Thursday, 7 July 2011
Defence (Amendment) Bill 2011: Committee Stage
I move amendment No. 1:
In page 4, before section 3, to insert the following new section:
3.—Section 184C of the principal act is amended by deleting the figure "10" and inserting the figure "8".".
Maybe instead of going down the road the Minister is suggesting in this Bill, he might consider reducing the required number of years from ten to eight, among other suggestions. As I outlined yesterday, I am deeply concerned that this Bill is aimed mainly at regularising lacunae within the Department of Defence and the Defence Forces. I was not pointing the finger of blame directly at the Minister yesterday, despite the fact that on three or four occasions he referred to comments as having been made by me that were not in fact made by me but by another Senator.
On 28 July 2010, the Defence Forces press office issued a statement that a certain individual, whom I shall not name, had been appointed a military judge for the Defence Forces. On the same day that individual was promoted from commandant to colonel. Subsequently, it emerged that there may have been doubts about the eligibility of this person and, consequently, it also emerged that the Attorney General had been contacted by the then Minister. Because of the doubts that existed, the appointment was not pursued. I am sure the Minister is aware that the individual concerned, seeking to protect himself because he was concerned that the appointment was not proceeding, sought and obtained an opinion from an eminent senior counsel, namely Mr. John Rogers, a former Attorney General. I am sure the Minister has studied that opinion. The person was informed that he had a legitimate expectation. Consequent to all this, the Bill has emerged.
Let us remove the fluff from the Bill and get rid of the notion that the Bill contains measures to expand the pool of people who are entitled to be appointed as judges. If we take away the flesh and get down to the bone, we can see the truth of the contention I made that this Bill is primarily to facilitate a particular individual and to ensure the Department and the new Minister are not sued in the courts, as set out in this opinion of legitimate expectation. A process had been conducted and the appointment was actually announced on 28 July 2010 - almost 12 months ago. Is there a likelihood that the Department is now facing the wrath of this individual, who was either led up the garden path or coerced or encouraged along as a favourite son of the Department for appropriate rewards?
Yesterday the Minister either did not wish to advert to this or sidestepped it, but these are serious issues. It is important that the Minister, on behalf of the Department, come clean and confirm the existence of the correspondence I mentioned yesterday, a letter written by a senior officer to, I think, the Defence Forces legal service - I am not au fait with the internal workings of the military - expressing deep concern about the appointment in question. It is also of concern that when the appointment did not proceed, an opinion was obtained by that individual, as was his right, which I am sure was waved at the Department with talk of legitimate expectation and considerable financial loss for the Department by way of a lawsuit. These are the concerns I have, and they are deep-rooted.
The Minister gave the impression yesterday that he was, in this Bill, broadening the category of those who may be appointed as judges. I have no problem with that. However, if we consider the existing legislation - the 2007 Act or the principal Act from 1954 - we will see that such a provision already pertains. He should confirm that that is the case, although he is choreographing it in a slightly different fashion. I accept that he is probably broadening the category of people who are available to be appointed to the military court.
There is one issue on which I ask for clarification. The Minister was throwing darts at this side of the House and his predecessor, the former Minister for Defence, Tony Killeen, regarding the fact that there was a backlog of 22 cases. After yesterday's discussion I went to look at those 22 cases. Some of them are very technical and I have no doubt that under the old legislation, if the President decided to second a Circuit Court judge for six or eight weeks, that backlog would be cleared. Can the Minister tell me how many cases have been dealt with in the military court in the last 18 months or two years? Probably far fewer than 22. A backlog of 22 cases in the Circuit Court, High Court or Supreme Court would be laughed at. At the moment there are cases pending in the High Court that are ten years old, although I am not saying that is right. It is not fair to convey to the House that there is a backlog of 22 cases and that this cannot be dealt with in any other manner than through this legislation.
The issues I have raised here should be dealt with. The amendment seeks a reduction in the number of years a person must have been practising as a solicitor or barrister from ten to eight. That would not do any harm to the Bill. It could be incorporated along with the proposals to expand the provisions as the Minister set out.
I have always been courteous to this House and to Ministers. I have never come in here and tried to politicise an issue. However, I have a letter in my possession that I will not read from or refer to as it might be a source of severe embarrassment, if not to the Minister then certainly to the Department. I spent last night increasing my knowledge of this issue and I am far more confident today about what I am saying, which my colleague Senator Mullen also discussed. By the way, I did not realise until yesterday that Senator Mullen was on the same tack; we had not sought to compare notes prior to the debate. Senator Mullen seems to be aware of circumstances that are of deep concern.
I am concerned about any Department, whether it is the Department of Defence or the Department of Agriculture, Fisheries and Food, introducing legislation under threat of a lawsuit - it may have been verbal but it is a matter of fact. I have seen the opinion from the eminent Mr. Rogers advising the appointee about whom I spoke of his rights. Obviously the person concerned did not go to the trouble of getting that opinion for fun. The Department was concerned that it was caught in a bind. It had announced publicly from its press office on 28 July last year that it had made an appointment, but it rowed back because it was clear and obvious that the person was ineligible. At that stage, perhaps when this was conveyed to the individual concerned, he protested that he had been led up the garden path. The Department had offered him the appointment and promoted him to one of the highest positions in the Defence Forces, that of colonel, and he had a legitimate legal expectation that this would be carried out. In the legal opinion, which I have studied in detail - although I am not saying opinions are always the last word - the eminent senior counsel suggests there is a legitimate expectation not only of the appointment as judge but of all the benefits that go with that position.
In that regard it is important that the Minister explains to the House the full backdrop. I was easy yesterday and I made some points. As Senator Mullen stated there is a background to this case about which the House must know. This is nothing to do with scoring points against the Minister or the current Government. If the previous Minister were here I would make the same points to him, but he is not. I am uncertain but I am of the view that if the Minister then were faced with this difficulty almost 12 months ago he may have rowed back and decided not to proceed in that line.
