Dáil Éireann - Volume 535 - 01 May, 2001

Private Members' Business. - An Bille um an Dóú Leasú is Fiche ar an mBunreacht, 2001 – An Dara Céim (atógáil). Twenty-second Amendment of the Constitution Bill, 2001 – Second Stage (Resumed).

Atairgeadh an cheist: “Go léifear an Bille an Dara hUair anois.”

Question again proposed: “That the Bill be now read a Second Time.”

An Leas-Cheann Comhairle: Deputy Michael Higgins was in possession. He has approximately 19 minutes remaining.

Mr. M. Higgins: With the permission of the House, I propose to share my time with Deputy Quinn.

In my introductory remarks I asked what the public is to make of this amendment of the Constitution which will be put before it dealing with judges and their accountability and I probably understated the confusion that exists in the public mind, particularly the dissatisfaction with what has been proposed in terms of its ability to answer what was a very reasonable intention to establish accountability for judges.

The following are questions raised by the public. What behaviour of the Parliament has taken place to justify increasing the threshold from a simple majority to a two-thirds majority? What has taken place that requires immunity to be extended from the superior court to courts governed previously by statute? The public has not issued any demand for the protection of District and Circuit Court judges nor has it suggested that judges of the superior courts are under some immediate threat from the Parliament. As a Member of Parliament, I would like to know the basis for this under-labourer version of Parliament and parliamentarians. Surely the public intention was in regard to those who share the division of powers with us in Parliament, a division of powers between the Judiciary and the Executive in the administration of this country with which I have no difficulty and which every Member of this House respects?

Why are parliamentarians, the Minister, in particular, operating on the basis that there is some threat to that independence from the Parliament? Why is it necessary to change the arrangement from a simple majority, which has sufficed since the 18th century, to the proposed arrangement of [112] a two-thirds majority – two-thirds majority to make a charge and to introduce a sanction? The public will say if it votes “yes” in this referendum, what will it have done other than extend immunity downwards and make more difficult the calling to account of judges in very limited circumstances of abuse? Again, the public will reasonably ask what process will take place if a charge is made and sustained if the investigation is carried out by a body that can, as it were, make recommendations? In a most curious kind of remark by the Minister, he suggests that the most it can do is exercise some kind of moral suasion seeking a guarantee that the behaviour referred to will not happen again. This is very far from being a sanction nor does it deal with the reality about which the public expressed its concern.

If, for example, as has been pointed out by the Labour spokesperson on justice, Deputy Howlin, we are only talking about those matters that are the stuff of impeachment now, why do we need another body to make recommendations and leave blank how the recommendations are to be implemented? The process is not specified. The sanctions are left there.

There are other aspects about which the public is concerned, behaviour adverted to in the Hamilton report, behaviour that stops short of that which merits impeachment but which may be incompetent. One that has been raised with me on several occasions is gross discourtesy to those before the court or those professionals speaking on their behalf. What is being proposed does not deal with any of this.

The net effect of what is being proposed will secure the opposite of the public's concern which was to put a procedure in place that was self-evident, would be able, while respecting autonomy, to address issues other than those that required impeachment and from that to be able to assure the quality of judges in their behaviour and judgments. It is extraordinary that the Minister would, in crafting these very inadequate and curiously paradoxical proposals in terms of political intention, operate with such a malignant view of his fellow parliamentarians. I would have thought it very interesting, for example, if he justified why there has to be a majority of judges on this council, without process and sanctions, that is hoping to exercise moral suasion. From where did this truth come and from which jurisdiction can examples be found to suggest that nobody is entitled to even a vague opinion that might lead to a moral injunction on judges other than judges themselves?

Questions have been asked about the number of judges of which we are speaking. When we speak about a majority, how large will be this body? The net effect of all of this is simple. If the public votes “yes”, as the proposal is before us, it will make it more difficult to impeach a judge and, contrary to everything it hoped, those other behaviours short of impeachment will not be addressed. Quite extraordinarily, those who previously did not enjoy immunity will now have [113] conferred on them the same immunity as is held by the President.

I lectured for 25 years in subjects that included the sociology of law. I read recently of a judge who decided to suspend a custodial sentence on a woman with five children until she had her baby. A decision like that is truly extraordinary and I shudder to think of the degree of ignorance about the necessity of bonding and so on that would arise in this case. It will not be possible to deliver sanction on such people and they will enjoy an immunity that a Supreme Court judge enjoyed previously. Where else does this happen in Europe? If we were talking about a District Justice or Circuit Court judge in Mafia ridden Italy, one would like to speak about their immunity from a political regime that might have been dubious on the issue of controlling crime but it is an extraordinary reflection on the public and on parliamentarians to introduce such legislation to achieve the opposite of the public's concern.

There is no tension between judges operating with respect for the public who are respected, in turn, by parliamentarians. The division between the functions specified in the Constitution are not in trouble except that they have been provoked by recent events. What the public will ask when it goes to the polls to vote on the constitutional amendment is, how adequately does this deal with the events of the past two years? Unfortunately, it will see that the opposite of what was suggested then and what it expected is being proposed. I appeal to the Minister, even at this late stage, to go back to first principles, take the advice of the All-Party Committee on the Constitution and give time to this. Let us achieve something that respects all branches of our governorship

Mr. Quinn: Confused Ministers should be wary of putting referenda to the people. I say confused because it is increasingly clear that this Minister is unsure of himself and of the proposals that make up this Bill.

The series of amendments he has introduced this evening of which, as usual, the media have been made aware before the House, only proves the point. On the radio on Sunday the Minister argued that a two thirds majority within the Oireachtas was a necessary precondition to ensure the separation of powers and to protect minority political rights within the House. He still believes that. Yesterday in The Irish Times he wrote that no Government would or should attempt to push motions through the Dáil or the Seanad even under the existing simple majority constitutional provisions. These two views are contradictory. Which does the Minister believe? He might also explain why, if he believes something would not happen, he feels the need to legislate against it. There are enough problems which need to be addressed by legislation without wasting time legislating for those that even this most paranoid of Ministers does not believe will arise.

[114] It is absurd that in the aftermath of the biggest judicial scandal in the history of the State, the Government should seek to make it harder to impeach a judge. This is what the Bill attempts to do. It is even more absurd that in the aftermath of two incomplete inquiries into that scandal, these proposals for constitutional amendment do not correct any of the deficiencies we encountered last year.

After this referendum, which the Minster will attempt to persuade people is about introducing accountability with regard to the Judiciary, we will be left with only one option to deal with judicial misbehaviour – impeachment. This Bill is nonsense. There has not ever been an abuse of political power to impeach a judge since the foundation of the State. If ever the possibility existed that simple majority power might be used in this fashion it has probably receded. We all accept, however reluctantly by Fianna Fáil, that we live in an era of coalition Governments. If a minority party in Government can call the Taoiseach to account on personal pet projects like Stadium and Campus Ireland it might also be inclined to prevent partisan impeachment of a judge.

Partisan impeachment would also be amenable to legal challenge. A growing number of Members of the House have experienced operating in a quasi-judicial capacity and the heavy responsibilities that brings. The idea that a whip might apply in an impeachment trial is a sure indication that impeachment could not be achieved. Whatever the faults of politicians, it is an insult to the Members of the Oireachtas to suggest that they would behave in such a partisan and unprincipled fashion.

The Minister's amendments do not go to the heart of the problem of the Bill. They do not meet the concerns of the Labour Party although they may go some way to meeting those articulated by Fine Gael. If his amendments are enacted the bizarre situation could arise where 100 Members of the Dáil, assuming the motion was initiated in the Seanad, could vote for the removal of a judge and the motion would still fall. As we have seen from last year, even the threat of impeachment by a Government was sufficient to remove two judges in office. Now the Minister believes it is good law to put in to the Constitution that judges can remain in office despite a majority of the Members of Dáil Éireann advocating their impeachment. What is all this about?

