements can vary and are infinite and may become more so as the years go on. I am trying to introduce a high degree of flexibility and common sense into legislation. I want to emphasise that this is not legislation for today and tomorrow but is legislation for real. If it is going to be legislation for real it must be a flexible framework within which adjustments can be made, first by [1398] way of regulation agreed to by the representatives of the Defence Forces and, second, if they require further review, additions or amendments in the future, they will be able to influence such changes as may be required in the circumstances. I hope I have made myself plain.

Mr. Roche: Information on Dick Roche  Zoom on Dick Roche  The Minister has given an absolutely unqualified guarantee that all of the matters included in the amendments put down by the Deputies will be provided for in the regulations. There are a couple of points I should like to make.

The fact that the last four speakers have debated whether the amendments include A or B illustrates the danger of inserting a list into the Bill. If we insert a list into the Bill it will be interpreted in a certain way. The list in Deputy Nealon's amendment — I accept his bona fides in the matter — is not all-inclusive. Neither is Deputy McCartan's list all-inclusive. Because these lists are not all-inclusive they exclude certain matters and are limited. The amendment which most commends itself to me is Deputy Ryan's because it seeks to be open-ended.

It is worth reminding ourselves of what the Minister is saying in the draft. His approach is to improve matters affecting remuneration and such other matters as will be specified in the regulations. The Minister has now given a guarantee that he is prepared to incorporate a whole range of other issues even greater than the Deputies have proposed in their amendments.

The first point I would make is that unless one includes a truly comprehensive list covering all matters, one is being restrictive. Deputy Ryan intends to avoid being restrictive by suggesting an amendment which comes close to being open ended. The approach which is being adopted by the Minister, however, is more open ended still.

The second point I would make is one which is well worthy of consideration. I accept the point made by Deputy Nealon — I am not scoring a point here — but if we incorporate words such as pensions, welfare, schemes for medical benefit, [1399] family support systems, health, education, housing and all other related matters, we then have a drafting problem in that one would have to incorporate a precise meaning for every one of those words in the definition section of the Bill. We have already accepted that that is not a totally comprehensive list, but many of those things would take weeks, possibly months of drafting time to define.

Deputies said last night that we should throw over all this nonsense about parliamentary draftsmanship and have modern words for modern law. Getting away from some of the archaic words has much to commend it but we present laws in this format and if we attempted to establish a totally comprehensive list that would satisfy everybody who truly have the interests of the members of the Defence Forces at heart, it would be a very long list indeed. The whole matter would be thrown back into the drafting arena where months would have to be spent providing specific definitions.

There is a further point which was raised by Deputy McCartan last night. If we go the route which is suggested in amendments Nos. 5 and 6 the matter is then left back to the courts for interpretation and perhaps not this year, perhaps not next year, perhaps never, but some time the courts could take the view that the listing which is incorporated in the Act is an exhaustive listing and excludes all else. That would produce an inflexible situation which none of the Members who have spoken want. I submit that it would be far more sensible to adopt the open ended approach which the Minister has guaranteed will take into account all the aspirations and wishes of the Deputies who have taken the trouble to put forward amendments. It will go further; it has the very considerable benefit that it will act as a reassurance to the duly elected representatives of the Defence Forces personnel that they will be able to come along and raise such other issues as concern them.

I am not questioning any Deputy's bona fides. I am sure the Deputies who feel they speak on behalf of PDFORRA [1400] are being sincere, but we cannot possibly satisfy ourselves that any listing which we would put into law would be totally comprehensive and would totally represent the wishes of the elected representatives of the Defence Forces. We know what we wish to attain. The Minister has given an unequivocal guarantee as to what he will see is incorporated in the regulations. The Deputies having made their point it would be much better if we now left the matter thus, let the issues be incorporated into the regulations and let the duly elected representatives of the Defence Forces personnel add their wisdom to the wisdom of the House in the matter. That is not in any way disingenuous. It is an open ended approach and it certainly achieves what the Labour Party wish to achieve in talking amendment No. 7, that is, the widest possible range of options.

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  The Minister feels strongly about everything. Unfortunately he is not willing to do anything to change the Bill. Where is the point in parading his concern to us and simply not accepting the most reasonable amendments as, according to himself, they reflect his own thinking. We are simply asking for a procedure. The Minister, with all the expertise of his Department and all the draftsmen at his disposal, can frame an amendment for Report Stage. As far as I am concerned I want this in this Bill. Why frame the narrowest definition possible?

Deputy Roche said that if we produced a list it would not be an exhaustive one. We are not suggesting that we should eliminate any other such matters. I accept the Minister's point that there will be further developments and that things we have not thought of now will happen in the future, but these can be easily covered. The Minister, however, is persisting with the narrowest possible definition and is not even willing to delete the phrase “if any”. There will be changes, as Deputy Roche says, but the Minister is not even willing to concede to us and remove that in order to get a good Bill of which he could be proud when he [1401] moves on to higher regions in later life. I am very disappointed. What is in the Bill is very important, even if the Minister can cover it by regulations, because it indicates the thinking of the legislators as to what we are seeking to do for members of the Defence Forces.

We failed to get any movement on section 7 and whatever regulations are made will never be debated in this House. Therefore, it is all the more important that everything possible should be written into the Bill. I appeal to the Minister at this late stage to consider at least offering us an amendment incorporating what Deputies Ryan, McCartan and I have in mind on Report Stage. Otherwise I will persist with my amendment.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  I totally support the Minister. It is not a question of coming in to bat for him. On the basis of the excellent discussion and debate I believe sincerely in the Minister's approach. All these matters are inter-related in the broader debate we had on regulations and how they will come into play. What the Minister is saying is that the Defence Forces representatives should know best because the matters we are discussing relate to them. They are the ones who want conditions improved. Deputy Nealon said that the Minister should be more flexible with regard to amendments. The Minister does not want to see anything left out. He has already referred to some of the matters which have been left out in the combination of amendments.

I would support one point made by Deputy Nealon. Obviously there will be other matters to be raised by the representatives. My view is that the Minister should consider leaving out the phrase “if any”, whatever the parliamentary draftman's reason for its inclusion. The Minister is saying that all matters are up for discussion and Deputy McCartan is talking about the definition of “remuneration” being restrictive. The contrary is the case. If we leave out the words “if any” it will cover a broad spectrum. I would strongly ask Deputies [1402] opposite to absorb the message being delivered by the Minister.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  I find the contributions from the Government side totally disingenuous and there is no attempt to look at what we are asking. There is some suggestion that by adding to a singular item we are restricting. It is utterly ridiculous.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  Examine it.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  My question is why should we put “remuneration” into the section..

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  It is so fundamental.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  Matters such as welfare, housing, health and care of families are fundamental. Remuneration and those other related matters are fundamental. We are trying to add matters which we consider of equal importance, retaining all such other matters as the Minister might consider. This does not restrict or curtail considerations in the slightest.

