Dáil Éireann debate -
Tuesday, 29 Jun 1999

Vol. 507 No. 2

Report of Joint Committee on Justice, Equality and Women's Rights: Statements (Resumed).

Minister of State at the Department of Justice, Equality and Law Reform (Miss M. Wallace)

I speak on behalf of the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, who is unavoidably absent at the talks in Stormont this week, which is why he cannot attend the House.

The House will be well aware of the events which led to the transmission by the Government to the Joint Oireachtas Committee on Justice, Equality and Women's Rights, of the reports of the three separate inquiries in connection with the early release from prison of Philip Sheedy, namely, the report of the Chief Justice, the report of the Department of Justice, Equality and Law Reform and the report of the Chief State Solicitor.

In summary, on the evening of 10 February 1999, the Attorney General contacted the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, 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. The Minister decided that an immediate inquiry should be established. At the request of the Minister, the Attorney General then contacted the Chief Justice who initiated an inquiry. The Minister also instructed the Secretary-General of the Department of Justice, Equality and Law Reform 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, who furnished it to the Minister. On the basis of facts either admitted or established at that stage, the Chief Justice accepted that Mr. Justice O'Flaherty became involved in this case in a spirit of humanitarian interest and concluded, inter alia, that the intervention of Mr. Justice O'Flaherty in the re-listing of the case was “inappropriate and unwise, that it left his motives and action open to misinterpretation and that it was therefore damaging to the administration of justice”. The Chief Justice took the view that Mr. Justice Kelly, then a judge of the Circuit Court, should not in the circumstances of this case “have entered on a review of a sentence imposed by one of his colleagues” and, moreover, “failed to conduct the case in a manner befitting a judge”, and that Mr. Justice Kelly's handling of the matter “compromised the administration of justice”. The Chief Justice concluded his report by emphasising that as Chief Justice he has no jurisdiction, whether under the provisions of the Constitution or any Act passed by the Oireachtas, to make any recommendations arising out of the facts in this case.

The report of the Department was finalised on 19 April 1999. It took account of the conclusions of the Chief Justice, the replies from the County Registrar to a series of questions put to him about his role in the matter, and other inquiries which are set out in the report. It concluded that the action 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, on the information available at that time:

1. While Mr. Quinlan's motives and actions were very evidently misguided, they were not corrupt. He did not know Mr. Sheedy and there is no suggestion that what he did was motivated by any prospect of personal gain or reward.

2. His performance in general, but, in particular, in connection with the official-level inquiry, fell well short of the standards that can reasonably be expected of a person holding the position of County Registrar and, in the circumstances, obstructed and misled the Department's investigation and in fact amounted to misbehaviour.

On 16 April 1999, the Government considered the contents of the Hamilton report and 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 resolutions for the consideration of both Houses of the Oireachtas, for their removal from office under the provisions of Article 35.4.1º of the Constitution. The Government also gave approval to make the necessary arrangements for the immediate release of the Hamilton report to the Joint Committee on Justice, Equality and Women's Rights. Following consideration of the Department's report on 20 April, the Government approved the release of same to the joint committee. 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 Government and later that day the Minister for Justice, Equality and Law Reform made a statement to this House in connection with the circumstances surrounding the relisting of the case of the DPP v Philip Sheedy. The Minister, Deputy O'Donoghue, 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 Courts (Supplemental Provisions) (Amendment) Bill, 1999, Second Stage of which was opened in this House last Thursday.

The Minister has examined the report of the joint committee and he notes its findings. In particular he notes that the committee finds itself unable to inquire further into the circumstances surrounding the early release from prison of Mr. Sheedy for the legal, constitutional and other reasons outlined in the report and seeks the views of the Oireachtas as to how the outstanding issues can be resolved.

Judges are exempt from compellability under the Committees of the Houses of the Oireachtas (Compellability, Privileges and lmmunities of Witnesses) Act, 1997. The committee has considered that an amendment to that legislation could provide that judges and former judges could not be compelled to give evidence in relation to the exercise of their judicial functions. It is the Minister's view that the committee rightly points to the serious difficulties which may follow from such a course of action. Judicial and non-judicial functions cannot be easily categorised, particularly in the context of the handling of a court case. If the amendment were to be included in the compellability legislation further questions would have to be resolved, such as who is to decide in any particular circumstance what constitutes a judicial or non-judicial function. Would the committee or a Minister certify that the actions fall within the judicial category? Would it ultimately be a matter for resolution by a court were there to be a difference of opinion regarding the certification? Does an Oireachtas committee or indeed a Minister have the authority to adjudicate in issues such as whether a particular matter related to judicial functions. Even if it were easy to answer these questions, which it is not, there remains the point that the boundaries they seek to push out stray dangerously close to interference with the independence of the Judiciary.

