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Dáil Éireann debate -
Tuesday, 10 Apr 2001

Vol. 534 No. 3

Order of Business. - An Bille um an Dóú Leasú is Fiche ar an mBunreacht, 2001: Dara Céim. Twenty-second Amendment of the Constitution Bill, 2001: Second Stage.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): Tairgim: "Go léifear an Bille an Dara hUair anois."
I move: "That the Bill be now read a Second Time."
There are two distinct but related elements in this Bill to amend the Constitution. Firstly, the proposed new Article 35.4 of the Constitution would provide that a body can be established to investigate or cause to be investigated possible misbehaviour by or incapacity of persons while holding the office of judge and to make and publish findings and recommendations. Secondly, the new Article 35.5 will replace the existing provision for removing a judge from office for stated misbehaviour or incapacity with a new provision modelled on that which would apply to the President and which is contained in Article 12.10 of the Constitution. As Deputies will be aware, the existing provision on this matter is that a judge may be removed from office upon resolutions passed by both Houses of the Oireachtas calling for the removal.
The need for improvement in existing arrangements was the subject of recommendations made by the Constitution Review Group in 1996. This group, as Deputies will recall, was chaired by Dr T.K. Whitaker and included among its membership the then Attorney General and a number of high level legal and other experts. The group noted that such provisions as exist short of impeachment for the regulation of judicial conduct are provided for by statute and apply only to judges of the District Court. The group recommended that Article 35 should be amended to allow for regulation by the judges themselves of judicial conduct, in accordance with the doctrine of the separation of powers.
With reference to removing a judge from office for misbehaviour or incapacity, the Constitution Review Group considered that the present procedures were unsatisfactory in as much as they do not provide clear guidance on vital questions such as which House is to prefer the charge, whether the judge in question is entitled to be represented or to be heard and which House is to hear and determine the charge. In addition, the group said it appeared wrong in principle that the removal of a judge or any other constitutional officer should be decided by a simple majority in both Houses because a Government could use its majority in the Oireachtas to remove such a person for purely partisan reasons. A two thirds majority requirement would provide a safeguard against such a possibility. The group's recommendation was that the Article 12.10 impeach ment process, which applies to the President, should also be used for judges.
Following on the report of the Constitution Review Group, the All-Party Oireachtas Committee on the Constitution, chaired by Deputy Brian Lenihan, considered the constitutional provisions on the courts and the Judiciary, the outcome of which is contained in the committee's fourth progress report published in November 1999. Its recommendation was that Article 35 should be amended to allow for the review of judicial conduct by a judicial council with a lay element. As regards removal from office, the committee recommended a provision along the lines of Article 12.10 but with a simple majority rather than a two thirds majority requirement for the relevant resolutions in the Houses.
The events which came to be known as the "Sheedy affair" in 1998 highlighted the need for new provisions on judicial accountability and for better and more detailed provision for removing a judge from office. The question of judicial conduct and ethics was raised in the sixth report of the working group on a courts commission which was published in April 1999. Following the publication of that report the then Chief Justice, the late Mr. Liam Hamilton, established the Committee on Judicial Conduct and Ethics, as recommended by the working group. The committee, when established, consisted of the Chief Justice and each of the court presidents – Mrs. Justice Susan Denham and the then Mr. Justice Ronan Keane – and the Attorney General. That committee undertook a very thorough and wide ranging review of judicial accountability and a comparative study of the position in other jurisdictions. The committee published its very detailed report and recommendations in December last.
I am on record as welcoming the broad thrust of the committee's recommendations for the establishment of a judicial council which would have functions in the area of judicial conduct and ethics and judicial studies and publications. This is the history of the developments which have led to the proposal we are considering today. In bringing forward this proposal and in putting this particular wording before the House, I have drawn on the very valuable work of the three groups to which I have referred and which have already considered these issues in depth. It is my duty as Minister, on behalf of the Government, to act on those reports and to deal with the issues raised. The philosophy underlying this Bill is that, first, it must provide for fair and workable measures to deal with judicial misbehaviour which serve to enhance public confidence in the administration of justice and, second, it must maintain and support the independence of judges in carrying out their duties. An appropriate balance must exist between these two objectives. I suggest we debate the Bill with reference to these essential criteria.
I now turn to the proposed new constitutional provisions as set out in the Schedule to the Bill on which it is proposed that the people should be asked to vote. The new Article 35.4 is framed in specific yet simple terms. It would allow for the establishment by law of a body to investigate, or cause to be investigated, whether persons, while holding the office of judge, engaged in conduct constituting misbehaviour or were affected by incapacity and to make and publish findings and recommendations.
A question which immediately arises is whether we need to have such a provision in the Constitution at all. While it may well be possible to establish such a body by Act of the Oireachtas without amending the Constitution, there is a common view that constitutional provision is warranted. The Constitution Review Group was of the opinion that, lest there be any concern that the Oireachtas might be precluded from legislating for some form of disciplinary control of the Judiciary, Article 35 should be amended to provide for such a possibility. The All-Party Oireachtas Committee on the Constitution also recommended that the judicial council it envisaged should have a foundation in the Constitution. I believe the House would readily support that approach as being the best way forward on the issue.
The proposal in the Bill is generally in line with the recommendations of the All-Party Oireachtas Committee on the Constitution. Detailed legislation will be required to establish the body and to determine its composition, powers andmodus operandi. It is appropriate, in making this proposal to amend the Constitution, that I should outline in a general way what my approach will be to the subsequent legislation required to implement the new Article 35.4 of the Constitution.
With necessary modifications, the recommendations of the Committee on Judicial Conduct and Ethics provide a very good basis for the legislative proposals which will be required to follow through on the proposed constitutional amendment. In other words, I envisage that the legislation which will be introduced will provide for much of the structure recommended by the judicial committee – a judicial council of which all serving judges will be members, a board and staffing for the council and sub-committees, one of which will be a judicial behaviour and ethics committee which will correspond to the body referred to in the proposed new section 4 of Article 35. It will be specifically empowered to undertake the investigation of complaints of misbehaviour or incapacity on the part of judges and to report and make recommendations in that regard, as is provided for in the proposed constitutional amendment.
This new constitutional body will be conferred with all the necessary powers to investigate complaints or to appoint a person or body to carry out an investigation on its behalf. It is important to note that, whether the body asks a person or other group to carry out the investigation, it is the body itself which remains responsible for making findings and recommendations and publishing them if it so decides.

