Ombudsman (Defence Forces) Bill 2002: Report and Final Stages.

Wednesday, 3 November 2004

Seanad Eireann Debate
Vol. 178 No. 11

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An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  I remind Senators that a Senator may only speak once on Report Stage except the proposer of an amendment who may reply to the discussion on the amendment. On Report Stage, all amendments must be seconded.

Amendments Nos. 5 and 6 are consequential on amendment No. 1. Amendments Nos. 1, 5 and [721]6 may be taken together by agreement. Is that agreed? Agreed.

Ms O’Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  I move amendment No. 1:

I tabled amendments Nos. 1 and 5 in the name of the Labour Party. They relate to the lengthy debate on Committee Stage which, the Minister will recall, centred on the issue of the public interest and whether in this legislation we should give the ombudsman the power to initiate an investigation where a complaint has not been made. Senator Maurice Hayes, among others, strongly supported the notion of the ombudsman having the power to initiate investigations and to be proactive.

I will not take up the time of the House rehearsing the arguments but it occurred to me that the spirit of the legislation would facilitate this type of amendment. We are trying to achieve a situation in which members of the Defence Forces have confidence in the ombudsman. It is also important that the public has confidence in the office and the role of the ombudsman. A situation could arise, for example, where something was happening within the Defence Forces concerning which a complaint would not be made, for reasons of fear or whatever, and neither would it be spoken about in public. Perhaps a whistleblower might alert the media anonymously, a situation that is not unusual. This has happened in other instances and could well occur again. RTE might broadcast a “Prime Time” documentary on the issue about which there could be significant public concern. Members in both Houses of the Oireachtas would call for an investigation, yet the ombudsman could not investigate because a complaint had not been made from within the Defence Forces, despite it being an issue of great public interest. We should by now have enough experience of tribunals of inquiry to realise that there are certain mechanisms which are important and useful. In setting up an office such as this we should ensure we do not leave out important matters.

I do not intend to create a situation where the ombudsman for the Defence Forces would have an all-encompassing role and that there would be no limitations or boundaries within which he or she might operate. My intention in these amendments is to ensure that the ombudsman has public confidence as well as the confidence of the Defence Forces. I also want to ensure that the office is not limited or constrained in carrying out an investigation where a complaint does not arise. It is clear from the debate on Committee Stage that there could be a matter of public interest where a complaint was not made and on which [722]the ombudsman should, nevertheless, investigate and report.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  I second amendment No. 1. With the permission of the House I will speak on amendment No. 2. I welcome the Minister back to the House. We recently debated this matter and the observations made by the former Northern Ireland ombudsman, Senator Maurice Hayes, were useful in that context. The Minister said he would consider this amendment and we await his views.

It is important that we give the ombudsman, who will have a key role to play in terms of dealing with all these Defence Forces matters, a free hand. We should not in any way seek to limit the way in which his or her authority can lead to a better working environment for people within the Defence Forces.

The amendment tabled by Senator O’Meara and my amendment No. 6 make provision for this issue of the public interest to which she has referred. This is not a normal working environment, as I understand it. It is difficult for people to make complaints because of the structure of the Defence Forces and the top down approach, which is inevitable and necessary in terms of giving and taking orders. We must use this and the following amendments as a means to provide the ombudsman with a free hand to decide whether he or she wants to investigate of his or her own volition a matter of public interest. Such a provision would in no way diminish the existing structures within the Defence Forces but would, if anything, add to them.

It is essential that we provide the ombudsman with the free hand to which I have referred due to the difficulty of making complaints. I ask the Minister to reconsider this matter on which we had a useful Committee Stage discussion. Whether the formulation used is Fine Gael’s or Senator O’Meara’s is not of particular concern to me as long as we provide the ombudsman with the same powers we provide to the State Ombudsman and the Ombudsman for Children. We do not want to create circumstances like those outlined by Senator O’Meara in which the ombudsman will not be able to respond to a matter in the public domain due to an investigative programme. That would be wrong and serve to undermine the ombudsman and his or her office. It is not the start we want to give him or her.

Minister for Defence (Mr. O’Dea): Information on Willie O'Dea  Zoom on Willie O'Dea  I thank Senators for their further contributions on this matter on which we had an extensive discussion on Committee Stage. If someone had a general complaint of the sort envisaged in the context of these amendments, he or she would have recourse to the ordinary Ombudsman for the public services. From what I recall of the debate on Committee Stage, Senators Minihan and Maurice Hayes stated explicitly that they did not [723]envisage a role such as this for the ombudsman for the Defence Forces.

Amendment No. 1 if applied would change the definition of “complaint” in section 1. The term “complaint” could then be interpreted by the ombudsman as referring to any matter not being a matter arising from a specific complaint made to him or her by a particular individual. The ombudsman might decide to investigate such a complaint spontaneously on his or her own initiative in the public interest.

