Michael McNamara (Clare, Labour)
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I move: "That the Bill be now read a Second Time."

This Bill arises out of the exclusion of members of An Garda Síochána and the Defence Forces from industrial relations law that applies to all other workers in the State. Gardaí and members of the Defence Forces are precluded from joining a trade union, engaging in collective bargaining and taking industrial action, while their representative associations are precluded from affiliating to the Irish Congress of Trade Unions, ICTU.

The Haddington Road agreement included a series of appendices governing pay for various individual sectors, including prison workers, firefighters, gardaí and the Defence Forces. Despite this, representatives of gardaí and members of the Defence Forces were barred from participating in the negotiations, whereas representatives of prison officers and firefighters were permitted to participate and did so. In advance of the negotiations on the successor agreement to the Croke Park agreement, the Garda representative associations met a number of Deputies from across the political spectrum, including me, to press on them the unfairness of the current position in this regard. The Defence Forces representative associations could not even do this much, however, as they feared that disciplinary proceedings could be brought, such is the legal bar even on engagement with their elected representatives.

Ireland is not unique in this regard. Similar provisions in place in France have resulted in the issuing of two recent judgments against the French rules by the European Court of Human Rights. In 2012, the European Confederation of Police, which is commonly known by the acronym EuroCOP and to which the Association of Garda Sergeants and Inspectors is affiliated, took a case to the European Committee on Social Rights alleging that Ireland was in breach of the European Social Charter. The Social Charter is a Council of Europe treaty which guarantees social and economic human rights. In his address to the Parliamentary Assembly of the Council of Europe in January this year, the President had this to say about the charter:

In the area of socio-economic rights, the adoption of the European Social Charter was a milestone in suggesting that human flourishing entails the effective enjoyment of social rights, as well as civil and political ones. I am glad to say that Ireland has been a supporter of both the original and the revised Charter, and that it has accepted the collective complaints mechanism presided over by the European Committee on Social Rights. The Irish have also backed the more recent initiatives aimed at strengthening the system of protection under the European Social Charter, including the Turin process.

Ireland also signed without reservation as to ratification a 1991 protocol amending the European Social Charter which provides for the committee of independent experts to assess from a legal standpoint the compliance of national law and practice with the obligations arising under the charter. On 2 December 2013, the European Committee on Social Rights adopted a decision that Ireland was in breach of its international obligations under the Social Charter. While the committee concluded by ten votes to one that Ireland was not in breach of Article 5 on the ground that it prohibited representative associations of An Garda Síochána from establishing trade unions, it found unanimously that there was a violation of Article 5 on the grounds that police representative associations were prohibited from joining national employee organisations such as ICTU.

It concluded unanimously that there is a violation of Article 6.2 of the Charter on grounds of restricted access of police representative associations into pay discussions such as the Haddington Road process and the Croke Park process which predated it and by six votes to five, a very narrow margin, that there was a violation of article 6.4 of the Charter on grounds of the prohibition against the right to strike for members of the police. It is not I who think police should have the right to strike. It is not Fianna Fáil. It is not for anybody else to determine: it is for the European body which states have determined should decide these matters. That body, the European Committee on Social Rights, has decided that Ireland is in breach of its obligations.

It should be pointed out that Ireland tried to defend the case on the basis of technicalities, claiming that the complaint was inadmissible, but the committee dismissed its claims. Rather than engage with the substantive merits of cases alleging a violation of the State's human rights commitments in Strasbourg, there is a marked tendency by successive Irish Governments to try to get out of the case on a technicality - the recent O'Keefe case and the case of D v. Ireland and this case. There is a further case which I will come to later which Ireland, notwithstanding its professed attachment to human rights, is fighting on a technicality.

In any event, in a resolution on the case, adopted by the Council of Europe's Committee of Ministers on 8 October 2014, the committee noted a commitment by the Irish Government to a review of the national situation in law and in practice in light of the decision. It is interesting to note that a press release, for domestic consumption, which accompanied the Minister for Justice and Equality's formal response to the Committee of Ministers referred to the committee's "non-binding ruling". This canard of a "non-binding ruling" is exclusively for domestic consumption. I do not believe the State would dare to appear before the Committee of Ministers and argue that a breach of its international legal obligations is non-binding or that it does not have to do something about it, particularly as these obligations are binding in international law upon all states that freely assume these obligations as sovereign states when they accede to and ratify a treaty, as Ireland did, and boasts in the international community as having done so.

The Bill seeks to introduce the necessary amendments to primary legislation to bring Ireland into compliance with the Social Charter, as interpreted by the European Committee on Social Rights. Section 2 provides that associations established under the Garda Síochána Act 2005 are exempted from the requirement to obtain a negotiation licence to carry on negotiations for the fixing of wages or other conditions of employment. Section 3 of the Bill amends the Garda Síochána Act 2005 to allow Garda representative bodies to associate with a national umbrella organisation of employees, such as the Irish Congress of Trade Unions.

