Seanad debates

Wednesday, 10 March 2010

Compulsory Retirement from the Irish Army of Lieutenant Dónal de Róiste: Motion

 

4:00 pm

Photo of Dan BoyleDan Boyle (Green Party)
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): I welcome the Minister of State. No. 37 is a motion on the compulsory retirement of Lieutenant Dónal de Róiste in 1969. Before calling on Senator Eoghan Harris to propose the motion, I remind the House that there is a long-standing rule of the Seanad that the President should be outside and above debate in the House. Under Article 13.8.1° of the Constitution, the President is not answerable to the Seanad.

Photo of Joe O'TooleJoe O'Toole (Independent)
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That is sneaky.

Photo of Eoghan HarrisEoghan Harris (Independent)
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I move:

That Seanad Éireann:—

having considered the circumstances surrounding the compulsory retirement from the Irish army of Lt. Dónal de Róiste in 1969;

noting that the former Lt. Dónal de Róiste was denied the opportunity to rebut or answer the charges made against him at a trial or court-martial;

noting in particular that he was—

(i) refused any fair opportunity to present his case;

(ii) refused access to legal advice;

(iii) denied access to the files on his case;

(iv) never informed of the allegations made against him;

(v) never given the right to be heard in his own defence;

noting also that subsequently the law was amended ensuring that such a process cannot occur again;

and while acknowledging that, under Bunreacht na hÉireann, the supreme command of the Defence Forces is vested in the President and in view of the fact that, in 1969, Lt. Dónal de Róiste's commission was withdrawn by the President on the advice of the Government and that he was compulsorily retired from his position as a commissioned army officer;

is nonetheless, concerned at the lack of procedural fairness and the denial of the principles of natural justice to Lt. de Róiste; and

therefore, in the light of all these circumstances and in the interests of natural justice, calls on the Minister for Defence to request and advise the President to revoke and reverse the withdrawal of Lt. Dónal de Róiste's commission.

People know I am not a bleeding heart. I supported the provisions of section 31 in the Broadcasting Act when in RTE, which kept members of the provisional IRA off the air, and I support selective internment. The case of Dónal de Róiste is one that would move the hardest heart.

I will begin by saying that former Second Lieutenant de Róiste is his own worst enemy. He is a person unfitted for the Army because he would not hurt a fly. Everybody who knows him is moved by him as a guileless, innocent class of a person. He is the type who would very easily find himself in the wrong company and not know it. This happened 41 years ago and it was a different country at the time. In 1969 we entered a period of arms trials where future taoisigh and Ministers were before the courts. In retrospect, what was alleged against Lieutenant de Róiste looks like very small beer.

One of the great advantages of the Seanad is that there is privilege to say the kinds of things that are in ordinary people's minds. In the weeks in which I tried to get people to listen to me about Lieutenant de Róiste, I found the normal human reaction was that there could not be any smoke without fire. The truth is that on Friday, 25 April 1969, Second Lieutenant Dónal de Róiste was retired from the Army on advice to the President by the Minister for Defence on very thin grounds.

He was never formally charged but the scuttlebutt that went around came down to the fact that he was in O'Donoghue's pub playing the tin whistle in the company of people who were in Saor Éire. One of those people wanted to buy a car and Second Lieutenant de Róiste, who knew about transport, said there was an auction of used vehicles in Clancy Barracks. The person from Saor Éire came to the auction.

I have been reading the case files thoroughly for a long time. Although I cannot prove it, I believe it was that action of inviting people in Saor Éire to come to a barracks containing sensitive ordnance, particularly ammunition, that made the Army intelligence anxious about de Róiste as a security risk.

Mr. de Róiste did not obtain natural justice. He was apprehended and interrogated without being informed as to the nature of his offences. He was in a state of shock and trauma. To understand that shock and trauma, one would have to understand Mr. de Róiste's family. His father was one of the old guard - a de Valera supporter and a believer in law and order and rectitude in life. The notion that his son, an Army officer, would be under a cloud in any way shattered him. He never spoke to Dónal again. They were never reconciled, which is heartbreaking.

In 1969, Dónal de Róiste was part of a bohemian set that drank and played music in O'Donoghue's pub. Like many older Members of the House, I frequented the same pub and I would not have known Pádraic Dwyer of Saor Éire or what he looked like. Saor Éire was probably the lowest form of political organisation this country has ever seen and I do not blame Army intelligence for being concerned about Mr. de Róiste being in the company of its members. The late Pádraic Dwyer led the Saor Éire group which, a year after Mr. de Róiste was retired from the Army, shot Garda Richard Fallon in circumstances which remain murky. One could state, therefore, that Army intelligence was prescient in the context of its concerns regarding Saor Éire.

The fact is that Dónal de Róiste had no interest in subversion. A real subversive fired from the service of the Army would have boasted of his military record and his commitment to the Republic and would have consorted with the people to whom I refer for the remainder of his life. Everyone who knows the de Róiste family will be aware that in the intervening 41 years, Dónal had nothing to do with subversive elements. He continued his interest in spiritual matters and the Irish language. In that context, he strikes me as being a proto-member of the Anamchara group. That is the type of thing which interests him. The notion that Dónal would support subversion is a joke to anyone who knows him.

Ordinary people might ask why Mr. de Róiste did not take legal proceedings of some sort. People might also inquire as to why he was retired from the Army. In that context, there were approximately six options open to the Defence Forces in respect of Mr. de Róiste. However, they refused to take the other five options because each would have involved the holding of a court of inquiry or a court martial and charges would have had to have been laid against Mr. de Róiste. No formal charges were ever laid against him. He was interrogated, somewhat brutally, and asked if he had ever met a certain fellow in O'Donoghue's pub. Pádraic Dwyer's name was never mentioned in this regard. The documents relating to Mr. de Róiste's interrogation were not made available until 2002, more than 30 years after his being retired from the Army.

A number of questions arise in respect of this matter. Why, for example, did Mr. de Róiste's solicitor not take action in respect of the matter? It turns out that his solicitor's letter was not sent in time. When it finally was sent at some point in 1969, Mr. de Róiste had already been retired from the Army. Why did Mr. de Róiste not take a High Court case? Anyone who knows human beings will know the answer to that question. A person who comes from a strong Fianna Fáil family and whose father said that he must have done something wrong would not be in a fit condition to defend himself. Mr. de Róiste suffered from what is now referred to as post-traumatic stress disorder and could not cope with the situation in which he found himself. He was interviewed by the Judge Advocate General in 1969 who stated that Mr. de Róiste appeared to be flippant and indifferent. Anyone could recognise his state of mind at that time. In essence, he had tuned out because he was about to be fired from the Army.

The de Róiste family was not wealthy enough to send Dónal to college, so he went into the Army instead. On the day on which he was commissioned, the members of his family were extremely proud. During his interview with the Judge Advocate General, he was asked whether he had consorted with various individuals. With the exception of questions as to whether he knew a fellow named Pádraic, these individuals were never named. According to the Judge Advocate General, Mr. de Róiste could not provide any answers and appeared to be flippant and indifferent. These are the hallmarks of a person suffering from acute post-traumatic stress disorder being informed that his Army career is over and that his beloved father will be ashamed of him for the remainder of his life.

Effectively, Mr. de Róiste did nothing but nurse his wounds for almost 30 years. During the general rough and tumble of the 1997 presidential election campaign, however, Adi Roche was contacted by the Irish Examiner and other newspapers in respect of her brother. I must declare that I do not have clean hands in this regard. I was contacted by the Daily Star and asked, in my capacity as a spin doctor, what I thought about the matter. I provided what I still believe to be good advice, namely, that I thought Adi Roche was insane if she believed she could become President of Ireland in view of the fact that her brother had been dismissed from the Army by a previous holder of that office. I could not fathom why Ms Roche did not understand that.

I did not give any further thought to the matter because, like most human beings, I presumed that which is must be right. I was of the view that whatever was done must have been all right. Everyone is aware, on foot of the case of the Birmingham Six, how dangerous is such an assumption. I am convinced that I was wrong not to examine the details of the case in 1997. As Karl Marx stated, however, nothing is wasted. I remained alert in respect of this case and monitored developments. The dirty tricks campaign which Mr. de Róiste believed was perpetrated against his sister during the 1997 presidential election campaign galvanised him into taking a High Court action. In 1999, the court ruled against him on the grounds that there had been an inordinate delay in bringing proceedings. That delay was basically due to the effects of post-traumatic stress disorder. No normal man fails to take a court case for 30 years unless he is suffering from deep depression. Mr. de Róiste appealed to the Supreme Court, which upheld the High Court's decision. As a result, all doors were closed.