I am concerned about an important drafting point. Regarding the phrase “remuneration and such other matters”, there is a possibility that the word “such” will be taken as a reference to remuneration.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  No, the Deputy is a lawyer. It is not true.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  I would ask the Minister before Report Stage to consult with the law officers and his advisers in this matter in the context of the justum generis rule of interpretation.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  I know about it.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  I appreciate that I am addressing a lawyer. The risk is that a court asked to interpret what is meant by other matters will decide that the phrase “and such” is an indication that these other matters refer to remuneration. I would ask the Minister even to take out [1403] the word “such”. If Deputy Kitt thinks it would help to omit the words “if any”, I have no difficulty. I am concerned that the expression “remuneration and such other matters” will be taken to mean remuneration and related matters. For that reason I am asking the Minister to consider it before Report Stage.

What is this House about if it has no function at this stage? The general drift of Government contributions addressed to this side of the House is that everything can be dealt with in the regulations and that we should not seek to amend the provisions of the Bill. That is not good enough for me as a legislator and as someone who has a role to play in seeking to influence and improve the legislation before the House. I cannot understand why the Minister suggests that we are being foolhardy or seeking to do something which would be harmful. He says that in the context of suggesting that matters are infinite. Of course they are and nothing that we are suggesting in any way denies that infinity. Of course it would be impossible to litanise all the matters that would emerge. My amendment is there to highlight the basic issues which have troubled soldiers in recent times, which have been highlighted in debates inside and outside this House and which should be incorporated in the Bill. Remuneration is only one of them. That point was made time and again by representatives of the soldiers.

Deputy Roche has suggested that Deputy Ryan's amendment is the one which would be best of all. I support that in the spirit of a unified Opposition. If we take Deputy Ryan's amendment, which I have no hesitation in supporting in the absence of anything better being suggested, we would be then providing for remuneration and conditions of employment and service. One of the fundamental causes of the spouses was to identify the vast ranges of issues and concerns outside direct remuneration and employment, for example, the housing of families and the health and welfare of children which would not be covered.

[1404]Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  That is precisely the point I was making.

Mr. Roche: Information on Dick Roche  Zoom on Dick Roche  I made precisely the point that while Deputy Ryan's amendment commended itself more than the other two, the totally open-ended approach adopted by the Minister was superior still. Perhaps Deputy McCartan did not hear me——

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  Deputy McCartan is in possession.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  If Deputy Roche is clarifying his position, I welcome that. The Minister cannot have it both ways. There is a list of one item and all other matters; we are proposing a list of three or four items and all other matters that might arise. I cannot see the slightest difficulty. I am concerned that the wording as it stands may be interpreted as the very restrictive ground of remuneration and related matters only.

I would ask the Minister why the wording of the 1977 Garda Síochána Act was not borrowed, given that it is the precedent for everything else he has argued for. Why not adopt the formula there, if nothing more, of welfare and efficiency?

Mr. Ryan: Information on Seán Ryan  Zoom on Seán Ryan  I welcome wholeheartedly the comments from the Minister and the Fianna Fáil Deputies about their commitment to the wide-ranging aspects that may be discussed and considered. We are all happy with that; that is as we would like to see the section. Notwithstanding that, I ask the Minister to delete “(if any)” and then come forward with a range of words that would strengthen the measure. I know we cannot incorporate everything, but on this side of the House we want to strengthen it somewhat. The Minister has the staff who can draft a form of words that would be acceptable to the Opposition and would be at the same time in line with his own stated objectives of the wide range of aspects that may be discussed when the Bill is passed. That might go some way to resolving this.

[1405]Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  That is a reasonable proposition.

Dr. Hillery: Information on Brian J. Hillery  Zoom on Brian J. Hillery  Deputy McCartan has referred to a one-item list, but it is worth recalling that remuneration is a comprehensive thing in itself. It covers the central issue of pay together with, as legally defined, allowances, gratuities, grants, pensions, retirement pay or gratuity on retirement, so it covers a number of central issues as far as the bargaining relationship is concerned.

Secondly, it is worth recalling what is regarded as good industrial relations practice on the broader scene. Returning to a point we made earlier in the debate, flexibility is of the essence, and both sides, particularly the employees' side, the personnel in the Defence Forces, need to have the flexibility to push the bargaining boundaries in discussion with the official side. The thrust of what the Minister and we on this side have been saying, is that we do not want to restrict anything in advance and that it will prove to be very comprehensive in practice in due course, but within the regulations. Therefore, we must be careful about not restricting under legislation something that is much more appropriately handled in the give and take of discussions at a later point. In summary, good industrial relations practice would suggest that the list of items should be left to discussions between the two sides and then comprehensively incorporated in regulations.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  I want to be reasonable above all else. We are all obviously talking about achieving the same thing but doing it in different ways. In that context in case there is a perception that the words “(if any)” might be a saver, as it were, to exclude the matters I am talking about — which I think we all agree is certainly not the intention — if it gives rise to that, what I would call, misguided interpretation, misconception, wrong perception or whatever, I will suggest the deletion of those two words. Sir, can I get permission to delete “(if any)” on Committee Stage or should I leave it until Report Stage tomorrow? It is just a [1406] question of deleting the two words in brackets.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  The intimation is there that it can be done formally tomorrow.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  I give notice here accordingly that I will move formally tomorrow to delete the two words “(if any)” in order to remove any doubts that may arise on this aspect.

On the question of the definition of “having a look at it”, if I say I will have a look at it, it means literally I will have a look at it. It is not to be interpreted as Deputy Nealon interpreted something I said yesterday on Second Stage. Deputy Ryan and Deputy McCartan spoke on a point concerning the phrase “welfare and efficiency” used in the Garda Síochána Act and Deputy Ryan spoke about strengthening or adding to “remuneration”. If I was going about it I would not add any list. There is terrible danger in adding a list of matters. They are really for regulation. If you have a list of matters you have to define them all. Remuneration is so important and fundamental that it had to be written in and defined. If you start including a list in this and a definition for each item on that list, and that list might not be exhaustive, you are into all sorts of drafting troubles.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  Take the 1977 Act.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  That is what I was thinking of looking at between now and tomorrow. The Deputy says the phrase “welfare and efficiency” is used in the Garda Síochána Act, 1977. I will literally have a look at the feasibility of doing it between now and tomorrow. I may not do it. I want to save myself, I tell Deputy Nealon.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  I am withdrawing my amendment No. 6.

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  The Minister said in answer to Deputy McCartan “I take the point”.

[1407]Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  That literally means that I take the point. That does not necessarily mean I am going to accept it.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  How does amendment No. 5 stand now?

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  Seeing it is the first move on the Minister's part, I will not be ungenerous because I expect he will also be conceding down along the line. I will not press my amendment, therefore.

Amendment, by leave, withdrawn.

Amendments Nos. 6 and 7 not moved.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  I move amendment No. 8.

In page 2, subsection (1), lines 28 to 32, to delete all words from and including “, but excluding” down to and including “that Act”.

My proposition is that in the event of not having met success on the previous two major items of discussion, that is section 7 on the regulations and in regard to expanding in some way on the terms of reference of the organisation, we should in no way tie our hands or those of the negotiators who are going off to do this wonderful job once the Bill has been passed into law. For that reason I suggest we should not exclude any matter. Let it be decided between the negotiators, the Minister on the one hand and the Defence Forces' representatives on the other. Therefore, I propose in my amendment No. 8 that we delete all the words “but excluding matters relating to any operation and the raising, maintenance, command, constitution, organisation and discipline of the Defence Forces under the Principal Act and offences in relation to the Defence Forces and military property under that Act”.