Amendment No. 5 seeks to insert a new subsection into section 4 of the Bill on the functions of the ombudsman. The new subsection would explicitly empower the ombudsman to investigate any matter where in his or her opinion an investigation was required in the public interest. There would be no need for a specific complaint to have been made and, presumably, no need to have an identifiable complainant to hand.

Similarly, amendment No. 6 proposes the addition of an entirely new subsection in section 4. The amendment is a variant of amendment No. 5. Under its provisions, the ombudsman could act spontaneously on his or her own initiative in the absence of a complaint in circumstances in which it appeared to him or her that a member of the Defence Forces may have committed an offence, presumably under military law, or behaved in a manner justifying disciplinary proceedings. I indicated on Committee Stage that it would be entirely unacceptable under any circumstances for the ombudsman to venture into suggestive preliminary opinions as to whether an offence under military law may or may not have been committed. That is not the function of the Defence Forces ombudsman but is a role strictly confined to the relevant military legal authorities at brigade or service level and at the level of the Office of the Director of Legal Services, the deputy Judge Advocate General. As the ombudsman has no legal power, competence or qualifications to attempt to make such a professional judgments in the area of military law, I must reject the three amendments.

The underlying concept at the heart of the amendments is alien to the specific role and functions of the type of ombudsman for which this legislation specifically provides. The Bill was drafted as a result of a long period of consultation with representative associations, most particularly PDFORRA. PDFORRA sought the establishment of a statutory, independent entity to which enlisted members of the Permanent Defence Forces could take applications for redress of wrongs under the Defence Act after the internal military redress system had been fully utilised up to Chief of Staff level. Where an individual was not satisfied with the response of the military authorities, PDFORRA wanted him or her to have access to an entirely independent person operating as a special statutory ombudsman for members of the Defence Forces.

[724]This is the specific concept addressed in and fully satisfied by the Bill. It was agreed with the representative associations and secured Government approval to inform the drafting of suitable legislation. The type of ombudsman set out is the one the Government agreed to provide for in law. If made, the amendments under discussion would mark a radical departure from the original founding principles of the legislation and constitute a completely new policy framework within the legislation. An investigating authority such as that envisaged by the amendments is not in keeping with the concept agreed with the representative associations nor, moreover, with the policy previously approved by the Government. The effect of the amendments would be to create a roving inspectorate which would provide us with a very different office from that of an independent statutory entity to which an individual soldier could make an application for redress having exhausted the internal military redress procedures.

From a practical legal perspective, the roles and functions outlined in the amendments are inconsistent with numerous aspects of the legislation as drafted. The entire Bill would have to be redrafted from scratch to give effect to the concepts outlined, even if they were acceptable in principle. Section 5 deals with exclusions, which refer to the investigation of any complaint received from a complainant as defined in the Bill concerning an action. As drafted, section 5 would not apply to the ombudsman where he or she was investigating any matter not the subject of a complaint to him or her but it would apply to him or her where he or she was investigating a complaint from an individual soldier. It is an essential principle of the legislation that, subject to the provisions of the Bill, the Defence Forces ombudsman may investigate an action which is the subject of a complaint made to him or her by a specific person affected by an action. It is an essential condition, therefore, that there must be an identifiable individual complainant in place with a specific complaint about a specific action.

The proposed amendments contain provisions which depart from that basic concept. One cannot envisage how in practice the Defence Forces ombudsman could autonomously commence an investigation into an action in the absence of either a complainant or a complaint. Regrettably, I must therefore reject the amendments.

Ms O’Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  While I thank the Minister for his reply, I do not agree with him. He said the amendments represented a radical departure from what the Government and representative associations had agreed the legislation would contain. I thought this was a House of the Oireachtas and that there was a debate taking place on the floor of this Chamber which constituted an exchange of views and an open-minded approach to the possibility of amending legislation. Why does it matter if the amendments are a radical departure? During my years in the House, I have seen radical departures in legislation which arose [725]from amendments. I accept that it is the Minister’s prerogative to amend legislation but I do not accept that he should reject an amendment simply because it is not in keeping with what certain groups want or what has been agreed with them.

