Dáil Éireann debate -
Wednesday, 21 Jun 2000

Vol. 521 No. 5

Courts (Supplemental Provisions) (Amendment) Bill, 2000: Committee and Remaining Stages.

SECTION 1.

Question proposed: "That section 1 stand part of the Bill."

Mr. Howlin

As the Bill only deals with pensions, the legal position following the date on which the judge reaches his 72nd birthday is that he will simply be entitled to the pension of £45,715. I was somewhat concerned about where the balance of the money would come from. The Minister explained that it was a top-up payment and I was curious about the legal basis on which his Department could issue such a payment given that the original appointment of the sole member of the tribunal and his salary derived from his position as a High Court judge, a position he will no longer hold when he reaches the statutory retirement age. I now understand that the top-up payment will be paid by way of a consultative payment from the Department of the Environment and Local Government. I am concerned that there is not any statutory basis for that arrangement.

Has Mr. Justice Flood agreed a contractual arrangement for the duration of his tenure? If so, will that contract be adjusted as changes in pension entitlements accrue or will automatic adjustments in the remuneration payable on a consultancy basis be made if there is a change in the remuneration paid to High Court judges? Will this issue be dealt with by means of an amendable contract; has a contract been signed and will that be provided for in the Vote for the Department of the Environment and Local Government?

Mr. Enright

The pension provisions are quite clear but there is a failure to specify in the Bill the means by which the pension will be topped-up to the level of a serving High Court judge. That matter is not clarified in either section of the Bill. Does the Minister propose to enshrine this in legislation and, if so, how, or is this an entirely separate matter? It would be preferable to provide for the payment of the pension and the necessary top-up payment to the salary level of a High Court judge in the legislation.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

This legislation deals with the pension payable by the State to a specific judge from 9 July. The amount of that pension will be the amount the judge would receive had he the full 15 years' service. Mr. Justice Flood is just over six and a half years short of that service. This legislation provides that Mr. Justice Flood will be deemed to have full service in order that, from 9 July, he will be entitled to a pension of £45,715 for the rest of his life when he retires.

Mr. Howlin

We are clear on the pensions aspect.

Mr. O'Donoghue

This legislation only deals with the pension, not with the other matter raised by Deputies Howlin and Enright. To my knowledge, no contract exists between the Department of the Environment and Local Government and Mr. Justice Flood, nor is there a contract between Mr. Justice Flood and the Department of Finance. Obviously, the money which will be paid by way of a top-up to Mr. Justice Flood will be paid from the central fund to the Departments of Finance and the Environment and Local Government which, in turn, will pay Mr. Justice Flood.

Deputy Howlin asked if a contract exists. Deputy Enright expressed the view that there should be one. I do not believe there is a contract or a need for one. The Department of the Environment and Local Government will be in a position to make the necessary top-up payment to Mr. Justice Flood on a consultancy basis. I understand separate legislation or a contract are not needed because this will occur in the normal way. I do not know how to make that a cast iron certainty. I can only act in good faith and assure the House that this is my understanding of the matter. I have no reason to believe the Minister for the Environment and Local Government or any of his successors would behave differently. Members of this and, I am sure, any subsequent Government would like to see the work of the tribunal continue and be brought to a conclusion. The public expects the Government to ensure the tribunal can continue its work unhindered and would not countenance an attempt by a Minister to prevent it completing its work or place obstacles in its way.

Mr. Enright

I accept the Minister's good faith. He has said the pension, with a top-up to bring the total remuneration up to that of a High Court Judge, will be paid in the normal way. However, this is a unique situation requiring special legislation so there cannot be a normal way. For safety sake and to avoid ambiguity a short amendment is desirable. The Opposition will co-operate with the Minister in drafting such an amendment.

Mr. Howlin

The Bill deals with pensions. When Mr. Justice Flood reaches his 72nd birthday next month his income will be halved. I accept the Minister's assurance that this will be addressed by an arrangement whereby the Minister for the Environment and Local Government will pay a consultancy fee sufficient to bring Mr. Justice Flood's salary up to the level of a High Court judge.

The contractual nature of this arrangement should be addressed. When a person is paid a consultancy fee by a Department, this is done on a contractual basis as normal accounting mechanisms require. When consultants are appointed by committees of the House, for example, the terms of their appointment are clearly defined for clarity and the avoidance of doubt. How will the adjustment in pension affect the top-up payment and will the adjustment in the actual rate of payment to judges automatically be reflected in the adjusted top-up payment? Would it not be better for the Department of Justice, Equality and Law Reform, which is the paying Department of the sole member of the tribunal until the date of his retirement and half the paying Department after that date, to carry that contractual arrangement? Could this not be expressed by a measure stating that for the duration of the tribunal, a sum of money sufficient to bring the remuneration of the sole member to the level of a serving High Court judge will be payable from public funds?

Mr. Justice Flood would require clarity on this issue. Because it would probably be distasteful for him to negotiate these matters we bear a responsibility to look after his interests, particularly having regard to the praise we have heaped upon him. Has the sole member of the tribunal been spoken to and is the Minister assured that he is happy with the proposed arrangements?

