Denis O'Donovan (Fianna Fail)

I move amendment No. 1:

In page 4, before section 3, to insert the following new section:

3.—Section 184C of the principal act is amended by deleting the figure "10" and inserting the figure "8".".

Maybe instead of going down the road the Minister is suggesting in this Bill, he might consider reducing the required number of years from ten to eight, among other suggestions. As I outlined yesterday, I am deeply concerned that this Bill is aimed mainly at regularising lacunae within the Department of Defence and the Defence Forces. I was not pointing the finger of blame directly at the Minister yesterday, despite the fact that on three or four occasions he referred to comments as having been made by me that were not in fact made by me but by another Senator.

On 28 July 2010, the Defence Forces press office issued a statement that a certain individual, whom I shall not name, had been appointed a military judge for the Defence Forces. On the same day that individual was promoted from commandant to colonel. Subsequently, it emerged that there may have been doubts about the eligibility of this person and, consequently, it also emerged that the Attorney General had been contacted by the then Minister. Because of the doubts that existed, the appointment was not pursued. I am sure the Minister is aware that the individual concerned, seeking to protect himself because he was concerned that the appointment was not proceeding, sought and obtained an opinion from an eminent senior counsel, namely Mr. John Rogers, a former Attorney General. I am sure the Minister has studied that opinion. The person was informed that he had a legitimate expectation. Consequent to all this, the Bill has emerged.

Let us remove the fluff from the Bill and get rid of the notion that the Bill contains measures to expand the pool of people who are entitled to be appointed as judges. If we take away the flesh and get down to the bone, we can see the truth of the contention I made that this Bill is primarily to facilitate a particular individual and to ensure the Department and the new Minister are not sued in the courts, as set out in this opinion of legitimate expectation. A process had been conducted and the appointment was actually announced on 28 July 2010 - almost 12 months ago. Is there a likelihood that the Department is now facing the wrath of this individual, who was either led up the garden path or coerced or encouraged along as a favourite son of the Department for appropriate rewards?

Yesterday the Minister either did not wish to advert to this or sidestepped it, but these are serious issues. It is important that the Minister, on behalf of the Department, come clean and confirm the existence of the correspondence I mentioned yesterday, a letter written by a senior officer to, I think, the Defence Forces legal service - I am not au fait with the internal workings of the military - expressing deep concern about the appointment in question. It is also of concern that when the appointment did not proceed, an opinion was obtained by that individual, as was his right, which I am sure was waved at the Department with talk of legitimate expectation and considerable financial loss for the Department by way of a lawsuit. These are the concerns I have, and they are deep-rooted.

The Minister gave the impression yesterday that he was, in this Bill, broadening the category of those who may be appointed as judges. I have no problem with that. However, if we consider the existing legislation - the 2007 Act or the principal Act from 1954 - we will see that such a provision already pertains. He should confirm that that is the case, although he is choreographing it in a slightly different fashion. I accept that he is probably broadening the category of people who are available to be appointed to the military court.

There is one issue on which I ask for clarification. The Minister was throwing darts at this side of the House and his predecessor, the former Minister for Defence, Tony Killeen, regarding the fact that there was a backlog of 22 cases. After yesterday's discussion I went to look at those 22 cases. Some of them are very technical and I have no doubt that under the old legislation, if the President decided to second a Circuit Court judge for six or eight weeks, that backlog would be cleared. Can the Minister tell me how many cases have been dealt with in the military court in the last 18 months or two years? Probably far fewer than 22. A backlog of 22 cases in the Circuit Court, High Court or Supreme Court would be laughed at. At the moment there are cases pending in the High Court that are ten years old, although I am not saying that is right. It is not fair to convey to the House that there is a backlog of 22 cases and that this cannot be dealt with in any other manner than through this legislation.

The issues I have raised here should be dealt with. The amendment seeks a reduction in the number of years a person must have been practising as a solicitor or barrister from ten to eight. That would not do any harm to the Bill. It could be incorporated along with the proposals to expand the provisions as the Minister set out.

