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Dáil Éireann debate -
Wednesday, 30 Jun 1999

Vol. 507 No. 3

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

The following motion was moved by the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, on Thursday, 24 June 1999:
"That the Bill be now read a Second Time."
Debate resumed on 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.".
–(Deputy Higgins,Mayo).

I wish to share time with Deputy Matt Brennan.

Is that agreed? Agreed.

The manner in which the Opposition parties have dealt with this matter has been nothing short of despicable. In a radio interview on 6 May Deputy Rabbitte said that Mr. Justice Hugh O'Flaherty had good grounds under Article 35.2 of the Constitution which deals with the separation of powers for refusing to appear before the Joint Committee on Justice, Equality and Women's Rights. He also said that he would not be in favour of the introduction of retrospective legislation, that Mr. Justice Hugh O'Flaherty had been a highly respected judge of the Supreme Court and that to use the payment of a pension as a carrot to appear before the joint committee would not be correct.

On 20 April Deputy Howlin said at column 478 of the Official Report:

I do not begrudge fair play to anyone. Notwithstanding the conclusions reached by the Chief Justice, it is clearly appropriate that adequate pension provisions should be made for the judges who have resigned.

It is clear from those contributions that the two Deputies concerned were supportive of the Government in what it is providing for in the Bill. It may not be popular to say this but I have no difficulty in supporting it. It acknowledges the tremendous sacrifices made by the three individuals concerned in resigning their positions. They have paid an enormous price for the wrongs they have done. Many are of the view that the price has been too high but their decision to resign must be respected.

Like politicians and the banks, members of the Judiciary have become a target for the public. By and large, the Judiciary has served us well. It tends to be one case in a thousand which makes the headlines when judgments are made with which we might not agree. However, many of the courageous decisions made by judges in the past have given us the civil rights we currently enjoy.

I support the Bill. It is fitting that these three people should receive pensions. Deputy Joe Higgins spoke earlier about the type of people who become judges. However, one cannot ignore the fact that for most, if not all judges, their appointment to the Bench means a massive reduction in income. Many of them are prepared to accept that in the best interest of the country and we must recognise that.

The Opposition has not given proper consideration to the families involved. Names are bandied about in the House with little or no care given to the damage and hurt it causes these people. They made mistakes, acknowledged that what they did was wrong and resigned. We do not use the same standards for ourselves. It is important that there be some consistency when dealing with matters such as this.

I thank the three individuals, Hugh O'Flaherty, Cyril Kelly and Michael Quinlan, for the contribution they have made. They committed wrongs and paid a heavy price. We should not simply remember them for that one incident but take into consideration, particularly in the case of the two judges, their long and distinguished careers. We should acknowledge their contribution and wish them and their families well in the future.

It is sad to think that fine people such as Hugh O'Flaherty, Cyril Kelly and Michael Quinlan have resigned. The Opposition and the media brought this about. I wish to speak briefly on behalf of Hugh O'Flaherty, whom I know.

For many years he served at various levels in the Judiciary where he fulfilled his duties with integrity and impartiality. He was admired and respected by his colleagues in the judicial and legal profession. He always administered the law with justice and fairness. He stood for what was best in the area of real values and morality. He was, and is, a person of compassion and understanding. In short, he was one of the giants in the legal and judicial profession.

It was a great tragedy for the judicial system that Hugh O'Flaherty took the decision to resign his position in the Supreme Court. Unfortunately, the Opposition, the media and the vested interests that brought about this catastrophe have done enormous injustice to this decent and honourable man. They have destroyed a brilliant career with their snide remarks and innuendoes. They have caused deep hurt, insult, outrage and heartbreak to a great man and his family. I wonder if they thought about his family. Their aim, now, appears to be to utterly destroy the man.

These people already have his head on a plate but they are not satisfied. They now want to persecute him further. I believe Chief Justice Hamilton's report is most unkind to Hugh O'Flaherty. Was there a hidden agenda in the report? Was there a reason for his harshness and severity? Were the circumstances used as an opportunity to remove an honest, honourable, upright and just man from a position of such importance? If that is so, it is a sad day for justice and for the retention of true Christian values in our society.

The proposal by the Government to allow these gentlemen their respective pensions, following their resignations, is simply and solely an effort to give them what is rightly theirs. It is a recognition of their years of brilliant and outstanding work in the public service. It would be most unfair and unreasonable to attach conditions to the pensions and gratuities they have been allowed.

I have listened to all of this debate. The Opposition speakers, let it be the "Cahirciveen connection" or the spokesperson, Deputy Jim Higgins, have been most unfair to these gentlemen.

(Mayo): The Government put the gun to their heads.

The Government was going to impeach them.