Section 5 of the Bill amends the Industrial Relations Act 1990 to allow members of the Garda Síochána to strike and section 6 clarifies that actions by members of the Garda Síochána while on duty shall not be considered assistance to an employer who is a party to the trade dispute for the purposes of frustrating the strike or other industrial action for the purposes of section 11 of the Industrial Relations Act 1990. This, I believe, is quite important for the maintenance of public order at a picket. There are safeguards built into the Act. If the Minister was minded to put in additional safeguards I would be happy to consider those on Committee Stage.

Another issue which the Bill seeks to address is access to insolvency arrangements by the Garda Síochána. Given the failure of the Government to date to introduce an insolvency regime that anyone, other than the richest and more indebted property developers could avail of, this may seem superfluous, but hope springs eternal, especially in the Government backbenches, that something will eventually be done with regard to the insolvency regime.

Garda representative bodies have expressed concern that the wording of the breach of discipline provisions could operate so as to exclude members of An Garda Síochána. A previous Minister for Justice and Equality in 2013 said there was nothing in the code which would prevent the Garda from availing of the service but as we know Ministers for Justice and Equality change. Section 7, therefore, makes it explicit in law that there is nothing to prevent the Garda from availing of any of the procedures described in the Personal Insolvency Act 2012.

I turn to the provisions of the Billl which relate to members of the Defence Forces. Section 2 of the Bill also provides that associations established under the Defence (Amendment) Act 1990, that is, PDFORRA in the case of enlisted personnel and the Representative Association of Commissioned Officers, RACO, can carry on negotiations for the fixing of wages or other conditions of employment. Section 4 of the Bill amends the Defence (Amendment) Act 1990 to allow Defence Forces' representative bodies to join or associate with a national umbrella organisation, such as the Irish Congress of Trade Unions.

The Parliamentary Assembly of the Council of Europe of which I am one of the many Irish representatives - all the major political parties, Sinn Féin, Fianna Fáil and Fine Gael are represented as are the Independents and the Technical Group in this Dáil - recalled in its recommendation 1572 of 2002 and resolution 903 of 1988, the right to association for members of the professional staff of the armed forces and called on all member states of the Council of Europe to grant professional members of the armed forces the right to association. The explanatory memorandum called for a recognition that military personnel be considered as "citizens in uniform" and, therefore, enjoy basic social rights. The recommendation did not call for the removal of the prohibition of the right to strike which operates in many member states. Similarly, this Bill does not propose any change to the prohibition of the right to strike by members of the Defence Forces.

I understand that PDFORRA, a representative association of enlisted personnel serving in the Army, Naval Service and Air Corps has lodged a complaint to the European Committee on Social Rights, through EUROMIL to which it is affiliated. It is seeking to be permitted to join the Irish Congress of Trade Unions, to participate fully in collective bargaining and is also seeking the right to strike which is not covered by this Bill. The State, unsurprisingly, is contesting the admissibility of the case on the basis of a technicality.

This seems like an inordinate waste of taxpayers' money. Even if the State succeeds, any technical defect will be cured and a new complaint lodged. Eventually, the State, after having expended or wasted, depending on how one looks at it, considerable sums of taxpayers' money on legal fees will then have to grapple with the substantive merits of the case.

Two recent judgments of the European Court of Human Rights against France - Matelly v. France and ADEFDROMIL v. France, both handed down on 2 October 2014, support the case against the State. The court's reasoning in both cases was similar. It is important to bear in mind that the European Committee on Social Rights pays particular attention to the case law of the court and specifically stated that it seeks to avoid any divergence of approach. In the two French cases, the court emphasised that under Article 11 of the convention restrictions, even significant ones, could be imposed on the forms of action and expression of a representative association and of the military personnel who joined it, provided that such restrictions did not deprive them of the general right of association in defence of their occupational and non-pecuniary interests. That is quite important because the court stressed that the guarantees provided in Article 11 of the European Convention on Human Rights could not be hollowed out to the extent that they became meaningless. Article 11 states that:

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, or the police or of the administration of the State.

It will be very difficult for the State to argue that for representative associations of the Defence Forces to be able to engage in collective bargaining in the same way as firefighters, teachers and every other worker in the State somehow impinges on national security. I do not see how that argument could be sustained. I do see how the prohibition on the right to strike could be sustained, but not that on affiliation with ICTU. How does that impinge on national security, particularly as those in the Defence Forces are bound to follow orders? How would the fact they can fully engage in collective bargaining threaten the security or viability of the State? Notwithstanding its technical arguments against this case, the State faces an uphill battle and will probably waste a lot of money and time before it grapples with the core issue. A state which professes internationally to have respect for human rights as such an important part of the international architecture should not adopt the approach of a property developer in the Four Courts whose property empire is threatened, relying solely on technicalities. It should engage with the rights that are alleged to be impugned, because that is what it agreed to do in the various conventions it signed up to.

