Courts (Supplemental Provisions) (Amendment) Bill, 1999: Second Stage.

I move: "That the Bill be now read a Second Time."

In my statement on 20 April last in connection with the circumstances surrounding the relisting of the case of DPP v. Philip Sheedy, when informing the House of the resignations of Hugh O'Flaherty, Cyril Kelly and Michael Quinlan from their respective offices, I outlined the severance terms which the Government was prepared to agree. The provisions contained in the Bill, and which are for consideration by the House, spell out those terms in more detail.

This Bill has been produced in difficult circumstances. I am sure Deputies would agree that the question of the severance terms must be addressed sooner rather than later and on a basis that carefully takes account of the legal and other issues surrounding the proposed payments. The Bill is very short, amounting to no more than four sections. It is, nonetheless, a technical Bill framed against the background of the law on pensions applicable to members of the Judiciary and court officers, as well as pension provisions in relation to the spouses and children of such members.

I am conscious of the fact that the circumstances which have caused the Bill to be introduced are controversial and exceptional in nature. However, I hope the House will recognise the purpose that the Bill fulfils and will accept the provisions it contains to meet the matters at issue.

The assumption is made, for the purpose of calculating all the actual pension sums I will be mentioning, that present salary levels for judges and county registrars would remain static. Furthermore, had all three people remained in office until their statutory retirement dates, they would have all been entitled to the maximum amount of pension allowable under the scheme. Based on their current salaries alone, the figures would have amounted to, in the case of Mr. Hugh O'Flaherty, a pension of £47,476 and a lump sum of £142,428; for Mr. Cyril Kelly, a pension of £43,719 and a lump sum of £131,156; and, in the case of Mr. Michael Quinlan, a pension of £29,569 and a lump sum of £88,706. There would have been an entitlement in respect of all three men, in the event of their dying in service, to death gratuities and their surviving spouses and children would have been entitled to pensions.

For the purpose of completeness, and before dealing with the substance of the legislation, I would like to mention briefly what the entitlements of the three persons as regards pension would be, were it not for this Bill. Those entitlements reflect their accumulated service up to the date of their resignations.

Hugh O'Flaherty was appointed to the Supreme Court on 26 March 1990 and would, on the basis of his service up to the date of his resignation, have been entitled to a pension of £26,300 and a lump sum of £79,000 on 26 March 2005. Cyril Kelly was appointed to the Circuit Court on 4 June 1992 and would have been entitled, on the basis of his service up to the date of his resignation, to a pension of £17,000 and a lump sum of £51,200 on 7 June 2013; Michael Quinlan was appointed as Dublin County Registrar on 24 June 1991 and would have been entitled, on the basis of his service up to the date of his resignation, to a pension of £11,500 and a lump sum of £34,700 on 10 January 2019.

Members of the House will already be aware from previous statements that the Government considered the question of severance payments in all three cases very carefully. It took a number of matters into account, including the actual pension entitlements of the parties concerned. It also recognised that all three men had tendered their resignations – which was the right and honourable course for them to take – and that, in the case of the two judges, this avoided the need for a procedure in this House which would have been without precedent, namely, impeachment.

There was no suggestion that any of the three was motivated by any prospect of achieving personal gain or reward. It is also the case that the individuals involved have undoubtedly suffered a substantial loss of earnings as a result of their resignations.

The loss in annual earnings – assuming that the pensions proposed in the Bill are agreed – are, in the case of Mr. Hugh O'Flaherty £54,952; Mr. Cyril Kelly, £57,437 and Mr. Michael Quinlan, £44,137. I will come to the pensions proposed in the Bill later and provide the House with information concerning the actuarial value to the three individuals concerned of those proposals, which has been requested by Deputies in earlier discussions on this subject. First, let me deal with the suggestion that conditions should be attached to the payment of pensions in the case of Hugh O'Flaherty and Cyril Kelly.

I have, in previous statements, indicated that the advice available to me is that it would be unconstitutional to include in legislation providing for pensions or payments to judges or former judges any provision that payment would be dependent on the individual judges complying with any requirement that they provide some explanation or self-justification, or make themselves available to give evidence before an Oireachtas committee. It is worth reiterating that advice now. I suggest that to linger on the matter of such conditions is a fruitless exercise and would serve only to cloud the debate on the detail of the Bill.

