Seanad debates

Wednesday, 6 July 2011

Defence (Amendment) Bill 2011: Second Stage (Resumed)

 

Question again proposed: "That the Bill be now read a Second Time."

1:00 pm

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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Very serious allegations have been made by Senators O'Donovan and Mullen about the provenance of this legislation. I will not rehearse the details but in light of these allegations it is within the gift of the Minister and Leader to withdraw the legislation rather than put it to a vote. The saying, "justice must be done and seen to be done", has long been applied to the courts system. Justice is not being seen to be done in this legislation about which a serious allegation has been made, namely, that it has been drafted to benefit one individual. It is not appropriate for Seanad Éireann to be engaged in this type of legislation. If we were criminalising one individual, the legislation would be known as a Bill of attainder and would be clearly unconstitutional. It is also clearly unconstitutional, wrong and inappropriate to produce legislation to benefit one individual. I do not know whether the Minister is in on this, as it were, or has been subject to lobbying or whether officials in the Department have been the subject of lobbying. The full story must come out before this legislation goes further.

The serious allegations that have been made include one that an individual was to be appointed last year to the position of judge and serious statements were made in a letter, which is, I presume, in the possession of the Department, questioning the qualifications of the person in question for the job. Lo and behold, almost 12 months later, a Bill has been produced which covers the defect in law as regards the appointment of the individual concerned. If Senators are involved in such a process, it would be unacceptable, inappropriate and a sad day for the Seanad.

The allegations that have been made include that lobbying was carried out by a representative organisation. This is highly significant in the context of an appointment because a representative organisation may represent some of those who may come before the military judge. Legal opinion was given and suggestions have been made that a Fine Gael Party Deputy was in receipt of representations on this issue. I do not know if such representations were passed on to the Minister.

The Minister's word is his bond but it has been shown recently to be flawed. He came before the Seanad and failed to mention a letter he had received from Mr. Justice Smithwick in which the judge made much more serious allegations about the conduct of the Minister and Government than I had made in the House. The Minister described my contribution on the issue, which was less serious than the allegations made by Mr. Justice Smithwick, as gross and exaggerated.

I will not rehearse the statements made in the eloquent contributions we have heard, particularly from Senators O'Donovan and Mullen. I ask the Minister to please withdraw the Bill while a serious cloud hangs over it. It is not appropriate that legislation on which one person is waiting should be passed as a public Bill of the Oireachtas. If it is to legislate for a private matter, the Bill should be introduced as private legislation. As Senator O'Donovan stated, an alternative is available in this instance.

There is more than one practising barrister with the experience necessary for the Defence Forces position in question. I understand five individuals have eight years' experience. Therein lies the solution.

As a solicitor who has not practised since being first elected to Dáil Éireann in 2007, I may not be qualified to apply for a judicial position as I would have a length of service disqualification. I do not propose that the Minister change the position in this regard to suit me or others as it would be highly inappropriate to do so. I hope he will address rather than dismiss the serious concerns expressed by Senators. If he has been misinformed or is under-informed, he has an opportunity to withdraw the legislation and bring it before the House again when it is ready.

Photo of Caít KeaneCaít Keane (Fine Gael)
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I address the Bill in the context of acquired prior learning. I do not see any provision in the legislation for recognising such learning. Perhaps the Minister will address this issue.

The provision to open up all posts is a welcome development. The previous speaker indicated that five candidates are eligible for the position in question. This is a small pool of talent from which to choose for any job.

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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Five is more than one, which is the number for which the Bill is designed.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Please allow the Senator to continue without interruption.

Photo of Caít KeaneCaít Keane (Fine Gael)
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I speak in the context of passing legislation for today, tomorrow and thereafter. I have not been lobbied by anybody, nor am I available to be lobbied. I am considering the legislation as it stands and it has the potential to ensure that applications for jobs are not the subject of a closed shop among a certain group of personnel but are opened up externally to people who are qualified. I ask the Minister to consider the approach of all our universities which examine designations of acquired prior learning when considering qualifications. This includes people who have acquired prior learning on the job, although they may not have the designated qualifications as laid down when a particular job was allocated. This approach also applied to teachers in the old system where one had a jam system going on to the degree system and the whole evolution of degrees. It has been provided for entrants into universities where acquired prior learning is maximised, particularly for mature students. In addition to diplomas and degrees, acquired prior learning in a specific subject a candidate wants to study is given a certain amount of accreditation. This important aspect should be considered in all legislation involving job applications, not only those pertaining to the judicial system.

