Seanad debates
Friday, 8 July 2011
Defence (Amendment) Bill 2011: Report and Final Stages
1:00 pm
Paddy Burke (Fine Gael)
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Before we commence I remind Senators that except the proposer of an amendment, who may reply to the discussion on it, Senators may speak only once on Report Stage. Also, each amendment must be seconded.
Denis O'Donovan (Fianna Fail)
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I move amendment No. 1:
In page 3, to delete lines 5 to 18, and substitute the following:
"AN ACT TO AMEND AND EXTEND THE DEFENCE ACT 1954; TO MAKE FURTHER PROVISION FOR THE SERVICE REQUIRED FOR APPOINTMENT AS DIRECTOR OF MILITARY PROSECUTIONS AND MILITARY JUDGE; AND TO PROVIDE FOR RELATED MATTERS.".
I tabled this amendment in an effort to bring clarity to a particular situation. The Minister stated in his Second Stage contribution that given the small cadre of legal officers, there is a significant possibility that a judge could have knowledge of persons who come before him or her. Such a scenario is not currently provided for in the Defence Acts and this Bill therefore seeks to address it. On principle, I do not have an issue with that. The Minister also stated that while the Defence Forces are introducing more clarity in relation to the job specification for such posts which will make clear whether being a barrister or solicitor is a requirement for a particular job, the fact remains that some individuals have been undertaking such work over many years and clarification is required whether their service meets the service requirements for appointment to the posts of director of military prosecution or military judge.
I proposed by way of earlier amendment that the term in this regard be reduced from ten years to eight. Earlier, I pointed to RACO's possible involvement in this area. I was clear in stating that representations were not made to the Minister. In regard to the Minister's statement relating to there being only a small cadre of legal officers, I and other Members contend that this legislation supports, among other things, the application of one particular person. I understand that military judge is a serious position. However, I would like to make a few points to which perhaps the Minister might respond.
The person recommended by the selection committee to be military judge was a member of the national executive of RACO. I pointed out on the last occasion - the Minister thought this irrelevant - that opinion on this matter had been obtained from an eminent senior counsel and former Attorney General, about whom I am sure he did not say anything derogatory. It is interesting that this opinion, which I have studied - the Minister might consider studying it - was sought and paid for by the national executive of RACO. This national organisation, representing Army personnel, has a direct hand in choosing who will be a military judge. Apparently this is all irrelevant.
I saw the minutes of the national executive meeting of the Representative Association for Commissioned Officers, RACO, from 14 December 2010, when it was informed that an opinion had been received from a senior counsel for the named individual who was to be appointed a judge. This may all be a red herring and perhaps RACO has nothing to do with it but some in the Department dealing with defence argue that to say that RACO is not up to its neck in this Bill and that appointment is absolute nonsense. The Minister should take that on board.
There are two points to be made. This indicates the ease of access that a representative association such as the Garda Representative Association or the Law Society has to senior personnel in the Department. It may be a good or bad idea but I have reservations because the process is not transparent. How appropriate is it for a representative association to lobby for a military appointment in the capacity of a judge? When the appointment fell on hard ground and did not proceed, the same representative body at national executive level sought and obtained an opinion from an eminent senior counsel. The person to be appointed a judge, who shall remain nameless, is a member of the body which paid for the senior counsel's opinion. The body's mistake was to distribute the opinion to 25 people.
The Minister has spoken about independence and argued that the purpose of the Bill is to bring about transparency and independence. Nevertheless, the representative association at the top level is dictating the pace as far as this appointment is concerned. The Minister would be misleading the House to tell me otherwise. It is a very serious matter and although the Minister may not be able to address it today, he should take it on board.
I do not raise such matters with light heart and as I said, I have no agenda. Nobody has lobbied me on the matter either but this is in the public interest. Already the knives are out, perhaps at a departmental level and certainly within RACO. I do not like the close and cosy relationship between RACO and senior Department officials. There will be more to this issue when it goes to the Dáil next week or the week after because I have only scratched the surface. I was irked when I was told I was stupid and did not know what I was talking about. Remarks from other Senators were attributed to me and my comments from Wednesday's Order of Business have been misrepresented. That led me to stand my ground and fight my cause as best I can in the interests of this House, fair play and equity.
Further to the amendment, I have a couple of questions to put to the Minister as I have not received much clarity to date. Any of the admissions made about correspondence and difficulties had to dragged out of the Minister; it was like trying to pull teeth from a duck.
Alan Shatter (Dublin South, Fine Gael)
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Ducks do not have teeth.
Denis O'Donovan (Fianna Fail)
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Why was the full story not outlined in a transparent fashion to the Oireachtas as opposed to the dripping of facts on a gradual basis? The Minister could have told the House that the Department is in a bind, having given a clear commitment to a particular individual who was later found to be ineligible for the post. He should have told us that and that the legal opinion was that the process could cost much money. Those of us in the House could have sought to resolve the problem rather than cause any more trouble. We were not told the full facts.
For example, the full facts concern an attempt by a select committee to appoint an officer as a military judge who was ineligible for the role. The Department, having initially denied the existence of correspondence, now admits it received a number of letters expressing concern by no lesser body than the legal services division of the Army. The individual concerned was to be promoted to the office of colonel, with the name to be presented to the Minister for acceptance as judge. On legal advice the application did not proceed. The officer in question who was to be appointed a judge sought advice of senior counsel, through his association, and the opinion was promulgated by circulation at a particular meeting.
