The High Court has refused a judicial review challenge to Patrick Anthony McCourt’s appointment as Ombudsman for the Defence Forces, holding that a former member of the Defence Forces could lawfully hold the office.
Patrick Gorman and the Permanent Defence Force Other Ranks Representative Association challenged Mr McCourt’s appointment, made by the President on 7 November 2012. They sought declarations that he was not entitled to hold the office because he had previously served in the Defence Forces, and a permanent injunction preventing him from carrying out the Ombudsman’s functions.
Mr Justice Hedigan, in a judgment delivered on 21 November 2013, said the applicants’ argument that the statutory bar on a “member” of the Defence Forces included former members would require the court to amend the legislation. He held that the wording referred to serving members, and that nothing in the Act excluded former members from appointment.
The applicants also argued that appointing a former officer created a reasonable apprehension of bias. The judge found no concrete basis for that concern in this case. He considered evidence about the structure of the Defence Forces and complaints made between 2006 and 2012, and said the evidence did not support a simple division between officers and other personnel that would imply a former officer could not hear complaints impartially. He also noted that Mr McCourt had served outside the military chain of command as Judge Advocate and Military Judge, and that the Ombudsman could delegate functions where a conflict arose.
A further challenge concerned the Minister’s decision to make the Ombudsman post part-time, at three days a week and 60 per cent of full-time pay. The court found the Minister had acted within his powers under the Ombudsman (Defence Forces) Act 2004. It said the part-time arrangement did not undermine the office’s independence or its ability to investigate and determine complaints, and allowed for additional hours when needed without extra remuneration.
The judge declined to hear the respondents’ challenge to the association’s standing because it had not been set out with sufficient specificity in the notice of opposition. That procedural ruling did not resolve the standing issue on its merits. The court refused all the reliefs sought.