In addition, the European Court of Human Rights, in its judgment, made no distinction between the police and the military. That will also mitigate against Ireland. Earlier this week, the Minister for Foreign Affairs and Trade, Deputy Charles Flanagan, said: "Ireland attaches the highest importance to European Court of Human Rights as the cornerstone of human rights protection in Europe." This Bill presents the Government with an opportunity to follow the case law of the court without being dragged there kicking and screaming, and to vindicate the rights of those who defend our rights.

Aodhán Ó Ríordáin (Dublin North Central, Labour)
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On behalf of the Minister for Justice and Equality, and also the Minister for Defence, I welcome the opportunity to respond to the Industrial Relations (Members of the Garda Síochána and the Defence Forces) Bill 2015 which has been introduced by Deputy Michael McNamara.

Unfortunately, neither the Minster for Justice and Equality nor the Minister for Defence can be here today to address the House due to a prior engagement elsewhere. I congratulate and thank Deputy McNamara for bringing this important issue to the House today. This Bill forms part of a broader current debate on the future of the industrial relations architecture in the Garda Síochána and the Defence Forces.

In that regard, this Second Stage debate allows for a timely discussion on this matter and the various sensitivities and complexities which arise. I again thank Deputy McNamara for giving us this opportunity for debate. While it is important that we discuss such matters in this House, I am sure Deputies on all sides will recognise that debate and dialogues must also be had at other levels, particularly with the parties involved, including the various Garda and Defence Forces staff representative bodies. This process is under way and will continue. The points raised in this debate today will inform that broader process of consideration.

In debating these issues, it is important to understand the existing arrangements for industrial relations in the Garda Síochána and the Defence Forces, and I will deal first with the Garda Síochána. Section 18 of the Garda Síochána Act 2005 provides for the establishment, in accordance with regulations, of Garda associations for the purpose of representing members of the Garda Síochána below the rank of Assistant Commissioner in all matters affecting their welfare and efficiency. This includes pay, pensions and conditions of service. There was a similar provision for Garda associations in previous Garda legislation going back to 1923. Regulations establishing the Garda Representative Association, the Association of Garda Sergeants and Inspectors, the Association of Garda Superintendents and the Association of Chief Superintendents have been in place for several years.

As Deputies are aware, the Minister for Justice and Equality, Deputy Fitzgerald, has addressed, or is yet to address, the conferences of some of these various associations. This is in addition to the very positive constructive engagement between the Minister and the associations, including a substantial number of meetings over the past year, which included discussions on a broad range of issues. I know the Minister has welcomed this engagement in terms of allowing important discussion of industrial relations issues but also in providing a forum for feedback on key policing practice issues from front-line gardaí and local managers.

With regard to the question of Garda associations associating with a body outside the Garda Síochána, it should be noted that a general prohibition exists in section 18 of the 2005 Act. While this prohibition is the default position, it is important to note that the Minister for Justice and Equality may, notwithstanding this, authorise an association with an outside body, and in doing so may specify conditions or restrictions in respect of such an authorisation. In effect, Garda associates may not associate with the Irish Congress of Trade Unions, ICTU, or any other umbrella body for employees. Instead, the Garda associations represent their members' interests in negotiations on terms and conditions at the Garda Conciliation and Arbitration Council. In addition to this formal process, there is a less formal partnership process in place in the Garda Síochána which manages industrial relations issues at a local level, and, where possible, settles these issues before the need arises to present them formally at the conciliation council.

In respect of the right to strike, while there is no single specific prohibition on striking by members of the Garda Síochána, a combination of provisions in law, including the Industrial Relations Act 1990, as well as Garda discipline regulations, effectively precludes strikes. Regarding central pay talks, the Garda associations, because they have not been authorised to associate with ICTU, have in the past not been represented by the public service committee of ICTU in such talks. Instead, parallel bilateral discussions have been held with the Garda associations and the Defence Forces associations. Those are the current industrial relations arrangements for the Garda Síochána. A review of the Garda Síochána is under way under the Haddington Road agreement, and this review encompasses "the appropriate structures and mechanisms for the resolution of matters relating to pay, industrial relations and attendance matters".

The impetus for this Bill, or at least the Garda-related parts of the Bill, is a finding last year by the European Committee of Social Rights, ECSR, a Council of Europe body, that three aspects of the current arrangements are not in compliance with the European Social Charter: the prohibition on Garda representative associations joining national employees' organisations; the restricted access of Garda representative associations into pay agreement discussions; and the prohibition on the right to strike of members of the Garda Síochána. The Bill seeks to respond to these findings by providing a right for Garda and Defence Forces representatives to carry on negotiations for the fixing of pay or other conditions of employment of their members; by allowing those associations to join a national umbrella organisation of employees; and by providing a right to strike for members of the Garda Síochána. It is important to understand that, while the State of course subscribes to the principles set out in the European Social Charter, these findings are not legally binding on the State.