After the Minster's amendments, we are no clearer as to how the judicial council will operate. No Government legislation has been published, which is an outrage. Constitutional rather than statutory protection will prevail in relation to judges from lower courts, the judicial council will still have the power to make recommendations but the only real sanction will remain the nuclear option of impeachment.

At the heart of the Minster's proposals is a worrying phenomenon. It is a simple lack of confidence in politics. His proposals send out a loud [115] and clear message that politics is not to be trusted and that politicians cannot act responsibly. The Minister is saying, or he has allowed others to convince him to say, that politicians need to be more protected against now, than at any stage in the history of the State. No doubt this is a view with some currency. It has recently been suggested to the sub-committee charged with investigating the Abbeylara affair that politicians are not sufficiently independent or the appropriate body to hold public servants to account. This is a dangerous precedent, regardless of to what extent politicians may have contributed to it.

It is one thing to argue for the separation of powers in respect of judges whose function it is on occasion to legally hold the Executive to account but it is another thing altogether to advocate constitutional protection for lower court judges from politicians who have shown little or no inclination to interfere with them in the past. We are the elected representatives of the people. We are accountable to them and to each other. That is why my party proposes a code of conduct.

Perhaps we have done much to cede power away from elected representatives and perhaps it is time to change that. I see no reason, for example, statutory agents should not be subjected to the same parliamentary question routine as Ministers but this Bill represents a bad start. There is only one precedent in 300 years on this island for the impeachment of a judge. By contrast, there is a recent precedent from last year of the administration of justice being damaged arising from questions surrounding judicial behaviour. For some reason the Minister appears to think it is his job to address the potential difficulty that could be caused by the former rather than the scandal of the latter. Having been a member of the Government that visited the latter issue upon us, perhaps it is not surprising.

As it stands the Labour Party will be forced to oppose this Bill. We believe in the principle that greater accountability of the judges to the public is required. We do not believe they or the Garda require any further protections on that front. Part of the reasons we are debating these proposals is Fianna Fáil's difficulty with the concept of accountability. The party opposed the electoral reforms of the last decade. It opposed accountability within the House. The Minister is opposed not just to accountability within the Garda Síochána but to best practice in the force. At the last general election the party abandoned the previous Government's proposals for regional and accountable education boards. The Department of Education and Science continues to rule. The Minister for the Environment and Local Government is intent on overriding local authorities' decisions without reflecting that the difficulty may be that local democracy is not only flawed but inadequate. Fianna Fáil appears to regard accountability as some terror drawn down upon it by the sins of its fathers. My party regards it as a necessary part of a maturing republic.

[116] In recent weeks a newspaper editorial suggested it would be unfortunate to see this House and possibly the people divide on this issue. That is strange reasoning. We are told there are no differences between parties and people in this House and that we lack material for debate. Why recoil from genuine debate and difference when it emerges? We have recently inserted clauses into the Constitution to deal with fundamental issues, such as the right to remarry, which have received only the barest majorities. The Labour Party will oppose this Bill as published and if not amended by the Government we will oppose it in the country. We reject the proposed amendments but given the state of things more will probably be introduced tonight and tomorrow.

The Bill makes it harder to impeach a judge and it affords judges of the minor courts the same constitutional protection as the President. It fails to resolve the issue of how judges guilty of misconduct can be sanctioned short of impeachment and it fails to provide for adequate non-judicial involvement in the limited procedures set out. The Bill will make a bad situation worse and it should be opposed.

The Bill will also be subject to considerable confusion among the electorate. I made this point with regard to the Nice Treaty referendum. These referenda should be postponed until the autumn. We are putting four distinct proposals to an electorate that is increasingly busy and short of time. We have hardly adhered to our own recommendations for the length of time that should elapse between passing legislation in this House and holding a referendum. We are asking the electorate to take seriously the process of changing the Constitution. We have erred before in putting to the people a proposal on Cabinet confidentiality with which they felt unprepared to deal. I hope we do not repeat the mistake but sadly, I believe we will.

Mr. Enright: Given due care and the right approach the Government had the opportunity to secure all party support for a Bill such as this. Regrettably given what it has introduced, such support cannot be forthcoming from this side of the House. It is incredible that the Government could put forward such provisions. The first really amazing provision is that where somebody wishes to lay a charge against or look for an investigation into the conduct of a judge then such notice of motion in the House requires the support of 30 Members. Seanad Éireann consists of 60 Members. It is impossible for the Government to expect this House to pass legislation which will require 30 Members of Seanad Éireann to sign such a resolution. Section 4 paragraph 4º contains “A proposal to either House of the Oireachtas to prefer a charge against a judge under this section shall not be entertained unless upon a notice of motion in writing” signed by not less than 30 Members of that House. To get 30 Members of Seanad Éireann to support such a resolution would be almost impossible. That provision will [117] have to be changed. It would be much better if it provided for somewhere in the region of ten or 15 people.

Mr. O'Donoghue: Is there any advance on that? I was asking the Labour Party that.

Mr. Enright: Approximately ten people should be sufficient. It would not be correct for just one person to be allowed put down such a resolution. That could be damaging in many ways. We are on Second Stage of the Bill now and we will soon move to Committee Stage. We can discuss the numbers at a later stage. However, 30 people is too many and somewhere in the region of ten or 15 would be a more reasonable number. There will be a glorious opportunity to get such a number.

Part 2, section 5 says that “no such proposal shall be adopted by either of the Houses of the Oireachtas save upon a resolution of that House supported by not less than two thirds of the total membership thereof.” It is totally unnecessary to look for a two thirds majority. A simple majority as has been the case heretofore would be sufficient.

The Minister circulated a briefing note which I found most interesting. It deals with the procedure similar to that which applies to the President but it was difficult to see where it was leading. It was not frank and open about what the Minister is attempting to do. For us to adopt the resolution to investigate, what is required is the use of a simple majority.

With regard to the judicial body which it is proposed to establish in Part 2, section 1 “Provision may be made by law for the establishment of a body to investigate, or cause to be investigated”. It is essential to have such a body and I am in agreement with the establishment of such a body. I am also in favour of having a majority of judges on the body but the number of judges should be specified and clarified as should the number of lay people that are proposed.

The Courts Service was established in 1998 and its board comprises representatives from the Bar Association, the Law Society, the Judiciary and members of the public. The Judicial Appointments Advisory Board includes members of the Bar and solicitors.

Any individual in court can feel he has been harshly treated by a judge. That person might not have been in court before and may well make representations to a TD or a Senator about his or her perceived justifiable grievance. The investigative procedure will then commence. It would be preferable to have a solicitor or a barrister to take the complaints because they are familiar with the courts and may have seen members of the public who have been harshly treated on occasions by judges. Those legal professionals could better outline the case to the investigating board. I will give a simple example. I have a reasonably good knowledge of the workings of the courts and in more than 40 years working as a solicitor, I have [118] not ever dealt with a case where a person was committed to prison for contempt of court. The Minister also has a long-established legal practice and I do not know if he has ever encountered anyone being cited for contempt of court, be it a solicitor, barrister, a garda or a member of the public. However, there are a few judges, one in particular, who quite frequently commits people for contempt of court. Some judges seem to be unable to conduct proceedings without having to use the ultimate sanction of committal to prison. That sort of situation should be investigated and a judicial body would be a suitable forum. Everyone, solicitor, barrister, member of the public, should be entitled to come to court and be allowed outline their cases without being cited for contempt of court and sent to prison.

I have served in all branches of the courts over the years and I have found that 99% of the judges are courteous, fair and reasonable. They have made excellent decisions, although on occasions I have not seen the reasoning behind some decisions especially when I was on the opposing side. No matter how a judge arrives at a decision, some people will still feel aggrieved. Overall our system to date has worked reasonably well. There have been difficulties and problems and some people appointed as judges at a young age become more difficult as the years go by. The investigating body and the procedures outlined will be important but they cannot be put before the people without amendments. I ask the Minister to ensure that there will be a representative from the Law Society and the Bar Council on the body.