Another positive aspect of the Bill relates to the appointment of a Circuit Court judge to perform functions when a judge is not available. I am more than surprised that such circumstances had not been catered for previously and until now have been dealt with on ad hoc basis. This is a positive feature of the legislation as it will be known who will fill the shoes of a judge who, through illness or as a result of a conflict of interest, must step aside.

I have not been lobbied on this Bill on which I have made up my own mind. It would not be appropriate to lead people astray by stating that every person who has made up his or her mind on the legislation has been lobbied.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I compliment each and every member of the Defence Forces. Their professionalism and expertise is recognised by all and the part they play in peacekeeping duties is praised throughout the nations of the world. Another aspect concerns the ceremonial duties they carry out, which was clearly seen on the recent royal and presidential visits. These made everyone proud of our Defence Forces.

I am not aware of any back story or any history in this event. It is important to say so because the body that nominated me to the Seanad is the Irish Conference of Professional and Service Associations. RACO is part of that body and I had no lobbying from any individual or RACO in respect of this Bill. There is no issue about the lack of transparency in this Bill. It is a serious matter and one the Minister addressed in his opening remarks. In his reply, I am sure he will address the concerns of Members. Some Members will go to the press and make their views known on this matter, as is their prerogative. I was asked that this Bill not be taken through all Stages in one day and I acceded to that request. I was asked that Committee Stage and Report Stage not be held on the same day and the Minister agreed to this. Committee Stage will be taken tomorrow and Report Stage will be taken on Friday. The Minister has tried to facilitate the House in every way possible in the passing of this Bill. I look forward to his explanation of the concerns Members raised. I hope the Members who made those remarks will be in the Chamber to listen to the Minister's reply.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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I thank those who supported the Bill for the comments they made. I want to deal with the issues that arose during the course of this debate. I begin from a basic principle. I am sorry to note that Senator O'Donovan is so interested in this matter he left the Chamber but no doubt he will return at some point.

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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He will return in a minute or so.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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This is an area of the law relating to the military tribunal that has been floored for some period of time. It required addressing for some time since the 2007 Bill was seen as inadequate. With all due respect to Senators Byrne and O'Donovan, it is an issue that my predecessor and his predecessor failed to address. Both were Fianna Fáil Ministers in a Fianna Fáil-led Administration-----

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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They refused to address this Bill.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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As a consequence, there are 22 outstanding cases to be dealt with before a military tribunal. As Minister, I will not prejudge these cases, nor do I know the outcome of these cases but it is not right that individuals whose case may be before a military tribunal are left in a position of uncertainty. It is not proper that the system of justice relating to the Defence Forces has been placed in limbo. It is an atrocious and appalling scandal that the previous Government failed to address this matter. I want to be clear about not having in place a military tribunal for a considerable period of time and the lack of alternative mechanism. Senator Heffernan and others made reference to the fact that if the person who is the one and only military judge is unable to deal with a case for any of a broad range of reasons, we do not have a formal legal structure to address it.

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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That is not correct.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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The legal structure provided for in this legislation formalises a position whereby a Circuit Court judge can be nominated to deal with the matter. I am curious as to why Senators O'Donovan and Byrne are so exercised by this issue. I will come back to the points made by Senator Mullen.

It seems that Senator Byrne and the Fianna Fáil Party, having not wanted to play Punch and Judy as their leader said on day one of this Dáil, are simply punch drunk. Senator Byrne cannot move five paces without gleaning a scandal around every corner. I appreciate that Senator Byrne may be in some shock as to the electoral result he experienced and I appreciate that people need some time to come to term with reality. I wish to make clear to both Senators that this Government is not mired in the moral mess of his previous colleagues. We tell the truth about these issues.

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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The Minister did not speak here about the Smithwick tribunal.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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In the past 24 hours, Senator Byrne has sought to suggest that I am behaving improperly, presumably for the sake of getting his name in the papers.

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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Why did the Minister not provide us with that letter from Judge Smithwick?

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Senator Byrne, allow the Minister to speak without interruption.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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Senator Byrne is handy at giving out. I sat quietly listening to him but he has great difficulty in listening to me and I suggest to Senator Byrne that he listens. Let us deal first with the issue of this Bill and then we can deal with the other issue raised in this House yesterday and today.