Recommendations to whom?

On the composition of the body, the Constitution Review Group envisaged a mechanism for the regulation by judges themselves of judicial conduct while the all-party committee favoured having a lay element on the proposed judicial council and its sub-committees. The Committee on Judicial Conduct and Ethics recommended that there should be a judicial council, of which all judges would be members, and that it would carry out its functions through the agency of a board and a number of committees, one of which would deal with judicial behaviour and ethics. This committee would refer complaints which warranted further investigation to panels of inquiry. There would be lay representation only at the panel of inquiry level.

While accepting the recommendations of the Committee on Judicial Conduct and Ethics as a good basis for the type of structure we should establish, we should provide for a greater role for lay people. Therefore, the provision in the Bill we are now considering requires that the body in question must include judges and persons who are not judges or former judges. In this way, lay persons will be members of the body which, under the Constitution, has responsibility for investigating judicial conduct or causing it to be investigated.

The proposed new section 4.4 of Article 35 of the Constitution would require that an investigation into a judge's behaviour or possible incapacity be conducted by a judge or by persons a majority of whom are judges. This means that a majority of the body itself must be judges, as must a majority of any panel it asks to conduct an investigation. This is the key guarantee of judicial independence as far as the operation of this body would be concerned and it closely reflects the conclusions reached by the three groups which have considered this question, namely, the Constitution Review Group, the all-party Oireachtas committee and the Committee on Judicial Conduct and Ethics.

In line with the recommendations of both the all-party Oireachtas committee and the Committee on Judicial Conduct and Ethics, the proposed body will not have power to impose penalties or any kind of legal sanction on a judge. These committees recommended – and I agree with their recommendation – that in all but serious instances of misbehaviour, the body would have only moral force to admonish or to seek to correct the misbehaviour identified. This is encompassed in the power in Part 2, section 4.1 to make recommendations.

It clearly is not.

Obviously, where serious complaints are upheld, this would normally follow a public inquiry and the publication of a report and, if the body decided this was warranted, it could recommend the impeachment of the judge. This would then be a matter for the Houses of the Oireachtas.

In discussing this issue, it is helpful to recall the findings of the All-Party Oireachtas Committee on the Constitution on the subject. The committee drew a distinction between legal and moral sanctions. Legal sanctions are penalties imposed by law and moral sanctions are psychological pressures imposed by society. I would add to that, in the present context, that such pressures are pressures which, under this proposal, will be imposed by a group consisting of the judge's peers on the Bench and respected lay persons. The all-party Oireachtas committee did not favour legal sanctions for its proposed judicial council but stated its existence and operations would provide it with moral sanctions. The weight of such sanctions would, in the committee's view, depend on the sensibility of society in general and the Judiciary as a group in particular. The committee believed the establishment of a judicial council would provide a major underpinning for the development and maintenance of a strong culture of judicial accountability. In this respect, the proposal we are debating today follows the approach advocated by the all-party Oireachtas committee and I am confident it will have the beneficial effect foreseen by the committee.