The legislation appears to set out some issues with which I have no difficulty. However, if it is the case that it is being dressed up in an effort to protect the Department and an appointment, I have deep reservations and concerns. That would be a retrograde step. I note from another opinion I received that it could have constitutional implications and could be subject to challenges. Perhaps the Minister is not aware of this. Is the Minister or the Department aware that there are two reputable legal firms holding a watching brief on this development? The Minister may smile but will he inform the House of it in good faith? I accept the Minister's bona fides and I am here uberrima fides; I have no personal axe to grind. Most people who know of my career in politics acknowledge that I have rarely, if ever, gone down the road of scoring points or trying to fire cheap shots. I have no particular axe to grind with the Minister, although he may believe Senator Byrne, who is not here at the moment, may have. Will the Minister accept my amendments and confirm that the backdrop, as set down by Senator Mullen more cogently than I have done, does not exist or, if it does, will the Minister reassure the House that it has disappeared and that these issues are no longer relevant?
This has raised hackles among serving members at various ranks within the Defence Forces. Since yesterday, I have received several calls of concern and support for the points I have raised from serving officers and retired personnel. It gives me no great gratitude to have an axe to grind with any Department. However, this matter will not rest in this House. If we vote it through today it will re-emerge.
It is important to realise that the Bill, although it has some salient features, serves the purpose of doing what I have said and addresses the fact that the Department is obliged to ensure a particular appointee can have his appointment fulfilled. Under the old law and the Acts of 2007 and 1954 that was not possible because of the question of eligibility. The State (Walshe) v. Murphy case decided in 1981 indicates that a successful challenge might emerge. In this regard I hope we will hold a more balanced debate today and that the points I have raised which are of importance will be considered. These are not made up. I have before me certain documentation and perhaps the Minister will allay my fears and those of other Members in his response. I reserve the right to contribute on other issues as the debate unfolds.
The Cathaoirleach may be able to assist me. I would be pleased to hear the Minister's response to the points raised by Senator O'Donovan. It might avoid repetition because if the Minister addresses particular points to our satisfaction, I will not necessarily rehearse the same points. However, I have no wish to forego the opportunity to speak to the amendments.
First, let me give the formal response to the amendments. I will then address specifically the issues the Senator raised.
The essence of the amendments is to reduce the qualifying criteria required for appointment to the post of director of military prosecutions or as a military judge from the current position of the requirement to be a practising barrister or solicitor of not less than ten years standing to only requiring an individual to be a practising barrister or solicitor of not less than eight years standing. The effect is that one would be required to have only two years less experience.
The suggestion that the level of experience required for appointment to the post of director of military prosecutions or as a military judge to which these amendments apply should be reduced could lead to a scenario where an officer lacking in experience could be appointed to undertake the onerous duties associated with either the post of director of military prosecutions or as a military judge and it would turn on its head the logic of the existing provisions in the Defence Acts. Ten years experience as a qualified barrister or solicitor is not excessive having regard to the nature of the posts in question. Ten years experience as a qualified barrister or solicitor is the minimum number of years required before appointment to the District Court. Personally, I do not believe this position is of any less importance than that of a District Court judge.
It could be stated that the amendments betray a lack of appreciation of the duties associated with the post of director of military prosecutions and of a military judge, both of which may involve decisions leading to the termination of an individual's career in the Defence Forces, his or her incarceration or both. It is essential that anyone exercising the functions of either the director of military prosecutions or those of a military judge must be in a position to weight such onerous considerations appropriately and this comes only with experience. This is the basis upon which our judges are appointed in the Civil Courts and it was the basis upon which the Act of 2007 was drafted and enacted by the Oireachtas on the proposition of the former Fianna Fáil-led Government of the time.
Senator O'Donovan raises in an extraordinary way the circumstances of a particular individual. I will come back to that presently. However, his first accusation, a strange one, is that the Bill is designed to regularise a lacuna in the law. The Bill is designed to try to regularise a lacuna that arose and was, apparently, perfectly clear as of last summer to the former Minister for Defence in the Government supported by the Senator. A difficulty arose, the circumstances of which the Senator has described accurately in the sense that an individual was, apparently, appointed to this position or some announcement was made and the appointment was not proceeded with because there was some form of legal difficulty. That did not occur under my watch or during the lifetime of this Government. However, the problem arose. What did Senator O'Donovan's colleagues do when that problem arose? Absolutely nothing. They went into a state of suspended animation and the Military Court stopped sitting. That is what happened and I inherited that predicament when I became Minister. I asked questions as to what on earth was going on and I was informed what was going on.
I am aware of the predicament of that individual but I am not aware of certain aspects of that individual's predicament. Clearly, the Senator is being fed information. I do not doubt the good faith of Senator Mullen in these things. However, Senator O'Donovan has been given certain information. He should ask himself why he is being given this information. It is not an embarrassment to me since I was not Minister at the time and the present Government did not exist at the time. However, he is being given information that I did not know in one respect although I knew of the difficulties of this individual. He has put information on the record of the House today of which I certainly do not have knowledge and I am advised my officials do not have knowledge.
That is in respect of two matters. The first matter is I am informed that no official in the Department of Defence would have seen any advice given by legal counsel to the individual concerned. Obviously Senator O'Donovan has been given it. Some other people have obviously seen it. I did not know and it is news to me the name of the senior counsel who allegedly gave this individual advice. I presume the individual obtains the advice and I do not believe it is as appropriate. We talk about individuals in this Chamber - Senator O'Donovan has brought it up - because they have no opportunity to defend themselves when we talk about individuals in this Chamber.
Clearly advice was obtained by him, of which Senator Donovan is privy, and he has put on the record of this House that this individual thinks he has "a legitimate expectation of some description, a concept well known within the legal profession." Whether the individual does or does not have a legitimate expectation I do not know and we have now discovered who his senior counsel was. There was certainly, I am advised, some correspondence received by the Department of Defence from this individual's solicitors and I presume there was some response to it, but that is not why this legislation is before the House. It would be quite improper to enact a piece of legislation designed to assist an individual and present it differently.
