Dáil Éireann - Volume 663 - 14 October, 2008
Written Answers. - Defence Forces Personnel.
Deputy Bernard Allen Deputy Bernard Allen
Deputy Bernard Allen asked the Minister for Defence the action he will take in view of a High Court ruling to ensure that a person (details supplied) will get fair procedures; and if he will take the necessary action to fulfil the spirit of the High Court ruling of July 2005. [34919/08]
Deputy Willie O’Dea Deputy Willie O’Dea
Deputy Willie O’Dea: 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 A.15, which provide that an officer may be retired “in the interests of the service”. The Deputy will appreciate that 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 in 1969 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.
The individual initiated proceedings in the High Court in November 1998 in relation to 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 to the Supreme Court in September 1999. The Supreme Court refused the appeal in January 2001.
In early July 2002, arising from a newspaper feature article on the case, published on 29th June 2002, the then Minister requested the Judge Advocate General to examine and to review the case. 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 Department of Defence and the military files in the matter. Her report was submitted to the then Minister in mid September, 2002 and was published in October, 2002.
In December 2002 the individual applied to the High Court for an order 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 judgement on his application. The High Court judgement of 27th July 2005 related only to the report completed by the civilian Judge Advocate General in September 2002. The presiding judge, Mr. Justice Quirke, held that that report should be quashed because fair procedures had not been applied in the compilation and production of that report and in the timing of the release by the Department of Defence of certain documents to the applicant. Mr. Justice Quirke concluded his judgement by stating that “The decision made in 1969 to recommend the Applicant’s retirement from the Defence Forces remains unaffected by any Order made in these proceedings.”
It should be emphasized therefore that the High Court judgement in the matter of the report of the Judge Advocate General specifically related to the actual procedures utilized by the Judge Advocate General in the course of her review and examination of this matter in 2002 and to the release by the Department of Defence of certain documents to the individual only after completion of the report. The individual concerned specifically did not seek an Order for mandamus from the High Court and therefore did not request the High Court to remit the matter or to direct a resumption of the Judge Advocate General’s original enquiry, or to direct that a new enquiry be held by the Judge Advocate General or by any other person.
The substantive issue, namely the Government decision in 1969 to recommend the retirement of this individual from the Defence Forces by the President, remains unaffected by the judgement of the High Court, a point specifically emphasised within the text of the judgement itself. In the circumstances, I do not propose to take any further action in relation to this matter.
Dáil Éireann 663 Written Answers. Defence Forces Personnel.