Turning now to the content of the Bill, and to summarise its main effect, the severance terms for which it provides are directed towards the payment of annual pensions. There is no provision for the payment of lump sums. The pensions will be adjusted in the normal way in line with any salary increases for Supreme and High Court judges and equivalent county registrars which, in this case, would be the county registrar for Dublin. The Bill also provides for the payment of spouses' and children's benefits in accordance with current arrangements. The core of the Bill is contained in section 1 and I propose to deal with the content of that section in some detail.

The legislation governing the payment of pensions, including gratuities, to members of the Judiciary and to court officers is contained in a number of different statutes, notably, the Courts (Supplemental Provisions) Act, 1961, the Courts of Justice and Court Officers (Superannuation) Act, 1961, the Courts (Supplemental Provisions) (Amendment) Act, 1991 and, most recently, the Oireachtas (Allowances to Members) and Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Act, 1998.

One aim of this Bill is to ensure that, in relation to the individuals coming within its scope, the payment of pensions in respect of them will be governed solely by its provisions. This effect is achieved by subsection (1) and, for the purposes of absolute clarity, subsection (4) disapplies any gratuity, at present amounting to three times the yearly amount of pension which, in the normal course, would arise in relation to a pension granted under the relevant Acts.

Subsection (2) sets out the pensions which are to be payable over a full year to each of the persons specified in the Bill for the duration of their lifetime, namely, £40,000 in the case of Hugh O'Flaherty, £30,000 in the case of Cyril Kelly and £15,000 in the case of Michael Quinlan. As I have already indicated, these amounts will be adjusted in line with adjustments in the salaries of ordinary judges of the Supreme Court, ordinary judges of the High Court and equivalent county registrars, as the case may be. This link between pension increases and salary increases is, of course, a standard one, as is the provision that any pension adjustment shall take effect from the date of the relevant salary increase. These matters are provided for in subsection (3).

The matters covered by subsections (5) and (6) pertain to the payment of spouses' and children's pensions. Under existing schemes, a spouse's pension, when awarded, is one-half of the deceased's pension, while the amount of a child's pension is normally one-third of the amount of a spouse's pension. This legislation does not affect this broad entitlement. However, it is made clear that it is the figures set out in subsection (2), as may from time to time be adjusted, which will provide the basis for calculating any pension entitlement that may exist.

Section 2 applies a standard provision relating to the abatement of pension. It would be triggered in the event of any of the persons to whom this Bill applies being subsequently employed in a position which is paid out of the Central Fund or the Exchequer. There is no proposal to this effect but it is considered an appropriate and desirable step to take and it is standard practice in respect of judges and court officers pensions legislation.

The remaining two sections are very short and of a standard nature. They require little by way of additional explanation. Section 3 is the usual payments and expenses provision, while section 4 deals with matters such as the Short Title, construction and collective citation.

This legislation is rooted in past events and I am very conscious that those events have an echo which resonates in the present and which has implications for the future. Looking to that future, it is vitally important that we now look forward and take whatever steps are necessary to ensure that confidence in our judicial system is fully restored. However, I wish to refer briefly to the background to this legislation so as to place it in full context. Before I do so, I am sure the House is as one in acknowledging that these events will have caused added distress to the Ryan family who lost a wife and mother so tragically in 1996 and whose grief has been intruded upon by subsequent unfortunate happenings.

The House will know that on the evening of 10 February 1999 the Attorney General contacted me at a meeting in Berlin regarding concerns that had been raised with him relating to the case of the DPP v. Philip Sheedy in the Dublin Circuit Court in November 1998. I decided that an immediate inquiry should be established. The Attorney General at my request then contacted the Chief Justice who initiated an inquiry. I also instructed the Secretary General of my Department that the Garda authorities should be advised of the matter and that the Department should immediately conduct its own inquiries.

The Chief Justice provided the report of his inquiries to the Attorney General on 14 April and he furnished it to me. On the basis of facts either admitted or established at that stage, the Chief Justice concluded, inter alia, that the intervention of Mr. Justice O'Flaherty in the relisting of the Sheedy case was “damaging to the administration of justice” and that Judge Kelly, then a judge of the Circuit Court, in entering on a review of Philip Sheedy's sentence, “failed to conduct the case in a manner befitting a judge”, and that Judge Kelly's handling of the matter “compromised the administration of justice”.