If I was going to seek to enact a piece of legislation designed to assist an individual I would not be proposing to this House that we extend eligibility for appointment to this position to solicitors and barristers generally of ten years standing. If this was a piece of legislation designed for an individual it would address that individual's circumstances and the last thing it would do was try and widen the pool of individuals to whom this legislation should apply. My problem is, and want to make it clear, that I am assuming that Senator O'Donovan is expressing concerns in good faith but he should examine what he is saying against the factual reality of what is contained in the Bill and perhaps take less than seriously some of the lobbying that he is being subjected to. He has told the House that he got congratulatory phone calls yesterday evening from some members of the Defence Forces.
The real problem, as I see it, with this particular tribunal and the current prescription for eligibility to be a member of it is that it is far too narrowly defined and there are far too few individuals who are eligible for appointment. I am sure there is a discrete number of individuals who may be concerned that if we widen the pool of possible appointments they may not have an opportunity to be appointed. In fact, if one looks at this this is an area that needs reform because it is a closed shop in all practical terms. It is a closed shop because the appointments can only be made in favour of a readily identifiable small number of individuals, some of whom must be briefing the Senator, and there is a motive behind it. I am not going to suggest the Senator has a motive other than trying to tease out the legislation based on the briefing he is getting.
I would ask both Senators, in fairness, to read what the Bill says. This Bill is broadening the pool of individuals in a significant way from whom an appointment can be made to the position of military judge. I have absolutely no idea who may be appointed when there is a new competition. I will have no hand or part in the appointment beyond the committee that conducts the assessment of who should be appointed. It ultimately makes a recommendation which, as I understand it, is furnished to the Government to be passed on to the President, and I presume comes to the Minister for Defence to furnish the Government to pass on to the President.
I find it extraordinary where it is so clear that we are widening the pool way beyond the individual whose circumstances the Senator refers to as to who is eligible for appointment that the Senator is so convinced that this is a Bill that is designed to appoint a particular individual. What makes it even a little bit more odd is in circumstances where the Senator seems anxious, and both Senators seem anxious, that persons of reasonable experience and expertise are appointed, why they choose to drop from ten to eight years for the period during which someone needed to be a qualified barrister or solicitor before they could be pointed because you are now going for individuals with two years less experience.
I am advised that this issue may have arisen under a previous Minister who did not pursue it and on that occasion Senator O'Donovan was suggesting reducing the period from ten years to seven years. We are now a year further on. I do not know whether the Senator is advocating on behalf of some particular individual for this post who 12 months ago had seven years practice and 12 months on has eight years practice.
I would be very interested in knowing where the eight years originates from. Why is it not seven? Why is it not nine? Why is it eight? Why should it be eight when the Senator and I know and Senator Mullen knows that for an appointment to the District Court one has to be in practice for a minimum period of ten years? Why eight? In circumstances where a decision of a military judge can terminate someone's career in the armed forces, can make a decision which results in their disgrace and can make a decision which results in their incarceration why should someone of less experience be appointed to that role than a district judge who may impose a fine for speeding at 5 km per hour more than the speed limit prescribes?
The decisions this judge makes are particularly serious. We will come to a later amendment but it is worth dealing with its relevance to this. Who are the group who are going to make the decision when there is a new competition? Who makes that decision, essentially? Well, the decision is made by the Judge Advocate General who is an independent legal official entirely independent of the Department of Defence, the Chief of Staff who has his own statutory position and a judge of the High Court nominated to participate. One could not have three more independent individuals over whom neither myself as Minister has or should have any control in determining who should be appointed and nor has the Department of Defence at official level.
The Senator made accusations of bad faith in relation to this particular legislation because that is a summary of what he is saying. I could not as Minister allow the current situation to continue. The Senator has suggested that within the existing legislation there could have been some temporary appointment that could be made of an individual to determine the outstanding 22 cases. In the context of the military tribunal, 22 cases are a lot of cases. In the context of individuals facing court martial with a sword of Damocles hanging over their heads is a cause of great concern-----
-----and we operate a system of justice where people are entitled to have accusations made against them determined and resolved within a reasonable period of time. The existing legislation does not allow for the appointment, as I understand it, of a substitute judge. The Senator may point out to me where I am mistaken. It provides for the possibility of the appointment of two military judges. We certainly do not need two and I do not want to hold a competition in circumstances in which the pool of eligibility is so small that we may not be able to identify individuals. It is not for me; the committee may not be able to identify individuals appropriate to appoint. This is not about doing an individual a favour. This is to do with reforming a piece of legislation enacted in 2007 which contained, as the Senator pointed out, a serious lacuna. This has been exposed by the difficulties that have arisen and just as I have sought to address it in this Bill, it could have been addressed before the end of last year by the previous Government. However, the previous Government was paralysed and failed to address it. It is not acceptable to me that this situation continues.
I have rejected the amendments proposed by the Senators because they will reduce the qualification criteria by moving from ten years to eight years and, in my view, this is completely inappropriate. To be very fair to Senator O'Donovan, without him realising it, from inquiries I have made, his proposed amendment could only benefit a very small number of people in extending eligibility. It is a readily identifiable very small number of people. I am willing to accept this is not the intention of the Senator's amendment and perhaps the Senator himself has been misled on that issue. I do not want to make any allegation of bad faith but I ask both Senators to look at what the legislation states as opposed to the assumptions they are making. I am informed that Senator Mullen became excited about this issue again on the Order of Business today. I suggest the Senators look at what the legislation-----
-----states. For the first time, the legislation opens up eligibility for appointment to this tribunal to a wider group of legal professionals who have expertise. It moves away from this being a closed shop appointment confined to a small group of individuals. I do not believe it is in the public interest that we maintain the current position. I also say to both Senators, had the difficulty that occurred last August or September not occurred, and had I been in office and looked at this legislation and the narrow confines of the group of individuals who could be appointed, I would have been looking to bring forward reforming legislation. This would have been in the same context as more than a decade ago because I was concerned as long ago as the early 1990s that the pool of individuals for the selection of High Court, Circuit Court and Supreme Court judges was confined to members of the Bar. I thought it incredible that we had thousands of solicitors around the country who could not be appointed to those positions.
