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DEFENCE FORCES (SECOND WORLD WAR AMNESTY AND IMMUNITY)
BILL 2012

SECOND STAGE-SEANAD EIREANN

OPENING STATEMENT BY MINISTER FOR JUSTICE, EQUALITY AND DEFENCE, MR. ALAN SHATTER T.D.

6th February 2013


Cathaoirleach, I am very pleased to present this Bill to Seanad Éireann.

At its peak during the Second World War, the Irish Defence Forces had approximately 42,000 serving personnel. Over the course of the War, it is estimated that over 7,000 members of the Defence Forces deserted, many to join with the Allied forces. Of these, some 2,500 personnel returned to their Units or were apprehended and were tried by military tribunal. The remaining personnel, numbering some 5,000, were the subject of dismissal under the Emergency Powers (No. 362) Order, 1945 and the Defence Forces (Temporary Provisions) Act 1946.

The Emergency Powers (No. 362) Order, 1945, which was signed by the then Taoiseach on 8 August 1945, provided for automatic dismissal from the Defence Forces of certain deserters and absentees without leave. The Order also provided for forfeiture of pay and allowances and a condition that every person to whom the Order applied should be disqualified for 7 years from holding any office or employment remunerated from the Central Fund. This was subsequently enacted by the Oireachtas in the Defence Forces (Temporary Provisions) Act, 1946.

The effect of the Order was to impose significant hardship on many individuals and families and remove from them the right to be tried for the offences of which they stood accused and to provide a defence against the alleged crime. Many of the individuals were shunned in their communities and many never returned to Ireland. Indeed, it is understood that some of those who were the subject of the Order had actually died in combat. The majority of the individuals impacted by the Order have now passed on, while those still alive are now in the twilight years of their lives.

It was against this backdrop that in June 2012, and following a detailed consideration of the issue, the Government concluded that the sacrifice and contribution of those who deserted from the Defence Forces to fight on the allied side in the Second World War should be recognised, while not undermining the requirements of military discipline or in any way condoning their desertion in a time of National emergency. In this context the Government committed to issuing an apology for the manner in which those members of the Defence Forces who left to join the Allied side during the period 1939 to 1945, were treated after the War by the State and to seek to provide a legal mechanism that would provide an amnesty to those who absented themselves from our Defence Forces for that reason. It is these individuals that the legislation I am introducing here today, the Defence Forces (Second World War Amnesty and Immunity) Bill 2012, seeks to address.

The ability of the Defence Forces to maintain the high standards demanded of them requires complete clarity with regard to the exercise of command authority whether at home or abroad. In order to maintain standards and rise to the challenges of a military environment and all of the associated tasks, it is important to uphold a chain of command that is clear and unambiguous at all times. Indeed this is critical to the maintenance of unit cohesion and operational effectiveness.

In that regard, it goes without saying that the Defence Forces must retain the power to enforce discipline through its own unique code of discipline within the military justice system. This disciplinary code must be efficient and effective and above all else, it must be fair to the individual.

In common with armies throughout the world, desertion from the Irish Defence Forces is regarded as a very serious offence. It is at the heart of the system of military discipline that when an individual takes the solemn oath at the commencement of his or her career that he or she cannot decide to just up and leave or fail to be available to perform duties. And while this is very much the case today it would especially have been the case at a time when the world was at war and our troops were on standby to defend our country from invasion.

Before elaborating on the Bill, I think it is important that I put on the record of this House the fact that the Government recognises the value and importance to the State of the essential service given by all those who served in the Defence Forces throughout the period of the Second World War. They performed a crucial duty for the State at a time of national emergency and enormous difficulty. The loyalty of the Defence Forces to the State is indispensable. It is essential to the national interest that members of the Defence Forces do not abandon their duties at any time, especially at a time of crisis, and no responsible Government could ever depart from this principle.

So I believe it is important that we acknowledge that throughout the period of the Second World War the vast majority of men chose to stay in the Defence Forces and serve their own country. These members were engaged in important service for their country and it is crucial that nothing we do now in any way diminishes or undervalues their loyalty and the service given by them to the State.

Having said that, I believe it is accepted by most people today that the majority of those who deserted the Defence Forces during the Second World War and who went on to fight against fascism did so out of a sense of idealism and with a commitment to protect democracies from tyranny and totalitarianism. Had there been a different outcome to the Second World War there is no reason to believe that this State would have been immune to invasion.