The report of my Department concluded that the actions of all officials bar one were carried out bona fide, in the course of what they took to be their proper duties. In relation to the Dublin County Registrar, Mr. Michael Quinlan, it concluded that "his performance . in connection with the official level inquiry, fell well short of the standards that can be reasonably expected of a person holding the position of county registrar. In the circumstances it obstructed and misled the Department's investigation and . amounted to misbehaviour on his part".

On 16 April 1999 the Government considered the contents of the Hamilton report. The departmental report was not finalised at that stage as account had to be taken of the Chief Justice's report and replies due from the County Registrar to a series of questions put to him on 9 April about his role in the matter. The Government decided, inter alia, to approve the delivery of letters to both judges stating that, in the light of the Hamilton report, it would consider at its meeting scheduled for 20 April proposals for their removal from office under the provisions of Article 35.4.1º of the Constitution. Mr. Michael Quinlan was provided with copies of the departmental report on a confidential basis on the evening of 19 April 1999. Mr. Justice Hugh O'Flaherty resigned on 17 April 1999. Mr. Justice Kelly and Mr. Quinlan resigned on 20 April 1999.

On 20 April 1999 the matter was again considered by the Government and later that day I made a statement to this House in connection with the circumstances surrounding the relisting of the case of the DPP v. Philip Sheedy. I informed the House of the resignation of the two judges and the County Registrar and outlined the severance terms to which the Government was and is prepared to agree and which would be brought before the House in due course for approval, namely, the provisions contained in the Bill being considered here today. That, briefly, is the sequence of events which led to this Bill.

In order to avoid any possible confusion or misinterpretation now or later, I wish to inform the House of certain payments made recently to the former County Registrar, Mr. Michael Quinlan. In addition to his normal duties, Mr. Quinlan, having been nominated by the then Minister for Justice, Deputy Owen, performed the duties of Dublin City Sheriff on a temporary basis between 3 January 1995 and 1 August 1995 while a vacancy existed in that office following the retirement of the previous incumbent. At the time, it was decided by the then Minister for Justice, Deputy Owen, that Mr. Quinlan would perform these duties and be remunerated on the same basis as the Cork County Registrar in similar circumstances in 1991 and 1995. This involved an ex-gratia payment equivalent to the amount the sheriff would have received following the collection of the fees and so on and the disbursement of all the moneys due, including payment to the staff in the office of the sheriff. The submission made to the Minister went into all these matters in detail.

I should point out that the appointment of the County Registrar to the office of sheriff is effected by ministerial order and such appointment is also terminated by ministerial order. This procedure was followed by the then Minister, Deputy Owen, in this instance.

Following the permanent appointment by the rainbow coalition Government to the office of sheriff in August 1995, the acting sheriff's accounts were fully audited. This process took some months and a reconciliation was required to be made which showed an amount of £140,014.89 remaining in the acting sheriff's account from collection of sheriff's fees after payment of staff and other necessary disbursements. Department of Finance sanction was sought for payment of this amount to Mr. Quinlan which was due to him in line with the conditions of his appointment to sheriff duties over the relevant period. A number of detailed queries were then raised by the Department of Finance which took some time to resolve and approval to pay was only received in my Department on 18 February 1999. Further correspondence then took place between my Department and the Revenue Commissioners and the Department of Social, Community and Family Affairs which were fully informed of all the details of this payment which was finally made on 18 May 1999. I stress that the sum paid to Mr. Quinlan in respect of his duties as sheriff is in respect of an entitlement which arose in 1995, some years prior to recent events, and has no connection whatsoever with those events. I am mentioning it now not because there is a connection but in order to avoid any suggestion that I failed to advise the House of the position. I repeat that we advised the Revenue Commissioners and the Department of Social, Community and Family Affairs of this payment.