Mr. de Róiste took the next step by approaching a very fine investigative journalist, Don Mullan, who wrote a wonderful book, Speaking Truth to Power, about the matter. Mr. Mullan has a secondary theory that there was a cover-up involved but neither Dónal de Róiste nor I subscribe to this. The substantive case put forward by Mr. Mullan is unanswerable. I am not a lawyer and it would not be possible for me to go into the nitty gritty of the de Róiste case, which is a Kafkaesque mosaic of double-dealing, confusion and misunderstanding. I recommend, therefore, that Members read Mr. Mullan's book. However, the broad contours of the case are clear. There was a 30-year delay before Mr. de Róiste tried to clear his name. The High Court found that this delay was too long and the Supreme Court upheld that decision. In 2002, the Judge Advocate General, following the publicity generated by Mr. Mullan's book, opened an inquiry, which found that Mr. de Róiste had been dismissed on reasonable grounds. In 2005, the beginnings of a glimmer of justice began to appear when Mr. de Róiste again went before the High Court. In his decision in respect of the case, Mr. Justice Quirke stated:

By failing to provide the applicant with access to the relevant documents the JAG and the Minister deprived the applicant of the opportunity to make meaningful and informed representations to the JAG within the process directed towards the vindication of his right to his reputation and good name.

A conscious decision was made on behalf of the Minister to deprive the applicant of access to documents to which he was (then), apparently lawfully entitled. The decision was made at the commencement of a process which directly concerned the applicant and was investigating (a), an earlier decision taken by a former Minister for Defence and (b), the conduct of members of the Defence Forces.

That was patently unfair to the applicant.

There have been long delays and a continual kicking for touch in respect of this matter over the years. This matter was raised in the Dáil by Senator Boyle, when he was a Member thereof, and also by Deputies Shatter and Allen. In light of those long delays, it shows enormous moral courage on the part of the Taoiseach to answer the motion we tabled in the way he has done. Effectively, Mr. de Róiste has been offered a review. I welcome the long-belated decision to grant him that review.

Photo of Joe O'TooleJoe O'Toole (Independent)
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Hear, hear.

Photo of Eoghan HarrisEoghan Harris (Independent)
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Accordingly, I am prepared to accept the Government's amendment to the motion.

Photo of David NorrisDavid Norris (Independent)
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Well done.

Photo of Joe O'TooleJoe O'Toole (Independent)
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I welcome the Minister of State, Deputy Pat Carey. Senator Harris has been working on this matter for some time and he discussed it with me on many occasions during the past year. For both of us, it has almost become an affair of the heart. It takes a great deal of courage to place a public apology on the record in the way Senator Harris did during his contribution. The Senator is of the view that he made mistakes in respect of this issue in the past. What I like about Senator Harris, and this brought me back 30 years, is that he is still able to quote Karl Marx.

The most important aspect to recognise is that we took a great deal of time to frame this motion. The Minister of State will note that the motion does not contain allegations against anybody. No one is rushing to judgement in respect of anyone else. No reflection is cast on either the authorities or the President of the day. It is extremely important to Senator Harris and me that this be made absolutely clear. When reading the background material to this case, I was struck by a saying my grandmother used to use which goes: "Show me your friends and I will tell you who you are". Like all old sayings, there might be an element of truth in it but it rarely tells the whole story.

I would like the Minister of State, Deputy Pat Carey, to cast his mind back to the day we first met in September 1965. He was shown into room 103 or 102, I cannot recall which, and I ended up in room 120. We had many colleagues in that very lively and vibrant house; we were in the habit of bringing all types of people to our common room and we had all types of arguments. It was where I learned that the only good day was one when we all argued. One of the people in the house at the time was Conchubhair de Róiste, as the authorities called him. The Minister of State will recall that he was a colleague of ours and we knew him as Con Roche. During the course of the years 1965 to 1967 we might have had John Healy in our common room to speak with us, but characters - as we called them - also came in and out as did friends. I remember two in particular, whom we referred to as "the dog" and "the duck". The person referred to as "the duck" is the man at the centre of our discussions, Dónal de Róiste. I have to confess a personal acquaintance with the Roche family, as the Minister of State and I knew Con Roche very well and to a lesser extent we knew Dónal de Róiste.

I want to confirm, having been there, that there is no doubt there were shady characters at the time. During those years, the price of a pint was 2s 5d and I had 10s to spend on a Saturday night. That was the price of four pints on Merrion Row, in either O'Donoghue's or Teach Uí Néill across the road from it, and the 4p bus fare back to Drumcondra. All of these people were in that milieu. O'Donoghue's pub was the heart and soul of all that was going on in Ireland at the time. The Wolfe Tones, the Dubliners and Saor Éire were there as were various groups of republicans. I was as guilty by association - I do not remember if that is the case with the Minister of State - as anyone in those locations. The Minister of State understands that I am making a fair point.

What comes around goes around. The judgment I have to offer my colleagues is that I do not believe Dónal de Róiste was in any way a subversive undermining the State. Do I think he mixed in the wrong company for an Army officer? Yes, without a doubt. Were the Army authorities rightly concerned? Yes. These issues are beyond discussion so what are we speaking about? The Government's amendment is fair but I have two points to make on it. In order to know the man and make a judgment an interpersonal contact is crucial, but the amendment states the Judge Advocate General will nominate somebody to review the case and that Dónal de Róiste will be entitled to make a written submission. To get a true feel of what this is about, an engagement between the nominee and former Lieutenant de Róiste should be allowed.

My second point on the amendment is crucial. Even though it is 40 years later everybody thinks people are on trial. The Army feels that if it goes the wrong way it will reflect badly on it. Let us go beyond that; this is not what anybody is interested in. I am sure the Minister of State shares my view on this so I ask him to ensure that whoever we nominate for this job has no connection, is no way tainted by, and is no way under the influence of the Army in any way. This is no reflection on the Army.

Earlier today, one of my colleagues asked me whether it was fair to assign the attitudes, principles and mores of today to what happened 40 years ago. We have to do this regularly such as when discussing child or physical abuse. It is not fair to do so. Senator Harris and I have confined ourselves to the principles of natural justice in dealing with the matter because they would have been live at the time. We noted in particular that Dónal de Róiste was denied any opportunity to rebut or answer the charges made against him either at trial or at court martial. A court martial, being under the auspices of Army, has slightly different rules of court and perhaps slightly different burdens of proof are required. However, at least it provides a hearing. He was refused any fair opportunity to present his case at the time. He was refused access to legal advice and denied access to the files of the case. He was never informed of the allegations made against him. He was never given the right to be heard in his own defence. The law has been changed to ensure this can never happen again and in that sense we are looking at what we would do were it to happen now.

I would like this matter to be resolved without assigning blame to anybody. Time has passed; perhaps things should have been done differently but we are not saying anybody was wrong. For instance, perhaps it will turn out during the investigation that former Lieutenant de Róiste was organising an auction of Army vehicles in a Dublin barracks, which was critical in terms of the ammunition and armoury kept there, and there is a very strong possibility that the people he drank and played the tin whistle with in the pub suggested that they would go and have a look at what was for sale but were interested in gathering intelligence.

As a former Superintendent of the House stated many years ago, what this young man needed was a kick in the backside and a strong mentor or, as Senator Harris stated, he should have been told to gather evidence against the people. It should have been dealt with differently. This career went wrong unnecessarily. More than that, what concerns us is that it is a life destroyed and a family split. This hurt will not go away and I would like the Minister of State to deal with it in such a way as to relieve a hurt that has been there for more than 40 years.

Photo of Kieran PhelanKieran Phelan (Fianna Fail)
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I move amendment No. 1:

To delete all words after "Seanad Éireann" and substitute the following: -

"notes that both the High Court and the Supreme Court have rejected Mr. De Róiste's legal challenge to his compulsory retirement on the grounds of inexcusable delay on his part in bringing the challenges, accepts that it would be inappropriate for the Oireachtas to go behind these Court decisions and recognises that in these circumstances his compulsory retirement remains legally valid;

notes that at the time of his retirement, the Chief of Staff ensured Mr. De Róiste was given an opportunity to respond to the issues raised in his case; that he was interviewed by the Deputy Judge Advocate General; that he was offered the opportunity to make a statement but declined to do so; and that he informed the Deputy Judge Advocate General that he had consulted a solicitor at the time;

notes that having regard to the decision of the Minister for Defence to order a review in July 2002, the report of which was subsequently quashed by the High Court in 2005, the Government will now ask the Judge Advocate General to select a nominee to carry out a review of the documentation on Mr. De Róiste's file to determine: –

whether on the basis of the documentation and information available to the Defence Forces at the time the decision to compulsorily retire Mr De Róiste was a reasonable one;

understands that Mr De Róiste since the 2005 High Court decision has been provided with the Department's relevant documentation relating to the circumstances of his retirement; and

welcomes the fact that Mr De Róiste will now be given an opportunity to make written submissions to the review based on that documentation.".