I turn now to the second element in the proposal in the Bill, that is, the provision on removal from office. As I have already said, the proposed new Article 35.5 provides that judges may be removed from office for stated misbehaviour or incapacity by means of the procedure which, with some essential modifications, would apply to the President. The main features of the new section 5 are as follows. The impeachment procedure will apply to all judges, not just to judges of the Supreme and High Courts as at present. A charge against a judge must be preferred by either House of the Oireachtas and the proposal to prefer a charge must be made by a notice of motion in writing signed by not fewer than 30 members. When a charge has been preferred by either House, the other House must investigate the charge or cause it to be investigated by any court, tribunal or other body. The reference to "court, tribunal or other body" in section 5.7 is derived from Article 13.8.2 of the Constitution which, in effect, makes similar provision in respect of the impeachment of a President.

The House which prefers the charge may also decide that the judge concerned shall not exercise judicial functions until such time as that House may determine by another resolution. If the charge against the judge has not been sustained in the investigating House, he or she may resume the exercise of judicial functions. A judge who is charged shall have the right to appear and be represented at the investigation. If the investigat ing House declares that the charge has been sustained and the misbehaviour or incapacity in question is such as to render the judge unfit to continue in office, the Taoiseach shall notify the President who shall remove the judge from office. All decisions made by the Houses under this section will require a two thirds majority, that is, the decision to prefer a charge, suspend a judge, lift a suspension and declare that the charge has been sustained.

The principle on which the new section is based is that the Houses of the Oireachtas are the only institutions which can decide that a judge should be removed from office. They may take such a decision on foot of a recommendation of the body provided for in the new Article 35.4 but they may also proceed on their own initiative without such a recommendation. The supremacy of the Houses of the Oireachtas in this area is, therefore, preserved in my proposal. What the proposed provision does, however, is to provide a far better procedure for taking decisions on removal from office by addressing the defects identified by the Constitution Review Group which I mentioned earlier.

In explaining to the House the features of the new section, I will deal first with the requirement for a two thirds majority for impeachment since this has been the subject of a certain amount of public comment. The argument of the Constitution Review Group that a two thirds majority in the House should be necessary to remove a judge from office is, I believe, the correct way forward. It effectively removes the possibility that such a decision could be taken solely with the support of Government parties and against the wishes of the Opposition. I would invite Deputies who may think otherwise to reflect on how undesirable it would be if such a possibility were to come to pass.

We must also consider this issue in the light of the doctrine of the separation of powers which is a central feature of our Constitution. As far back as 1947, in the case of Buckley versus the Attorney General [1950 IR 67], the High Court, invoking the doctrine of the separation of powers, ruled as unconstitutional an attempt by the Oireachtas to interfere in an action which was already before the court. The Supreme Court upheld this decision citing Article 6 of the Constitution. The court held that the manifest object of this Article was to recognise and ordain that, in this State, all powers of government should be exercised in accordance with the well recognised principle of the distribution of powers between the Legislature, Executive and judicial organs of the State and to require that these powers should not be exercised otherwise. The court went on to say that the effect of Article 6 and Articles 34 to 37 is to vest in the courts the exclusive right to determine justiciable controversies between citizens or citizens, as the case may be, and the State.

This principle implies that those who are charged with the exercise of judicial powers, namely, judges, must be independent in the dis charge of their duties. Article 35.2 of the Constitution provides that all judges shall be independent in the exercise of their judicial functions and shall be subject only to the Constitution and the law. Judges must be able to administer justice without fear or favour and without interference from the Executive or legislative branches of Government. In defence of this independence, judges are, for example, ineligible under the Constitution for membership of the Houses of the Oireachtas and may not hold any office or position of emolument other than that of judge.

Even the perception that a judge could be removed from office in the absence of a broad level of consensus among Members of the Oireachtas would, in my view, be detrimental to the concept of an independent Judiciary and the doctrine of the separation of powers. That independence would be damaged by the possibility that a Government might use its majority in the Houses to bring about the removal of a judge from office.

Everything is wrong since the foundation of the State.

I do not believe people would want the possibility of judges' independence being compromised in this way.