Ultimately, this is a House of the Oireachtas whose Members are charged with formulating and enacting legislation. While we are here to reflect the voices of those who are not Members, we are not necessarily here to do their bidding. As Members of the Oireachtas, it is our duty and privilege to enact legislation as we see fit. I am sorry the Minister takes the view he does. While the amendments constitute a new policy framework, the issue at their heart is very important. I would not have pursued them on Report Stage had Senator Maurice Hayes not taken the view he did on Committee Stage. Given his breadth of experience and wisdom, for which he was appointed by the Taoiseach, many Members take the view that when he speaks, we should listen. I have tabled these amendments to ensure that the legislation will be as effective as possible in keeping with my role as a Member of the House. I do not accept the Minister’s reply and I will not withdraw the amendment.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  I understand what the Minister has said in terms of the discussions he has had with the representative body and I respect that. Senator O’Meara is correct. This is a matter for the Oireachtas. Legislation and the passage of law in our country is a matter for the Oireachtas and while we must be mindful of the discussions that take place outside the House we, as legislators, have a role to play and we have to ensure that the body of law we put in place today and the start-up we give to the new ombudsman is the best available.

I am not convinced by the Minister’s arguments. What we need in the area of ombudsman, whether for the Defence Forces, regulatory authorities and so on, is a new standardised Bill that will deal in a conclusive manner with its functions. We do not have such a Bill. We cannot start calling an ombudsman an ombudsman if he or she is not being given the power in place in other jurisdictions as a result of good practice built up over many years. Nothing would be lost in the legislation by the acceptance of the Senator O’Meara’s amendment and mine, if anything we would gain.

I am a little concerned by the Minister's comment that an agreement was broached which is now being put to the House and that the House must accept it as a de facto position irrespective of our obligations to introduce best practice into the new role. We are not taking anything away from the ombudsman, we are giving him or her something new, the kind of power he or she may need and we are giving discretion to that person to show good judgment. Inevitably the person the Government will select will be of sound judgment, have expertise in the area of public [726]administration and can make a distinction between an issue which is wholly erroneous and one that has to have its light shone upon it.

There is merit in these amendments because we are adding to the office of this ombudsman, we are improving it not taking from it. People should not be afraid of this new role. Given the culture in the Defence Forces and the upstairs, downstairs attitude that sometimes exist, we must ensure the best possible standard is in place for everyone. I repeat the point I made earlier that this is an addition to the important role the Government has wisely introduced in this legislation. It is not a subtraction, it will not lead the ombudsman down culs-de-sac, rather it will give him or her the power to decide what needs to be examined. There should be a standardised approach to the office of ombudsman. I support the amendments.

Mr. Minihan: Information on John Minihan  Zoom on John Minihan  I spoke at length on this issue on Committee Stage. I would not altogether concur with Senator O’Meara. This amendment as tabled by two members of the Opposition goes back to the over-civilianisation of the Defence Forces. There is a unique system within the Defence Forces involving the law of the land, military law and the military redress system. These aspects must be brought into play before a member of the Defence Forces decides to put his or her case before the ombudsman or make a complaint. I welcome that approach.

My concern — the Minister covered this — is that we will create an inspectorate for the Defence Forces. If the ombudsman does not receive a complaint from a member of the Defence Forces that has not been dealt with by the normal redress system, the ombudsman may, on receipt of such a complaint, carry out an investigation. If we go down the road of the amendment who will decide whether the ombudsman should or should not investigate?

Ms O’Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  The ombudsman.

Mr. Minihan: Information on John Minihan  Zoom on John Minihan  Are we putting pressure on the ombudsman by the non-receipt of a complaint that he or she will have to respond to calls from politicians, the media or misinformed calls? If a complaint has to be made there is a system in place for that purpose and the ombudsman can respond to it. I am satisfied that in the Defence Forces, where the law of the land, military law and a military redress system prevails — and now an ombudsman — something would be detected by these systems and that nobody would be afraid to make a complaint to the ombudsman. Given the present military structures, I would be uncomfortable with an ombudsman performing the role of an inspectorate.

Senator Maurice Hayes spoke of a realm where an ombudsman operated in the absence of such systems. He was not speaking about an organisation where there was military law, military police, a chain of command and a military redress [727]system but on the general area of an ombudsman in Northern Ireland where one would respond to public criticisms and public issues. That is the difference. I appreciate what Senator Brian Hayes has said but in the military context the amendment would not in any way enhance the office of the ombudsman.

Mr. Leyden: Information on Terry Leyden  Zoom on Terry Leyden  I support the points made by Senator Minihan who has much experience in this field. I commend the former Minister for Defence, Deputy Michael Smith, and the Minister, Deputy O’Dea, on their discussions with the representative associations PDFORRA, RACO and others. Consultation is the strength of the Bill. The organisations worked hard to put their case to the Minister who has responded positively. It is not appropriate to discuss all those issues again when they have been agreed by the Minister, the former Minister and PDFORRA, which is representing the Defence Forces. If they and the Minister are satisfied with the Bill I am satisfied with it and the Minister should hold his line in this regard.