It seems to the Minister that it is a matter of natural justice that judges should be aware in advance of precisely the matters which fall outside judicial functions. It would be wholly inappropriate to compel judges to answer questions on actions which they considered to be judicial while the Oireachtas considered otherwise. The complexity of the case at issue highlights this problem. In his report the Chief Justice concludes: "I cannot share Mr. Justice O'Flaherty's belief that a judge of the Supreme Court, having called the County Registrar, an official of a lower court, to his chambers, could expect that anything said by him would be received by the said official as if it had come from a private individual."

As it happens, the question of the independence of the Judiciary was examined by Mr. Justice O'Flaherty in his consideration of the case of McMenamin v Ireland where he quotes Lavery J. in O'Byrne v Minister for Finance [1959] IR 1, as follows:

the danger of interference with independence is obviously from the executive and legislative organs of Government. History – not only our own but all history – teaches that such a danger can be very real. As the independence is declared, it is to be expected that it would be secured and protected. As has been said, the judicial power is the weakest of the three organs of Government, as it holds neither the sword nor the purse.

The words of the joint committee itself in this regard underline the problematic nature of this issue where it states at paragraph 13: "It is the view of the Committee that any enquiry in this area will be entering unchartered constitutional terrain, fraught with legal difficulty and the virtual certainty of legal challenge."

For his part, the Minister, Deputy O'Donoghue, has no difficulty with a comprehensive review of the Committees of the Houses of the Oireachtas (Compellability, Privileges and lmmunities of Witnesses) Act, 1997, as suggested by the joint committee. He believes that such a review might provide some assistance in determining the practical benefits from any proposed amendments. Moreover, he believes it is essential that any proposed amendments should be examined thoroughly with due regard to the balance that must be maintained between the different branches of Government. A "quick fix solution" to our present difficulty may produce long-term harm to the institutions of State.

The committee's second option is the establishment of a tribunal of inquiry under the Tribunals of Inquiry (Evidence) Acts, with appropriately narrow terms of reference which include a fixed time for reporting. The Minister considers that the same difficulties referred to above may come into play, in particular the categorisation of judicial and non-judicial functions and the requirement to recognise the independence of the Judiciary. In addition, we have seen the problems which can be caused by narrow terms of reference where the tribunal is forced to return to the Oireachtas for an extension of terms. Furthermore, in theory a fixed time for reporting seems sensible but that in itself can result in a less than satisfactory inquiry. The committee rightly points to two difficulties which could arise if a serving judge of this jurisdiction was to chair such a tribunal, namely, the impact of an appointment would have on the hearing of cases before the courts, and the extent to which members of the Judiciary would be personally acquainted with one or more of those involved in this matter. However, the other options mentioned by the committee, chairmanship by a former judge or a judge of another jurisdiction, are equally problematical. Again, the committee points up that it may well be that a tribunal of inquiry would stand little better prospect of bringing matters to a satisfactory conclusion.

As regards the significance of the insertion of the word "judicial" before "functions" in the 1937 Constitution, I am advised that the Minister finds common ground with the committee in their recognition of the fact that it would not be open, in the absence of a constitutional amendment, to make any inquiry into the exercise of their judicial function by a judge or former judge. It is not clear if the implication of the report is that the committee would favour such an amendment, but the Minister most assuredly would not. The Minister also notes the suggestion in the committee's report that some members of the committee may have a clear grasp of what constitutes the exercise of a judicial function and may be able to draw very precise distinctions in relation to what most of us would regard as very complicated matters. The Minister is convinced in his own mind that if we go down the road of a constitutional amendment to provide for an inquiry into the exercise of functions, judicial or otherwise, by a judge or former judge, we will be embarking upon a very perilous path and one which he is sure is fraught with legal complexity.

It is a matter of great concern to the Minister that a new approach seems to be creeping into our parliamentary process which is that wherever we are hindered in our course because of constitutional difficulties, the suggestion of a constitutional amendment is immediately made. I am very proud of our Constitution. It is a very robust document. I strongly believe it is not simply a document to invoke when of assistance in pursuing a particular political course of action and to amend when it causes constraints to another political project. On balance, for all the frustrations it may produce from time to time, our Constitution serves as a magnificent bulwark of our freedoms and liberties and as a protector of the separation of powers on which the effective working of our democracy depends.

The House will be aware of the very valuable work carried out by the working group on a Courts Commission, chaired by Mrs. Justice Denham, in the development and improvement of the area of courts administration in Ireland. The group was requested to specifically address the issue of judicial conduct and ethics. The sixth report of the working group dealt, among other matters, with this topic.

The group examined the issues surrounding judicial conduct such as judicial independence and the fundamental nature of same in the context of the rule of law and 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, and had its first meeting on 19 May 1999. The committee will consider the sixth 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 the 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.

Furthermore, and of direct significance to our work today, 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 the relating of judicial standards and ethics and will consider matters which have arisen since the sixth report was finalised last November. The Minister for Justice, Equality and Law Reform has personally assured the Chief Justice that he will have every support from the Department of Justice, Equality and Law Reform and the Government in carrying out the work of this judicial ethics committee.