It will be a matter that will be dealt with through the discussions and negotiations on the part of the representatives. That is what the Minister has advocated from the outset should be the approach in this Bill. Consequently I see no reason why we cannot then agree to [1408] taking out this rather extensive and expansive inclusionary clause that the Minister wishes to write in here. The process is one of negotiation, of getting it right in negotiations and discussions in formulating the regulations, so why exclude anything at this stage?

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  I am sure the House is well aware of what I am going to say. This is one amendment that I cannot accept because it goes to the very heart of the matter. We must have it written into legislation that matters relating to the operation, raising, maintenance, command, constitution, organisation and discipline of the Defence Forces are excluded from this Bill. It is so basic that it is incorporated in the objects and rules of PDFORRA on the very first page. They recognise their responsibilities in this matter and, after the first two innocuous paragraphs in their constitution, they emphasise the fundamental principle in paragraph (c) which says that the association shall be of a consultative nature and shall at no time seek to interfere with the organisation, structure or command of the Defence Forces. Paragraph (d) states that the association recognise that they have no power to take industrial action. They also say that the association shall be non-political and shall not be aligned to any other opposition whatsoever. It shows that their thinking in relation to this matter is cautious.

The matter germane to the amendment tabled by the Deputy is in paragraph (c), to which I have already referred, that the association shall at no time seek to interfere with the organisation, structure or command of the Defence Forces. I congratulate them on being so emphatic and showing recognition of the proper division of powers and responsibilities between a representative association with a military organisation and the exigencies of a military organisation. There is a very solid perception of the realities of the situation in their own constitution. I regard it as fundamental to follow the lead given to me by the people concerned [1409] who started this organisation and many of whose members will, I hope, be part of the new structures. They have given the Oireachtas a lead in showing their very clear perception of the distinction between what a representative body within the force can do in regard to pay, conditions of service and a whole range of welfare matters and what I have excluded here and which Deputy McCartan is seeking to amend. They can see the point in excluding matters relating to the operation and the raising, maintenance, command, constitution, organisation and discipline of the Defence Forces. These are matters strictly under the command and discipline heading of the military which are excluded from the organisation's considerations.

We must show our responsibilities in regard to this matter. I appeal to Deputy McCartan to withdraw his amendment because it is quite clear on any logical assessment of the legislation what it is intended to do. One must exclude this area of command and discipline having regard to the nature of the Defence Forces because they are incorporated in our Constitution as having a very specific security role. All that makes it mandatory to ensure that military matters are not open to discussion because, otherwise, there would be a complete collapse of military command and discipline. However, I will not go into that. On all these grounds I object to the amendment and I appeal to Deputy McCartan to recognise the legitimacy of my view.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  I referred to this very basic matter on Second Stage and it goes to the core of our Defence Forces. I draw a clear distinction between command, constituton and discipline within the Defence Forces and the matter we discussed earlier in relation to pay, remuneration and welfare. There is a very clear demarcation line between the two and PDFORRA have recognised this. The Army have a special role and the distinction which the Minister has drawn recognises their special role constitutionally, their role in relation to the Oireachtas and the State. I said on [1410] Second Sage — and I repeat it — that we should steer clear of that area in the interests of the Army, the nation and the public generally. We should keep away from basic hard core military matters. I urge Deputy McCartan not to pursue this issue because we are going to the heart of their standing.

We are covering the other area very comprehensively and that is the key. It was dealt with in the last amendment and also discussed yesterday. They are the matters which we want the Defence Forces' association to pursue to a satisfactory conclusion but this is on a different level and nobody at any level in the Army would like to see us impinge on this very important area of Army life.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  I have been completely misrepresented in the House. Anybody who listened to me on Second Stage — or to what I said five minutes ago — would recognise that I did not for a moment suggest that we should give power and authority to the representative association to do any of the things covered in this amendment. I merely said that we should exclude nothing and leave it for negotiation and discussion. Clearly PDFORRA, as is obvious from their constitution, do not want it so it will not arise.

I am happy to have moved this amendment because it illustrates the double thinking of Members in this House. We are trying to improve this Bill but we are told “Hands off, leave it to the people whom it concerns”. We are told these matters must be excluded under the legislation. I have made my point and I do not wish to pursue the matter. I am withdrawing my amendment.

Amendment, by leave, withdrawn.

Acting Chairman (Mr. Wyse): Information on Pearse Wyse  Zoom on Pearse Wyse  We move to amendment No. 9. Amendment No. 10 is an alternative and, therefore, amendments Nos. 9 and 10 may be discussed together by agreement. Is that agreed? Agreed.

Mr. Ryan: Information on Seán Ryan  Zoom on Seán Ryan  I move amendment No. 9: [1411]

In page 2, subsection (1), line 32, after “Act.” to insert “All disputes in relation to issues of remuneration or conditions of employment or service shall be referred to the Civil Service Scheme of Conciliation and Arbitration.”.

I hope when discussions are concluded we will have agreement on these amendments. The scheme for conciliation and arbitration is the core of the problem to set in place a mechanism to deal with the various aspects of regulations, terms of reference and all the various items which were discussed here this morning. The Minister and Fianna Fáil TDs clearly acknowledged that there is an infinite range of matters to be discussed. Given that the Minister and the Government were not prepared to take our amendments on board in relation to section 7, it is vitally important to write into the Bill the whole system of conciliation and arbitration.

Various comments have been made about the Garda representative association. One of the main aspects in the setting up of that body was the conciliation and arbitration scheme. It is vitally important that the personnel of the Defence Forces have an opportunity to discuss claims relating to pay and allowances, hours of duty, standards of accommodation and so on. Principles governing recruitment, promotion, transfers, the general application for promotion and the efficiency of the force are all items on which the personnel of the Defence Forces legitimately have a right to express an opinion. They should also have recourse to an independent body to decide on matters such as claims for pay and conditions, adjustment of rates of pay and allowances, periods of annual leave and sick leave, weekly hours of work and overtime pay. Throughout the debate Members, particularly on the Opposition side, have pointed out and acknowledged anomalies that exist at present. We have heard of these matters in our clinics and we are aware of them. [1412] This Bill, on which I commend the Minister, is providing an opportunity for these people to have a say in their working environment, and that is important.

In the past there has been opposition to this representative body from people who have been in the Defence Forces all their lives and who perhaps did not want change. I have seen this happen in industry in the past. People wanted a legitimate say in matters that affected them but there was resentment and it took time to bring about change. Perhaps there are objections as to how far we are going when we give a say to the members of the Defence Forces on all the matters I have mentioned, and which were mentioned by the Minister. The matter will be outside the power of the Minister once this Bill is passed and we must incorporate in the Bill a provision for conciliation and arbitration. The Minister said last night that there is perhaps 99 per cent agreement on this matter but given the number of issues that arise I doubt that.

We should ensure that there is no conflict and that we make progress in this Bill in bringing together for the first time all the bodies of the Defence Forces. It is important to write into the Bill a system of conciliation and arbitration so that most of the difficulties can be resolved. I hope there will not be many but I would ask the Minister very sincerely to take this amendment on board.