Mr. O’Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  I shall make just a few points as we have exhausted the discussion of this matter. While I do not have a copy of the Committee Stage debate I recall Senator Maurice Hayes saying that he did not think it would be a good idea to have an inspectorate type role for the office of ombudsman. Senator O’Meara referred to the autonomy of the Oireachtas as the ultimate——

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  Will the Minister give way on that issue?

Mr. O’Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  Yes.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  Senator Maurice Hayes referred specifically to the case in Northern Ireland where a number of suicides occurred in military barracks. I understood him to have made the point that none of that could have been investigated and is not investigated because the same structures are not evident there. I understand the Minister’s point.

Mr. O’Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  I thank Senator Brian Hayes for that clarification. I understand Senator Maurice Hayes went on to say that if there could be a limited inspectorate role for the ombudsman he would welcome it. However, he concluded at the end of the debate that this would not be possible, that either one had an inspectorate or one did not.

Senator O’Meara said that as Members of the Oireachtas we should not slavishly follow the views of representative associations. Let us put this issue in context. The Defence Forces ombudsman is for members of the Defence Forces. The pressure and movement for such an ombudsman came from people in the Defence Forces. The person will be a public servant hear[728]ing complaints from members of the Defence Forces. Therefore, it seems logical that the views of members of the Defence Forces should be taken into account and should weigh heavily with the type of office proposed. We will not slavishly follow the views of any representative association, no matter how important, but they must be taken into account. I would be prepared to depart from those views and follow the line suggested if the proposed amendment were logical, practicable and an extension of or improvement on the Government’s proposal. However, it is not. Rather it is a departure into an entirely new realm.

This Bill proposes to change the system of appeal in regard to military redress. The final court of appeal at present is the Minister for Defence. However, the Defence Forces want the Minister to be replaced by an ombudsman to hear complaints as the final court of appeal, with which the Government agreed. The Garda ombudsman legislation pioneered through the other House by the Minister for Justice, Equality and Law Reform created an official with a two-fold function as a final adjudicator of complaints and as a general inspector. However, the understanding in respect of this Bill was that only the former function was proposed or wanted as it was all that was practicable.

Senator Brian Hayes suggests we will not take away from or add to the powers of the ombudsman by accepting these amendments. However, the proposed amendment would dilute the power and function of the ombudsman by covering different areas and chasing different hares, as Senator Minihan suggested was the case. The people for whom we are legislating do not want that situation and neither would it be practicable or correct.

  12 o’clock

The points raised on the previous occasion by Senators Brian and Maurice Hayes in respect of suicides in military barracks and so on are valid. We are taking substantive measures to encourage and help people in the military who have complained to come forward. Early in the new year, some 200 people will be nominated in the military to whom people who have legitimate complaints can come forward. We are implementing the recommendations in the Doyle report on bullying. A new administrative direction is being given to all members of the Defence Forces. There is a confidential telephone line and we are also canvassing people who are leaving the military to give an account of their experiences to examine where we can focus to make further improvements.

In view of those developments, I am inclined to share the views of PDFORRA and the ordinary members of the military at officer and enlisted level for whom we are legislating, that this is the correct approach and one the Government proposes to maintain.

Amendment put.

[729]The Seanad divided: Tá, 20; Níl, 31.

Information on James Bannon  Zoom on James Bannon  Bannon, James. Information on Paul Bradford  Zoom on Paul Bradford  Bradford, Paul.
Information on Feargal Browne  Zoom on Feargal Browne  Browne, Fergal. Information on Paddy Burke  Zoom on Paddy Burke  Burke, Paddy.
Information on Ulick Burke  Zoom on Ulick Burke  Burke, Ulick. Information on Paul Coghlan  Zoom on Paul Coghlan  Coghlan, Paul.
Information on Noel Coonan  Zoom on Noel Coonan  Coonan, Noel. Information on Maurice Cummins  Zoom on Maurice Cummins  Cummins, Maurice.
Information on Frank Feighan  Zoom on Frank Feighan  Feighan, Frank. Information on Michael Finucane  Zoom on Michael Finucane  Finucane, Michael.
Information on Brian Hayes  Zoom on Brian Hayes  Hayes, Brian. Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  Henry, Mary.
Information on Michael McCarthy  Zoom on Michael McCarthy  McCarthy, Michael. Information on Joe McHugh  Zoom on Joe McHugh  McHugh, Joe.
Information on David P.B. Norris  Zoom on David P.B. Norris  Norris, David. Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  O’Meara, Kathleen.
Information on Joe John O'Toole  Zoom on Joe John O'Toole  O’Toole, Joe. Information on John Paul Phelan  Zoom on John Paul Phelan  Phelan, John.
Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  Ross, Shane. Information on Brendan Ryan  Zoom on Brendan Ryan  Ryan, Brendan.