I welcome the Minister of State, Deputy Pat Carey, and the opportunity to speak on this motion. Like many other Senators, while I was vaguely familiar with some of the broad outline of Dónal de Róiste's situation, I was not fully conversant with the particulars of it. I took the opportunity over recent days to do some reading up on the issue, in particular to read some of the interesting and detailed material written by Don Mullan on the case, both in his book and in a series of articles in The Irish Times approximately eight years ago.

Without doubt, it is a complex issue and one that has caused some pain and anguish to former Lieutenant de Róiste and his family. I was particularly struck by the letter written by Mr. de Róiste's late mother, Christina, to The Irish Times, when she was 83 years old and which was published on 20 May 2002. It stated:

I believe my son Donal is innocent. I believe he was wrongfully "retired". I believe the case against him was so spurious that he was denied proper procedures. I believe the Government may have been misled in the information presented to it by Donal's accusers and that our one-time hero, Eamon de Valera, may, in turn, have been wrongly advised.

I have read some of the material produced by Dónal de Róiste and by Don Mullan over the past decade and while I freely acknowledge that it does raise some questions relating to events in 1967 and 1969 I cannot state that I am convinced that it overturns or refutes the claims made at the time. It is worth reminding the Seanad of the timeline of events in this case, as the chronology has some importance. In June 1969, the then Lieutenant Dónal de Róiste was, on the advice of the Government, retired by the President in what was called "the interests of the service". As far as I can ascertain nothing further happened until October 1997, when Mr. de Róiste's case became the subject of media interest in the course of a presidential campaign in which his sister, Adi Roche, was a candidate. In November 1998 Mr. de Róiste initiated proceedings in the High Court with regard to his retirement. In June 1999 the High Court rejected the application for judicial review on the grounds of inordinate delay. This decision was appealed to the Supreme Court, which ruled in January 2001 to confirm the High Court finding.

In June 2002, The Irish Times published articles on the case by Mr. Don Mullan and in July 2002 the then Minister for Defence, Mr. Michael Smith, requested the Judge Advocate General to inquire into the circumstances of the retirement by reviewing all relevant documentation. Mr. de Róiste objected to the manner in which this review was conducted, particularly the absence of any referral of the documents to him until after the inquiry was complete. In July 2005 the High Court granted Mr. de Róiste an order quashing the Judge Advocate General's report. It is worth noting, however, that the substantive issue of Mr. de Róiste's retirement from the Defence Forces was not addressed by the High Court. In early 2006 Mr. Don Mullan's book on the case was published.

As I said earlier I cannot say with certainty whether former Lieutenant de Róiste was wronged back in June 1969. What I can say with confidence and certainty, however, is that military justice and discipline in the Defence Forces has moved ahead in leaps and bounds in the 40 years since Mr de Róiste's situation arose. In the past decade we have seen the introduction of representation for soldiers and officers and the formation of two important representative associations: PDFORRA and RACO. That was an enlightened and modernising decision which put the information and consultation of members of the Defence Forces light years ahead of that of many of their European counterparts. This model of representation for privates, corporals, sergeants, lieutenants, captains and commandants alike is the envy of serving soldiers in armies in places such as the United Kingdom and Portugal, to name just two. It shows an attitude to recognising the rights of serving members of the Defence Forces and the need for transparency and accountability in the running of the organisation that did not exist in 1969.

That is not the only reform. It is not long since the outgoing Minister for Defence, Deputy Willie O'Dea, brought forward the Defence (Amendment)(No. 2) Bill 2006 which significantly overhauled and reformed the existing provisions of Part V of the Defence Act 1954. Part V of the Act provided for disciplinary procedures under military law within the Defence Forces and had been in operation for more than 50 years, subject only to relatively minor revisions. The Defence (Amendment) Act 2007, which was rightly welcomed by all sides in this House, made a number of major changes. It established an independent military prosecuting authority, staffed by qualified military legal officers who now decide, as the Director of Public Prosecutions does in civil law, on all issues relating to the prosecution of offences before courts martial. It appointed a court martial administrator to manage and control the administration and business of courts martial. It established an independent military judicial office with the appointment by an independent authority of one or more military judges with appropriate legal qualifications. It scheduled the offences of a disciplinary nature that can be dealt with summarily and, something that might have been relevant in the situation in question, it gave the right in every case for a person charged with an offence to elect for trial by court martial at the outset. It gave a right of appeal to the summary court martial against a determination or punishment awarded by an authorised or commanding officer and restructured the general and limited courts martial to provide for the appointment of a court martial board, which would make findings on the facts and would have no role in sentencing.

Those changes to the Defence Act were both necessary and desirable to ensure the military law justice system is both expeditious and fair to the individual. Reforming the laws on military justice in that way has contributed significantly to the maintenance of discipline within the Defence Forces. The legislation now complies with the Constitution and, most importantly, has ensured the compliance of the system with the European Convention on Human Rights is now beyond doubt. We should bear those important reforms and changes in mind in this debate and note that the attitude to individual and personal rights in the Defence Forces has moved on considerably in the intervening decades, most particularly in the past five years.

I welcome the Government's decision to conduct another review of the relevant documentation; a review I understand will be in line with the July 2005 High Court ruling. I understand and hope that former Lieutenant de Róiste will use this opportunity to put any documentation of evidence he possesses into that process and that he will feel he has received a fair hearing. It is approximately 40 years since he was retired from the service of Óglaigh na hÉireann. It is just more than a decade since he sought to have the matter re-visited in late 1998. I hope this debate and the Government's decision to attempt again to conduct a fair review of the documentation may help bring this matter to a close for Dónal de Róiste.

I compliment Senators Harris, O'Toole and Norris for bringing the motion before the House. Senators Harris and O'Toole have put up a fantastic case for this man.

Photo of David NorrisDavid Norris (Independent)
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Hear, hear.

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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Cuirim fáilte roimh an Aire Stáit and perhaps soon to be Minister for Defence, Deputy Pat Carey. I thank Senator Harris for and compliment him on his eloquent address to the House. One cannot but be struck by the story he painted of a man who is a person of integrity who at worst would perhaps be seen to be guilty by association. The motion and the amendment before us are important because it is not just a question of Mr. de Róiste's case, it is about what we can achieve in the future.

I have listened to the story as outlined by Senators Harris and O'Toole and I have read Mr. Mullen's book, Speaking Truth to Power. Therein lies a good example of the need to look at power, to be truthful and to measure power and utilise it properly. In preparing for the debate I was struck by the response to parliamentary questions tabled by Senator Boyle when he was a Deputy, by Deputy Finian McGrath and by Deputy Bernard Allen from Cork. Reference is made in the reply to being retired from service in the Army. I am sure that is not done lightly but the procedures and processes are different now. As Senator Kieran Phelan rightly said, we now have PDFORRA and RACO which are involved in helping Army personnel to defend themselves.

I am younger than many Members present and I was not involved in public life at the time of the decision on Mr. de Róiste. I grew up in a different Ireland in the 1970s and 1980s when there was a need to protect the State and to deal with subversives who were engaged in a war against their fellow citizens. I have listened to the stories and read the articles about Mr. de Róiste. In particular I was struck in the same way as Senator Kieran Phelan by the letter from Mr. de Róiste's mother. He was a man who, as has been said, was guilty by association. That is unfair. If we learn nothing else from this case it is that we must be slow, balanced and measured in our pursuit of justice. I agree with Senator Harris. If one takes the Birmingham Six as the classic example, the comments of Fr. Paddy Hannon and the book by the former Labour MP whose name escapes me-----

Photo of Dan BoyleDan Boyle (Green Party)
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Chris Mullin.

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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-----one cannot but be struck by the need for a balanced and measured approach. I thank Senator Boyle. I welcome the amendment which made clear that the Judge Advocate General is being asked to select a nominee. As Senator O'Toole has said, it is important that Mr. de Róiste would be given an opportunity for a personal hearing. That would be a positive approach and it would offer a belated opportunity to Mr. de Róiste to put his side of the case. I accept he had the opportunity to do that previously but Senator Harris was correct in what he said about post-traumatic stress and depression. We must give Mr. de Róiste another opportunity to get due process.