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  Amendment No. 10 in my name seeks to have written into the Bill an agreed process of negotiation, conciliation and arbitration. This area is of vital and basic importance to the success of the association or associations that are set up, to morale within the Defence Forces and to the on-going development of what we are about in this Bill. It is obvious in many ways from his own expression, and indeed from the Government proposals, that this is also the intention of the Minister. What I am asking in this case is that this provision, because of its vital importance, be written into the Bill. It should not be left to anyone's [1413] goodwill or to the Minister of the day but it should be clearly shown here.

I am sure the Minister will say that in regard to the Garda, civil servants, teachers, local authorities, health boards, vocational education committees and branch managers of employment exchanges there are many schemes of conciliation and arbitration in existence already and he may very well claim that these did not require legislation. The fact that they have not been included in previous legislation is no valid argument for not putting them into legislation how. We are developing a new round of legislation and this is a major step as far as the Defence Forces are concerned. We are breaking new territory and pushing out the parameters as far as the Defence Forces are concerned. Therefore, why not push out the parameters and make this a better Bill by writing in this vital element?

The provisions in my amendment are much the same as those in Deputy Ryan's amendment; however I take it he is referring to a scheme like the Civil Service scheme of conciliation but a separate scheme would be required. Negotiations would take place between representatives of the authorities, whether they be the Department of Defence or the military authorities, and the associations, or in lay terms, the management and staff. In regard to the agreed system of conciliation, we could follow the pattern that already exists because I think everyone is quite happy with the way that works.

In regard to arbitration, I had included in the original draft of my amendment an arbitration board but I was told the amendment might not be in order if that was listed. Therefore, I did not include it but obviously that is what is intended. At present there is an arbitration board with an independent chairman appointed by the Government, by agreement with both sides, and I do not think there is any difficulty with that.

I take it the mechanisms the Minister has in mind are precisely the same as I have and Deputy Ryan has in our amendments, but we are seeking to have them [1414] included in the Bill. It is very important and necessary that we copperfasten this element into future legislation as far as these associations are concerned. Irrespective of what arguments the Minister might make, I cannot imagine that I could be convinced that this provision should not be included in the Bill as it leaves the Houses of the Oireachtas to be signed by the President. I am very keen that it be included because we would have a much better Bill if it were and it would get a far better reception from all the ranks in the Defence Forces. It would add a new dimension to the Bill and, in the end, would be doing no more than the Minister intends at this stage anyway.

We are not inhibiting the validity of the Bill in any way as far as the future is concerned because I cannot conceive of any situation where negotiations, conciliation and arbitration would not be a vital part of the activities of these associations. If such a transformation comes about by virtue of a situation that we know not of at this point in time, obviously new legislation will be needed. I hope the Minister in his new conciliatory approach will be willing to take this element on board.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  I do not want to clutter up this Bill with what I regard as unncessary or superfluous additions. I am the person who took the initiative in regard to a conciliation and arbitration scheme as it was not mentioned in the PDFORRA recommendations or in their constitution. Let nobody be under any illusions about this. I raised this matter first and I am going to see to it, so there can be no question of lack of trust in this.

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  It is in the Garda Síochána Act.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  I personally raised this matter in this Bill, the Defence (Amendment) Bill, 1990, and as far as the representative associations are concerned at no stage did PDFORRA or anybody else make any representations in regard to their members being brought into a conciliation and arbitration [1415] scheme. This is my initiative, forgive me for saying that.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  It is in the officers' submission to the Gleeson Commission.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  I am talking about the PDFORRA. Anyway we will not make a point of it — all I am saying is that there can be no element of lack of trust as far as I am concerned in my commitment to establishing a scheme of conciliation and arbitration. That scheme will be introduced as priority No. 1 in the regulations. I do not see anything else we are talking about as being anything as important as having a scheme of conciliation and arbitration at the end of the day. That is what makes the whole thing worthwhile.

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  Let the Minister stitch it in.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  But I see no reason whatsoever for writing it into legislation. It is not in legislation that you incorporate a scheme of conciliation and arbitration.

There is a wide range of schemes already in existence over the whole range of the public service. The schemes currently in existence cover civil servants, teachers, gardaí, local authority and health board officers, vocational education committee staff and so on. In all of these schemes there are two essential features: the conciliation level where there are agreed procedures for discussions of claims between representatives of the staff and management; the arbitration level where there are arrangements for arbitration on major issues, including pay if agreement is not reached at the conciliation level.

There are various features in the different schemes, but all of them have one thing in common, they are flexible and variable depending on the particular employment concerned. That is an important consideration. There is no blanket scheme and each scheme takes cognisance of the requirements of the particular area of employment. That is [1416] why I think it would be entirely inappropriate to adopt Deputy Ryan's proposal, with all due respects to him, that all disputes in regard to remuneration and conditions shall be referred to the Civil Service scheme of conciliation and arbitration. I am not going to do that but I am going to refer it to a specific scheme of conciliation and arbitration for the Defence Forces. I envisage a far wider concept in this regard. I think that putting the Defence Forces arbitrarily into a Civil Service conciliation and arbitration scheme is not what is required. We want to see incorporated in the regulations a conciliation and arbitration scheme for the Defence Forces agreed between our representatives and their representatives and one that is suitable for them. Indeed there are many issues that will arise from time to time that need not necessarily go to arbitration but which the association and the official side could work out themselves on a regular basis. This is the way it works in the case of the Garda Síochána conciliation and arbitration scheme. They have regular meetings, have regular exchanges and make regular representations and agreement is reached without recourse to conciliation and arbitration.

Mr. Ryan: Information on Seán Ryan  Zoom on Seán Ryan  That is the way the system works.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  Yes. I want to ensure that the Defence Forces are not buried within a general Civil Service scheme but that they have their own scheme. That is my intention as of now and that would be their wish as well. I want to warn Deputy Ryan — and this shows the weakness of incorporating matters of this kind into legislation — that as long as there is a commitment to doing so let us include it in a regulation where we can be flexible, adaptable and have the scheme that is particularly suited to the requirements of the Defence Forces which can be called a Defence Forces scheme of conciliation and arbitration. We can incorporate that in the regulation after agreement has been reached between the representatives of the Defence Forces, the official [1417] side and the Minister as to what should be incorporated in the regulations. I say in all sincerity that the amendments are inappropriate and restrictive. Deputy Nealon's proposal that:

An association shall represent its members through the agreed process of negotiation, conciliation and arbitration schemes

is a general aspiration to which I am committed. However, I do not see the need for that in legislation. It is restrictive, it is holding back when in fact that I want to see, in addition to the list of conciliation and arbitration schemes that already exists for the Garda, teachers etc., is a scheme for the Defence Forces. In none of the other cases is there any statutory basis for the conciliation and arbitration schemes. They are based on a contract system between the relevant employer and the staff side, in other words the employer and staff side come together and decide what type of conciliation and arbitration scheme they want and they agree it on a contract basis rather than on a statutory basis.