[729]Níl
Information on Eddie Bohan  Zoom on Eddie Bohan  Bohan, Eddie. Information on Cyprian Brady  Zoom on Cyprian Brady  Brady, Cyprian.
Information on Michael Brennan  Zoom on Michael Brennan  Brennan, Michael. Information on Peter Callanan  Zoom on Peter Callanan  Callanan, Peter.
Information on Brendan Daly  Zoom on Brendan Daly  Daly, Brendan. Information on John Dardis  Zoom on John Dardis  Dardis, John.
Information on Tim Dooley  Zoom on Tim Dooley  Dooley, Timmy. Information on Geraldine Feeney  Zoom on Geraldine Feeney  Feeney, Geraldine.
Information on Liam Fitzgerald  Zoom on Liam Fitzgerald  Fitzgerald, Liam. Information on Camillus Glynn  Zoom on Camillus Glynn  Glynn, Camillus.
Information on John Gerard Hanafin  Zoom on John Gerard Hanafin  Hanafin, John. Information on Brendan Kenneally  Zoom on Brendan Kenneally  Kenneally, Brendan.
Information on Tony Kett  Zoom on Tony Kett  Kett, Tony.  Kitt, Michael P.
Information on Terry Leyden  Zoom on Terry Leyden  Leyden, Terry. Information on Don Lydon  Zoom on Don Lydon  Lydon, Donal J.
Information on Marc MacSharry  Zoom on Marc MacSharry  MacSharry, Marc. Information on Dr Martin Mansergh  Zoom on Dr Martin Mansergh  Mansergh, Martin.
Information on John Minihan  Zoom on John Minihan  Minihan, John. Information on Paschal Canice Mooney  Zoom on Paschal Canice Mooney  Mooney, Paschal C.
Information on Tom Morrissey  Zoom on Tom Morrissey  Morrissey, Tom. Information on Pat Moylan  Zoom on Pat Moylan  Moylan, Pat.
Information on Francis O'Brien  Zoom on Francis O'Brien  O’Brien, Francis. Information on Mary O'Rourke  Zoom on Mary O'Rourke  O’Rourke, Mary.
Information on Labhrás Ó Murchú  Zoom on Labhrás Ó Murchú  Ó Murchú, Labhrás. Information on Ann Ormonde  Zoom on Ann Ormonde  Ormonde, Ann.
Information on Kieran Phelan  Zoom on Kieran Phelan  Phelan, Kieran. Information on Jim Walsh  Zoom on Jim Walsh  Walsh, Jim.
Information on Kate Walsh  Zoom on Kate Walsh  Walsh, Kate. Information on Mary M. White  Zoom on Mary M. White  White, Mary M.
Information on Diarmuid Wilson  Zoom on Diarmuid Wilson  Wilson, Diarmuid.  

[729]Tellers: Tá, Senators O’Meara and Ryan; Níl, Senators Minihan and Moylan.

[729]Amendment declared lost.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  I move amendment No. 2:

We had a discussion on this amendment on Committee Stage during which I pointed out that the ombudsman, who is nominated by the Government, should go through a legal procedure in which both Houses of the Oireachtas would pass a resolution to appoint him or her. This is related to an earlier suggestion I made for a standardised form of ombudsmen throughout the country. It would be useful for the House to be enabled to make such a resolution in order that it could at least debate the appointment. The amendment is not casting aspersions on the Government or implying it would appoint someone who is not up to the job. All it is suggesting is that the mere fact that the Government nominates the ombudsman should be recognised in both Houses by a positive resolution. Let us not forget that the Government’s nomination must be signed off by the President.

[730]The Leader of the House is aware of a recommendation made in our report on Seanad reform concerning the scrutiny, rather than the vetting, of high-profile public officials. There is merit in the proposal that the House should, at the very least, pass a resolution recommending the appointee. I am interested in hearing the Minister of State’s reply in this regard. Will he put on record the date on which the legislation will come into effect after it is signed by the Uachtarán?

Ms O’Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  I second the amendment.

Mr. O’Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  Senator Brian Hayes is correct that we discussed the issue at some length on Committee Stage. The Bill provides that the Defence Forces ombudsman will be appointed to the office by the President, acting on the recommendation of the Government. This mirrors the mode of appointment of the Chief of Staff of the Defence Forces.

The amendment requires that the person appointed to the office of Defence Forces ombudsman be appointed in a similar mode to other holders of statutory offices of ombudsman, for example, the original 1980 Ombudsman or the more recent Ombudsman for Children. These offices provide a wide range of public functions which are available to the entire body of the general public, essentially the entire national population, as regards their various functions. However, the Defence Forces ombudsman has, by definition, a much more restrictive potential [731]audience and remit, namely, the serving personnel of the Defence Forces and former such personnel, subject to the provisions of the Bill.