There are 16 sheriffs in Ireland, appointed by the Government, one in each of Dublin city and county and Cork city and county and 12 other Revenue sheriffs. The Dublin and Cork sheriffs are responsible, inter alia, for the enforcement of court orders and civil proceedings and the enforcement of Revenue certificates issued under the income tax legislation. Sheriff duties in respect of the enforcement of court orders in civil proceedings, outside Dublin and Cork, are performed by the County Registrar. The Revenue sheriffs are responsible for the enforcement of Revenue certificates. The office of sheriff is part time and non-pensionable and a sheriff can engage in private practice. Up to November 1998 the sheriffs' income was derived from sheriffs' fees and poundage, retainer – £500 for Dublin and £400 for others – and interest on moneys prior to transfer to the creditor both in relation to Revenue cases and enforcement on foot of court orders.

The method of remuneration of sheriffs was changed by me in 1998. Sheriffs no longer retain interest on moneys prior to transfer to the creditor. All funds now collected by sheriffs are immediately credited to the Exchequer. I signed an order drawn up by my Department in September 1988 changing the levels of fees and poundage due to sheriffs. Under the new system the remuneration of sheriffs comprises an annual retainer of £14,000 per annum in addition to sheriffs' fees and poundage. A joint standing committee is currently considering, inter alia, the remuneration of sheriffs. Its membership includes a representative of my Department, the Revenue Commissioners and the sheriffs.

Some Deputies opposite have queried the case for paying any pension to the individuals with whom this legislation deals, let alone pensions in the amount now proposed. Earlier I referred briefly to the considerations which persuaded the Government to propose these payments. I should now add that as well as taking account of those considerations, the Government also had regard to the family and other commitments of those concerned.

It would be wrong to pretend that the sums proposed represent the outcome of a set of precise actuarial calculations. Prior to Cyril Kelly's resignation there were discussions concerning pension entitlement between his counsel and counsel for the State. Those discussions were wholly inconclusive and had broken off prior to his resignation. Having regard to the various considerations I mentioned earlier, the Government decided that a pension of £30,000 per annum should be proposed in his case. No corresponding discussions were pursued by Hugh O'Flaherty and Michael Quinlan, prior to their resignations, but the Government was satisfied that Messrs. O'Flaherty and Quinlan should not be treated less favourably, in relative terms, than Mr. Kelly. The pensions proposed in their cases, as I have already stated, are £40,000 and £15,000 respectively.

As already stated, I have been asked to provide an estimate of the actuarial value of the pension benefits now being proposed in each case – in other words, an estimate of the capital sum which an individual would be required to pay for such benefits, taking account of interest and other relevant factors.

As I have provided various figures earlier in my statement, it would be desirable at this point, for the sake of clarity and to ensure that like is being compared with like, not only to provide the actuarial value in each case of what is proposed in the Bill but also the actuarial value of the benefits which each man would have enjoyed had no resignations taken place. The figures which have been provided by the Department of Finance are as follows: in the case of Hugh O'Flaherty, the benefit now proposed has an actuarial value of £699,000 and the benefits lost have a value of £1,336,183; the corresponding figures in the case of Cyril Kelly are £665,000 as against £1,703,990; and in the case of Michael Quinlan the benefit is £366,000 as against £1,281,807 lost.

Focusing now on the future, my Department's report on the events surrounding the relisting of the Sheedy case contained a series of far-reaching recommendations designed to prevent any recurrence of the events which I have just outlined. There are two recommendations which I would like to highlight at this juncture. One relates to the early formal transfer of responsibility for the administration of the Courts Service to the new courts board while the other relates to judicial conduct, ethics and accountability.

The House will be aware that the Courts Service Act, 1998, provides for the establishment of an independent Courts Service to manage the courts. The provision of support services for the judges will be one of the main functions of the service which will be governed by a courts service board. The board will be chaired by the Chief Justice and consist of the Presidents of the High, Circuit and District Courts, an elected member of the Judiciary of each of the courts, a judge nominated by the Chief Justice for his or her experience in a specific area, the chief executive, a staff representative and six other members, including a practising barrister nominated by the Bar Council and a practising solicitor nominated by the Law Society. I should mention here that board membership also draws on expertise and experience beyond the legal field. This is achieved by ensur ing that board representation encompasses consumers of the services provided by the courts, those with knowledge and experience in commerce, finance or administration, a representative of ICTU and an officer of my Department. The functions of the board are to consider and determine policy in relation to the service and to oversee the implementation of that policy by the chief executive.

