An Irish three-fer: union membership, prosecutorial independence, transparency

A May 24, 2023 decision of Daniel Murphy, adjudicator in a case between the Representative Association of Commissioned Officers (RACO) and the Irish Department of Defence, makes interesting reading regarding unionization, prosecutorial independence, and transparency. Held, the (unpublished) regulation disqualifying RACO members from serving as Director of Military Prosecutions is unreasonable. Excerpts:

Secret Laws

39. As an aside, I asked the Department where Defence Force Regulations (which the Department described as “secondary legislation”) are published. It appears that these laws are not published in the Irish Statute Book website or Iris Oifigúil or, indeed, anywhere at all. The Department did say that they were brought to the attention of serving Defence Force personnel. However, this does not seem to be organised in any coherent way in view of the fact that the General Secretary of RACO who is a Lieutenant-Colonel in the Army had not been advised of the adoption of the law set out in DFR 02/2020 either in his capacity as General Secretary or as an Army Officer until he happened to come across a reference to it in the Official Side Counter-Statement on Arbitrability in March, 2021 – 15 months after it had been adopted. There cannot be secret “laws”.

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No Justification for Prohibition on RACO Membership

74. I cannot understand how it can be argued that the prohibition on RACO membership for the Director of Military Prosecutions can be justified against this background. It makes no sense to bar RACO membership on grounds of a fear that it could affect the independence of the Director in the exercise of his functions when the independence of a Military Judge is not affected by RACO membership; when the independence of Officers sitting in judgement on their fellow officers and RACO members in the military justice system is not questioned; when the independence of holders of other statutory offices are not affected by trade union membership; when independence is apparently not threatened by attendance at Officers’ messes and participation in cultural and sporting organisations of Military Officers; when the Department was unable to provide any concrete evidence that membership of RACO had affected the independence of previous Directors and when matters relating to discipline are outside the scope of the representative functions of RACO.

Independence – Military Officer – Member of RACO

75. One must also have regard to the relative significance of being an officer in the Defence Forces and being a member of RACO. For most normal people, their occupation is one of the things that defines them – both to others and to themselves. People who are members of trade unions or representative associations are, of course, aware of the fact of their membership of these organisations but this awareness is, at it were, in the background and not a permanent focus of their lives, unlike their actual occupation. In the case of military officers, the military milieu (uniforms, salutes etc.) emphasises their occupation significantly but their relative awareness of RACO membership is not any way greater than that of people in civilian life.

76. The Official Side maintain that membership of RACO is such that it would impair the DMP’s independence. Yet, despite the fact that being a member of the cadre of military officers is a far more significant part of the life of any military officer than his/her membership of RACO, they do not maintain that being a military officer can affect the independence of the DMP. Objectively, there is no logic in this but, of course, the Official Side could not advance this argument since the Oireachtas has legislated, explicitly, that the DMP is to be a military officer. Since that, by explicit decision of the Oireachtas, does not impair the independence of the DMP, it defies all reason to maintain that membership of RACO – a far less significant factor than membership of the cadre of military officers - would impair that independence.

The Dublin Journal has this report. 

Looking at ¶ 74 of the decision, is it clear that uniformed military judges meet the test of independence? A Charter case currently before the Supreme Court of Canada, Edwards v. H.M. The King, No. 39820,  raises that issue. The case will be heard on October 16, 2023.