The remit of the Defence Forces ombudsman is restricted to matters internal to the Defence Forces, subject to the provisions of the Bill as a whole. The representative association, PDFORRA, initially wanted something along the lines of the amendment but, following consultation with my officials, it is now entirely satisfied with the existing wording of the Bill. As I already stated, having respect to all points of view, I wish to leave this provision of the Bill unchanged.

On Senator Brian Hayes’s point about the commencement date, I cannot give a precise date, but it is the Government’s intention to commence it as soon as practicable. We will be in contact with various people in the Department to ensure this is done. The Bill can be used side by side with the new provisions on bullying and direct contact persons, etc., for people in the Defence Forces to access. As they are part of a package, we do not want to have some of the package in place while other parts will be put in place at some indefinable time in the future. It will come into force fairly soon.

I want to make it clear that I will recommend the appointment of the ombudsman in a formal way. I intend to publicly advertise the position through the normal mechanism of the Civil Service Commission. The person will not be appointed by the Government.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  The Minister will bring a memorandum to Cabinet recommending the appointment.

Mr. O’Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  On the recommendation of the Civil Service Commission.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  There is nothing untoward about that. Given that it is such an important position, I thought it would have been more sensible to at least debate the matter. However as we have such a short time left, I will withdraw the amendment.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Amendments Nos. 3 and 4 are related and will be discussed together.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  I move amendment No. 3:

These amendments seek to ensure that the ombudsman will be appointed for a fixed term. While it is unlikely, the Bill as currently drafted provides for the possibility that the Government could reduce the normal seven year term of the ombudsman for appointments made by the President. I am surprised the Government has not set out the term in the Bill.

[732]The second amendment seeks to ensure that the officeholder can serve for a maximum of two terms, a first term and a second term, which is normal in respect of an appointment made by the President. Both amendments are an attempt to bring consistency to the legislation in line with similar legislation such as the Garda ombudsman, the Ombudsman for Children and the Ombudsman. There is a need for umbrella legislation in this area to ensure there is consistency. The Government should not be able on a whim to set the term of this important officeholder for the Defence Forces. The appointment should be for a fixed term and a maximum of two terms. Both amendments would achieve that effect.

Ms O’Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  I second the amendment.

Ms O’Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  I propose a change to the Order of Business. Report Stage of the Ombudsman (Defence Forces) Bill was to conclude at 12.15 p.m. but it will not happen because Members wish to thank the Minister. How much more time is needed?

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  A maximum of ten minutes.

Ms O’Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  I propose to conclude the debate at 12.30 p.m. I am sure the Minister has some pearls of wisdom for us.

An Leas-Chathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Is that agreed? Agreed.

Mr. O’Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  As I stated previously, the legislation provides for a period not exceeding seven years, with provision for a possible second and subsequent term of appointment. The proposed amendments would provide for a fixed-term appointment of seven years, with a possibility of one second term period of appointment only. The second term would presumably also be a fixed term of seven years, or 14 years in all over two terms. The proposed amendments would potentially allow an individual to serve for 14 consecutive years in total. Similar amendments were tabled on Committee and Report Stages in the Dáil. My predecessor carefully examined this issue during the Dáil deliberations on the Bill. Having considered the issue again following the Seanad debate, I cannot accept Senator Brian Hayes’s amendment.

The provisions of the Bill as regards the term of appointment were drafted in order to provide flexibility in making an appointment, not least from the viewpoint of potential appointees. A suitable potential appointee might be interested in filling the position for a period of three years or five years but might not want to undertake the task for a full seven-year term. We need to retain some degree of flexibility in regard to the term of appointment. As a consequence, we also require flexibility as regards the possibility of any second and subsequent terms. In the context of the new Defence Forces ombudsman, it is important that artificial restrictions are not introduced into this [733]primary legislation which could in practice serve to frustrate the filling of a post by a suitable candidate for a term of less than seven years. The Bill provides that the question of the fixing of the duration of the term of appointment should be left to the instrument of appointment, subject to the term not exceeding seven years. Having examined the situation again, I believe this is the best practical operational model for the new position.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  The Minister has given some reassurance in that the instrument to be laid before both Houses will state the duration of the term. This person will not just be independent within the Defence Forces but independent of Government. It is important for someone who may wish to take up a post for a seven-year period and who would then want to carry the work through for a 14-year period.

The argument about consistency is also important because, if someone is appointed by the President, the appointment can be for a maximum of 14 years, or two seven-year periods. Given the Minister’s commitment on the instrument, I will withdraw my amendment.

Amendment, by leave, withdrawn.

Amendments Nos. 4 to 8, inclusive, not moved.

Bill received for final consideration.

Question proposed: “That the Bill do now pass.”