Do they take account of their families and what they have done to them? I hope something like this will not happen again. I hope what these people have gone through – what the Opposition has put them through – will not happen to any of the Deputies on the other side of the House or to their families.

The Opposition has done nothing recently aside from using innuendo. It did not get its Members far but they continue to use it. They used innuendo in the case of a decent man in Castlerea as well. That was wrong.

(Mayo): That remains to be seen.

I hope it will be all right.

Is he a friend of the Deputy's?

Yes. The Opposition has continuously taken this type of action. These great men will be a loss to the judicial system. It is a sad day for democracy when people must stoop so low as to say such things.

I wish to share my time with Deputy McManus.

Is that agreed? Agreed.

I have listened to the contributions of Government Deputies on this matter. Deputy Power described the comments of the Opposition as despicable and Deputy Matt Brennan said the Opposition was extremely unfair to the two judges.

The nub of the issue is the fairness of the administration of justice. There can be no doubt that the report delivered by the Chief Justice to the House, while it did not explain the why and wherefore of what happened in the extraordinary Philip Sheedy case, made it clear that, in the view of the Chief Justice, both judges had been sadly lacking in the administration of justice and in ensuring that justice must not only be done fairly but be seen to be done fairly. Government Deputies want to have it both ways. The Government was prepared to impeach both judges, embarking on uncharted waters, only a few weeks ago. There is an element of hypocrisy in the comments of some Fianna Fáil backbenchers.

When the details of this affair broke in the media, it generated the most comprehensive, even hourly, response from my constituents. Very often, senior citizens in my constituency of Dublin North-East, have telephoned in consternation and great anger at what they perceive as a perversion of justice. They have demanded that this House take action as soon as possible to prevent such a situation from recurring. Those citizens were correct in their fundamental approach.

In recent years we have had many discussions on the issue of separating the powers of the Judiciary and the Executive, as well as on the common law system of justice we inherited from the British. In a recent article, the former Deputy, Michael McDowell, made harsh comments on the civil law system other EU member states employ. A few years ago, in Italy, there were strong suspicions that a golden circle existed – with one law for the rich and another for the poor – providing jobs and emoluments for those who toed the Christian Democrat party line. Italy's legal system, however, involves an investigating magistrate or judge with investigating powers, to whom the police are responsible. It would be the best way to investigate matters such as those before us today.

Yesterday, the Government effectively closed the door on any further inquiries into the Sheedy affair. This is hardly a surprise because last week it voted down a proposal from my party colleague, Deputy Howlin, for a public inquiry. The Government's intention to get shot of the affair has been apparent from day one and the legislation before us encapsulates the Government's approach. The Government's advice to avoid the possibility of an unprecedented impeachment seems to have been generally accepted, but it is not a view I hold.

The Constitution, in its wisdom, provides for the accountability of the Judiciary to the Oireachtas in tandem with general operational independence. I would be keen to see that principle being given greater definition. To put it succinctly, does the constitutional guarantee of judicial independence in the operation of judicial functions apply to judges who, in the words of the Chief Justice, operate in a manner detrimental to the administration of justice? That is the key point of the issues before us.

How would the Deputy solve that one?

Who has got the money?

We should have a public inquiry and a Garda investigation. That is how I would solve it.

How would that affect the Constitution?

The net effect of this affair, it would appear, is that we have learned nothing. We know which judges acted and how they acted, but we still do not know why. The cynical view that there is one law for those with access to power and another for those without it, has sunk into the subconscious of more and more people. We must not confuse the declining interest in this issue in the media or amongst the public, with satisfaction that we as politicians have done our work. Rather, the public have made their judgment and in reality they expect a little more. They are not surprised at what has gone on. Both politics and the Judiciary have been damaged as a result.

The circumstances preceding the decisions the Government will force us to make in this legislation are so bizarre as to give rise to suspicions. The pension arrangements are extremely generous and would not apply to anyone else in any other profession, in similar circumstances. My colleague, Deputy Howlin attempted to establish on what actuarial basis the pensions were arrived at – £40,000 per annum for the former member of the Supreme Court, £30,000 for the former member of the High Court, and £15,000 for the Dublin County Registrar. There seems not to be a logical basis on which to allocate such extraordinary emoluments in these cases. They have been allocated, yet we still do not know why these men had to resign. We know what the Chief Justice thought of them and we picked up a general drift, such as that felt by my constituents, but we still do not know the reality of the matter. The former justice of the Supreme Court has had the temerity to refuse to be accountable to this House which appointed him in the first instance. That is the essential problem.