On that occasion I was the moving party in commencing a process which resulted in the change to our courts legislation which now allows for the appointment of solicitors all the way from the District Court - to which they could always have been appointed - up to the Supreme Court. We need to widen the pool of lawyers of expertise who can be appointed to adjudicating positions. This legislation is part of that type of reform. This is a reforming measure to bring eligibility criteria into the 21st century and not to confine it and lock it down to a small group of individuals.
I hope that, before Senator O'Donovan responds, Senators would accept my good faith in this regard. Why would I want to cover up something that was a mess created under the watch of the previous Government? I ask if someone can explain that to me because I do not understand it and it makes no sense. I want to solve a problem. I want to get this appointment made appropriately from a pool of qualified individuals and to resolve the log-jam that has occurred and to make the legislation function.
I have listened with great interest to what the Minister has said. He said certain things with which I agree very much. He has not managed, however, in making some of these points, to note the not so subtle distinctions between the amendments I am proposing to the legislation and those of Senator O'Donovan. He and I are coming from slightly different places, although I completely accept Senator O'Donovan's bona fides in the way he has addressed the issue. However, I have a slightly different approach. What the Minister needed to acknowledge was that the totality of my amendments, were they accepted, would leave very much in place a situation where there would be a very wide pool of applicants for the posts of military judge and Director of Military Prosecutions. That is to say that I am very open to opening the potential list of applicants beyond membership of the Permanent Defence Force. My amendments would allow that any solicitor or barrister with the requisite years of practice would be in a position to apply for these posts. This is a very important point because it lays bare the inadequacy of the Minister's apparent claim that were he to accede to what is being sought in the Seanad, it would leave a very closed shop to the benefit of one or a few.
I refer to a couple of general points which need to be addressed and which were raised by the Minister. I do not believe that it is inappropriate to talk about individuals in this Chamber or in the other House. Sometimes the only way one can make sense of an issue is by talking about individuals and this is very much an instance of same. As I explained yesterday, the context in which this Bill was brought forward is crucial and, in my view, it has very much to do with the interests of a particular individual. There is nothing wrong in talking about individuals and the Members of this House have been very responsible in not naming that individual, simply out of a desire not to embarrass the person. I have no difficulty because I do not know that individual and I have no difficulty with that person. I have no difficulty even with that person being appointed to the job if he or she is suitably qualified. However, I have a difficulty with any possibility that legislation is designed with the needs of a particular individual in mind or partially in mind, without this House being told so. That is the first issue.
The second issue has to do with motives. We are in the position of talking about this issue today because, effectively, we have had contact with what are, in fact, whistleblowers. These people, in good faith, have raised a problem about what has been happening. They have drawn our attention to a certain factual substratum behind the proposed legislation. The reason I became exercised in this Chamber this morning rather than excited - I inform the Minister it would take more than that to excite me - is that some Senators did not recognise a genuine issue for the Order of Business when they heard it. I was leading to a proposal that the House would not consider this legislation further today until Members of the House and others and the public have had an opportunity to consider the issues properly because I think an issue of impropriety of some kind has arisen. This is the reason I raised the issue this morning on the Order of Business and it is an important issue having to do with how we order our business in the House.
The other issue has to do with motives. There is nothing wrong with taking information from people who have certain motives, provided those persons and the recipient of the information are fully informed as to how that person stands to benefit or not from what transpires. This is called declaring an interest. In any contact I have had with any person to do with these issues, any interests have been fully declared to me.
There are two aspects underlying my amendments. I expressed in detail yesterday my concern about the factual background which has led to this particular legislation. I remind the Minister that I am not in opposition. A degree of oppositional politics is necessary, but I have no beef with the Minister. I have no desire to catch him out on anything or oppose him for the sake of it. I am approaching this issue in absolute good faith. As I indicated yesterday, I support two out or three of the central proposals in the Bill. On another matter, the Minister made a comment recently on the abortion issue. I would not mind having a friendly chat with him about that at some point.
The Cathaoirleach has no need to worry; I do not intend to rehearse it today.
I am merely anxious that the Minister should know that I have a great degree of goodwill towards him. That was why I pointed out yesterday that either he has good reason to be annoyed with his officials and with the Defence Forces for not putting him fully in the picture on this matter or we have good reason to be annoyed with him for not putting us in the picture. I remain concerned that the Bill seems to be designed in part to suit the needs of a particular individual, needs that have arisen because this individual was, in the opinion of the highest appropriate authority and as communicated to the highest appropriate person in the Defence Forces, not statutorily eligible for the position to which he was appointed. The Minister referred to the situation some minutes ago as "some form of legal difficulty" with the appointment. With the greatest respect, he should be more specific. To talk about "some form of legal difficulty" is to imply a mere technicality.
We have to talk about the details of the individual case. This was an individual who, on several occasions, had not managed to get selected as a legal officer. In the opinion of the highest appropriate person, this individual did not meet the statutory legal eligibility because he had not operated in a post for which it was a requirement to be a barrister or solicitor. The Bill would let this person off the hook in that respect. I do not for one minute allege - and I am pleased he has indicated there will be a further competition - that the Minister is trying to rig the situation to ensure this person gets the job in a future competition. The Bill will leave it in such a way that many people will be able to apply for the job, which is perfectly appropriate. However, that is not enough. The Minister said it would be quite improper to enact legislation designed to assist an individual. This Bill does not do so; that is not my contention. Nevertheless, it will let off the hook a person whose eligibility for a particular post was rejected in that this person will now be deemed eligible.
As I said, I am concerned that the Bill seems designed to suit a particular person. I am concerned that the Minister would come into the House and not explain to us that among the effects of these provisions is that a particular person stands to benefit. That is not transparent. The Minister was helpful in telling us some of what he knew about this matter, but I ask him to be more detailed about what precisely he knew. At what point was it disclosed to him that the situation had arisen? Whose idea was it that the Bill should be designed to allow a selection committee to overlook the absence of the relevant experience in respect of a job for which it was a requirement that the person be a barrister or solicitor? Who suggested that the amendment be included to allow a selection committee to make that decision?