All schemes are on the basis of contract and not of statute. In effect that will be embodied in the regulations and there will be a contract between the official side and the representatives who will sit down and tease out the type of conciliation and arbitration scheme they want and whatever scheme will emerge from their discussions will then be incorporated in regulations governing the Defence Forces. That is the outline of the scheme and I would be very proud to see it introduced. In my view it crowns the whole system. A representative body acting without a conciliation and arbitration scheme would be just a talking shop, a vehicle for making representations, excellent and all as that might be, but without the follow-up of a conciliation and arbitration scheme to add real weight to the case they are making in the event of agreement not being possible.

The Defence Forces must at the end of the day have the right to conciliation and arbitration to further their case to the ultimate conclusion in the event of [1418] non-agreement with the authorities. I lay great stress on having an appropriate scheme of conciliation and arbitration for the Defence Forces, but I place equal weight on the fact that it must be worked out on an agreed basis between the representatives and the authorities and incorporated in regulations that can be flexible and can be amended from time to time. Again I made the point earlier on another aspect that the regulation can be amended and adjusted in the light of changing circumstances in the future.

I place great importance on it but I do not consider it necessary to incorporate it in legislation, if you incorporate it in legislation you make it unduly restrictive. It is my clear intention to have such a scheme but I want it to be the most flexible scheme possible and written into regulations which can be changed for the better in the future.

As the process goes on, and as consultation between the representative body or bodies and the authorities take place over the years, this can develop in the sensible manner that our existing schemes of conciliation and arbitration have on a non-statutory basis. In this case we will have flexible provisions incorporated in the regulations. The scheme will be flexible and will suit the requirements of the members of the defence forces.

Mr. Bell: Information on Michael Bell  Zoom on Michael Bell  I agree with the Minister that this provision is the nub of the Bill. Without it the Bill would be useless. It is for that reason that I am concerned that there is no reference to conciliation or arbitration in the Bill. It is the Minister's intention to set up such a scheme, but under the regulations. The document circulated by the Minister refers to independent conciliation and arbitration processes but there is no reference to that in the Bill and that is unfortunate. That is a weakness in the Bill. The Bill should have at least referred to a system of conciliation and arbitration.

The Minister must bear in mind that we are talking about 245 representatives from the various units. It should be obvious that it will not be possible to bring [1419] those representatives together to negotiate on, for example, pay levels, just as it is impossible to bring all the shop stewards of one industry to a sitting of the Labour Court. There is a need for the setting up of an executive structure, a select group from the representative body who would negotiate under the conciliation and arbitration schemes. I do not disagree with the point made by the Minister about the need for a separate system for the Defence Forces. In my view it would be better to have a new structure established. It is my intention to support the amendment tabled by my colleague because it is along the lines of the Minister's proposals. My colleague is afraid that the Bill will not contain a reference to conciliation and arbitration machinery. It is not sufficient that that machinery will be referred to in the regulations.

It is important that the Minister takes cognisance of the fact that a manual on industrial relations in the Defence Forces has not been produced. There are no experts on industrial relations in the Defence Forces. The welfare officers in the different units deal with routine queries. The experts on conciliation and arbitration are in the Department. I am not suggesting that the Minister, or his officials, will not make every effort to set up a structure that will stand the test of time but it is important that such a structure has an independent chairman.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  Yes.

Mr. Bell: Information on Michael Bell  Zoom on Michael Bell  If we do not have an independent chairman negotiations will go on forever. A person skilled in industrial relations negotiations should be appointed because that person at the end of the day may be asked to give a casting vote for or against the case made. It is important that negotiations do not get bogged down at conciliation and arbitration level and that it is explained to members of the Defence Forces that when we are talking about arbitration we are referring to a decision-making function. At conciliation negotiations can go on for a long time but at arbitration a [1420] decision is made. It is necessary to give training on industrial relations procedures to selected representatives of the Defence Forces, particularly those who are successful in the elections.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  I support amendment No. 10 which represents a general statement of principle. It does not contain any concept of restriction whatever. It merely states than an association shall represent its members through the agreed process of conciliation and arbitration schemes. The Minister has told us that he intends to establish a specific conciliation and arbitration scheme for the Defence Forces and I should like to emphasise that on that basis there should be no difficulty in writing that into the Bill. The Minister has often reminded us that this is an enabling Bill that simply announces in general terms, and provides the enabling basis in general terms, of the establishment of representative bodies. The Minister points out in his document that a system of conciliation and arbitration will be established. That is a blunt declaration and there is unanimity for that concept. The idea was presented by the officers in their submission to the Gleeson Commission on pay and related matters which was presented six days in advance of the publication of the Minister's document.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  I would not have seen that.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  I am not suggesting that. I do not think PDFORRA can be blamed for having such a scheme in their constitution. They sought advice since last July but did not receive any from the Department. As a result they prepared their own constitution, a brave but to some degree uncertain step by them. It is acknowledged that the Minister is taking a step in the right direction and that is appreciated. However, we are suggesting that the Minister write the principle into the Bill, the grounding document for this process. If that is done we can rest assured that there will not be a hiccup in the future should the mood [1421] or the views change in whatever quarters. I appeal to the Minister to accept amendment No. 10 which does not represent any incursion into his plans and endeavours.

Dr. Hillery: Information on Brian J. Hillery  Zoom on Brian J. Hillery  I should like to focus on Deputy Ryan's amendment which states that all disputes in relation to issues of remuneration or conditions of employment or service shall be referred to the Civil Service scheme of conciliation and arbitration. The first part of the amendment is unnecessary in that good practice and actual practice will mean that the vast majority of problems and disputes will be resolved directly in discussions without reference to the conciliation and arbitration machinery. The record shows that in all those schemes, and in industrial relations generally, the overwhelming majority of disputes are settled where they should be settled, nearest the problem in direct discussions between the parties. In the give and take of day-to-day practice it will not and should not be necessary to insert a provision that all disputes shall be referred to the conciliation and arbitration scheme.

The distinction between the Civil Service conciliation and arbitration scheme and a specific one for the Army has been well made. We have a duty to provide one to meet the particular circumstances of Defence Forces employment. The conciliation and arbitration schemes do not have any statutory basis and that brings us back to the flexibility which characterises good practice. It is to avoid inflexibility and to avoid rigidity that the detail of the conciliation and arbitration schemes are not spelt out in legislation. Of course the detail will require to be spelt out under regulations which will be the result of direct discussions and agreement. In regard to what is arbitrable Deputy Bell made the important point that there is a finality to what is arbitrable but it is also a fact that both sides — and I include the representatives of the Defence Forces — will have a direct input into what will be arbitrable in due course so they will have an ownership and a commitment to what will be agreed in that regard.

[1422] In relation to the final point made by Deputy Bell regarding training it is evident in all sorts of employments that the key to success in the area of relationships, negotiations and discussions hinges heavily on the knowledge, the skills and the attitudes of the people directly involved at the work place and that therefore training is very important. It is particularly important in the case of the Defence Forces because they are new to this system. It is not within their experience to be dealing with matters of this kind. I would strongly suggest that training facilities be made available in due course for these representatives because it will be money well invested in terms of what we are all trying to achieve, that is, good policies and practices in the Defence Forces in the areas we have in mind.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  I would like to thank the Deputies who have contributed to what has been a very constructive discussion on this aspect. I am glad it has been of that nature because, as Deputy Bell said, it is the fundamental aspect of what we are doing here that a scheme of this kind for the Defence Forces is being introduced. I also reiterate that in order to have the scheme as flexible as possible it is better that the detail be spelt out in regulations. Deputy Hillery has accentuated that point. Having said that, there is something to be said for the point of view mentioned by Deputy McCartan and which is, in effect, incorporated in Deputy Nealon's amendment, that is, that we should incorporate in the Bill a general declaration that there will be an agreed process of negotiation, conciliation and arbitration or something of that nature, that we should have a general one line statement in the Bill to that effect, without going into any detail. We can leave the detail, as Deputy McCartan suggested, for further inevitable negotiation. I will certainly look very closely at that point and I will do something on that one line statement on the lines of Deputy Nealon's amendment for Report Stage.