I want to make a number of points clear so they are not open to misinterpretation. RACO has made no representations about the military judge. I have received no representations. It is not an issue that has influenced me in any sense of the term in this legislation. I am not aware of anything landing in the Department, nor have I seen any representations from any member of the Fine Gael Party or the Labour Party in respect of any aspect of this legislation. No representation from any party had any hand or part in my dealings with this legislation.

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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What about this letter?

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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No representations I have seen had any hand or part in my dealing with this legislation.

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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The Minister should check with his officials. The letters are there.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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This legislation derives from when I entered the Department of Defence and inquired about what was happening with regard to the military tribunal, why we had paralysis, why cases were not being processed, the extent of the problem and why it had not been addressed. The legislation derives from nothing else despite the view others may wish to take. I made inquiries into this matter and I was advised there had been a competition for the appointment of a military judge. Those engaged in the competition had difficulty in ascertaining whether an individual fell within the qualification for appointment. Since that time, everything has been in a state of paralysis. That is where the issue remains and that is why we currently have no military judge, no military tribunal, no cases being processed and a situation that is seriously inimical to the Defence Forces. It does no good for the reputation of this State and I was determined to address it. The procedures provided for will require a new competition to determine who should be appointed as a military judge. There will be a competition and individuals seeking the position will be dealt with independently. There was a suggestion that the Minister appoints the committee and controls it. I cannot remember whether it was Senator O'Donovan or Senator Byrne but one endorsed the other.

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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It was neither of us.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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Senator Mullen told me it was the Chief of Staff and the Advocate General. The Defence Forces has its own legal structure. I had no hand or part in telling the Chief of Staff how he should deal with interviews on a committee of that nature, or who should be selected. I have no hand or part in telling that to the Advocate General. As Minister for Defence, I have no intention of interfering with the independent deliberations of that committee, and never have had. I do not know whether there is some history of Fianna Fáil Ministers attempting such interference but I will tell the Deputy one thing for sure - this Minister will not engage in such interference. There are individuals who will make a judgment as to who should be appointed, based on the criteria prescribed and having regard to the qualifications of those who come before them. There is no ready-up. However, we cannot maintain, for it is not sustainable, a situation where, first, there is apparent confusion as to what falls within the qualification criteria prescribed by the 2007 legislation-----

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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There is no confusion.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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-----for which the Fianna Fáil Government was responsible. We are trying to clean up the mess left by the previous Government-----

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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Where was the confusion about the qualification criteria?

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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-----because of vacancies and inadequacies in the 2007 Bill. Let us be absolutely clear about that - that is what we are doing. My view, which I believe is correct, is that we should extend the pool of qualified people from which a choice can be made by the independent group who will make that choice. I do not believe a choice between only five people, when we do not know whether all of them will apply for the position in any case, is adequate to ensure that a person of appropriate calibre is selected.

I do not expect the two gentlemen on my right will accept anything I say but hope Senator Mullen will accept my good faith in this. I appreciate he had concerns and am deliberately addressing them-----

Photo of Rónán MullenRónán Mullen (Independent)
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I am concerned that we were not told the story.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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----- in a very straight and direct way.

Photo of Rónán MullenRónán Mullen (Independent)
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Will the Minister address widening the pool without-----

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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The Minister, without interruption.

Photo of Rónán MullenRónán Mullen (Independent)
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-----having a selection committee so lacking in transparency?

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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We need to provide clearer criteria for eligibility and to widen the pool of individuals from which selection can be made.

In the context of the contributions made, I reply, effectively, to that of Senator Mullen who dealt with the objective in question. Perhaps it is a symptom of what has happened in the past in the context of advertising but in the Defence Forces there are individuals engaged in legal work who are qualified barristers or solicitors. Some were recruited to the Defence Forces on the basis that to get a particular job they had to be a practising barrister or solicitor. Others were recruited with that qualification and are doing work that a practising barrister or solicitor would engage in but are doing so within the Defence Forces. By becoming eligible for consideration to appointment they can help to widen the pool of individuals with expertise in areas related to the working of the military courts.

Photo of Rónán MullenRónán Mullen (Independent)
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The Minister is making selection less transparent.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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Our addressing the difficulty that has arisen from the previous legislation and the difficulty the previous Government failed to address will be facilitated by extending the numbers to whom the eligibility criteria apply.