While all are quick to condemn and judge, reflecting on and stepping back from this story must pose a challenge to all to avoid rushing to such condemnation or judgment. Senator O'Toole was correct to suggest we do not rush to judgment and that we avoid reflecting on the officeholders of the time. As legislators and Members of the Oireachtas, it is important to protect the integrity of all citizens and Members should be able to afford them the opportunity to defend themselves. I acknowledge there was an inordinate delay in Mr. de Róiste's reply and before the bringing of proceedings in the High Court. However, the amendment tabled to the motion gives rise to the possibility that he will be allowed the opportunity to show he was absolutely innocent, given that no criminal prosecution was brought against him, that no charge was levelled at him and that he was not guilty of any crime.

In preparation for this debate I read newspaper reports on the 1997 Presidential election campaign. In this regard, too, although Senator Harris may disagree with me, as politicians Members can learn a lesson. I am fairly good at debating and being adversarial across the Chamber but there is and can be no room in politics for the disservice done to Adi Roche during that campaign. I salute Senator Harris's courage and genuinely admire him for his actions and contribution. While I may disagree with him on economic issues, again he has shown his humanity in the House today. What happened to Adi Roche during the 1997 campaign was wrong. She is a woman and a lady of integrity. I make this point as someone who has met her and grown to perceive her to be a woman and lady of immense stature. She has become a beacon of hope and offers a vision for many, of what one should aspire to be as a citizen and a Christian. While an election campaign is one matter, to destroy someone or to do what happened to her was wrong. This issue must also be addressed.

The Fine Gael Party will be happy to support the motion and the amendment before the House. Were the Minister to allow for a personal hearing for Mr. de Róiste, it would bring the impending Judge Advocate General's review to a different level.

Photo of Dan BoyleDan Boyle (Green Party)
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I second the Government amendment. I also commend Senator Harris, in particular, as well as his colleagues among the Independent Senators, on tabling this timely motion. He has pointed out that, as a Member of the other House, I raised this issue on a regular basis. One of the more recent occasions on which it was raised in that House coincided with the 100th anniversary of the acquittal of Captain Dreyfus in France, which I found to be particularly ironic at the time. Although there was no anti-Semitism involved and there were no convulsions in national politics, there are parallels between the two cases. The idea of an individual in a military setting being denied natural justice is an obvious parallel and the raising of the case again constitutes a real attempt to address this injustice.

On a personal level, I have come to know Dónal de Róiste quite well because, following my election to the other House, he has been in regular contact with me, both personally and by e-mail. I became familiar with his life after what is euphemistically described in the motion as his retirement, or effective dismissal from the Defence Forces. While he has struggled to deal with the obvious injustice done to him, he has also lived a full, active and, in respect of service to his local community, good and prosperous life. It is of obvious ongoing concern that the injustice he has carried with him throughout his life was reflected in his relationship with his late father. As has been observed, it was a difficulty his mother tried to alleviate when she was alive. It also has been pointed out that the matter was brought up unnecessarily and, I believe, in an act of base politics in the 1997 Presidential election campaign.

Photo of David NorrisDavid Norris (Independent)
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Hear, hear.

Photo of Dan BoyleDan Boyle (Green Party)
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However, the issue at hand concerns the rights and entitlements of Dónal de Róiste. Through the court decision made a number of years ago, the ultimate redress must be perceived to be effective. While one cannot prejudge a process, it is to be hoped that, if given a proper context, there will be only one obvious result from such a process. I sense from their contributions that all Members wanted this issue to proceed to what should be a natural conclusion, given the obvious need for natural justice, the framing of the Government amendment regarding the independence in the selection of a third party by the Judge Advocate General and given the placing of a particular time dimension on the process. As Senator Harris so eloquently pointed out, this issue pertains to events that took place 41 years ago. The process must be time-defined, within the remainder of this year or a 12-month period. I look forward to the Minister of State's response in that regard.

Moreover, this should be as open a process as possible, which should allow both a written submission by Dónal de Róiste and, as Senator Buttimer indicated, the opportunity to interact with the process. Members must contribute anything that will alleviate future doubt about whether there is natural justice in this case to ensure the injustice does not continue for a moment longer.

I do not believe the audible sound interference is being caused by my mobile phone.

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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It is Twitter.

Photo of Dan BoyleDan Boyle (Green Party)
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Everyone has his calling.

I point to the work, in particular, of the journalist and author, Don Mullan, through both his articles and the publication of his book on the subject a number of years ago. As Senator Harris stated, he has propagated a conspiracy theory that parallels the injustice done to Dónal de Róiste. In common with the Senator, I do not believe it really matters whether this is true because the injustice of the original hearings is enough. However, I refer to one element that has prolonged the case unnecessarily. While again taking the lead from Senator O'Toole, that stating this is not to point fingers or name names, this pertains to a constant reluctance one sees in many facets of Irish life when those in authority are questioned. I refer to the ability to admit mistakes or change when errors have been made. Unfortunately, this has been as true of our military hierarchy as in other facets of Irish life.

The audible sound interference certainly is not being caused by my mobile phone.

Photo of Kieran PhelanKieran Phelan (Fianna Fail)
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It is not my telephone either, which is in my office.

Photo of Dan BoyleDan Boyle (Green Party)
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Throughout a period during which the original personnel such as the Army Chief of Staff and other senior officers have long since been succeeded in their positions by others, there was a natural reflex to ensure the original decision stood and was not challenged or questioned. If the motion achieves anything----

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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): Someone has a telephone in the vicinity. We will be obliged to scan Members on the way into the Chamber in future.

6:00 pm

Photo of Dan BoyleDan Boyle (Green Party)
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That would be fair enough.

If the motion achieves anything, it will be a step forward in respect of the justice now merited by Dónal de Róiste and in a further peeling away of an attitude that, unfortunately, still obtains in Irish life to the effect that authority cannot be questioned and authority lacks the grace to change and be questioned.

I again thank Senator Harris for tabling the motion and Members for the support it has been given.

Photo of David NorrisDavid Norris (Independent)
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I congratulate Senator Harris on raising this matter and, particularly, on scoring a notable triumph. Senator Boyle raised this issue in the Lower House, as I did several times in this House, but neither of us was successful in having the case re-opened. Senator Harris, through his motion and ably supported by Senator O'Toole, has handled the issue in such a particular manner that he has been successful.

We should put on the record our recognition of the important role played by the Taoiseach and the Minister of State, Deputy Pat Carey. This matter could easily have been brushed under the carpet again. These steps took moral and political courage and decency on the part of the Government. I am pleased that Senator Harris has accepted the Government's amendment, which is a major step forward. Securing the re-opening of a case that was, in my opinion and that of many others, a travesty of justice is a considerable triumph for Seanad Éireann. The first note must be a positive one, a note of congratulations to Mr. de Róiste.

I compliment Senator Harris on his openness about his marginal involvement in the 1997 presidential election. He did no wrong. When he was contacted by a newspaper, he told the truth. I have no doubt that it was unpalatable to the de Róiste campaign and that sinister forces were around, but they did not include Senator Harris. Rather, they were the major parties, which behaved in a disgraceful way. They hauled this alleged skeleton out of the closest and dangled it in front of the hungry media. I agree with Senator Buttimer that Adi Roche is a remarkable, fine, talented and courageous woman. The media fomented division in the Chernobyl Children's Project. I do not want to strike too much of a negative note because this is a positive evening, but the 1997 events are remembered and must not be allowed to sully any future presidential elections. The motion and its amendment are framed in a careful, well crafted and judicious way, as were the speeches of Senators Kieran Phelan and Boyle.

The facts are stark. Former Lieutenant de Róiste committed no crime and was neither arraigned on nor accused of a crime. He was denied access to legal representation and the possibility of representing himself. He was denied access to documentation that would have been helpful. Each of his human rights was trampled. One cannot argue with the Army, which had the right at the time to do what it did. What it did was morally wrong, but it was within its legal rights.

It has been stated by both sides of the House that this situation could not recur, but I am sorry to tell them that they are wrong. This situation, described so eloquently by Senator Harris as Kafkaesque, is occurring repeatedly on the instructions of Ministers against asylum seekers, not Irish citizens. I have raised a number of cases in which people applied for asylum. The principle is exactly the same. They were denied, but they were told that they could appeal. To do so, they were told that they would need to include the reasons for the original refusal. When they asked to be told the grounds for their refusals, they were denied those reasons. It is the same thing, in that they were tried and convicted behind closed doors on rumour, gossip and scandal.