In a response to these findings, the State has said that it takes careful note of them and has undertaken to carefully consider them. In this context, it has pointed out that, as I mentioned, there is a review of the Garda Síochána under way under the Haddington Road agreement, and that this review encompasses appropriate structures and mechanisms for the resolution of matters relating to pay, industrial relations and attendance matters. As committed by the State, the findings of the ECSR, together with all other relevant issues, are being taken into account as part of this ongoing process. The State did, however, emphasise that the Garda Síochána provided security and intelligence service as well as policing in the State, and that it was critically important that these services were fully operational at all times. It made it clear, therefore, that giving members of the Garda Síochána the right to strike would raise the most serious issues in respect of the capacity of the State to ensure the maintenance of law and order. In this context the State noted the narrow margin within the ECSR by which this particular finding was made, as well as the strong dissenting opinions put forward, and emphasised that this was a particularly difficult and sensitive issue which raised complex questions from a legal, operational and management perspective. The State did, however, undertake to keep these findings under review and to report developments to the ECSR.

Apart from considering issues around a right to strike, I know that the Minister for Justice and Equality is actively exploring how best to respond to the findings relating to the association of Garda representative bodies with ICTU and the access of the Garda associations to central pay talks. The two issues are connected and require careful consideration. As outlined, however, the Minister and the Department have been engaging, and will continue to engage, with the Garda associations on these issues. The Minister is committed to this ongoing constructive process of engagement and dialogue, which should be let run its course.

One other Garda-related matter dealt with in the Bill is that it seeks to ensure that any member of the Garda Síochána who becomes, or applies to become, a party to an insolvency arrangement will not on that account fall foul of Garda discipline regulations. However, it is important to look at exactly what those regulations say. They provide that it is a breach of discipline for a Garda to fail wilfully and without good and sufficient cause to pay any lawful debt in such circumstances as to be liable to affect his or her ability to discharge his or her duties as a member or as to be liable to compromise other members.

In other words, getting into debt or falling behind with mortgage payments is not a disciplinary matter. I am not aware of anything in the Personal Insolvency Act 2012 or the Garda discipline regulations that prevents a member of An Garda Síochána from availing of the services of Insolvency Ireland.

I now wish to focus on issues affecting members of the Defence Forces, specifically issues relating to the Defence Forces representative associations. I will outline for the House the arrangements currently in place for the members of the Permanent Defence Force. The current industrial relations arrangements already permit members of the Permanent Defence Force the freedom of association and the right to join a professional representative association, such as RACO or PDFORRA, to represent their interests. In order to compensate for the prohibition of affiliation to ICTU, alternative mechanisms and rights of association are already in place, through the conciliation and arbitration scheme for members of the Permanent Defence Force. This scheme provides the representative associations with structures and processes to enable representations and negotiations to take place on behalf of their members.

The scheme, which is similar to the Civil Service scheme and those in other parts of the public service, provides the mechanism for direct negotiation and discussions with both civil and military management and the Department of Public Expenditure and Reform. It provides a mechanism through which consultations with the associations can be carried out and a means for both sides to discuss issues of importance to them and to arrive at mutually acceptable solutions. Where solutions cannot be resolved, there is access to a third party process, such as facilitation, adjudication and arbitration, if required.

The associations play a valuable role in representing their members interests, including negotiation on terms and conditions of employment and pay for their members. They promote the welfare of individual members by pursuing grievances on their behalf and represent their interests at different levels, from unit level upward and consult and negotiate on collective conditions of service in the military. In addition, discussions with the representative associations for the Permanent Defence Force, in parallel with discussions being undertaken by the official side of ICTU affiliated unions, are already required under the terms of the public service agreements 2010-2016. Under these parallel process arrangements, representatives of the Department of Defence, military management, the Department of An Taoiseach and the Department of Public Expenditure and Reform meet separately and collectively with both representative associations.

I would now like to speak specifically on the Bill before the House. While it is welcome that the Bill does not explicitly seek to remove the prohibition of the right to strike by members of the Defences Forces, an unforeseen consequence of the enabling provisions contained in sections 2 and 3 of the Bill, which would allow the representative associations of the Permanent Defence Force to join ICTU, poses a serious difficulty in regard to the stated first objective of the ICTU constitution. This first objective is "to uphold the democratic character and structure of the Trade Union Movement, to maintain the right of freedom of association and the right of workers to organise and negotiate and all such rights as are necessary to the performance of trade union functions and in particular, the right to strike".

In this regard, Article 4 of the ICTU constitution requires that members of congress shall satisfy the executive council that its rules, objectives and policy are in harmony with the constitution of congress and undertake to abide by its provisions. This is clearly not tenable where it relates to the Permanent Defence Force as the State's last line of defence. The Defence Forces must be fully operational at all times. In circumstances where the Defence Forces could be called upon to aid the civil authority, as has happened in the past, the potential for serious difficulties could arise in these circumstances if the representative associations were affiliated to ICTU, as clear conflict of objectives and policy then arise.

The Deputy will also appreciate that the issue of ICTU membership for the Permanent Defence Force representative associations raises complex questions from a legal, operational and management perspective. In this context, it is critical to remember that the legal barriers in place for military personnel are legitimate and proportionate to legitimate State interests; they are not arbitrary and are prescribed by law. First, they limit the representative associations to members of the Defence Forces and are not linked to trade unions. Second, legal barriers are in place to forbid strikes or other forms of industrial action that could disrupt operations or threaten security.