I understand the Minister briefed the press earlier this evening about this Bill.

Mr. Howlin: He did.

Mrs. Owen: Before any of us.

Mr. Enright: I do not know what the briefing was about. It is wrong that the Minister for Justice, Equality and Law Reform should hold a briefing outside the House with the press rather than come in here and outline what was happening. I would forgive him if he had no alternative. I understand the Minister of State, Deputy Hanafin, made her contribution at approximately the same time as the Minister was briefing the press. That is unfair to this House. Deputy Quinn spoke about not trusting Members. It was unfair that the Minister did not come in or have the Minister of State, Deputy Hanafin, outline—

Mr. Howlin: The Government Whip was telling the Opposition spokespersons that the amendments were not ready. They will not be ready until tomorrow.

An Ceann Comhairle: Deputy Enright has the floor.

Mr. Howlin: We were approached by the press with the amendments. It is scandalous.

[119] Mr. Enright: I am taken aback by it. The Minister has a duty to outline to the House—

Mr. Howlin: It is scandalous.

Mr. Enright: —why he did not come into the House or have his Minister of State come in and outline the reasons. In regard to the allegation I understand the Minister is now prepared to accept a simple majority. I go along with that. However, there are still a number of flaws in the Bill which must be addressed. A draft Bill should be published—

Mr. Howlin: Absolutely.

Mr. Enright: —so that when people go to vote they know what draft Bill is before this House. It is amazing we cannot get this draft Bill. If I recall correctly the same happened in the case of the divorce amendment—

Mr. Howlin: And on the referendum.

Mr. Enright: —referendum and in regard to bail. This matter is important. We must retain the confidence of the people in this House and in the Judiciary. If the Minister fails on either of those issues it is a serious matter for all of us. We must be careful to maintain standards here and in the Judiciary. Sadly this Bill is not presented in a manner that would allow us to accept it as proposed. I am dissatisfied but I would like to hear further from the Minister. We are obliged to oppose the Bill.

Mrs. Owen: If ever we wanted proof that the Minister does not know whether he is coming or going, this is it. He would be better off to go back to Kerry, stay down there and look for the people who, he said while on this side of the House, would rear up from the ditches to commit crime during my watch.

We are dealing with serious legislation when we decide to put a referendum to the people to change our Constitution, on which the sovereignty of the State is founded and from which all our laws on judges, their conduct and all human rights for our people emanate. The Minister published a referendum Bill on something as serious as an examination of judicial conduct but did not publish the draft Bill that will be put in place. He is asking the people to take him at his word, that he will do something good after it is passed, it is only the Constitution and they do not understand it. They should vote yes because it sounds like a good idea. How dare the Minister treat the people and Members in this way.

Today, at the eleventh and a half hour, we hear the Minister has briefed the media that he intends to introduce amendments to this legislation, which will be available tomorrow morning, when this House is supposed to pass the legislation following Committee Stage. The two Opposition spokespersons may have got a preliminary brief[120] ing. I had a moment to speak with our spokesman, Deputy Shatter—

Mr. Howlin: After the press.

Mrs. Owen: —to get some idea of what the Minister is proposing. What the Minister is proposing ,and the manner in which he is doing it, is inadequate and unsatisfactory and Fine Gael will not support his legislation. It is not that anybody in this House does not consider that the 1937 Constitution needs to be amended to deal with judicial conduct as opposed to judicial decisions. We believe a constitutional referendum is needed to ensure judges are called to account if they behave in the way two judges, former Judge O'Flaherty and former Judge Cyril Kelly, behaved last year. It almost brought down the Government. We need change but this is not the way to go about it. What has the Minister been doing between November 1998 when Susan Denham published her report and December 1999 when the All-Party Committee on the Constitution published its report? The Minister had time between November 1998 and December 1999 to consider this issue. He was afraid to implement the findings of the 1998 report of Susan Denham's committee. I agree that some of the suggestions might not be the right way to go about it. Suddenly, a referendum Bill is published to make this change to the Constitution. What is wrong with waiting another few months to ensure we get the legislation correct and until he has had time to publish the amending legislation that will follow on the passage of this referendum? How dare the Minister treat this country and parliament as no more than a rubber stamp and then go off into his hiding hole to decide on the legislation?

Despite his proposed amendments, which we are only hearing about on the wind, he has taken on board that the two-thirds majority needed to commence the procedure will now be a simple majority and he has reduced from 30 to 20 the number of Members required to table the motion to start the procedure. That is not enough.

He has made no changes to the section which refers to the so-called “body”, whatever it will do and whatever it will represent. There is no detail about the people who will be on it. My colleague, Deputy Shatter, has already raised many questions concerning it. How many members will form the body? Who will be responsible for appointing the members of the body? Will it be the Minister or some independent group? Will they be self-selected? Who will be responsible for appointing one or more persons who are not judges? What kind of people will be selected? What factors will render a judge or a non-judge eligible for appointment to the body? What qualifications are required? Should their past record be examined to ensure they are impartial? Perhaps they have been involved in some business where they have no choice but to be partial about certain things and, therefore, will not be able to exercise impar[121] tiality if a complaint of misconduct comes before them.

I am flabbergasted at the Minister's effrontery to this House. He went out this evening at 6.30, called in his friends in the media and made it sound as if he was listening to the views of this House and was coming to a final agreement. It is a disgrace that he had to do that at this last hour when he should have been listening to a more prolonged proper debate on this legislation and on a draft Bill that will be put in place when eventually the referendum is passed. The Minister's behaviour is such that if he had a decent Taoiseach who understood what being a Minister was about, he would tell him to pack his bag, take the flight back to Kerry and look after his constituency by ensuring the Independent Member, Deputy Healy-Rae, does not do too much damage to his prospects of a seat in the next election.

I am even more surprised by the Minister's actions in view of the fact that he is a member of the legal profession. I agree with Deputy Enright. There is no mention of members of the legal profession having a say in the judicial council. We are in favour of a judicial council. There are good ideas in the recommendations of the all party Oireachtas committee and of Justice Susan Denham's committee. The Minister's response, however, is like a camel's committee. He has picked bits here and there but not in any consistent way.

Complaints about the Judiciary and its members' conduct can originate from members of the legal profession. I have often heard legal people say that if a judge takes a scunner against one, it is not the solicitor or barrister who will suffer but their client. If justice is to be done and seen to be done, no personal animosity should exist between a judge and the representing counsel or solicitor because that would defy other elements of the Constitution which guarantee people the right to a defence. There must be impartiality in that. The Minister has not even given consideration to that.

I am proud to have been the Minister who set up the Courts Commission under Justice Susan Denham. She did great work on the commission which led to the Courts Service for which the Minister, because he is in office, takes the credit. I am big enough to accept that the Minister is entitled to claim that the Courts Service was a good idea. However, he is failing the work of Justice Denham and those who set up the Courts Service and made it work without any of the tensions that might have arisen. When I established the working group I ensured there was a good cross section of people in the group to look at all aspects of the courts service. It included judges, lay people, consumers and members of the legal profession and we had a rounded view of how the Courts Service should be established. Where is that now?

It is as if the Minister took the two reports, threw them up in the air and if something jumped off a page when it was open, he grabbed it and [122] various other bits. He has made a dog's dinner of this legislation. That is the only way to describe it. It will be of no help to Members of the Oireachtas or the Judiciary. I do not believe members of the Judiciary will gain anything if the Minister proceeds in this manner. If there is serious misconduct, as there was last year, it will be extremely hard to impeach a judge. The Minister has set the hurdles at such a point where, even with the proposed changes, the Oireachtas will never be able to impeach a judge if Members consider that necessary.

The Minister did not take on board the recommendation that there should be other sanctions against judges. If a judge is being examined by an Oireachtas committee or sub-committee, we do not know if he or she will continue to act in the court, if they should step back or if they will be paid. If they win their case, as it were, and are not impeached, what happens to their service record if they were suspended while the hearing continued? The public knows nothing about those details. Members of the House who are charged with passing the legislation know nothing about them because we cannot see inside the Minister's head, which seems to be a large lump of fudge on this issue.

