Rónán Mullen (Independent)

The Cathaoirleach has no need to worry; I do not intend to rehearse it today.

I am merely anxious that the Minister should know that I have a great degree of goodwill towards him. That was why I pointed out yesterday that either he has good reason to be annoyed with his officials and with the Defence Forces for not putting him fully in the picture on this matter or we have good reason to be annoyed with him for not putting us in the picture. I remain concerned that the Bill seems to be designed in part to suit the needs of a particular individual, needs that have arisen because this individual was, in the opinion of the highest appropriate authority and as communicated to the highest appropriate person in the Defence Forces, not statutorily eligible for the position to which he was appointed. The Minister referred to the situation some minutes ago as "some form of legal difficulty" with the appointment. With the greatest respect, he should be more specific. To talk about "some form of legal difficulty" is to imply a mere technicality.

We have to talk about the details of the individual case. This was an individual who, on several occasions, had not managed to get selected as a legal officer. In the opinion of the highest appropriate person, this individual did not meet the statutory legal eligibility because he had not operated in a post for which it was a requirement to be a barrister or solicitor. The Bill would let this person off the hook in that respect. I do not for one minute allege - and I am pleased he has indicated there will be a further competition - that the Minister is trying to rig the situation to ensure this person gets the job in a future competition. The Bill will leave it in such a way that many people will be able to apply for the job, which is perfectly appropriate. However, that is not enough. The Minister said it would be quite improper to enact legislation designed to assist an individual. This Bill does not do so; that is not my contention. Nevertheless, it will let off the hook a person whose eligibility for a particular post was rejected in that this person will now be deemed eligible.

As I said, I am concerned that the Bill seems designed to suit a particular person. I am concerned that the Minister would come into the House and not explain to us that among the effects of these provisions is that a particular person stands to benefit. That is not transparent. The Minister was helpful in telling us some of what he knew about this matter, but I ask him to be more detailed about what precisely he knew. At what point was it disclosed to him that the situation had arisen? Whose idea was it that the Bill should be designed to allow a selection committee to overlook the absence of the relevant experience in respect of a job for which it was a requirement that the person be a barrister or solicitor? Who suggested that the amendment be included to allow a selection committee to make that decision?

The Minister rightly observed that this provision will open up the shop to more applicants. However, that opening up will accommodate the person who was appointed previously and in respect of whom the problem arose. If the shop is opened up in this way, it is likely that a person who is well known would stand a very good chance of subsequently getting the job. That is why it is relevant to ask how the matter came to the Minister's notice and why this particular amendment was drafted.

The Minister made an excellent point in speaking about these amendments, specifically the provision which seeks to lower the requirement regarding legal service as a barrister or solicitor from ten years to eight. He correctly drew a parallel with the District Court and made all the relevant points about the importance of the role of military judge. He spoke about the possibility, for example, of an officer's career being exterminated. He talked about how inappropriate it would be to have a lower standard of required legal experience than would apply in the case of a District Court judge. He is absolutely right, and perhaps that is the reason we should not lower the required period of experience from ten years to eight. If the Minister implements that reduction, it will leave several people within the Defence Forces - not just one individual - in a position to apply for the post. He is correct to refer to the District Court, but he does not point out that when it comes to the appointment of a judge of that court, there is no backdoor mechanism which allows it to be overlooked that a person does not have ten years experience.

The Minister cannot have it both ways. He cannot, on one hand, insist that we retain as sacrosanct the requirement that a person must have practised as a solicitor or barrister for ten years and, on the other hand, propose an amendment which would allow a selection committee to drive a coach and four through that requirement in respect of a particular post, not in terms of the duration of the work but in terms of deeming eligible for a post an officer who happens to be a barrister or solicitor but who has not worked for ten years in a role in which it was required that he or she be a barrister or solicitor. Would the Minister prefer somebody who has been busy prosecuting courts martial for eight years and knows his or her way around the military justice system or somebody who has been in a desk job for ten years, with no involvement in work which required him or her to be a barrister or solicitor? It seems invidious that the Minister would seek to open a loophole for one category but not another.

There is something undesirable about the way in which this legislation has come before us. I am not blaming the Minister, because I do not know who to blame. I do not know if the fault lies with the Minister, his officials or the Defence Forces, but we should have been told. On any index of transparency, corruption and democratic accountability - and there are such indices - something that must cause concern to people of good faith is a situation where the Executive of a country would not disclose significant factual background to the Legislature. In this instance, it is not so much that someone wanted to pull the wool over our eyes but that someone was quite content to leave the wool over our eyes if we were not in a position to pull it back ourselves. That is problematic.

If only to rule out the suspicion of preferential treatment, this factual background should have been brought to our attention. In the courts it is not enough that a judge be impartial; he or she must be seen to be impartial. In the same way it is important that this legislation should have been seen to be grounded in good faith. For all I know, the Minister may be tearing strips off his officials in the background. We need to know precisely who knew what. The fact remains that what is proposed in this amendment allows a selection committee to overlook an otherwise ineligible person, which would in this instance benefit a particular person in any new competition for the job in question.