I am concerned that a politburo of people involved in this, either in the Department or in RACO, have questions to answer. I promised this House and the Minister that every month I will raise the matter on the Order of Business or the Adjournment until I get answers. I will also ensure that colleagues in the other House raise the matter, as something sinister is ongoing that is certainly not transparent. Why has a representative organisation looked to get a judge appointed, and when this did not happen, why did it pay for and get a senior counsel opinion? Is that transparent and appropriate? If the GRA, Law Society or Bar Council decided to do this with a solicitor or barrister, I am sure the Minister would accept that as totally wrong. What I say today I am certain of and I have full details on the matter.
There is another problem of which the House should be aware. An opinion was given by a senior counsel and I am not denying the right of the person in question to obtain an opinion. However, the representative association should represent the association as a whole rather than an individual. It is also unusual that the individual was chosen to be the appointed judge, although perhaps a military judge is much less important than a District Court or Circuit Court judge. In the opinion sought by the national executive of RACO, there was clear and critical advice that he or she "had a legitimate expectation to be appointed to that office by the President and such appointment should proceed".
This person has been appointed a colonel and has five years left to run. I do not have a problem with him being elevated in the Army, although it was done to facilitate appointment as a judge. His annual salary as a military judge is to be €140,000 per year but the Department would have to pay him off because he is ineligible; I estimate the Department could be facing a legal Bill of between €1.5 million and €2 million, inclusive of costs. I have some experience of District and Circuit Courts in that regard. Perhaps I am paranoid but I imagine that was a critical thought. It is a bind as the person is ineligible and the Department is concerned about being sued, as are most Departments. Departments go into a defence mode, if the Minister will excuse the pun.
Somebody could have told us the Department is in a bind. Among other matters, the legislation will facilitate this appointment, although it may not come about because of exposure. The person in question may sue the Department. If there had been transparency and we had known the State could be caught for a couple of million euro, we could conclude that we are in dire straits. The manner in which the process has been ongoing, in a non-transparent fashion, gives me shivers down my spine.
If the legislation proceeds and is voted through, it will be a clear attempt to make perfect an imperfect appointment of 28 July 2010. The Minister made a great fuss about the delay of the 22 cases, and I am not saying that should be ignored, and said it was the fault of the last Minister and so forth. However, the last Minister had a gun put to his head when he knew this appointment was wrong. The Minister knows, or should know, about the legal opinion that was sought, the engagement with RACO at top level, the engagement with departmental officials at top level and what was happening. The lack of transparency sticks in my craw. We are being told about it bit by bit. Yet, the Minister said on the last occasion that RACO had nothing to do with it.
I spent four hours today going through the Official Report and I never accused the Minister in my speech of meeting with RACO. However, I said it had an involvement and I am correct about that. It had one meeting with a Fine Gael Deputy who I will not mention but for whom I have great respect. It was entitled to do that.
Rónán Mullen (Independent)
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Go on, mention it. Would it be Deputy Stanton?
Alan Shatter (Dublin South, Fine Gael)
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The Senator is mentioning everyone else.
Paddy Burke (Fine Gael)
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Senator O'Donovan without interruption.
Denis O'Donovan (Fianna Fail)
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That is shifting the focus. The focus should be on the fact the Minister, on Second Stage, put a particular spin on the story to the House regarding the purpose of this legislation, and I do not accept it. I believe the Minister was led up the garden path. I have known the Minister since 1997, when he was involved in the Abbeylara committee and so forth, and I have great respect for him. He is a very able lawyer as well as being a Minister. However, somebody has sold him a pup in this regard. He then tried to taint the sincerity of my amendment, which seeks to reduce the term from ten to eight years. I could be wrong about that but I put the amendment forward in good faith. The Minister is trying to spin it as me trying to facilitate a particular individual or small group of individuals. Even if I were, it is a small price to pay for what has taken place in the background.
Senator Mullen correctly pointed out on the first day of debate on this that there is a backdrop to this case which we do not know about and that more will emerge. In moving the amendment I have asked a number of questions. I hope the answers will be factual, not evasive. The Department is in a serious situation. Incidentally, when people talk about who said what to whom, I am entitled to be approached by people on this issue. Nine people have already contacted me about it, some of whom are no longer serving members. At least two of the people who gave me a great deal of information have no axe to grind. They are Army personnel but they can never be appointed as military judges or prosecutors. The plot thickens and the avenue widens.
I rest my case on this amendment. However, I have raised many legitimate questions which should be answered. If the Minister cannot give the answers, somebody in the Department knows a great deal more than they are telling him. I will produce a memorandum, although probably not today. I have seen a copy of it but I am anxious to have it authenticated as a departmental memorandum which not only corroborates but authenticates some of the serious points I have raised.
Thomas Byrne (Fianna Fail)
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I second the amendment. I pay tribute to Senator O'Donovan and Senator Mullen for raising this issue. It was most unfortunate of the Minister to respond on Second Stage to what were not criticisms of the Minister with very highly personalised criticisms of Members of this party who spoke in the debate. They dared to exercise their rights as Members of this House. It stuck in my craw, in particular, that the Minister chose to slag me about losing my seat in the Dáil. He lost his seat in the Dáil in 2002 so he knows it is not a nice experience. However, we have been elected to the Seanad. I was delighted to be elected a Member of this House and I have a right and mandate under the Constitution to express concerns.
Nobody in the course of this debate, especially on Second Stage, made the type of personalised comments the Minister made. However, that is par for the course with the Minister, as the RTE reporter, Paul Reynolds, also knows. The Minister made highly derogatory statements about the reporter when he alleged that he did not get his facts right, which is probably the worst thing one could say about a reporter.
Paddy Burke (Fine Gael)
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That has nothing to do with the amendment.
Thomas Byrne (Fianna Fail)
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That is par for the course. We are raising very serious issues-----
Paddy Burke (Fine Gael)
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The Senator is not talking to the amendment.