Access to ICTU potentially raises the issue of members of the Permanent Defence Force having to cross picket lines. This would be inconsistent with the objectives and policy of ICTU, in particular the right to strike. As such, it could disrupt vital operations in a way that threatens national security or could disrupt operations. It is worth repeating again that military personnel are the last line of defence. Even if the Permanent Defence Force representative associations were allowed access to ICTU on an affiliate level, or voluntarily to forswear industrial action, this might not prohibit secondary industrial action by another union in support of the representative associations' cause. The current arrangements already permit members of the Permanent Defence Force the freedom of association and the right to join a professional representative association to represent their interests. These associations already enjoy the right to be consulted in discussions concerning conditions of service or pay for members of the Permanent Defence Force.

The differences in treatment or limitations, such as the prohibition on affiliation to a body such as ICTU, are not unique to Ireland and Ireland is not unique in imposing limitations on the rights of association for military personnel. Indeed, the Organisation for the Security and Co-operation in Europe, OSCE, has recognised that it is common in many countries for the freedom of association of public servants, including members of the Defence Forces to be limited. For example, in Poland there is a ban on trade unions in the military, but like Ireland they have a right to form a representative association and have conciliation arrangements. They are also prohibited from the right to strike. Similarly, in Hungary, Germany, Romania, Belgium and Sweden, members of the military forces are legally prohibited from engaging in certain forms of industrial action, especially strikes.

In this context, it must be emphasised that the taking of any form of industrial action is irreconcilable with military law. If the representative associations for the Permanent Defence Force were granted access to an association of trade unions, such as the Irish Congress of Trade Unions, as in proposed in sections 2 and 3 of this Bill, that would clearly pose a distinct problem in terms of military discipline and possible interference with esprit de corps.The Deputy will appreciate that the disciplined nature of the Defence Forces requires that military orders must be obeyed.

Of the two representative associations for members of the Permanent Defence Force, the Representative Association for Commissioned Officers, RACO, has advised the Minister for Defence that it does not wish to join ICTU. The other, the Permanent Defence Forces Other Ranks Representative Association, PDFORRA, has previously made representations to the Minister of Defence on this issue, most recently earlier this year. On each occasion, its application for affiliation to ICTU was declined by the Minister for Defence. The primary concern then, which still pertains, is that any form of industrial action is considered irreconcilable with military service. The unionisation of military personnel is viewed as conflicting with the unique nature of the military and its role in maintaining national security and public order.

The Deputy will be aware that following the recent case brought to the European Committee of Social Rights by the Association of Garda Sergeants and Inspectors, AGSI, a complaint to the committee about the limitation on union rights for military representative associations in Ireland has now been made by EUROMIL, a European umbrella body for military associations, on behalf of PDFORRA. The PDFORRA association is claiming most of the same violations of the European Social Charter as claimed by AGSI, including denial of the right to join the ICTU, alleged restricted access to pay talks and the prohibition on the right to strike. As the question of admissibility of the EUROMIL complaint is currently under consideration by the European Committee of Social Rights, it is the Government's position to await the outcome of the complaint made to the committee.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I commend Deputy McNamara on this Private Members' Bill and am happy to confirm that Sinn Féin will support it. Following the ruling of the European Committee of Social Rights that the Garda representative organisations should be allowed to join ICTU and negotiate wages and have the right to strike, I believe it is right and proper that we support the legislation presented to us today. My Sinn Féin colleague and spokesperson on justice issues, Deputy Pádraig Mac Lochlainn, welcomed that decision when announced and stated at the time that gardaí should be given the same rights as other workers in the public sector.

Sinn Féin also supports the right of the Defence Forces representative associations to join ICTU and to participate in collective bargaining. The European confederation of police, EuroCOP, lodged a complaint to the European Committee of Social Rights against the Irish State in June 2012 on behalf of the Association of Garda Sergeants and Inspectors. At that time, the committee concluded the complaint was admissible under the Articles 5 and 6 of the European Social Charter.

The complaint highlighted the restrictions placed upon national police associations, in particular the Association of Garda Sergeants and Inspectors, AGSI, which did not enjoy full trade union rights, including the right to join an umbrella organisation, in this case the Irish Congress of Trade Unions, ICTU. The committee upheld the complaint under article 5 of the charter on the grounds of the prohibition on police representative associations joining national employees organisations. The committee also found that Irish legislation failed to ensure sufficient access by police representative associations to pay agreement discussions, as required under article 6.2 of the charter and held that the prohibition on the right of members of the police force to strike amounts to a violation of article 6.4 of the charter.

Following that decision, EuroCOP's president, Anna Nellberg-Dennis, noted that the committee's conclusions are a victory not only for the Irish police but have important impacts upon police forces across Europe. By highlighting the fundamental importance of police rights and educating European police officers about their rights to organise and to bargain collectively, the committee has helped draw more attention to those member states failing to adequately provide for the social rights of their police officers, and we heard earlier about further decisions since the decision on the Irish complaint from the AGSI.

