Rónán Mullen (Independent)

Cuirim fáilte roimh an Aire. He is very welcome. I preface what I have to say to him by reminding him I am not in opposition. What I am to say over the next few minutes, however, gives me no pleasure at all. This is a very problematic Bill.

The singer Meatloaf was famous for a song called "Two out of three ain't bad". Two out of three of the central proposals of this Bill ain't bad and I support them. I differ from colleagues in Fianna Fáil based on the amendments I will table. It is entirely appropriate to envisage and provide for a widening of the pool of eligible candidates for the posts of military judge and director of military prosecutions by providing that suitably qualified barristers with the required number of years practising as barristers, be they members of the Permanent Defence Force or not, should be eligible for consideration. The enabling of the President of the Circuit Court to appoint temporary judges is entirely appropriate.

It is in respect of the third aspect of the Bill, however, that a very serious problem arises. I refer to the provision to empower the selection committee to make an assessment of whether a candidate is suitable for appointment. It is seriously deficient in terms of transparency in that it is a question of the appointment of a judicial figure. A back-story to this legislation, on which we have not been briefed today, raises the most serious of questions. If the Minister has not been told the full back-story to this Bill, he should be very angry. If Senators have not been told the full back-story, we have the right to be very angry. It is not our role as Seanadóirí to be private investigators. With the greatest of respect to Senator Coghlan, whom I like, it is not enough to say the Minister will no doubt address these matters satisfactorily. This is not an Order of Business debate but a debate on important legislation on the way in which the Permanent Defence Force operates. It is about, among other things, the appointment of judges, one of the most important decisions in which a democratic society can be involved. The back-story which provides a context to what I am saying is very simple and it is that we do not have a military judge in place at present; that there was an appointment procedure; and that an appointment was made. What is also part of the back-story is that it was communicated in writing to the highest levels of the Defence Forces by the highest appropriate level that there was a problem with the individual who had been deemed to be appointed and whose appointment was announced on the Defence Forces website. It was pointed out that the person did not meet the statutory eligibility requirements.

It is for this reason I have major concerns about the Minister stating in his speech, "The final issue being addressed in the Bill relates to the fact that there are a number of personnel within the Defence Forces who are either qualified barristers or solicitors and who use these qualifications as part of their day to day duties". He spoke about the need to introduce clarity on whether services of this type meet the service requirements for appointment to posts as Director of Military Prosecutions or military judge. The Minister is speaking about it as though it were a matter in the abstract. It is a horse of an entirely different colour for us to be required to consider such legislation in the abstract as though it were about ameliorating in advance some problem that might arise in the future, when what is actually the case is that a problem has arisen about whether the person who was appointed met the relevant selection criteria. This legislation looks suspiciously like an attempt to cure the defect retrospectively.

With all the talk about widening the pool and ensuring competition, the back-story to the legislation raises the suspicion that the provision is not simply about ensuring competition in the future but is designed to eliminate the competition in the present so as to allow, presumably, the appointment of the individual who, as things stand, does not meet the statutory eligibility requirement for the post of military judge. The first issue I wish to raise is the sheer inappropriateness of coming before the House and not apprising us in full of the back-story, because it completely changes the context in which we must consider the proposed amendment.

Senator O'Donovan adverted to the fact that there was considerable lobbying by the representative association of commissioned officers. I understand - in fact I know - that this organisation even obtained a legal opinion on the rights of the person who had been appointed. The advice of the Attorney General was that the person might have a legitimate expectation to the appointment since the appointment had been announced and the job awarded. The legal advice from Mr. John Rogers spoke about consideration being given immediately on whether a letter ought to be addressed to the committee and-or Ann Price of the Defence Forces personnel policy branch indicating plainly that the person in question contends the committee ought not to engage in any further deliberation as it appears to intend, but should rather desist from in any respect seeking to disturb the selection by the committee and the recommendation by the Government to the President.

What is going on here with regard to the appointment of a military judge? We are being told there is lobbying and pressure in the background and we are not hearing about it. The Minister may not be to blame for the fact that a representative association might lobby on behalf of one of its members but how appropriate is it in the context of an appointment of a judicial figure? I am also informed the Secretary General of the Department submitted a reference for the candidate. How appropriate is this in the context of a judicial appointment?

I hope Senator Coghlan is right and that the Minister will address these concerns adequately. I reiterate the point that either the Minister has very good reason to be annoyed with his officials or the Defence Forces, or we have very good reason to be annoyed with him. It is not acceptable to bring legislation such as this before the House when there is such a significant back-story which provides such a stirring context to what we must consider.

I have asked a question and I will also ask whether this is a ready-up to facilitate the appointment of a particular individual. I will now examine what is proposed to allow the curing of the defect. Essentially, the position is that to be appointed to either of these roles a person must be a serving member of the Defence Forces and must have ten years experience as a practising barrister or solicitor. I know the Minister will appreciate the appropriateness of keeping the solicitor in the frame at all times. There is provision in existing legislation which allows for the consideration of a person who might not have experience as a practising barrister or solicitor but who has been ten years in a role for which it was a requirement that they be a barrister or solicitor, and this is entirely appropriate. What is proposed is that the selection committee might consider the qualifications of somebody who is a barrister or solicitor but who has not practised in a role for which it was a requirement that they be a barrister or solicitor and deem that their role and duties somehow put them on the same level as the category I mentioned earlier, namely, the person who is in a position for which it was a requirement and that they might therefore satisfy the requirements of the appointments board.

This raises a major issue of transparency. It raises a questionable legal criterion for the office. It is not transparent. Is an accused person to be subject to someone with a degree of competence that has not been transparently assessed? The legislation will still provide the requirement of ten years as a practising barrister or solicitor but it will allow the proposed selection committee to drive a coach and four through it. Who will be on the selection committee? In the case of the military judge, two out of three members will have been appointed by the Minister, namely, the Chief of Staff of the Army and the Judge Advocate General. Major issues of transparency arise given that the Bill deals with the appointment of judges.

I contend that it is not enough that we postpone Report Stage. We need to postpone the legislation until there has been further and proper public consideration of what has been put before us today and until we as Members of the House have a chance to scrutinise it. It is in everybody's interests that we do not have judicial review actions in the future in which it will be contended that a person is not suitably qualified. It is certainly in everybody's interests that we should not have legislation coming before the House which, without the House been informed, has as one of its very significant purposes the desire to remedy a defect or problem that has occurred about which the House has not been informed.

I apologise for going over time and for being so forcefully concerned about this matter but a serious issue has arisen. This is not an Order of Business debate where one side tries to get one up on the other; it is a serious matter of probity. I look forward to hearing the Minister's response.