I am very pleased to present this Bill to the Seanad. The Bill marks the realization of an important political commitment to establish a new statutory office of Ombudsman for the Defence Forces. The Defence Forces Ombudsman will effect an historical transformation of present military redress procedures. The Defence Forces Ombudsman will, in most cases, replace the Minister for Defence as the final point of appeal in the statutory Defence Forces redress procedures provided for in the 1954 Defence Act.
Senators will recall that the late John Lucey, the former General Secretary of PDFORRA, was a most committed and articulate advocate of the case for a statutory Defence Forces Ombudsman. John Lucey had campaigned tirelessly for the establishment of a Defence Forces Ombudsman over many years. I trust that this legislation may also serve as a fitting memorial to him.
I must also take this opportunity to acknowledge the key role played by my predecessor in office. Michael Smith was personally committed to the concept of the Defence Forces Ombudsman as a specific policy objective of his term in office.
The Bill before you today differs in certain important aspects from the legislation as originally initiated in the Dail on publication in January 2002.
In the immediate aftermath of publication, there were very positive and constructive consultations with the representative associations, PDFORRA and RACO. In the interests of promoting the widest possible consensus in support of the legislation and of the new Ombudsman, a number of important substantive Ministerial amendments to the published Bill were brought forward at Dail Committee Stage by Michael Smith.
These important Ministerial amendments were all accepted by the Dail.
I will describe these important Ministerial amendments later, after a brief review of the more general purposes of the Bill.
This Bill provides for the establishment of the Office of the Defence Forces Ombudsman and for the appointment of an individual to that office by the President upon the recommendation of Government. The Bill defines the functions of the Ombudsman and sets out the general right of Defence Forces personnel to make a complaint to the Ombudsman. The very limited circumstances in which the Ombudsman shall not investigate particular defined types of complaint are also set out.
The Bill provides the Ombudsman with very considerable independence and autonomy in the discharge of his statutory functions and in the conduct of investigations. Military personnel are assured of complete independence from the Minister, the Department of Defence and the military authorities in the investigation of complaints.
Background – Section 114 of Defence Act
Senators may find it helpful if I very briefly outline the nature of the existing statutory mechanisms for redress within the Defence Forces.
There is an existing system of complaints inquiry which is available to all serving military personnel. Section 114 of the Defence Act provides for application for redress by military personnel who believe that they have been wronged by another member of the Defence Forces. In 1996, this system was modified administratively with the introduction of an external Complaints Inquiry Officer (CIO) appointed directly by the Minister to act in an advisory capacity. The advisory role of the ‘CIO’ was introduced into the redress procedure on an agreed basis following extensive consultations with the representative associations at Conciliation and Arbitration. Individual complaints brought before the Minister could be referred to the CIO at the discretion of the Minister for independent review. The CIO then made recommendations to the Minister. At that time in 1996, it was agreed that the question of a statutory Defence Forces Ombudsman could be considered at a later date, in the light of practical experience with and in the context of a subsequent review of the operation of the informal CIO system.
That review commenced towards the end of 1999. The CIO was then dealing with some two dozen cases a year on average. The review did identify a continuing demand among enlisted personnel at Private and junior NCO level for a more transparent, independent and statutorily rigorous procedure which would be clearly seen to be independent of the Defence Forces chain of command, of the Departmental secretariat and of the Minister.
Doyle Report in 2002 and context
There have been other more recent developments which have again highlighted the importance of ensuring that military personnel have faith in grievance procedures.
The Doyle Report surveyed perceptions and experiences of unacceptable workplace behaviours in the Defence Forces. During the course of her detailed investigations, Dr. Eileen Doyle found a serious lack of confidence in the existing internal military complaint procedures. This lack of confidence was found to be widespread, and particularly so amongst enlisted personnel.
The Doyle Report was published in March 2002. While the Bill providing for the new Ombudsman was by then already published, the findings of the Doyle Report were very disturbing. These findings were based upon extensive research undertaken by Dr. Eileen Doyle and her expert team.
Dr. Doyle’s report showed real and widespread perceptions of bullying and other forms of unacceptable behaviour within the Defence Forces.
The Doyle Report underlined the need for an independent statutory mechanism for the investigation of complaints.
Dr. Doyle’s report and recommendations were fully accepted. The military authorities responded decisively.
An independent Monitoring Group chaired by Dr. Doyle herself has been overseeing the implementation of fundamental reforms in the period since 2002. This major enterprise involves the top military authorities, the Department and the representative associations. The follow on progress report, “Response to the Challenge of a Workplace”, was launched on Friday, 24th September by my predecessor. This latest document details the very significant degree of progress made so far and sets out an agenda for further action for the immediate future.
A very great deal has been accomplished over the last two years since the original Doyle Report. This process of change will be continued and developed into the future. Indeed, a further detailed survey and review of the Defence Forces working environment will be carried out by 2007, as recommended by Dr. Eileen Doyle in her recent progress report. The findings of that study will also be made public.
