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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Gorman & anor -v- Ombudsman for the Defence Forces & ors [2013] IEHC 545 (21 November 2013)
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Cite as: [2013] IEHC 545
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Judgment Title: Gorman & anor -v- Ombudsman for the Defence Forces & ors Neutral Citation: [2013] IEHC 545 High Court Record Number: 2012 947 JR Date of Delivery: 21/11/2013 Court: High Court Composition of Court: Judgment by: Hedigan J. Status of Judgment: Approved |
Neutral Citation: [2013] IEHC 545 THE HIGH COURT JUDICIAL REVIEW [2012 No. 947 J.R.] BETWEEN PATRICK GORMAN AND THE PERMANENT DEFENCE FORCE OTHER RANKS REPRESENTATIVE ASSOCIATION APPLICANTS AND
THE OMBUDSMAN FOR THE DEFENCE FORCES AND OTHERS RESPONDENTS JUDGMENT of Mr. Justice Hedigan delivered on the 21st day of November 2013 1. The Office of the Ombudsman for the Defence Forces (hereafter the DFO) was established by the enactment of the Ombudsman (Defence Forces) Act 2004 (hereafter the 2004 Act). The Ombudsman provides military personnel with access to an independent and impartial external statutory authority for the resolution of complaints. 1.2 The applicants challenge the appointment of Patrick Anthony McCourt to the position of DFO. Mr. McCourt was appointed on 7th November, 2012, by the President of Ireland in accordance with s. 2(2) of the 2004 Act. Mr. McCourt is a former member of the Defence Forces, having served between 1963 and 2010. From February 2001, until his retirement in 2010, Mr. McCourt served in roles outside of the military chain of command, first, as Judge Advocate and, latterly, as Military Judge. 1.3 By order of Mr. Justice Peart dated 19th November, 2012, the applicants were granted leave to seek judicial review of the decision to appoint Mr. McCourt as DFO. The applicants seek declarations that Mr. McCourt is not lawfully entitled to hold the office because he is a former member of the Defence Forces, in consequence of which, they claim, the office remains vacant. They further seek a permanent injunction restraining Mr. McCourt from carrying out any of the statutory functions, duties or responsibilities of the DFO. 1.4 The issues that arise for determination by the Court in this case are as follows:
(ii) Is a former member of the Defence Forces precluded from holding the office of Ombudsman? (iii) Does the appointment of a former member of the Defence Forces as DFO give rise to an apprehension of bias? (iv) Has the Minister acted ultra vires the Act of 2004, by deciding that the Office of DFO should be a part-time office? I expressed some hesitation as to whether the respondents can argue this objection. In their notice of opposition, whilst the matter of locus standi is raised at paragraph 41, the objection is grounded upon the proposition that the second applicant does not have a sufficient interest in the matters raised herein to maintain a challenge to the Act. At the outset of the case, it was made plain by Senior Counsel for the respondents that their challenge on locus standi was not, in fact, based upon this but upon two other bases i.e. firstly, that the second applicant had no specific power under its governing Regulations to litigate, and secondly, that it was granted certain representative powers, but specifically excluded from these powers were matters relating to the “Constitution” and “organisation” of the Defence Forces. In his first affidavit herein, at paragraph 32, Mr. McCourt, the DFO, makes the statement that because the second applicant is neither a serving or former member of the Defence Forces, it is not entitled to make a claim to him under the 2004 Act, and thus has no interest in these proceedings. Martin Luby, in his affidavit at paragraph 37, makes exactly the same objection to the locus standi of the second applicant. Mr. McCourt, in his second affidavit at paragraph two, reiterates that the second applicant’s channels of representation are defined by the Regulations. It seems to me that the respondents have not clarified and specified the grounds on which they base their locus standi argument. They have failed to do this in their notice of opposition. The fleeting reference made in the affidavits to differing grounds of objection do little to enlighten either. For this reason, I do not think that they have succeeded in establishing in a clear, unambiguous manner just what their objection is, and I therefore feel constrained to refuse them the right to raise the issue at this hearing. 3. Is a former Member of the Defence Forces precluded from holding the Office of DFO? 3.2 Section 2(6) of the 2004 Act, provides as follows:
(a) nominated as a member of Seanad Éireann, or (b) elected as a member of either House of the Oireachtas or to the European Parliament, or (c) regarded, pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act 1997 , as having being elected to the European Parliament, or (d) becomes a member of a local authority, that person shall thereupon cease to hold the office of Ombudsman”
(ii) A member of Seanad Éireann; (iii) A member of the European Parliament; (iv) A member of a Local Authority; (v) A member of the Defence Forces; (vi) A Civil Servant. 3.6. It is argued by Mr. Maguire S.C. that I should look at this wording “shall not be a member of the Defence Forces” and find that “member” includes “former member” and should be thus understood so as to exclude any former member of the Defence Forces such as the first named respondent from the position of DFO. 3.7 The term ‘member of the Defence Forces’ is not defined by the 2004 Act. Some assistance may, however, be found in the Defence Act 1954, which provides at s. 19 as follows: “The Permanent Defence Force shall consist of—
(b) persons who are enlisted therein as men under section 53 or 54 and are for the time being men of the Permanent Defence Force, (c) persons who, having enlisted therein as men under section 53 and having been transferred to the Reserve Defence Force under section 70, re-enter the Permanent Defence Force under subsection (3) of section 63 and are for the time being men of the Permanent Defence Force, and (d) persons who are for the time being members of the Army Nursing Service.”