Each of us could be convicted in this way. As the Minister of State indicated, Senators Harris and O'Toole mix in bohemian company. They could have been held guilty by attainder. All of us could. God knows, I was never a singer of republican ballads or a fan of the Wolfe Tones, but I knew Ronny Drew well and I occasionally attended O'Donoghue's. Among my close personal friends were two extraordinarily talented artists who were very much on the fringes of the most extreme republican movements, including Saor Éire. I disagreed with and disdained their views, but they were valued friends and fascinating people. Could I have been held guilty of the same offence? Perhaps I was foolish to mix in bohemian circles, but it is what literary people did in those days.

It was unfair and wrong that former Lieutenant de Róiste was found against in that manner and summarily cashiered out of the Army. The only parallel I can think of would be the unfrocking of a priest, which occurs rarely despite the possibility of there being many times in which it should happen. As a result, he was not invited to reunions of the mess. He told me this because I have been involved in the case and have discussed it with Senator Harris in recent months. Former Lieutenant de Róiste was frozen out. Tragically, his family was divided and his relationship with close family members fractured. It must have been appallingly painful for him to become a negative element in his sister's presidential campaign.

I share the admiration for Mr. Don Mullen, who wrote a good book on the Dublin-Monaghan bombings.

A point has already been touched upon, but I wish to emphasise it. The provisions in the Government's amendment are fair and reasonable. The amendment calls for "the Judge Advocate General to select a nominee to carry out a review of the documentation on Mr. de Róiste's file to determine". This sounds like an academic, legalistic exercise, which is appropriate, but Senators Harris and O'Toole have superbly pointed out that there is a human element. Shocked by his dismissal from the Army, former Lieutenant de Róiste entered an unusual mental state and was not capable of dealing with the situation. He is a highly artistic and unusual person, perhaps an inappropriate person to have chosen a career in the Army. It is possible that, unless the strong suggestion that former Lieutenant de Róiste be interviewed is included in the brief of the Judge Advocate General's nominee, the process could remain at the level of an arid and futile legal exercise. I hope not, as I am sure that whoever is chosen will be a person of eminence and intelligence, but will the Minister of State ensure that this distinguished person will be requested to include a direct interview with former Lieutenant de Róiste among his or her activities so he or she can get a feeling for Mr. de Róiste's personality and the case's background?

Photo of Pat CareyPat Carey (Minister of State (Government Chief Whip), Department of An Taoiseach; Minister of State, Department of Defence; Dublin North West, Fianna Fail)
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): First, I apologise to the House for delaying Members, but procedural matters needed to be addressed. Second, I compliment Senators Harris and O'Toole and everyone else on their contributions. I must acknowledge that, while I was reading this case's background information in recent days, I came across the nickname the Duck. I wondered whether there was a connection between that person and the person I used to see around the place. I would have met the Dog and the Duck, the two characters mentioned by Senator O'Toole, although I cannot recall making a great impression on them or they on me. At a time when the hostelries on Merrion Row and elsewhere were more attractive than the lecture theatres in Earlsfort Terrace, I must have encountered the individual in question.

A Leas-Chathaoirligh, it is appropriate to place on the record of the House the appreciation of all the citizens of this country for the very fine manner in which members of the Defence Forces have carried out their duties down through the years, often in trying and difficult times. All too often we fall into the trap of judging an event which took place many years ago by the situation and circumstances pertaining to the current time. The events we are discussing occurred some 40 years ago and have been considered on numerous occasions since then. At all times, it has been the view of successive Governments that these matters were dealt with properly and appropriately and in accordance with the Defence Force Regulations extant at the time.

Ex-Lieutenant Dónal de Róiste was retired by the President, acting on the advice of the Government, with effect from 27 June 1969. This was in accordance with section 47(2) of the Defence Act 1954, which provides that "an Officer of the Permanent Defence Forces may for any prescribed reason be retired by the President". Defence Force Regulation A.15 (Officers), section 18(l)(f) prescribes that "an officer of the Permanent Defence Force may be retired pursuant to subsection 47(2) of the Act, in the interests of the service".

The events leading to the retirement of Mr. de Róiste happened at a time of a major threat to the security of the State and when those charged with protecting that security were faced with very difficult decisions. It is impossible for us today to put ourselves into their shoes. Many of the people involved are now dead and cannot defend their actions or offer us the benefit of their direct insights, knowledge and information. We can only depend on the information they have left us contained in files and memos. However, from those files and memos one can have no doubt but that those charged with the security of the State acted out of the highest standards of integrity, consideration and justice, in the best interests of the State and out of a sense of public duty.

The continued assertions by Mr. de Róiste, that the reasons for his retirement from the service were never made clear to him are difficult to comprehend, given the facts of the case. Specifically, the records show that, prior to his retirement, Lieutenant de Róiste would have been made aware, in some considerable detail, of the circumstances giving rise to his retirement in June 1969. The records also show that he was given every reasonable opportunity to respond to the issues raised and failed to do so. He was interviewed by officers of the intelligence section of the Army on three separate occasions in April 1969 in relation to a number of serious matters which had come to their attention. He was given the opportunity to respond to these matters thereafter. Having said he would submit a statement in response to the matters put to him by the intelligence section of the Army, he then failed to do so. A full month passed without any response from Lieutenant de Róiste. At that stage, in the absence of any response, he was given a further opportunity to explain his position when he was interviewed on two occasions by the Deputy Judge Advocate General, who had been requested to advise on the matter.

On the occasion of the first interview with the Deputy Judge Advocate General, the details and the seriousness of the matters relating to his conduct were laid out before him. The Deputy Judge Advocate General was so concerned with his lack of any reasonable response that he explained a second time to Lieutenant de Róiste the seriousness of his situation, including explaining to him the terms of his oath as an officer. The Deputy Judge Advocate General then advised Lieutenant de Róiste to go away and consider his position and return the following morning with his statement. At the request of Lieutenant de Róiste, the Deputy Judge Advocate General confirmed to him that he could take legal advice. Given that Mr. de Róiste asked this question, he clearly was in no doubt as to the gravity of his situation. Yet, on returning the following day to see the Deputy Judge Advocate General, he advised that he would make no further statement. I must say that at that stage, in the absence of any explanation of his situation, and indeed an outright refusal by the officer to provide any such explanation, the authorities were left with no alternative but to recommend to the then Minister that Lieutenant de Róiste should be retired in the interests of the service.

I should also point out that it was always open to Mr. de Róiste to take an action under section 114 of the Defence Acts for a redress of wrongs - a well known and well used provision for members of the Defence Forces who feel wronged - or, upon notice that he was being retired from the Defence Forces in the interests of the service, to take judicial review proceedings in the High Court to challenge that decision. He took no such action under either provision at that time and not till 1998, almost 30 years later.

I will now set out in some detail the circumstances pertaining to this case. The situation presented to the military authorities at the time was very serious. A report was received by the Director of Intelligence in April 1969, from a confidential and most reliable source, to the effect that the then Lieutenant de Róiste was in the company of members of an IRA splinter group, which included an individual on remand for offences related to what was understood to be a subversive incident where gardaí were fired upon. Subsequently, he was seen talking to this individual at an auction of surplus military vehicles in Clancy Barracks, Dublin, on 23 April 1969. At that time Clancy Barracks was the principal ordnance base for the Defence Forces and a highly sensitive defence installation.

At the first interview held on 25 April 1969 with intelligence section, Lieutenant. de Róiste was informed by the military authorities that they wished to inquire about two civilians he had met at the auction at Clancy Barracks on 23 April 1969. Lieutenant de Róiste gave an account of his acquaintance with these individuals. It is clear from the report of the interview that Lieutenant de Róiste was aware of the fact that the main individual involved, whom he was socialising with, was an undesirable, was engaged in questionable and probably subversive activities and had been charged in relation to a shoot-out with gardaí in Ballyfermot.

The second interview was held three days later. On arrival at the second interview with intelligence section on 28 April 1969, Lieutenant de Róiste was informed by the military authorities that this was a continuation of the previous interview and that the military authorities wished to check on some points made by him at this first interview. The interview followed on with confirmation of the details from the first interview, including his socialising with a person engaged in questionable activities and that he understood that the person was under surveillance.

At the third interview with intelligence section on 30 April 1969, Lieutenant de Róiste gave further details of an individual he had met. At the conclusion of the interview, he indicated he wished to submit his own account of the matter in writing. He was advised by the military authorities that he could do so if he wished and if he did submit one that it should be through the Officer in Charge of the Western Brigade. No such statement or account was received from Lieutenant de Róiste.

It is notable that, despite his prior knowledge regarding the individual in question, the security situation then pertaining in the country, and his obligations as an officer to bring such matters to the attention of his superiors, Lieutenant de Róiste did not bring any of these matters to the attention of his superiors, nor did he desist in having contact with the said individual.

