Alan Shatter (Dublin South, Fine Gael)

First, let me give the formal response to the amendments. I will then address specifically the issues the Senator raised.

The essence of the amendments is to reduce the qualifying criteria required for appointment to the post of director of military prosecutions or as a military judge from the current position of the requirement to be a practising barrister or solicitor of not less than ten years standing to only requiring an individual to be a practising barrister or solicitor of not less than eight years standing. The effect is that one would be required to have only two years less experience.

The suggestion that the level of experience required for appointment to the post of director of military prosecutions or as a military judge to which these amendments apply should be reduced could lead to a scenario where an officer lacking in experience could be appointed to undertake the onerous duties associated with either the post of director of military prosecutions or as a military judge and it would turn on its head the logic of the existing provisions in the Defence Acts. Ten years experience as a qualified barrister or solicitor is not excessive having regard to the nature of the posts in question. Ten years experience as a qualified barrister or solicitor is the minimum number of years required before appointment to the District Court. Personally, I do not believe this position is of any less importance than that of a District Court judge.

It could be stated that the amendments betray a lack of appreciation of the duties associated with the post of director of military prosecutions and of a military judge, both of which may involve decisions leading to the termination of an individual's career in the Defence Forces, his or her incarceration or both. It is essential that anyone exercising the functions of either the director of military prosecutions or those of a military judge must be in a position to weight such onerous considerations appropriately and this comes only with experience. This is the basis upon which our judges are appointed in the Civil Courts and it was the basis upon which the Act of 2007 was drafted and enacted by the Oireachtas on the proposition of the former Fianna Fáil-led Government of the time.

Senator O'Donovan raises in an extraordinary way the circumstances of a particular individual. I will come back to that presently. However, his first accusation, a strange one, is that the Bill is designed to regularise a lacuna in the law. The Bill is designed to try to regularise a lacuna that arose and was, apparently, perfectly clear as of last summer to the former Minister for Defence in the Government supported by the Senator. A difficulty arose, the circumstances of which the Senator has described accurately in the sense that an individual was, apparently, appointed to this position or some announcement was made and the appointment was not proceeded with because there was some form of legal difficulty. That did not occur under my watch or during the lifetime of this Government. However, the problem arose. What did Senator O'Donovan's colleagues do when that problem arose? Absolutely nothing. They went into a state of suspended animation and the Military Court stopped sitting. That is what happened and I inherited that predicament when I became Minister. I asked questions as to what on earth was going on and I was informed what was going on.

I am aware of the predicament of that individual but I am not aware of certain aspects of that individual's predicament. Clearly, the Senator is being fed information. I do not doubt the good faith of Senator Mullen in these things. However, Senator O'Donovan has been given certain information. He should ask himself why he is being given this information. It is not an embarrassment to me since I was not Minister at the time and the present Government did not exist at the time. However, he is being given information that I did not know in one respect although I knew of the difficulties of this individual. He has put information on the record of the House today of which I certainly do not have knowledge and I am advised my officials do not have knowledge.

That is in respect of two matters. The first matter is I am informed that no official in the Department of Defence would have seen any advice given by legal counsel to the individual concerned. Obviously Senator O'Donovan has been given it. Some other people have obviously seen it. I did not know and it is news to me the name of the senior counsel who allegedly gave this individual advice. I presume the individual obtains the advice and I do not believe it is as appropriate. We talk about individuals in this Chamber - Senator O'Donovan has brought it up - because they have no opportunity to defend themselves when we talk about individuals in this Chamber.

Clearly advice was obtained by him, of which Senator Donovan is privy, and he has put on the record of this House that this individual thinks he has "a legitimate expectation of some description, a concept well known within the legal profession." Whether the individual does or does not have a legitimate expectation I do not know and we have now discovered who his senior counsel was. There was certainly, I am advised, some correspondence received by the Department of Defence from this individual's solicitors and I presume there was some response to it, but that is not why this legislation is before the House. It would be quite improper to enact a piece of legislation designed to assist an individual and present it differently.

If I was going to seek to enact a piece of legislation designed to assist an individual I would not be proposing to this House that we extend eligibility for appointment to this position to solicitors and barristers generally of ten years standing. If this was a piece of legislation designed for an individual it would address that individual's circumstances and the last thing it would do was try and widen the pool of individuals to whom this legislation should apply. My problem is, and want to make it clear, that I am assuming that Senator O'Donovan is expressing concerns in good faith but he should examine what he is saying against the factual reality of what is contained in the Bill and perhaps take less than seriously some of the lobbying that he is being subjected to. He has told the House that he got congratulatory phone calls yesterday evening from some members of the Defence Forces.

The real problem, as I see it, with this particular tribunal and the current prescription for eligibility to be a member of it is that it is far too narrowly defined and there are far too few individuals who are eligible for appointment. I am sure there is a discrete number of individuals who may be concerned that if we widen the pool of possible appointments they may not have an opportunity to be appointed. In fact, if one looks at this this is an area that needs reform because it is a closed shop in all practical terms. It is a closed shop because the appointments can only be made in favour of a readily identifiable small number of individuals, some of whom must be briefing the Senator, and there is a motive behind it. I am not going to suggest the Senator has a motive other than trying to tease out the legislation based on the briefing he is getting.

I would ask both Senators, in fairness, to read what the Bill says. This Bill is broadening the pool of individuals in a significant way from whom an appointment can be made to the position of military judge. I have absolutely no idea who may be appointed when there is a new competition. I will have no hand or part in the appointment beyond the committee that conducts the assessment of who should be appointed. It ultimately makes a recommendation which, as I understand it, is furnished to the Government to be passed on to the President, and I presume comes to the Minister for Defence to furnish the Government to pass on to the President.

I find it extraordinary where it is so clear that we are widening the pool way beyond the individual whose circumstances the Senator refers to as to who is eligible for appointment that the Senator is so convinced that this is a Bill that is designed to appoint a particular individual. What makes it even a little bit more odd is in circumstances where the Senator seems anxious, and both Senators seem anxious, that persons of reasonable experience and expertise are appointed, why they choose to drop from ten to eight years for the period during which someone needed to be a qualified barrister or solicitor before they could be pointed because you are now going for individuals with two years less experience.

I am advised that this issue may have arisen under a previous Minister who did not pursue it and on that occasion Senator O'Donovan was suggesting reducing the period from ten years to seven years. We are now a year further on. I do not know whether the Senator is advocating on behalf of some particular individual for this post who 12 months ago had seven years practice and 12 months on has eight years practice.