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.