Seanad debates

Friday, 8 July 2011

Defence (Amendment) Bill 2011: Report and Final Stages

 

1:00 pm

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)

Why was the full story not outlined in a transparent fashion to the Oireachtas as opposed to the dripping of facts on a gradual basis? The Minister could have told the House that the Department is in a bind, having given a clear commitment to a particular individual who was later found to be ineligible for the post. He should have told us that and that the legal opinion was that the process could cost much money. Those of us in the House could have sought to resolve the problem rather than cause any more trouble. We were not told the full facts.

For example, the full facts concern an attempt by a select committee to appoint an officer as a military judge who was ineligible for the role. The Department, having initially denied the existence of correspondence, now admits it received a number of letters expressing concern by no lesser body than the legal services division of the Army. The individual concerned was to be promoted to the office of colonel, with the name to be presented to the Minister for acceptance as judge. On legal advice the application did not proceed. The officer in question who was to be appointed a judge sought advice of senior counsel, through his association, and the opinion was promulgated by circulation at a particular meeting.

I am concerned that a politburo of people involved in this, either in the Department or in RACO, have questions to answer. I promised this House and the Minister that every month I will raise the matter on the Order of Business or the Adjournment until I get answers. I will also ensure that colleagues in the other House raise the matter, as something sinister is ongoing that is certainly not transparent. Why has a representative organisation looked to get a judge appointed, and when this did not happen, why did it pay for and get a senior counsel opinion? Is that transparent and appropriate? If the GRA, Law Society or Bar Council decided to do this with a solicitor or barrister, I am sure the Minister would accept that as totally wrong. What I say today I am certain of and I have full details on the matter.

There is another problem of which the House should be aware. An opinion was given by a senior counsel and I am not denying the right of the person in question to obtain an opinion. However, the representative association should represent the association as a whole rather than an individual. It is also unusual that the individual was chosen to be the appointed judge, although perhaps a military judge is much less important than a District Court or Circuit Court judge. In the opinion sought by the national executive of RACO, there was clear and critical advice that he or she "had a legitimate expectation to be appointed to that office by the President and such appointment should proceed".

This person has been appointed a colonel and has five years left to run. I do not have a problem with him being elevated in the Army, although it was done to facilitate appointment as a judge. His annual salary as a military judge is to be €140,000 per year but the Department would have to pay him off because he is ineligible; I estimate the Department could be facing a legal Bill of between €1.5 million and €2 million, inclusive of costs. I have some experience of District and Circuit Courts in that regard. Perhaps I am paranoid but I imagine that was a critical thought. It is a bind as the person is ineligible and the Department is concerned about being sued, as are most Departments. Departments go into a defence mode, if the Minister will excuse the pun.

Somebody could have told us the Department is in a bind. Among other matters, the legislation will facilitate this appointment, although it may not come about because of exposure. The person in question may sue the Department. If there had been transparency and we had known the State could be caught for a couple of million euro, we could conclude that we are in dire straits. The manner in which the process has been ongoing, in a non-transparent fashion, gives me shivers down my spine.

If the legislation proceeds and is voted through, it will be a clear attempt to make perfect an imperfect appointment of 28 July 2010. The Minister made a great fuss about the delay of the 22 cases, and I am not saying that should be ignored, and said it was the fault of the last Minister and so forth. However, the last Minister had a gun put to his head when he knew this appointment was wrong. The Minister knows, or should know, about the legal opinion that was sought, the engagement with RACO at top level, the engagement with departmental officials at top level and what was happening. The lack of transparency sticks in my craw. We are being told about it bit by bit. Yet, the Minister said on the last occasion that RACO had nothing to do with it.

I spent four hours today going through the Official Report and I never accused the Minister in my speech of meeting with RACO. However, I said it had an involvement and I am correct about that. It had one meeting with a Fine Gael Deputy who I will not mention but for whom I have great respect. It was entitled to do that.

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