The report of the Department made nine recommendations in relation to institutional and procedural changes in the courts designed to prevent any recurrence of the events which led to the early release from prison of Mr. Sheedy. They dealt with issues such as the performance of duties by court staff, judicial conduct and ethics, the review of sentences and establishment of a parole board; the method of appointment of county registrars, the assignment of cases to particular judges, court rules, plea negotiations and the formal transfer of responsibility for the administration of court services to the new Courts Board. Some of these recommendations have been implemented already and others will be the subject of proposals to be brought before Government in due course.

I am informed that the Courts Service Transitional Board is working diligently towards the establishment of the Courts Service later this year. The aim of this significant change in courts administration is the provision of an efficient, effective and accountable service to judges, practitioners, court staff and, most importantly, the users of the court system. This will be support by information technology systems which will facilitate the organisational changes which are now under way. This work was in train before the events with which we are concerned occurred, but these have given added urgency to the radical overhaul of the courts service.

The past few months have raised many difficult and important issues affecting the operation of our courts and there has been a level of concern and debate in this respect which is without precedent. In our discussions of this matter we must never forget that the primary victims in this controversy are the Ryan family, whose private grief has been constantly intruded upon by these very necessary discussions.

However, it is a reality that in many situations we must accept that some truths will only be partially revealed and that we may never get the full facts in specific situations. To quote from the Bible, St. Paul's Epistle to the Corinthians, Chapter 13: "For now we see through a glass darkly." It is also now time for us to accept this reality and to move on from this episode. We must look to the future and learn the lessons from these events so as to avoid a repetition. That is what the Minster for Justice, Equality and Law Reform and the Courts Service are doing.

Mr. Higgins (Mayo)

There is a fundamental onus on us all as Members of the Dáil and the Oireachtas and an unavoidable moral duty on the Government to get to the whole, unvarnished truth about the Philip Sheedy affair. To fail to do so would be an abdication of the Government's duty to this House and an abject failure of its responsibility. This is, after all, where the public accountability buck is meant to stop.

However, given what the Minister of State has said, it is regrettable that the motto of the Government –"hear no evil, see no evil, speak no evil"– lives on. I am very disappointed with her response, which is crystalised in her final remarks. Biblical quotations will not suffice, nor will they thwart the determination and right of the public and the Oireachtas to know exactly what happened.

The Government is making a big mistake if it believes this matter can be consigned to the shelves of history. Moving on will not happen until we analyse what happened in the past. The possibility of a constitutional challenge to whatever course of action or further inquiry we engage in should not deflect us from our determination to carry out our duty and to establish the full truth.

It was interesting to note the litany of negatives thrown up by the Minister of State. Nobody knows if a court challenge or challenges would be upheld. The issue should be fully tested before the High Court, the Supreme Court and, if necessary, the European Court. It should be decided conclusively once and for all, otherwise it will remain suspended and unresolved and this and future Governments will never be clear in their position in the events of future similar controversies involving judges.

In the event of challenges being upheld, we should not shirk the need for constitutional amendment, provided it does not interfere with the separation of powers or the narrow interpretation of what constitutes judicial function. It is, therefore, incumbent on the Government that in the wake of the publication of this report, it decides, on the basis of the analysis and studies in the report, which course of investigation or inquiry should be embarked upon to establish the full truth and all of the circumstances surrounding the wrongful early release of Philip Sheedy from prison.

The fact that Philip Sheedy is back in prison and that a Supreme Court judge, a High Court judge and the county registrar were each forced to resign does not mean that the matter has been concluded. We must ascertain why the individuals involved acted in the way they did. We must establish the reason two senior judges, judges entrusted with the responsibility of enforcing the law of the land and with dispensing justice, broke the very laws they were constitutionally charged to uphold. The constitutional declaration made by each judge on taking office to execute that office without fear or favour was breached by the actions of Mr. O'Flaherty, but outside the precincts of the court in that his involvement in having the Sheedy case wrongly listed happened out of court. In the case of High Court judge Kelly, he wrongfully heard the case in that he engaged in ex parte conduct without hearing both sides, he engaged in a mysterious and unexplained calling of the case out of turn and he deliberately misled the court by conveying the impression that he had access to an up-to-date psychological report. All of these individually and collectively breached the constitutional pledge given on taking up such high office.

The Chief Justice has again been commended for the speedy and precise manner in which he discharged the limited task assigned to him by the Government and for the clarity of his findings of fact: the fact that Mr. O'Flaherty's intervention in the administration of justice and that former Mr. Justice Kelly's handling of the case compromised the administration of justice speak for themselves.

In essence, the Chief Justice said that justice was perverted in the Sheedy case and that the two judges involved played key roles in the perverting of justice. Am I not right, Sir, in asserting that to pervert the course of justice is a criminal offence? In such circumstances, where there is clear evidence of a criminal offence – there will not be a clearer presentation of the evidence and the facts than that set out in the Chief Justice's report – the gardaí should be asked to investigate the matter and files prepared.

Mr. Justice Hamilton's limited investigations established the roles of the two judges in the affair. However, in relation to Mr. O'Flaherty, we do not know why such an experienced and senior judge should be guilty of such a serious error of judgment. Given that he has now refused to make himself amenable to any and further investigation, he must be compelled to do so.

