Dáil Éireann debate -
Tuesday, 7 Nov 2000

Vol. 525 No. 2

Private Members' Business. - Sheedy Case: Motion.

Mr. Shatter:

I move:

That Dáil Éireann:–

noting the report of the Chief Justice into the circumstances leading to the early release of Mr. Philip Sheedy and the Chief Justice's acknowledgement that it was not possible for him, on the basis of written statements and individual interviews, to resolve disputed questions of fact and that to do so would necessitate an inquiry of a nature different from that instituted by him;

noting the reports of the 20 May 1999 and the 24 June 1999 of the Oireachtas Joint Committee on Justice, Equality and Women's Rights made to both Houses of the Oireachtas;

noting that Article 35.2 of the Constitution provides that "all judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law";

recognising that judicial decisions made and judgments delivered can be distinguished by law from the conduct of members of the Judiciary;

acknowledging that it is in the public interest that disputed questions of fact concerning the early release of Mr. Philip Sheedy be resolved;

calls on the Government to enact legislation to establish a specific inquiry, to be chaired by a judge from another jurisdiction, to inquire into the circumstances leading to the early release of Mr. Philip Sheedy and to confer by legislation on such inquiry the power to compel the attendance of witnesses and to hear evidence from all persons it deems appropriate concerning the early release of Mr. Philip Sheedy.

I wish to share my time with Deputy Jim Higgins.

An Leas-Cheann Comhairle:

Is that agreed? Agreed.

Mr. Shatter:

Ann Ryan died on 15 March 1996. She was the wife of John Ryan and they had two young children. On 6 November 1996, by order of the District Court, Philip Sheedy, an architect working for South Dublin County Council, was returned for trial to the Dublin Circuit Criminal Court charged with offences under the Road Traffic Acts relating to the death of Anne Ryan. Criminal proceedings brought against Mr. Sheedy were subsequently adjourned on various occasions to the Dublin Circuit Criminal Court before being listed for arraignment before the then Judge Cyril Kelly on 11 June 1997. On that date Philip Sheedy pleaded guilty to the charge of dangerous driving causing death and to driving a mechanically propelled vehicle in a public place while having drunk alcohol in excess of the legal limit.

Following Philip Sheedy's plea of guilty, Judge Cyril Kelly adjourned the case for sentence until 20 October 1997 and ordered that medical reports and a probation and welfare report be obtained. Philip Sheedy was remanded on continuing bail. On 20 October 1997, Philip Sheedy came before Judge Joseph Matthews for sentencing. The court ordered that he be imprisoned for a period of four years on the charge of dangerous driving causing death and on that charge he was disqualified from holding a driving licence for 12 years. On the charge of driving while under the influence of alcohol, he was disqualified from holding a driving licence for a period of one year.

The court ordered that the four year prison sentence imposed on 20 October 1997 could be reviewed on 20 October 1999. If this order had not been changed, it automatically meant that Philip Sheedy, having served two years' imprisonment, had available to him the possibility of being released when his sentence came to be reviewed on 20 October 1999. This stated review date also, however, ensured that Philip Sheedy would, as a minimum, serve two years of his four year sentence and could not in the intervening period avail of the possibility of an early release from prison should such opportunity arise.

On 6 November 1997, Philip Sheedy's lawyers applied to Judge Matthews to vacate that part of the order made on 20 October 1997 which had designated 20 October 1999 as a review date. In response to this application, the review date was vacated or, to use non legal jargon, it was removed from the court order so there was no longer a date specifically designated by the court for the review of Sheedy's sentence. No appeal of any nature was filed on Philip Sheedy's behalf against the four year sentence imposed by the court.

Just over a year after the imposition of the sentence on Philip Sheedy, on 12 November 1998, his case was relisted in the Dublin Circuit Criminal Court before Judge Cyril Kelly. While it was Judge Kelly to whom the pleas of guilty had been made, Judge Matthews had imposed sentence. Judge Kelly, on 12 November 1998, ordered that the balance of the sentence imposed on 20 October 1997 on Philip Sheedy be suspended on Mr Sheedy's undertaking on his own bond of £100 that he would keep the peace and be of good behaviour for a period of three years.

The initiative to list the Sheedy case before Judge Cyril Kelly did not derive from the actions of the solicitor then acting for Philip Sheedy but was the result of a conversation between the then Supreme Court Judge, Hugh O'Flaherty, and the then Dublin County Registrar, Mr. Michael Quinlan. Following former Supreme Court Judge O'Flaherty mentioning the Sheedy case to Michael Quinlan, Mr. Quinlan contacted the solicitors acting for Mr. Philip Sheedy and informed them that Judge Kelly was awaiting the making of an application relating to Sheedy's sentence to be listed for his court. While Mr. Michael Quinlan and Mr. Philip Sheedy's solicitor, Mr. Michael Staines, have given different versions of the exact exchanges that took place between them, it is clear that Mr. Quinlan initiated the arrangements for the Sheedy case to be listed before Judge Cyril Kelly on 12 November 1998 and that the case would never have been so listed had former Supreme Court Judge O'Flaherty not discussed Sheedy's case with Mr. Michael Quinlan.

The family of the late Ann Ryan accidentally learnt of the early release of Philip Sheedy. They were understandably outraged and the general public was rightly scandalised when the circumstances relating to the early release of Philip Sheedy became known. The Office of the Director of Public Prosecutions denied it had been furnished with any advance notice of the possible reopening of the Sheedy case and brought proceedings in the High Court to quash the order made by Judge Kelly, which had suspended the sentence of Philip Sheedy and resulted in his release. On 25 March 1999, Philip Sheedy, through his lawyers, withdrew his opposition in the High Court to the quashing of the order made by which he was released. As a consequence, the High Court set aside Judge Kelly's order of 12 November 1998 and Mr Philip Sheedy returned to prison.

The manner in which the Philip Sheedy case had been dealt with in our courts resulted in substantial public controversy. On 1 April 1999, the Minister for Justice, Equality and Law Reform informed the Dáil that his Department was conducting an inquiry into what occurred and that officials of his Department had been in contact with the Dublin County Registrar responsible for the Dublin Circuit Court and also with the Office of the Chief State Solicitor. The House was also informed that separate inquiries had been instituted by the Chief Justice.

The circumstances surrounding the relisting of the Philip Sheedy case and Mr. Sheedy's early release in November 1998 were unprecedented. Chief Justice Liam Hamilton, in his report of 14 April 1999 into the affair, detailed the following questions as requiring an answer. First, how and why was the sentence imposed on Philip Sheedy by the court on 20 October 1997 listed for review on 12 November 1998 when the case had been finally dealt with by the order of the Circuit Criminal Court on 6 November 1997 vacating the provision for review of sentence? Second, how did it come to be listed before Judge Cyril Kelly and not Judge Matthews who had made the original order imposing sentence on 20 October 1997? Third, was any notice given to the Chief State Solicitor's Office with regard to either the re-entry or listing of the application or the nature of the application being made on Philip Sheedy's behalf? Fourth, was there any appearance in the court on 12 November 1998 on behalf of the Director of Public Prosecutions? Fifth, was the manner in which the case was dealt with by Judge Kelly and, sixth, was there any involvement by members or a member of the Judiciary in requesting or making arrangements for the listing or re-entry of the case on 12 November 1998?

Prior to publication by the Chief Justice of his report, interviews were undertaken by him with the central persons involved in the affair and written statements obtained from them detailing the nature of their involvement. On the basis of facts either admitted or established Chief Justice Hamilton concluded "that Mr. Justice O'Flaherty's intervention was inappropriate and unwise, that it left his motives and action open to misinterpretation and it was therefore damaging to the administration of justice".

The Chief Justice's conclusions in relation to Judge Cyril Kelly were even more damning. In the brief hearing of just over a minute that had taken place before him on 12 November 1998, Judge Kelly had explained or justified his early release of Philip Sheedy by referring to a psychiatrist's report on the court file. The implication was that some assessment had been undertaken of Mr. Sheedy's mental condition since his sentence to imprisonment which justified his release. The reality, as documented by the Chief Justice, was that no up to date medical or psychological report existed. Even more astonishingly, in response to a statement made by Mr. Sheedy's solicitor to the Chief Justice concerning events that occurred subsequent to Mr. Sheedy's release, Judge Kelly acknowledged that he had met Mr. Sheedy's counsel informally and suggested to him "that he should consider obtaining an up to date medical report", the implication being that such report should thereafter be placed on the Sheedy court file even though Mr. Sheedy had already been released.