We have no actuarial basis for the pensions and, even going on the age and past achievements of the judges, we cannot discuss how these figures were arrived at. The distinguished journalist, Mr. Gene Kerrigan, said that the Fianna Fáil Party has, as usual, come up with a way around a difficult new part of our administrative structure, namely the Freedom of Information Act. The way around it is not to write things down. The Minister is not even prepared to give any account of phone calls or other discussions as to how these figures were arrived at. It is an incredible situation, like something out of Kafka.

It now appears that these figures were negotiated without any real assessment of the cost to the State. How else can one deduce the absence of any written records on the file prior to the Minister making his original statement in the House? This appears to be ludicrous and reeks of a party or parties, Fianna Fáil and the Progressive Democrats, trying to put the issue to bed in a hurry.

I wish to sum up where we are now and where the Government seems happy to leave this tragic affair. Two of the most senior judges in the country, one tipped as a possible Chief Justice, were forced to resign – an event without precedent. Despite negotiating generous pension arrangements over the phone with the Government, they refused to give any account of themselves to the representatives of the people, in this case the Committee on Justice, Equality and Women's Rights. The Chief Justice, having completed the initial report which damned both judges in the eyes of the Government, suddenly discovers constitutional impediments to doing what has already been done. We are told that legal difficulties prevent the matter from being taken any further, although on that basis it seems to me that the Government should ask the Attorney General to hot foot it up to Dublin Castle and request the two eminent judges there to stand down their respective tribunals. It is a nonsense. The Government has asked the working group on the courts to examine the issue of judicial accountability. Everybody seems to think it is a good idea and that it will not impact on the relationship between this House and the Judiciary. That will be left to another day and another crisis.

As this affair is being so unsatisfactorily finalised, our thoughts must be with the family of the late Ann Ryan. Her death was the underlying tragedy which sparked all these events and which produced a scenario whereby many of our fellow citizens feel there is one law for the rich and one for the poor.

I thank Deputy Broughan for sharing his time with me. We should not lose sight of the fact that this case arises from the death of a young mother who died as a result of reckless driving by a man who had exceeded the drink driving limit. He was a man who happened to be an architect and came from a particular background. That should not matter but clearly it had a very significant bearing on this case. Justice for the family of Ann Ryan – her husband, children and relatives – is at the heart of this matter. Everything we say must spring from that core principle. I have listened to statements here with increasing nausea when I think of what actually happened to that family, and the lack of accountability the Government has shown to them. We in the Labour Party have striven to find out why justice was not done in this case. Why did senior members of the Judiciary release Mr. Philip Sheedy? We have done our best from the Opposition benches to try to find answers, not just for the family but for the public at large. The Government, however, has taken a different approach. It is now putting the lid on the saga and is trying to close down the matter by speeding the Bill through the House at this late stage in the session. In the words of a former Member, the Government believes it can draw a line in the sand. The Labour Party does not accept this can be done. I do not accept this and neither do I believe, do the public, who deserve answers to the serious issues raised in this affair. This will not go away simply because the Government has decided to close down the debate in this House. The debate goes on outside.

The report of the Chief Justice rocked public confidence in the administration of justice. According to that report the actions of Mr. Justice O'Flaherty were "damaging to the administration of justice" and the manner in which Mr. Justice Kelly conducted himself "compromised the administration of justice". Can anything be more damning than those two statements? In the wake of the report the Government made it clear to the individuals involved and to the public at large that it would begin proceedings to impeach both judges. There was a clear intention to proceed with impeachment. At that stage the Government believed the issue was so serious that the unprecedented impeachment of two senior members of the Judiciary was necessary. However, in the following days both judges and the county registrar resigned.

What occurred in those critical days is surrounded by mystery. My colleague, Deputy Howlin, has discovered that neither notes, a record or supporting documentation relating to the pension payments for the three people involved exist. That is not accountability. The Bill being debated is a direct outcome of those negotiations which we are expected to believe took place without so much as a quill being used to calculate complicated pension arrangements. I firmly believe the Government has a vested interest in battening down the hatches and bringing debate on the saga to an end. This is unacceptable.

From the work of the Dáil committee and the report of the Chief Justice we now know what happened, the sequence of events and that the key players in the affair had widely different recollection of key events. We know how Philip Sheedy secured early release from prison but we do not know why. This question has to be answered.

Instead of providing answers this Bill seeks to stifle debate about this important affair. The Bill will, in effect, reward the three individuals who resigned, those who were strongly criticised by the Chief Justice in his report and who brought shame and dishonour to the Judiciary, by giving them enhanced pension payments. It does not place any obligation on these individuals to account to this House or to a forum established by this House for their unprecedented and incredible behaviour. This Bill is nothing more than a shoddy attempt to sweep under the carpet an affair that has for the first time shaken public confidence in the Judiciary and left a lingering feeling that in Ireland there is one law for the rich and one law for the poor. It is outrageous that instead of protecting the public good the Government is intent on ramming this legislation through by hook or by crook.