In his letter to the Oireachtas Joint Committee on Justice, Equality and Women's Rights dated 5 June, Mr. O'Flaherty stated he could not assist the joint committee because under the Constitution he, as a former judge, is independent and is not accountable to the Houses of the Oireachtas or any other institution of the State for his conduct in the exercise of his judicial function. However, in the same letter he went on to state he was not involved in any judicial function concerning the conduct of the Sheedy case. He had no part in the hearing, judging or reviewing of the case.

There are clear contradictions in Mr. O'Flaherty's argument. While he was a judge he did not have any judicial function in this case. This in turn means that the section of the Constitution quoted by him on the independence and accountability of the Judiciary does not and cannot apply to him. He was not performing a judicial function and, therefore, his conduct does not come under the article of the Constitution he is now attempting to invoke. In his case there is no question of the independence of the Judiciary being at stake.

What is at stake here is accountability, the same obligation and degree of accountability as applies to any other citizen. Mr. O'Flaherty must be rendered accountable for the very serious charge of which he stands indicted by the Chief Justice, that he damaged the administration of justice. Just as it would be very wrong for the State to fail to act if an ordinary citizen deliberately perverted the course of justice, likewise, it is incumbent on the State to apply the law in this instance and to ensure that Mr. O'Flaherty is answerable before the law. He was not exercising a judicial function. He is, therefore, accountable and answerable before the law of the land, similar to any other citizen.

I regard Mr. Kelly's position as being completely different because he had judicial function in the case, even though he abused it by exercising it wrongly. One cannot, therefore, under the Constitution impinge on or query his actions inside the realms of the court room. However, one is entitled to query why a judge of such high standing should uncharacteristically deviate from and set aside the standards he so rigorously applied previously.

One is entitled to ask Mr. Kelly whether he knew or had any contact with Mr. Sheedy or any member of his family and whether he had been approached by anybody in advance of the case in order to possibly influence him to hear a case over which he knew full well that he did not have seisin. If so, it must be established who approached him. One is further entitled to ask him under oath if there was any contact between him and Mr. O'Flaherty in regard to the case. One is entitled to explore the reason for the unique situation where two judges of such high standing took such a personal interest in the welfare of Mr. Sheedy and if, in advance of the case, there was any contact between Mr. Quinlan and Mr. Kelly, and the possibility of asking Mr. Kelly to explain the reason for the difference between his version of events and that of Mr. Justice Joseph Matthews. One is also entitled to ask Mr. Kelly to spell out in detail his involvement in and knowledge of the case in so far as they did not in any way trespass into the domain of his judicial function.

We again commend Mr. Michael Quinlan for his willingness to make himself available to the joint committee. While the former County Registrar erred grievously in having the case listed, he is, nonetheless, to a certain extent a victim in that it can be presumed that when approached by a judge of the Supreme Court to list the case he must have felt that he was compromised and under pressure. This is acknowledged in the Chief Justice's report where he concludes:

I am satisfied therefore that had Mr. Justice O'Flaherty not spoken to the County Registrar, he the County Registrar would not have telephoned the accused's Solicitor and opened the possibility of the case being re-listed.

Mr. Quinlan's evidence could well be crucial in unravelling some of the unexplored aspects of the case.

The letter of 12 April 1999 from Mr. Michael Staines, solicitor for Philip Sheedy, to the Chief Justice is of particular significance. Mr. Staines recounts in it the telephone call he received from Michael Quinlan querying when he would make application for a review of sentence for Philip Sheedy and emphasising that Mr. Justice Cyril Kelly was awaiting the application. Mr. Staines stated: "I asked Michael Quinlan what this was all about and he indicated to me: ‘You don't want to know"'. It is obvious that this is a comment of considerable significance. It may well be that it possibly related to the approach that Mr. Quinlan had received from Supreme Court Judge, Mr. Justice O'Flaherty. However, it must be established whether the comment also implied that other people had made contact with Mr. Quinlan regarding the listing of the case.

There is an obvious requirement to investigate the roles of other key personalities in the affair. For example, there has been no official investigation of the alleged role of Mr. Ken Anderson. All we have is Mr. O'Flaherty's version of events in which he stated:

Sometime late last year (probably October), I casually encountered a son of family friends and neighbours, Mr. Ken Anderson who was accompanied by a sister of Mr. Sheedy. This encounter was entirely by chance. They gave me an outline of the facts of Mr. Sheedy's case.

We do not have Mr. Anderson's version of this chance encounter other than by way of an interview in The Star.

Again the Chief Justice stated that "They gave me an outline of the facts of Mr. Sheedy's case". It is clear from this that Mr. Sheedy's sister had a role in soliciting the assistance of Mr. O'Flaherty in attempting to obtain the early release of her brother. To date nobody has interviewed her in order to establish her version of the event or, indeed, subsequent events. There is also a need to establish the full extent of the role of Mr. Sheedy senior. One can understand the deep concern of a parent whose son faced a protracted spell in prison. It is obvious that he played a pivotal role in contacting a variety of people in order to try and bring about his son's early release from prison. He needs to outline the contacts he made with various persons on his son's behalf in any investigation.