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  I thank the Minister, Deputy O’Dea, and his officials for coming to the House. It is the first Bill he has taken in his position as Minister for Defence. I welcomed the opportunity to debate with him some of the important matters in the Bill. The legislation was introduced by his predecessor, therefore, his hands were tied slightly in respect of some of the amendments.

I congratulate all the representative bodies who have worked with the Government to provide a model such as the new ombudsman. It is important for people who serve in the Defence Forces, doing such a crucial job for this country in difficult times, to know that they have someone to whom they can turn if something is untoward. This is standard and modern practice which exists in many other jurisdictions. In this regard, the Fine Gael Party examined closely the Canadian model. The model of best practice in this legislation will ensure there is fair play for all who serve in our Defence Forces and bring such pride to this country through the many important tasks they carry out.

I wish the new ombudsman every success in the challenging and difficult task facing him or her. He or she will be entering into a situation where a cultural change has taken place in the Defence Forces as a result of this legislation. We should review the legislation at some time in the future to ensure, if glitches emerge or if it is found that [734]the ombudsman cannot do certain things as a result of the legislation, that we can make amendments. Fine Gael is open to such an approach.

Ms O’Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  I too thank the Minister for his work on this legislation. I also acknowledge the work of his predecessor, Deputy Michael Smith, in bringing forward this legislation in line with the commitment given, particularly to the representative bodies. I commend the Department on reflecting the needs of the Defence Forces in this regard.

This is solid legislation which provides an important and necessary framework. I wish the future ombudsman well in his or her role. I also acknowledge the work of the Department officials on this legislation.

Mr. Moylan: Information on Pat Moylan  Zoom on Pat Moylan  I welcome the passing of this Bill and compliment the Minister and his officials on their work. I also compliment his predecessor, Deputy Michael Smith, on his work. We must also recognise that the representative bodies made a major contribution. The establishment of an ombudsman for the Defence Forces is important. Senator Brian Hayes made an important point regarding the role of the ombudsman and suggested that the expertise required of an ombudsman may well exist in the office of some other ombudsman in the country. That expertise should be tapped and costs could be spared in the selection of an ombudsman for the Defence Forces. This is a good Bill which has been sought for some time.

The ombudsman for the Defence Forces will probably have to deal with matters a little differently from others because of the chain of command in the Army and the way in which orders are given. Issues that have caused problems in other organisations, for example, speaking in a loud tone to personnel, are part of daily life in the Army. I hope there will not be a plethora of complaints with regard to orders because of how they are issued.

I wish the Minister well and am delighted he has brought this legislation through the House. It has been on the agenda for some time. We will welcome him and any further Bills he wishes to bring forward in the House.

Mr. Minihan: Information on John Minihan  Zoom on John Minihan  I too thank the Minister for steering this legislation through the House. We have had an interesting debate which has allowed us speak on the broader issues of the Defence Forces. I welcome that because there has been a lack of effort and commitment in some areas to their promotion. This opportunity to highlight the great work they do, both at home and abroad, is therefore welcome.

I compliment the Department officials and both representative associations, RACO and PDFORRA, for approaching this legislation in a constructive manner which allowed us bring forward this suitable legislation. Everyone, both in and outside the Defence Forces, must welcome it [735]as part of the management structure and cultural change that is taking place in the modernisation and reorganisation of the Defence Forces.

I also avail of this opportunity to mention the late John Lucey who championed this legislation. As one of those who knew John, I feel he now has a wry smile on his face as he goes for a walk across the hills, something he liked to do when satisfied with a job well done. It would be remiss of me not to mention him now.

I wish the Minister well in his new Ministry. The contribution of the Defence Forces to this country and others is unique. Nobody can put a price on the value of their contribution to the country over the years, particularly their work for the United Nations. As politicians and legislators we should not continually comment on or refer to that service without backing up what we say. The Defence Forces are going through major reorganisation which we must continue to drive and fund to the highest standard. I know the Minister will meet that challenge. It is not good enough for us to talk about the Defence Forces and their great work unless we back up what we say with genuine support. I compliment the Minister and his officials and welcome this legislation which is a good day’s work for the Defence Forces.

Ms O’Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  I spoke on this legislation on Second Stage. I welcome the Minister for Defence, Deputy O’Dea. I feel the hand of history here. Some people say that tritely. However, I remember 1989 when the wives of Army personnel disrupted the election campaign. They did have some victories and former Deputy, Brian Lenihan, returned from hospital in America and was made Minister for Defence. He set out to give rights to the Defence Forces. That period was important for the forces. I remember him telling me how difficult it was to break through the high command, so to speak, and how it did not want rights granted. How could it? It wanted to be in charge of everything and could not understand why ordinary members of the Defence Forces should get rights hitherto unknown. This legislation is the culmination of those early moves. Various instruments along the way gave some of those rights, but this legislation providing for an ombudsman is the final link in the chain.

