Willie O'Dea (Limerick East, Fianna Fail)

I propose to take Questions Nos. 9 and 78 together.

There is no judicial decision of the courts relating to the compulsory retirement of the individual concerned from the Permanent Defence Force in 1969, nor is there a judicial decision that fair procedures were not followed with regard to the retirement of the individual from the Permanent Defence Force in 1969.

The High Court judgment of 27 July 2005 related to a report completed by the civilian Judge Advocate General in September 2002. The presiding judge, Mr. Justice Quirke, held that the report should be quashed because fair procedures had not been applied in the compilation and production of the report and in the timing of the release by the Department of Defence of certain documents. He concluded his judgment by stating: "The decision made in 1969 to recommend the Applicant's retirement from the Defence Forces remains unaffected by any Order made in these proceedings."

The individual concerned was retired by the President, on the advice of the Government, with effect from a date in June 1969. The retirement was effected pursuant to section 47(2) of the Defence Act 1954 and Paragraph 18(1)(f) of Defence Force Regulations A.15, which provide that an officer may be retired "in the interests of the service". The House will appreciate that a decision to retire an officer in the interests of the service is only taken for the most compelling reasons. The Government advice to the President in 1969 was on grounds of security. I am satisfied the matter was handled in an entirely appropriate and proper manner in 1969 and that the decision was taken only after detailed and due consideration.

The individual concerned initiated proceedings in the High Court in November 1998 with regard to the circumstances of his retirement some 29 years earlier. The High Court found in favour of the State in June 1999 on grounds of inordinate delay in the bringing of the proceedings. The individual appealed to the Supreme Court in September 1999 and it refused that appeal in January 2001.

In early July 2002, arising from a newspaper feature article on the case published on 29 June 2002, the then Minister requested the Judge Advocate General to examine and review the case. The Judge Advocate General, a civilian barrister, carried out a detailed examination and review of all the historical documentation relating to the decision to retire the individual concerned by reference to the entirety of both the civil and military files in the matter. Her report was submitted to the then Minister in mid-September 2002 and published in October 2002.

In December 2002 the individual applied to the High Court for an order quashing the report of the Judge Advocate General. As I have already said, the High Court found in favour of the applicant for reasons enumerated in the text of the High Court judgment. It should be emphasised again, however, that the High Court judgment in the matter of the report of the Judge Advocate General specifically related to the actual procedures utilised by the Judge Advocate General in the course of her review and examination of this matter in 2002 and to the release by the Department of Defence of certain documents to the individual only after completion of the report. The individual concerned specifically did not seek an order for mandamus from the High Court and, therefore, did not request the High Court to remit the matter, or to direct a resumption of the Judge Advocate General's original inquiry, or to direct that a new inquiry be held by the Judge Advocate General or by any other person.

The substantive issue, namely the Government decision in 1969 to recommend the retirement of this individual from the Defence Forces by the President, remains unaffected by the judgment of the High Court, a point specifically emphasised within the text of the judgement. All the issues raised by the recently published book in connection with this case are being reviewed and I will consider whether any further action is appropriate in due course.

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