Mr. Sheedy's solicitor, Mr. Michael Staines, properly refused to act on the judge's suggestion. The Chief Justice in page 22 of his report states: "whatever the motive for that suggestion may have been, having regard to the fact that the case had concluded in the Circuit Court, it was manifestly improper". To this day, it is not known why Judge Kelly during the brief court hearing of 12 November 1998 made reference to a non-existent psychological report or why, subsequent to the release of Mr. Philip Sheedy, he improperly proposed to Mr. Sheedy's counsel that an updated report be obtained.

In releasing Philip Sheedy at the hearing of 12 November 1998, Judge Kelly heard no submissions either on behalf of the convicted Philip Sheedy or on the State's behalf. Chief Justice Hamilton concluded that "by announcing his decision without allowing either party to make prior submissions concerning the case, the learned trial Judge [that is, Judge Cyril Kelly] deprived himself of any opportunity to learn from proper sources what the proper condition of the accused was". To this day, it is unknown why Judge Cyril Kelly made a decision to release Philip Sheedy without any submission first being made to the court on Philip Sheedy's behalf that he be released or without ensuring that counsel representing the State had an opportunity to address in court whether the State agreed with or opposed Philip Sheedy's early release.

In the context of Judge Matthews still being a sitting member of the Circuit Court, any application made to that court on Philip Sheedy's behalf for early release should have been made to Judge Matthews as the sentencing judge. As the designated sentence review date had in November 1997 been deleted from the original court order made in October 1997, as far as the Dublin Circuit Criminal Court was concerned, the Sheedy case was over. Just as there was no basis for any application being properly made to Judge Matthews to release Philip Sheedy in 1998, there was no basis at all for such application coming before Judge Cyril Kelly.

In response to the Chief Justice's inquiries, the then Judge Kelly expressed the view that it was not an unusual practice for a Circuit Court judge to make orders where another Circuit Court judge had previously made an order in a criminal case previously determined. The President of the Circuit Court and Judge Joseph Matthews disagreed entirely with this view. The Chief Justice in his report concluded that Judge Kelly should not in the circumstances of the Sheedy case have entered on a review of a sentence imposed by one of his colleagues. The question remains unanswered as to why Judge Cyril Kelly undertook such review and why he represented to the Chief Justice that there was nothing extraordinary in his doing so. The Chief Justice concluded that Judge Cyril Kelly having entered on the review of Philip Sheedy's sentence "failed to conduct the case in a manner befitting a judge" and that his "handling of this matter compromised the administration of justice".

Six days after publication of the Chief Justice's report, Judge Hugh O'Flaherty and Judge Cyril Kelly resigned. Following publication of the report into the Sheedy affair by the Department of Justice, Equality and Law Reform, the Dublin County Registrar, Mr. Michael Quinlan, also resigned. Why then should Dáil Éireann further concern itself with this affair? The reason is that the circumstances surrounding the early release of Philip Sheedy seriously undermined the integrity of our criminal justice system. Credence was given to the view that should one break the law and be sentenced to a term of imprisonment, if one has the right contacts and connections, one would not have to complete one's sentence and one would be facilitated by members of the Judiciary in obtaining an early release from pri son. A body blow was delivered to the concept of judicial impartiality and the constitutional principle of equality before the law.

In a constitutional democracy based on the separation of powers, for the Judiciary to maintain public credibility, judges must be seen to be impartial and independent in carrying out their duties. It is crucial that where there are allegations of judicial misconduct, those allegations are properly investigated in so far as is possible for the full facts to become known. With regard to the early release of Philip Sheedy, there remain far too many questions unanswered. The Chief Justice was constrained in the approach he could take in the inquiry that was so speedily and effectively undertaken by him and when it came to determining who was telling the truth in the context of what was said in individual interviews and contained in written statements, he acknowledged:

as is apparent from a consideration of the documents annexed to this Report, a number of disputed questions of fact arise in this case. It is not possible for me on the basis of written statements and individual interviews to resolve these disputed questions of fact, nor is it appropriate that I should attempt to do so. The resolution of disputed questions of fact would necessitate an inquiry of a nature different from that instituted by me wherein the parties involved in such disputed facts would in the interests of fair procedures be entitled to the right of cross examination.

Moreover, paragraph 1.5 of the report of the Department of Justice, Equality and Law Reform into the Sheedy affair sought by the Minister for Justice, Equality and Law Reform states: "We have been able to reach certain conclusions, in relation to the central issues we examined and we believe that one of these is so serious that an immediate report must be made, even if it is the case that the report, taken as a whole, leaves questions unanswered that will, no doubt, be raised in the period ahead."

I have referred to some of the unanswered questions. Questions not yet detailed of substantial importance derive from the statement made by Judge Joseph Matthews to the Chief Justice when it is contrasted with statements made by former Judge Cyril Kelly. In his statement of 5 April, Judge Matthews details a telephone call received by him in his chambers from Judge Kelly on the morning of 20 October 1997 asking him if he would be free to take a plea of guilty case, which turned out to be the Sheedy case, in the lunch recess. He details that Judge Kelly said that counsel on both sides of the case had been to his chambers on various occasions to discuss various aspects of the case and also issues concerning a compensation payment that might be made to a victim. Judge Matthews states that in his telephone call, Judge Kelly expressed the view that "he felt too close to the case and would rather I dealt with it", that is, that Judge Matthews dealt with it. Judge Matthews reports Judge Kelly as saying to him that he "felt it was a suitable case for a suspended sentence".

Judge Matthews records that the Sheedy file was furnished to him and having read that file he formed the view that it could not on any basis be a case for a suspended sentence. He states that he subsequently that day visited Judge Kelly in his chambers and so informed him. Judge Kelly in a response of 13 April documented in the Chief Justice's report mentions that he made contact by telephone with Judge Matthews and asked him to "take a guilty plea in a dangerous driving causing death case", but denies that he had the conversation recounted by Judge Matthews and denies that he had seen counsel on both sides of the case in his chambers on various occasions to discuss aspects of the case and the issues of financial compensation. He also denies that he had said he was too close to the case and preferred that Judge Matthews dealt with it. He further denies that he told Judge Matthews that he believed the case was suitable for a suspended sentence and he does not accept that Judge Matthews came to see him in his chambers.

If it is accepted that Judge Joseph Matthews accurately recollects the events that occurred, a question must be asked as to why Judge Cyril Kelly did not accept Judge Matthews' account of these events. If Judge Cyril Kelly requested Judge Matthews to deal with sentencing in the Sheedy case in 1997 because he, Judge Kelly, was too close to the case, why did Judge Kelly regard it as appropriate to grant the early release of Philip Sheedy 12 months later? If Judge Kelly was familiar with the Sheedy file, as he acknowledges, and if he did not regard himself as too close to the case, why did he transfer the file to Judge Matthews for sentencing in the first place? If Judge Cyril Kelly's account of events is accurate and Judge Matthews' account is not, why would Judge Matthews so misrepresent what occurred?

Shortly after the release of Philip Sheedy, Cyril Kelly was appointed as a Judge of the High Court. It was as a member of the High Court Judiciary that he resigned. Judge Joseph Matthews remains a respected member of the Circuit Court Judiciary and it is in the public interest that a mechanism be put in place to unravel and get to the truth of what occurred in the context of the conflicting accounts given by Judge Matthews and former Judge Kelly. The existence of conflicting and irreconcilable statements relating to events relevant to the original sentencing of Philip Sheedy and the many unanswered questions concerning his early release continue to cast a shadow over the administration of justice in this State.