On behalf of the Irish Congress of Trade Unions its legal officer at the time stated:

There is a common misunderstanding that international law requires countries to prohibit their police forces from taking part in trade union action. As this Determination shows, the opposite is the case. States can only restrict or deny rights in exceptional situations and where the state can give concrete examples of why the restrictions are 'justified', 'necessary', 'appropriate' and 'proportionate'. Blanket bans, such as apply in Ireland, represent a violation of rights.

Aodhán Ó Ríordáin (Dublin North Central, Labour)
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It is a shame that Deputy Calleary cannot stay for the remainder of the debate, as I was going to respond to some of his points. However, seeing as it is Friday morning, I will leave the political footballing for another time. The House will see that in respect of the members of An Garda Síochána, the Government currently has the main issue raised in this Bill under detailed consideration. This consideration is being informed by ongoing engagement and dialogue with the Garda associations.

There is potential for progress to be made on links to a national employee organisation and on access to central pay negotiations. These issues are under active examination. It is also the case that industrial relations matters are the subject of a review of An Garda Síochána which is still under way, and it is clear that it would be best to await the outcome of that review.

There is no disguising the difficult and sensitive issues raised by the proposal that members of An Garda Síochána should have the right to strike. I hope Deputies on both sides of this House will recognise that these issues require careful consideration of all of the issues involved. Similarly, as I have said, the proposals relating to the Defence Forces associations also raise complex difficulties from a legal, operational and management perspective. It is important that matters of such importance are debated in our national parliament. The Minister for Justice and Equality and I are committed to continuing to work with interested Deputies as the broader ongoing process of dialogue and consideration of these issues continues.

I thank Deputy McNamara again for his interest in this matter and for providing us with this opportunity for debate. While I am not in a position to accept the Bill as it stands, I look forward to the contributions from all sides and I hope the Deputy understands the policy positions as set out and recognises the current context.

Michael Kitt (Galway East, Fianna Fail)
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Deputies Daly and Wallace have arrived in the Chamber. Deputy McNamara should be next to speak, but if he has no objection I will allow them a short contribution.

Michael McNamara (Clare, Labour)
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That is fine.

Clare Daly (Dublin North, United Left)
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I thank Deputy McNamara.

Mick Wallace (Wexford, Independent)
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I thank Deputy McNamara and the Leas-Cheann Comhairle. I welcome this Bill. Members of An Garda Síochána should be allowed to be members of a trade union. They need better representation. At present, it is very difficult for them to challenge any element of perceived unfairness in their treatment.

Clearly, the current structures do not serve them well. I realise that there are the representative bodies, the GRA and the AGSI. However, our experience of dealing with many gardaí in recent years is that they do not feel well represented by the GRA or the AGSI. When they have a problem, most of them would not dream of going near the GRA, which seems just to represent itself rather than representing gardaí.

I was shocked to find out yesterday that the assistant commissioner, Mr. Fintan Fanning, felt obliged to go to the courts to address an issue he had when being interviewed for the deputy commissioner job. He claims that the Garda Commissioner, Ms Nóirín O’Sullivan, asked him to give his thoughts on extreme left-wing politics in Ireland and left-wing politicians. By all accounts Mr. Fanning was a bit shocked and felt it was a very unfair question. However, he does not really have anywhere to go other than to the courts with his complaint. One would imagine that things should be different.

A few months ago, I raised an issue in the Dáil. A new recruit to the Garda Síochána wrote to me complaining about being asked to start working on just over €23,000 a year. It is more than likely that a new garda will not be based in his own village. Even if he is single, the chances of him being able to remain living with his family are very slim. He will have difficulties with public transport. It is possible to get between big cities and big towns but if one starts crisscrossing anywhere else in Ireland, the public transport system is very disappointing. It would be very hard to imagine how any such garda would not need a car. More than likely he will need to rent accommodation somewhere. If a garda has to buy a car and rent accommodation, I do not know how he can be expected to survive on just over €23,000 a year. This should be addressed. However, they do not have anywhere to go with that, which is unfair.

Trade unions are allowed in Germany and Norway. It would be good for us to investigate how the Germans and Norwegians facilitate that without fear of disruption. Obviously any state would be afraid if there was not a policeman to be had because they were all out on strike. I understand they are not allowed to strike, but it means that police officers in Germany and Norway have far better representation than gardaí here.

Sadly, because many gardaí feel they do not have a body that really represents them, they have been coming to people such as me and Deputy Clare Daly. Hardly a week goes by without some gardaí coming to us with complaints. We are being ridiculed for raising some of these issues in the Parliament and we are being accused of abusing our parliamentary privilege, which is interesting. I got a very nasty letter from the GRA when I mentioned some issues going on with policing involving a publican in Kilkenny over a six-year period. However, the GRA did not seem to take note that after six years of unbelievable harassment of this publican, funnily enough the harassment has stopped since I raised it here. In addition, even though many of his complaints were beyond GSOC's time limitations, GSOC is upholding those complaints that were within time and is investigating them, which is good news.