Much work has already been undertaken to establish the Courts Service. The transitional board, chaired by the Chief Justice and established under the 1998 Act is, in conjunction with my Department, actively involved in making the necessary arrangements for the establishment of the Courts Service. I expect that this task will be completed later this year. A very significant step towards the formal establishment of the Courts Service was taken earlier this month when 24 members of the staff of the courts division of my Department moved to new offices in Conyngham Road, which will be the future location of a number of courts service functions.

I believe that the new structures which are now being put in place will allow the Courts Service to meet the demands placed on it in the new millennium and that the new body will be enabled to focus on and strategically direct resources to provide an efficient, effective and accountable service to judges, practitioners, court staff and, most importantly, of course, the users of the system. With a view to the strengthening of procedures in the courts, my Department, in 1997, commissioned a major IT scoping study on the courts which was set firmly in the context of the organisational changes which are now under way. A consortium is now actively developing a range of systems including case tracking, financial management and accounts systems, production of statistics, management information and document management systems for the courts. This IT development should ensure that the structures, practice and procedures applied by the Courts Service are enhanced.

In relation to judicial conduct and ethics, the sixth report of the working group on a courts commission, chaired by Mrs. Justice Denham, dealt, among other matters, with this topic. In this context, the group was particularly concerned with the procedures which are adopted in other countries relating to the handling of judicial conduct that might be considered unsuitable for a member of the Judiciary. It recommended the establishment of a judicial committee and, on publication of that report in April, such a committee was duly established by the Chief Justice. The committee will consider the report and it will consider further the position in other jurisdictions including Canada, New South Wales, the United States of America and New Zealand. It will consult with myself as Minister for Justice, Equality and Law Reform, the Bar Council, the Law Society, academics and others and it will also receive submissions from interested bodies. Fur thermore, it will advise on and prepare the way for the establishment of a judicial body which would contribute to high standards of judicial conduct and establish a system for the handling of complaints relating to such conduct. It will do other preparatory work, including that relating to judicial standards and ethics, and will consider matters which have arisen since the sixth report was finalised in November 1998. I have personally assured the Chief Justice that he will have every support from my Department and this Government in carrying out the work of this judicial ethics committee.

It would be a common feeling among Deputies that the persons with whom this legislation deals have paid a heavy price in terms of financial loss and in terms of the anxiety and strain which they have borne over the past few months. It must also be acknowledged that, apart from the events resulting in this legislation, each of the three men made valuable contributions to the administration of justice. Hugh O'Flaherty was one of the most eminent members of the Bench and his compassion, wisdom and insight were applied in the many important cases with which he was involved. Cyril Kelly had the particular capacity to balance his efficiency in approach with his legal expertise both in his dealing in the courtroom and as chairman of the interdepartmental committee on the video-recording of evidence. Michael Quinlan dealt resolutely with the changing demands of the Dublin Circuit Court and the management of the volume of cases in that area. It would be grossly unfair to dismiss years of sterling service – which is what a decision to refuse pensions would entail – because of errors of judgment in the handling of one case.

In addressing the results of the inquiries into the handling of the Sheedy case, the three men tendered their resignations with dignity and, as I have said previously, this was the right and honourable course for them to take and, in the case of the two judges, it avoided the need for a procedure in this House which would have been without precedent – that of impeachment.

It is an undeniable reality that, in order to attract persons of high calibre to the Judiciary, in particular, but also to high office within the courts system, we are relying often on the willingness of individuals to embark upon a career path which in purely financial terms will be less rewarding for them than if they had chosen to advance their careers in private practice. This willingness to serve the public is to be commended, particularly where there is no economic advantage to be gained, and, indeed, some disadvantage. It reflects the best tradition of public service, a tradition which can sometimes be undervalued, even overlooked. At the same time, to be a judge is one of the most prestigious careers which one can have and it carries with it a heavy burden in terms of personal responsibility and public expectation. There is a status which goes with judicial office and, of course, a corresponding loss of status when, as in the present case, that office is vacated in the kind of circumstances which arose here. There is the additional factor that the loss of status is compounded by the fact that it takes place under a very public spotlight. It has impacted very heavily, and in a very public way, on the personal lives of all concerned and it would be wrong, in debating the Bill now before the House, to forget this.