The Minister rightly observed that this provision will open up the shop to more applicants. However, that opening up will accommodate the person who was appointed previously and in respect of whom the problem arose. If the shop is opened up in this way, it is likely that a person who is well known would stand a very good chance of subsequently getting the job. That is why it is relevant to ask how the matter came to the Minister's notice and why this particular amendment was drafted.
The Minister made an excellent point in speaking about these amendments, specifically the provision which seeks to lower the requirement regarding legal service as a barrister or solicitor from ten years to eight. He correctly drew a parallel with the District Court and made all the relevant points about the importance of the role of military judge. He spoke about the possibility, for example, of an officer's career being exterminated. He talked about how inappropriate it would be to have a lower standard of required legal experience than would apply in the case of a District Court judge. He is absolutely right, and perhaps that is the reason we should not lower the required period of experience from ten years to eight. If the Minister implements that reduction, it will leave several people within the Defence Forces - not just one individual - in a position to apply for the post. He is correct to refer to the District Court, but he does not point out that when it comes to the appointment of a judge of that court, there is no backdoor mechanism which allows it to be overlooked that a person does not have ten years experience.
The Minister cannot have it both ways. He cannot, on one hand, insist that we retain as sacrosanct the requirement that a person must have practised as a solicitor or barrister for ten years and, on the other hand, propose an amendment which would allow a selection committee to drive a coach and four through that requirement in respect of a particular post, not in terms of the duration of the work but in terms of deeming eligible for a post an officer who happens to be a barrister or solicitor but who has not worked for ten years in a role in which it was required that he or she be a barrister or solicitor. Would the Minister prefer somebody who has been busy prosecuting courts martial for eight years and knows his or her way around the military justice system or somebody who has been in a desk job for ten years, with no involvement in work which required him or her to be a barrister or solicitor? It seems invidious that the Minister would seek to open a loophole for one category but not another.
There is something undesirable about the way in which this legislation has come before us. I am not blaming the Minister, because I do not know who to blame. I do not know if the fault lies with the Minister, his officials or the Defence Forces, but we should have been told. On any index of transparency, corruption and democratic accountability - and there are such indices - something that must cause concern to people of good faith is a situation where the Executive of a country would not disclose significant factual background to the Legislature. In this instance, it is not so much that someone wanted to pull the wool over our eyes but that someone was quite content to leave the wool over our eyes if we were not in a position to pull it back ourselves. That is problematic.
If only to rule out the suspicion of preferential treatment, this factual background should have been brought to our attention. In the courts it is not enough that a judge be impartial; he or she must be seen to be impartial. In the same way it is important that this legislation should have been seen to be grounded in good faith. For all I know, the Minister may be tearing strips off his officials in the background. We need to know precisely who knew what. The fact remains that what is proposed in this amendment allows a selection committee to overlook an otherwise ineligible person, which would in this instance benefit a particular person in any new competition for the job in question.
It is important to stress that we are discussing a judicial position. The Minister made that very clear. The individual in question will be able to impose fines. However, he or she might also be amenable to a desire from other quarters to the effect that trials be shortened. He or she might also be obliged to make decisions regarding legal aid. These are all matters in which the State might have an interest. That is why the process relating to the appointment of this person must be extremely transparent. I am of the view that there is departure from transparency in what the Minister is proposing.
I will cut to the chase in the context of what I propose in my amendment. In so far as the appointments of the Director of Military Prosecutions and military judges are concerned, it is currently required that people being appointed to such positions be serving members of the Permanent Defence Force, that they should have ten years' experience as practising barristers or solicitors or, alternatively, that they have served for "any period in a position in the full-time service of the State (including as a member of the Permanent Defence Force and as a civil servant within the meaning of the Civil Service Regulation Act 1956) for which qualification as a barrister or solicitor was a requirement". It was this which allowed legal officers within the Defence Forces to access these positions. Such individuals may not have been working in the Four Courts or in solicitors' offices but they would have spent ten years in a job which required them to be practising barristers or solicitors.
If there is a shortage of candidates for the post of military judge, in particular, and Director of Military Prosecutions, then might it not be inappropriate to allow people with eight years' experience who have been operating in a military court setting to be considered? Even if I am wrong in that regard, I must ask whether the Minister would automatically insist on the same high threshold for the position of military judge as that which obtains in respect of the Director of Military Prosecutions. He correctly stated that ten years' experience as a barrister or solicitor is required in order to be appointed as a judge of the District Court. What is the requirement to be appointed as Director of Public Prosecutions, DPP? Is there are parallel between the latter and the Director of Military Prosecutions?
Is the Minister insisting that the threshold of required experience as a barrister or solicitor should not be lowered from ten years to eight in the case of the post of Director of Military Prosecutions? Even if he disagrees with me and insists on a requirement of ten years' experience serving as a barrister or solicitor, then the second half of my amendment should apply a fortiori. In other words, we should delete from the Bill the power the Minister proposes to grant to the selection committee. I accept the good faith of selection committees. The Minister referred to three officers who will serve on such committees appointed to choose military judges, namely, the Chief of Staff, who would be in frequent contact with the Department, the Judge Advocate General - I accept the independence of the latter but nonetheless these are posts which emanate, in one way or another, from power - and a judge of the High Court, the independence of whom I would certainly accept.
There is another amendment in my name which, for the avoidance of doubt, would assist in ensuring that the most independent type of scrutiny possible would apply in respect of applications. However, I will not speak to it now.
It is wrong that we should allow the selection committee to, as is stated in two separate locations in the Bill, consider the service of an officer. I admit that such an officer must be a qualified barrister or solicitor but what if he or she were not in a role which requires him or her to be a barrister or solicitor? The Minister's proposed change would mean that such an individual's duties and role could be considered and that said duties and role could be deemed to be substantially similar in substance and effect to the duties and role of a person who has served for ten years in a position which required him or her to be a barrister or solicitor.
The Minister is also allowing the selection committee to deem such service to be service as a practising barrister or solicitor. In other words, he is opening a hole a mile wide in respect of the possible access route to this post. He cannot state that the reason he is doing so is in order to open up competition. The latter is already being done through the freeing up of access to the positions to which I refer to people outside the Defence Forces who possess the requisite ten years' experience. In addition, he is also opening up the possibility for the President of the Circuit Court to appoint judges of that court to fill any vacancies that arise on a temporary basis. I fully support his actions in that regard.