Mr. O'Donoghue

It is my forlorn hope that someone would heap such praise on me. It is unlikely to happen in my own lifetime.

Mr. Enright

When the Minister retires we will speak highly of him.

Mr. O'Donoghue

I do not think that will happen. I think I would prefer the top-up payment to praise from Deputy Enright.

The Bill to provide the pension is sponsored by the Department of Justice, Equality and Law Reform. The question of the consultancy fee is a matter for the Department of the Environment and Local Government.

Mr. Howlin

It does not have to be a consultancy fee.

Mr. O'Donoghue

In an ideal world the suggestions made by Deputies Howlin and Enright might be the best solutions. The sole member of the tribunal has been spoken to and has agreed to stay on in the public interest. The Department of Justice, Equality and Law Reform is sponsoring the Bill but the payment of pensions to members of the Judiciary is done through the Central Fund. This is because we jealously maintain the independence of the Judiciary from the Executive.

Mr. Howlin

Judges are independent even in retirement.

Mr. O'Donoghue

Deputy Howlin may say they are independent even in retirement but their pensions are certainly independent in retirement and are paid for through the Central Fund. Would that it were so for all of us.

The top-up will also come from the Central Fund. This would happen normally but not necessarily. For example, the Department of the Environment and Local Government might come to an arrangement with the Department of Finance to pay the required amount by way of a consultancy fee out its departmental Vote.

The sole member of the tribunal has agreed to continue in the public interest. The Bill will provide him with his pension and the Minister for the Environment and Local Government will make the necessary arrangements to put the top-up in place. I trust no mistakes will be made and that the tribunal will get on with its work.

Mr. Enright

I am concerned about a matter which is not touched on in this section. Circuit Court and High Court judges are provided with transport. It has been brought to my attention that the sole member of the tribunal regularly drives himself to an from the tribunal. I do not know if this is the case because I have not been in Dublin Castle.

Mr. Howlin

I am sure Deputy Enright does not wish to be.

Mr. Enright

I hope I will never be there either, other than to the State apartments. As far as I am aware, transport is not provided for a sole member. In view of the delicate and serious nature of the work he is doing and the level of corruption he has exposed, this Bill should also deal in some way with the security arrangements for the sole member.

Mr. O'Donoghue

The Garda would be conscious of security on a regular basis with regard to people such as Mr. Justice Flood. I am absolutely certain they would take the necessary steps if his personal security or any other aspect of his security was threatened. A High Court judge is not entitled to a State car. To the best of my knowledge, only the Chief Justice, among the judiciary, is entitled to this. A judge such as Mr. Justice Flood would, in the normal course of events, be driven by the court usher in his own car. That is the way in which it normally works and it has been working fairly well and to the best of my knowledge now – so has the car.

Mr. Enright

On one occasion it did not.

Mr. Naughten

Did it pass the NCT?

Mr. Enright

I am perfectly serious about this. The work being undertaken by Mr. Justice Flood is a matter of the utmost gravity. The revelations coming from Dublin Castle just now are such that it appears a net is being extended. I am not making any imputation about anybody who is before the tribunal but we do not know what is around the corner in that tribunal. I accept what the Minister has stated, that a matter of that nature is monitored by the Garda Síochána. In this instance, the Minister's Department should consult the Garda Síochána as to transport for the judge, not just to and from the tribunal, but on a regular basis. There should be a very careful review of security arrangements. I say that in a serious manner.

Mr. O'Donoghue

The security of the Judiciary is always uppermost in the minds of the Garda Síochána and I have not been informed of any threat to the personal or other security of Mr. Justice Fergus Flood. I can only take it that the Garda Síochána will ensure that his personal security and other security matters concerning him will be monitored in the usual way. The Garda have a considerable amount of experience in dealing with issues of security for judges, in particular, the members of the Special Criminal Court, who were monitored on a regular basis. I do not like to draw comparisons like that, because to be fair to everybody concerned, I have no information that Mr. Justice Fergus Flood's security is threatened.

The Garda Síochána will continue to monitor the security of all members of the Judiciary, not just Mr. Justice Fergus Flood. I am totally confident that if a problem arises, they have the competence, capacity and experience to deal with it.

Mr. Enright

I want to clarify that I am not making any imputation about anybody before the tribunal currently. There is a situation arising where nobody knows what will arise in the next few days, or at any time in the future because of the work being undertaken there.

Question put and agreed to.

Section 2 agreed to.

Bill reported without amendment.

Title agreed to.

Question proposed: "That the Bill do now pass."

Mr. Enright

With regard to matters I raised regarding the changing of Standing Orders, I want to clarify that I was not making any criticism of the existing Ceann Comhairle or any member of staff or previous members. All I as saying is, with regard to the future, I hope that the existing members of the House would re-examine Standing Orders with regard to the issues I raised. I wanted to clarify that for everybody concerned.

Question put and agreed to

An Leas-Cheann Comhairle

This Bill which is certified to be a money Bill in accordance with Article 20.2.1º of the Constitution will be sent to the Seanad.