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Wednesday, May 26, 2021

Irish military lawyers at loggerheads - a "storm in a teacup"?

 The Irish Times of 17 May 2021 contains a report of the rather unedifying spectacle of two of the most senior legal officers in the Irish Defence Forces, embroiled in a very public argument which seems to have at its root a dispute as to whether it was appropriate for the Director of Legal Services to cancel one or more of his officers' attendance at a course run by the U.S. Army Judge Advocate General's Legal Center and School and to withdraw them from availability for service with UNIFIL, a peacekeeping force in Lebanon.

If that is really the root cause of this spectacle, then it does seem to be rather a "storm in a teacup". It is perhaps no wonder that Mr Justice Meenan appeared somewhat bemused that the matter reached his Court. As a common law jurisdiction with close historical links to English law, one would have thought that the famous dictum of Lord Reid in Chandler v Director of Public Prosecutions [1962] 3 All ER 142 (HL) would make a challenge against decisions concerning courses and postings somewhat difficult to sustain in the Republic of Ireland:

It is in my opinion clear that the disposition and armament of the armed forces are, and for centuries have been, within the exclusive discretion of the Crown and that no one can seek a legal remedy on the ground that such discretion has been wrongly exercised. I need only refer to the numerous authorities gathered together in China Navigation Co Ltd v A-G. Anyone is entitled, in or out of of Parliament, to urge that policy regarding the armed forces should be changed; but until it is changed, on a change of government or otherwise, no one is entitled to challenge it in court.

One can only imagine what message this dispute sends to junior legal officers in the Irish Defence Forces. It does bring to mind some wise counsel I once heard. Not every legal course of action is a prudent one.

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