Thomas Byrne (Fianna Fail)
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-----but I fully expect the Minister to reply again with personalised comments. No criticism of the Minister was made in the debate on this Bill. We simply said there is a back story here involving the Department. My recollection is that I said the Minister was perhaps not aware of the situation that was relayed to Members of this House. When concerns are raised it is correct that we raise them when dealing with legislation in the Seanad. My appeal to the Minister on Second Stage was that he listen seriously to the concerns raised, withdraw the Bill and look again at the matter. It appears that this Bill will benefit one individual, if that is possible after this debate. However, it is not about this individual but about the entire process and the idea that legislation could possibly relate to one individual and be concerned with allowing that person to get a promotion.
The appointment of judges, whether it is in the civil or military court system, should be as open and transparent as possible. Certainly, representative bodies should not get involved in it. I do not know of any precedent for the Bar Council or the Law Society getting a legal opinion as to whether somebody has legitimate expectations when it is my understanding that the person was not qualified at all. It is particularly a matter of concern in the military. As we have said, the pool of people is so small that the chances are that they might know somebody who might be before them.
It is not fair to dismiss the amendments put forward by my party colleague, Senator Mullen, and Senator Quinn relating to reducing the time limit. Yes, there might be five or six people who would benefit from that, but they are certainly not known to me. The intent of the amendment is genuine and sincere. It is at least an attempt to broaden the procedure. It is unacceptable that a person's qualifications for the position of judge can be decided on an ad hoc basis and not set down clearly in legislation.
I ask the Minister to accept that what has been said on this side of the House has been genuine. Information has been given to us and we should pass that information on in the course of a Seanad debate. Perhaps we would have more time to debate these issues if we were not faced with a rush of legislation on various matters. I did not raise it at the time but yesterday, for example, it was unfortunate that the Civil Law (Miscellaneous Provisions) Bill contained no mention of the Official Languages Act in the Long Title. Somebody who is not-----
Paddy Burke (Fine Gael)
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The Senator should speak to the amendment before us.
Thomas Byrne (Fianna Fail)
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There is a flood of legislation being introduced at the last minute, much of it guillotined-----
Paddy Burke (Fine Gael)
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That has nothing to do with the amendment.
Thomas Byrne (Fianna Fail)
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-----at short notice, which does not give Members time to study it properly. That is a concern. To return to this Bill-----
Thomas Byrne (Fianna Fail)
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-----the amendment is an opportunity to discuss serious and genuine concerns. We are not out to get a Minister. We are trying to ensure greater transparency and to get answers to questions. As Senator O'Donovan said, the spokespersons for the main parties should have been briefed. They could have been told: "Look, we have a serious problem. We need to pass this Bill as otherwise we will be landed with a huge legal bill." I have no doubt Senator O'Donovan and my party would have understood. However, that was not presented to us in any form. I was not present on Committee Stage so I do not know if the Minister has admitted that on behalf of the Department.
Rónán Mullen (Independent)
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The Minister is right about one thing, ducks do not have teeth but severed edges on the inside of their bills do help them grab weeds underwater, bugs and so forth. It is appropriate, given that in the last couple of days we have spotted some underwater weed beneath the surface of this Bill, some uisce faoi thalamh. We have been within our rights to raise the issue and to seek a precise account on it.
I will not say a great deal at this point as I will save most of my comment for my amendments, but Senator O'Donovan appears to feel the Minister blamed him for something I said. If I said anything incorrect, I am happy to have the record corrected. It might have been about the precise position of those who would sit on the selection committee. I have no problem accepting the good faith and the precise relationship they will have with the Department of Defence and the Minister. It is probably a somewhat tangential point, but if it is an issue of concern to the Minister, I would be happy if he would clarify it. I will accept any clarification on any issue of fact in that regard. I will reserve further comment for my amendment as I do not wish to delay the House unduly.
Paul Coghlan (Fine Gael)
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Now, there will be light thrown on the matter.
Terry Leyden (Fianna Fail)
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This amendment has been extended somewhat. I welcome the Minister and I am delighted he is taking the Bill.
Terry Leyden (Fianna Fail)
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I appreciate that but I want to make a declaration of interest. I was partly nominated by RACO to contest the Seanad election. RACO is a body which represents many organisations, including PFORRA, the GRA and so on. It nominates seven people to contest the Seanad election. Three of those people were elected Members, including the Leader, Senator Ned O'Sullivan, who was also nominated to contest the election by ICTU, and myself.
I have been nominated by RACO for a number of years, so I took the initiative to contact it about this matter. It said it has no hand, act or part in this situation. It only became involved six months after the appointment was recommended, so it had no influence in regard to the appointment of the individual, although he is a member and is on the executive of RACO. As a member, he is entitled to seek support from the organisation. Some 99%-----
Maurice Cummins (Fine Gael)
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The Senator will have to explain that to his colleagues.
Terry Leyden (Fianna Fail)
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I want to explain to my colleagues that without the RACO's nomination, I would not be here. Let us be quite clear about my position.
This Bill was drafted before the Minister came into office by the previous Minister, Tony Killeen. I am not going to get involved in this row. I just want to explain my position.
Alan Shatter (Dublin South, Fine Gael)
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The Senator is being very helpful.
Terry Leyden (Fianna Fail)
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I do not care whether I am quite helpful or not. My bread and butter is my nominating body and it did not lobby me on this issue. I contacted it.
Terry Leyden (Fianna Fail)
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It had no involvement until the appointment was made and it seeks the Military Police to investigate the leaking of documents in regard to this issue. That is its prerogative. The Chief of Staff can look into that particular matter.
Rónán Mullen (Independent)
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Who paid John Rogers? That is what I want to know.
