Pat Carey (Dublin North West, Fianna Fail)

): First, I apologise to the House for delaying Members, but procedural matters needed to be addressed. Second, I compliment Senators Harris and O'Toole and everyone else on their contributions. I must acknowledge that, while I was reading this case's background information in recent days, I came across the nickname the Duck. I wondered whether there was a connection between that person and the person I used to see around the place. I would have met the Dog and the Duck, the two characters mentioned by Senator O'Toole, although I cannot recall making a great impression on them or they on me. At a time when the hostelries on Merrion Row and elsewhere were more attractive than the lecture theatres in Earlsfort Terrace, I must have encountered the individual in question.

A Leas-Chathaoirligh, it is appropriate to place on the record of the House the appreciation of all the citizens of this country for the very fine manner in which members of the Defence Forces have carried out their duties down through the years, often in trying and difficult times. All too often we fall into the trap of judging an event which took place many years ago by the situation and circumstances pertaining to the current time. The events we are discussing occurred some 40 years ago and have been considered on numerous occasions since then. At all times, it has been the view of successive Governments that these matters were dealt with properly and appropriately and in accordance with the Defence Force Regulations extant at the time.

Ex-Lieutenant Dónal de Róiste was retired by the President, acting on the advice of the Government, with effect from 27 June 1969. This was in accordance with section 47(2) of the Defence Act 1954, which provides that "an Officer of the Permanent Defence Forces may for any prescribed reason be retired by the President". Defence Force Regulation A.15 (Officers), section 18(l)(f) prescribes that "an officer of the Permanent Defence Force may be retired pursuant to subsection 47(2) of the Act, in the interests of the service".

The events leading to the retirement of Mr. de Róiste happened at a time of a major threat to the security of the State and when those charged with protecting that security were faced with very difficult decisions. It is impossible for us today to put ourselves into their shoes. Many of the people involved are now dead and cannot defend their actions or offer us the benefit of their direct insights, knowledge and information. We can only depend on the information they have left us contained in files and memos. However, from those files and memos one can have no doubt but that those charged with the security of the State acted out of the highest standards of integrity, consideration and justice, in the best interests of the State and out of a sense of public duty.

The continued assertions by Mr. de Róiste, that the reasons for his retirement from the service were never made clear to him are difficult to comprehend, given the facts of the case. Specifically, the records show that, prior to his retirement, Lieutenant de Róiste would have been made aware, in some considerable detail, of the circumstances giving rise to his retirement in June 1969. The records also show that he was given every reasonable opportunity to respond to the issues raised and failed to do so. He was interviewed by officers of the intelligence section of the Army on three separate occasions in April 1969 in relation to a number of serious matters which had come to their attention. He was given the opportunity to respond to these matters thereafter. Having said he would submit a statement in response to the matters put to him by the intelligence section of the Army, he then failed to do so. A full month passed without any response from Lieutenant de Róiste. At that stage, in the absence of any response, he was given a further opportunity to explain his position when he was interviewed on two occasions by the Deputy Judge Advocate General, who had been requested to advise on the matter.

On the occasion of the first interview with the Deputy Judge Advocate General, the details and the seriousness of the matters relating to his conduct were laid out before him. The Deputy Judge Advocate General was so concerned with his lack of any reasonable response that he explained a second time to Lieutenant de Róiste the seriousness of his situation, including explaining to him the terms of his oath as an officer. The Deputy Judge Advocate General then advised Lieutenant de Róiste to go away and consider his position and return the following morning with his statement. At the request of Lieutenant de Róiste, the Deputy Judge Advocate General confirmed to him that he could take legal advice. Given that Mr. de Róiste asked this question, he clearly was in no doubt as to the gravity of his situation. Yet, on returning the following day to see the Deputy Judge Advocate General, he advised that he would make no further statement. I must say that at that stage, in the absence of any explanation of his situation, and indeed an outright refusal by the officer to provide any such explanation, the authorities were left with no alternative but to recommend to the then Minister that Lieutenant de Róiste should be retired in the interests of the service.

I should also point out that it was always open to Mr. de Róiste to take an action under section 114 of the Defence Acts for a redress of wrongs - a well known and well used provision for members of the Defence Forces who feel wronged - or, upon notice that he was being retired from the Defence Forces in the interests of the service, to take judicial review proceedings in the High Court to challenge that decision. He took no such action under either provision at that time and not till 1998, almost 30 years later.

I will now set out in some detail the circumstances pertaining to this case. The situation presented to the military authorities at the time was very serious. A report was received by the Director of Intelligence in April 1969, from a confidential and most reliable source, to the effect that the then Lieutenant de Róiste was in the company of members of an IRA splinter group, which included an individual on remand for offences related to what was understood to be a subversive incident where gardaí were fired upon. Subsequently, he was seen talking to this individual at an auction of surplus military vehicles in Clancy Barracks, Dublin, on 23 April 1969. At that time Clancy Barracks was the principal ordnance base for the Defence Forces and a highly sensitive defence installation.