The absence of the representative of the Chief State Solicitor from the court when the Sheedy case was called was an aspect of the role of the Office of the Chief State's Solicitor which was not investigated. The Chief State Solicitor was represented by Ms Eileen Creedon. According to Michael A. Buckley, Chief State Solicitor, in his letter to the Chief Justice dated 6 April 1999:

Ms Creedon was called out of court to answer the telephone. While Ms Creedon was absent at the telephone item No. 19 (The Sheedy case) was called by Judge Kelly.

The transcript of the case ran to only one and a half pages. It could not have taken much more than two minutes. The identity of the person who telephoned Ms Creedon has not been established. What has not been determined, or it certainly has not been made public to date, is whether this telephone call happened to be an unhappy coincidence in terms of timing or whether it was a deliberate decoy in order to ensure that the representative of the Chief State Solicitor's office was absent from Court while the case was being heard. We need to hear from Ms Creedon the circumstances surrounding the telephone call.

Most of the investigation of the Chief Justice was concluded by way of written correspondence with the various parties involved. An in-depth oral inquiry is needed, which would enable all the key individuals to whom I have already referred to be questioned in detail about their knowledge of or involvement in the different aspects of the affair. Others who would have to be called before such a process are Mr. Brian McGreary, law clerk in the Chief State Solicitor's office; Mr. S. J. Braonain of the Central Criminal Court; Mr. Brendan O'Donnell of the Circuit Court office; Mr. Michael O'Donnell, Registrar at the Circuit Criminal Court; Mr Luigi Rea, B.L.; Mr. Sheedy's original legal team; and the one which represented him at the controversial hearing on 12 November 1998, including Mr. Michael Staines, his solicitor. The interest in the case of Mr. Sheedy and the involvement of political figures, such as the Taoiseach, former Deputy Jim Tunney, Deputy Brian Lenihan and former councillor Joe Burke would also be of interest to such an investigation.

Similar to other members of the joint committee, I am deeply disappointed that the Chief Justice has declined to resume his inquiry into the Sheedy affair. He claimed that it would be "constitutionally impermissible" and "improper and inappropriate" for him to make any further inquiries into this matter at the request of the committee. The request was motivated in the first instance by an acknowledgement of satisfaction with his original report and, second, with a view to allowing the Judiciary and the bar to deal independently with the issue themselves rather than having judges subjected to scrutiny by an outside or extra-judicial body. Not alone did the Chief Justice decline this option but his curt response to the series of valid questions put to him by the committee was unhelpful and discourteous.

If he wanted to plead constitutional grounds, he should have done so in advance of writing his report at the Government's request. Having carried out his investigation into the conduct of the two judges while they held office and published his report on 14 April it is illogical and contradictory for him to try and argue that it is constitutionally impermissible for him to inquire further into the matter when both individuals are no longer judges. If he wished to plead constitutional grounds he should have done so immediately on being requested by the Government to investigate the affair. If there was no constitutional impediment in the way of his first investigation, then there is no constitutional difficulty now.

Having unsuccessfully sought to have the matter investigated by the joint committee where the key persons involved, prompted by the spirit of Mr. O'Flaherty's first letter, would have voluntarily appeared before it, the committee has fur thermore been frustrated by the unco-operative attitude of the Chief Justice. There seems, therefore, to be two remaining options. While one would like to see the joint committee enhancing its role and carrying out the inquiry itself assisted by an amendment to the Committees of the Houses of the Oireachtas (Compellability, Privileges and lmmunities of Witnesses) Act, 1997, in order to enable the judges to be brought before it, it is questionable as to whether a parliamentary committee would have the time, expertise or resources necessary to bring its inquiries to a speedy conclusion.

I share Deputy Howlin's view that a tribunal of inquiry would be the best option at this stage and such a tribunal need not be a protracted affair. The number of personalities involved is limited and well known. It should be possible to draw up tightly circumscribed terms of reference and have the entire matter concluded within a matter of weeks. The public interest demands that the truth must be established. The tribunal should be chaired by a judge or a former judge from another jurisdiction. In view of the senior positions of the two former judges, it would be impractical to expect one of their former peers to sit in judgment on their recently departed colleagues. The refusal of co-operation of the Chief Justice also must be a factor.

A decision from the Government is needed before the end of this debate as to which course of inquiry is envisaged. The joint committee has done the exploratory work. It is now a matter for the Government to recommend and we have no intention of allowing this matter to languish in the sands of time.

Ms O'Sullivan

I am extremely dissatisfied with the Minister of State's contribution on behalf of the Minister for Justice, Equality and Law Reform in response to the report of the Committee on Justice, Equality and Women's Rights. Is this House made up of men and women or of mice? Choices have been put before us by the joint committee which did a great deal of work on this issue. Others also did much work on it, options were put in good faith before the House and we expected the Minister to make a decision.