We have a position on how this matter should be dealt with. We believe a tribunal of inquiry with a limited and focused remit is the best way to get to the bottom of the affair. We also believe that the individuals who resigned should not received financial pay-offs until their co-operation for such a forum is secured. That is a reasonable requirement. I cannot think of any other area of responsibility where people are being treated in such a preferential way. This proposal which is reasonable and effective in terms of getting the answers we need was voted down by the Government at the committee.

The Ryan family, in particular, and the public in general are again being asked by the Government to accept half truths – that one cannot look into the glass except darkly, that only God can judge. All of us in this House have a democratic mandate which we bear – I hope with pride – but it imposes certain requirements on us too. When things go wrong, when people fail, or act wrongly we have a duty to ensure that the people who create these factors are made accountable, regardless of who they are, but particularly when they are senior members of a Judiciary that has a fine record but can only operate if it has the confidence of the public. This is damaging to the Judiciary as well as to public confidence. That has to be recognised.

Accountability and transparency are issues the Government regard as optional extras. We have it now but not when it is difficult, when it means we have to go public on the serious events that took place, which are central to the way society operates.

How would the Deputy suggest we could arrange for greater accountability by the Chief Justice?

I have already said I would prefer if the Minister of State did not interrupt and ask me the same question over again. Not only have I asked the question but Deputy Broughan has asked it. The Government knows how to deal with this but is refusing to do so.

Will the Deputy tell us how she would deal with it?

Will the Minister of State please allow the Deputy to continue?

There is a question of honour and of public confidence in the Judiciary. That honour is in doubt. The Oireachtas has a duty to ensure public confidence is not misplaced or destroyed. The doubt will linger on because of what the Government is doing and because of its failure to meet the challenge. In effect there is unacceptable collusion. Nobody in this House has ever challenged the idea of the independence of the Judiciary. From the beginning of this crisis nobody has challenged the principle of the independence of the Judiciary. It is of fundamental importance to society, it has constitutional weight and we all recognise it must be protected. It has to rely on us being satisfied with the answers to certain questions otherwise it will not be true independence. How are judges appointed? How securely do they hold their posts? Is the level at which they are paid maintained? Do they hold other remunerative posts? Do they formally assert their independence before the people? How do they behave? Do they act independently in the courts and are they seen to do so? That question has not been answered satisfactorily in relation to these two judges. Putting them away, feeding them money to ensure the answers are not put into the public domain is not the way forward. It is not possible to keep the lid on what is a very central issue in society because these are special people. If a doctor is found guilty of malpractice, he would not be given a pension, particularly after six months in a position. Mr. Justice Kelly had served for only six months in the High Court and yet he is given a pension.

In answer to the Minister of State there a clear route which the Labour Party has pinpointed and pointed out to the Government. The failure of the Government to accept that route as the way forward is indicative of its approach in trying to preclude and to secrete what happened. We do not intend to give up on that.

Article 35.2 of the Constitution states:

All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.

The independence and impartiality of the Judiciary is a fundamental cornerstone of our democracy. The existence of democracy depends to a large extent on the majority of the people having confidence in the institutions of the State and especially in the Judiciary and the courts. The courts and the judges have served the State well since its foundation. Even though judges have been appointed on the advice of the Government of the day, the proof of their impartiality and independence has often been seen when Bills referred to them have been held by the Supreme Court to be unconstitutional. At times this has proved to be awkward and embarrassing for the Government of the day.

It has always been accepted that judges and courts were impartial and beyond influence, especially political party influence, and that the courts were totally independent. This independence was seen to be so important that it was enshrined in the Constitution. It is a matter of grave seriousness when two senior judges and the county registrar had to resign from office because of actions that, according to the Chief Justice, were open to misinterpretation, to say the least.

I will take a different approach to this. When the Minister of State is ready he might like to listen. Both judges involved were learned men and had contributed enormously to the rule of law in the State. Their loss is great. They have lost as have their families and the State. Their learning, experience and skill should have continued to benefit us all for many years.

In his last duty as a judge of the Supreme Court, Mr. O'Flaherty offered his resignation because, he said, the highest duty of a judge is impartiality as well as the appearance of impartiality. He offered his resignation so that confidence could be restored in the administration of justice. The Minister referred to errors of judgment in the handling of one case, but confidence has not been restored in the administration of justice by the resignation of the three prominent people involved in the Sheedy case. If anything, the resignations raised even more questions.