At the first interview held on 25 April 1969 with intelligence section, Lieutenant. de Róiste was informed by the military authorities that they wished to inquire about two civilians he had met at the auction at Clancy Barracks on 23 April 1969. Lieutenant de Róiste gave an account of his acquaintance with these individuals. It is clear from the report of the interview that Lieutenant de Róiste was aware of the fact that the main individual involved, whom he was socialising with, was an undesirable, was engaged in questionable and probably subversive activities and had been charged in relation to a shoot-out with gardaí in Ballyfermot.

The second interview was held three days later. On arrival at the second interview with intelligence section on 28 April 1969, Lieutenant de Róiste was informed by the military authorities that this was a continuation of the previous interview and that the military authorities wished to check on some points made by him at this first interview. The interview followed on with confirmation of the details from the first interview, including his socialising with a person engaged in questionable activities and that he understood that the person was under surveillance.

At the third interview with intelligence section on 30 April 1969, Lieutenant de Róiste gave further details of an individual he had met. At the conclusion of the interview, he indicated he wished to submit his own account of the matter in writing. He was advised by the military authorities that he could do so if he wished and if he did submit one that it should be through the Officer in Charge of the Western Brigade. No such statement or account was received from Lieutenant de Róiste.

It is notable that, despite his prior knowledge regarding the individual in question, the security situation then pertaining in the country, and his obligations as an officer to bring such matters to the attention of his superiors, Lieutenant de Róiste did not bring any of these matters to the attention of his superiors, nor did he desist in having contact with the said individual.

It is clear from the information on the files that Lieutenant de Róiste was given some time and opportunity to submit his own account of these matters and that the authorities took no precipitative action. Instead the matter was referred to the Deputy Judge Advocate General to advise on the matter. The Deputy Judge Advocate General interviewed Lieutenant de Róiste on two separate occasions, that is 28 and 29 May 1969.

At the first interview with the Deputy Judge Advocate General held on 28 May 1969, Lieutenant de Róiste was informed that the General Staff had called the Deputy Judge Advocate General to advise on the matter. The Deputy Judge Advocate General informed Lieutenant de Róiste that he had been reluctant to do anything since Lieutenant de Róiste's interview with intelligence section on 30 April last, where he had indicated he would submit a statement on the matter, until he, Lieutenant de Róiste, had been given the opportunity of submitting any statement he wished to make. Lieutenant de Róiste indicated to the Deputy Judge Advocate General that, after his final interview with the intelligence section on 30 April, he had consulted his solicitor. He informed the Deputy Judge Advocate General that his solicitor had undertaken to write to the director of intelligence and the officer commanding, Western Brigade. The Deputy Judge Advocate General indicated to Lieutenant de Róiste that up to the current date - 28 May 1969 - no letter had been received from his solicitor.

The Deputy Judge Advocate General noted that Lieutentant de Róiste did not appear overly concerned about his situation and, therefore, proceeded to take him through his various interviews with intelligence section. When Lieutentant de Roiste indicated to the Deputy Judge Advocate General that he was not aware of what he was guilty of, the Deputy Judge Advocate General went through the reports a second time in the minutest of detail with him. The Deputy Judge Advocate General reported that Lieutenant. de Róiste's answers were, in some instances, evasive and, in others, flippant. The Deputy Judge Advocate General reported that he had informed Lieutentant de Róiste of the seriousness of the situation. The Deputy Judge Advocate General read over the oath on commissioning as taken by Lieutenant de Róiste and indicated to him that the reports all seemed to suggest he was not being faithful to that oath.

The Deputy Judge Advocate General noted in his report that he had advised Lieutenant de Róiste to go away and give serious consideration to the situation and that he could contact him the following morning with his statement. Lieutenant de Róiste inquired as to whether there would be any objection to him consulting his solicitor. The Deputy Judge Advocate General made it clear to Lieutenant de Róiste that there would be no objection to such a course of action. Any officer, in this case a relatively junior officer, having been summoned to meet the most senior legal officer in the Defence Forces, being informed that the meeting was taking place at the direction of the general staff and then being told to go away and consider his position, could be in no doubt as to the seriousness of his situation. The fact that the officer asked if he could take legal advice would indicate that he himself understood his predicament and the need to respond fully and promptly to the matters put before him.

Lieutenant de Róiste attended for his second interview with the Deputy Judge Advocate General on the following day, 29 May 1969, and promptly informed the Deputy Judge Advocate General that the matter would not take long, as he would not make any further statement and then left. A letter, dated 30 May 1969, was subsequently received by the Chief of Staff at Army headquarters from Lieutenant de Róiste's solicitors, indicating that they were acting for Lieutenant de Róiste and requesting to know what charge, if any, was being preferred against their client. There is no record on the file of any response issuing to this letter or to any follow-up correspondence from the solicitors. On 26 June 1969 Lieutenant de Róiste was informed by letter that he was to be retired with effect from 27 June 1969.