Article 35.2 of the Constitution provides that "All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law." Our Constitution prescribes a system of separation of powers. It is essential that judicial decisions made and judgments delivered are not open to question by way of independent inquiries conducted by or ordered by the Houses of the Oireachtas or the Government of the day. Decisions made and judgments delivered can be subject to an appellate process and should be open only to review and reversal by the relevant court to which an appeal can be made. However, our law has for long distinguished between judicial decisions made and judgments delivered on the one hand and issues relating to the conduct of members of the Judiciary on the other. Section 21 of the Courts of Justice (District Court) Act, 1946, provides (a) for a mechanism whereby the Minister for Justice may request the Chief Justice to appoint a judge to investigate the condition of health, either physical or mental, of a judge of the District Court or (b) to inquire into the conduct, whether in the execution of his office or otherwise, of a District Court judge, either generally or on a particular occasion.

The Courts (Supplemental Provisions) Act, 1961, also contains provisions in sections 10 and 36 addressing issues of conduct relating to District Court judges. Section 21 of the 1946 Act has been utilised to facilitate the recent inquiry into allegations made against District Court Judge O'Buachalla. The attempt made by the Joint Committee on Justice, Equality, Defence and Women's Rights to investigate the Sheedy affair ran into the sand as a consequence of legal advice given to the committee that it would be unconstitutional for the committee to hold hearings and to ask that former Supreme Court Judge O'Flaherty and former High Court Judge Cyril Kelly come before it to answer questions. This advice was based on the provisions contained in Article 35.2 of the Constitution. However, it is clear that no detailed consideration was given by the committee to the possibility of differentiating between judicial decision-making and judgment delivering as compared to judicial conduct.

It is also clear, even if such a distinction had been made by it, that the Joint Committee on Justice, Equality, Defence and Women's Rights was not equipped to address comprehensively the unanswered questions concerning the Sheedy affair. Even if the committee had not received legal advice that blocked its advancing the issue, little progress could have been made by it as the compellability legislation – even if extended to it – does not apply to members or former members of the Judiciary.

Replying to questions in Dáil Éireann on 20 April 1999 on the published reports into the Sheedy affair, the Minister for Justice, Equality and Law Reform stated "it must be clear to everyone that a tribunal of inquiry is necessary if the disputed facts are to be resolved".

To bring closure to this issue and to provide a forum within which the full story can become known, Fine Gael is calling on the Government to bring before this House without delay legislation to establish a special inquiry specifically into the Sheedy affair, and for such an inquiry to be chaired by a judge appointed from outside the State. We propose that the inquiry be chaired by a judge from outside the State as we believe to ask a current member of the Judiciary to undertake such an inquiry would place him or her in an invidious position. We suggest it be a three person inquiry, that it should be conferred with express powers to compel witnesses and call for documents and that it should be authorised to fully inquire into the circumstances leading to the early release of Philip Sheedy and be given express powers to consider the conduct of members of the Judiciary involved and the reason why they so conducted themselves.

It can be accurately asserted that Article 35.2 places no barrier in the way of legislation providing for such an inquiry or an inquiry investigating the conduct of Judge Cyril Kelly in the context of any dealings between him and Judge Joseph Matthews relating to the Sheedy case; the nature of the hearing that took place before him in the Dublin Circuit Criminal Court on 12 November 1998; whether any other case in the past was similarly dealt with by him in the context of his assertion that the procedure adopted by him was not unusual; and his suggestion to Philip Sheedy's barrister that a new psychiatric report be obtained. The inquiry can essentially seek to ascertain why Judge Cyril Kelly so conducted himself without being at risk of constitutional impropriety.

In relation to the former Supreme Court Judge Hugh O'Flaherty, it is entirely unacceptable that he has made himself available to answer questions in the national media but that to date no investigative forum has been put in place in which he can be questioned concerning his involvement in this affair. It is curious that prior to his resignation from the Supreme Court Mr. O'Flaherty offered to come before the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights and that subsequent to his resignation he refused to do so, citing constitutional reasons. As his involvement, based on his own statements to the Chief Justice, resulted from a street conversation with associates of Philip Sheedy and a subsequent conversation with the county registrar, it is difficult to understand what constitutional difficulties stand in the way of Mr. O'Flaherty answering questions in an appropriate forum on what occurred. There can be no suggestion that his involvement in the Philip Sheedy affair was undertaken in the exercise of a judicial function.

The disciplinary procedures available under the Acts of 1946 and 1961 to investigate allegations of misconduct against district judges were already referred to. In the context of tonight's motion it is also worth noting that the constitutional review body chaired by Dr. T. K. Whitaker, which published its report in 1996, dealt at length with the issue of judicial independence. It was stated that the group was:

of the opinion that such "disciplinary" provisions short of impeachment, as at present apply to the District Court are probably not inconsistent with Article 52 of the Constitution or otherwise unconstitutional.

in the context of the view of the Whitaker committee, if it is accepted there is no constitutional difficulty in investigating allegations of misconduct made against district judges, how can it be suggested that an inquiry to investigate allegations of misconduct made against judges of the Circuit, High or Supreme Court could be unconstitutional? How can it be argued that Article 35.2 could present a barrier of any nature to such an inquiry? It is also in this context worth noting that both the Whitaker committee and the Oireachtas Committee on the Constitution in its report of November 1999 on the courts and the Judiciary propose that to put such considerations beyond doubt, Article 35.2 of the Constitution should be amended to allow for the review of judicial conduct as distinct from judicial decisions. It is worth noting that to date the Government has not seen fit to act on the recommendation made by either the Whitaker committee in 1996 or the Oireachtas Committee on the Constitution in 1999.

The death of Ann Ryan was an appalling tragedy for her husband John, their two young children and all their family. The early release of Philip Sheedy in extraordinary circumstances added to the trauma suffered by the Ryan family and rightly caused public outrage. On a different scale and for different reasons, their involvement in Philip Sheedy's court proceedings was a personal tragedy for both Hugh O'Flaherty and Cyril Kelly. What were up to then distinguished careers on the bench were prematurely and unexpectedly ended. Confronted by the conclusions in the Chief Justice's report and the possibility of impeachment, each rightly concluded that they should resign from judicial office. I can understand that the Dáil again reopening this issue may be a cause of further distress and this I greatly regret. However, it is not acceptable that so many questions remain unanswered. It is not acceptable that we still do not know why Judge Cyril Kelly behaved as he did with regard to the Sheedy case and there remains on public record totally conflicting versions of events relating to the original sentencing of Philip Sheedy in the statements of Judge Joseph Matthews and former Judge Kelly. It is time we learnt the full truth.

It is time to restore public confidence in our justice system. It is time to accept that everyone in public life, including judges, are publicly accountable for the manner in which they conduct themselves in public office. The Minister for Justice, Equality and Law Reform acknowledged in this House on 20 April 1999 that the full truth will only be known as a result of an inquiry into the affair. It is time for him for explain why to date he has not brought proposals before this House on the Government's behalf for such an inquiry to bring closure to the Sheedy affair. He should also explain why to date he has failed to put in place the new disciplinary code for judges promised by him in the Dáil on 20 April immediately following the resignation of Judges O'Flaherty and Kelly. The report into the Sheedy affair prepared by his Department entitled "Avoiding a Repetition" promised the introduction of reforms which the Minister, never slow to praise himself, described as "far reaching, comprehensive and positive". The Minister should explain why one and a half years later, none of these proposals have been implemented. He should explain why reality and his rhetoric have lost touch with each other.

The Minister for Justice in various statements both inside and outside the House and when answering questions on the Sheedy affair expressed grave concerns about what had occurred. The credibility of the Minister's publicly expressed concerned was substantially undermined by the Government's proposal last June to appoint former Supreme Court Judge Hugh O'Flaherty to the European Investment Bank. This proposed appointment appeared to give Government approval to Hugh O'Flaherty's refusal to explain his actions to the Oireachtas joint committee when asked to do so. If the Government believes it is in the public interest that the full truth behind the Sheedy affair be known, it should support the motion I have tabled on behalf of Fine Gael and withdraw the ineffectual and meaningless amendment.

