Proposed Bill preventing criticism of government policy risks 'gagging order' for Defence Forces

James Cox

A new piece of legislation could effectively put a "gagging order" on of the Defence Forces, and prevent them from taking part in civic society, an employment law solicitor has warned.

A Bill currently being considered, the Defence (Amendment) Bill 2023, would significantly overhaul the Defence Forces.

The Bill will allow the Defence Forces to associate with the Irish Congress of Trade Unions (Ictu), which is a positive change for which Army have long campaigned.

However, representative associations have expressed concerns about certain pieces of language in the legislation.

The most controversial is a provision that would ban Defence Forces from commenting on any “political matter”.

It would also ban representative associations from encouraging to engage in “public agitation, protests, lobbying or media commentary of any kind against government policy”.

Barry Crushell is an employment law solicitor and former army officer, who served with the United Nations on multiple deployments.

He told BreakingNews.ie: "This is concerning for a lot of Defence Forces . While there is a general acknowledgement that Defence Forces cannot be seen to be actively participating in political affairs, given the fact that they are ultimately subservient to the Minister for Defence, the Department and the State.

"A lot of Defence Forces are very concerned that it could effectively result in being prohibited in entirety from commenting or debating on issues concerning politics or government policy; for fear of being sanctioned for doing so."

It is generally accepted that military do not publicly criticise government policy on matters such as missions overseas or troop deployment.

However, issues that impact Defence Forces like pay and working conditions have been fair game for representative associations in the past.

Their fear is that this would no longer be the case.

This leaves of the Defence Forces in a very difficult scenario.

Mr Crushell said: "There is particular language in there that is accepted, particularly that you have the Government saying representative associations can associate with the Ictu.

"There's a balancing act to be struck there with how representative associations in the past would have been quite deferential to the government. A lot of other trade unions would have potentially agitated the Government.

"Most Defence Forces would accept that they could not, given their unique role in society, be seen to agitate the government of the day.

"More importantly, as we go down into the details of the Bill, there are comments such as of the Defence Forces should not 'make a public statement or comment concerning a political matter or question or express an opinion on the merits of any government policy or a minister of the government'.

"This leaves of the Defence Forces in a very difficult scenario whereby, until a potential complaint or charge is brought forward against a member for doing so, it leaves quite unsure as to the extent to which they can question government policy or direction."

Social media

He added: "Under the Irish Constitution, all citizens have a right to freely express their opinions and convictions... that is limited in certain interests in respect of public order, and the Defence Forces would recognise that.

"But there is a difference between an individual member of the Defence Forces expressing their political opinion, or policy opinion concerning government direction, and that being an official policy of the Defence Forces.

"In an age whereby there's an extensive use of social media, we probably have a more educated Defence Forces than we've ever had, and those individuals are expressing their voice and potentially taking part in activities outside their duty that may be aligned to political affairs.

"Major question marks remain over the extent to which these provisions could be utilised to censure and discipline a member of the Defence Forces who falls foul of those provisions.

"There's also another section, 1031A, that's proposed and what it mentions is that without prior authorisation, a member of the permanent Defence Forces cannot make a public statement or comment on any political matter or a matter of government policy.

'Matter of government policy' can include anything imaginable.

"Now 'matter of government policy' can include anything imaginable. Take, for example, the forthcoming referendums. The Government parties are advocating a yes-yes vote. Hypothetically speaking, if a member of the Defence Forces took a prominent role in advocating a no vote, is there a chance they could be censured? Under the of this Bill, if enacted, it would leave that door open."

Mr Crushell also pointed to a section of the legislation that said Defence Forces should not canvass on behalf of, or collect contributions, for any political organisation or society.

While this is "reasonable", he pointed out that it adds 'or a group seeking to influence government policy'.

"Most sporting organisations at some point seek to influence government policy... nearly any interest group at some point seeks to influence government policy.

"The Defence Forces have always known they cannot have hip of a political party, but this phrase of group seeking to influence government policy is a very broad remit. If stretched, it could include almost any organisation conceivable, whether it's small or large, that attempts to have an impact on society."

'Gagging order'

Mr Crushell added: "From the perspective of of the Defence Forces, this does constitute a gagging order. It potentially diminishes their ability to participate in civic society.

"The Government could provide reassurance to Defence Forces that common sense will prevail and seeking to influence your own and conditions of employment will be excluded, but that is not currently provided for."

He pointed to Scandinavian and Nordic countries, where it is the norm for military to have a right to protest.

"It's just so broad that potentially a tweet, a comment on Facebook or LinkedIn, liking certain posts, if stretched to its limits of interpretation, could such social media activity be seen as an attempt to influence government policy?

"The bigger question that comes back is one about the role of Defence Forces in society. To what extent can participate in civic and social discourse without fear of being reprimanded for doing so?

"At a time when most Western countries are providing more liberties for of their armed forces, we would appear to be taking a contrary position and actually restricting their freedom of expression."