Photo of Rónán MullenRónán Mullen (Independent)
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The person in question failed on two occasions to get selected for service in the Army.

Acting Chairman:

Senator, please.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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Perhaps the Senator will contain himself. I did not put him in the same boat as the two gentlemen on my right but credited him with having more decency.

Photo of Rónán MullenRónán Mullen (Independent)
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I will, but we need more dialogical procedures.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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In the context of the proposal that we reduce the period to seven or eight years, I note that Senator O'Donovan got this wrong on the Order of Business. He suggested that in dealing with practising barristers and solicitors I intended to change the criteria from ten years of practising to seven or eight years. Earlier today, he seemed to have gone off on a rant, criticising me for doing that. It now turns out that this was his proposal. He actually stood up this morning and delivered-----

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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The Minister got me wrong again.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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-----a very articulate critique of his own proposal.

Photo of Denis O'DonovanDenis O'Donovan (Fianna Fail)
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That is the third time the Minister has got me wrong. He should apologise. He is confused.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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Let me return to the substance of what we are dealing with and what is desirable in all of this.

Senator O'Donovan described the Bill as a dangerous precedent. At least Senator Mullen had the decency to acknowledge two very important reforms contained in the Bill albeit he expressed reservations about an issue concerning which I hope we will have a friendly disagreement. I believe extending the criteria is a good idea.

I do not suggest we extend this to the wider court system but in the context of dealing with the military judge and military tribunal there are far too few people who are currently eligible for appointment and we need to extend the pool. However, I also draw the attention of Members to the fact that in other countries it is absolutely normal, not simply in military matters but in wider court systems, to appoint as judges learned legal academics in universities, advocates who have never practised as lawyers. Some very eminent members of the United States Supreme Court have been appointed in this way. To be a good judge one does not have to be a good advocate. Some very poor advocates become extraordinarily good judges and there have been some very good advocates who may have disappointed some of us when they were appointed to the bench. One thing does not follow from the other.

In this country we have a very narrow pool and focus when it comes to making appointments of practising barristers and solicitors to the Judiciary but there is a broad range of individuals from which selections can be made. In this instance there is a narrow range of individuals and therefore what we must do is consider other individuals who have practical experience, the qualifications of barrister or solicitor and the legal expertise that makes them eligible for this appointment. We will have an independent committee that determines this - it will not be the Minister. The Minister will not select any appointment as military judge. Ultimately, this will come from the committee that makes the recommendation. That is the way the matter works. When the committee makes the recommendation the Minister may formally make the appointment but I will certainly not go out independently on any kind of solo run as to who should be appointed. It would be highly inappropriate for me to do so.

In that context, I point out to Senators that, although small, this is an important piece of legislation. It deals with areas where there are difficulties and anomalies. The truth is that for too long the Department of Defence and the requirements of legal changes in that Department dealing with the Defence Forces have been Cinderella issues in the Houses of the Oireachtas. They are always put on the back list of legislation and not given the priority they deserve. I thank this House for taking this legislation with some speed to facilitate our addressing an important issue.

It was suggested to me that we might deal with this Bill all in one day but I understood absolutely that Senators would not wish to do that and we ordered Second Stage for today. As Minister, I could not allow a situation to continue until next autumn whereby no military tribunal was functioning and an increasing number of individuals were waiting for their cases to be heard. That was completely unsustainable. It was urgent that this legislation become enacted before the August break. When I was informed that Senators were unhappy that we take Committee and Report Stages on the one day it took me all of three seconds to state I had no difficulty in our taking them on a different day. As I now understand it, we will take Report Stage on Friday.

The issue in question is not about trying to pull a fast one on anybody. The urgency of dealing with this is found in 22 outstanding cases that are in a state of stasis. That is not acceptable. It undermines the credibility of the juridical system to which the Defence Forces are attached and from which they expect a degree of performance consonant with the rights of the individuals who find themselves coming before a military tribunal.

I hope that in that context I have addressed most of the issues Senators have raised, and that I have not omitted an issue.