Mr. Higgins

(Mayo): I agree with Deputy Shatter. We are failing in our public responsibilities unless we ensure the most far-reaching constitutional crisis in the history of the State is fully and thoroughly investigated. While the report of the Chief Justice on the Sheedy case is commendable in that it established a sufficient body of facts to warrant the forced resignation of a Supreme Court judge, a High Court judge and a county registrar, it is also true that many aspects of the entire saga have not been dealt with and the report has only scratched the surface. Many of the details of what happened, how it happened and who was involved in the affair have not been uncovered. None of the evidence offered to the Chief Justice for his report, the Chief State Solicitor's office for its report or to the Department of Justice, Equality and Law Reform for its report was taken under oath.

Many of the persons involved in the Sheedy case, either centrally or peripherally, were never interviewed or questioned. As a result, the most serious judicial controversy in the history of the State, a case which goes to the very heart of judicial credibility and the public's faith in a central instrument of the criminal justice system, the courts, is shrouded in mystery and has not been satisfactorily explained, explored or resolved.

As Deputy Shatter stated, the initiative in this matter should not be coming from the Opposition but should have been taken long ago by the Government. However, for reasons best known to it, the Government has abdicated its responsi bility, believing the public interest was sufficiently served by the return of Philip Sheedy to prison and by the forced resignation of three of the individuals centrally involved. The public good will not be satisfactorily served, however, until we establish fully the real reasons that two senior judges, entrusted with the responsibility of enforcing the law of the land, dispensing justice and upholding the Constitution, broke the very laws and flouted the Constitution they were entrusted to uphold. Mr. O'Flaherty's intervention, in the words of the Chief Justice, damaged "the administration of justice". Mr. Kelly's handling of the case "compromised the administration of justice". Both judges, Mr. O'Flaherty, by his personal intervention, and Mr. Kelly, in his hearing and handling of the case, perverted the course of justice. Judges are not above the law. Both judges are clearly guilty of serious criminal offences.

In many other jurisdictions, a police inquiry would have been instituted and charges brought. In this jurisdiction, however, we do things differently. We carry out a limited damage limitation exercise, award handsome pensions to persons whose actions undermined the Constitution and almost brought about a downfall of the Government and offer one of the judges involved a senior executive banking position in Europe.

The motion before the House proposes an investigation be carried out by a judge from another jurisdiction who will have full powers of compellability. Compellability is important because we must ensure the investigation will be comprehensive and conclusive. The Joint Committee on Justice, Equality, Defence and Women's Rights attempted the voluntary route but with no success. Members will recall that Mr. O'Flaherty felt compelled to write to the joint committee, while still a serving Supreme Court judge, offering to make a full statement and answer all questions. However, having resigned from office on threat of impeachment he changed his mind. His letter to the committee dated 5 June 1999 stated that he could not assist the joint committee because, under the Constitution, as a former judge, he is independent and not accountable to the Houses of the Oireachtas or any other institution of the State for his conduct in the exercise of his judicial functions. However, on 21 June this year, in the midst of the controversy regarding his proposed nomination to the European Investment Bank, Mr. O'Flaherty had no difficulty in making himself available for extensive interviews on Today FM and TV3.

In Mr. O'Flaherty's case there never was any question of the independence of the Judiciary being infringed or any constitutional impediment being in place. In his unwarranted interference in the Sheedy case he was not exercising a judicial function. Mr. O'Flaherty, therefore, must be compelled to attend and rendered accountable for the very serious charge of which he stands indicted by the Chief Justice, namely, that he damaged the administration of justice.

In the case of Mr. Kelly, it must be established why a judge of such high standing should uncharacteristically deviate from the standards he so rigorously applied previously. Mr. Kelly must be asked if he knew Mr. Sheedy or Mr. Sheedy's family and who approached him on Mr. Sheedy's behalf in order to influence him to hear a case of which he knew full well he did not have seisin. Mr. Kelly must be asked under oath if there was any contact between himself and Mr. O'Flaherty. He must be asked why he took such an extraordinary and deep personal interest in Mr. Sheedy's welfare. Mr. Kelly must also be asked to explain the difference and contradictions in his version of events and that of Judge Joseph Matthews. He must be asked to explain why he called the case out of sequence and why he pretended to the court that he had an up-to-date psychological report before him when such was not the case. Mr. Kelly must be asked to elaborate on the contact between him and the former county registrar in relation to the wrongful listing of the case.

Mr. Michael Quinlan, former county registrar, in fairness had agreed to make himself available to the joint committee. To some extent he is a victim in the entire affair in that it could be presumed that when approached by a judge of the Supreme Court to list a case he felt compromised and under pressure. This is acknowledged by the Chief Justice's report, where Mr. Hamilton 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 relisted." Nevertheless Mr. Quinlan knew he was breaking court rules.

Mr. Quinlan's evidence could well be crucial in unveiling some of the unexplored aspects of the case. What is of particular significance is the letter of 12 April 1999 from Mr. Michael Staines, solicitor for Sheedy, to the Chief Justice. In the letter Mr. Staines recounts the telephone call he received from Mr. Quinlan querying when he would make application for a review of sentence for Philip Sheedy and that Judge Cyril Kelly was awaiting the application. Mr. Staines goes on to recall "I asked Michael Quinlan what this was all about and he indicated to me, you don't want to know." It is quite obvious that this comment has considerable significance. Does it relate to the approach he had received from Supreme Court Judge O'Flaherty or his contact with Judge Cyril Kelly or does it also relate to somebody or something else? What must be established, therefore, is what Mr. Quinlan meant by the comment and who else had made contact with him regarding the listing of the case.

There is an obvious requirement to investigate the involvement of the other key personalities in the affair. No investigation has been carried out into the alleged role of Mr. Ken Anderson. All we have is Mr. O'Flaherty's version of events in which he states "sometime late last year I casually encountered a son of a family friend 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". What we do not have is the version of Mr. Anderson or Mr. Sheedy's sister of this chance encounter.

There is also a need to establish the full extent of the role of Mr. Philip Sheedy Senior. One can certainly understand a parent's desire to have his son released from prison at the earliest possible stage. The new inquiry will need to hear from Mr. Sheedy Senior regarding the contacts he made with various persons on his son's behalf.

The absence of the representative of the Chief State Solicitor's office from the court when the Sheedy case was called is another of the unsolved mysteries surrounding this case. The Chief State Solicitor was represented on the day by a Ms Eileen Creedon. In his letter to the Chief Justice dated 6 April 1999 the Chief State Solicitor, Michael A. Buckley, states "Ms Creedon was called out of court to answer the telephone. While Ms Creedon was absent at the telephone, item number 19 (the Sheedy case) was called by Judge Kelly." The case was called out of sequence, lasted little more than one minute or so and everything was over and Mr. Sheedy released by the time Ms Creedon returned. What has not been established is who telephoned Ms Creedon, whether the telephone call happened to be – depending on one's perspective – an unhappy or happy coincidence of timing or whether it was a deliberate decoy. The investigation will need to hear from Ms Creedon the circumstances surrounding the telephone call.

Also important to the new investigation will be Mr. Brian McGreary, law clerk in the Chief State Solicitor's Office, Mr. P. J. Ó Braonáin of the Central Criminal Court, Mr. Brendan O'Donnell of the Circuit Criminal office, Mr. Michael O'Donnell, registrar at the Circuit Criminal Court, and Mr. Sheedy's original legal team, Mr. Luigi Rea, and Mr. Michael Staines, solicitor. It goes without saying that the new inquiry will be most interested in what the accused, Mr. Philip Sheedy, will have to say.

One of the fascinating aspects of the Sheedy case was the number of politicians, all members of Fianna Fáil, who took an interest in his welfare and had different levels of involvement. We recall that the Sheedy affair almost brought about the downfall of the Fianna Fáil-Progressive Democrats Government and precipitated a stand-off between members of the Administration for a number of hours. The Taoiseach must indicate why he made representations on Mr. Sheedy's behalf. Former Deputy Jim Tunney and Deputy Brian Lenihan must also state the level of their involvement in this matter. We must also investigate the role of former Fianna Fáil councillor, Joe Burke, who had an intense business relationship with Mr. Sheedy.