In weighing up all the relevant issues of this very difficult situation, the Government concluded that the pensions mentioned should be payable in each case but that no gratuities should be paid. This legislation gives effect to that decision.

I commend this Bill to the House.

I move amendment No. 1:

To delete all words after "That" and substitute the following:

"Dáil Éireann declines to give the Bill a second reading until such time as the two former judges referred to in the Bill give a clear undertaking that they are prepared to make themselves available to answer questions before whatever course of enquiry is recommended by Dáil Éireann in order to establish the full truth of the involvement of both individuals in the Sheedy affair.".

The decision by the Government to award payment of pensions of £40,000 in the case of former Supreme Court Judge Hugh O'Flaherty and £30,000 in the case of former High Court Judge Cyril Kelly at this time is wrong and irresponsible. I wish to make it clear that Fine Gael does not have a fundamental problem with the payment of pensions once the Sheedy affair has been fully investigated and concluded. Both judges had careers of different lengths in the different courts over which they presided and they are entitled to pensions based on their years of service, but only when all aspects of their involvement in the wrongful early release of Philip Sheedy have been thoroughly investigated.

The Sheedy affair has not been fully investigated. Certain aspects remain unexplored and many questions remain to be answered. Crucial to the exploration of the remaining areas and the answering of these questions is the role of the two former judges. It is not a case on our part of unwarranted curiosity. It is a case of the public interest and it is in that interest that an investigation of the remaining aspects of the Sheedy case must be reopened.

The fact that both the Supreme Court Judge and the High Court Judge resigned does not mean that the shutters should come down and that this is the end of the affair. We must put this case into perspective. The report of the Chief Justice into the circumstances surrounding the release from prison of Phillip Sheedy, dated 14 April last, was clear, unequivocal and decisive. I quote:

I therefore conclude that this case might not have been re-listed in the way it was but for the intervention of Mr Justice O'Flaherty. I also conclude that Mr Justice O'Flaherty's intervention was inappropriate and unwise, that it left his motives and action open to mis-interpretation and that it was therefore damaging to the administration of justice.

It is clear that in the light of the Chief Justice's summary of Mr O'Flaherty's performance and involvement, his position as a Supreme Court judge was untenable and he was left with no option but to resign from the Bench. Nevertheless, Mr. O'Flaherty went on national television on Friday, 16 April and doggedly proclaimed he had done nothing wrong, that he would fight his case and that he had no intention of resigning. Less than 24 hours later, Mr. O'Flaherty had resigned his position.

What, we may ask, occurred in the meantime to bring about such a dramatic change of heart? While Mr. O'Flaherty's U-turn led to his resignation from office, he stoutly proclaimed, and presumably still stoutly proclaims, that he had done nothing wrong. I publicly welcomed Mr. O'Flaherty's resignation at the time. It was the right thing to do. On a human level, one had to feel extremely sorry for him. The Government had clearly indicated in its correspondence with him that, unless he resigned, it would have had no option but to invoke Article 35 of the Constitution. As the Minister said, I do not believe there is a person in the Oireachtas who would have relished the unsavoury prospect of impeachment proceedings.

On the other hand, Mr. O'Flaherty has steadfastly maintained that he had done nothing wrong. This failure to appreciate the Chief Justice's serious assessment of his actions and interventions in the Philip Sheedy case seriously calls into question his judgment. There is also the credibility of his contention that his involvement in the case arose from a chance meeting with the son of a neighbour who happened to be a friend of the Sheedy family.

It was with a view to exploring his level of involvement that the members of the Oireachtas Joint Committee on Justice, Equality and Women's Affairs welcomed the letter from Mr. Justice O'Flaherty to the committee, dated 16 April 1999, in which he stated that he was "now concerned to explain my position especially in the light of the many aspects of the case new to me which the Chief Justice's Report has elicited .. in an attempt to dispel as far as possible the doubt and suspicion which has accumulated around the Sheedy case in the interest of the community, justice and my own interest." Later in the letter, Mr. O'Flaherty stated that to that end, and in view of the widespread concern and many questions surrounding the case, he requested the opportunity "to make a statement to the Committee and answer any and all questions that its members may raise." He goes on finally to emphasise that his attendance would be "entirely voluntary and at my own request".