[1423]Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  I am very thankful that the Minister is doing that. It is a wise decision. It will add to the Bill and in that case I will not be pressing my amendment.

Mr. Ryan: Information on Seán Ryan  Zoom on Seán Ryan  On the basis of the Minister's statement I am very pleased and I am pleased that he has taken on board the basic principles outlined in the two amendments. Given that position and that he is acknowledging the need to have it incorporated in the Bill I withdraw my amendment.

Amendment, by leave, withdrawn.

Amendment No. 10 not moved.

Acting Chairman (Mr. Wyse): Information on Pearse Wyse  Zoom on Pearse Wyse  We move on to amendment No. 11. Amendment No. 23 is an alternative to amendments Nos. 11, 12 and 22. Therefore, I suggest that amendments Nos. 11, 12, 22 and 23 be taken together by agreement. Is that agreed?

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  Amendment No. 12 has nothing to do with this at all. Amendments Nos. 11 and 23 are related but amendments Nos. 12 and 22 are separate.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  Amendment No. 11 deals with the right of free access to the media as does amendment No. 23 in part, amendment No. 12 deals with the power to raise money from subscriptions and amendment No. 22 deals with the holding of elections.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  I do not mind.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  They do appear to be related.

Acting Chairman:  Is it agreed that we take amendments Nos. 11 and 23 together? Agreed.

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  I move amendment No. 11:

In page 2, between lines 34 and 35, to insert the following subsection:

[1424]“(3) An association shall have the right of free access to the media by means of spokespersons nominated by the association.”.

This amendment deals with free access to the media which is another fundamental element but perhaps not as fundamental as is the process of conciliation and arbitration. Nevertheless it is one that could cause much greater difficulties. From the history of this Bill my opinion is that the Minister would not be nearly as committed to this particular aspect as he was to the issue of conciliation and arbitration which he said he brought forward. I can envisage great difficulties arising here because of the exposure, by its very nature, to the media, which is something that attracts attention and can create difficulties.

The Minister has conceded that there will be media exposure or that there will be entitlement of the various associations to have access to the media but he did so on a very gradual basis. It appeared that this concession was reluctantly dragged from the Minister and from the various authorities. It came by a nod and wink indication that the Department would not have total objections to media access but this was after this had become one of the important elements.

I keep saying that the Permanent Defence Forces representative groups document is the Minister's proposals and the Minister described it as a military document but as far as access to the media is concerned there is no question as to what it is. It is repeated three times that the Government have decided they will permit statements on behalf of individual groups to be made to the media at Defence Forces headquarters level by spokespersons nominated by the group. That is a Government decision and to the extent that it involved access to the media it is very welcome but it is also very curtailing in that it states that access to the media can only be made by spokespersons at Defence Forces headquarters level. We have a multiplicity of media at present. It can be a very inhibiting factor that statements should only be made at Defence Forces headquarters level by [1425] spokespersons nominated by the group whereas my amendment suggests that it should be spokespersons nominated by the association. We will have responsible associations emerging and it is only right that they should be entitled to nominate their spokesperson. There may, in fact, be different types of spokespersons required for different aspects of an area in which the media are interested. It is also possible that some of the things that will be dealt with will be concerned specifically with command areas so that a spokesperson from that command area concerned would have far greater knowledge of what was involved and would be able to put over the case more cogently, more concisely and with greater benefit to his own organisation than would be the case if a spokesman was called in from Defence Forces headquarters level. It should be left to the association to nominate their own spokespersons. There should not be any confinement. The issue of access to the media, is repeated three times in this document. The decision to have such access at Defence Forces headquarters level seems to be exclusive of all other levels. We believe this provision should be included in the Bill and not in regulations. Because it is such a fundamental issue which may give rise to controversy down the line and generate disputes, it is important to include it in the Bill.

Mr. Ryan: Information on Seán Ryan  Zoom on Seán Ryan  I support Deputy Nealon's amendment. My amendment No. 23 and Deputy Nealon's amendment No. 11 basically seek to achieve the same thing but obviously we are going in a different direction by seeking to insert a restriction on the Minister. Amendment No. 23 states:

The Minister may not make any regulation which prevents members, officers, or nominated spokespersons of an association from having free access to the media for purposes associated with the aims and objectives of the association; nor any regulation which seeks to instruct an association as to the purposes for which it will use its [1426] own funds; nor any regulation which seeks to interfere in any election process provided for by the rules of an association.

It is fundamental to incorporate this provision in the Bill and not to leave it to the Minister to incorporate it in regulations. Access to the media is a very thorny issue particularly as it relates to the Defence Forces. This has been acknowledged in the recent past by representatives who felt under pressure from their members to take a certain stand. Many people believed they had no other option but to go public on certain issues which affected them. I do not intend to delve into that case which is probably sub judice but it shows the delicate issues involved when members of the Defence Forces go public on a particular issue. We have to acknowledge, by way of regulation and legislation, the right of people in defined areas to make their case. We will have to assure PDFORRA or the representative association proposed in the Bill that there will be no interference in the organisation, structure or command of the Defence Forces. I believe this is what we all want to achieve.

I believe it is necessary to include amendment No. 23 in the Bill in order to tighten up its provisions and to ensure that everyone is clear about the direction we are going so that there will be no conflict between the top and bottom levels in the Defence Forces. The Minister has acknowledged in this House the right of members of the representative body or bodies to have recourse to the media in certain circumstances. If this provision is incorporated in the Bill it will strengthen it and be in the interests of all members of the Defence Forces.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  I support the inclusion in the Bill of a statement on the right of access to the media by spokespersons of the representative groups. While I appreciate the approach taken by Deputy Ryan in his amendment I prefer the positive declaration in Deputy Nealon's amendment. As Deputy Ryan said, both [1427] amendments seek to achieve the same thing while going in different directions.

The question of access to the media is a very odd and curious one and has been a feature, almost by default, of the peculiar history we can attach to the development and maintenance of the Defence Forces. For some reason it was believed that they were not allowed to talk to anyone and there were regulations in place which said they could not be seen or heard in public on issues affecting them. That is not the position and should never have been. This helps us to understand the need for representative associations and why we should now record, as a general principle, that we believe access to the media is a democratic right which the people in the Defence Forces, like people in all other areas of trade, should have. I prefer the simple declaration in Deputy Nealon's amendment that the representative association should have the right of free access to the media. The Minister has acknowledged both on Second Stage and in his letter accompanying the Chief of Staff's proposals that they should have this right. He said, and I quote: “Spokespersons will be permitted to make statements to the news media on specified matters which fall within the scope of the representative groups.” I believe we are on all fours in regard to this issue.