All aspects of and everyone involved in this case must be thoroughly investigated. We have a public duty to ensure that this happens.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue):

I move amendment No. 1:

To delete all words after "Dáil Éireann" and substitute the following:

–notes the reports of the three separate inquiries in connection with the early release from prison of Mr. 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's office;

–notes the reports of the Joint Committee on Justice, Equality, Defence and Women's Rights in relation to this matter;

–notes the report of the All-Party Oireachtas Committee on the Constitution in respect of the courts and Judiciary;

–looks forward to considering the forthcoming report of the judicial committee which is examining the question of judicial conduct,

and requests the Government to continue to examine the constitutional, legislative and other initiatives which may be required in relation to the matters dealt with in these reports.

There are two distinct elements to the set of circumstances which has become known as the Sheedy affair. The first, the one which gives rise to this debate, is the public interest element. There is no doubt that this case raised serious questions about our judicial system and judicial accountability. Lessons must be learned from what happened and changes need to be made on foot of it. This is being done, as I will explain in more detail later.

There is, however, a second element to the Sheedy case, that is, the human element. A number of families have been profoundly affected by what happened in this case. First and foremost, there is the Ryan family who were most grievously damaged by the loss of a wife and mother. None of us should ever forget that in the midst of all the comment and controversy theirs has been the gravest and most serious loss of all. Then there are the two judges and court official whose careers were ended arising from the case. While we all fully recognise that it was necessary to examine and debate the issues of public policy which arose from the Sheedy case, we must be mindful of the trauma which all these families have experienced and avoid, to the maximum extent possible, anything which could serve only to add to their suffering.

This was one of the issues to which the Oireachtas joint committee adverted. Deputies opposite will recognise the validity of the point. I could understand their wish to proceed to a further inquiry – even at the expense of further trauma for the families involved – if there was any reason to believe that such an inquiry would throw any more light on the motives of the parties involved than all of the inquiries which have taken place to date, but even if there were some motives which were not disclosed to the Chief Justice or the other inquiries that took place, what likelihood is there that matters which remained undisclosed throughout the entire period since the Sheedy case first came to public attention would now suddenly be made known?

In this context, the Oireachtas joint committee reported on 24 June 1999 and stated at paragraph 36 that, unfortunately, it found itself unable to inquire further into the circumstances surrounding the early release from prison of Mr. Sheedy for the legal, constitutional and other reasons already stated. The committee had the benefit and services of a very experienced senior counsel. The comments adverted to by Deputy Shatter were made by me on 20 April 1999. This should have been pointed out by him.

The point is that we have already been through a varied and extensive inquiry process, one conducted by the most senior member of the Judiciary, and we would need to have some tangible evidence that specific matters were not disclosed by witnesses and some reason to hope that a further inquiry would throw some further light on the situation before we could justify the initiation of what undoubtedly would be a very expensive process which could run to millions of pounds, all paid for by the taxpayer. Nobody could reasonably expect the taxpayer to fund an inquiry on something approaching a wing and a prayer basis that information which eluded previous inquiries would somehow emerge on this occasion. There would also be the prospect of court challenges, given the nature of the type of inquiry envisaged. An expensive and time consuming process of this kind might still be justified if it were the case that the judges concerned were still serving on the bench, but, as we are all aware, that is not the case.

All the available facts surrounding this case have been outlined to the House by me on several occasions over the past 18 months and are in the public domain. My colleagues and I have made a great many statements to the House in relation to the Sheedy case. The issues raised have all been vigorously and fully pursued. There were three separate inquiries and all their findings have been published. Even if we all agreed that it would now be sensible and justifiable to hold another inquiry – the Government's clear view is that it is not justifiable – I am very surprised at the suggestion that it be conducted by a judge from another jurisdiction.

It is relevant to refer back to comments made by Deputy Higgins in the House on 20 April 1999 in this regard. He said "The Hamilton report shows clearly that the Judiciary has the capacity to be incisively and piercingly self-critical". The Chief Justice in his report expressed it as his opinion that the actions of one judge damaged the administration of justice. In the other case, the judge's actions, according to the Chief Justice, compromised the administration of justice. The two judges subsequently resigned.

Against that background, why do Deputies opposite now believe the truth will not be established unless we get a foreign judge to probe the matter? While it can hardly have been intended, their proposal to engage a foreign judge is open to the interpretation that among our own Judiciary, one of the main organs of the State, there is not a single judge capable of conducting this inquiry in an independent and impartial way. I do not want to labour this point nor do I want to turn this debate into a political point scoring exercise, but the proposers of the motion should make it clear that they did not intend any slight on the entire Irish bench.

Turning to the original motion, the Government has not shirked for one moment the responsibility of instituting public inquiries when the situation has demanded it. We have acted in this way regardless of the cost factor or the longevity factor because we foresaw the possibility of an end result. In this case, on the basis of all the information now available, there is no realistic basis for expecting that an inquiry based on legislation as yet unspecified would add to the information already obtained from all the people involved, following no less than three previous inquiries and reports and a further report by the joint Oireachtas committee.

Under the Fine Gael motion the Government would be required to draft complex legislation which, by its very nature, would raise difficult constitutional issues. We would then be obliged to allocate scarce Oireachtas time for the passage of the legislation. Finally, we would embark on an inquiry which would have no realistic prospect of adding to what we already know from all the information available. There is no evidence – at least none of which I am aware – to suggest that there is any extra information available and the four reports to which I referred pointed very clearly to that conclusion. The Government has performed its duty in that regard and will move on to implementing change in the system where this is required.

I strongly reject any suggestion that the Government's response to this matter has been lacking. The Government acted promptly and correctly. All the facts known to the Government were made known to the House on the numerous occasions on which this matter was debated last year. The reports show that the inquiries were extensive from the moment I was first informed of the case.

It is useful to dwell on certain aspects of the Oireachtas joint committee report. On the question of a parliamentary inquiry, the committee anticipated serious difficulties in attempting to define the concept of judicial functions. It concluded that any further inquiries in this area would enter uncharted constitutional terrain fraught with legal difficulty and the virtual certainty of a legal challenge. The committee also looked at the possibilities of establishing a tribunal of inquiry under the Tribunal of Inquiry (Evidence) Acts. It saw similar difficulties in this approach, particularly as regards the issue of the chairmanship of such a tribunal. While the prospect of a judge from another jurisdiction was mentioned as a possible solution, the committee concluded that such an inquiry would find itself entering the same uncharted constitutional terrain with the same legal difficulties. It went on to conclude – this is important because the committee reported in June 1999 – that a tribunal of inquiry would stand little prospect of bringing matters to a satisfactory conclusion. That was the view of the committee. I, therefore, pose the question, why—

Mr. Howlin:

Will the Minister give way?

Mr. O'Donoghue:

I do not have much time.

An Leas-Cheann Comhairle:

The Minister does not wish to give way.

Mr. Howlin:

A decision by vote of the committee.

An Leas-Cheann Comhairle:

The Deputy should allow the Minister to continue.

Mr. Howlin:

He should not mislead the House.

An Leas-Cheann Comhairle:

The Deputy will have an opportunity in 20 minutes to make his point.

Mr. O'Donoghue:

I was not a member of the committee concerned.

Mr. Howlin:

Then the Minister should not quote from it.

Mr. O'Donoghue:

I am stating what the conclusions of the committee were. Its conclusions are fair.

Mr. Howlin:

Voted through.

Mr. Shatter:

By a majority of Fianna Fáil members.

Mr. O'Donoghue:

It appears that they should be noted. Members on the benches opposite have said that many questions remain unanswered and questioned what the Government will do to resolve the matter. I am not aware of any mechanism within the law which would guarantee to all and sundry all the answers to all the questions that could be posed about this or any other set of circumstances of its kind. The fact that questions remain unanswered does not, in itself, provide justification for another inquiry as there would also have to be some grounds for believing that such a further inquiry would achieve results which eluded previous inquiries. I am not aware of any such grounds.

Mr. Justice Hamilton's report outlines the facts as he discovered them. As we are aware, he brought forward his conclusions on the undisputed facts and indicated that his inquiry could not go further. My Department's inquiry also set out the facts that it was able to establish. All three individuals involved have categorically stated that they did nothing improper. There is no suggestion of motivation by personal gain or reward. I cannot go further than this for the simple reason that I am no more in a position to go behind what the individuals have said by way of explanation for their actions than anybody else inside or outside the House.

