Ban on Defence Forces members attending protests breaches their constitutional rights, High Court rules

The High Court has found that a Defence Forces order prohibiting attendance at unofficial protests and parades by a serving soldier is unconstitutional.

The decision was welcomed by representative body PDForra, which said it raised important questions regarding proposed changes to the legislation governing the conduct of members of the Defence Forces currently before the Oireachtas.

In a decision issued on Tuesday, Mr Justice Mark Sanfey found Martin Bright, an Acting Sergeant in the Army seconded to PDForra, where he is currently deputy general secretary, had established his constitutional rights had been breached by the order, which was issued by since-retired Deputy Chief of Staff Major General Kevin Cotter.

It prohibited attendance by Defence Forces members at any protest, but impacted on Sgt Bright as he had planned to attend a demonstration the following month at Merrion Square on September 19th, 2018, organised by the “wives and partners of serving members of the Defence Forces” to protest “conditions of service of members of the Defence Forces”.

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Sgt Bright said he had intended to attend the event “while off-duty, and in civilian attire”, but had not in the end due to uncertainty over the application of the order.

In his action taken against the Minister for Defence, Ireland and the Attorney General, Sgt Bright claimed the order breached his rights “of free expression, assembly and association”.

In his decision, Mr Justice Sanfey said Sgt Bright had successfully established his constitutional rights had been infringed.

The defendants denied the claims, but the judge described the prohibition as a “blunt instrument” which was unnecessary and excessive given the nature of the planned protest.

“The issue of what members of the Defence Forces may or may not do off duty in relation to matters which might be deemed ‘political’ is a difficult issue,” he said, but suggested existing legislation did not provide for a blanket ban.

Welcoming the decision, which PDForra believes has implications for changes to regulations contained in the Defence (Amendment) Bill 2023, the organisation’s general secretary Gerard Guinan said it highlighted the need for further consultation on the issue.

“We welcome the judgment,” he said at the organisation’s annual conference in Co Cavan. “We’re happy that it vindicates what we believe to be the rights of members of the Defence Forces to peaceful assembly.”

Both PDForra and the Representative Association of Commissioned Officers have strongly opposed particular provisions in the Bill they say will adversely impact on the constitutional rights of their members in relation to freedom of speech and freedom of association.

PDForra president Mark Keane said the organisation’s objections to the ban were not about the “right to agitate. We are talking about the right to highlight our concerns, whether they are about our pay and conditions or terms of service, or what is going on in the communities we live in. At the moment we cannot be seen at an event that calls for increased funding for a GAA club,” he said.

Mr Guinan said the organisation will take the High Court judgment and wider issue up again with the Minister for Defence, Micheál Martin, who is due to attend the conference on Wednesday.

Mr Justice Sanfey said he would list the case for mention on May 31st to allow for consideration of the issue of costs. The Department of Defence said it noted the decision and would be considering it, but that “as the matter is due back before the court at the end of the month, the department is not in a position to comment on the specifics of this individual litigation case”.

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