I am extremely shocked. The Minister is a clever man. I sat on the Government benches and listened to some of his clever speeches. However, he has shown no cleverness in this case. In fact, he will rue the day if he forges ahead with this. He should stop now while he has the opportunity. My party is not fundamentally opposed to a constitutional amendment to ensure there is an effective way of dealing with judicial misconduct short of necessarily going through the process of impeachment. The Minister should take advantage of the willingness on this side of the House to make a proper amendment to the Constitution. He should pause and take heed of what we say. If he rushes forward with this amendment, he will rue the day. On many occasions the Minister said the same to me, and to other Ministers, from these Opposition benches, advising us to pause, take our time and ensure that what we were doing was right.

Even if 31 May has been selected for holding other referenda there is no need for this Minister to get a piece of the action. He can take a backseat. There is no need to be out there saying: “Me too; I want to have my referendum too so I am not outside the loop”. The Minister for Foreign Affairs, Deputy Cowen, is responsible for one referendum and if the Minister for Justice, Equality and Law Reform has leadership ambitions he might fear that Deputy Cowen will go ahead of him in the leadership stakes because he will be conducting his referendum. However, there is no need for this Minister to be involved.

The Minister knows only too well after his three years in the Department of Justice, Equality and Law Reform that something rushed can be a mistake. He must know from his discussions with the judges that they are not happy with what he [123] is doing. They would like to know the details. The legislation differs from what they recommend so they will not be happy with it. Nobody will be happy and I am shocked the Minister has proceeded with it. He has announced he will make some minor amendments, such as reduce the number of people required to sign the motion from 30 to 20 and reduce the two-thirds majority requirement to commence the procedures to a simple majority. I agree with the two-thirds requirement for final impeachment—

Mr. Howlin: Why?

Mrs. Owen: I believe we must be careful to ensure there is a general consensus about impeaching a judge. It is a major step. I would prefer a simple majority requirement to get the process going and, if necessary, a two-thirds majority for impeachment. If the House establishes the procedure properly, a two-thirds majority could be secured ultimately. The Minister's way of going about it is not correct.

I hope the Minister, in considering the issues that have been raised by many speakers during this short debate, will recognise that the body he intends to establish comes nowhere near the concept proposed by Fine Gael or the Labour Party. If he hopes to have some form of unanimity on what he is doing, he should pause and listen to what we say.

The all party Oireachtas committee made recommendations and, in some instances, the Minister went along with its views. However, it made more wide ranging recommendations about a judicial council which the Minister has ignored. He cherry picked a few bits and pieces of the recommendations and left out others. The Minister has taken the liberty, at this late stage, of coming to the House to ballyrag and bulldoze us. He will probably go on the airwaves in the morning to talk about the wonderful job he has done: “I have made the amendments and that is what they asked for”. It is one of the changes we sought but not all of them.

We are not playing the politics games the Minister used to play when he was on this side of the House. This issue is far too serious for the Minister to laugh at us and say that we do not know what we want and that we are divided among ourselves. Of course, there is a difference of opinion among Members but it is the Minister's responsibility to bring those differences as close together as possible so that, at the end of the day, all Members can claim they have done a good job and given the people the right referendum on which to vote. If it is their choice to select it, they will know what they are buying into and what will happen when the legislation is passed. At present, however, they are confronted with a pig in the poke.

I could try to use all the cliches at which the Minister was so good when he was on the Opposition benches but I could not possibly match [124] them. The Minister is making a mistake in rushing this legislation through. I strongly recommend, as a former Minister for Justice, that the Minister take heed of what is being said in this debate and that he not proceed with this amendment.

I would like to be a fly on the wall and listen to some of the discussions in the Department as I believe there is no wholehearted support for what the Minister is doing. He decided it was time for a referendum because of the embarrassment of the O'Flaherty and Kelly case and the damage that did to the Government. He felt he would get this off the agenda and push it through. A proper Committee Stage debate would have allowed us to tease out the Department officials' view of difficulties with what the Minister is proposing. As I say, tóg go bog é; the Minister should not include this referendum with the others on 31 May. He should give us time to consider this in the autumn. There is no need to rush it.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): I thank all Deputies who contributed. I am not in a position to accept all the suggestions which have been made in the course of the debate but on Committee Stage tomorrow I shall propose some amendments to the Schedule to the Bill.

Deputy Shatter suggested that a simple majority should suffice to prefer a charge against a judge, with a two-thirds majority being necessary to sustain the charge and remove the judge from office. The Deputy made the point, with which I agree, that if a serious allegation is made against a judge which a majority of either the Dáil or Seanad believe should be investigated, the public interest demands that such an investigation occur. For this reason I will propose a Committee Stage amendment to provide that a simple majority of the membership will be sufficient to prefer a charge. Having considered the views which have been expressed in this debate, I believe that to require a two-thirds majority to prefer a charge is unduly restrictive. Since the preferring of a charge can give rise to the suspension of a judge and the decisions to prefer a charge and to suspend are taken by the same House, I will also propose an amendment to provide that decisions to impose or lift a suspension will be taken by simple majority.

The requirement that at least 30 Members of a House are needed to sign a motion proposing that a charge be preferred was also the subject of comment by Deputies. This requirement is taken from the impeachment provision for the President which both the Constitution Review Group and the all-party committee recommended should also be applied to judges. The change from a two-thirds to a simple majority requirement to prefer a charge, which I am proposing, makes the requirement for 30 Members to sign the motion inappropriate in the case of the Seanad where 31 Members will suffice to pass the motion. Having considered this point, which was well made by [125] Deputy Enright, I have decided to table an amendment on Committee Stage to provide that 20 Members may table a motion in either House.

Deputy Howlin and others have argued for a simple majority requirement for the removal of a judge. It is argued that the existing power to remove from office has never been used and so is unlikely to be abused in the future.

Mr. Howlin: So Eamon de Valera thought.

Mr. O'Donoghue: However, a two-thirds majority requirement will effectively remove the possibility that such decisions will be taken solely with the support of the Government parties and against the wishes of the Opposition. Deputy Howlin appears to see nothing wrong with a situation in which a judge would be removed following a divisive debate polarised along Government and Opposition lines. I consider that this would be a very harmful prospect which would inevitably lessen confidence in the independent administration of justice.

Mr. Howlin: An extraordinary contemptuous view of Parliament.

Mr. O'Donoghue: Security of tenure is a necessary corollary of the independence of the Judiciary and if a judge is to be removed from office it should be only in circumstances where there is a broad level of consensus in the Houses of the Oireachtas following the proper procedure, that this is the appropriate course of action. The Deputy also points out that if a judge were removed from office for purely partisan reasons, the decision could be struck down by the courts. He may be correct in this but such a scenario, namely a stand-off between possibly the Dáil on the one hand and the High and Supreme Courts on the other, is surely not one that we should welcome. Indeed, it would not be unreasonable to describe it as a constitutional crisis, an outcome which the Deputy wrongly says my proposals would bring about. We should not enact measures which rely as a safeguard on the possibility of the High or Supreme Courts striking down a resolution of this House to remove a judge. I prefer to have as a safeguard a provision which effectively means that Opposition support will be necessary to remove a judge. That is a very important point.

In the course of the debate, Deputies sought details of the composition of the body to be set up pursuant to the new Article 35.4. !t was also argued that the Bill to set up this body should have been published in draft form at the same time as the Bill to amend the Constitution. While it is true that there are precedents for this, the divorce referendum, for example, there is no compelling reason this should be done in the present case. It is proposed to insert a power in the Constitution to set up a particular body whose role is stated, very specifically, in the proposed constitutional amendment. This is what the people will be voting on, not the detailed Bill [126] which will follow, and which it will be fully within the competence of the Oireachtas to debate, amend if necessary, and enact. In any event, my Department will continue to work on the necessary primary legislation consistent with progressing the other urgent legislation for which it is responsible.