Terry Leyden (Fianna Fail)
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RACO told me it did not lobby on behalf of an individual to get this job, and it can issue a statement itself. I am not authorised to make any statement on its behalf. I am informing the House that I contacted RACO, as I am entitled to do because I was partly nominated to contest the Seanad election by it. As a member of this House, I must represent my party, the Independents, Fine Gael, the Labour Party, Sinn Féin and everybody who helped elect me to this House. While I am in this House, I will express-----
Paddy Burke (Fine Gael)
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I fail to understand what this has to do with the amendment.
Terry Leyden (Fianna Fail)
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I will give this information which has been put at my disposal by the general secretary of RACO who is very upset about this situation. RACO had no hand, act or part in the recommendation and support of a person for a job. It is a representative association and it is entitled to represent its members if it believes they have particular difficulties. That was what RACO was set up to do in 1991 by a Fianna Fáil Government. The late Brian Lenihan senior was the Minister involved.
Paddy Burke (Fine Gael)
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What has this to do with the amendment?
Terry Leyden (Fianna Fail)
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It was formally established by statute under the Defence (Amendment) Act 1990.
Paddy Burke (Fine Gael)
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Can Senator Leyden get back to the amendment?
Terry Leyden (Fianna Fail)
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I am just explaining what RACO is in order that people know about it. The Defence Forces regulation is the statutory instrument that gives effect to that Act and governs, inter alia, the establishment, funding and operation of representative associations in the Defence Forces.
I have said enough. I was only making the point that I was nominated to contest the Seanad election by the organisation. I have always put forward the views of the Garda Síochána-----
Alan Shatter (Dublin South, Fine Gael)
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This is getting more interesting as we go on. I thank Senator Leyden for his contribution but I will correct one thing he said. There are a number of things I find disturbing about what has been happening in this Chamber. I would have expected something better from some Members of this Chamber. I have sat through this debate and we are on day three of it. Comments have been made which are derogatory of the reputation of officials in the Department of Defence. There is a suggestion they are engaged in some sort of conspiracy or that I have been led up the garden path. As someone whose hobby is gardening, I am quite happy to go up any garden path but I certainly have not been misled on this issue.
It has been a disgraceful attack on RACO suggesting that it is trying to influence judicial appointments which I think for a representative body is grossly unfair and which is why I welcome what Senator Leyden said. There is a suggestion that RACO has secretly, in some shape or form, drafted the legislation before the House or that it has been drafted by my officials in the Department in consultation with and under duress of some description from RACO.
Alan Shatter (Dublin South, Fine Gael)
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I am absolutely clear that what was said about RACO was most unfair to that organisation.
Denis O'Donovan (Fianna Fail)
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The Minister said it had nothing to do with it. It got a legal opinion.
Alan Shatter (Dublin South, Fine Gael)
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As Senator Leyden said, it has had nothing to do with the legislation before the House. In so far as a member of RACO sought that his representative body represent his position after he found himself, through no fault of his own, in a difficult position last summer, RACO did what I presume any representative organisation would do. I had no prior knowledge of whatever opinion this gentlemen obtained from the senior counsel, who was referred to yesterday, nor did I know that RACO paid the bill for the opinion. If a Senator says so, so be it but that has nothing to do with why this legislation is before the House.
This debate has a sort of "Alice in Wonderland" feel to it. No matter what one says, it is as if one has not said it and the same things keep getting said. On the other side, it is like we are living in two parallel universes.
I will come back to a very simple thing, and I have checked out some matters since yesterday for the information of the Senators, which I will come to. When I came into office, there was a problem in this area of which the former Minister, Tony Killeen, was aware. The Bill before us was not drafted during his time. It may be that some work was commenced on preparing a Bill, but the Bill has been finalised during my time as Minister with substantial input from the current Attorney General. It may be that the former Minister intended to travel some of the route on this. It would have been blindingly obvious to the former Minister as of September last year that there was a problem.
The problem was very simple. The selection committee and not some "select committee", as one Senator keeps referring to it as, chaired by a High Court judge and which had the Judge Advocate General on it - two completely independent individuals - and the Chief of Staff selected an individual about whose reputation I am concerned because of comments made in this House. It is not normal in my experience in the Dáil that a debate centres around some individual and that one keeps talking about his or her circumstances. I deliberately did not talk about an individual's circumstances in my opening speech but talked about the problem we had to address. However, the debate keeps coming back to this individual.
This individual was properly selected as far as that committee was concerned to fill the position of military judge. An issue then arose as a result of some other intervention with regard to whether he fulfilled the legal eligibility criteria. When that committee was reconvened in September, it was unable to resolve the issue. It was not that he was determined to be ineligible; the committee was unable to resolve the issue because of the obscure wording in the defence legislation. The matter has rested since September; there was paralysis and nothing was done. Perhaps the former Minister had in mind to progress something but I can tell Members for sure that it had not been progressed when I was appointed Minister and it was drawn to my attention that this was a problem.
The problem was that we had no military judge and an increasing number of cases waiting to be heard. As I said yesterday, the number of cases was 22. We had an individual who had been selected but about whose eligibility there was an issue. We had no appointment and we had legislation which was defective and which was enacted by a previous Fianna Fáil Government.
There were two things I could do as Minister - stay in a state of paralysis and ignore the problem or address it. I could have taken the solution Senator O'Donovan has come up with, namely, keep the same criteria and reduce the term of years from ten to eight. What was the reason for not adopting that approach? Yesterday I referred to the importance of ensuring people were barristers or solicitors for a minimum of ten years and the fact that, as a result of their experience of working as lawyers in that context, they would make suitable judges.