It was always open to Mr. de Róiste to take an action under section 114 of the Defence Acts for a redress of wrongs or, upon notice that he was being retired from the Defence Forces, to take judicial review proceedings in the High Court to challenge that decision. He took no such action under either provision at the time and did not do so until 1998, almost 30 years later. Clearly, Mr. de Róiste was fully advised in the course of a number of interviews of the issues of concern to his superiors. Clearly, he had full knowledge of the gravity his situation and failed to respond to the issues raised with him, despite being offered every opportunity to do so, including through appropriate and timely legal action. Mr. de Róiste obviously had ongoing contact with his legal representatives in the immediate aftermath of his retirement, as two further letters were received from them. It is noteworthy that

the only representations made by the solicitors acting on his behalf in these letters related to his gratuity. No reference was made to the substantive issue of his retirement.

Mr. de Róiste initiated proceedings in the High Court in November 1998 regarding the circumstances of his retirement almost 30 years earlier. The High Court rejected his application for judicial review in June 1999 on grounds of inordinate delay in the bringing of the proceedings. He appealed in September 1999 to the Supreme Court which in January 2001 upheld the High Court's decision.

In early July 2002, arising from a newspaper feature article on the case published on 29 June 2002, the then Minister for Defence requested the Judge Advocate General to examine and to 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 the Department of Defence and military files on the matter. Her report was submitted to the then Minister in mid-September 2002 and published in October 2002.

In December 2002 Mr. de Róiste applied to the High Court for an order quashing this report by the Judge Advocate General. The High Court found in favour of the applicant for reasons enumerated in the text of the High Court judgment on his application. The High Court judgment of 27 July 2005 related only to the report completed by the civilian Judge Advocate General in September 2002 and, specifically, not to the original decision to retire Lieutenant de Róiste. Mr. Justice Quirke 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." It should be emphasised, therefore, 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 the matter in 2002 and the release by the Department of Defence of certain documents to Mr. de Róiste only after completion of the report. It should also be noted that Mr. de Róiste specifically did not seek an order for mandamus from the High Court and, therefore, did not request the court to remit the matter or 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 any other person. Such a course of action was open to him but was not taken.

Mr. de Róiste applied to the military authorities in May 1998 under the provisions of the Freedom of Information Act 1997 for access to copies of all documents relating to his retirement from the Permanent Defence Force and his period of service in the force. Without going into all the details, I understand that in July 1998 an appeal was lodged by Mr. de Róiste in the case with the Office of the Information Commissioner. Such appeals are a matter for this office. However, I also understand the case was suspended in July 1998 at the request of the applicant's then legal representatives and that it was subsequently discontinued by the Information Commissioner's office in 1999 owing to the non-pursuance of the matter by the individual concerned and his legal representatives at the time.

On 17 July 2001 Mr. de Róiste made a further freedom of information request to the military authorities in relation to the records relating to his period of cadet training. These records were released in full by the military authorities, although I again understand the applicant submitted an appeal on this decision to the Information Commissioner.

Given the serious nature of the scenario presented to the military authorities in 1969 and in the absence of a response from Lieutenant de Róiste to the matters put before him, they were of the opinion that it would be contrary to the interests of the Defence Forces and the State to retain him in service. I am satisfied that Mr. de Róiste's case was dealt with in a manner consistent with the Defence Forces regulations extant at the time. I am also satisfied that he was given every opportunity to present his case, having had three interviews with military intelligence and two with the Deputy Judge Advocate General. It is clear he was made fully aware of the gravity of his situation. He was afforded every opportunity and time to respond to these issues and provide written statements, which he failed to do. He was not precluded from receiving professional legal advice and did so during the events leading up to his retirement.

Notwithstanding the fact that Defence Forces Regulation A.15 section 18(1)() was amended in 1985, some 16 years after Lieutenant de Róiste was retired, to read: "Any officer shall not be recommended for retirement for misconduct or inefficiency or in the interest of the service unless or until the reasons for the proposed retirement have been communicated to him and he has been given a reasonable opportunity of making such representation as he may think proper in relation to the proposed retirement", the manner in which his retirement was dealt with at the time was consistent with the later amendment. The decision to recommend his retirement was taken only after detailed and due consideration. I am satisfied Mr. de Róiste was afforded due process in all aspects of the matter.

A decision to retire an officer in the interests of the service is only taken for the most compelling reasons. Given that the Government decision and the advice to the President concerned military security, I am satisfied the matter was handled in an entirely appropriate and proper manner. I am also conscious of the fact that a previous Minister for Defence requested a review of the documentation to be carried out in 2002 and that for reasons which are set out in its judgment, the report of the review was quashed by the High Court. Having considered the matter in some detail, the Government has decided to undertake a further review of the documentation on Mr. de Róiste's file in a manner which addresses the considerations set out in the High Court judgment of 2005 to determine whether, on the basis of the documentation and information available to the Defence Forces at the time, the decision to retire Mr. de Róiste compulsorily was a reasonable one. I expect the review to be completed within the current year.

The Government is happy to offer Mr. de Róiste the opportunity to make written submissions to the review based on the documentation relating to the circumstances of his retirement, which has been made available to him. On that basis and on the basis of all the information I have imparted to the House today, I commend the amendment to the House.

A number of matters were raised by speakers in the course of the debate, which I will bring to the attention of the Taoiseach and Minister for Defence. We will obviously take account of what has been said here.