The Minister cannot claim that what is being done relates to opening up competition. The hole it opens would not actually admit many more people into consideration. However, it will give a great deal of power to the selection committee to deem that someone within the Army is fair dinkum and is suitable for appointment as a military judge even through he or she may not be serving in a role in respect of which there is a requirement that he or she be a practising barrister or solicitor.
It beggars belief to suggest that this change has not been designed with a particular set of circumstances in mind. The Minister should be honest and state that I am correct in this regard. The relevant provision would not have been drafted if a particular set of circumstances had not arisen. As it stands, the Bill would open up the possibility of the President of the Circuit Court appointing temporary judges and also the wider possibility of non-serving members of the Defence Forces who possess the requisite legal experience obtaining positions as military judges. That is all great and there would be ample competition. As a result, I would argue that there was no need to introduce the provision to which I am objecting.
It is a question of how we regard judges in our society, particularly in the context of the military. Justice within the military is an extremely fraught issue. There is international case law relating to Turkey, etc., in this regard. The last thing the Minister should do is make the appointment of military judges less transparent. The way in which to ensure that the process remains transparent is by putting in place a criterion of practice in respect of the appointment of judges. That has been the method used heretofore. In other words, people were appointed on the basis of the length of time they had been practising or serving in a particular role.
The Minister is moving the process away from one of transparency and raising the possibility that people could be before military judges whose degree of competence for the job has not been assessed in a transparent way. In such circumstances, the selection committee will be able to consider the totality of someone's Army career and state that he or she is a good and smart person - he or she may be perfectly competent in other ways - and can serve as a military judge. It is my opinion that the Minister is inviting a judicial review in this instance.
On Second Stage, Senator Coghlan referred to section 7 and the fact that it states that the Minister for Defence may consult the Minister for Justice and Equality.
I am just making the point in passing. Section 7 highlights the constitutional frailty of the position as it stands. Even though Deputy Shatter is perfectly competent to serve in the roles of Minister for Defence and Minister for Justice and Equality, the two positions should probably not - for all the obvious reasons relating to a democracy - have been combined. Just as there is a separation of powers, there should also be a separation of functions between control over our police service and control over the area of justice. I intend no reflection on the Minister, I am merely making a constitutional point.
There is a departure from transparency in respect of what is currently contained in the Bill. He will allow the selection committee to drive a coach and four through the normal statutory requirement regarding the period of service someone is obliged to have as either a practising barrister or solicitor or in a role where he or she is required to be a barrister or solicitor. That is a major mistake.
I was going to state that the picture had become clearer following the Minister's contribution. Having heard what Senator Mullen had to say, however, I am of the view that a cloud has appeared. I do not understand why those opposite are seeking to reduce the requirement relating to experience from ten years to eight. I believe what the Minister has said in that regard is far preferable in the interest of having the better qualified person. It would appear to me - a layman - even though the Senator is accusing the Minister of having someone in mind that he-----
I apologise. However, it would appear that the Senators on the other side seem to have someone in mind. They want to keep this very restrictive practice and closed shop. As the Minister has said, there was some effort 12 months ago for seven and now 12 months on for eight. I am not accusing either of the Senators. I accept everybody's bona fides. However, it would appear that perhaps whoever is briefing had someone particular in mind.
I agree with the Minister's intention and the thrust of the Bill to widen the pool. He told us yesterday of 22 cases and we must agree with him in the interest of natural justice, equity and fair play trying to break the logjam. He came to office and presumably found a Bill there. He did not design it initially, but may have refined it with his officials. I accept that the Minister is a totally disinterested party acting solely in the public interest.
It has been established that there has been lobbying. I know nothing of any individual and thankfully no one has lobbied me or made any approach. The Minister clearly has had no hand, act or part in any such activity either. Perhaps there is a readily identifiable person in the minds of people on the other side of the House. As Senator O'Donovan has said, some individual engaged an eminent attorney and got an opinion from that senior counsel. The Minister's bona fides and good faith and his open and disinterested approach must be accepted. Of course we accept the bona fides of the Chief of Staff, the Judge Advocate General and a High Court judge. I do not yet understand why the Opposition Senators are trying to narrowly confine this. I accept there is an individual because Senator O'Donovan has admitted that. I do not need to know; I am not interested.
In the Minister's defence, like all of us he has had to declare his interests. He is not hiding anything and we are not hiding anything. For all the reasons outlined this Bill is urgently required.
I thank the Minister for acknowledging my bona fides and disinterest in this area. I also accept the Minister's bona fides, but somebody is leading somebody up the garden path. Perhaps the Minister has not been shown the full file on the matter either. Whatever about the matter of seven years last year, I was not aware of this Bill. Even if it was there, I had no interest until a few days ago. I did not speak on it to the best of my knowledge because I do not believe it came before this House last year. The Minister should not throw in red herrings. The blame lies with the Department.
The Minister has gone on about eight years and ten years. Last year on the advice of the Department, a particular individual, who did not have one day's experience in any court, was recommended and was basically sworn in. Let us get the facts clear here - he had not one day. A perusal of the CV on the www.military.ie website shows him as having no legal appointment and was not involved in any way in the legal services over the particular year. The Minister's predecessor, Mr. Killeen, who has now left politics, did not proceed because he was under threat. There was legal action. The Minister has admitted today that letters came to the Department about this person being ineligible. So Mr. Killeen, with the threat of possible legal action and on the advice of senior people in the Department, stood back from this. Perhaps he should have taken action.
The Minister now finds himself in this position and I accept his bona fides. Supporting what Senator Mullen said, it is very difficult to get away from the fact that a favoured person within the Department was on the verge of being appointed, but could not be appointed under the existing legislation because he or she was ineligible. Now that person may reap the rewards of this new legislation.