I welcome Deputy McNamara's Bill. It is a subject that deserves some serious discussion and some serious thought on the part of the Government. I appreciate being let in even though we were late.

Clare Daly (Dublin North, United Left)
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I welcome Deputy McNamara's efforts and I appreciate the opportunity to make some short points in support of it.

The first time I had a chance to vote, which was not today nor yesterday, was an opportunity in the 1980s to vote for candidates who stood under the banner of the Army wives in County Kildare where I am from. That campaign by the spouses of soldiers raised very legitimate concerns that Defence Forces personnel had about their wages and conditions, which traditionally have been and are today relatively poor. There is a lack of adequate pay and respect, and a voice for our soldiers.

Obviously, I used my vote to support them and from their campaign PDFORRA emerged as a representative organisation for Defence Forces personnel. That has been a very positive experience, but I do not think it is enough. I think it has been good at agitating and putting in the spotlight the very poor conditions of soldiers. We are on the record of the House as saying that numerous soldiers' families have to secure family income supplement to make ends meet. We have had the stories of soldiers sleeping in their cars because barracks have been shut down and allowances have not been sufficient to enable them to get accommodation and so on.

The idea that these people are not workers and are somehow apart is something that really capitalism as a method of organising society has done. It has attempted to put gardaí and soldiers as separate from other workers. I support the idea that they are just workers in uniform and in that sense their allegiance should be with their fellow workers and they should have the right to be represented by a trade union in a real sense. That is important not only from the point of view of them having the ability to advance their economic position, which all workers should have, but it is doubly the case in this era of austerity where we have starting rates for gardaí and Army personnel which are an absolute joke. There is a downgrading of these jobs which should be remunerated better than they are at present.

I find it sickening in the extreme that so-called representative organisations that masquerade as supporting rank and file gardaí would be largely silent on the appalling cutbacks on Garda pay and conditions and yet are vociferous in their criticism of those of us in here who try to raise issues of Garda reform. On the idea that gardaí do not need serious trade union representation, the argument is won by the inaction of the GRA and the AGSI.

I have been a shop steward, and still am, for many decades. One often hears workers criticising shop stewards and union officials as being apart from their members and that they do not agitate sufficiently for their members' needs and objectives. While that is often the case, it is certainly the case with the GRA and AGSI which seem to be using that organisation as a vehicle for promoting themselves or something. It is certainly not being used to challenge management by any stretch.

That was really vindicated at the time of the GSOC bugging scandals when the former Garda Commissioner, Mr. Martin Callinan, contacted the four Garda representative organisations and asked them to issue a statement condemning GSOC and stating they had no confidence in it. The AGSI and GRA happily obliged.

They were not so quick to come out and support their members who stood against the tide and put the spotlight on the terrible abuses being undertaken by some senior gardaí against citizens and other gardaí. They have been shamefully quiet about some of their members who are still in the force and enduring poor behaviour because they spoke out about bad practices.

This is timely and necessary legislation. We only need to look around at what is being attempted in terms of, for example, the water charges protests. We have been in contact with senior gardaí who are disappointed to have been asked to ask their members to police and stand watch on communities where, for years, they have been attempting to build proper relations. They have been pitted against residents at a time when they would prefer to be dealing with crime and doing the job that some of them signed up to do. This is a very dangerous undermining of the Garda and the conditions of decent gardaí who signed up to do a good job and do not want to be pitted against their neighbours and friends. The only way in which such people can have a voice is if they are given proper trade union rights and protection when taking a stand. I support the right to strike of Defence Forces and Garda personnel. They should view their role as serving the community and standing alongside residents, not as being pitted against and set apart from their neighbours and friends.

I welcome this debate. It is important that we advance these issues. I compliment Deputy McNamara on introducing this legislation.

Michael McNamara (Clare, Labour)
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I will address a number of points that were raised. According to the Minister of State, the right to strike of An Garda Síochána - it was decided that Ireland was in breach of the European Social Charter because this was denied - raised serious issues. I accept this in terms of the security of the State. Deputy Calleary went further and ruled it out as being incompatible with the security of the State. I accept that the State needs to be secure and public order maintained at all times, but I doubt that this concern did not occur to the European Committee of Social Rights when making its clear decision. We need a health service that functions at all times, but nurses can go on strike. We do not have the LDF, the FCA or enlisted members of the Army handing scalpels to surgeons in theatres because essential services are maintained through strikes, as they are in Germany and many other countries. The two are not incompatible; maintaining a health service while allowing people who work therein to go on strike are not anathematic. It is possible. Maintaining the security of the State while allowing gardaí to go on strike is equally possible.

I take issue with the reference to a strong dissenting opinion. There was a strong dissenting opinion, but there was also a strong dissenting opinion last week in the Supreme Court by Mr. Justice Hardiman. Does this mean that evidence illegally obtained, albeit inadvertently, by An Garda Síochána will not be used in prosecutions from now on? Of course it does not, as judgments stand. Strong dissenting opinions are exactly that, but nevertheless a majority decision is reached and stands.