It is clear from the information on the files that Lieutenant de Róiste was given some time and opportunity to submit his own account of these matters and that the authorities took no precipitative action. Instead the matter was referred to the Deputy Judge Advocate General to advise on the matter. The Deputy Judge Advocate General interviewed Lieutenant de Róiste on two separate occasions, that is 28 and 29 May 1969.

At the first interview with the Deputy Judge Advocate General held on 28 May 1969, Lieutenant de Róiste was informed that the General Staff had called the Deputy Judge Advocate General to advise on the matter. The Deputy Judge Advocate General informed Lieutenant de Róiste that he had been reluctant to do anything since Lieutenant de Róiste's interview with intelligence section on 30 April last, where he had indicated he would submit a statement on the matter, until he, Lieutenant de Róiste, had been given the opportunity of submitting any statement he wished to make. Lieutenant de Róiste indicated to the Deputy Judge Advocate General that, after his final interview with the intelligence section on 30 April, he had consulted his solicitor. He informed the Deputy Judge Advocate General that his solicitor had undertaken to write to the director of intelligence and the officer commanding, Western Brigade. The Deputy Judge Advocate General indicated to Lieutenant de Róiste that up to the current date - 28 May 1969 - no letter had been received from his solicitor.

The Deputy Judge Advocate General noted that Lieutentant de Róiste did not appear overly concerned about his situation and, therefore, proceeded to take him through his various interviews with intelligence section. When Lieutentant de Roiste indicated to the Deputy Judge Advocate General that he was not aware of what he was guilty of, the Deputy Judge Advocate General went through the reports a second time in the minutest of detail with him. The Deputy Judge Advocate General reported that Lieutenant. de Róiste's answers were, in some instances, evasive and, in others, flippant. The Deputy Judge Advocate General reported that he had informed Lieutentant de Róiste of the seriousness of the situation. The Deputy Judge Advocate General read over the oath on commissioning as taken by Lieutenant de Róiste and indicated to him that the reports all seemed to suggest he was not being faithful to that oath.

The Deputy Judge Advocate General noted in his report that he had advised Lieutenant de Róiste to go away and give serious consideration to the situation and that he could contact him the following morning with his statement. Lieutenant de Róiste inquired as to whether there would be any objection to him consulting his solicitor. The Deputy Judge Advocate General made it clear to Lieutenant de Róiste that there would be no objection to such a course of action. Any officer, in this case a relatively junior officer, having been summoned to meet the most senior legal officer in the Defence Forces, being informed that the meeting was taking place at the direction of the general staff and then being told to go away and consider his position, could be in no doubt as to the seriousness of his situation. The fact that the officer asked if he could take legal advice would indicate that he himself understood his predicament and the need to respond fully and promptly to the matters put before him.

Lieutenant de Róiste attended for his second interview with the Deputy Judge Advocate General on the following day, 29 May 1969, and promptly informed the Deputy Judge Advocate General that the matter would not take long, as he would not make any further statement and then left. A letter, dated 30 May 1969, was subsequently received by the Chief of Staff at Army headquarters from Lieutenant de Róiste's solicitors, indicating that they were acting for Lieutenant de Róiste and requesting to know what charge, if any, was being preferred against their client. There is no record on the file of any response issuing to this letter or to any follow-up correspondence from the solicitors. On 26 June 1969 Lieutenant de Róiste was informed by letter that he was to be retired with effect from 27 June 1969.

It was always open to Mr. de Róiste to take an action under section 114 of the Defence Acts for a redress of wrongs or, upon notice that he was being retired from the Defence Forces, to take judicial review proceedings in the High Court to challenge that decision. He took no such action under either provision at the time and did not do so until 1998, almost 30 years later. Clearly, Mr. de Róiste was fully advised in the course of a number of interviews of the issues of concern to his superiors. Clearly, he had full knowledge of the gravity his situation and failed to respond to the issues raised with him, despite being offered every opportunity to do so, including through appropriate and timely legal action. Mr. de Róiste obviously had ongoing contact with his legal representatives in the immediate aftermath of his retirement, as two further letters were received from them. It is noteworthy that

the only representations made by the solicitors acting on his behalf in these letters related to his gratuity. No reference was made to the substantive issue of his retirement.

Mr. de Róiste initiated proceedings in the High Court in November 1998 regarding the circumstances of his retirement almost 30 years earlier. The High Court rejected his application for judicial review in June 1999 on grounds of inordinate delay in the bringing of the proceedings. He appealed in September 1999 to the Supreme Court which in January 2001 upheld the High Court's decision.

In early July 2002, arising from a newspaper feature article on the case published on 29 June 2002, the then Minister for Defence requested the Judge Advocate General to examine and to review the case. The Judge Advocate General, a civilian barrister, carried out a detailed examination and review of all the historical documentation relating to the decision to retire the individual concerned, by reference to the entirety of the Department of Defence and military files on the matter. Her report was submitted to the then Minister in mid-September 2002 and published in October 2002.

In December 2002 Mr. de Róiste applied to the High Court for an order quashing this report by the Judge Advocate General. The High Court found in favour of the applicant for reasons enumerated in the text of the High Court judgment on his application. The High Court judgment of 27 July 2005 related only to the report completed by the civilian Judge Advocate General in September 2002 and, specifically, not to the original decision to retire Lieutenant de Róiste. Mr. Justice Quirke concluded his judgment by stating, "The decision made in 1969 to recommend the Applicant's retirement from the Defence Forces remains unaffected by any Order made in these proceedings." It should be emphasised, therefore, that the High Court judgment in the matter of the report of the Judge Advocate General specifically related to the actual procedures utilised by the Judge Advocate General in the course of her review and examination of the matter in 2002 and the release by the Department of Defence of certain documents to Mr. de Róiste only after completion of the report. It should also be noted that Mr. de Róiste specifically did not seek an order for mandamus from the High Court and, therefore, did not request the court to remit the matter or direct a resumption of the Judge Advocate General's original inquiry or to direct that a new inquiry be held by the Judge Advocate General or any other person. Such a course of action was open to him but was not taken.

Mr. de Róiste applied to the military authorities in May 1998 under the provisions of the Freedom of Information Act 1997 for access to copies of all documents relating to his retirement from the Permanent Defence Force and his period of service in the force. Without going into all the details, I understand that in July 1998 an appeal was lodged by Mr. de Róiste in the case with the Office of the Information Commissioner. Such appeals are a matter for this office. However, I also understand the case was suspended in July 1998 at the request of the applicant's then legal representatives and that it was subsequently discontinued by the Information Commissioner's office in 1999 owing to the non-pursuance of the matter by the individual concerned and his legal representatives at the time.

On 17 July 2001 Mr. de Róiste made a further freedom of information request to the military authorities in relation to the records relating to his period of cadet training. These records were released in full by the military authorities, although I again understand the applicant submitted an appeal on this decision to the Information Commissioner.

Given the serious nature of the scenario presented to the military authorities in 1969 and in the absence of a response from Lieutenant de Róiste to the matters put before him, they were of the opinion that it would be contrary to the interests of the Defence Forces and the State to retain him in service. I am satisfied that Mr. de Róiste's case was dealt with in a manner consistent with the Defence Forces regulations extant at the time. I am also satisfied that he was given every opportunity to present his case, having had three interviews with military intelligence and two with the Deputy Judge Advocate General. It is clear he was made fully aware of the gravity of his situation. He was afforded every opportunity and time to respond to these issues and provide written statements, which he failed to do. He was not precluded from receiving professional legal advice and did so during the events leading up to his retirement.

Notwithstanding the fact that Defence Forces Regulation A.15 section 18(1)() was amended in 1985, some 16 years after Lieutenant de Róiste was retired, to read: "Any officer shall not be recommended for retirement for misconduct or inefficiency or in the interest of the service unless or until the reasons for the proposed retirement have been communicated to him and he has been given a reasonable opportunity of making such representation as he may think proper in relation to the proposed retirement", the manner in which his retirement was dealt with at the time was consistent with the later amendment. The decision to recommend his retirement was taken only after detailed and due consideration. I am satisfied Mr. de Róiste was afforded due process in all aspects of the matter.

A decision to retire an officer in the interests of the service is only taken for the most compelling reasons. Given that the Government decision and the advice to the President concerned military security, I am satisfied the matter was handled in an entirely appropriate and proper manner. I am also conscious of the fact that a previous Minister for Defence requested a review of the documentation to be carried out in 2002 and that for reasons which are set out in its judgment, the report of the review was quashed by the High Court. Having considered the matter in some detail, the Government has decided to undertake a further review of the documentation on Mr. de Róiste's file in a manner which addresses the considerations set out in the High Court judgment of 2005 to determine whether, on the basis of the documentation and information available to the Defence Forces at the time, the decision to retire Mr. de Róiste compulsorily was a reasonable one. I expect the review to be completed within the current year.