Perhaps naively, I proposed a reduction of the requirement from ten years to eight years to facilitate a greater number of people. I have no problem with the proposal to widen the net to include people outside the area. However, I want to ensure the Minister and the senior people in the Department know that I have no particular person in mind for this job. The bulk of my information came from somebody who is no longer in military service, but I have taken an interest. We are introducing legislation on whistleblowers and there is deep concern among military personnel, including people who have served abroad. Some people would turn in their graves if they knew what was going on. Let us call a spade a spade and let us not dress mutton up as lamb. While I accept the Minister's bona fides in what he is trying to do, there is a history here which has not been outlined to us clearly. I believe the failed appointment, so to speak, of this individual has caused serious embarrassment at the top level in the Department and needs to be put in the public domain. As the Minister has said, there was a threat of legal action. The person involved sought legal opinion when he thought he might not be appointed. I accept that legal opinion might not be available to the Minister or the Department, but he did not seek that for the sake of spending a few extra bob.
There is a serious agenda by somebody in the Department of Defence to get this person appointed to a particular position and I am not convinced that the Minister knows the full facts. Perhaps he should ascertain them before Report Stage tomorrow evening because I will have another letter, which might create embarrassment for somebody here or somebody in the Department, indicating that there is considerably more beneath the surface. In one sense I am being denigrated here for proposing to reduce the requirement from ten years to eight years and it is implied that I am trying to facilitate someone. I put up my hands and say in good faith that I am not. Most people who have served with me in the Oireachtas over 17 years know that I do not play political ball. However, when I come across something of importance, I want to air it.
Last year the Department indicated that this matter needed to be resolved but in favour of A, not to widen the circumstances. That person did not have one day of legal practice in any court, civil, criminal or military. All is not what it may seem and I am not convinced. I accept the Minister's bona fides that he is trying to resolve this problem. I also accept what has been said about the 22 outstanding cases. Some of these are on appeal and are of a technical nature. Many of those could be disposed of in one or two weeks. One must also question appointing a Circuit Court judge or somebody of that capacity permanently to the military court. Military courts do not have the day-to-day backlog that District Courts have. I know that the District Court judge in my area sometimes sits until 6 p.m. or 7 p.m. There are backlogs in the Circuit Courts, Central Criminal Court and all the way up the system despite extra judges having been appointed. By in large, and I am subject to correction on this, in any given year a military judge will deal with perhaps 15 or 20 cases, some of which are of a minor nature.
I have no agenda and I appreciate that the Minister accepts my bona fides.
I do not have anybody in mind for this job but I reckon that in terms of transparency the truth must out. Do I sleep? Do I dream? Do I wonder and doubt? Are things what they seem or are there visions about? There is something beneath the surface that has not emerged yet.
I have nothing hidden beneath or above the surface. I have studied the Bill. I spoke on it yesterday and am speaking on it again today. I corrected the Order of Business for the simple reason that I thought Senator Mullen was being selective in what he was saying. We have a rule in this House when the person is not here to defend themselves. We do not have time on the Order of Business to discuss a Bill and put the entire issue before the House. That is the wrong place to raise it.
That being said, I am here in the Seanad to examine and advance the legislation to determine what I believe is right and wrong with the legislation.
Why would I or anybody else look to find something wrong with the legislation? Why would we want to cover up a mess that existed before this Government came into office? Why would one cover up anything? One would want to put every mess that existed previously out in the open if one were politically minded to do so. I believe I heard the Minister say yesterday that there are 22 cases outstanding in legal limbo. That is 22 families that must be dealt with but the previous Minister obviously saw fit to sit on the fence and do nothing.
In terms of the legislation before us, we must be sure that it is the correct way to proceed. When I heard that under the old rule there would only be five people eligible to compete for this post., and I was not aware of that until yesterday, I thought it was madness. If I were hiring a personal assistance or whatever I would interview more than five people, and I have done that. That is a very limited pool.
Time is one thing but we could have some doodah, as it were, sitting a long time on a Bench who may not be worth his or salt.
We want good people in every job. We have spoken about banks and appointing people to organisations, and I will not mention any organisations because they have all made the news, where people came from other facets of life. The were brought into banking positions but they were the best people for the job.
I want to refer to what was said by both Senator O'Donovan and Senator Mullen. Senator O'Donovan said the issue raised hackles within the Defence Forces. I am not here either to pity the Defence Forces or shy away from their hackles being raised. If anything, we as Senators should be raising our hackles in terms of people on the outside.
I would not be embarrassed at all. This legislation is correcting that mess.
This Government created a facility that would protect whistleblowers but I would point out that there is a difference in terms of a whistleblower, a vested interest and a conflict of interest. There are three different items we have to consider. We have information on what is lobbying. It is banned under certain legislation. We only got information on the NAMA aspect yesterday. It is banned under that legislation. Vested interests are banned. We are not supposed to take into consideration any vested interest but we are to take into consideration people who have a conflict of interest. I support legislation to protect whistleblowers who have the interest of society as a whole at heart, not vested interests or conflicts of interest but the interest of the good of society. That is what I am here to protect, nothing else. Nobody has made representations to me, and I would not make up my mind on that. I am reading the Bill. Is it a good Bill? Yes, because it opens up the scope for more than five people to apply. It is a good Bill also in that it provides for a substitute military judge and a director of military prosecutions to come in. All of that is good and that is the reason the Bill must be supported.
On the issue of the select committee, we have heard ad infinitum about the Minister in previous Governments choosing his own people for a particular job.
On a point of order, although I am not sure it is a point of order, the misunderstanding arises in that there is a difference between the select committee, which has nothing to do with what we are doing here, although it will in due course, and the selection committee which I believe is what was referred to.
I will make a brief point. I notice the Leader is in the House. This is an important issue and it is important legislation. I wonder if the Leader would consider the possibility of extending this debate to ensure we are not guillotined on such important legislation to do with our Defence Forces. I ask that the debate might be adjourned if we run short of time today. Members are raising in good faith important issues to do with transparency and the judicial system within the Defence Forces. I take the opportunity to ask the Leader to give some thought to that suggestion before the bell goes on this debate.