The Minister has acknowledged the importance of including declarations of principle in enabling legislation. During the debate on the previous set of amendments the Minister thankfully said that he will work with us on Report Stage towards incorporating such a declaration. To abandon that process at this stage of this important issue would perhaps give the wrong impression to those concerned that the Minister cannot go the same distance in regard to this issue. I ask the Minister to acknowledge that what we are doing is laying down some principles which we believe should exist.

I want to refer to the proceedings taken at defence military level against Mr. Michael Martin. I ask the Minister to use his good offices to ensure that the [1428] disciplinary action is brought to an end in the good spirit of what we are doing here and will do in the months to come. It would be regrettable if the disciplinary action taken against him within the Defence Forces overshadowed what we are doing here. Mr. Martin spoke to members of the media who met him, without notice, at the airport on his return from a meeting with groups abroad about the duties assigned to him by PDFORRA. I do not think this matter should be pursued any further by way of disciplinary action within the Defence Forces. I ask the Minister to use his good offices to ensure that the matter is resolved fairly.

Mr. Bell: Information on Michael Bell  Zoom on Michael Bell  I would not like to comment on the last remarks made by Deputy McCartan. Because it is a very sensitive matter and probably sub judice, I believe it is better not to discuss it. The Minister is an old soldier who knows a bit about that game too. It is referred to in section 5 and, in more detail in annex G on page 7, and that is the one that concerns me. It would seem to indicate that a statement can only be made from Army headquarters. It raises the question as to who would authorise a statement. Does it mean that the Chief of Staff would have the responsibility of deciding what might or might not be given to the media? Also the representative body will probably be located in some barracks or preferably outside of an army location. As is normal in industrial relations, that representative body would issue statements from time to time following meetings. If that is covered in regulations and not in the Bill there would be a problem. If this were incorporated in the Bill it would encompass the main thrust of the amendments.

In the broad sense it is important to incorporate it in the Bill. There is no doubt that otherwise section 14 of annexe G will cause problems because somebody will have to decide what is to be said. There is no problem in relation to statements following conciliation and arbitration because in such case the normal practice is to issue an agreed statement [1429] from both sides. What worries me is the situation where the representative body is discussing the result of conciliation and arbitration and the media want to know what they discussed and how they came to a conclusion. If this had to be referred to Defence Force Headquarters there would be all sorts of problems. Who would actually make the decision on what was to be said? It would be better to have a broad statement encompassing the two amendments along the lines that the Minister accepted on the previous amendment.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  I want to reiterate what I said in my letter regarding the document sent out by the Chief of Staff in which I pledged myself to the proposition that spokespersons will be permitted to make statements to the news media on specified matters which fall within the scope of the representative groups under the heading of access to the media. That such groups have such access to the media is so self-evident that it is totally unnecessary to incorporate it in legislation. One cannot establish representative groups and not give them access to the media. They must have access to the media. They must be able to express their point of view in accordance with their mandate in representing their members on matters of pay, conditions of service and the whole range of welfare issues that we discussed this morning and on conciliation and arbitration proceedings that may or may not follow particular discussions and negotiations. It is so obvious that they must have the right to communicate with the media concerning matters that arise out of their mandate in these areas that it is a reflection on me as Minister to suggest, as is suggested in amendment No. 23, that the Minister may not make any regulations which prevent members from having free access to the media. That question does not and could not arise.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  Do regulations not exist at the moment prohibiting access to public representatives?

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  We are now setting up a [1430] representative body. Deputy McCartan is very clever at transposing from one to another. That is the most false type of logic.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  I have been well taught over the past two days.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  Regulations exist in a situation where there are no representative bodies. This is what we are trying to remedy by establishing these representative bodies. What Deputy McCartan speaks of will no longer be relevant. There will be representative bodies established by way of regulation under this legislation, and a fortiori they must have the right, within the parameters of their mandate, to appoint spokespersons to speak to the media. We are in an open society. This is guaranteed and written into the Constitution. They cannot be deprived of that right. No Minister can deprive them of that right. I find it highly offensive that it should be suggested in an amendment that it requires a specific line in legislation to order me, the Minister, not to make any regulation.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  I take the Minister's point, but who will specify the matters on which they can speak to the media?

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  That is my next point. That is a matter for them to determine. We are back again to what they wish to see incorporated in regulations. This surely is a matter that is particularly suited to incorporation in regulations, and I am sure the representative bodies will seek to have a whole range of matters on which they can speak to the media incorporated in regulations. Broadly speaking, it will be in accordance with what I am suggesting in paragraph 5. There will be provision for the representative bodies to make statements to the media on specified matters that fall within the scope of the representative groups, and that scope will include pay, remuneration, conditions of service, welfare matters and all that each of these covers. Within those parameters the manner in which they wish to present their case to [1431] the media, the title of the spokesperson or spokespersons that they wish to appoint and the circumstances in which they want that done are all matters on which the men themselves will have points to make. My two colleagues themselves are very much aware that this is a matter of great importance.

They do not want carte blanche to talk about everything. They have their own sense of discipline and responsibility. They will have their views on a range of issues. I may not be comprehensive enough in what I am saying but it is self-evident that they should be allowed to speak through appointed spokespersons on all matters covered by their mandate. They may wish to have their views incorporated in the regulation regarding the circumstances in which they speak to the media. I want to hear them on that. It is important that access to the media in a free society should be spelled out in the regulations. This is particularly a matter for the men themselves, much more so than other matters we have discussed. They know what they will wish to discuss with the media and can impose their own terms and conditions.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  If they do not want to talk to the media they will not.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  That is their business. Let them handle it. This is an excellent document for discussion, drawn up by Army HQ.

Mr. Bell: Information on Michael Bell  Zoom on Michael Bell  They did not understand that it was a discussion document.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  I acknowledge that but it is understood now that it is a discussion document. Regarding the point made by Deputy Bell, I agree that the point on page 7 is too restrictive.

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  Is that the Government decision?

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  These are proposals, not regulations.

[1432]Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  I am dealing with the specific thing listed here as a Government decision.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  These are matters that form the basis of proposals for discussion. I indicated that on Second Stage.

I agree with Deputy Bell that the point on page 7 relating to access to the media is restrictive in that it confines it to Defence headquarters level. This is not a tablet of stone; it is an opinion on the part of Army HQ. There is a misappreciation of the situation, helped by Deputy Nealon initially, when he was under the misconception that these were regulations.

Mr. Bell: Information on Michael Bell  Zoom on Michael Bell  What else could we believe?

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  Let us forget about that contentious point. I agree with Deputy Bell that this is too restrictive and it will be ironed out in the course of discussions. In that spirit I have put paragraph 5 in my letter in which I emphasise that they will be permitted to make statements to the news media on specified matters which fall within the scope of the representative groups. I left it open and general. I stand by that terminology which is over my signature. That is the way I envisage the overall principle but the details can be worked out in consultation with the men.

This is ideally a matter for discussion and consultation with them. Their spokespersons will be talking to the media and I imagine they will have a very definite point of view on the extent and nature of what they transmit to the media. The only parameter is that their interventions, submissions and transmissions to the media should be within the mandate envisaged in the Bill. The mandate is quite clear. It covers remuneration, conditions of service and all aspects of the welfare services, but excludes command and discipline. Within the terms of the mandate they are free to talk to the media. The details of how and when they do it are a matter for themselves.