I support the comments of Senators Minihan, Brian Hayes and Moylan, our spokesman on Defence. From time to time when contingents are going abroad we pay what some might call lip service to the forces. We speak of their bravery, skill, competence and professionalism, all characteristics of good soldiers. We should equally back up the Minister when he seeks funding from the Minister for Finance to deal with the needs of the Army.

This Minister has come into his kingdom which I know he will make his own. It may seem a Ministry in which nothing happens but matters need[736]ing attention happen all the time under the surface. I have no doubt but that the Minister will bring his skill and ingenuity to bear upon his Ministry. Now that we have passed the legislation, I hope there is a speedy resolution to the matter of the employment of an ombudsman We took our time with the legislation and gave it much consideration. I hope it results in speedy implementation. I wish the Minister well.

An Leas-Chathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  I call Senator Leyden from the Western Command.

Ms O’Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  I am the Western Command.

Mr. Leyden: Information on Terry Leyden  Zoom on Terry Leyden  I thank the Minister for his excellent steering of the Bill through the House and I thank his officials for their attendance. I also thank the former Minister, Deputy Michael Smith, for his involvement in the Bill. I recognise the presence in the Gallery of members of the executive of PDFORRA — Mr. William Webb, president, Mr. Gerry Rooney, general secretary and Mr. Simon Devereux, deputy general secretary. I congratulate them and the late Mr. John Lucey on his work on the Bill. Preparation of the Bill has taken eight years. This is important legislation and is the crowning glory of the executive and membership of PDFORRA. Soldiers have been well served by the excellent officer board of the association. They will be very content with the enactment of this legislation.

I support the call of Opposition speakers that the appointment of the ombudsman should be made as quickly as possible. It is urgent that the appointment coincide with the implementation of the Minister’s other proposals.

I commend the Minister and the Government on the decision that the appointment will be made by the Civil Service Commission and will not be a Government appointment. This will be the case with future appointments by future Governments. This decision will ensure that whoever is appointed will be totally independent and will be at the service of the Defence Forces in a fair and honourable way. I commend the Government on this. There will be no question of jobs for the boys or girls in this regard. I wish the officeholder every success.

A lot done, more to do. Many of the day-to-day appeals and representations from members of the Defence Forces which now go to the Minister will be handed over to the ombudsman. The Minister must now carry out badly needed changes and improvements to the Defence Forces. I know the Minister will be meeting representatives of PDFORRA in a more formal way in the near future. The Minister is accessible to the representative bodies, PDFORRA and RACO. Very important issues will be coming to the Minister and he will have an opportunity to bring about major changes. I know he will make a great success of his first Cabinet position.

[737]Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  Senator Leyden should not rub it in.

Mr. Leyden: Information on Terry Leyden  Zoom on Terry Leyden  The Minister will make a great success of his position. I am aware of his ability and also recognise Deputy Michael Smith’s achievements in this regard. I congratulate the Minister, his officials, PDFORRA, RACO, other representative organisations and all concerned.

Ms O’Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Senator Leyden will get the nomination.

Mr. Cummins: Information on Maurice Cummins  Zoom on Maurice Cummins  I thank the Minister, the former Minister and their officials for bringing this legislation to the House. Senators have done everything possible to ensure the early passage of the Bill. I hope the Minister’s commitment to an early commencement date will be honoured and that the office of the ombudsman will be in place as soon as possible. I compliment everyone involved in the passage of this legislation.

Minister for Defence (Mr. O’Dea): Information on Willie O'Dea  Zoom on Willie O'Dea  I thank Senators from all sides of the House for their extraordinarily kind remarks. I am quite overwhelmed and I thank them very much.

Ms O’Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  The Minister was never overwhelmed.

Mr. O’Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  I also thank Senators, particularly Government and Opposition spokespersons, for their extremely constructive contributions. I was impressed by the contrast between the reality of an operational military situation and the ordinary civilian employment setting. These are two entirely different situations and the Bill had to be finely honed to achieve that balance correctly. I believe we have done the best possible job in this regard.

I thank the representative organisations for their constructive input into the legislation. Reference has been made to the independent role of the ombudsman. I took the decision that the Government would not appoint this person but that the appointment would be made the Civil Service Commission. My recommendation was readily accepted by the Government. As Senators Leyden and Minihan have said, this person will represent the Defence Forces. We are creating an ombudsman for the members of the Defence Forces. There will be no question of a political appointment. The ombudsman will be entirely independent in the performance of his or her duties.

In conjunction with the other reforms in the Defence Forces this Bill will make a real difference. I thank everyone for their contributions to the debate.

Question put and agreed to.


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