Denis O'Donovan (Fianna Fail)

I move amendment No. 1:

In page 3, to delete lines 5 to 18, and substitute the following:

"AN ACT TO AMEND AND EXTEND THE DEFENCE ACT 1954; TO MAKE FURTHER PROVISION FOR THE SERVICE REQUIRED FOR APPOINTMENT AS DIRECTOR OF MILITARY PROSECUTIONS AND MILITARY JUDGE; AND TO PROVIDE FOR RELATED MATTERS.".

I tabled this amendment in an effort to bring clarity to a particular situation. The Minister stated in his Second Stage contribution that given the small cadre of legal officers, there is a significant possibility that a judge could have knowledge of persons who come before him or her. Such a scenario is not currently provided for in the Defence Acts and this Bill therefore seeks to address it. On principle, I do not have an issue with that. The Minister also stated that while the Defence Forces are introducing more clarity in relation to the job specification for such posts which will make clear whether being a barrister or solicitor is a requirement for a particular job, the fact remains that some individuals have been undertaking such work over many years and clarification is required whether their service meets the service requirements for appointment to the posts of director of military prosecution or military judge.

I proposed by way of earlier amendment that the term in this regard be reduced from ten years to eight. Earlier, I pointed to RACO's possible involvement in this area. I was clear in stating that representations were not made to the Minister. In regard to the Minister's statement relating to there being only a small cadre of legal officers, I and other Members contend that this legislation supports, among other things, the application of one particular person. I understand that military judge is a serious position. However, I would like to make a few points to which perhaps the Minister might respond.

The person recommended by the selection committee to be military judge was a member of the national executive of RACO. I pointed out on the last occasion - the Minister thought this irrelevant - that opinion on this matter had been obtained from an eminent senior counsel and former Attorney General, about whom I am sure he did not say anything derogatory. It is interesting that this opinion, which I have studied - the Minister might consider studying it - was sought and paid for by the national executive of RACO. This national organisation, representing Army personnel, has a direct hand in choosing who will be a military judge. Apparently this is all irrelevant.

I saw the minutes of the national executive meeting of the Representative Association for Commissioned Officers, RACO, from 14 December 2010, when it was informed that an opinion had been received from a senior counsel for the named individual who was to be appointed a judge. This may all be a red herring and perhaps RACO has nothing to do with it but some in the Department dealing with defence argue that to say that RACO is not up to its neck in this Bill and that appointment is absolute nonsense. The Minister should take that on board.

There are two points to be made. This indicates the ease of access that a representative association such as the Garda Representative Association or the Law Society has to senior personnel in the Department. It may be a good or bad idea but I have reservations because the process is not transparent. How appropriate is it for a representative association to lobby for a military appointment in the capacity of a judge? When the appointment fell on hard ground and did not proceed, the same representative body at national executive level sought and obtained an opinion from an eminent senior counsel. The person to be appointed a judge, who shall remain nameless, is a member of the body which paid for the senior counsel's opinion. The body's mistake was to distribute the opinion to 25 people.

The Minister has spoken about independence and argued that the purpose of the Bill is to bring about transparency and independence. Nevertheless, the representative association at the top level is dictating the pace as far as this appointment is concerned. The Minister would be misleading the House to tell me otherwise. It is a very serious matter and although the Minister may not be able to address it today, he should take it on board.

I do not raise such matters with light heart and as I said, I have no agenda. Nobody has lobbied me on the matter either but this is in the public interest. Already the knives are out, perhaps at a departmental level and certainly within RACO. I do not like the close and cosy relationship between RACO and senior Department officials. There will be more to this issue when it goes to the Dáil next week or the week after because I have only scratched the surface. I was irked when I was told I was stupid and did not know what I was talking about. Remarks from other Senators were attributed to me and my comments from Wednesday's Order of Business have been misrepresented. That led me to stand my ground and fight my cause as best I can in the interests of this House, fair play and equity.

Further to the amendment, I have a couple of questions to put to the Minister as I have not received much clarity to date. Any of the admissions made about correspondence and difficulties had to dragged out of the Minister; it was like trying to pull teeth from a duck.