The committee agreed to accede to Mr. O'Flaherty's request. It decided that the same opportunity should be afforded to Mr. Cyril Kelly and to Mr. Michael Quinlan, the Dublin County Registrar. Letters were accordingly sent to each of them asking them if they wished to meet the committee on that basis.

In the wake of Mr. O'Flaherty's letter of 16 April in which, uninvited, he volunteered to come before the committee and to tell all, the committee was amazed to read in The Irish Times a copy of Mr. O'Flaherty's letter to the committee, dated 5 May 1999, in which he states that he could not further help the committee as “the Constitution did not permit him to do so.” There is a blatant inconsistency here. Mr. O'Flaherty saw no problem, constitutional or otherwise, in coming before the committee to make a statement and to answer “any and all questions”. He saw no problem whatever in outlining his full involvement in the case while he was still a serving Supreme Court judge. Yet having resigned as a judge, he now finds that there is a constitutional impediment to his so doing.

In the intervening six weeks he has made absolutely no attempt to explain the reasons for his about-turn. He has not adduced any legal advice or argument to support his dramatic change of heart. He still has not advanced any argument to show he still believes he did nothing wrong in interfering in the Sheedy case. He has given absolutely no indication that he is prepared to make himself amenable to any form of further inquiry. Quite frankly, in such circumstances, the Government is entirely wrong in bringing forward this Bill to guarantee an index-linked pension of £40,000 to Mr O'Flaherty for the rest of his life.

People are justified in making comparisons between the financial benevolence of the State in the case of a former Supreme Court judge who, in the words of the Chief Justice, "damaged the course of justice" and the kind of treatment that would be meted out to somebody who had erred to a lesser extent in the lower ranks of the public service. The Government should examine the gross unexplained inconsistency of the position now being adopted by Mr. O'Flaherty where he has refused to co-operate with the Oireachtas joint committee because of so-called and spurious constitutional difficulties. Has the Government, for example, taken the trouble to take its own legal advice on whether Mr. O'Flaherty is debarred by the Constitution from explaining his actions? If so, what is this legal advice? If it has not taken legal advice, why has it now done so? Has the Government examined the legal advice given to the Oireachtas joint committee?

That legal advice is to the effect that, while it would not be open to the committee to make any inquiry into a judge or former judge in the exercise of their judicial function, to suggest that under the Constitution it is not permissible to ask a person who is, or was, a judge any questions relating to matters other than the exercise of judicial functions is to extend the independence of the Judiciary provided for in the Constitution and the theory of the separation of powers beyond the protection provided for on a literal reading of Article 35.2 of the Constitution. The legal advice goes on to state that it would appear the majority, if not all, of Mr. O'Flaherty's involvement in the Sheedy affair related to matters not connected with any exercise of his judicial function and, therefore, would properly not be capable of being considered as a violation of Article 35.2 of the Constitution.

Therefore, there is no constitutional difficulty in Mr. O'Flaherty coming forward. There is no infringement of the separation of powers. He was not exercising a judicial function. Therefore, for him to refuse to make himself available to answer the valid and legitimate questions he was so anxious to answer on 16 April last is simply unacceptable. This should have been communicated to him by the Government in anticipation of the publication of this legislation.

The Minister for Justice, Equality and Law Reform, in answer to a question from me at Question Time on Tuesday, 15 June, said his legal advice was that it would be contrary to the Constitution for the Government to build into the legislation a condition of co-operation on the part of the judges. That could well be the case, although the Minister has declined to make the legal advice available. There could, however, be no constitutional difficulty in telling Mr. O'Flaherty that the Government had taken its own legal advice, and-or the Oireachtas Joint Committee on Justice, Equality and Women's Rights had legal advice, to the effect that Mr. O'Flaherty's involvement in the Sheedy case did not constitute a judicial function and in the light of this, the Government would appreciate a written undertaking from him to co-operate with whatever further inquiry would be undertaken to establish the full circumstances that surround the Sheedy affair.

Debate adjourned.