The Government is happy to offer Mr. de Róiste the opportunity to make written submissions to the review based on the documentation relating to the circumstances of his retirement, which has been made available to him. On that basis and on the basis of all the information I have imparted to the House today, I commend the amendment to the House.

A number of matters were raised by speakers in the course of the debate, which I will bring to the attention of the Taoiseach and Minister for Defence. We will obviously take account of what has been said here.

Photo of Dominic HanniganDominic Hannigan (Labour)
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I hate to be the one to break the spirit of bonhomie and agreement in the House but I wish to say that I am a little disappointed that I am only getting to speak at this point. We all have to organise business around the House. I had expected to speak on this motion about a half an hour ago and realise that three Independent Senators have spoken before me. I request that the Leader examine the way we order our business in future.

Acting Chairman:

The Senator should address the matter before the House.

Photo of Dominic HanniganDominic Hannigan (Labour)
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I intend to, but I want to make the point that as a result of that I am unable to stay to speak for the eight minutes I have been allotted. Consequently, I will have to be brief because of the way the business has been ordered.

Acting Chairman:

The Chair has made the decision.

Photo of Dominic HanniganDominic Hannigan (Labour)
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I will now turn to the issue in hand. I wanted to make that point and I am grateful to the Acting Chairman for allowing me to so do. I thank the Minister of State for a comprehensive summary of the situation. I have gained a lot of knowledge from listening to his contribution and from his explanation of this case. Some 30 years on it is difficult to look at a case afresh and to work out what is right and what is wrong.

I noted three points in the Minister of State's contribution to which I wish to refer. He said he is satisfied that Mr. de Róiste's case was dealt with in a manner which was consistent with the Defence Forces regulations extant at that time. Second, he said he is satisfied that Mr. de Róiste was afforded due process in all aspects of the matter and,third, he said he is satisfied that the matter was handled in an entirely appropriate and proper manner.

If there is any doubt that a miscarriage of justice has been carried out, it is essential that we examine that and reconsider the evidence available. I welcome the Government amendment and the provision in it that it will take further submissions on this case. If a miscarriage of justice has occurred, we need to put it right. I will conclude on that point because of the shortage of time available to me.

Photo of Brian Ó DomhnaillBrian Ó Domhnaill (Fianna Fail)
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I listened to the debate with keen interest and I commend Senator Harris on bringing forward this motion before the House. Obviously, 1969 is quite few years ago given that I was not born then. Having read through some of the information available on-line and in the Library on this case in recent days, I noted that this issue must have been a cause of great of concern to Mr. Dónal de Róiste, Donal Roche, during the past 41 years. Having examined the case, I noted that protracted discussions took place between Dónal de Róiste and the Defence Forces at the time. While it is not clear to those of us looking at this case from the outside what the circumstances were in terms of his early retirement from the Defence Forces, it is clear that a process was followed at the time, but it may have failed in terms of the outcome desired by Mr. de Róiste.

He was interviewed by officers of the intelligence section of the Army on three separate occasions in April 1969 on the matters discussed in the House. On the third of these interviews on 30 April 1969, he volunteered to submit a statement on the matters raised but did not do that at the time for one reason or other. He is the only person who could answer why he did not submit the requested documentation.

He was interviewed subsequently personally by the Deputy Judge Advocate General of the Defence Forces on 28 May and again on the 29 May 1969 and was informed, in some considerable detail, of the issues that were the basis for the cause of concern at the time. He received confirmation from the Deputy Judge Advocate General that he was free to consult a solicitor. However, while he was afforded the opportunity to make a further submission or statement to the military authorities, he indicated he would not be doing so at the time. A process was established at the time but perhaps he thought it better not to submit such documentation. Given the serious nature of the situation presented to the military authorities, from reading some of the information and documentation that is available it appears to be the view that the service considered it was contrary to the interests of the Defence Forces in the State at the time and, therefore, Mr. de Róiste was retired.

Reference was made to the 1997 presidential election and what came out of the woodwork at the time. I join other speakers in condemning the nature of the press coverage at the time. It was unfair to the candidate concerned and to her family, including Dónal de Róiste. While I do not know him personally and do not have any link with him, even though the issue was brought to the High Court and to the Supreme Court and a judgment was made in the favour of the State, if there is a perception that there was miscarriage of justice or that the requested retirement was incorrect, it is appropriate for the Government to bring forward this amendment to the motion that will provide an opportunity for a review of the documentation. I very much welcome and support such a review of the documentation. It provides one more opportunity to Dónal de Róiste to bring forward any additional documentation and information he may have which may allow the State to investigate this matter further. Even though he was allowed the opportunity to do that in 1969, for one reason or another he did not avail of it. He is now being given an additional opportunity by the State and this will provide an opportunity for him to bring forward once and for all information which may be of assistance to him in clearing up some of the issues that were raised.

Had Senator Harris and the other Independent Senators not tabled this motion, that opportunity may not have been provided. Therefore, I commend them on so doing and it is appropriate they did so. With the opportunity now being provided by the Government that the Judge Advocate General will be asked to select a nominee to carry out a review of the documentation, I hope Mr. de Róiste will make a submission which could form the basis for any opinion or decision that would be formed as part of that review.

Some progress has been achieved in this debate. The matter has been discussed in Seanad Éireann. Senator Harris has been responsible in accepting the Government's amendment to the motion. I hope this process will provide the required opportunity and perhaps this House will have an opportunity to further scrutinise at a later date progress that can be made on this case.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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I welcome the Minister of State to the House. I congratulate Senator Harris, ably assisted by Senator O'Toole, on tabling this motion. We have had a very interesting debate on this subject. If I cast my mind back to 1969, I was a teenager in second year in secondary school in Ballinafad college, which was a day school and a boarding school run by the SMA Fathers. It had some students from Northern Ireland who were known as refugees because of the Troubles which had started in the North.

The world today is a very small place but at that time, it was as if Northern Ireland was a million miles away, even from County Mayo. It was so far removed from people in County Mayo, which was only a stone's throw from Northern Ireland. I am sure Northern Ireland was at least a million miles away from where Lieutenant de Róiste's was brought up in County Tipperary and, after that, in County Cork. To a large extent, we did not know what was happening in Northern Ireland, nor did our parents, because it was like a different country, even though it was part of our native land.

This is an amazing case and it would seem an injustice was done. That is why I compliment Senator Harris on tabling this motion, with which we agree. He has accepted the Government amendment, which we also accept. I congratulate the Taoiseach, who is acting Minister for Defence, on tabling the amendment.

It would seem Lieutenant de Róiste was a very naive young man. He brought a person who, according to the information we have, was a hardened criminal to Clancy Barracks. It was a funny place for the Army to have an auction if it was not going to scrutinise the people who went to it, in particular if it knew a hardened criminal was going. Obviously, it knew he was there and in the company of Lieutenant de Róiste.

I believe Jim Mansfield bought all the equipment used in the Falklands War and subsequently auctioned all of it on the docks in Liverpool. People from all over the world went to that massive auction. I do not know how the British Government disposed of the equipment to Mr. Mansfield or how he bought it but all those people were not brought into a place like Clancy Barracks, which was described by the Minister of State as the principal ordnance base for the Defence Forces and a highly sensitive defence installation, to view the equipment.

Perhaps the Army was right that Lieutenant de Róiste was a naive young man and this individual, with whom he was hanging around, was able to get information from him and perhaps he was a risk to the security of the State at the time without him knowing it. However, it would seem he was never really told about this.

Were soldiers at that time warned by their supervisors as to the dangers of associating with particular people? Gardaí and members of the Defence Forces at that time were all members of and ran GAA clubs. They ran hurling and football clubs throughout the country and I have no doubt there were people in those clubs who were involved with the IRA, Sinn Féin and so on. There is no doubt gardaí and members of the Defence Forces were mixing with these people.

Senator Harris has made a very compelling case in regard to an injustice done. The Army believes it was right but the Government is making the right decision to carry out a review. As Senator O'Toole said, I hope the person put in charge of the review is truly independent and that this case can be brought to a conclusion.

Senator Kieran Phelan read out the very moving letter written by Lieutenant de Róiste's late mother. As Senator Harris said, Lieutenant de Róiste was retired but he was effectively thrown out of the Army. I imagine there was a stigma attached to that at the time. Getting thrown out of the Garda or the Army was like young girls getting pregnant in that people turned their backs on them and that is what happened in this case.

