Denis O'Donovan (Fianna Fail)

I welcome the Minister to the House. As I outlined on the Order of Business I have some reservations with regard to the thrust of the Bill. I am concerned that the Bill has been dressed up, so to speak, in an effort to get over a certain difficulty in which the Department finds itself. I understand that in July 2010 the selection committee created under the Defence Act recommended a certain officer to be a military judge. That officer was not appointed and there now appears to have been substantial legal doubts raised regarding this eligibility pursuant to section 184(J)(2) of the Defence Act that the individual was not, for the purposes of the Act, a practising barrister of not less than ten years standing.

I listened to the Minister carefully set out his reasons, namely, that there are limited numbers of people available to practise as judges but I would point out that to the best of my knowledge, first, under the existing Act the President may appoint, on the advice of the Government, one or more qualified officers of the Permanent Defence Force to be a military judge or, second, an officer who is a practising barrister or a practising solicitor of not less than ten years standing shall be qualified for appointment as a military judge. Those provisions are already in the existing legislation.

It is a dangerous precedent that the Minister would use this legislation to allow for a particular individual's circumstances or, alternatively, broaden the scope of the position to allow people who have not the necessary experience, which is the normal remit, be appointed. I understand that where somebody is appointed to a District Court or a Circuit Court he or she must have served a period of ten years service as a solicitor or barrister.

I accept that a limited number of people are eligible for qualification as a military judge but the Minister could amend this legislation because military judges probably do not deal with cases on the same daily basis as District Court or Circuit Court judges in normal civil or criminal law situations. I understand that if the Minister were to reduce the eligibility criteria to, say, eight years there would be a minimum of five personnel within the military service available for consideration. By doing that the Minister would still be allowing somebody with five, six or seven years actual practising ability in the courts to be considered.

Regardless of how well qualified they are for their administrative positions, be it senior people negotiating with insurance companies or whatever, I would have grave reservations about somebody who has no court experience, be it military, civil or criminal, coming in and working as a judge in a given situation. In that regard I have serious reservations about the Bill.

I am sure the Minister and his advisers are well aware of the State (Walshe) v. Murphy, 1981 Law Reports, IR 275, in which the High Court ruled that at the date of his appointment as a temporary justice of the District Court, the first respondent had not been eligible for appointment to that office because he had not practised as a barrister for an aggregate period of ten years and also because he had not been a practising barrister. That drunk driving case was struck down. In essence, the judge had to succumb to the decision of the higher court and relinquish his judicial appointment, albeit a temporary one. I have a serious concern in that regard.

In his introduction the Minister mentioned the valuable work the Defence Forces have done and continue to do. That goes without saying.

I could only support the use of non-military personnel in exceptional circumstances. To a certain extent this Bill is a copy of what the former Minister, Dermot Ahern, proposed 12 months ago with which I did not agree. It did not come to light because there were question marks over the person who was suggested as being eligible. If what transpires as a result of this legislation is that a difficulty with an appointment is got around and we bring in legislation to facilitate one individual or a number of individuals in the armed forces, that will have constitutional import and is an issue I will raise not alone in this House but outside it also. I propose to table amendments for Committee Stage because this is a matter about which I am greatly concerned.

I mentioned on the Order of Business earlier that it is proposed to take both Committee and Report Stages of the Bill tomorrow. I accept that the way the business is ordered is not a matter for the Minister but I am sounding a word of warning that if that happens tomorrow I will object to it both on the Order of Business and subsequently. If it is possible to take Committee Stage tomorrow and Report Stage as early as possible next week it would give us greater leeway in that regard.

I had intended raising a number of issues but it is important that this issue be seen for what it is. I note the Minister is making certain amendments to allow Circuit Court judges, in certain circumstances, take over cases where a conflict of interest arises. That is fair enough but my contention is that the provision in this new legislation is already covered in a similar fashion in the previous Act.

Were any representations made by the Representative Association of Commissioned Officers, RACO, to the Chairman of the Joint Committee on Justice, Defence and Equality? Is that appropriate or what weight would such representations have? Is it appropriate that RACO would have any lobbying influence in terms of who should be appointed as a military judge or indeed any judge? I would be deeply concerned if it transpires that RACO, through one source or another, lobbied people in this House or the other House on the appointment of a particular individual. I hope it transpires not to be true.

Is the Minister aware of any concerns expressed in the wider military community regarding the conduct of the selection process in 2010? I understand, although I may be incorrect, that a number of submissions from retired members of the Defence Forces were made expressing grave concern at the manner in which this was handled and that it represented a further disturbing development. Have such representations been made? Have they been brought to the Minister's attention? What will be the response to those? I will not name anybody but I am talking about very senior personnel who are now retired. One very prominent individual who has now gone to his eternal reward expressed deep reservations that the mechanism by which this Bill is trying to achieve its purpose failed less than a year ago. If that mechanism is being used to get around a particular difficulty, and the Bill is being dressed up in a number of other ways, it is seriously flawed and is likely to be challenged on a constitutional basis in another forum.

There is a provision in the Bill to allow the Minister deal with this matter from among the existing personnel who have legal experience and qualifications. By reducing the qualification period from ten years to eight or perhaps seven years, he would be including a number of qualified people and could have a system of application and interview. That would be a far more appropriate mechanism for dealing with the difficulty facing him and his Department than using this legislation to advance the application of a particular individual, which I believe is a retrograde step.