I have had the numbers checked and double checked because there has been great inaccuracy about the numbers among those Members of the House who are unduly excited about this issue. The numbers are simple. To solve the problem and appoint a military judge, clearly a new competition would have to take place. If I had ordered the holding of a new competition, there would have remained in the ether a mystery about whether the gentleman who had originally been selected for this position would be eligible for the next competition. It was not, as Senator O'Donovan states, that a decision had been made that he was ineligible, but there was a doubt and a concern as to whether he was eligible and a concern that if the appointment proceeded and he proceeded to hear court martial cases, an issue could arise in the courts with one of the hearings that might take place before him. If I had simply ordered that a new competition take place, he could still have properly applied. If I had lowered the age profile from ten years to eight, he could still have applied and the same problem would have remained.
We had to redefine eligibility. If one is to redefine it, the next question is whether one wants to have a very broad or narrow pool of individuals from whom to select. If I wanted to do what the Senators have suggested, I would have redefined it to make one or two more people eligible. I took the view that there should be a broader pool and we have it extended it to members of the legal profession, solicitors and barristers, with ten years experience. Let us look at what the position would have been had I not done this. I have had some checking carried out. If we were to retain the current criteria and assume the unfortunate member of the Defences Forces who, through no fault of his own, found himself in this anomalous position last September, was ineligible which has not been decided and rerun the competition with those who could have applied, there would be in total, two, one of whom is the current military judge. To be a military judge, one has to be in practice for ten years or more. It gets even more exciting after that, as one of the two is due to retire in September. In practical terms, therefore, there would have been a selection of one.
Rónán Mullen (Independent)
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The Minister is absolutely correct on that point.
Alan Shatter (Dublin South, Fine Gael)
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I have checked the numbers and that is the level of the competition; there would be one person only.
Paddy Burke (Fine Gael)
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The Minister to continue without interruption.
Alan Shatter (Dublin South, Fine Gael)
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Senator O'Donovan is not listening to me. The nub of his case is that I should have in place a selection system, where I preserve the existing law with the attendant uncertainty and assume somebody is ineligible and about whose eligibility there is only uncertainty. Then we hold a competition that only allows the selection of one person. That is not a competition. Let us say we reduce the required number of years practice from ten years to eight. Guess how many additional competitors we would have.
Alan Shatter (Dublin South, Fine Gael)
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We would have two. Therefore, there would be a competition with a pool of three people in total, from whom we could select a military judge. I do not regard that as appropriate. There is a need to widen the pool and ensure we have an adequate number of people from whom we can chose.
Rónán Mullen (Independent)
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Will the Minister acknowledge that that is my position also?
Alan Shatter (Dublin South, Fine Gael)
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Let us say for argument's sake that we held this competition and the person presently in a position to present cases before the military court was appointed as military judge and we lowered the criterion to eight years, one of two could be appointed to the position. I am listening to all of this nonsense about conspiracies and dark secrets and Ministers being led up the garden path and something in the undergrowth, be it under ducts or whatever else-----
Alan Shatter (Dublin South, Fine Gael)
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The position is very clear. I have no idea what Senators Denis O'Donovan and Rónán Mullen have against the poor individual who found himself, through no fault of his own, in this position last summer, but I am asking them to attach some decency to what they are saying. This is a member of the Defences Forces, of unsullied reputation who, through no fault of his own - - - - -
Rónán Mullen (Independent)
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Who has done the State some service in his Army duty
Paddy Burke (Fine Gael)
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The Minister to continue without interruption, please.
Alan Shatter (Dublin South, Fine Gael)
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-----has found himself in an anomalous position. He has sought legal advice. Would anybody in that anomalous position and for whom this legislation has not been tailored not do so? Should we change the criteria, as provided for in the legislation, to ensure there will be a significantly widened pool of people from whom we can select a military judge? I do not know what the Senators have against this man that they want to pillory him and impact on his reputation.
Alan Shatter (Dublin South, Fine Gael)
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I hope we will not have an action replay in the Dáil Chamber.
Thomas Byrne (Fianna Fail)
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The Minister could have explained matters on Tuesday
Paddy Burke (Fine Gael)
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The Minister to continue without interruption, please.
Alan Shatter (Dublin South, Fine Gael)
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Let me continue. Each of the speakers to whom I have listened this afternoon has completely ignored the reality that the Bill seeks to extend the eligibility criteria to barristers and solicitors practising for ten years
Alan Shatter (Dublin South, Fine Gael)
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They are living out the fiction that this is a Bill which has been designed solely to benefit an individual. That is a fiction.
Alan Shatter (Dublin South, Fine Gael)
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It is unfair to the individual concerned.
Rónán Mullen (Independent)
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The Minister should distinguish my case from that of my colleagues.
Paddy Burke (Fine Gael)
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The Minister to continue without interruption, please.
Alan Shatter (Dublin South, Fine Gael)
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Senator Denis O'Donovan keeps on telling us about letters and memoranda that are scurrilous and scandalous that he will or might reveal or somebody will reveal if and when they are able to determine their validity. During the term of office of the former Minister, Tony Killeen, on 17 February 2011 the Office of the Chief State Solicitor sent a letter to this unfortunate man's solicitor. It is not normal or usual to have to go into details of this nature about an individual's circumstances, but in the context of the attempt being made to suggest what is being done is in some way improper, let me say the following: the one mistake made by my predecessor, a decent man whom on a personal level I like and I did not want to bring into this debate, was that he did not address this issue by way of legislation far quicker after last September's events. It is most unfortunate that he did not. If he had done so, these issues would have been resolved and we would not now have a backlog of cases. In addressing the issue he, at least, had a degree of decency and humanity about the position in which the individual concerned found himself last summer. At least, he had this, unlike the Fianna Fáil Senators who tried to traduce the reputation of the individual concerned in this House.