All in all, there seems to be no doubt that the only right and sensible course at this stage is to look forward. From the very beginning the Government made it crystal clear that its priority was to ensure something like this would not happen again and that is the basis of the Government motion. Our strategy has been simply to act on the recommendations or the points raised in the various reports which have already been completed.

The Government has been engaged in bringing forward a comprehensive programme of change and reform in the system to ensure that, as far as possible, we will never have a recurrence of this type of event. To begin with, the issue of judicial conduct is something which the Government, in consultation with the Judiciary, is committed to fully examining. As the House is aware, we now have the benefit of the work of the all-party committee on this matter. I am sure that on all sides of the House there is agreement on the need for change in this area. In essence, the position is that there is only one form of disciplinary action for stated misbehaviour by a member of the Judiciary, which is in effect impeachment. It is an all or nothing situation which has its own constitutional and legal difficulties as far as the Oireachtas is concerned in terms of parliamentary procedure.

The all-party report on the Constitution examined many issues, including the appointment and removal of judges and judicial conduct and ethics. It also deals with questions such as the judicial review of the constitutionality of legislation and the constitutionality of Bills and laws and related matters. The report covers many areas of public life and its recommendations and conclusions in respect of the Constitution have implications for all Departments. The Government will, therefore, carefully consider this report in that broad context and in tandem with the recommendations contained in other reports from the all-party committee.

With regard to the matters relating to the Judiciary which are covered in the report, I have completed a preliminary examination of the report and very much welcome the contribution it has made to the debate on these questions. It is important to acknowledge that we have all been obliged to rethink our positions in relation to the crucial issue of judicial conduct. The Judiciary has not been silent on this matter and only recently the Chief Justice indicated that in his view, the current structures for dealing with this issue were inadequate. He went on to say there is a compelling case that there should be some form of body which would be able to adopt different remedies depending on the precise circumstances which have given rise to some complaint or concern about members of the Judiciary. This is a very positive message which we should take on board on all sides of the House.

The Chief Justice also referred to the reputation of the Judiciary which he considered stood very high. He felt that people's view of the Judiciary was not shaped by an unusual event such as the Sheedy case but by what actually happens in the courts throughout the country every day. I concur with that view. My guiding principle is to ensure that the service provided in our courts, in all parts of the country, is efficient, effective and beyond reproach. I will refer later to the initiatives which we have taken in that regard.

The House will be aware that the judicial committee established in response to the Sixth Report of the Working Group on a Courts Commission is also currently examining the question of judicial conduct and ethics with a view to publishing a separate report. I look forward to receiving that report and using the work already completed by the all-party committee. The Government will be in a position to finalise its consideration of all the constitutional and other issues involved in this important area.

The committee has considered the position in other jurisdictions and has consulted me, the Bar Council, the Law Society, academics and others; it will also receive submissions from interested bodies. Furthermore, it will advise on and prepare the way for the establishment of a judicial body which would contribute to high standards of judicial conduct and establish a system for the handling of complaints relating to such conduct. It will do other preparatory work, including that relating to judicial standards and ethics, and will consider matters which have arisen since the sixth report was finalised in November 1998.

All these matters raise serious and complex issues to which the Ceann Comhairle has alluded in correspondence with other party leaders. There is the question of fair procedures in relation to the impeachment process as set down in Article 35.4 of the Constitution. In addition, the role of the joint committee is not clear in matters of this nature. In response to the views expressed by the Ceann Comhairle, the Government has moved to try to establish some clarity in relation to dealing with crises of this nature.

The report of my Department made a number of 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. These recommendations dealt with issues such as the performance of duties by court staff, judicial conduct and ethics, the method of appointment of county registrars, the assignment of cases to particular judges, court rules and the formal transfer of responsibility for the administration of the Courts Service to the new Courts Board. Some of these recommendations have already been implemented and other recommendations will be the subject of proposals to be brought before Government in due course.

I have referred to the issue of judicial conduct and ethics and the work that has been carried out in that regard. Apart from that, in terms of bringing about real change, a most important milestone was achieved when I established the Courts Service one year ago. That service is up and running and is, I am glad to say, showing itself to be a considerable success and a driver of much needed change. It is achieving its aim, which is the provision of an efficient, effective and accountable service to judges, practitioners, court staff, and, most importantly, the users of the courts system. This is the most radical reform of court administration since the foundation of the State.

The statutory framework of the Courts Service establishes clear lines of accountability, responsibility and transparency. Under the Court Service Act, 1998, responsibility for the management of the courts system is now conferred on the Courts Service while political accountability for the activities of the service will continue to rest with the Minister for Justice, Equality and Law Reform. This is as it should be. The Government, through the major investment programme in both information systems and buildings, has demonstrated its commitment to ensure that the Courts Service will have the necessary resources to discharge its responsibilities and at the same time support the judicial system.

It is fair to say that the system which existed heretofore may have been sufficient in the past but was no longer adequate to meet the demands arising from the volume of business now coming before our courts. Nor was it equipped to meet the kind of public expectations which are now faced by all major publicly funded services. The establishment of the Courts Service has centralised the financial management and administration of the courts in a unified system which will focus on the provision of an efficient, effective and user friendly service capable of meeting the needs of modern society. It will ensure that the changes, which are required to improve access to the courts and to respond to the needs of all court users, will be made promptly.

Turning to the question of the integrity of court officials, the role of officials in processing court business remains an important issue for the Courts Service. The service is committed to applying principles of equal treatment and equal consideration in all dealings concerning court business. Particular attention has been paid to this issue in the course of training programmes for new staff joining the service and newly appointed clerks in charge who have specific responsibilities in overseeing junior staff and liaising with members of the Judiciary on listing and other court business management.

The commitment of the Courts Service to enshrining the requisite principles of equality, fairness and integrity in its operations will be reinforced in the forthcoming launch of its first strategic plan. This plan will set out key objectives of the service over the next three years and the strategies to achieve them. I understand that the experience gained in the course of this case has greatly informed the service in reviewing its practices and procedures and in setting appropriate guiding principles and values for application in pursuit of its remit. In this regard the service is currently preparing a code of conduct for its staff. I look forward to receiving the first Courts Service strategic plan later this month and I welcome the opportunity this affords to address the issue of professional standards and quality service to which the Courts Service is committed in administering court operations.

The appointment of county registrars is now made with the aid of a system of open public competition following the establishment by me of an appointments advisory board. Three such appointments have been made in the last year through that system. The matters relating to the assignment of cases to judges and the procedures in the criminal courts have been looked at by the Committee on Court Practice and Procedure. Its report is being examined by my Department. On the question of the transfer of the Criminal Solicitor Service from the Office of the Office of the Chief State Solicitor to the direct control of the Director of Public Prosecutions as mentioned in the report of the Chief State Solicitor into the Sheedy affair, last year the public prosecution system study report recommended this approach and the Government has accepted that it is the right course to follow. Discussions are new continuing between all the interested parties with a view to the early implementation of this important initiative.

Nobody can afford to underestimate the importance of the issues raised in this debate. They are matters of fundamental importance to the body politic and as Minister for Justice, Equality and Law Reform, I will ensure that they remain top of my Department's agenda. Accordingly, using as a basis all the reports that have gone before and the work which has yet to be completed, the Government will consider all constitutional, legislative, administrative or other initiatives which can help us to secure what we all wish to copperfasten, that is, the complete integrity of our criminal justice system. The Government has made significant progress in arriving at that result over the past year. There is still some work to be done but we have established a firm foundation for the completion of our task.

In opposing the motion, I am not questioning the sincerity of those who proposed it. While there is a view that the Sheedy affair, so-called, is being kept alive for motives which are unworthy – some would say that the motive is purely political – I do not wish to bring this important debate down to the level to which it would undoubtedly descend if I were to base my opposition on that proposition. For the avoidance of any doubt on the matter, I emphasise that neither I nor the Government is aware of any basis for suggesting or implying that what happened in this case was the result of political interference or political favouritism in any manner, shape or form from Deputies on any side of the House.

