A temporary stay has been placed by the High Court on the Taoiseach appointing a new Captain of the Guard in the Houses of the Oireachtas after one of the nominees for the job brought a legal challenge.
Mr Justice Charles Meenan on Friday said the Taoiseach and the Commission of the Houses of the Oireachtas (CHO), which recommends appointees, can apply to lift the stay with 48 hours notice to lawyers for Defence Forces Captain Alan Kearney, who claims his nomination to the post has been cancelled in breach of his rights.
Captain Kearney, who is based at the Army’s Curragh Training Camp Base Logistics in Co Kildare, is also bringing his proceedings against the Garda Commissioner, claiming the Commissioner failed, refused or neglected to process his security clearance for the job in a timely and expeditious manner.
He is seeking an injunction against the Taoiseach and the CHO restraining them from making the appointment pending determination of his challenge, and an order quashing the decision of the Commission on November 26th not to proceed with his nomination to the post. His proceedings are also against the Minister for Justice and the State.
Captain Kearney, in an affidavit, said last February he applied for the job and that on April 7th he accepted an offer of appointment, which was subject to approval by the Taoiseach after consultation with the Chairman of Dail Éireann and the Chairman of Seanad Éireann. It was also subject to garda vetting.
Captain Kearney said he completed and returned the necessary paperwork to the Garda National Vetting Bureau, and he was told in April that the necessary disclosure had been sent on to the Houses of the Oireachtas. He said that following the garda vetting, his home was subject to a garda search, under warrant, and nothing untoward was found.
Last May, the Defence Forces Military Police informed him that following information received from gardaí that "my name was mentioned in association with a garda investigation concerning a former member of the Defence Forces who had previously served in my unit".
He said he was not interviewed or contacted by gardaí and had not direct knowledge of the investigation.
He said no charges had been brought against him and he has "no civil convictions and I value my good name and standing". He felt, however, that his career and good standing was damaged in the eyes of some of his superiors by this episode.
In August, he instructed his solicitors to bring separate proceedings against the Minister for Defence and the Attorney General to restore his good name.
He also said that the previous April he was told by the CHO that his nomination for Captain of the Guard had been sent to the Taoiseach.
In September, he was told a further update on his security clearance was still awaited. On November 26th, he was told the CHO was not proceeding with his appointment.
His solicitors wrote to the Taoiseach and the Minister for Justice and called on the CHO to refrain from making the appointment while the supposed security clearance issue was processed. He says the CHO did not accede to the request.
Then, on Thursday night, his counsel told the court on Friday, the CHO informed him he did not get security clearance and it was going ahead with the appointment.
Counsel said it appeared the CHO was operating a separate system in relation to a public appointment. He sought a 72-hour stay on the making of the appointment until the matter returns to court.
Mr Justice Meenan said he was not prepared to give such a stay but said he was treating the matter as a leave (to bring proceedings) application and he was satisfied Captn Kearney had established grounds for doing so.
He said the case could return in January and he granted a stay on the basis that the respondents could apply to have it lifted on 48 hours notice to the captain's lawyers.