It is almost certain the former judges would have been impeached if they had not resigned. If they had been impeached it would have been unprecedented. Furthermore, pensions would not have been paid. They would probably have lost everything. By resigning they at least hope to guarantee their pensions. Was this the gun that was put to their heads in the unwritten agreement?

The Minister acknowledged that the legislation is rooted in past events which, he said, resonate in the present and have implications for the future. He is anxious to brush the matter under the carpet and to focus only on the future. The Minister rightly said: "We must now look forward and take whatever steps are necessary to ensure that confidence in our judicial system is fully restored." However, it will not be possible to look forward until the events of the past are completely dealt with. The Minister also said it would be grossly unfair to dismiss years of sterling service because of errors of judgment.

How could such eminently clever, experienced, wise and learned men make the same error of judgment? One, or even two people might make an error of judgment but for three of the most learned people in the land working together to make the same error of judgment at the same time raises very serious questions. The most important of these questions is, why?

In introducing this legislation the Minister and the Government are trying to push the past under the carpet. This is grossly unfair to the three gentlemen involved because the Government has not made any effort to allow or encourage them to explain why they did what they did. This will mean that in the history of the State and the Judiciary, a doubt will hang over the integrity and good name of the people involved. They should at least have been given an opportunity to explain why they did what they did and to answer that vital question.

More importantly, confidence in the judicial system has not been restored. If anything, the affair seems like a cover up. Could not the Minister have delayed this legislation until the autumn and given all sides more time to reflect and to think about the implications? Instead, by trying to rush it through the House in the last week before the summer recess, the Minister has raised even more questions about the Government's reasons for introducing this legislation in this manner.

Government backbenchers are very concerned about the good names of the former judges. Why not allow them explain their actions and redeem their good name? Mr. O'Flaherty said on a number of occasions that he did not do anything wrong and he still maintains that. Prior to his resignation he offered to appear before an Oireachtas committee on a voluntary basis to put his case and answer questions. However, inexplicably, after resigning he said he was barred from doing so because of constitutional impediments. Did he make another error of judgment in offering to come before the committee or was some other pressure applied to prevent him from doing so? I believe he is making an error of judgment in not appearing before an Oireachtas committee.

These are the question that are in the public domain and that remain unanswered. If the Minister has his way they will be covered up and forgotten about after the summer recess.

The Minister said that, according to advice received by him, it would be unconstitutional for legislation providing for these pensions to make payment dependent on complying with a requirement that the former judges provide some explanation or self justification or make themselves available to give evidence before an Oireachtas committee. The Minister is anxious not to dwell on this matter. He calls it a fruitless exercise which, he says, would only cloud debate on the detail of the Bill. While he is anxious to debate the detail of the Bill, he is avoiding consideration of the justification for the Bill.

Why should the people concerned receive pensions? They have resigned in disgrace. Did they resign to avoid impeachment and to guarantee their pension payments? The Constitution allows for impeachment of judges for stated misbehaviour or incapacity. Impeachment proceedings would have necessitated a resolution of both Houses of the Oireachtas, including probably a lengthy debate on the reasons both judges should be impeached. The Government was anxious to avoid such a debate. There is not any procedure that I am aware of for judges to defend themselves before the Dáil or Seanad acting as judge and jury. Was it the case that Mr. O'Flaherty, in offering to appear before an Oireachtas committee, was trying to avail of an avenue to put his side of the story prior to impeachment proceedings being initiated in the Dáil or Seanad? If he did get such an opportunity his thoughts and rationale would be available to Members during the Dáil and Seanad impeachment debate. However, in what the Minister calls the resignation agreements – they are unwritten agreements – the former judges have reached with the Government there seems to be an unwritten proviso that neither should appear before any Oireachtas committee. The Government appears to be determined that neither former judge has the opportunity to put his side of the story.

In the midst of this we must not forget that a young mother was killed because of the reckless driving of a drunk driver. Three eminently learned people made the same "error of judgment", to quote the Minister, which resulted in the early release of this man who had consumed more than the legally permitted level of alcohol. The early release might not ever have been discovered except that Mr. Sheedy was spotted and Mr. John Ryan asked questions, and persisted in doing so.

I began by discussing the importance of maintaining the impartiality of the judicial system in the eyes of the public. The Sheedy affair, as it has become known, is one example where the administration of justice was compromised. Was this an isolated incident? A chance meeting in the street uncovered what the Minister calls errors of judgment. It may be that the three gentlemen in question acted out of humanitarian interest and with the best motives. However, they have not been allowed to put their case.