3.8 It seems to me that the court is being asked to introduce here the same condition as is sought to be introduced in section 2(9). The court is being asked to adopt an interpretation of this section so as to support another interpretation. It is, at the very least, an unconvincing argument. It is also unnecessary because s. 9(2) seems to make sense as it seems to clearly read. Serving members, in connection with complaints made against them, shall be given the right to comment thereon, whereas others, including former members, may, where appropriate, be given that opportunity. The serving member may be subject to disciplinary action within the Defence Forces, others are not. It is a difference of treatment that seems to me to make sense. As to s. 4(7), this section precludes a member of the Defence Forces from making a complaint against a Civil Servant about the same matter to both the general Ombudsman and the DFO. Civil Servant means one in the Department of Defence. The argument raised is that this restricts serving members to just one complaint, whereas former members, if not included in the phrase “member of the Defence Forces” are free to make a complaint to either or both. Again, it seems to me, that the distinction makes sense and is a choice open to the legislator. The serving member is part of a small cohort somewhat restricted as to what he may do with a complaint. The former member, on the other hand, is a civilian and may not be so restricted. 3.9 Finally, as to s. 6(1) and s. 6(2), these provisions refer to complaints made by a serving member against, inter alia, a former member and, correlatively, by a former against a serving member. The argument raised is that were the phrase “member of the Defence Forces” to bear the meaning “serving” member of the Defence Forces as argued by the respondents in relation to s. 2(9), then it would be unnecessary for the legislator to have included the word “serving” since this meaning would have been clear without using that qualification. It seems to me that the use of “serving” to distinguish “former” in the context was necessary because a comparison was necessary to specify exactly the rights adhering to both. No comparison is made in s. 2(9) and therefore the possibility of confusion does not arise. It could, in s. 6(1) and s. 6(2) and thus, in the interests of caution and to avoid doubt, it was logical to qualify member with the word “serving”. It might amount to an abundance of caution but the use of the word is not superfluous. 3.10 In my judgment, these other provisions of the Act to which I have been referred do not support the argument of the applicant that s. 2(9) must be interpreted so as to import a meaning that includes former members. Indeed, it seems to me that I am not so much asked to interpret this section, but rather to amend it. This, of course, I cannot do. 3.11 Nothing in the authorities opened to me support such a radical re-reading of the Statute as I am asked to make. I can readily accept that even where words seem clear on their face, a court should consider them in the context of the rest of the Statute, and thus do so in a holistic manner. See The People (Attorney General) v. Kennedy [1946] I.R. 517. Nonetheless, the clearer the meaning of the words, the harder the court will find it to interpret them in any way other than that which seems clear. Where they appear completely clear and nothing contrary appears in the Act, then the application of complex canons of construction are not needed. See Crilly v. Farrington Ltd. [2001] 3 IR 251. 3.12 It seems to me that the wording of s. 2(9) is clear as to its meaning. Only serving members are precluded from holding the office of DFO. A former member, such as the first respondent, is thus qualified to hold the office. 4. Does the appointment of a former member of the Defence Forces as DFO give rise to an apprehension of bias? 4.2 In the instant case, the first respondent, following a long and distinguished career in the Defence Forces, was appointed Judge Advocate in 2001, a post regarded as independent of the chain of command. In 2007, he was appointed by the President of Ireland as Military Judge of the Defence Forces. No issue has ever arisen concerning his independence in these twelve years. There is no concrete basis adduced whereby such a question might arise in connection with his holding the office of DFO. As to the argument raised that there might be complaints arising against him, thus creating a conflict, I consider such a claim to be unreal. He has been out of the chain of command for twelve years. Any complaints against him would thus be out of time. In regard to his role as Judge Advocate or Military Judge, these functions fall outside the remit of the DFO in accordance with s. 5(1)(b) of the 2004 Act. 4.3 As to the possibility of future DFOs being former members of the Defence Forces and the subject of complaint, s. 40(4) of the Act provides a ‘coping’ mechanism for this scenario, permitting such a DFO to delegate all relevant functions. I am satisfied this saving provision on its face would be adequate to assure a fair and impartial hearing for any complainant. 4.4 Thus, it seems to me that the appointment of a former Officer of the Defence Forces does not give grounds for fear of bias. 5. Has the Minister acted ultra vires in deciding that the Office of DFO should be a part-time office?
5.4 All the other attributes of an independent office are preserved in this new part-time regime. It seems to me that there remains to any member of the Defence Forces the same independent arbiter of complaint that has existed since 2005. Nothing in the reduction of the post to part-time status should impact upon the DFO’s ability to investigate and determine complaints as heretofore. If the need arises, provision is made for the DFO to sit additional hours, albeit without extra remuneration. I am satisfied that in making this decision, the Minister has acted within his powers under the Act. 5.5 To summarise, I cannot allow the issue of the locus standi of the second applicant to be argued because I do not believe it was raised in the notice of opposition with sufficient specificity. I consider that nothing precludes a former member of the Defence Forces from holding the post of DFO. The appointment of a former member of the Defence Forces does not give rise to a reasonable apprehension of bias. Finally, I consider that the Minister did not act ultra vires in deciding that the office of DFO should be a part-time one. |