Alan Shatter (Dublin South, Fine Gael)

As Senator Leyden said, it has had nothing to do with the legislation before the House. In so far as a member of RACO sought that his representative body represent his position after he found himself, through no fault of his own, in a difficult position last summer, RACO did what I presume any representative organisation would do. I had no prior knowledge of whatever opinion this gentlemen obtained from the senior counsel, who was referred to yesterday, nor did I know that RACO paid the bill for the opinion. If a Senator says so, so be it but that has nothing to do with why this legislation is before the House.

This debate has a sort of "Alice in Wonderland" feel to it. No matter what one says, it is as if one has not said it and the same things keep getting said. On the other side, it is like we are living in two parallel universes.

I will come back to a very simple thing, and I have checked out some matters since yesterday for the information of the Senators, which I will come to. When I came into office, there was a problem in this area of which the former Minister, Tony Killeen, was aware. The Bill before us was not drafted during his time. It may be that some work was commenced on preparing a Bill, but the Bill has been finalised during my time as Minister with substantial input from the current Attorney General. It may be that the former Minister intended to travel some of the route on this. It would have been blindingly obvious to the former Minister as of September last year that there was a problem.

The problem was very simple. The selection committee and not some "select committee", as one Senator keeps referring to it as, chaired by a High Court judge and which had the Judge Advocate General on it - two completely independent individuals - and the Chief of Staff selected an individual about whose reputation I am concerned because of comments made in this House. It is not normal in my experience in the Dáil that a debate centres around some individual and that one keeps talking about his or her circumstances. I deliberately did not talk about an individual's circumstances in my opening speech but talked about the problem we had to address. However, the debate keeps coming back to this individual.

This individual was properly selected as far as that committee was concerned to fill the position of military judge. An issue then arose as a result of some other intervention with regard to whether he fulfilled the legal eligibility criteria. When that committee was reconvened in September, it was unable to resolve the issue. It was not that he was determined to be ineligible; the committee was unable to resolve the issue because of the obscure wording in the defence legislation. The matter has rested since September; there was paralysis and nothing was done. Perhaps the former Minister had in mind to progress something but I can tell Members for sure that it had not been progressed when I was appointed Minister and it was drawn to my attention that this was a problem.

The problem was that we had no military judge and an increasing number of cases waiting to be heard. As I said yesterday, the number of cases was 22. We had an individual who had been selected but about whose eligibility there was an issue. We had no appointment and we had legislation which was defective and which was enacted by a previous Fianna Fáil Government.

There were two things I could do as Minister - stay in a state of paralysis and ignore the problem or address it. I could have taken the solution Senator O'Donovan has come up with, namely, keep the same criteria and reduce the term of years from ten to eight. What was the reason for not adopting that approach? Yesterday I referred to the importance of ensuring people were barristers or solicitors for a minimum of ten years and the fact that, as a result of their experience of working as lawyers in that context, they would make suitable judges.

I have had the numbers checked and double checked because there has been great inaccuracy about the numbers among those Members of the House who are unduly excited about this issue. The numbers are simple. To solve the problem and appoint a military judge, clearly a new competition would have to take place. If I had ordered the holding of a new competition, there would have remained in the ether a mystery about whether the gentleman who had originally been selected for this position would be eligible for the next competition. It was not, as Senator O'Donovan states, that a decision had been made that he was ineligible, but there was a doubt and a concern as to whether he was eligible and a concern that if the appointment proceeded and he proceeded to hear court martial cases, an issue could arise in the courts with one of the hearings that might take place before him. If I had simply ordered that a new competition take place, he could still have properly applied. If I had lowered the age profile from ten years to eight, he could still have applied and the same problem would have remained.

We had to redefine eligibility. If one is to redefine it, the next question is whether one wants to have a very broad or narrow pool of individuals from whom to select. If I wanted to do what the Senators have suggested, I would have redefined it to make one or two more people eligible. I took the view that there should be a broader pool and we have it extended it to members of the legal profession, solicitors and barristers, with ten years experience. Let us look at what the position would have been had I not done this. I have had some checking carried out. If we were to retain the current criteria and assume the unfortunate member of the Defences Forces who, through no fault of his own, found himself in this anomalous position last September, was ineligible which has not been decided and rerun the competition with those who could have applied, there would be in total, two, one of whom is the current military judge. To be a military judge, one has to be in practice for ten years or more. It gets even more exciting after that, as one of the two is due to retire in September. In practical terms, therefore, there would have been a selection of one.