Having said that, I do not accept any criticism for not having published a Bill, It is appropriate to give a broad outline to the House of the main provisions which will be included in the legislation which will be introduced to establish, inter alia, the body referred to in Article 35.4. The legislation will, in addition to providing the legislative framework for the establishment and operation of that body, also provide for the establishment of a judicial council on the lines recommended in the Report of the Committee on Judicial Conduct and Ethics.

The main provisions of the legislation will be that it will provide for the establishment of a judicial council made up of all members of the Judiciary. The functions of the council will be carried out through the agency of a board and committees. The council will deal with matters such as ethical standards, training of judges and general issues affecting the conduct of judicial business. It will not, however, have any role in the investigation of allegations or complaints against individual judges.

Complaints against individual members of the Judiciary will be dealt with by a committee of the council to be known as the committee on conduct and ethics. This committee will constitute the body referred to in Article 35.4. It will have the power to investigate complaints of misbehaviour or incapacity by judges and it will be conferred with the powers necessary to do this. Provision will be made for the classification of complaints and for an inquiry into more serious complaints to be heard in public.

It is envisaged that the committee on conduct and ethics will have a membership of 12. Deputy Enright referred to this and asked for details of the membership. There will be eight judges, the four Court Presidents, four ordinary judges and four lay persons or non-judges. The legal profession will be represented as part of the non-judge membership. The other lay persons might be nominated by the Government for a term of years or could be ex officio members holding certain other public offices.

It will be open to any member of the public to make a complaint to the committee on conduct and ethics and have it considered. Serious complaints would be referred by the committee to a panel of inquiry which could consist of either one judge or a number of judges with lay representation.

The committee will also be empowered to make and publish findings and recommendations arising from an investigation.

Mr. Howlin: Is that all?

[127] Mr. O'Donoghue: Deputies raised the point that the Article 35.4 body will investigate only behaviour that is alleged to have occurred while the person was in office as a judge. It does not cover behaviour that occurs prior to appointment but has only been discovered subsequent to appointment. For example, a person might have been engaged in major tax evasion prior to appointment as a judge. Deputy Shatter saw an inconsistency between this and the position under the new Article 35.5. It is clear that Article 35.4 only applies to behaviour while holding the office of judge. I do not propose that the body will be empowered to investigate conduct which occurs prior to the person assuming the office of judge. The competence of this body, which will consist mostly of judges, is in the area of conduct which takes place while a person is a judge. The body can decide what is appropriate in that context and make findings and recommendations in relation to it. If wrongdoing which took place before a judge is appointed is of concern, for example, if a judge is guilty of major tax evasion – the example given by Deputy Shatter – it is likely that impeachment is the only appropriate course of action that could be considered.

Deputies argued that, since it was proposed only to give power to the body to make and publish findings and recommendations, it could not issue reprimands to judges. I believe that the power to make and publish findings and recommendations, in effect, amounts to a power to reprimand.

Mrs. Owen: The Minister is contradicting himself.

Mr. O'Donoghue: I do not propose to insert any specific reference to reprimands. The body could find that a judge was impolite to a person appearing before him and recommend that he apologise and refrain from similar conduct in future.

Mr. Howlin: What happens if the judge ignores the recommendation?

Mr. O'Donoghue: This is an appropriate and effective moral sanction.

Mr. Howlin: Nobody has a sanction.

Mr. O'Donoghue: It is a sanction which judges will not, by their behaviour, wish to invite.

Mr. Howlin: They will ignore it.

Mrs. Owen: Has the Minister never stood before some of these people?

Mr. O'Donoghue: There was also criticism of the fact that the body would have only moral sanctions available to it.

Mr. Howlin: This is bizarre.

[128] Mr. O'Donoghue: In other words, there are no enforcement provisions attaching to the body's recommendations. I believe that sanctions of a moral nature, in contrast to legal sanctions such as a fine or suspension, are required.

Mr. Howlin: There are no sanctions in these proposals, only recommendations.

Mr. O'Donoghue: This approach was advocated by the All-Party Oireachtas Committee on the Constitution and the committee concerned with judicial conduct and ethics.

Mr. Howlin: It patently was not.

Mr. O'Donoghue: I find it surprising to hear Deputies whose parties were represented in the all-party committee that prepared the report on the courts and the Judiciary questioning its conclusions in this respect. What is the point of having all-party committees where Members agree recommendations —

Mr. Howlin: They have not been implemented.

Mr. O'Donoghue: — if spokespersons subsequently come to the House to welsh on what was understood?

Mr. Howlin: It has not been implemented.

An Ceann Comhairle: Order, please.

Mrs. Owen: Is the Minister telling us he implemented the whole report? Nonsense.

An Ceann Comhairle: Order, please.

Mr. Howlin: It is an insult to our intelligence.

Mr. O'Donoghue: I will quote what the all-party committee had to say on this matter:

If the complaint were upheld, the review body might, through the president of the relevant bench, express its disapproval and/or propose counselling or training, make administrative arrangements to avoid a repetition of the problem, issue a written apology to the complainant or publish a summary of its findings.

Mr. Howlin: Where are these arrangements?

Mr. O'Donoghue: These are not legal sanctions. They are moral sanctions.

Mr. Howlin: They are not visible in the Minister's amendment.

Mr. O'Donoghue: We should also remember that the all-party committee was recommending a body which would have a constitutional basis and yet it favoured moral as distinct from legal sanctions. It would not be appropriate to give the body power to impose penalties such as a period [129] of suspension or a fine as this could fatally damage the authority of the judge.

Mr. Howlin: What about an assured written apology?

Mr. O'Donoghue: If such a course of action were warranted, I suggest that the impeachment route would need to be considered. Deputy Shatter outlined Fine Gael's ideas on a judicial board which would have an equal number of legal and non-legal members. However, the provision in my proposal that a majority of the body be judges is the key guarantee of judicial independence. It closely reflects the recommendations of the constitutional review group, the all-party committee and the judicial conduct and ethics committee, none of which envisaged that judges would be in anything other than a majority on the body.

It has been argued that a judge should be suspended automatically if either House votes by a majority for a charge to be preferred. Deputy Shatter said that the body to be set up under the new Article 35.4 should have a constitutional power to suspend but I do not agree with automatic suspension. It should be open to the House preferring the charge to decide whether suspension is warranted in a particular case. Nothing is lost by leaving this decision to the House. There must be a power to lift suspension if circumstances change before the investigating House concludes its investigation.

I believe that it would be excessive to give the Article 35.4 body the power to suspend. All matters relating to removing a judge from office, including requiring him not to exercise judicial functions while an investigation is under way, should be confined to the Houses of the Oireachtas.

Mrs. Owen: Does the Minister realise how important legislation would have been to spell this out?

Mr. O'Donoghue: In any event, such a power is not necessary in the hands of the Article 35.4 body as if a judge is seriously and obviously misbehaving it can be expected that one of the Houses will act forthwith, prefer a charge and invoke its power of suspension under the proposed Article 35.5, if necessary. Deputies raised the question of the interaction between the new body and the impeachment powers of the Oireachtas and asked for this to be clarified. For example, if impeachment proceedings are undertaken for the same behaviour as was investigated by the body, can the members of the body be required to come before the House to give evidence of the investigative process and explain any recommendations made?

I dealt with this issue on Second Stage when I said:

impeachment proceedings might arise out of an investigation by the body provided for by the new section 4 but they could also arise at [130] the initiative of either House. Where the Article 35.4 body has investigated misbehaviour and issued a report recommending impeachment, the question arises as to whether the investigating House of the Oireachtas can accept that report and act on it. The fact that a comprehensive report is already available to the House could well have the effect of shortening the investigation which the House needs to undertake or cause to have undertaken but there can be no question of the House being circumscribed in relation to how it carries out its role. In any event, the judge has to be given the opportunity of responding to the charge against him or her including the findings of the Article 35.4 body. This is an inevitable implication of the supremacy of the Houses in this matter: the decision that a judge should be removed from office cannot be devolved in whole or in part to another body.

