Kathleen Lynch (Cork North Central, Labour)
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Question 56: To ask the Minister for Defence if he plans to take action arising from the decision of the High Court to overturn a report of the Judge Advocate General which concluded that a decision to retire forcibly a person (details supplied) in 1969 was reasonable at that time; if he will allow this person access to documents that his predecessor ruled this person should not see until after the JAG report; if this decision has further implications for the Army and Defence Forces; and if he will make a statement on the matter. [25929/05]

Willie O'Dea (Limerick East, Fianna Fail)
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The individual concerned was retired, by the President, on the advice of the Government with effect from a date in June 1969. The retirement was effected pursuant to section 47(2) of the Defence Act 1954 and Paragraph 18(1)(f) of Defence Force Regulations A15, which provide that an officer may be retired "in the interests of the service". The individual initiated proceedings in the High Court in November 1998 regarding the circumstances of his retirement some 29 years earlier. The High Court found in favour of the State in June 1999 on grounds of inordinate delay in the bringing of the proceedings. The individual appealed the case to the Supreme Court in September 1999. The Supreme Court found similarly in favour of the State in January 2001. A decision to retire an officer "in the interests of the service" is only taken for the most compelling reasons. The Government advice to the President was on grounds of security. I am satisfied that the matter was handled in an entirely appropriate and proper manner in 1969 and that the decision taken then was taken only after very detailed and due consideration.

In early July 2002, arising from a newspaper feature article on the case, published on 29 June 2002, the then Minister requested the Judge Advocate General to examine and to review the case with regard to the following terms of reference: to inquire into the circumstances surrounding the retirement of the individual referred to by means of a complete review of all relevant documentation held by the Department of Defence and by the Defence Forces, and to have full access to any civil or military personnel for the purposes of their providing explanation regarding any apparent gaps or ambiguities in the documentation and to report to the Minister with her conclusions and recommendations.

These terms of reference were subsequently enlarged by the then Minister at the request of the Judge Advocate General to provide that the Judge Advocate General was "to be entitled, within the Terms of Reference, and the manner of the Inquiry contemplated, to take such representation in writing from any party whom she considers to be appropriate".

The Judge Advocate General, a civilian barrister, carried out a detailed examination and review of all the historical documentation relating to the decision to retire the individual concerned, by reference to the entirety of both the civil and military files in the matter. Her report was submitted to the then Minister in mid-September 2002.

In December 2002 the individual sought an order of the High Court quashing this report by the Judge Advocate General. The High Court found in favour of the applicant for reasons enumerated in the text of the High Court judgment. I understand that the final order arising from the judgment is not yet available. It should be emphasised, however, that the recent High Court judgment in the matter of the report of the Judge Advocate General specifically and only related to the actual procedures utilised by the Judge Advocate General in the course of her review and examination of this matter in 2002. The substantive issue, namely, the Government decision in 1969 to recommend the retirement of this individual from the Defence Forces by the President, remains entirely unaffected by the judgment of the High Court, a point specifically emphasised within the text of that recent judgment itself.

As regards the issue of release of documentation, the position is that all the military and civil documentation within the Defence Forces and the Department of Defence, relating to the Government decision in 1969 to recommend that the President should retire the individual concerned, has been released to the individual in full, in accordance with the recommendations of the report of the Judge Advocate General in that regard.

The individual in question has had access to these documents relating to his retirement since 14 November 2002 when his legal representatives attended the Department and were given copies of all the relevant records held in my Department.