Paul Coghlan (Fine Gael)
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I welcome the Minister of State at the Department of Defence, Deputy Paul Kehoe, to the House. Senator Craughwell has the floor.

Gerard Craughwell (Independent)
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Cuirim fáilte roimh an Aire. I thank the Minister of State for taking the time to come to the House to deal with this important matter for a second time. He will recall that on 27 January we both participated in a Commencement debate concerning a case of a former Permanent Defence Forces officer, a lieutenant colonel with a distinguished service record, and the recommendations of the Defence Forces Ombudsman. The submission was in the form of an appeal for redress of wrongs made under section 114 of the Defence Act 1954, on foot of the considered findings of the Chief of Staff that the complainant had not been wronged in the view of the Defence Forces. The complaint, as the Minister of State will know, was referred to the ombudsman and was upheld. The Minister of State will also recall that in his final report, the ombudsman concluded that the promotion competition process was administered in a procedurally unfair manner as, in his view, there was ambiguity in relation to the provisions regarding length of service marks. In addition to his findings, the ombudsman made a range of recommendations arising from this case. Last January, the Minister of State told me the following:

The recommendations of the Ombudsman for the Defence Forces are under active consideration. I am advised that the matter may require obtaining advices from the Office of the Attorney General before any decision on the matter can be made and the issue of such advice is also under active consideration.

As a former member of the PDF myself, I was not going to allow this exemplary officer's case to lie forgotten on some dusty shelf in the Department and as such I have maintained contact with the officer in question.

It is my understanding that the former senior Minister issued an instruction to Department officials to implement the ombudsman's recommendations on the matters we are referring to today. I was delighted to get this information and immediately passed it to the officer concerned. However, he informed me that he had not been contacted by the Department and feared nothing would happen. I contacted the Department and spoke to a principal officer. I asked him why the Minister's instruction had not been carried out and I was shocked by his answer. I was told that it was felt within the Department that the Minister was wrong and that the case was referred to the Attorney General for advice. I asked when it had been referred was told it had been referred a week or so earlier. As this was several months since the Minister of State, Deputy Kehoe, and I had spoken in this House I decided to submit some freedom of information requests. Is it the case that officials in the Department are second guessing ministerial instructions?

I submitted seven FOI requests. I sought the date of the final report supplied by the ombudsman and was told it was 30 June 2015 so my request was granted. I asked for the date that the report of the ombudsman was brought to the attention of the Secretary General of the Department.I was told it was brought to the attention of the Assistant Secretary on 30 June 2015 but they could not tell me when the Secretary General, the most senior civil servant in the Department, received the report. I asked when the Minister of State and his predecessor received the report and I was told they could not have it because it was a matter under active consideration. I asked for any internal correspondence and I was told I could not have it because it was a matter of internal consideration. I asked for correspondence between the Minister of State and the former Minister and I was told I could not have it because it was a matter of ongoing discussion. I asked when the final decision with respect to referring the case for advice to the Attorney General was made and I was told I could not be told when it was referred because the matter was ongoing. I asked when the final report of the Defence Forces Ombudsman on redress of wrongs in respect of the officer in question was sent to the Attorney General and, again, I was told I could not be told because the matter was ongoing.

I then found out that the Department has seconded to it a full-time member of the Attorney General's staff. The Minister of State is a reasonable man but this looks like the Department is deliberately frustrating a favourable outcome for a complainant through an ombudsman's decision. I have never heard of such a decision being challenged and I do not know what is going on in the Department. I have made a number of freedom of information applications regarding cases sent to the ombudsman over the past number of years. I would like to get to the bottom of what is going on in the Department. The Minister of State came to the House in good faith last January. I believe him to be an honest, decent man and he outlined in reply to me what he thought was the clear state of affairs. It seems to be anything but clear and somebody somewhere is frustrating this. I am sorry to drag him back to the House this morning but I look forward to his reply.

Paul Kehoe (Wexford, Fine Gael)
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I thank the Senator. He is correct that I replied to a similar Commencement matter in January. This case involves the submission by a former officer of the Permanent Defence Forces to the Ombudsman for the Defence Forces. The submission was in the form of an appeal from redress of wrongs made under section 114 of the Defence Act 1954 on foot of the considered findings of the Chief of Staff that the complainant had not been wronged in the view of the Defence Forces. The complainant alleges that he was wronged by an administrative error in a promotion competition held in 2012 and, as a consequence, he was not promoted to the next higher rank with consequential implications relating to retirement on age grounds, gratuity and pension entitlement.

In his final report, the ombudsman concluded that the promotion competition process was administered in a procedurally unfair manner as, in his view, there was ambiguity in respect of the provisions regarding length of service marks. In addition to his findings, the ombudsman made a range of recommendations arising from the case, some of which may have wider implications for the defence organisation. While, under statute, I am not bound to accept the ombudsman's findings, I am keen to ensure a conclusion to this matter is reached shortly. Given the complexities involved, it is right and proper that the Department fully deliberates on the potential implications of the findings.

As acknowledged to the Senator earlier this year, the Department has sought and has now received legal advice on the matter. I am aware that the Senator has been in discussions with my officials and has been advised that the matter is under active review. I am sure he will appreciate that given the complexities of this case, the Department must exercise due diligence in its approach. However, I acknowledge his concern that this matter be resolved as soon as possible and I will bear this in mind when I receive the Department’s report. In light of this, the House will appreciate it would be not appropriate for me to comment further on this case at this point in time.

Gerard Craughwell (Independent)
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The reply is very much in line with the reply I received last January. At the end of the day, it is outrageous to think the Secretary General of the Department, from what I can gather, has not seen the ombudsman's report. It is even more outrageous that a junior official would take it upon himself to countermand a decision by a Minister, albeit that it was verbal, to decide to send the case to the Attorney General. Why send it to the Attorney General's office when one of her staff members is on site? What is going on? I acknowledge the Minister of State cannot watch everything that is going on all day, every day but this is an affront to the governance of the Department itself and to the political system that manages the Department. I feel strongly that I must get an answer to this case within a set timeframe. If the Minister of State has the legal advice, I am sure his officials can advise him immediately. I would like him to outline a timeframe in order that I can give this man some peace of mind or are we to wait until he dies before we sort it?

Paul Kehoe (Wexford, Fine Gael)
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We received the report from the ombudsman and there was nothing wrong with seeking legal advice upon receipt. It is right and proper for the Department to do so. We have received the legal advice. I am not aware of anyone from the Attorney General's office based in our offices.

Gerard Craughwell (Independent)
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I can give the Minister of State the name.

Paul Kehoe (Wexford, Fine Gael)
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The person might be in the office for different reasons-----

Gerard Craughwell (Independent)
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No, the person has been seconded to the Department.

Paul Kehoe (Wexford, Fine Gael)
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-----and not particularly to deal with this case. I do not believe a full-time member of staff from the Attorney General's office has been seconded to the Department's office in Newbridge specifically to deal with this case.

Gerard Craughwell (Independent)
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I do not believe that.

Paul Kehoe (Wexford, Fine Gael)
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The Department has received the legal advice. A report is being put together for me to consider. As soon as I have it, I will consider its findings and I will make a recommendation to the Department. The gentleman in question has written to the Taoiseach who has given me the correspondence. He also wrote to the other Members of the Oireachtas, in particular two Members of the Lower House, and they have also been in contact with my office. I understand the gentleman has distinguished service in the Defence Forces and I respect him for that, as I do every member of the Defence Forces. This case is being dealt with at a senior level within my Department and it will not go unnoticed. As soon as I have received the full report and the legal advice, I will make a decision on it and I will bring the case to a conclusion as soon as possible.