I oppose the motion, therefore, not for any narrow political reasons but simply because the Government genuinely and honestly believes that the setting up of an inquiry of the kind envisaged, whether chaired by an Irish or non-Irish judge, would be extremely unlikely to uncover facts or motives so far undisclosed in the course of all the other inquiries which have taken place, one of these inquiries having been conducted by the State's most senior judge. The Government could not support the setting up of what would undoubtedly be a very expensive process with no realistic prospect of producing benefit for anybody, apart, perhaps for members of the legal profession.

Deputy Shatter referred to the Government's proposed appointment of the former Mr. Justice O'Flaherty as a member of the European Investment Bank. He will recall that the Green Party announced its intention to nominate economist, Mr. Richard Douthwaite, for the position of vice-president of the European Investment Bank. Fine Gael stated at the time that it would support this appointment and that it would, in fact, contact the European People's Party Group in the European Parliament to seek its support for the nomination. The Leader of the Opposition, Deputy Bruton, stated that Mr. Douthwaite's credentials would enhance Ireland's standing in Europe. In this regard, it would perhaps be somewhat instructive to ascertain what precisely Mr. Douthwaite's credentials are. I understand he is a radical left-wing writer, economist and environmentalist and I have no doubt that his views would surprise many traditional Fine Gael voters.

In a recent essay entitled "The Best Way There", Mr. Douthwaite predicted that:

Neither the present generation nor the next are likely to accept that big differences between rich and poor are the will of God. Consequently, the Marxist view is certain to re-emerge.

In pursuit of an ideal economic system, Mr. Douthwaite advocates equality and sustainability as the common ground on which reds and greens can unite. It is simply the best way. I have no doubt that Deputies Higgins and Shatter would fully endorse those sentiments.

Mr. Higgins

(Mayo): Mr. Douthwaite is a constituent of mine.

Mr. O'Donoghue:

Mr. Douthwaite is one of a rare breed of economists opposed to economic growth. A new edition of his book The Growth Illusion advances the basic argument that economic growth is damaging rather than beneficial.

Mr. Howlin:

Is this relevant?

Mr. O'Donoghue:

In his book, Mr. Douthwaite seeks to demonstrate why economic growth is a prescription for disaster.

Mr. Shatter:

The Minister has strayed some distance from the possibility of an inquiry into the Sheedy affair. Will we hear Fianna Fáil's policy on agriculture next?

Mr. O'Donoghue:

Mr. Douthwaite states that seven years ago when the first edition of the book was published, most people thought growth was beneficial but many now view it as a regrettable necessity to be endured because it seems to be the only way to maintain a high level of employment. He further states that he was unable to find a current quotation from any national leader wholeheartedly supporting growth, with the exception of Bertie Ahern.

In spite of the advances which have been made in terms of quality of life in this country, especially since 1987 with the birth of social partnership, Mr. Douthwaite, in an article published in the Anthology of Green Economics, writes "unfortunately, the wrong sort of economic growth is the type we have largely been getting for at least 20 years.". In his book, The Growth Illusion, he even welcomes unemployment for its economic value.

Mr. Shatter:

Will the Minister give way for a question?

Mr. O'Donoghue:

No, I did not interrupt the Deputy's contribution.

Mr. Howlin:

Waffle on.

Mr. Shatter:

The Minister's contributions are becoming increasingly bizarre.

An Ceann Comhairle:

The Deputy will have his right of reply.

Mr. O'Donoghue:

I am entitled to finish my contribution. The Government's position on this issue has been made perfectly clear. It was not I but Deputy Shatter who raised the issue of the European Investment Bank. I am, therefore, entitled to refer to the person his party decided to support for the position of vice-president. That is fair game. I am not being personal but am merely outlining Mr. Douthwaite's position on various issues.

Mr. Shatter:

The Minister knows more about Mr. Douthwaite than about Mr. Sheedy's early release by former Mr. Justice Kelly.

Mr. O'Donoghue:

Mr. Douthwaite's book explores the Philip's Curve and hypothesises that by maintaining a certain level of unemployment, it might be possible to control inflation. On international trade, Mr. Douthwaite writes:

The gains from trade are largely a myth fostered by those companies and countries in strong trading positions which stand to gain from bigger markets. International free trade inescapably leads to a levelling down. It means salaries and wages will tend to converge at Third World levels and social security provisions in industrial countries will have to be cut.

There is little point in my continuing to read out further quotes. Members of the Opposition have called into question the Government's response to issues surrounding the Sheedy controversy and other events and I am entitled to seriously question its judgment in matters of public policy by referring to its decision last July to support the Green Party nomination for the position of vice-president of the European Investment Bank.

Mr. Shatter:

At least Mr. Douthwaite did not attempt to subvert the criminal justice system.

Mr. Higgins

(Mayo): What about Mrs. Annie Ryan?

Mr. O'Donoghue:

The famed Mr. Douthwaite has stated that economic growth is a prescription for disaster.

Mr. Shatter:

Has the Minister considered a career in stand-up comedy? This is a serious issue and he is engaging in political slapstick.

An Ceann Comhairle:

The Deputy should allow the Minister to continue; he will have his opportunity to reply.

Mr. O'Donoghue:

The opinion that economic growth is a prescription for disaster is hardly a policy which would benefit this country. Mr. Douthwaite states that through the maintenance of a certain level of unemployment, it might be possible to control inflation.

Mr. Shatter:

Does the Minister want to carry out an inquiry into Mr. Douthwaite?

Mr. O'Donoghue:

Mr. Douthwaite has also put on record his opposition to a European currency, hardly a policy to be followed by a prospective vice-president of the European Investment Bank. The Opposition might wish to consider that.

Mr. Shatter:

The Minister should join Equity.

Mr. Davern:

Deputy Higgins is attempting to get the Green vote out of Westport.

Mr. O'Donoghue:

I find it very difficult to take any criticism levelled at this Government seriously when it is clear that Fine Gael was prepared to support a candidate for such an important post without having carried out so much as a scintilla of critical evaluation of his economic policies. I am, however, prepared to give them the benefit of the doubt.

Mr. Shatter:

The Minister was prepared to support a candidate who was threatened with impeachment.

Mr. Davern:

Deputy Shatter should not embarrass Deputy Higgins.

Mr. O'Donoghue:

The Deputies cannot expect me to take their criticism seriously when Fine Gael was not prepared to carry out a critical evaluation on a prospective candidate for such an important post. A cynic would be forgiven for thinking that Fine Gael's concern was not really about the EIB position at all.

Mr. Shatter:

Nobody will take the Minister seriously after that contribution.

Mr. Howlin:

The motion tabled by the Fine Gael party is of significant importance as it relates to a matter which caused extraordinary tidal waves in the legal profession and this country's judicial system. It also caused huge uproar in the body politic and brought politics into potentially direct conflict with the Judiciary for the first time in the history of the State. We were faced with a potential constitutional crisis and with the threat of impeachment, by a sovereign Government, of one of the most senior judicial personages in this country.

All sides have acknowledged that this extremely important issue is based on human tragedy, namely the tragic death of Mrs. Ann Ryan, the inordinate pain which befell her family and the ripples of pain that spread from that to virtually every other person who was touched by this appalling saga. The response we have had from the Minister tonight, in seeking to reduce this most serious issue to some form of political pantomime, is disgraceful.

Mr. Shatter:

Hear, hear.

Mr. O'Donoghue:

That is nonsense.

Mr. Howlin:

It is not the first time we have had that from the Minister. During a Private Members' debate on the Omagh bombing, another appalling tragedy and a serious matter, when the Minister could not be present, which I accept, his Minister of State came to the House and insulted it by reading a Second Stage script on legislation enacted two years ago. At least the Minister of State had the good grace to recognise that position was intolerable and she terminated her speech early. Tonight the Minister has not addressed this most serious issue with the gravity and seriousness it demands and warrants from him as the person responsible for maintaining public confidence in the administration of justice and the judicial system. I say this sincerely because I expected more from the Minister.