Alan Shatter (Dublin South, Fine Gael)
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I want to exclude Senator Terry Leyden from this.
Rónán Mullen (Independent)
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The Minister should exclude me also.
Alan Shatter (Dublin South, Fine Gael)
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To some extent, I regret that the Cathaoirleach interrupted Senator Leyden but he may have an opportunity, if we suffer the next amendment, to say a little more. What has happened here is most unfair. The Office of the Chief State Solicitor wrote - I presume on the instructions of the then Minister for Defence, Mr. Tony Killeen - that the Minister was conscious of the personal position of the client. This is a reference to the position of the individual in question last summer. The Minister was anxious, if possible, that a fair resolution of the present difficulty be achieved as quickly as possible and that there should be certainty as to the necessary qualifications required for the office. The view of the former Minister was that this poor man was in an unfortunate position and he genuinely felt sorry for him and recognised the need for certainty in the legislation as to who is eligible for the office.
Rónán Mullen (Independent)
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Why did the Minister not inform the House of this on Second Stage?
Alan Shatter (Dublin South, Fine Gael)
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That was the former Minister's concern. My concern was not to address the position of any individual but to put in place coherent legislation in respect of which there could be no confusion as to eligibility criteria and to go further than it appears the former Minister proposed to do, namely, by extending eligibility to a broader pool of people. I did not wish simply to address the circumstances of one individual. As to why I did not refer to the individual in question earlier, while his circumstances indicated a problem in the legislation, contrary to what is being suggested by Independent and Fianna Fáil Party Senators, the Bill I produced was not designed to hand this post to any particular individual.
The former Minister also said something else that was important. He referred in his letter to the appropriateness of amending the current legislation and re-running the competition on the basis of new legislation. He then stated it would be left to the new Minister to consider the nature of the legislation that should be enacted. At least the former Minister had some sense of decency and concern for the plight in which the individual in question found himself. He recognised the inadequacy of the legislation and the need to remove any uncertainty as to the eligibility criteria. He did this in February 2011, which was six months after the decision made at the beginning of the previous September in which it was apparently indicated there was confusion about eligibility.
I cannot fathom the reason it is being suggested that what I am doing is in some way inappropriate or that anyone has led me up the garden path, nor I can fathom the reason officials of my Department and RACO have been subject to criticism. I reiterate that I have met with representatives of RACO and all associations in the Defence Forces, as any good Minister for Defence would do. I have not discussed the appointment in question with RACO or asked it who it believes should be the military judge. I have not specifically discussed with RACO the circumstances of the man in question, nor have I consulted it on the detail of the legislation. This Bill was drafted with the assistance of the Office of the Attorney General and published. RACO did not have sight of it any sooner than any Member of the House, either in its drafting or completion under my watch. I make that clear.
Senator O'Donovan should apologise to the gentleman who found himself in this position last summer for bringing his predicament into the public domain in circumstances where it did not serve any public good or benefit. He should also apologise to RACO for suggesting it has done something wrong or inappropriate.
Yesterday, Senator Mullen stated: "In any contact I have had with any person to do with these issues, any interests have been fully declared to me." A small number of individuals, four in total, have an interest in this matter. Perhaps the Senator will state with which individual he was in contact and the nature of the interest he or she declared to him. Is it one of the individuals who would benefit from the approach he has taken on this issue? Is it one of the individuals who believes their possibility of eligibility to be selected as the military judge would substantially increase if for some reason I did not do what I want to do, namely, significantly extend the eligibility criteria? I have absolutely no doubt this legislation is in the public interest and in the interests of both the Defence Forces and the individuals who are awaiting the determination of their cases by the military tribunal. It is in the public interest that we bring this issue to a sense of closure, allow the Defence Forces to get on with what they do best and let the House get on with dealing with other legislation.
Denis O'Donovan (Fianna Fail)
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I am not sure if I am much the wiser. According to an old Latin maxim, he who comes into equity should come with clean hands. After much foot dragging the Minister has eventually outlined issues he should have placed in the public domain in his Second Stage speech. Three important issues have arisen. A letter from the Chief State Solicitor has come to light. We also have the legal opinion by RACO which is most unusual and the correspondence between the legal service of the Defence Forces and the Department, which I placed before the House.
I have not, at any time, made comment of a derogatory nature about the individual in question. On 28 July 2010, the press office of the Defence Forces issued a statement expressing disappointment when it was patently obvious at all stages that the individual in question was not eligible for the position. While the Minister has not explicitly admitted that is the case, this is what it boils down to.
The Minister referred to widening the pool. If what he says is correct and no one else was eligible for the position, the interview board had only one person to deal with in respect of the appointment. That is an unusual position.
The Minister also muddied the water regarding the 22 military cases that remain outstanding. He informed the House that a military judge is sitting and is due to retire in September. Has the military judge heard any cases in the past 12 months? I do not even know the identity of the current military judge.
Alan Shatter (Dublin South, Fine Gael)
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On a point of information, I did not say anything about any military judge sitting. The Senator is obviously still incapable of listening to what I am saying.
Denis O'Donovan (Fianna Fail)
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The Minister did not make the matter clear. He should listen to Senators rather than doodling with his iPhone.
The Minister came into the House because Senators dragged information out of him. He could have made this issue much simpler. As I stated on other legislation, if Members and spokespersons - I am my party's spokesperson on justice and defence - were properly briefed and informed of the purpose of legislation, circumstances such as these may not arise. We are swimming in the dark. While the Minister could have indicated what issues were at play, he chose not to do so.
