My focus and that of the Fine Gael Party since the Judge Curtin controversy blew up, has been twofold; first, to ensure confidence is retained in the Judiciary and, second, to ensure fair process will apply in any dealings with Judge Curtin, or any judge facing removal under Article 35 of the Constitution.
In addressing the legislation before the House, to some extent we have to take the Government at face value. It now says an amendment to the compellability legislation is required in the context of the Oireachtas discharging its functions under section 35 of the Constitution.
I do not oppose the legislation on the basis that the Government, which has unlimited legal resources, knows exactly what it is doing and has thought through the process. I also accept it on the basis that the Government must accept full and complete responsibility for the process it has initiated and the legislative and other procedures now proposed.
Two points arise in connection with the timing. It was clear when the Judge Curtin controversy blew up that we were operating in a legislative and procedural vacuum. We must ask why? The Sheedy case occurred five years ago. This problem was recognised by the Government on its formation two years ago, when it gave a solemn commitment to legislate to provide effective remedies for complaints about judicial misbehaviour. Nothing has been done due to incompetence on the part of the Government. This is all the more serious in view of the weighty constitutional matter of how to deal with the Judiciary.
We are being asked today to rush two legislative measures through both Houses of the Oireachtas. What is the rush? I thought there would be an explanation for this. I spent two hours with the Attorney General on Wednesday, 19 May. I raised with him the question of the need for legislation and was assured it was not necessary; that what was proposed was a motion to be put before the House under Article 35 of the Constitution. On Tuesday of this week I was advised by the Minister for Justice, Equality and Law Reform, Deputy McDowell, that one item of legislation would be required in addition to two motions. Yesterday at 5 p.m., the Minister of State, Deputy Hanafin, informed me that a second item of legislation would be required. In seven days we went from no legislation and one motion to two items of legislation and two motions. There is an old saying, "More haste, less speed", in the part of the country I represent.
In many ways the Government reminds me of a group that embarked on a journey while, in political terms, trying to give an impression of strength and assertiveness. It embarked on the journey in a rusty old van without checking whether there was enough fuel in the tank, whether there were headlamps to illuminate the darkness and, apparently, without brakes to enable it to slow down or stop when required. There have already been two breakdowns or pitstops to make emergency repairs. My view, which I hope is constructive, on behalf of the main Opposition party, in dealing with matters of such grave constitutional import, is that it is better to do it right than to do it quickly. I know of no reason for this rush to judgment.
I said that I will not oppose the legislation. However, I have considerable concerns about it. These concerns are in no way assuaged by the record of the Government to date in dealing with this issue in general and in dealing with the controversy since it erupted some weeks ago. Essentially, the substance of the legislation is that it will make a judge, about whom a removal motion is tabled under Article 35, amenable to a committee of the Oireachtas. That judge will be compelled to attend before the Oireachtas. Under the section, it is not just a question of attending before the Oireachtas because the committee will be able to direct in writing a person's attendance and it will also be able to direct that person to produce to it any documents in his or her possession. In addition, it will be able to issue such further directions it considers reasonable in the circumstances.
Will a question not arise as to why a judge should be required to produce documents or other evidence? Will the judge not ask how such a request stands with the issue of self-incrimination or what consideration has been given to the right to silence? Under our law, a person cannot be forced to answer questions which could lead to self-incrimination. The American equivalent is the fifth amendment. That a person cannot be placed in a position to incriminate himself or herself is one of the unenumerated fundamental rights that exists under our Constitution. Irish law is clear in this regard. Have matters been fully teased out in what the Government is proposing in this rushed legislation?
There are precedents in cases under the European Convention on Human Rights. I refer to the Saunders case in the UK, involving an employee of Guinness, the Quinn case in Ireland, taken under the Offences against the State Act, and the Fulk case in Austria. Have these authorities been checked in terms of what is being proposed here?
There is also the question as to whether one can confer powers which enable compellability to be exercised in respect of actions or events which preceded the existence of the power to compel. I refer here to retrospection. Is it possible to provide or exercise new powers in respect of events which occurred in the past? Has this matter been considered and, if so, what is the position in respect of it?
Are we, in effect, changing the conditions of employment of judges? Has this matter been looked at? Under the Constitution, security of tenure is provided and goes to the basis of the independence of the Judiciary. Are we now providing a power to a committee of the Oireachtas that will change those conditions? Will it apply to existing judges or only to new judges? Does a question mark hang over matters in this regard?
There is also the matter of privilege. I would have thought that this would also have been dealt with. What is the position regarding the privilege of the judge? As I understand it, under the 1997 Act there is a difference between a person voluntarily attending and a person compelled to attend. Is it because of that distinction that we are dealing with this legislation or is it because of questions raised about the admissibility of certain evidence to be brought before the committee?
The House deserves a more detailed explanation with regard to this legislation. I am not pointing the finger of blame at the Minister of State, Deputy Hanafin. This matter is the responsibility of the Taoiseach, the Minister for Justice, Equality and Law Reform and the Attorney General. The House deserves more than having an item of legislation put before it without answers to the questions I have raised being provided. The public also deserves more. We are dealing with such fundamental issues, as far as the Constitution is concerned, that the wisdom of this unseemly haste must be questioned. I do not believe the Government is taking a wise approach. I would have much preferred to see a full Bill dealing, as promised, with the issue of misbehaviour by judges and judges in general come before the House. I would also have preferred to see such legislation emerge without the current controversy intruding upon it.
Has full consideration been given to all the issues? In the past seven days the Government has lurched from one crisis to another and, as a consequence, we are being presented with legislation on the hoof. My experience is that such legislation generally tends to be bad legislation.
The purpose of the Bill appears to be to place a member of the Judiciary in the same position as any other citizen as regards attendance before a committee. It can, in one sense, be presented in that fashion but I am not sure it will achieve that purpose. In effect, we are talking about putting a judge in a situation only when he is facing a charge or a situation where removal under Article 35 is under consideration. If, under the 1997 Act, that judge fails to comply with a direction under Article 3 in this situation, he or she is guilty of an offence. Such an offence gives rise to a situation where, on summary conviction, the judge can be fined up to £1,500 or imprisoned for 12 months. On indictment, the fine rises to £20,000 or a term of imprisonment not exceeding two years. That is a serious power we are invoking, in statutory terms, and it requires further consideration. No other person would be placed in that position because there is no other person against or about whom a removal motion can be tabled under Article 35.4 of the Constitution.
I will conclude as I began by saying that I am not opposing the legislation because the Government is seeking it on the basis that the Oireachtas needs it. However, I have major concerns about some of the provisions it contains and some of the consequences to which it might give rise. I am also concerned about other aspects of this matter, such as those relating to the admissibility of evidence, in general, to any committee that we might establish. It is not in the interests of the people, the House or justice that we should rush with unseemly haste to place a bung in the hole as soon as we see it without recognising what could be the consequences and that further damage could be caused.
It is with reluctance that I go along with what is proposed today. I do so on the basis that the Government must accept complete responsibility for the consequences of its actions here and for any difficulties that may arise as a result of its hasty actions and legislation.