That there are a plethora of unanswered questions surrounding what is called the Sheedy saga is clear to everybody. Acres of newsprint have been used listing those questions, some of which were again listed by both Fine Gael spokespersons who have contributed to the debate, namely, Deputies Shatter and Jim Higgins. There are real and fundamental questions which cannot be allowed to glide into the firmament until they disappear.

The attitude of the Minister and the Fianna Fáil Party to this issue from the outset has been extraordinary. Tonight the Minister told the House that further inquiries might be justified if the judges concerned were still on the bench. The argument is that have no questions to answer, that if justice is compromised and mechanisms are faulty no further investigation is required if they resign; that nobody else can be called to account or explain the procedures which led to the threat of impeachment and that all is hunky-dory because they resigned. Why do we have a constitutional right to impeach if people can simply forestall all further examination and questioning by a simple mechanism of resignation? It is wholly unacceptable and wrong.

The Minister said in his concluding remarks, before he embarked upon some sort of financial pantomime that the reason the Government decided to amend the motion was that it was unlikely to get further facts. On the face of it, if the Minister believes that then it is a tenable reason to say this course of action may not be the best. However, is he putting forward an alternative or is he simply following a pattern of Fianna Fáil decisions on this issue which determines that they do not want to find out any more? That suspicion must now be real in the minds of those listening to the Minister tonight and those who have observed the pattern of Fianna Fáil action on this issue from the outset.

The Minister was quite disingenuous in saying we have an all-party agreement in relation to the report of the Oireachtas committee. I favoured a judicial inquiry at the committee, as did my Fine Gael colleagues, but we were a minority on the committee. The Minister omitted to put that fact on the record of the House. I took this position not because I was convinced we would get to the full truth through that mechanism, but because I was determined to find a mechanism to get to the truth. The Minister has a particular responsibility to address the net issues which have caused deep disquiet in the body politic. If that lesson has not yet impacted on the Minister, then it has impacted on the Taoiseach, having listened to him answer questions and on the Order of Business today. The Taoiseach realised when he tried to promote the former judge, Mr. O'Flaherty, to the vice-presidency of the European Investment Bank, how outrageous a proposition it was and the regard the public had for it, coming as it did less than a year after the Government proposed, suggested or threatened the judge's impeachment.

The Minister knows there was an all-party view to seek to get at the full truth of this affair, to seek to answer all the questions, which I will not take up time by listing but which have been listed in the acres of newsprint, including in the Sunday Independent and The Irish Times. That these matters should be left unanswered because there is no suitable mechanism is not an appropriate or acceptable response.

The all-party committee took advice from senior counsel, as the Minister has acknowledged. Six suggestions were put and examined by the committee. The first was that we would embark upon an informal inquiry, although the weakness of that was that we had no powers to compel. However, we did seek to invite the principals to give evidence to the committee. Mr. O'Flaherty's initial response to the committee in a letter of 16 April 1999, addressed to the then chairman of the justice committee, Deputy Eoin Ryan, now Minister of State, stated:

I wish to take this, the earliest opportunity, to express my deep regret for my own inappropriate and unwise action. Despite my humanitarian motivation, which the Chief Justice has very fairly acknowledged, I accept that this action has left my position open to misinterpretation and in that way damaged the administration of justice.

In two subsequent interviews given to selected elements of the media Mr. O'Flaherty resiled entirely from this position. He said:

I am now concerned to fully explain my position, especially in the light of the many aspects of the case new to me which the Chief Justice's report has elicited. I do this in an attempt to dispel as far as possible the doubt and the suspicion which has accumulated around the Sheedy case in the interests of the community, justice and in my own interests. To that end, and in view of the widespread concern and many questions surrounding the case [these are the words of Mr. O'Flaherty] it is thought appropriate to make a statement to the committee on justice, equality and women's affairs and to answer any and all questions its members may raise.

Yet it was subsequently found impossible for him to come – he found it unconstitutional to come before the committee.

Earlier this year I sought to have a fresh invitation issued to Mr. O'Flaherty to come before the committee informally and voluntarily to exercise the views he expressed, to set the record straight and to answer any and all questions which members of the committee may raise.

The Fianna Fáil members of the committee voted it down in an amendment to my resolution dated 27 June 2000. My resolution was to invite Mr. O'Flaherty voluntarily to come and explain all the unanswered questions. Two of the Fianna Fáil members of the committee, Senator Denis O'Donovan and Deputy Marian McGennis, sponsored an amendment to basically delete all words involved and substitute a reaffirmation of the previous report. Therefore, the prospect of inviting Mr. O'Flaherty to exercise his wish to set the record straight was killed off by Fianna Fáil. Why did the two members, acting as I understand at the behest of the Government Whip, make that decision, whip everybody in to vote and not even allow an invitation to go out to Mr. O'Flaherty to come and explain the unanswered questions? If the Minister acknowledges, as I thought he did, that there are unanswered questions, and certainly the Taoiseach said in his interview on Today FM there were unanswered questions, where is the harm in inviting the principals in to begin to explain the litany of actions that resulted in such a damaging impact on the administration of justice? I do not understand why Fianna Fáil took the stand it did. Certainly, it is not in the interests of public confidence in the judicial system or in understanding fully who exactly was involved in the sequence of events that led to the sorry saga now known as the Sheedy affair.

Other options were looked at in relation to answering those questions which are acknowledged to be outstanding. The committee looked at the option to seek powers to send for persons, papers and records. Unfortunately, it appears that no powers could be given to compel judges to come before the committee in any event. That is a clear flaw in the 1997 compellability of witnesses legislation. A third option presented was to amend the 1997 Act to include judges acting outside their constitutionally preserved judicial function – a point made rather well by Deputy Shatter. A fourth suggestion was a constitutional amendment to include judicial functions into the purview of the committee. All of these are fraught with difficulty. Most of us on the committee wanted to preserve the constitutional independence of judges to act judicially. It seems to me and, I think, to the majority of the members of the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights that it cannot be right that any public servant – judges are ultimately public servants – once appointed can drift into an untouchable state where even if they act in a peculiar way they are not amenable to questioning and where the only sanction available under the Constitution is the nuclear button or impeachment. Even the impeachment process is not prescribed by law. It is a deficiency that should be addressed in a calmer time so that should a threat of impeachment need to be acted upon the framework for activating it would be in place.

In this age of transparency when every public servant would be required to explain his or her actions – it is a good thing in their own interests to be able to do that – judges should not only have that responsibility but that facility. It was clear that Mr. Justice Matthews would have been very anxious to explain his role in all of this.

The fifth avenue of inquiry the committee looked at was the establishment of a tribunal of inquiry under the 1921 Act. Although I favoured that as the most acceptable of the options at that time, there may well be a difficulty in summoning judges to account for what can be classified as judicial functions even at a tribunal of inquiry, although it is my understanding that judicial functioning is quite understood in the law as exercising those functions that could only be done by a judge and they are quite narrow in legal understanding.

The last option looked at was to ask the Chief Justice to recommence his investigation. They were the avenues that presented themselves to us and our legal advisers to explore further the truth. We did not manage to bring the issue further. It is frustrating for every member of the committee that there are unanswered questions that the public and certainly those involved in the running of the administration of the courts require to be answered, and we have no mechanism to do it.

This issue arose again after a period of being placed on the back burner with the extraordinary attempt by the Government to appoint Mr. Justice Hugh O'Flaherty to the vice-presidency of the European Investment Bank. When the issue was raised again many of us were determined that the matter could not be closed down with those questions unanswered for a second time. That is the reason I sought to use the committee itself as the vehicle to address those unanswered questions by invitation in the first instance to see if that could be responded to by all the participants. That was closed down yet again by a vote of the Fianna Fáil members of the committee which I regard as inexplicable to this day.

I commenced by saying this is a narrow issue in the sense that it relates to one series of sad and dreadful events but it has opened a vista that is much more general and important in its wider application, that is public accountability by the Judiciary. It is my considered view now that it is not good enough to allow the oversight of the Judiciary to lie exclusively in the hands of the members of the Judiciary. We need to go further. We may well need a constitutional amendment to allow for the enactment of legislation establishing a standards in judicial office basis analogous to the Standards in Public Office Act that applies to ourselves, a range of senior public servants and civil servants.

Debate adjourned.