The Defence Forces have demonstrated a very genuine commitment to this difficult process of cultural change within their organisation. The representative associations have also committed themselves fully to the process. Their role in particular is crucial. We are all well aware that securing fundamental and irreversible changes in workplace culture and attitudes is never simple or easy. However, I believe that real leadership can establish and maintain the proper environment throughout the Defence Forces.
Seen within the wider context of these other developments, it will be appreciated that the appointment of an independent statutory Ombudsman will be of major importance in developing a positive working environment for members of the Defence Forces.
Provisions of the Bill
The new Defence Forces Ombudsman will investigate complaints with a view to ascertaining whether an action complained of may have been unreasonable, arbitrary, improperly discriminatory or otherwise inconsistent with sound and fair administrative practice. The Ombudsman will be statutorily independent in the course of investigations and in the performance of his duties.
At present, a complaint may be finally brought before the Minister for Defence where an applicant so wishes, after the various levels of appeal within the military system, up to the Chief of Staff, have been properly utilised.
The present right of referral to the Minister for Defence will be now be replaced, in nearly all cases, with a right of referral to the Defence Forces Ombudsman.
However, the published Bill was amended at Committee Stage in the Dail so as to ensure that the right of referral to the Minister will be now retained in those clearly defined circumstances in which the Ombudsman is specifically excluded from access under the Bill, but where there would be access to the Minister under current arrangements.
In this regard, I would refer Senators to the entirely revised text of Section 13 of the Bill as now amended.
These specific sets of circumstances relate to :-
(i) security or military operations, as defined in the Bill,
(ii) matters relating to the organisation, structure and deployment of the Defence Forces, and
(iii) matters relating to the administration of military prisons
The Bill also provides that any complaints concerning actions predating the commencement of the legislation will continue to be dealt with by the Minister on a transitional basis.
Generally, the Ombudsman will become involved in examining a complaint where
(1) a complainant has had full recourse to the internal military redress system, up to and including the level of the Chief of Staff
(2) those procedures have been exhausted, and
(3) the Ombudsman forms an opinion that the complainant has an apparently bona fide and justified cause of complaint or grievance, which, in the opinion of the Ombudsman, has not been satisfactorily redressed or resolved.
The Ombudsman will also be accessible to former members of the Defence Forces subject to the specified time limits. The present redress procedures are confined to serving members and to persons serving at the time of initiation of their complaint.
Conversely, it will be entirely for the Ombudsman, at his own discretion, to refuse any trivial, vexatious or manifestly unreasonable or foolish complaints or to refuse complaints where the internal military redress system has not been properly utilized.
Exclusions from remit of Ombudsman
The military environment poses quite specific challenges to the traditional concept of an independent Ombudsman. There is a delicate balance to be drawn between the need to provide appropriate rights of access to the Ombudsman on the one hand and the need to safeguard military lines of authority on the other. I would point out that, from the outset, great emphasis was placed on minimizing the level of restriction upon the remit of the new Ombudsman.
Nevertheless, in order to ensure that this intention would be fully realized in practice, a major Ministerial amendment was made to the definition of ‘military operation’ at Committee Stage in the Dail.
While ‘military operations’ will be excluded from the ambit of the Ombudsman, the substantive re-definition of the term ‘military operation’, by Committee Stage Ministerial amendment, now clarifies the term with precision.
The term ‘military operation’ should only encompass actual operations in the field. The new definition of ‘military operation’ will thus maximize the remit of the Ombudsman to the greatest practical extent as regards the types of circumstances falling within the scope of the new Ombudsman.
The original definition in the Bill as published was a cause of some serious concern to PDFORRA. The Association was of the view that the original definition was potentially open ended and could be interpreted as covering a vast range of every day routine military circumstances, thus perhaps greatly impeding the effectiveness of the new Ombudsman.
Some other exclusions are self evident – for instance, the Ombudsman will not be able to investigate a complaint where a legal action has been initiated.
The Ombudsman will not become involved in matters within the remit of the Defence Forces Conciliation and Arbitration Scheme and the representative associations.
Matters relating to the organisation, structure and deployment of the Defence Forces and matters relating to the administration of military prisons will also be excluded from the remit of the Ombudsman.
Security matters will also be outside the remit of the Ombudsman and the Minister will retain the right to request the Ombudsman to desist from an investigation in such an area. The Ombudsman may, however, apply to the High Court and seek a direction from the High Court if such a situation should ever arise.
I am confident that the number of complaints falling outside the statutory remit of the Ombudsman will be very small indeed.
I am very pleased to submit this legislation, as amended by the Dail, for the consideration of the Seanad. The Government’s commitment to provide access to a statutory Defence Forces Ombudsman marks a development of major significance for the Defence Forces. This important legislative measure will serve to assist in the cultivation and maintenance of a modern working environment which will benefit all ranks within the Defence Forces.
In conclusion, I believe that this Bill represents above all a sensible and practical model for the operation of the Defence Forces Ombudsman. This is a real response to a widespread desire for modernization and reform of the redress procedures amongst military personnel themselves, and particularly so amongst those in the enlisted ranks.
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 the Seanad.
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