Kieran Phelan (Fianna Fail)

I move amendment No. 1:

To delete all words after "Seanad Éireann" and substitute the following: -

"notes that both the High Court and the Supreme Court have rejected Mr. De Róiste's legal challenge to his compulsory retirement on the grounds of inexcusable delay on his part in bringing the challenges, accepts that it would be inappropriate for the Oireachtas to go behind these Court decisions and recognises that in these circumstances his compulsory retirement remains legally valid;

notes that at the time of his retirement, the Chief of Staff ensured Mr. De Róiste was given an opportunity to respond to the issues raised in his case; that he was interviewed by the Deputy Judge Advocate General; that he was offered the opportunity to make a statement but declined to do so; and that he informed the Deputy Judge Advocate General that he had consulted a solicitor at the time;

notes that having regard to the decision of the Minister for Defence to order a review in July 2002, the report of which was subsequently quashed by the High Court in 2005, the Government will now ask the Judge Advocate General to select a nominee to carry out a review of the documentation on Mr. De Róiste's file to determine: –

whether on the basis of the documentation and information available to the Defence Forces at the time the decision to compulsorily retire Mr De Róiste was a reasonable one;

understands that Mr De Róiste since the 2005 High Court decision has been provided with the Department's relevant documentation relating to the circumstances of his retirement; and

welcomes the fact that Mr De Róiste will now be given an opportunity to make written submissions to the review based on that documentation.".

I welcome the Minister of State, Deputy Pat Carey, and the opportunity to speak on this motion. Like many other Senators, while I was vaguely familiar with some of the broad outline of Dónal de Róiste's situation, I was not fully conversant with the particulars of it. I took the opportunity over recent days to do some reading up on the issue, in particular to read some of the interesting and detailed material written by Don Mullan on the case, both in his book and in a series of articles in The Irish Times approximately eight years ago.

Without doubt, it is a complex issue and one that has caused some pain and anguish to former Lieutenant de Róiste and his family. I was particularly struck by the letter written by Mr. de Róiste's late mother, Christina, to The Irish Times, when she was 83 years old and which was published on 20 May 2002. It stated:

I believe my son Donal is innocent. I believe he was wrongfully "retired". I believe the case against him was so spurious that he was denied proper procedures. I believe the Government may have been misled in the information presented to it by Donal's accusers and that our one-time hero, Eamon de Valera, may, in turn, have been wrongly advised.

I have read some of the material produced by Dónal de Róiste and by Don Mullan over the past decade and while I freely acknowledge that it does raise some questions relating to events in 1967 and 1969 I cannot state that I am convinced that it overturns or refutes the claims made at the time. It is worth reminding the Seanad of the timeline of events in this case, as the chronology has some importance. In June 1969, the then Lieutenant Dónal de Róiste was, on the advice of the Government, retired by the President in what was called "the interests of the service". As far as I can ascertain nothing further happened until October 1997, when Mr. de Róiste's case became the subject of media interest in the course of a presidential campaign in which his sister, Adi Roche, was a candidate. In November 1998 Mr. de Róiste initiated proceedings in the High Court with regard to his retirement. In June 1999 the High Court rejected the application for judicial review on the grounds of inordinate delay. This decision was appealed to the Supreme Court, which ruled in January 2001 to confirm the High Court finding.

In June 2002, The Irish Times published articles on the case by Mr. Don Mullan and in July 2002 the then Minister for Defence, Mr. Michael Smith, requested the Judge Advocate General to inquire into the circumstances of the retirement by reviewing all relevant documentation. Mr. de Róiste objected to the manner in which this review was conducted, particularly the absence of any referral of the documents to him until after the inquiry was complete. In July 2005 the High Court granted Mr. de Róiste an order quashing the Judge Advocate General's report. It is worth noting, however, that the substantive issue of Mr. de Róiste's retirement from the Defence Forces was not addressed by the High Court. In early 2006 Mr. Don Mullan's book on the case was published.

As I said earlier I cannot say with certainty whether former Lieutenant de Róiste was wronged back in June 1969. What I can say with confidence and certainty, however, is that military justice and discipline in the Defence Forces has moved ahead in leaps and bounds in the 40 years since Mr de Róiste's situation arose. In the past decade we have seen the introduction of representation for soldiers and officers and the formation of two important representative associations: PDFORRA and RACO. That was an enlightened and modernising decision which put the information and consultation of members of the Defence Forces light years ahead of that of many of their European counterparts. This model of representation for privates, corporals, sergeants, lieutenants, captains and commandants alike is the envy of serving soldiers in armies in places such as the United Kingdom and Portugal, to name just two. It shows an attitude to recognising the rights of serving members of the Defence Forces and the need for transparency and accountability in the running of the organisation that did not exist in 1969.

That is not the only reform. It is not long since the outgoing Minister for Defence, Deputy Willie O'Dea, brought forward the Defence (Amendment)(No. 2) Bill 2006 which significantly overhauled and reformed the existing provisions of Part V of the Defence Act 1954. Part V of the Act provided for disciplinary procedures under military law within the Defence Forces and had been in operation for more than 50 years, subject only to relatively minor revisions. The Defence (Amendment) Act 2007, which was rightly welcomed by all sides in this House, made a number of major changes. It established an independent military prosecuting authority, staffed by qualified military legal officers who now decide, as the Director of Public Prosecutions does in civil law, on all issues relating to the prosecution of offences before courts martial. It appointed a court martial administrator to manage and control the administration and business of courts martial. It established an independent military judicial office with the appointment by an independent authority of one or more military judges with appropriate legal qualifications. It scheduled the offences of a disciplinary nature that can be dealt with summarily and, something that might have been relevant in the situation in question, it gave the right in every case for a person charged with an offence to elect for trial by court martial at the outset. It gave a right of appeal to the summary court martial against a determination or punishment awarded by an authorised or commanding officer and restructured the general and limited courts martial to provide for the appointment of a court martial board, which would make findings on the facts and would have no role in sentencing.

Those changes to the Defence Act were both necessary and desirable to ensure the military law justice system is both expeditious and fair to the individual. Reforming the laws on military justice in that way has contributed significantly to the maintenance of discipline within the Defence Forces. The legislation now complies with the Constitution and, most importantly, has ensured the compliance of the system with the European Convention on Human Rights is now beyond doubt. We should bear those important reforms and changes in mind in this debate and note that the attitude to individual and personal rights in the Defence Forces has moved on considerably in the intervening decades, most particularly in the past five years.

I welcome the Government's decision to conduct another review of the relevant documentation; a review I understand will be in line with the July 2005 High Court ruling. I understand and hope that former Lieutenant de Róiste will use this opportunity to put any documentation of evidence he possesses into that process and that he will feel he has received a fair hearing. It is approximately 40 years since he was retired from the service of Óglaigh na hÉireann. It is just more than a decade since he sought to have the matter re-visited in late 1998. I hope this debate and the Government's decision to attempt again to conduct a fair review of the documentation may help bring this matter to a close for Dónal de Róiste.

I compliment Senators Harris, O'Toole and Norris for bringing the motion before the House. Senators Harris and O'Toole have put up a fantastic case for this man.