I have stated at all times matters of fact which have come to my attention. I expressed deep concern about RACO's involvement in this matter. The Minister has not, by any means, allayed my fears in this regard. He indicated that Senator Mullen and I are pursuing a particular agenda because four people stand to benefit from the position we have taken. Hundreds of people in the Defence Forces, including junior members of RACO, and many retired members of the Army are concerned about this matter. I would like the issue to be resolved as I am deeply concerned by the manner in which it has come before the House. The Minister referred to Punch and Judy. What has occurred is more akin to a game of smoke and mirrors. Legislation was introduced without the Minister providing the background to it. As I stated, if I had been fully briefed about the full circumstances surrounding the Bill, I may have been amenable to it being pushed through the House. However, having tabled a couple of amendments in good faith, the Minister chose to be insulting and denigrated my attempt to bring some logic to the issue. In his contribution on Second Stage the Minister said that while the Defence Forces are introducing more clarity on job specification for such posts which will make clear whether being a barrister or solicitor is or is not a requirement for a particular job, the fact remains that some individuals have been undertaking such work over many years and some clarity needs to be brought as to whether this service meets the service requirements for appointment. That would stick closely to the CV of whoever the Minister is talking about.
The Minister did not address the issue of whether his Department was concerned about a possible action if this individual does not succeed. An eminent senior counsel has said this is important because we are in a financial predicament - we can blame ourselves or the banks - but is it likely that an action will be taken by that individual? According to this opinion he has what is determined as a legitimate expectation. This would be a very serious case and a financially damaging one for the Department. The Minister may not be aware of such intimation. If I was representing a person whether in the case of an accident, riparian water rights or whatever, I would suggest we obtain eminent senior counsel opinion before taking a case to court. That eminent senior counsel - I have no doubt this is in the public domain, given that a journalist was able to tell me he or she had a copy of it today - was not doing this for the sake of a shot in the dark. The Minister has not allayed my fears. As I said earlier the incoming secretary comes with clean hands. The Minister came into the House and after much dragging and kicking gave us some information that is helpful at this stage but I am not satisfied with the response. The Minister is trying to blame this side of the House. I feel no shame or guilt for having raised these issues in good faith and, at least, the Minister accepted that.
Alan Shatter (Dublin South, Fine Gael)
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I want to correct one thing. In regard to the letter I attributed to the former Minister, Mr. Killeen, I forgot about the musical chairs that took place at the end of January. The letter was actually sent while Deputy Ó Cuív was Minister for Defence. The letter on this matter from the lawyers representing the gentleman who was in difficulty last summer was received by the Department during the time Mr. Killeen was Minister for Defence, the response was sent while Deputy Ó Cuív was Minister for Defence. Either way it does not add any great insight into the issue.
The Seanad Divided:
For the motion: 21 (Ivana Bacik, Paul Bradford, Terry Brennan, Colm Burke, Paul Coghlan, Michael Comiskey, Maurice Cummins, Jim D'Arcy, John Gilroy, Imelda Henry, Lorraine Higgins, Caít Keane, Mary Moran, Tony Mulcahy, Michael Mullins, Catherine Noone, Marie Louise O'Donnell, Susan O'Keeffe, Pat O'Neill, Tom Shehan, Jillian van Turnhout)
Against the motion: 9 (Thomas Byrne, David Cullinane, Mark Daly, Terry Leyden, Rónán Mullen, Denis O'Donovan, Ned O'Sullivan, Averil Power, Mary White)
Tellers: Tá, Senators Paul Coghlan and Susan O'Keeffe; Níl, Senators Denis O'Donovan and Ned O'Sullivan.
Question declared carried.
Paddy Burke (Fine Gael)
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Amendment No. 2, in the name of Senators Mullen and Quinn, arises from Committee proceedings. Amendments Nos. 2, 4 and 5 are related and will be discussed together by agreement. Is that agreed? Agreed.
Rónán Mullen (Independent)
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I move amendment No. 2:
In page 4, to delete lines 10 to 21, and substitute the following:
"(3) Section 184C(2) of the Principal Act is amended by deleting the figures "10" and inserting the figure "8".".
I welcome the Minister to the House. Yesterday, the Minister said that I had substantially repeated my Second Stage speech. I do not intend to do that today, but I also deny that is what I did yesterday. The reason for what I said yesterday is that on Committee Stage one must give precise reasons for a proposed amendment. I was not satisfied with the Minister's Second Stage speech or with his response following Second Stage, nor was I satisfied with what I heard yesterday. The Minister has been more forthcoming today and deserves credit for that.
However, I would like to remind him of something I said to him the other day, which is that I am not in opposition to him. I am calling the House's attention to an issue that I think is very important, and I have a duty to do that. I regard the Minister as a smart and able person, and well fit for this Ministry. I am somewhat disappointed that in addressing the speeches of Senator O'Donovan and others here today, he has been guilty of a certain amount of elegant imprecision, which is that he has sought to tar us all with the one brush. In spite of some helpful prompting on my part, he failed to acknowledge that the amendments I proposed do not in any way take from his goal of widening the pool of potential applicants for the posts of director of military prosecutions and military judge. I told him that I agreed with two out of three of the substantial proposals in this Bill, and I made that clear to him on Second Stage. For a man of his intelligence, I must say that it is not good enough to pretend by omission that I am somehow seeking to maintain a closed shop for the potential pool of applicants for these posts. Nothing could be further from the truth.
