The organisation representing commissioned officers in the Defence Forces has accused the Department of Defence of abusing its position by backing draft legislation prohibiting particular post-holders from being members.
In a social media posting, the Representative Association of Commissioned Officers (Raco) accuses the department of “secretly creating new laws to strip away freedom of association”.
Raco said the department “abused a dominant position to attack the Defence Forces” with the move which is described as “unparalleled anywhere else in Ireland”.
The criticism comes after an Oireachtas committee hearing last month at which Raco, the other organisation representing members of the Defence Forces, PDForra, and the Irish Congress of Trade Unions (Ictu) all criticised aspects of the Defence (Amendment) Bill 2023 which the Government says is one of two pieces of legislation intended to “drive forward the cultural transformation of the Defence Forces”.
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The general heads of the legislation published in January contains a provision that neither the director of military prosecutions nor any military judge can be a member of a representative body. The legislation would allow Minister for Defence to add to the list of roles.
Raco general secretary Conor King says the provision, if enacted, would breach the basic rights of the personnel impacted under the European Social Charter and that the issue has arisen because the legislation was drawn up without any consultation with the representative bodies, something the organisations say they are entitled to under existing legislation.
Responding to queries, the department said the draft legislation was formulated, in part, on foot of advice from military management but that there was consultation, including a meeting between the Tánaiste and representative bodies on March 7th.
Mr King said the consultation came almost two months after the legislation had been published and that in responses to him, the General Staff seemed uncertain what advice had been provided.
With regard to the Bill’s content, the department said Micheál Martin had provided assurances that the rights of personnel will, in general, be maintained but that “independent post holders are statutorily provided for in the Defence Acts”.
“The proposed prohibition on membership arises from the fact that the holders of these posts exercise critical functions relating to the administration of military justice to both Raco and PDForra members and maintains the independence of the post holders.
King is critical of the justification and points out to the fact that when the provision was previously applied to just the director of military prosecutions it took the issue to adjudication where, last May, it won with the measure described, in. a lengthy decision, as “unreasonable”. In any case, the director’s staff and juries in Courts Martial will still likely be Raco members.
When officials of the two representative organisations appeared before the Joint Oireachtas Committee on Defence last month, PDForra’s Gerard Guinan said the organisation “believes that the right to freedom of association is a constitutionally protected right under Article 40 of the Constitution. Moreover, it is a fundamental right that should only be limited, where necessary, for the preservation of national security or where it is necessary in a democratic society.”
PDForra had previously backed a High Court action by one of its members which resulted in a 2022 agreement to allow both it and Raco to temporarily affiliate to Ictu.
The Government permission involved is due to expire at the end of June and the legislation is intended to regularise that position. King, however, believes it is being rushed on that basis and wrote to Micheál Martin this week asking that he instead trigger a provision in the 2022 settlement to extend the permission so as to provide more time for consideration of the legislation.
A spokesperson for Ictu said this week any move to bar individuals from joining a representative body would be the first of its kind in the history of the State and would be unacceptable.
“In this day and age barring people from being in a union is just not on,” they said.
At the committee hearing, Ictu official Liam Berney told politicians the organisation “was deeply concerned that the Minister would seek, through legislation, to preclude employees from membership of a trade union or association. To proceed to legislate as proposed would have far-reaching consequences. There is no requirement for such a provision.”
He said that “to restrict membership is disproportionate and potentially discriminatory”.
The hearing was also told of concerns regarding the inclusion of the Department of Defence’s secretary general on the external oversight body which, it is proposed, the legislation will put on a statutory footing.
The department says a recommended composition of the body was set out by the Independent Review Group in its report and the Government is following that recommendation.
“The External Oversight Body is independent of the Defence Forces. The presence of the secretary general has not, and will not, compromise the independence of the Body,” it said.
There is also opposition to a provision which prohibits criticism of Government policy which Mr Berney said went “far beyond” what was agreed on foot of the court action two years ago.
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