In the debate on the Sheedy case last night, the learned Deputy O'Kennedy put up a number of legal roadblocks to stymie every avenue the Oireachtas Joint Committee on Justice, Equality and Women's Rights has tried to follow. Many questions remain unanswered. The three learned gentlemen resigned in disgrace and have not been given the opportunity to put their point of view. The Government has not made any effort to facilitate the two former judges in this matter. It appears it has done everything to ensure they do not put their case. When the history books are written the names of O'Flaherty, Kelly and Quinlan will surely figure in the texts that detail the end of the millennium in Ireland, as will the actions and inaction of the Government.

Many unanswered questions in the handling of the affair by the Minister and the Government will also be written about and future scholars will look back at this episode and series of events and speculate about the answers that might have been. The Government has done a great injustice to the people concerned by not allowing or facilitating them and by rushing to cover up.

The two former judges involved in this case had distinguished and promising careers. Why did they decide to take such risks? What motivated all three of them to become involved in the same error of judgment? Did they not know that what they were doing was legally and morally wrong? However, the implication that they had been paid or bought off for reasons unknown will remain in the annals forever and will be another chapter in the history of Fianna Fáil and GUBU.

The Opposition's proposal is to decline to give a Second Reading to the Bill until such time as the two former judges referred to in it give a clear undertaking that they are prepared to make themselves available to answer questions following whatever course of action is recommended by the House on the matter.

The Minister has previously stated that he has received clear advice that it would be unconstitutional to include in legislation providing for pensions or payments to judges or former judges any provision that such payments would be dependent on the individual judges complying with a requirement that they provide an explanation or justification or make themselves available to give evidence before an Oireachtas committee.

No undertakings were given to either judge before they resigned. However, they were subsequently informed that the Government would introduce and support such a measure. This unfortunate and unprecedented situation must not plummet into complete and utter disorder. Some contributions by Opposition Deputies demonstrated a fundamental lack of understanding of the legislation. The proposed postponement of the legislation is an effort to get around the constitutional difficulties. I assure the House that the Government will have no hand, act or part in such a manoeuvre. Neither will it play fast and loose with the Constitution in this matter. The gave its word that this legislation would be brought forward and it has put it before the House. The Government will fulfil its word, it has a moral obligation to do so.

Much play was made by a number of Deputies about the reason the Bill should be delayed. Deputy Shatter suggested that it could be introduced in the autumn. However, the former judges have dependants and young families. Deputy O'Keeffe proposed the postponement of payments for a number of years. The Government recognised the grave circumstances that arose and decided that letters of unprecedented substance should issue to the two judges. The men were accountable and resigned. However, we must not lose all sense of reason. The Bill was not brought forward in haste and to delay it further would be completely unreasonable.

Deputy O'Keeffe made a preposterous allegation that the Government is trying to hide behind something in this case. There has seldom been such an issue on which Government has been more forthcoming and open in its response. Three detailed reports have been made available to the Oireachtas; a series of debates has taken place in both Houses; and the Oireachtas Joint Committee on Justice, Equality and Women's Rights has reported on the case. This is not the action of a Government that wishes to hide behind something or sweep it under the carpet.

Deputy Roche made a valid point that Mr. O'Flaherty provided a fulsome explanation of his involvement in this case to the Chief Justice. Deputy Jim Higginsalso described the report of the Chief Justice as “clear, unequivocal and decisive”. At what point do we decide that explanations are adequate and comprehensive to allow for the progression of this legislation? At what point do we decide that we have transgressed far enough into the independence of the Judiciary and the sensitive area of the separation of powers?

I am surprised at the lack of understanding demonstrated by a number of Deputies, particularly Deputies Broughan and McManus. I am surprised at their misunderstanding of the separation of powers between the Judiciary and the Dáil. That was borne out when I asked both Deputies during their contributions what they would do? Deputy Broughan replied that he would hold a public inquiry and a Garda inquiry. The joint committee was the best forum to look to for a judgment in the case and it decided that a public inquiry would serve no purpose. The Garda and the DPP, having considered the matter, adopted the view that a criminal investigation was not warranted, and that remains their position. I fail to understand the proposals put forward by those two Deputies, who I expected to have a better understanding of the situation in which we find ourselves.

Deputy Joe Higgins referred to the dimensions of the pensions reflecting the losses incurred by these men by their resignations. As the Minister said in his opening contribution, it is a common feeling among Members that persons with whom this legislation deals have paid a heavy price in terms of financial loss, anxiety and strain, which they have borne over recent months. It must be acknowledged that, apart from the events resulting in this legislation, each of the three men made valuable contributions to the administration of justice. I endorse the remarks of a number of Deputies about their contribution.