I take issue with the idea that the decision is not legally binding. I am reminded of Deputy Creighton - I was here at the time and I believe she was over there - when she stated that the A, B and C judgment was not legally binding in Ireland. There is an expression in Clare: what is good for the goose is good for the gander. We did not tell the Committee of Ministers that this decision was not legally binding. That is just for domestic consumption. Rather, we stated:

We can assure this Committee however that Ireland takes careful note of the findings of the ECSR on these issues and they will be fully considered. In this regard, Ireland is committed to engaging with all relevant parties on these issues with a view to seeking solutions which respect the Charter.

The Minister of State discussed the constitution of ICTU and the requirement to carry out all actions compatible with the performance of trade union functions. I take issue with Deputy Wallace's comments, in that it is not proposed that gardaí be allowed to join trade unions. The European Committee of Social Rights specifically stated that Ireland was not in breach because they could not join trade unions. Rather, it stated that the associations that they could join must be given greater powers of collective bargaining, to affiliate with ICTU, etc. It did not state that their organisations had to become trade unions. I am not proposing that PDFORRA be allowed to become a trade union. An inevitable part of a trade union is that it strikes. Sometimes, there is a tendency, particularly with Private Members' Bills, to conflate or slightly misrepresent - I appreciate that it is not intentional - what is proposed. I am not proposing that RACO be ordered or made to affiliate with ICTU. That would be contrary to freedom of association. The contrary or inevitable part of that freedom is the freedom to dissociate oneself. If RACO does not want to affiliate with ICTU, it should not be forced to. However, if PDFORRA wants that, it should be facilitated in doing so. It would act responsibly if allowed to join. If there are particular concerns, those could be addressed on Committee Stage.

I thank Deputies Clare Daly and Wallace for their contributions. At the beginning of the latter's contribution, he referred to "our experience". For a while, I wondered who "our" was, whether there was a royal prerogative emanating from Wexford or whether the purple T-shirt might be swapped for a purple gown at some point with a little bit of ermine on the hem. Anyway, I am glad that what he meant became clear as he went through his contribution.

Turning to more serious matters, the Council of Europe's Committee of Ministers stated that Ireland would undertake a review of its law and practice with a view to bringing it into compliance with the charter. Where does a review of laws take place? There is a principle in this State, that being, laws are made exclusively by the democratically elected representatives of the people. This principle is contained in Article 25.2.1° of the Constitution. Arguably, it was for the right of democratically elected representatives of the people to make law that this State obtained its independence. The First Dáil recalled that the Irish Republic was proclaimed on Easter Monday 1916 by the Irish Republican Army. The First Dáil proclaimed: "We ordain that the elected Representatives of the Irish people alone have power to make laws binding on the people of Ireland." It was for this principle that the Irish Republican Army fought a war of independence. It is important to bear in mind that the only successors to the Irish Republican Army are the members of the current Óglaigh na hÉireann, who patrol Leinster House over the weekend and every night and will defend and guard it, with their lives if necessary, because that is what armies do. However, they do not do this to be second-class citizens. They do it to be citizens in uniform. There is a major difference in that regard.

Armies all over the world protect democratic institutions, but this Parliament is a little different from parliaments everywhere else. Laws are not debated and decided upon in this Chamber. They are debated and decided upon in Cabinet. I appreciate that the Government has a position on this Bill, but maybe we should have a Legislature that legislates and an Executive that executes that which the Legislature decides.

Mr. Barry Desmond, a former Labour Deputy and Minister, had this to say:

The public has had little solid information on how the Cabinet reaches major decisions, except that the motivating influence is usually short term political expediency. In effect the fifteen Cabinet members singly and sometimes severally 'run the show'. There is a grave need for some parliamentary device whereby the Dail is clearly in a position to debate Cabinet decisions.

He continued:

I have rarely met a Government Minister who, once in office, has shown any urgent personal concern about Dáil reform. Of course, some Ministers, when in Opposition, showed a lively interest in the topic. Dáil Éireann is, therefore, to many observers a sleepily middle class, quasiprofessional, male dominated, conservatively deliberative, poorly attended debating assembly. Deputies play less and less a role in the formulation and enactment of legislation and more and more occupy their time in the pretence of political favour peddlers, consumer representatives, and clerical messenger boys on behalf of constituents.

On the 25th February a democratic revolution took place in Ireland. Old beliefs, traditions and expectations were blown away. The stroke of a pen, in thousands of polling stations, created this political whirlwind. The public demanded change and looked to parties that would deliver the change they sought.

The public pressures to-day for such reform is drearily dispirited. Where is that pressure which the Labour Party continuously showed when in Opposition? The discredited amateur approach of most of the Fine Gael parliamentarians to reform and the contentment of the Fianna Fail Party in Opposition with the status quo is almost disturbing.

Seán Kenny (Dublin North East, Labour)
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In accordance with Standing Order 117A(4), the division is postponed until immediately following the Order of Business on Tuesday, 28 April 2015.