A vote was taken at the committee in which the Opposition indicated its priority, which is a tribunal of inquiry. However, the majority of the committee decided that the report would be laid before the House, with options. The report was laid before the House not in expectation of the type of reply we received from the Minister of State. In effect, she said the Government does not want to know any more and it will not make any further inquiries. It will set up a committee in relation to the courts, but it is afraid to go any further in relation to the investigation of the specific matters involved in the Sheedy affair.

The Minister of State said: "Even if it were easy to answer these questions, which it is not, there remains the point that the boundaries they seek to push out stray dangerously close to interference with the independence of the Judiciary." She went on to make other points about being afraid to push out the boundaries on the issue of the separation of powers. The separation of powers serves us well, but not in relation to the points at issue in this debate because we do not have a clear definition of what is a judicial function. This is obvious in the contributions of the Minister of State, Deputy Higgins and Deputy Barnes and in other comments on this matter. We must push out the boundaries and establish the sense in which judges operate within or outside their judicial functions.

Deputy Higgins referred to Mr. Justice O'Flaherty. It seems clear from the report that it was accepted that Mr. Justice O'Flaherty operated outside his judicial function with regard to his involvement in the case when he requested the registrar to relist it. We must bite the bullet on this issue. I am extremely disappointed because it appears the Government will allow the report to sit on a shelf and that it will do nothing. This is unacceptable. In common with Deputy Higgins, I also call for a public inquiry into this affair.

On foot of the report from the committee, the onus is on the Government to choose how best to proceed. However, there can be no hiding from the seriousness of the affair. Effectively, the Chief Justice elect, a High Court judge and a senior court official were forced to resign after a damning report from the Chief Justice. It is an event without precedent in the State's history and we need to get to the bottom of it. The Government has rejected our suggested approach. We accept that it was not without legal difficulty, but given the absence of prior definitive legal opinion in this area, no approach would be watertight.

This affair has done serious damage to the perception of the administration of justice. When the story broke, we as politicians indicated our determination not only to find out how the judges acted but why they acted as they did. This obligation still holds. Tomorrow the Government will force through generous pension arrangements for the two judges involved. There appears to be a sense within the Judiciary that now the boil has been lanced, namely, the two judges have been removed, they are happy to leave it at that. However, the public is owed more. A tribunal with limited terms of reference is not perfect, but it is the best way forward. If the Government does not agree, it should come up with a better alternative. If the possibility of legal action arising from the inquiries of a tribunal acts as a bar to its establishment, none of the tribunals currently under way would have got off the ground. Perhaps that is what the Government wants.

Deputy Higgins referred in detail to the various questions which arise in relation to Mr. Justice O'Flaherty, Mr. Justice Kelly, Judge Matthews, Mr. Quinlan, the Chief State Solicitor's report and Ms Creedon who represented the Chief State Solicitor at the trial in question. Deputy Higgins referred to the fact that the transcript only ran to one and a half pages and that the Chief Justice was able to report up to a certain point but felt unable to go further. There are many unanswered questions, including those of accountability, and we have a duty to find answers to these questions. If this means the courts questioning what is a judicial function, so be it. I brought along a copy of the Constitution because we are being asked to accept that Article 35 of the Constitution is the basis for the view that we as parliamentarians are not competent to decide if something is a judicial function. Perhaps we are not competent, but I have not heard much comment from the Judiciary or the legal profession generally on the general and important issues which arise in this case.

Articles 34 to 38 of the Constitution deal with the courts and justice. Article 35.1 states: "The judges of the Supreme Court, the High Court and all other courts established in pursuance of Article 34 hereof shall be appointed by the President." Article 35.2 states: "All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law." The Article also deals with the process of how a judge of the Supreme Court or the High Court can be removed from office for stated misbehaviour or incapacity upon a resolution of the Dáil and Seanad.

I am not a constitutional expert but these provisions are vague. If the Constitution has not been interpreted by the courts in this regard, there is an onus on us to ensure that a process is put in place where this interpretation can be made. Otherwise, these questions will be left hanging in the air. Another issue which is left hanging is whether one has more access to justice if one can strike up a conversation with a judge and if, as a result of that conversation, one can hope something will happen in relation to how one's case is listed. This issue forms part of the background to this matter and it must be investigated in the interest of public confidence that justice is done and seen to be done. It is a serious issue to leave in the background without trying to find out why the events happened as they did in this case.

The Minister of State mentioned the Constitution and said it is robust. She said it has served us well and the Government was unwilling to open it up in any way. However, it is being opened. A committee is considering the Constitution at present. There are people in wheelchairs demonstrating outside Leinster House this evening. When the House was dealing with the Employment Equality Act, the Constitution did not appear to allow us ensure that such people would always have access to work even if there was a cost to the property owner or person offering the job. There is nothing wrong with questioning the Constitution if we believe areas of it may need to be amended. The Constitution has been in existence for many years and it is in order to question it and consider if parts of it need to be improved.

