A “murky” and “secret” process of vetting for the post of Captain of the Guard in the Houses of the Oireachtas took place alongside normal Garda vetting, the High Court has heard.
The claim was made in proceedings being brought by Defence Forces captain Alan Kearney, who claims his nomination to the post was cancelled in breach of his rights.
The Captain of the Guard performs part ceremonial, part security roles in the Oireachtas and is ultimately appointed by the taoiseach following a recommendation of appointees from the Commission of the Houses of the Oireachtas (CHO).
Capt Kearney, who is based at the Army’s Curragh Training Camp Base Logistics in Kildare, brought judicial review proceedings in December 2021 against the Taoiseach, the CHO, the Garda Commissioner, the Minister for Justice, Ireland and the Attorney General. He claimed the commissioner failed, refused or neglected to process his security clearance for the job in a timely and expeditious manner.
He also sought an order quashing the decision of the CHO on November 26th, 2021, not to proceed with his nomination to the post. The respondents deny his claims.
Capt Kearney said he applied for the job, which was openly advertised, in early 2021. In April he accepted an offer of appointment, which was still subject to approval by the Taoiseach after consultation with the chairmen of the Dáil and Seanad Éireann. The post was also subject to Garda vetting.
He completed and returned the necessary paperwork to the Garda National Vetting Bureau and was told 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.
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He said the Defence Forces Military Police informed him that, on foot of information received from gardaí, “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 nor contacted by gardaí and had no direct knowledge of the investigation. He said no charges were brought against him and he had “no civil convictions and I value my good name and standing”.
He felt his career and good standing were damaged in the eyes of some of his superiors by this episode.
His December 2021 proceedings were adjourned a number of times but, he says, following certain information in documents exchanged as part of those proceedings, he brought separate proceedings in March last year claiming his constitutional rights had been infringed and seeking damages.
On Thursday his lawyers sought to have both sets of proceedings heard together, or consolidated, to save expense and court time. The respondents opposed the application.
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His counsel, Gerard Humphreys, said that as a result of information provided as part of the initial case, “we now realise there is a secret process operating which is not being disclosed”. He said this was a separate process to normal Garda vetting by the National Crime and Security Intelligence Service.
Garda vetting is covered by the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016, he said. But, he said, there now appeared to be “non-Act vetting” going on that was not in keeping with the transparency required for public appointments.
“I say this is a murky process and there is also a problem with the terminology and language used,” he said.
Shane Murphy, for most of the respondents, and Mairéad McKenna, for the CHO, denied there was any secret or murky process. They also argued that the first proceedings should go ahead because combining them with the second case would cause delays.
The first case was ready to be heard and would deal with the core issue that runs through both cases, it was argued.
Ms Justice Niamh Hyland said she would give her decision on Friday.