I have always been courteous to this House and to Ministers. I have never come in here and tried to politicise an issue. However, I have a letter in my possession that I will not read from or refer to as it might be a source of severe embarrassment, if not to the Minister then certainly to the Department. I spent last night increasing my knowledge of this issue and I am far more confident today about what I am saying, which my colleague Senator Mullen also discussed. By the way, I did not realise until yesterday that Senator Mullen was on the same tack; we had not sought to compare notes prior to the debate. Senator Mullen seems to be aware of circumstances that are of deep concern.

I am concerned about any Department, whether it is the Department of Defence or the Department of Agriculture, Fisheries and Food, introducing legislation under threat of a lawsuit - it may have been verbal but it is a matter of fact. I have seen the opinion from the eminent Mr. Rogers advising the appointee about whom I spoke of his rights. Obviously the person concerned did not go to the trouble of getting that opinion for fun. The Department was concerned that it was caught in a bind. It had announced publicly from its press office on 28 July last year that it had made an appointment, but it rowed back because it was clear and obvious that the person was ineligible. At that stage, perhaps when this was conveyed to the individual concerned, he protested that he had been led up the garden path. The Department had offered him the appointment and promoted him to one of the highest positions in the Defence Forces, that of colonel, and he had a legitimate legal expectation that this would be carried out. In the legal opinion, which I have studied in detail - although I am not saying opinions are always the last word - the eminent senior counsel suggests there is a legitimate expectation not only of the appointment as judge but of all the benefits that go with that position.

In that regard it is important that the Minister explains to the House the full backdrop. I was easy yesterday and I made some points. As Senator Mullen stated there is a background to this case about which the House must know. This is nothing to do with scoring points against the Minister or the current Government. If the previous Minister were here I would make the same points to him, but he is not. I am uncertain but I am of the view that if the Minister then were faced with this difficulty almost 12 months ago he may have rowed back and decided not to proceed in that line.

The legislation appears to set out some issues with which I have no difficulty. However, if it is the case that it is being dressed up in an effort to protect the Department and an appointment, I have deep reservations and concerns. That would be a retrograde step. I note from another opinion I received that it could have constitutional implications and could be subject to challenges. Perhaps the Minister is not aware of this. Is the Minister or the Department aware that there are two reputable legal firms holding a watching brief on this development? The Minister may smile but will he inform the House of it in good faith? I accept the Minister's bona fides and I am here uberrima fides; I have no personal axe to grind. Most people who know of my career in politics acknowledge that I have rarely, if ever, gone down the road of scoring points or trying to fire cheap shots. I have no particular axe to grind with the Minister, although he may believe Senator Byrne, who is not here at the moment, may have. Will the Minister accept my amendments and confirm that the backdrop, as set down by Senator Mullen more cogently than I have done, does not exist or, if it does, will the Minister reassure the House that it has disappeared and that these issues are no longer relevant?

This has raised hackles among serving members at various ranks within the Defence Forces. Since yesterday, I have received several calls of concern and support for the points I have raised from serving officers and retired personnel. It gives me no great gratitude to have an axe to grind with any Department. However, this matter will not rest in this House. If we vote it through today it will re-emerge.

It is important to realise that the Bill, although it has some salient features, serves the purpose of doing what I have said and addresses the fact that the Department is obliged to ensure a particular appointee can have his appointment fulfilled. Under the old law and the Acts of 2007 and 1954 that was not possible because of the question of eligibility. The State (Walshe) v. Murphy case decided in 1981 indicates that a successful challenge might emerge. In this regard I hope we will hold a more balanced debate today and that the points I have raised which are of importance will be considered. These are not made up. I have before me certain documentation and perhaps the Minister will allay my fears and those of other Members in his response. I reserve the right to contribute on other issues as the debate unfolds.