The great number of questions which arise in this matter were not in any way answered by the Minister of State. I do not understand the purpose of the Biblical quotation at the end of her speech about seeing through a glass darkly. I did not know the Minister of State intended to quote from St. Paul's Epistle to the Corinthians, Chapter 13, but if I recollect it correctly it states:

When I was a child, I spoke as a child, I thought as a child, I understood as a child, but when I became a man, I put away childish things. Now we see through a glass darkly, then face to face. Now I know in part and then shall I know even as also I am known.

I am not sure that is entirely correct but it is my recollection of the quotation.

Mrs. T. Ahearn

The Deputy is correct.

Ms O'Sullivan

One could use other parts of the quotation and say that now I know in part, but then shall I know even as also I am known. That part of the quotation refers to going to heaven, but one could say that we know in part but there is a great deal that we do not know. It appears to the Opposition that the only way we will know the full details of this case is by having the courage to suggest a limited tribunal of inquiry. The Minister said there were difficulties with having it chaired by someone from another jurisdiction but did not indicate what those difficulties might be – she merely threw that statement into the air. I would like a response to that also.

There is anger among the Opposition at the tone of the Minister's response and its failure to address the issues still outstanding in the Sheedy case. We agree with the suggestion that we examine the courts, but it is not suggested how we should deal with the Sheedy case. We accept there are difficulties but feel the only way to deal with them is to allow them to be opened up to examination by a tribunal of inquiry or the courts. It may involve amending the compellability legislation but so be it – we need to find out what was happening, to ensure we get clear answers in areas where judicial function is blurred, and to ensure the public is satisfied that justice is done and is seen to be done.

Mr. O'Kennedy

In its conclusions, the committee's report states:

The committee has now reviewed these options and considers that the authority and powers currently available to it will not enable it to obtain additional information in relation to the facts surrounding the early release from prison of Mr. Sheedy.

The committee could have reached that conclusion at the beginning by looking at its terms of reference. Nothing in those terms, under any interpretation, would empower, enable or entitle the committee to raise a range of issues such as they have now raised. The notion that former judges should be brought before the committee is utterly outside its terms of reference. Many of the matters in which its members have engaged in public controversy are not based on its authority as a committee of this House.

Its members are so frustrated in not knowing or understanding their terms of reference that they use the most unqualified words of criticism in all directions. The Chief Justice is described as unco-operative. I also heard Deputy Higgins say something which he might like to consider on reflection. I did not intervene at the time and I trust he will give me the same courtesy. He quotes the Chief Justice as saying "these two judges played key roles in the perversion of justice". That is an outrageous distortion and implication. The Chief Justice did not say any such thing.

Mr. Higgins (Mayo)

"Compromised the administration of justice" and "damaged the administration of justice".

Mr. O'Kennedy

I will not be interrupted. The Deputy who has attributed to the Chief Justice the opinion that those judges played key roles in the perversion of justice should acknowledge that this is not only a total distortion of what he said and a falsehood but also a gross intrusion on the independence of the Judiciary, which he seeks to call into question.

These are serious issues. The separation of powers is written into our Constitution for good, valid and sufficient reasons and until recent months, this House and the people we represent were satisfied, confident and comfortable in this separation. The relevant Article of the Constitution properly insists that the Judiciary shall be independent in the exercise of its functions. That has been the bulwark of the Constitution under which we serve. All of us recognise that.

For one reason or another, the Chief Justice was not able to reply to the committee chairman's letter seeking advice, suggestions, or co-operation. That has been used in this House as a reason to attack the Chief Justice and the courts for not being co-operative, to distort and misrepresent what the Chief Justice said, and to imply that he said these two former judges played key roles in the perversion of justice. That is disgrace ful. If Members feel frustrated that they cannot get to the root of the matter we should look at the terms of reference of the Oireachtas and the committee which feels so frustrated. Did we ever imagine that a committee chairman would write to the Chief Justice asking for his co-operation? Is there the slightest tither of awareness on that committee, of the separation of powers in our Constitution? I am further astounded that the Chief Justice is then accused of being unco-operative. This is unbelievable. Whatever frustrations individuals may feel about this sad and tragic event, it is no basis for misquoting, distorting, and undermining our most fundamental constitutional foundation, the separation of powers.

If we address these issues again at any point we must first look at our own powers and terms of reference. Then there would be no danger that we would call into question the independence of the Judiciary, much less try to involve them in political barnstorming or using such outrageous expressions as Deputy Higgins has, namely, "played key roles in the perversion of justice".

Mr. Higgins (Mayo)

Did Deputy O'Kennedy read the report?

Mr. O'Kennedy

Yes, and not anywhere does it contain those words. If Deputy Higgins was a properly representative parliamentarian he would withdraw those words because it is a disgrace that they are on the record.

Mr. Higgins (Mayo)

He must not have understood it. Is he looking for promotion?

Mr. O'Kennedy

No.