The House could prefer a charge on the basis of an allegation which has already been investigated by the Article 35.4 body even if the body did not recommend impeachment. This is because the powers of the Houses should not be diminished in any way merely because a new body is being established. It will be possible to call members of the body before the House to give evidence about the investigation they have carried out because the House's power to investigate is not limited in the proposed wording.

The Labour Party takes issue with the proposed guarantee of security of tenure at constitutional level for judges of the Circuit and District Courts. In my opening speech, I explained the reasons for this proposal. In particular, I am advised that security of tenure is already effectively guaranteed to judges of the lower courts at constitutional level because any amendment to the existing statutory provisions which negatively affected their independence as judges would implicitly be constitutionally invalid.

Mr. Howlin: It is bizarre that we cannot change the law.

Mr. O'Donoghue: I do not accept the Deputy's thinking that judges of the lower courts are in some way inferior office holders whose independence is of less concern than that of High and Supreme Court judges.

Mr. Howlin: The framers of the Constitution thought so.

Mr. O'Donoghue: In this context, I will quote from the judgment of Mr. Justice Gannon in Clune v DPP (Irish Law Times Monthly [1981], page 17), when he was hearing an application for an order prohibiting a District judge from dealing in a particular way with a case which was before him. Judge Gannon emphasised the independence of the District judge not only from the Executive and Legislature but also from inter[131] ference by a higher court: “the courts of limited jurisdiction established by legislation—

Mrs. Owen: On a point of order, some of the Minister's speech is not in our script. Will the Minister circulate that page if he has it?

Mr. Howlin: It is another piece of recent grafting.

Mr. O'Donoghue: I understand that one of the pages of the script is missing.

Mr. Howlin: It fell off the machine.

Mr. O'Donoghue: This is as a result of human error, which does occur, apparently, and I apologise for that.

Mrs. Owen: It was not the Minister's error.

Mr. Howlin: The Minister did not allow for human error when he was in Opposition.

An Ceann Comhairle: Members should listen to the Minister.

Mr. O'Donoghue: Judge Gannon emphasised the independence of the District judge not only from the Executive and Legislature but also from interference by a higher court:

the courts of limited jurisdiction established by legislation are not in any sense subject to direction, control or supervision by the superior courts. The statutory courts are inferior courts in the sense only that their range of jurisdiction is limited and defined by legislation. [The District judge's] independence and authority is secured in his freedom not only from pressures of political or executive nature but also from purported intervention, direction, or control by any superior court.

Mr. Howlin: Will the Minister yield for a question?

Mr. O'Donoghue: Therefore, all our judges must be independent.

An Ceann Comhairle: Will the Minister yield to the Deputy's question?

Mr. O'Donoghue: I have limited time available to me, a Cheann Comhairle.

Mr. Howlin: The Minister has 30 minutes.

An Ceann Comhairle: Allow the Minister to continue.

Mr. Howlin: Does the Minister wish to yield for a question?

[132] An Ceann Comhairle: The Minister must be allowed to conclude without interruption.

Mr. Howlin: That is very sad.

Mrs. Owen: The Minister is on a roll.

Mr. Howlin: This is great engagement with debate.

Mr. O'Donoghue: All judges must be independent in the discharge of their functions and security of tenure should be exactly the same for all judges.

Mrs. Owen: This is what the Minister calls democracy.

Mr. Howlin: Does the Minister disagree with the Chief Justice?

Mr. O'Donoghue: Deputy Howlin criticises the proposed new body on the grounds that it can only deal with misbehaviour and incapacity. It will not be allowed to consider if a judge is guilty of a less serious charge such as incompetence or inefficiency. According to the Deputy, the grounds for investigation by the new body are confined to misbehaviour or incapacity, the very grounds for which impeachment is the sanction. The Deputy may be mistaken in considering all misbehaviour as of a type which would justify impeachment and removal from office. There is a range of possible misbehaviour by a judge but only that which, in the opinion of the House, renders the judge unfit to continue in office justifies his removal.

Misbehaviour of a lesser kind can be dealt with by the new body. Incompetence and inefficiency, unless they arise out of misbehaviour or incapacity, are not included.

Mr. Howlin: That is the point I am making.

Mr. O'Donoghue: The appropriate remit of this body —

Mr. Howlin: Incompetence does not arise.

Mr. O'Donoghue: —is in the area of misbehaviour and incapacity. I have been advised, however, that any unreasonable delay in delivering a judgment, for example, is misbehaviour as it is an unreasonable and unjustified breach of the judge's function to administer justice and a breach of the constitutional right of litigation.

Mr. Howlin: This is Alice in Wonderland.

Mr. O'Donoghue: I do not favour giving the new body any power to act in situations falling short of this. To give it power to investigate the day to day performance and output of judges would be an unwarranted intrusion into judicial independence.

[133] At the commencement of this debate on 10 April, I said we should debate this Bill by reference to two essential criteria: first, it must provide fair and workable measures to deal with judicial misbehaviour which served to enhance public confidence in the administration of justice; and second, it must maintain and support the independence of judges in carrying out their duties. This Bill, with the addition of the amendments I have outlined and which I will propose on Committee Stage, meets these objectives in a balanced way.

There has been some criticism here this evening regarding the perceived delay in some quarters at putting forward the Government amendments which have been laid before the House. While I regret that the amendments were not ready earlier, Fine Gael is proposing extensive amendments to the legislation and I understand they were submitted so late this evening that the Bills Office is still working on them.

Mr. Shatter: That is not true.

Mr. O'Donoghue: That does not mean we will not be in a position to answer Deputy Shatter's amendments in due course.

Mr. Shatter: They were submitted yesterday.

Mr. O'Donoghue: I do not see any of his amendments and I have made no complaint.

Mr. Howlin: Deputy Shatter did not tell the press first.

Mr. O'Donoghue: In any event I understand that ministerial amendments—

Mrs. Owen: They were submitted to the Bills Office.

Mr. O'Donoghue: —were circulated by the Bills Office at 7 p.m. this evening and Fine Gael's amendments have yet to be circulated, and that is a fact.

Mrs. Owen: The Minister is the person who is sponsoring this legislation. He is asking us to pass this legislation.

An Ceann Comhairle: The Minister is still in possession.

Mr. O'Donoghue: There is something very disturbing—

Mr. Shatter: On a point of order, because I am concerned that this would be misrepresented. For the information of the House, the Fine Gael amendments were tabled yesterday but when it was announced by the Taoiseach in the House at 4.30 p.m. today that the Minister intended to table amendments, for procedural reasons, we [134] delayed having the amendments circulated until we had sight of the Minister's amendments, and we did not have sight of those until 7 p.m.

Mr. Howlin: After the members of the press were briefed.

Mr. Shatter: Some three quarters of an hour after the press was briefed.

Mr. Howlin: The Minister might at least apologise to us for that.

An Ceann Comhairle: It is not a point of order. The Minister to conclude.

Mrs. Owen: It is a point of clarification. The Minister is trying to pretend something else happened.

Mr. O'Donoghue: I do not take too much notice of what Deputy Owen had to say here this evening for the simple reason that she is trying to settle old scores on battlefields upon which she has been vanquished.

Mrs. Owen: I am not.

Mr. O'Donoghue: I will deal with the other contributors.

Mrs. Owen: A Cheann Comhairle, on a point of order, I participated in this debate on what the Minister had to say about this legislation.

An Ceann Comhairle: That is not a point of order. The Deputy will resume her seat.

Mrs. Owen: The Minister should take seriously what any Member of this House says about a constitutional Bill—

An Ceann Comhairle: It is not a point of order. The Deputy is being disorderly.

Mrs. Owen: —and not try to settle old scores.

An Ceann Comhairle: When the Chair is on its feet, the Deputy should resume her seat. It is not a point of order.

Mrs. Owen: I look to you, a Cheann Comhairle, for protection.