I welcome Deputy Jim Higgins's statement that Fine Gael does not have a fundamental problem with the payment of pensions to three men. A number of Deputies, including Deputy Howlin, referred to the levels of pension provided for in the Bill. Deputy Howlin suggested that they are too high and that it is more appropriate to apply rates which are based on the actual entitlements of the judges at the time they retired. Such a solution is not the right course to follow for a number of reasons.

If the Deputy's principle were to be applied, it would mean that in the absence of legislation Mr. O'Flaherty could not be paid anything until 26 March 2005, Mr. Kelly until 7 June 2013 and Mr. Quinlan until 10 January 2019. These are the legislative requirements under the current scheme which only allow for deferred payments at the appropriate retirement age. The people involved and their families, therefore, would not be in receipt of any pension income in regard to their years in the public service for a considerable time. Does the Deputy want to put those families through such hardship?

The rates of pension which have been provided are, of course, higher than the deferred rates and are payable from the dates of resignation, but they do not include any provision for the payment of lump sums to which the people involved are entitled, albeit some way down the line. This factor must also be taken into consideration when assessing the level of pension payments in the Bill.

The net financial loss suffered by the judges is another important factor. This can be estimated by calculating the actuarial value of the pension provisions in the legislation and subtracting this from the total value of their current entitlements and the value of their loss of earnings up to retirement age. Taking these figures into account, the net loss amounts to £637,000 for Mr. O'Flaherty and £1.039 million for Mr. Kelly. These are substantial amounts of money.

These people have paid the ultimate price in terms of their careers, and their families have also suffered. Accordingly, it will not be necessary to invoke procedures which no Member would have welcomed. The pension payments provided in the legislation go some way towards addressing the various elements which I have mentioned.

A number of Deputies, including Deputies Howlin, McManus and O'Keeffe, stated that it is not valid to compare the actuarial value of the judges pensions if they had served their full terms with their current position. Deputy Howlin made a comparison with that of a Member of this House who lost his or her seat in an election. He stated: "I cannot think of any other walk of life in which two senior officials who resigned in the wake of such severe criticism would receive such generous settlements." I remind the House – in doing so I do not wish to rake up old coals in respect of the person involved – that on 30 May 1995 the then Taoiseach, Deputy Bruton, informed the House of a severance package to the then senior legal assistant in the Attorney General's office. This package was agreed by the Government in the wake of the Brendan Smyth case. I will not go into much detail about that statement but suffice to say that as well as an enhanced payment the person involved also received an enhanced lump sum. At the time Deputy Bruton defended the Government's decision on the basis that the person involved had acted in error and he had provided good service to the State during his public service career. Those comparisons speak for themselves. Above all, this is an example of the hypocrisy displayed by members of the Labour Party during the debate. They were part of the Government which made that decision. They did not appear to have a problem then, but they appear to have a major one now.

Deputy Bruton also placed on record the Government's view that "court challenges were very likely. Such legal challenges could absorb a great deal of valuable time and money for the State and the results would be unknowable." I emphasise the word "unknowable". The comparisons are clear in the matter before the House, particularly in respect of the unprecedented nature of the events surrounding this legislation and the uncharted path of impeachment.

Deputies Higgins and Howlin raised the question of written commitments. My colleague already informed Deputy Howlin, in response to a parliamentary question on 5 May, that no undertakings whatsoever were given verbally or in writing to the two judges in regard to the pensions they would receive either before or after their resignations were received. The House is aware that Mr. Justice O'Flaherty resigned on Saturday, 17 April and Mr. Justice Kelly on the following Tuesday, 20 April. Due to the urgency of the matter in the context of the particular constitutional process being contemplated by the Government, several discussions took place during those days. In the case of Mr. Justice Kelly, there were discussions between his legal team and counsel for the State in relation to pension entitlements. Those discussions were inconclusive and were broken off prior to the resignations.

No undertakings were given, verbally or in writing, in respect of the pensions to the three individuals before or after their resignations were tendered. No undertakings could be given as it was a matter for the Legislature to provide for such pensions. I reject in the strongest possible manner the insinuation by Deputy Broughan that the officials and legal representatives of the Department concerned did anything improper in the negotiations which took place but were not recorded. It is a serious charge to make against officials or legal representatives. It is particularly serious to suggest that this is the way the Fianna Fáil Party does business. I reiterate that the Minister and the Fianna Fáil Party had no involvement whatsoever in the discussions; it was entirely an official matter.

The reason there are no written records in the Department on the calculation of the pension amounts prior to 20 April is that most of the discussions on the issue took place over a weekend and were conducted mainly on the telephone. Officials in my Department discussed the matter with Finance officials over the telephone and one of my officials, in turn, held discussions over the telephone with counsel for the State. It must be emphasised that what was being discussed was not what the Government should decide in relation to pension entitlements, but what proposal should be put to the Oireachtas. It was accepted at all times and clear to all concerned that the actual decision would fall to be made by the Oireachtas. There are written records in relation to the publication of this Bill.