It is important to stress that we are discussing a judicial position. The Minister made that very clear. The individual in question will be able to impose fines. However, he or she might also be amenable to a desire from other quarters to the effect that trials be shortened. He or she might also be obliged to make decisions regarding legal aid. These are all matters in which the State might have an interest. That is why the process relating to the appointment of this person must be extremely transparent. I am of the view that there is departure from transparency in what the Minister is proposing.

I will cut to the chase in the context of what I propose in my amendment. In so far as the appointments of the Director of Military Prosecutions and military judges are concerned, it is currently required that people being appointed to such positions be serving members of the Permanent Defence Force, that they should have ten years' experience as practising barristers or solicitors or, alternatively, that they have served for "any period in a position in the full-time service of the State (including as a member of the Permanent Defence Force and as a civil servant within the meaning of the Civil Service Regulation Act 1956) for which qualification as a barrister or solicitor was a requirement". It was this which allowed legal officers within the Defence Forces to access these positions. Such individuals may not have been working in the Four Courts or in solicitors' offices but they would have spent ten years in a job which required them to be practising barristers or solicitors.

If there is a shortage of candidates for the post of military judge, in particular, and Director of Military Prosecutions, then might it not be inappropriate to allow people with eight years' experience who have been operating in a military court setting to be considered? Even if I am wrong in that regard, I must ask whether the Minister would automatically insist on the same high threshold for the position of military judge as that which obtains in respect of the Director of Military Prosecutions. He correctly stated that ten years' experience as a barrister or solicitor is required in order to be appointed as a judge of the District Court. What is the requirement to be appointed as Director of Public Prosecutions, DPP? Is there are parallel between the latter and the Director of Military Prosecutions?

Is the Minister insisting that the threshold of required experience as a barrister or solicitor should not be lowered from ten years to eight in the case of the post of Director of Military Prosecutions? Even if he disagrees with me and insists on a requirement of ten years' experience serving as a barrister or solicitor, then the second half of my amendment should apply a fortiori. In other words, we should delete from the Bill the power the Minister proposes to grant to the selection committee. I accept the good faith of selection committees. The Minister referred to three officers who will serve on such committees appointed to choose military judges, namely, the Chief of Staff, who would be in frequent contact with the Department, the Judge Advocate General - I accept the independence of the latter but nonetheless these are posts which emanate, in one way or another, from power - and a judge of the High Court, the independence of whom I would certainly accept.

There is another amendment in my name which, for the avoidance of doubt, would assist in ensuring that the most independent type of scrutiny possible would apply in respect of applications. However, I will not speak to it now.

It is wrong that we should allow the selection committee to, as is stated in two separate locations in the Bill, consider the service of an officer. I admit that such an officer must be a qualified barrister or solicitor but what if he or she were not in a role which requires him or her to be a barrister or solicitor? The Minister's proposed change would mean that such an individual's duties and role could be considered and that said duties and role could be deemed to be substantially similar in substance and effect to the duties and role of a person who has served for ten years in a position which required him or her to be a barrister or solicitor.

The Minister is also allowing the selection committee to deem such service to be service as a practising barrister or solicitor. In other words, he is opening a hole a mile wide in respect of the possible access route to this post. He cannot state that the reason he is doing so is in order to open up competition. The latter is already being done through the freeing up of access to the positions to which I refer to people outside the Defence Forces who possess the requisite ten years' experience. In addition, he is also opening up the possibility for the President of the Circuit Court to appoint judges of that court to fill any vacancies that arise on a temporary basis. I fully support his actions in that regard.

The Minister cannot claim that what is being done relates to opening up competition. The hole it opens would not actually admit many more people into consideration. However, it will give a great deal of power to the selection committee to deem that someone within the Army is fair dinkum and is suitable for appointment as a military judge even through he or she may not be serving in a role in respect of which there is a requirement that he or she be a practising barrister or solicitor.

It beggars belief to suggest that this change has not been designed with a particular set of circumstances in mind. The Minister should be honest and state that I am correct in this regard. The relevant provision would not have been drafted if a particular set of circumstances had not arisen. As it stands, the Bill would open up the possibility of the President of the Circuit Court appointing temporary judges and also the wider possibility of non-serving members of the Defence Forces who possess the requisite legal experience obtaining positions as military judges. That is all great and there would be ample competition. As a result, I would argue that there was no need to introduce the provision to which I am objecting.

It is a question of how we regard judges in our society, particularly in the context of the military. Justice within the military is an extremely fraught issue. There is international case law relating to Turkey, etc., in this regard. The last thing the Minister should do is make the appointment of military judges less transparent. The way in which to ensure that the process remains transparent is by putting in place a criterion of practice in respect of the appointment of judges. That has been the method used heretofore. In other words, people were appointed on the basis of the length of time they had been practising or serving in a particular role.

The Minister is moving the process away from one of transparency and raising the possibility that people could be before military judges whose degree of competence for the job has not been assessed in a transparent way. In such circumstances, the selection committee will be able to consider the totality of someone's Army career and state that he or she is a good and smart person - he or she may be perfectly competent in other ways - and can serve as a military judge. It is my opinion that the Minister is inviting a judicial review in this instance.

On Second Stage, Senator Coghlan referred to section 7 and the fact that it states that the Minister for Defence may consult the Minister for Justice and Equality.