An Ceann Comhairle: The Deputy is well able to protect herself.

Mrs. Owen: I do not know whether I will get it but I look to you for it.

An Ceann Comhairle: The Deputy is well capable of protecting herself.

[135] Mr. O'Donoghue: It may be a cliché but I did not interrupt any other contributor.

Mr. Howlin: That is a record.

Mr. Enright: It is not that he is out of practice.

Mrs. Owen: The Minister is as funny as ever.

Mr. O'Donoghue: There has been a very disturbing development in this House tonight which I sincerely hope does not represent a precedent. There can be little doubt but that any objective observer looking in on this debate would know that the members of the Opposition have contributed, by and large, without regard for the very serious issues which are before the House. I regard it as deeply disturbing and regrettable that certain leading members of the Opposition parties, in particular, the Labour Party, would seek to make a political football out of the Judiciary.

Mr. Howlin: That is outrageous.

Mrs. Owen: Are we not allowed to question him now?

Mr. Howlin: He would abolish the Dáil if he had his way and buffoon his way through this constitutional battle with contempt for this House and briefing the press. It is a disgrace.

Mr. O'Donoghue: The separation of powers is fundamental to the operation of any functioning democracy. In so far as I have put proposals to this House regarding the Judiciary—

Mr. Howlin: They will not go too far.

Mrs. Owen: We all know how fundamental he thinks they are, bringing in amendments at the last minute.

Mr. O'Donoghue: They were done in the interests of preserving the separation of powers—

Mr. Howlin: He does not know what he is doing.

Mr. O'Donoghue: —of preserving the integrity and the independence of the Judiciary and ensuring that at no point in the future would it ever be possible for that distinction to be blurred.

Mrs. Owen: If he thinks that, why did he not bring these amendments in earlier? Why did he bring in flawed legislation? That is an insult to the judges.

Mr. O'Donoghue: That is why the proposals were put forward and they were put forward with no other objective. If anyone wants me to buttress that argument, let me buttress it with this. As a member of a party which has by far the largest number of members, I proposed in this House [136] that if a judge is ever to be impeached in this State, the Opposition would have a veto on that.

Mr. Shatter: Is he proposing that the Fianna Fáil Party would have a veto?

Mr. O'Donoghue: Nothing could illustrate my good faith in this matter more than that. The reason I proposed that is not for me, not for the Fianna Fáil Party—

Mr. Howlin: It is contempt for politics and for this House.

Mr. O'Donoghue: —not for the Government and not for any selfish reason but for this reason and for this reason only—

Mr. Howlin: That he has contempt for politics and for this House.

Mr. O'Donoghue: —that the fundamental tenet of the separation of powers – at least one of the main pillars of it – must surely be that the independence and integrity of the Judiciary be maintained. I did that not out of any political consideration but to make absolutely sure that the Irish people were served by the best possible system.

Mr. Howlin: It is a bad move and contemptuous of Parliament.

Mr. O'Donoghue: It is a system, incidentally, which has been tried and tested, not just in the past decade or in the past 100 years but over many hundreds of years in many different jurisdictions.

Mr. Howlin: He wants to turn on its head 300 years of history for his own perverse reasons. It is contemptuous.

Mr. O'Donoghue: It has been commented on by some of the leading jurisprudential lawyers in the world. It is a system which has been complimented by some of the world's leading philosophers and all for this reason,—

Mr. Howlin: What is he talking about?

Mr. O'Donoghue: —that it is of fundamental importance—

Mrs. Owen: I do not know. It is to justify his bad handling of the legislation.

Mr. Howlin: He is like Dr. Strangelove now.

Mr. O'Donoghue: —that the Judiciary's independence and integrity is not just maintained but seen to be maintained in any democracy.

Mrs. Owen: He should sit down.

Mr. O'Donoghue: A predecessor of mine, former Deputy Gerard Collins, once said that the [137] Labour Party was like mother mo chroí's old dog, it would go halfway down the road with any passer-by.

Mr. Howlin: We went halfway down the road with him.

Mr. O'Donoghue: It is not something I believed until I heard Deputy Howlin's contribution to this debate.

Mr. Howlin: We went halfway down the road.

Mr. O'Donoghue: Whatever about the Labour Party's left-wing views regarding certain functioning matters in this State and whatever way they think, I would remind the Fine Gael Party—

Mrs. Owen: Obviously he has been told to get us on side.

Mr. Howlin: He sounds like a bad record.

Mr. O'Donoghue: —that they are heirs to a very proud tradition in the context of the establishment of the institutions of this State. In terms of the Judiciary, one of their principal contributions has been made in this context. The late Professor John Kelly made one of the most significant contributions to constitutional jurisprudence in this country through his book on the 1937 Constitution and the revised additions thereafter.

Mrs. Owen: He should take some from that to deal with the Constitution.

Mr. O'Donoghue: I ask Fine Gael's thinking Members – what would John Kelly think?

Mrs. Owen: He would say the Minister made a mess of it.

Mr. O'Donoghue: I humbly submit that he would think that the independence of the Judiciary in the manner in which it is being proposed is of pivotal importance.

Mr. Shatter: He would also mention that it was outrageous to try and push this issue through the Dáil tomorrow by 1.30 p.m.

Mr. O'Donoghue: I will concede, in this context, that Deputy Shatter accepted in his Second Stage speech that it should be a two thirds majority of the Houses of the Oireachtas.

Mrs. Owen: So did I. He forgot to listen to it because it did not suit his argument.

Mr. O'Donoghue: Deputy Howlin would not accept that. Deputy Shatter put forward a further proposal that I reduce the number whereby the Houses would consider a motion for removal of a judge to a simple majority. I considered that [138] very carefully. Having put the bar at two thirds, on having listened to the spokesperson for Fine Gael I dropped it to a simple majority.

Mrs. Owen: Are we supposed to be impressed by that?

Mr. O'Donoghue: I ask Deputies Howlin and Owen if that was the act of a Minister who was not listening or who would not put forward what he considered to be the very best possible proposals?

Mrs. Owen: What about the other amendments we asked for?

Mr. O'Donoghue: It appears the crucial issue for Members is whether, in the course of this referendum, they will put the people or politics first. There is a disturbing development in this debate. There are people in the House who seek to make a political football out of the Judiciary.

Mr. Howlin: Is the Minister ashamed of politics?

Mr. O'Donoghue: Of that I have no doubt.

Mr. Howlin: Is the Minister ashamed of his profession?

Mr. O'Donoghue: Several expert groups, among them the all-party group on the Constitution, an all-party Oireachtas committee and a judicial committee on ethics, which comprised some of our most eminent judges, have examined these issues.

Mrs. Owen: The Minister rejected them all.

Mr. O'Donoghue: I am satisfied that those members of the Judiciary support this legislation in so far as it ensures the independence and integrity of the Judiciary.

Mr. Howlin: It is a matter for the Dáil and the Seanad to enact law.

Mr. O'Donoghue: Let me make it clear that at no point in the history of this State, to the best of my knowledge, has the Judiciary, irrespective of what political party its members were appointed by, entered the political arena. I do not expect them to do so now either, nor would I wish it. However, I wish certain Members of this House would not seek to enter the judicial arena for what, from their perspective, might be seen to be political gain.

Mr. Howlin: What contempt the Minister has for Parliament.

Mr. O'Donoghue: Any such perceived political gain has a very high price. I will tell Deputies the [139] price: it is the undermining of public confidence in the Judiciary.

Mrs. Owen: This is pathetic balderdash.

An Ceann Comhairle: Order, please.

Mrs. Owen: The Minister should sit down before he gives himself a heart attack.

Mr. Howlin: Is the Minister looking for the men in the white coats to come in?

Mr. O'Donoghue: This is not a path which the Labour Party spokesperson, in particular, should travel down.

Mr. Howlin: Nobody has undermined the conduct of the Judiciary.

Mrs. Owen: Has the Minister gone into a fantasy land?