Mrs. T. Ahearn

Having participated as a member of the Joint Committee on Justice, Equality and Women's Rights in the investigation of the Philip Sheedy affair, it is disappointing to have to speak on a report which is mostly if not all about failure. Two facts are clear from the report. First, that the committee under the vice-chairmanship of my colleague, Deputy Barnes, did everything possible and explored every avenue open to it under its terms of reference to get the full facts of this mysterious case. Deputy Barnes and the committee deserve to be congratulated on their efforts. Second, the committee failed in spite of all these efforts. We are commenting on and evaluating a report which, unfortunately, details our failure to do our business as we wanted. It speaks volumes of the powers of or, rather, the constraints not only on the committee system but on this House to investigate and to satisfy public disquiet and alarm on this case.

Rightly, it was the committee's intention to determine what lessons might be learned and the procedures and policies which might be identified and recommended to avoid a repetition of what occurred. It sought additional information. It is disappointing that it was forced to conclude:

The committee . . . considers that the authority and powers currently available to it will not enable it to obtain additional information in relation to the facts surrounding the early release from prison of Mr. Sheedy.

It is more than depressing to read the report's conclusions. Almost every paragraph is littered with words and phrases such as "failure", "impossible to achieve", "unable to get co-operation" and "regrets". Despite the unsatisfactory nature of the report, the committee should be congratulated on its untiring and determined efforts to investigate and get to the roots of this mysterious case. We failed, but the question we must ask in the House tonight is, where do we go from here? Do we do what the Minister said, look to the future and move on? We should never do that. The Government has a moral responsibility to investigate the reason justice for Philip Sheedy is different from justice for others. The very basis of our judicial system has been undermined by this episode.

We can pose many complex questions this evening, whether they be constitutional or judicial in manner, but I want to pose three simple questions. First, who is this man? He is supposed to be an ordinary citizen, yet everybody, from the highest level of the Judiciary to politicians, jumped through every loop to get him out of prison. Second, why are those involved in the case so reluctant to tell all? Third, why is the Minister so anxious to move on? If the answers to these questions are simple, why are we not getting them? If the answers to the three questions I have posed are not simple, we should not move on.

I want to comment on the attempt by the Minister to use the Bible to try to justify burying this episode. He said that the Bible states: "From now we see through a glass darkly". I remind the Minister that the Bible also states: "Where there is darkness, let us show light". The Minister's determination to move on and bury this episode raises serious questions. Unanswered questions leave all of us in this House and the general public very uneasy.

Mrs. Barnes

I welcome the opportunity to respond. I join with everyone else in expressing disappointment with the speech read by the Minister of State on behalf of the Minister for Justice, Equality and Law Reform. I shall deal with the outburst by Deputy O'Kennedy later, but if that is an example of the arrogance of the judicial profession, is it any wonder there is such anger and concern both inside and outside this House?

I am astonished that the Minister would turn down the two options left open not just to the committee but to these Houses. We are talking about the status of this House. I remind everyone that we are the elected Members of a democratic Republic. We represent the citizens and their rights and it is our job to ensure there is accountability on the part of every institution of this State. If we are not prepared to do that, or if we say that some other institution has superior rights to silence us or prevent us asking questions, there is something wrong with our democracy. There are more serious questions to be answered than when we started this debate.

I am astonished that the Minister for Justice, Equality and Law Reform should say that our robust 1937 Constitution can address the needs, the accountability and the educated views of those outside this House. Much of that Constitution has stood us well, but it is a reflection of the 1930s which has no bearing on us on the brink of a new millennium.

I have struggled with many others both inside and outside this House to hold referenda on the Constitution to give us various rights regarding housing, the disabled etc. As for women and their role, we are still suffering from sections 40 and 41 of the glorious Constitution of 1937.

The Minister for Justice, Equality and Law Reform has responsibility for at least communicating with the Oireachtas committee on constitutional reform and review. If this is the attitude he expresses towards its members, why do they bother to sit? Why did we set up a review commission headed by the eminent T. K. Whitaker, who made dozens of recommendations, if we did not believe that our Constitution needed to be examined and amended? That is the most depressing message we have received tonight.

I resent the tone and the attitude exemplified by Deputy O'Kennedy who treated those of us on this side of the House as if we had no competence or confidence and no sense of the importance of understanding the separation of powers of the Judiciary and the Executive. I remind Deputy O'Kennedy that he and others in his profession in the law courts make their fortunes out of taking different interpretations from the Constitution and legislation enacted in this House.

I want to read something into the record, and I hope Deputy O'Kennedy gets an opportunity to read it – he does not appear to have got an opportunity to read the other reports. The eminent senior counsel who instructed our committee – this is in favour of the 1937 Constitution – stated:

There is an additional word inserted in the 1937 Constitution as opposed to the 1922 Constitution. The word "judicial" is placed before "functions" in the 1937 Constitution. In the light of the insertion of the additional word "judicial", and based upon a literal reading of Article 35.2, it would appear that an inquiry of a judge or of a former judge of matters relating to events not connected with that person's judicial functions would not be covered by Article 35.2. The article in the Constitution protects the independence of judges in relation to the exercise of their judicial functions and not generally.

I rest my case.