I completely support the opening up of the candidacy beyond the Defence Forces to practising barristers and solicitors of ten years' standing. I also support the maintenance of the current position, which is that people for whom it was a requirement to be a barrister or solicitor - though they may not have practised - may also be included in the potential pool of applicants. I support the aspiration to reduce the required period of service from ten years to eight years, because I believe that people who have at least eight years of service in a position which requires them to be a practising barrister and solicitor are at least as worthy of consideration for a position as people who, according to the Minister's proposal, would have ten years of service but not in a position in which it was required that they be a barrister or solicitor, although they may have acquired a barrister's or solicitor's qualification along the way. That is an issue on which we may disagree, but it is far from being at the centre of my objections to what has happened with this Bill in the way it was presented and in the substance of the Bill itself. I think the Minister needs to acknowledge that.
I made two principled objections to the Bill. The first was an accusation of a lack of transparency, which I stand over. The Minister makes much of the fact that the circumstances of a particular individual have been brought to light or addressed in this Chamber. As I said to him yesterday, sometimes it is necessary to do that. It is all the more necessary to do that when neither he nor his officials made any attempt to apprise us of the personal and particular issues that lay behind one aspect of what he proposes in the Bill. He has as much as acknowledged today that at least one part of this Bill is designed to cure the defect around the qualification of the particular person who was appointed, but whose appointment was not allowed to proceed because an issue had arisen about that person's statutory eligibility.
The Minister asked me to address one issue in particular, which was that of the whistleblowers. These are the people who may have been involved in providing Senators in this House with information which was relevant to this Bill. Those persons, both serving and retired Army personnel, have acted in good faith at all times in my estimation. In so far as I took any briefing from anybody, I was very careful to ascertain whether those persons had a particular horse in the race, and I am quite satisfied with the answers I received. Nothing the Minister has said today suggests that I have been in any way misinformed. However, given the lack of openness from his Department until we put the issues to him, I must say that I would not have any faith that those whistleblowers would be treated properly were their identities to become known. It was suggested to me by one official that were it to be found out how the document, of which I knew the origin and content, came to light, somebody would be in the dock. I wonder about that in the context of the Government's commitment to the introduction of whistleblowing legislation. I wonder about that in the context of the Private Members' motion I had before this House last week on the need to bring forward such legislation.
Rónán Mullen (Independent)
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It comes down to how the Executive sees the Legislature. It comes down to the arrogance of power and how sometimes a Department of State and the Civil Service may not feel it necessary to apprise legislators, privately or on the record, of certain relevant facts when, by putting those relevant facts before the legislators, the possible appearance of any wrongdoing would be removed. The information put before us today by the Minister is a case of shutting the stable door after the horse has gone. We had to harry him. I remind him that I was extremely fair to him. I did not put it to him that he was guilty of under-informing the House. I said that either he had reason to be annoyed with his officials or with the Defence Forces for not telling him enough so that he could brief us in full, or we have reason to be annoyed with him. I stand over that, without taking in any way from the bona fides of the person whose appointment last year ran into trouble. I put it on the record that that person had not been successful in accessing posts in the legal service on a couple of occasions. I did not do that to humiliate anybody, but due to the lack of transparency, it is important that we know the individual circumstances behind this case. I am now happy to put on the record that to my knowledge, that person has done the State some service indeed, particularly in the context of Army deafness. There has been no attempt on my part - nor from any Fianna Fáil colleagues, from what I have heard here - to put at issue the competence of this person or any suggestion that he does not deserve the gratitude of the Army and the State for good service over the years.
It was noted by Senator O'Donovan that the gentleman in question had been promoted to the position of colonel and Senator O'Donovan immediately acknowledged that there was nothing wrong with that. I would second that. In fact, it is required under the law that in order to take up the post of military judge, one would have to be appointed to the level of colonel. In the unlikely event that either the Minister or I would be elected Pope some day, we would have to be ordained bishops before we could take up the post.
Alan Shatter (Dublin South, Fine Gael)
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That would be particularly complex in my case.
Rónán Mullen (Independent)
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I acknowledge that. Some would say that his elegant imprecision would leave him not under qualified for a job in that area on occasions. The substance of my amendments comes down to two things. I have no problem with the reduction from ten years to eight in the eligible term required for an appointment as military judge or director of military prosecutions. I contend that it would be no problem at all were people with that level of experience to be included and I have no problem accepting that certain people would be the beneficiaries of that. I stand over it in the context of my wider satisfaction at the opening up of eligibility to all barristers and solicitors within ten years. What the Minister and I would both achieve from what is proposed, whether he prevails or I do - although there is no doubt about who will prevail - is a wide pool of potential applicants.
It comes down to a question of transparency. I ask the Minister to say on the record whether he is happy that he was fully and properly briefed on all the relevant background.
Paddy Burke (Fine Gael)
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As it is now 5 p.m., I am required to put the following question in accordance with an order of the Seanad of Thursday 7 July 2011: "That amendment No. 2 is hereby negatived, Fourth Stage is hereby completed and the Bill is hereby passed."
The Seanad Divided:
For the motion: 21 (Ivana Bacik, Paul Bradford, Terry Brennan, Colm Burke, Paul Coghlan, Michael Comiskey, Maurice Cummins, Jim D'Arcy, John Gilroy, Imelda Henry, Lorraine Higgins, Caít Keane, Mary Moran, Tony Mulcahy, Michael Mullins, Catherine Noone, Marie Louise O'Donnell, Susan O'Keeffe, Pat O'Neill, Tom Shehan, Jillian van Turnhout)
Against the motion: 9 (Thomas Byrne, David Cullinane, Mark Daly, Terry Leyden, Rónán Mullen, Denis O'Donovan, Ned O'Sullivan, Averil Power, Mary White)
Tellers: Tá, Senators Paul Coghlan and Susan O'Keeffe; Níl, Senators Denis O'Donovan and Ned O'Sullivan..
Question declared carried.
Ivana BacikMaurice Cummins (Fine Gael)
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I beg pardon. It will be at 1 p.m.