Mr. Shatter: Under the rules of this House, I ask the Minister to give way to my asking a single question.

Mr. O'Donoghue: Certainly.

Mr. Shatter: Is the Minister suggesting that by examining the detail of the proposed legislation, detailing the defects that exist in it and proposing changes to be made to it, Members are in any way attacking the Judiciary?

Mr. O'Donoghue: It will be clear to any dispassionate observer that there has been a very disturbing development in the course of this debate that has nothing to do, in so far as I can gauge it, with the separation of powers but is a means whereby short-term political advantage—

Mr. Howlin: That is outrageous.

Mr. O'Donoghue: is sought to be made. Of that I am completely convinced. I believe any dispassionate observer would say the same.

Mr. Shatter: The Minister is incapable of answering succinctly the question he was asked.

Mr. O'Donoghue: This does not apply in every case.

Mrs. Owen: The Minister is trying to justify his motives. He is definitely under pressure.

Mr. Howlin: How long has the Minister left?

An Ceann Comhairle: He has until 10 p.m.

Mr. O'Donoghue: The Labour Party in this debate reminds me of a drunken sailor who,—

Mrs Owen: The Minister should not make anal[140] ogies such as that, otherwise someone might say the same about him.

Mr. O'Donoghue: not being in a position to contribute anything constructive, seeks to start a row instead.

Mrs. Owen: Is Bertie on the Minister's back about this?

Mr. Howlin: The man has gone insane.

Mr. O'Donoghue: In so far as I can gauge the legislation, and I have taken soundings on it, I am satisfied this proposal is in the interests of the Judiciary, the Legislature and the Executive of the day.

Mrs. Owen: The Minister's Leader must be digging at his heels.

Mr. O'Donoghue: If it were otherwise, I should not have put forward the proposal. The truth is that there is a very delicate balance—

Mr. Howlin: Has the Minister no desire to build consensus on this matter?

Mr. O'Donoghue: —between the powers the Executive, the Legislature and the Judiciary operate, each in its own unique singular way. If there should be a blurring of those distinctions between those three pillars of the State, I have no doubt that would not be in the interests of this democracy.

Mrs. Owen: Who is suggesting that?

Mr. O'Donoghue: What we have sought to achieve is that, in the future—

Mrs. Owen: The Minister has gone into fantasy land? Is this a case of “Beam me up Scotty”?

Mr. Howlin: Earth to the Minister for Justice, Equality and Law Reform.

Mr. O'Donoghue: —if Members table a motion to remove a judge, there will have to be a consensus across the House and the Opposition will have a veto on the Government removing a judge. That is a very worthwhile concept if only—

Mr. Howlin: The Minister is blocking a minority of this House.

Mr. O'Donoghue: —because it will ensure the kind of blurring about which I spoke could not take place. It would ensure there would have to be a broad consensus across the House before the ultimate sanction could be imposed.

Mr. Howlin: Will the Minister yield to a question from me?

[141] An Ceann Comhairle: He has already yielded to a question from Deputy Shatter.

Mr. Howlin: Is the Minister afraid of questions from the Labour Party?

Mr. O'Donoghue: My view on this is clear.

Mr. Howlin: Will the Minister yield to a question?

Mr. O'Donoghue: I cannot put it any further than that. I ask Members, in the interests of preserving the traditional independence and integrity—

Mr. Howlin: Will the Minister yield in the interests of tradition?

Mr. O'Donoghue: —of the Judiciary, not only in a meaningful way but in such a way that they will be seen to have considered carefully overnight the points I made—

Mr. Howlin: Will the Chair ask the Minister to yield?

Mr O'Donoghue: —before seeking again on Committee Stage tomorrow to obtain what is a perceived short-term political advantage, which will not accrue—

Mr. Howlin: May I ask a question?

[142] An Ceann Comhairle: I will allow a short question.

Mr. Howlin: As the Minister has two minutes left, will he accept a simple question? If Seanad Éireann prefers a charge against a judge and it is sustained by 110 Members of Dáil Éireann, and the balance of the House should be absent or disinterested, is the Minister saying it is sustainable in this democracy that, for want of one vote, 110 Members of this House can be overruled? Is he accepting that as a valid democratic principle? There is no answer from the Minister. I did not expect one.

Mr. O'Donoghue: I can bandy figures about with the Deputy all night.

Mr. Howlin: It is not bandying figures about.

Mr. O'Donoghue: If my proposal before this House was that there should be a simple majority to remove a judge, Deputy Howlin would have looked for a majority of two-thirds, make no mistake about it.

Mrs. Owen: What is the Minister on today?

Mr. O'Donoghue: I am telling the truth.

Question put.

Ahern, Michael.

Ahern, Noel.

Andrews, David.

Ardagh, Seán.

Aylward, Liam.

Blaney, Harry.

Brady, Johnny.

Brady, Martin.

Brennan, Séamus.

Briscoe, Ben.

Browne, John (Wexford).

Byrne, Hugh.

Carey, Pat.

Collins, Michael.

Coughlan, Mary.

Cowen, Brian.

Cullen, Martin.

Daly, Brendan.

de Valera, Síle.

Dempsey, Noel.

Dennehy, John.

Doherty, Seán.

Ellis, John.

Fahey, Frank.

Fleming, Seán.

Flood, Chris.

Hanafin, Mary.

Haughey, Seán.

Healy-Rae, Jackie.

Jacob, Joe.

Keaveney, Cecilia.

Kelleher, Billy.

Kenneally, Brendan.

Killeen, Tony.

Kirk, Séamus.

Kitt, Michael P.

Lenihan, Brian.

Lenihan, Conor.

McCreevy, Charlie.

McDaid, James.

McGuinness, John J.

Martin, Micheál.

Moffatt, Thomas.

Molloy, Robert.

Moloney, John.

Moynihan, Donal.

Moynihan, Michael.

Ó Cuív, Éamon.

O'Dea, Willie.

O'Donoghue, John.

O'Flynn, Noel.

O'Hanlon, Rory.

O'Keeffe, Batt.

Power, Seán.

Smith, Brendan.

Smith, Michael.

Treacy, Noel.

Wade, Eddie.

Wallace, Dan.

Wallace, Mary.

Walsh, Joe.

Woods, Michael.

Wright, G. V.[143]

Níl

Barrett, Seán.

Bell, Michael.

Belton, Louis J.

Bradford, Paul.

Broughan, Thomas P.

Browne, John (Carlow-Kilkenny).

Burke, Liam.

Burke, Ulick.

Carey, Donal.

Clune, Deirdre.

Connaughton, Paul.

Coveney, Simon.

Crawford, Seymour.

Creed, Michael.

Currie, Austin.

Deenihan, Jimmy.

Durkan, Bernard.

Enright, Thomas.

Farrelly, John.

Finucane, Michael.

Fitzgerald, Frances.

Flanagan, Charles.

Gilmore, Éamon.

Gormley, John.

Higgins, Jim.

Higgins, Joe.

Higgins, Michael.

Howlin, Brendan.

[144] McCormack, Pádraic.

McDowell, Derek.

McGinley, Dinny.

McGrath, Paul.

Mitchell, Gay.

Mitchell, Olivia.

Moynihan-Cronin, Breeda.

Naughten, Denis.

Neville, Dan.

Ó Caoláin, Caoimhghín.

O'Keeffe, Jim.

O'Shea, Brian.

O'Sullivan, Jan.

Owen, Nora.

Penrose, William.

Perry, John.

Quinn, Ruairí.

Rabbitte, Pat.

Reynolds, Gerard.

Ring, Michael.

Sargent, Trevor.

Shatter, Alan.

Sheehan, Patrick.

Shortall, Róisín.

Stagg, Emmet.

Stanton, David.

Upton, Mary.

Wall, Jack.

Tellers: Tá, Deputies S.Brennan and Power; Níl, Deputies Bradford and Stagg.

Question declared carried.

An Ceann Comhairle: In accordance with the order of the Dáil of this day the Bill will be considered in Committee tomorrow.