Mention was made of a clear absence of accountability. I contend that both judges involved in this case have been fully accountable for their actions. They have been accountable to the extent that it was necessary for them to resign. It is clear that mistakes were made and grave consequences arose for those concerned. The Government fully recognises that the judges should be accountable and took the only action open to it, giving notice of possible impeachment procedures. The responses of the judges were honourable. They accepted what must have amounted to a devastating personal consequence. They ensured that a potential constitutional crisis was avoided. I fail to understand some of the comments made by some Opposition Deputies during the debate. They misunderstand the position.

The accountability of judges was considered recently by a working group on the courts commission, chaired by Mrs. Justice Susan Denham. The sixth report of the Denham group dealt with, among other matters, judicial conduct and ethics. The group examined the issues surrounding judicial conduct, such as judicial independence, its fundamental nature in the context of the rule of law and the procedures adopted in other countries relating to the handling of judicial conduct which might be considered unsuitable for a member of the Judiciary. It recommended the establishment of a judicial committee and on publication of that report, such a committee was established by the Chief Justice in April this year. It had its first meeting on 19 May last.

As it is 5.15 p.m, under Standing Orders I must ask the Minister of State to conclude.

Question, "That the words proposed to be deleted stand part of the main question", put:

Ahern, Dermot.Ahern, Michael.Ahern, Noel.Ardagh, Seán.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.Briscoe, Ben.Byrne, Hugh.Callely, Ivor.Carey, Pat.Collins, Michael.Cooper-Flynn, Beverley.Coughlan, Mary.Daly, Brendan.Davern, Valera, Síle.Dempsey, Noel.Dennehy, John.Doherty, Seán.Ellis, John.Fahey, Frank.Fleming, Seán.Flood, Chris.Foley, Denis.Fox, Mildred.Gildea, Thomas.Hanafin, Mary.Haughey, Seán.Healy-Rae, Jackie.Jacob, Joe.Keaveney, Cecilia.

Kelleher, Billy.Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Michael.Lawlor, Liam.Lenihan, Brian.Lenihan, Conor.McDaid, James.McGennis, Marian.McGuinness, John.Martin, Micheál.Moffatt, Thomas.Moloney, John.Moynihan, Donal.Moynihan, Michael.Ó Cuív, Éamon.O'Dea, Willie.O'Flynn, Noel.O'Hanlon, Rory.O'Keeffe, Batt.O'Keeffe, Ned.O'Kennedy, Michael.O'Malley, Desmond.O'Rourke, Mary.Power, Seán.Reynolds, Albert.Roche, Dick.Ryan, Eoin.Smith, Brendan.Smith, Michael.Wade, Eddie.Wallace, Dan.Wallace, Mary.Woods, Michael.Wright, G. V.


Ahearn, Theresa.Barnes, Monica.Barrett, Seán.Bradford, Paul.Broughan, Thomas.Browne, John (Carlow-Kilkenny).Bruton, John.Bruton, Richard.Burke, Liam.Burke, Ulick.Carey, Donal.Clune, Deirdre.Connaughton, Paul.Cosgrave, Michael.Crawford, Seymour.Creed, Michael.Currie, Austin.Deasy, Austin.Deenihan, Jimmy.Dukes, Alan.Enright, Thomas.Ferris, Michael.Finucane, Michael.Fitzgerald, Frances.Flanagan, Charles.Gilmore, Éamon.Gormley, John.

Hayes, Brian.Higgins, Jim.Higgins, Joe.Hogan, Philip.McGahon, Brendan.McGinley, Dinny.McGrath, Paul.McManus, Liz.Mitchell, Gay.Mitchell, Olivia.Moynihan-Cronin, Breeda.Naughten, Denis.Neville, Dan.Noonan, Michael.O'Keeffe, Jim.O'Shea, Brian.O'Sullivan, Jan.Owen, Nora.Penrose, William.Perry, John.Quinn, Ruairí.Rabbitte, Pat.Reynolds, Gerard.Ring, Michael.Ryan, Seán.Shatter, Alan.Sheehan, Patrick.


Shortall, Róisín.Stagg, Emmet.Stanton, David.

Timmins, Billy.Wall, Jack.Yates, Ivan.

Tellers: Tá, Deputies S. Brennan and Power; Níl, Deputies Sheehan and Stagg.
Question declared carried.
Amendment declared lost.

I declare the Bill to be read a Second Time in accordance with Standing Order 111(2). In accordance with the Order of the Dáil of this day, the Bill will be considered in committee now.