I hope also that I have addressed in a straightforward way the various allegations that have arisen from my right hand side but I want to refer to another one. It is a great pity that in circumstances in which members of Fianna Fáil are flaying around bereft of any issue of substance on which they can get any credibility because of the extent to which they have destroyed the country, they have decided to go after individual members of Government on a personalised basis. Senator Byrne, who believes he should shout "scandal" to get his name in the newspapers every day, made a false-----

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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On a point of information, the word "scandal" was not used by me in my contribution on the Order of Business yesterday.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Could we keep to the Bill, Minister?

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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I am replying to something the Senator raised. Senator Byrne made a false allegation against me again this afternoon in this debate which mirrors an allegation he made yesterday. The allegation is that I made some misrepresentation in this House during the debate on the Smithwick tribunal. That is untrue, and he knows that. I told this House, as I did the other House, the exact position as it pertained with regard to that tribunal and the exact position with regard to correspondence between myself and Judge Smithwick. I informed the House that I had received-----

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Sorry, Minister, that is-----

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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The Senator raised the issue.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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-----not relevant to this Bill.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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Am I not allowed to reply to an allegation made? The Senator made an allegation. I am going to respond to it with brevity, but he made it.

Photo of Paul CoghlanPaul Coghlan (Fine Gael)
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In his contribution.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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He made it in his contribution. It is of no relevance to this debate. I informed the House that I had received correspondence from Judge Smithwick. I informed this House that he had certain concerns and I addressed all of those concerns in my contribution. The suggestion is that I concealed the information from this House. I did not because the letter I received from Judge Smithwick on 27 May 2011 was marked to me as being private and confidential, addressee only. That is clear from the letter. The reply I sent to him was marked "Private and Confidential". I had a concern that that correspondence be transparent and publicly available. I was concerned it was not appropriate that the chairman of a tribunal communicate with a Minister for justice on a private and confidential basis. My reply to him, if the Senator took the time to read it, queried whether we could make the correspondence public and indicated that as he had marked the letter "Private and Confidential" I assumed at that point not to do so and I raise the issue.

On 1 June, the day that coincided with debates in this House and the other House, a letter was received in my Department from Judge Smithwick in which he made reference to him having no objection to what was described as "our chain of correspondence being put in the public domain". I replied to that. The chain of correspondence did not conclude until, I believe, the third week in June and when it concluded within a reasonable time for conclusion it was put in the public domain. It would have been entirely wrong of me to have published a selective bit of that correspondence. I hope the Senator, now that he understands that, would have the decency to acknowledge it.

I want to conclude on the Bill. This is a short but important Bill. It addresses a difficulty we have within the juridical system that applies to the Defence Forces. It is a Bill that I would hope would not be controversial. I regret that some have decided to create a controversy out of it. It is a Bill that I hope will have Seanad support. I am grateful to the Seanad for taking the Bill so rapidly after its publication. I am grateful to this House for agreeing that we proceed tomorrow to Committee Stage, and I look forward to a more constructive discussion tomorrow from some Members of the House than we have had today. I thank those who understand fully the Bill, its intent and for expressing their support for it.

Question put:

The Seanad Divided:

For the motion: 28 (Ivana Bacik, Paul Bradford, Terry Brennan, Colm Burke, Deirdre Clune, Paul Coghlan, Michael Comiskey, Martin Conway, Maurice Cummins, Jim D'Arcy, John Gilroy, Jimmy Harte, Fidelma Healy Eames, James Heffernan, Imelda Henry, Lorraine Higgins, Caít Keane, John Kelly, Maire Maloney, Mary Moran, Michael Mullins, Catherine Noone, Marie Louise O'Donnell, Susan O'Keeffe, Pat O'Neill, Tom Shehan, Jillian van Turnhout, Katherine Zappone)

Against the motion: 20 (Sean Barrett, Thomas Byrne, John Crown, David Cullinane, Mark Daly, Terry Leyden, Marc MacSharry, Paschal Mooney, Rónán Mullen, David Norris, Brian Ó Domhnaill, Darragh O'Brien, Denis O'Donovan, Ned O'Sullivan, Averil Power, Feargal Quinn, Kathryn Reilly, Jim Walsh, Mary White, Diarmuid Wilson)

Tellers: Tá, Senators Paul Coghlan and Susan O'Keeffe; Níl, Senators Ned O'Sullivan and Diarmuid Wilson..

Question declared carried.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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When is it proposed to take Committee Stage?

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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Tomorrow.

Committee Stage ordered for Thursday, 7 July 2011.

Sitting suspended at 4.45 p.m. and resumed at 5 p.m.