The official side will listen very carefully when the detail of the regulations is being drafted and agreed upon. There is [1433] no reason there should not be agreement. Writing it into legislation is offensive and carries the implication that in some way one could move otherwise. One cannot conceive of setting up this sort of body unless they have recourse to the media. They must have such recourse in a free society. It is self-evident that they cannot be bottled up and not allowed recourse to the media. It is essential for their purpose. Any other suggestion is totally unreal. I do not think it appropriate to have this self-evident constitutional right as a free association guaranteed by statute written into legislation. It is totally superfluous and unnecessary.

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  As far as the Permanent Defence Force representative group are concerned any misconceptions about this document spread abroad were directly the fault of the Minister and his Department. Government proposals are set out in the document. These are not some product of a Mickey Mouse think tank or some raw thoughts in an inter-departmental memo. They were the distilled thoughts of the Government at that time as to what this association should be. They were projected as Government proposals issued by direction of the Minister. It could not come better authenticated than that. If we got the wrong idea, it was totally the fault of the wording. The Minister has consistently said that we got the wrong idea and that this was merely a military document.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  The Deputy thought they were regulations.

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  I now come to the specific matter of access to the media. It is stated that the Government have decided to permit statements on behalf of individual groups. That is a tablet of stone. That is a Government decision recorded in a minute. This is not a proposal. The Government have decided that they will permit statements on behalf of individual groups to be made to the media at Defence Forces Headquarters level. I have said that that is over-constrained. [1434] That is a Government decision. I hope the Minister will say he will go back to the Government and get them to change that decision.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  I do not have to go back to the Government. It is withdrawn. I have said that several times on behalf of the Government here in the House. This is a Parliament where we make decisions.

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  Is that the way you treat a Government decision?

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  I am acting on behalf of the Government here. It is collective responsibility. That section is no longer relevant, I say that on behalf of the Government.

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  And a correction will be made in the Government minutes.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  It is not in the Government minutes.

Acting Chairman (Mr. Sherlock): Information on Joe Sherlock  Zoom on Joe Sherlock  Deputy Nealon will continue to make his point.

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  As I understand it, all important decisions, and this is an important decision, go into Government minutes.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  The Deputy was never in Government and he does not know how they function. I am handling this Bill in this free Parliament and I say that the matter referred to is no longer relevant.

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  I am delighted to see you have changed this Government decision on this thing because it was a mistake in the first place.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  It was brought to my attention.

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  It was brought to your attention by myself first and then by Deputy Bell but I am glad you are willing to accept it was a mistake. Why did you put it into this document in the first place?

[1435]Acting Chairman:  Deputy Nealon, please address the Chair. You have the right to interrupt, but Minister, the extent to which you are doing so is unreasonable.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  Thank you very much. I am trying to be helpful.

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  Chairman, I do not think he has any right to interrupt. As far as this document is concerned, I notice another thing in passing. There is a heading for the Minister's comment here in the introduction to this document and it reads: “Arrangements to be Protected by Legislation” and we are told that the arrangements will be fully protected by legislation and regulations. The Minister is not protecting any arrangements by legislation except what we have dragged out of him here today. To get back to the access to the media, I will hand it to the Minister that his declaration that spokespersons will be permitted to make statements in the news media on specific matters which fall within the scope of the representative groups might be a better amendment than my own here.

Mr. Bell: Information on Michael Bell  Zoom on Michael Bell  This is what I suggested.

Mr. Nealon: Information on Edward Nealon  Zoom on Edward Nealon  I would be very happy to accept that. These are the Minister's own words. If he is willing to tell me that he will put his own words, his own distilled thoughts — and who can do it better than himself — into the legislation then I would be very happy not to proceed with my amendment. If he is not, I will be pressing the amendment because I believe that on this important area there should be a general statement of principle as far as access to the media is concerned. There is no use saying everyone accepts there must be. If that is so, why not put it in, copperfasten it and add to the authenticity and strength of the Bill? I think it will be very welcome overall, but I will be very happy to see the Minister's own words going in there. If the draftsmen to whom he pays such attention think any element should be changed, then any change of that nature will be [1436] acceptable to me. I cannot see that the Minister's own words will be anything but an excellent addition.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  When we are forming a historic, new representative association it is a pity that Deputies go back over old ground. I have spoken here about the positive mood that is on this side and I see it within individual Deputies, but it is unfortunate that we take up documents that have been clarified time and again as discussion documents and pick out bits and pieces that might cause problems here and there. The case has well been made that these people will have a democratic right to speak to the media and the media, rightly, will be interested in the early days of the formation of the new group. I believe we will find also a diversion of opinion with the people from PDFORRA on this issue. I know from discussions Deputy Hillery and I had with them that they are very much aware of the unique position they hold in speaking to the media. Deputy Ryan talked about the delicate nature of discussions between the media and people of the Defence Forces. That is recognised clearly and PDFORRA accept that. I saw Michael Martin speak to the media after our discussion and all I can say is that the manner in which he spoke to them was most responsible and constructive. He appreciates what is being done here.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  There is a threat of disciplinary action hanging over him.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  Deputy Bell quite rightly referred to the sub judice aspect. I think at times there is a better understanding outside this Chamber of what we are doing. Access to the media has been agreed in principle. There is no point in putting this into the legislation itself. It is a matter to be agreed when it comes to regulations and the regulations will deal with that issue. The Minister quite rightly referred to the range of issues with regard to media access. Issues of details of who will speak and how they will speak, of pay and service are very clear in my mind. We will find a great deal of agreement [1437] with the representatives of the associations when it comes to dealing with this matter. I know from my discussions that they are very conscious of the special role they will have in dealing with the media. I have watched the Garda representatives speak to the media and I think this will be something on the same lines. I can appreciate that they are always conscious of their unique position.

I support the Minister totally in this. We are into the early formation of a new group, these people will have a democratic right to speak and they will do so. The media will be interested. PDFORRA and Michael Martin in particular will handle that in the manner they have handled it so far. I support the Minister's view strongly. I think it is the correct approach, indeed the only approach. We should not put into an enabling Bill matters that can be handled at regulation stage.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  There has been a peculiar history in the past relating to access to the media and the right of members of the Defence Forces to speak or to be heard. They have been in a unique position. There is no comparison or parallel anywhere else in any order of the right of access to the media of people in the workplace. They have as an illustration the interviewing of Michael Martin coming out of Dublin Airport. It is incredible. The person then could be subjected to military discipline. It illustrates the peculiar, uncertain and woolly thinking about the right of soldiers to be heard. This is well illustrated by the fact that when it suited the Government or people in authority to have Michael Martin interviewed on the radio after the meeting with Deputies Kitt and Hillery, there was no difficulty. What was different about the day he was coming home from Europe and met with his colleagues at Dublin Airport or when he was coming out after his meeting in the Aisling Hotel?

A Deputy:  The matter is sub judice.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  I accept that but I am [1438] merely making the point to illustrate how this whole issue of the right of access to the media is both hot and cold in one day.

Progress reported; Committee to sit again.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.


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