In seeking to address the question of desertion during the Second World War, the Government has already acknowledged that the War gave rise to circumstances that were grave and exceptional. Members of the Defence Forces left their posts at that time to join the Allied side in the fight against tyranny and together with many thousands of other Irish men and women, these individuals played an important role in defending freedom and democracy. Those who fought on the Allied side also contributed to protecting this State’s sovereignty and independence and our democratic values.

I think it will be accepted by all in this House that in the almost 74 years since the outbreak of the Second World War, our understanding of history has matured. History teaches us lessons that can sometimes only be learnt with the benefit of hindsight. The actions of those taken long ago, for whatever reasons, are not beyond re-evaluation. Those actions can now be considered free from the constraints that bound those directly involved at the time and without questioning or revisiting their motivations.

I have said previously that the exploits of the men who left the Defence Forces to join with the Allies have been politically airbrushed out of our contemporary history. But at this time of greater insight and understanding of the shared history and experiences of Ireland and Britain, I believe that the time is right for the role played by these brave volunteer Irish veterans to be recognised and the rejection they experienced understood.

From the remove of 2013, it is very hard to imagine the difficult decisions that people made when they consciously decided to leave Ireland to join with the allied forces during the course of the Second World War. Of course during that period Ireland decided to remain neutral, but I think it is safe to say that at the time anti-British feeling was still running very high.

Despite the level of anti-British feeling that without doubt existed, over the period of the Second World War an estimated 60,000 individually motivated citizens from the 26 counties left these shores to serve as volunteers in the British Armed Forces. More still migrated to England to participate in the war economy. While at the end of the war many of those who did choose to fight with the allies stayed on and sought to build lives for themselves, many more did return to Ireland.

There is no doubt that many veterans returning to Ireland at the end of the Second World War were met with grudging acceptance. However, it is also clear that others faced hostility. This would be particularly true when the individual was known to have deserted the Defence Forces. For all of them, the honour and celebration which they may have experienced at the end of the war in England, contrasted sharply with the changed circumstances of their return. There was no flag waving or cheering masses to greet them here. Instead they were faced with difficulties in seeking either work or social assistance and indeed many of their countrymen and women remained suspicious towards these individuals long after their return.

Before moving onto detailing the specific provisions of the Bill, I would like to re-emphasise that the Government does not condone desertion and fully recognises, values and respects the contribution of all those who stood by their posts with the Defence Forces and pledged their lives to defend this State’s integrity and sovereignty against any and all aggressors. In any consideration of the matter, we must also bear in mind the principle that such decisions cannot be left to the individual discretion of individual soldiers on active service and all soldiers must accept that there are consequences for desertion.

Provisions of the Bill:

I will now move on to the specific provisions of the Bill.

Section 1 outlines the definitions for the purposes of the Bill.

Section 2 provides for an amnesty for members of the Defence Forces who deserted or were absent without leave during the course of the Second World War and who subsequently served with forces fighting on the Allied side in that war and who-

(a) were dismissed from the Defence Forces by the Emergency Powers Order 1945,
(b) were convicted of desertion or being absent without leave, or
(c) were or are liable to be prosecuted for desertion or being absent without leave.

Senators will have noticed the Bill provides for an amnesty for those convicted of desertion or being absent without leave rather than a pardon as was originally envisaged by Government. This change has been made for technical reasons and is in line with legal advice provided to me during the drafting process by the Attorney General to the effect that a pardon would require that each case be individually processed, a situation that would clearly not be possible in practical terms.

Section 3 provides an immunity from prosecution for members of the Defence Forces who deserted or were absent without leave during the course of the Second World War and who subsequently served with forces fighting on the Allied side in that war.

Section 4 provides that no right, liability or any cause of action shall arise resulting from the enactment. Section 4 also provides that the amnesty being provided in section 2 will not have the effect of a pardon under Article 13.6 of the Constitution.

Section 5 provides for the short title of the Bill.

I am satisfied that the Bill as drafted fully meets the Government’s commitment to deal in a positive way with the issue of those who deserted our Defence Forces to join with the Allied forces during the course of the Second World War and that it does so in a way that does not expose the State to any liability in respect of those individuals. I am very pleased to submit this legislation for the consideration of the House and I look forward with anticipation to hearing the views and contributions of Senators in their deliberations and reflections on the Bill.

I commend the Bill to Seanad Éireann.


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