Arising from what Senator Coghlan stated, it must be understood that everybody in this House is in favour of widening the pool. Were the amendment to reduce the required years of service from ten to eight to be accepted, it would benefit about five legal offices and make them eligible in those circumstances, but I understand, and this is the key point, that under what the Minister is proposing there would be about ten to 12 people eligible for this post within the Defence Forces. That is the figure we must focus on because these appointments often come from within but what we are all agreed on is that the pool should be widened dramatically. The eligible pool under what I am proposing would be something of the order of 5,000 if we were to count all the practising barristers and solicitors with the requisite years of experience.
It addresses what Senator Coghlan spoke about. Senator Coghlan and Senator Keane seem to be under the impression that what I am proposing would leave a narrow pool of applicants for these posts. That is not the case. I am with the Minister in terms of widening the pool to include non-serving members of the Defence Forces with the requisite number of years experience practising as solicitors and barristers.
I want to ask a question of the Minister as we are on the issue of openness and transparency. We have been careful to ask questions rather than make statements where we did not have the full facts. I would like to know, as we are discussing this case, whether it ever happened that a Secretary General of the Department of Defence, past or present, wrote any reference for the particular individual whose appointment forms the background to part of this legislation and whether there would be anything-----
I am using the floor of the House to tease out an issue. I am doing so in good faith, and I am not making any statements but I would like to know if the Minister can assist me in answering that question, yes or no, and what he would think of it if it were the case that such a reference was given because it goes to the-----
It might be relevant because it goes to the issue of whether, within the Civil Service, there is a desire to get through the appointment of a particular person. I am not saying I would have a major problem with that if there was openness and disclosure about it and provided nothing would be done to prejudice the cause of others who might also want to apply.
I have absolutely no doubt about the intelligence of Members on the Government side. They are very fine Senators and very intelligent, but their making arguments just to support the Government without engaging in detail with the substance of what others are proposing is reminiscent of what Gilbert and Sullivan had to say about the fellow who became the captain of the "Queen's Navee":
I have listened to the debate for one and half hours and it seems to be just one circle after another. I have no intention of extending the time, therefore. We have discussed the amendments at length and the Minister has given an adequate and very clear interpretation of the Bill, in addition to very clear answers. If points had been raised other than those raised on Second Stage and those we have discussed ad nauseam here today, I would certainly increase the time allowed, but I will not do so in this case.
I second the request of Senator Mullen for further debate. With all due respect to the Leader, for whom I have much respect, we have only dealt with three or four of the 15 amendments. Some very important information has emerged today from the Minister regarding a likely legal challenge on this issue. The former Minister, Deputy Killeen, procrastinated because correspondence had been received by the Department stating trouble would arise if he did not proceed. He was caught in a crux. Obviously, the election occurred sooner than he wanted and there were developments since then. I can understand why a Minister would be anxious to proceed with this legislation but it is important that all the amendments tabled, especially on Committee Stage, be teased out. The first three or four amendments have been grouped. Some of the amendments are mine and the amount of debate in which I have engaged has been quite reasonable. Will the Leader consider deferring Report Stage and having this debate continue tomorrow evening, even if we must sit early on Tuesday? It is worth teasing out properly because there are serious circumstances behind the scenes causing me much concern and angst. It is fine to blame what happened last year for what is occurring but the fact is that there was a legal threat to the Department, and the Minister was advised accordingly. I accept this must be resolved, and I accept the Minister's bona fides is in this regard, but there are skeletons in the cupboard that we have not yet seen.
The only skeleton in the cupboard is one left behind by the previous Administration. Let us be absolutely clear about this. I did my best to set out very clearly how matters stand. I have listened to Senator Mullen and, at greater length, to Senator O'Donovan making exactly the same speech as if I had given no explanation of any description to the House. Perhaps Senators O'Donovan and Mullen will do a little more research. Perhaps when we return to this matter in the House tomorrow, they will state the exact number of individuals within the Permanent Defence Force who would benefit from the amendment they propose, which would have the effect of reducing the period of ten years to eight years.
Senator Mullen says it is five individuals. He is accusing me of trying to enact legislation to benefit an individual when we know this legislation will extend eligibility for appointment to thousands of barristers and solicitors. However, for some reason, both Senators have made a mountain out of a molehill with regard to this legislation and seem to be engaging in special pleading for what Senator Mullen states is five members of the Defence Forces. I do not know the exact number; it is possibly fewer than five.
I am accused of trying to introduce legislation that provides a far broader test of eligibility in order that there will be a real pool of people from whom the military judge can be chosen. For an hour and a half, Senators Mullen and O'Donovan have entertained this House because they want to try to ensure the next military judge will be chosen from a group of five.
As it is 4.15 p.m., I am now required to put the following question in accordance with an order of the Seanad of this day: "That amendment No. 1 is hereby negatived; that the Government amendments undisposed of are hereby made to the Bill; in respect of each of the sections undisposed of, that the section or, as appropriate, the section, as amended, is hereby agreed to; that the Title, as amended, is hereby agreed to; and that the Bill, as amended, is hereby reported to the House."
The Seanad Divided:
For the motion: 28 (Ivana Bacik, Paul Bradford, Terry Brennan, Colm Burke, Deirdre Clune, Eamonn Coghlan, Paul Coghlan, Michael Comiskey, Martin Conway, Maurice Cummins, Jim D'Arcy, Michael D'Arcy, John Gilroy, James Heffernan, Imelda Henry, Lorraine Higgins, Caít Keane, John Kelly, Maire Maloney, Mary Moran, Michael Mullins, Catherine Noone, Susan O'Keeffe, Pat O'Neill, Tom Shehan, Jillian van Turnhout, Jim Walsh, Katherine Zappone)
Against the motion: 13 (Sean Barrett, Thomas Byrne, Mark Daly, Terry Leyden, Marc MacSharry, Rónán Mullen, Darragh O'Brien, Denis O'Donovan, Ned O'Sullivan, Averil Power, Kathryn Reilly, Jim Walsh, Diarmuid Wilson)
Tellers: Tá, Senators Paul Coghlan and Susan O'Keeffe; Níl, Senators Ned O'Sullivan and Diarmuid Wilson..
Question declared carried.