As Members spoke, I wondered whether Lieutenant de Róiste went to his local Deputy or priest to put his case. At that time, people went to the parish priest or the local curate or to a Deputy. It appears he got legal advice but it would seem the legal advice comprised only one letter. The other two letters concerned his retirement pension, gratuity or whatever he was entitled to.

He was a naive young man who, as a speaker said, got caught up in Irish traditional music and who could have been easily led. Senator Harris said he was a man who would not harm a flea, which I believe. I am delighted Senator Harris is accepting the amendment tabled by the Government and that an independent person will be appointed who will report back. I hope we can get closure to this case.

Photo of Pearse DohertyPearse Doherty (Sinn Fein)
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Ní bhainfidh mé úsáid as an t-am ar fad atá agam, mar tá cruinniú eile agam. Ba mhaith liom mo thuairimí a nochtadh don Seanad agus dul ar an record i dtaobh Dónal de Róiste agus an tacaíocht atáim ag tabhairt don rún a chuir an Seanadóir Harris faoi bhráid an Tí. Cuirim fáilte roimh an leasú fosta. Tá sé contráilte, i ndiaidh 40 bliain agus níos mó don éagóir seo a bheith déanta, go bhfuil sé suas chuig Seanadóirí le rún a chur os comhair an Tí sé sa dóigh agus go mbeidh fiosrúchán neamhspleách againn ar na doiciméid a bhaineann leis an cás seo. Níl dabht ar bith go bhfuil Dónal de Róiste ag iarraidh a ainm a ghlanadh le tamall fada anois agus go bhfuil cúl tugtha ag an Rialtas ar an gceist sin.

I support the motion and welcome the amendment and the review of the documentation on Dónal de Róiste's case, which will be carried out. Dónal de Róiste was dismissed from the Defence Forces without charge, court martial, trial or due process of any kind. It should not have happened in the first place. It was a dismissal on a spurious basis which amounted to the charge of guilt by association because he was alleged to have been seen in the company of members of a republican splinter group, Saor Éire. We have heard the real reasons behind it, in particular in Mr. Mullan's book, that it may have been because of Dónal de Róiste's refusal to support a civil court case involving a senior officer responsible for a drink driving incident.

It is important to note that it is more than 40 years since Dónal de Róiste was dismissed from the Defence Forces without charge. After all his efforts to clear his name, it is wrong that a Member of the Seanad must table a motion in Private Members' time to get some movement on a case which is a miscarriage of justice. Dónal de Róiste was not given an opportunity to clear his name and was wrongfully dismissed from the Defence Forces. Persons in such circumstances should not have to rely on politicians whom they know are in a position to table motions on their case.

I am pleased Senator Harris tabled the motion as I know and it is widely accepted that he was the source of the information which resulted in the furore at the time of the 1997 presidential election. I am glad there has been an acknowledgement in this matter. Perhaps the Senator is trying to heal the wounds of that time.

Photo of Eoghan HarrisEoghan Harris (Independent)
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On a point of order, that is simply not true. Senator Norris acknowledged that, as a spin doctor, I was simple asked to give a comment. The campaign against Adi Roche came from other quarters.

Photo of Pearse DohertyPearse Doherty (Sinn Fein)
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It is widely accepted but whether it is true is another matter. I did not say it was a factual truth but that it is accepted. I think the Senator understands that this is something he needs to do to clear his name.

On the issue, it is important that the motion has been tabled and we are seeing some movement on the Dónal de Róiste case. At the time, there was paranoia in the political establishment in this State and anti-republican hysteria was developing. This was also evident in the campaign launched against Adi Roche during the presidential election of 1997 when Dónal de Róiste was tied in with Ms Roche's campaign.

Justice must be done on this issue and must not be long-fingered in response to a motion tabled in this Chamber. In 2006, the chairperson of the Green Party, on which the Government depends, called on the Minister for Defence, Deputy O'Dea, to issue an apology to Dónal de Róiste. Since the resignation of Deputy O'Dea from the Government, responsibility for defence lies firmly in the lap of the Taoiseach. I hope the commitment given in this debate will result in real movement and has not been made to spare the blushes of Senator Boyle. I hope also that the review will be completed within a short timeframe. I welcome the amendment and commend Senator Harris on his motion.

Photo of Eoghan HarrisEoghan Harris (Independent)
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I misspoke earlier when I stated Dónal de Róiste was retired on 25 April 1969. The correct date was 27 June 1969.

Although politics gets a bad press, this has been a good day for politics. I thank the Minister of State and Senators Kieran Phelan, Norris, O'Toole, Ó Domhnaill and others for their contributions. I was particularly struck by Senator Burke's contribution in creating a picture of the world that lies between the lines of, as it were, the official record, of which the Minister of State's contribution reminded us. Reading through his statement is like reading through the files in the case. Everything is there except the truth. It is like statistics. When taken out of context they lie and do not tell the truth. Facts are the same in the sense that one can have all the facts but unless they are contextualised, they do not tell one the truth.

On the question why Dónal de Róiste did not do something with his solicitor, Don Mullan has this to say:

As previously discussed, Roche went to a solicitor on 1 May 1969, the day after the 'third interview' [with the Deputy Judge Advocate General] and the advice given was to 'do nothing' until the solicitor wrote and ascertained what was happening. Tragically for Roche, and through no fault of his own, it now appears that the solicitor's firm failed to take immediate action.

That is only one of the contexts that were missing. Fortunately, for the past 20 years, Mr. de Róiste's solicitor, Mr. Eamon Carroll of Noonan Linehan Carroll Coffey solicitors of North Main Street in Cork, has been a powerful advocate on his behalf.

The bits between the cracks, the human misery, were found out today and described by Senators who spoke. It may be that the letter of the law was applied to Dónal de Róiste but the spirit of the law and humanity were not. I reiterate that down the years everybody concerned - journalists, politicians, Ministers and the Army - constantly kicked to touch. While everybody acted within their rights, they did not go the extra bit of the road to catch the human side, about which Senator Burke spoke so eloquently.

The bits between the cracks were this. The case of Dónal de Róiste has been compared to the Dreyfus case. That may seem to be a highfalutin comparison but Dreyfus only spent a number of years in penal servitude whereas Dónal de Róiste has spent 41 years living with the psychological torment of having his career blasted at the beginning.

A second lieutenant in the Army is a like a second year student in college. A young man of that age is capable of any foolishness and if he was particularly foolish - I believe Dónal de Róiste was a particularly naive individual - it is up to the State to act in loco parentis, as a parent, when making a case for him. He was a bit of an eejit in some ways and if he was too much of an eejit to make a case for himself and mind the back of his head, we, the State and body politic, have an obligation to do so on his behalf. The beginning of looking after Mr. de Róiste in loco parentis has started today with the courageous decision of the Taoiseach to take the matter on board. The Taoiseach, who is often traduced, had every temptation to kick to touch on this issue, as previous Administrations have done. He did not do so but instead took the matter on board.

7:00 pm

Photo of Joe O'TooleJoe O'Toole (Independent)
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Hear, hear.

Photo of Eoghan HarrisEoghan Harris (Independent)
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I thank Senators for having spoken well in this debate. I will leave the last word to Mr. de Róiste who cannot speak for himself tonight. Last night, I received a touching e-mail from him in which he stated he had complete confidence that the democratic system would see justice done eventually. He does not have malice or bitterness and seeks only to have his name cleared. In the postscript to Don Mullan's book, he wrote the following:

It is said that the law is what separates us from barbarism and humour separates us from animals. To be mis-labelled a terrorist by the faceless forces of the State and punished in perpetuum is anathema to democracy. No smoke without fire, they said. You must have done something wrong for them to arrest you. That is the kind of thinking that led to Hitler's Germany and the 1890s burning of Bridget Cleary.

Like my father, I joined the army to serve my country. My family could not afford to send me to college and the army provided me with a great career opportunity. I believe that to this day it is considered an honour to be called up. I never had any quarrel with the army. I can assure Óglaigh na hÉireann, the President, and the government that they have nothing to fear from me; nor do they have anything to fear from the truth.

'An error does not have to become a mistake unless we are unwilling to correct it,' US President John F. Kennedy said. I trust that the President, on the advice of the government, will correct this error before it becomes a historic mistake.

That process has started here today.

Amendment put and declared carried.

Motion, as amended, agreed to.

Acting Chairman:

When is it proposed to sit again?

Photo of Kieran PhelanKieran Phelan (Fianna Fail)
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At 10.30 tomorrow morning.