A significant feature of my proposal is that the impeachment procedure will apply to all judges and not just to judges of the Supreme and High Courts, which is the position under the present constitutional provision. For the information of the House, there are statutory provisions which, at present, give judges of the lower courts the same security of tenure as judges of the Supreme and High Courts, that is, they can only be removed from office by the same procedure. What my proposal will now do is give explicitly to all judges security of tenure at the constitutional level. I believe this is the appropriate course of action.

Security of tenure is already effectively guaranteed to judges of the lower courts at constitutional level because any amendment to the existing statutory provisions on their security of tenure, which negatively affected their independence as judges, would implicitly be constitutionally invalid.

It is notable that, apart from the removal from office provision, the rest of Article 35 of the Constitution refers to all judges. I also believe, in support of my proposal, that as judges of the lower courts are now invariably lawyers of long standing and such courts have no lay members, it is appropriate that they should be treated the same as the judges of the Supreme and High Courts. Their independence in carrying out their judicial functions is no different and no less important, particularly to the members of the public who seek justice in their courts.

It is worth dwelling on the contribution the judges of the Circuit and District Courts have made to our courts system over the years. The Circuit Court has a pivotal role in our courts structure and has substantial responsibilities. Sitting with a judge and jury, it has full jurisdiction in very serious criminal offences. The Circuit Court has been conferred with an increasing role in civil matters in recent years. The Oireachtas has vested in that court additional responsibilities in areas such as employment, planning, judicial separation, nullity of marriage and divorce. Last year, the Circuit Court made very significant progress in reducing the waiting time for the hearing of civil actions and the efforts of the Circuit Court judges must be acknowledged in that regard. In the recently published Courts and Court Officers Bill, the general civil jurisdiction of the Circuit Court is being increased to 100,000 or almost £80,000—

Subject to the Oireachtas.

—which will see significant devolution of cases from the High Court to the Circuit Court.

The District Court also has a very heavy workload. It carries out a vital role in the criminal justice area, including the liberty of the individual. In civil matters, our district judges carry out very important statutory functions in a highly professional and efficient way. More recently, in the area of small claims, they have provided the consumer with an extremely speedy and inexpensive service. The civil jurisdiction of the court is being increased to 20,000 or almost £16,000 under the Courts and Court Officers Bill.

Subject to the decisions of the Oireachtas.

All of this reinforces my view that the judges of the Circuit and District Courts should be given exactly the same security of tenure under the Constitution as the judges of the superior courts and that any distinction in that regard between the two sets of judges would not be justifiable.

A significant addition to the impeachment power in the proposed section 5 as compared with the provision which applies in the case of the President under Article 12.10 is that the House which prefers the charge may, if it deems fit, require the judge concerned not to exercise his or her judicial functions until such time as that House determines otherwise or until the charge has not been sustained following the investigation by the other House. The reason for this provision is that, in some circumstances, it could be seriously injurious to the administration of justice if a person against whom a charge of misbehaviour or incapacity has been made were to continue to exercise the functions of a judge while an investigation, which may take some time, is under way. This need not be the case in relation to every judge charged under this section – it will depend on the circumstances and will be at the discretion of the House acting on a two thirds majority. In the light of any alterations in circumstances, the House may also decide to lift the suspension. If the charge is not sustained before the investigating House, the judge will be free to return to the exercise of his or her functions.

As I have already explained, impeachment proceedings might arise out of an investigation by the body provided for by the new section 4 but they could also arise at the initiative of either House. Where the Article 35.4 body has investigated misbehaviour and issued a report recommending impeachment, the question arises as to whether the investigating House of the Oireachtas can accept that report and act on it. That a comprehensive report is already available to the House could well have the effect of shortening the investigation which the House needs to undertake or cause to have undertaken but there can be no question of the House being circumscribed in how it carries out its role. In any event, the judge has to be given the opportunity of responding to the charge against him or her, including the findings of the Article 35.4 body. This is an inevitable implication of the supremacy of the Houses in this matter. The decision that a judge should be removed from office cannot be devolved in whole or in part to another body.

The All-Party Committee on the Constitution identified the following advantages of an impeachment procedure such as I am now proposing: there is a clear division of function between the Houses; there is a clear distinction between charge and hearing; the charge must be initiated by a minimum number of members and the right of the charged party to appear and be represented at the hearing of the charge is given clear recognition.

I have outlined for the House the central elements of the proposal which the Government wishes to put before the people and the reasoning underlying them. They represent a package which amounts to major reform in respect of judicial accountability when compared with the present situation and they preserve and enhance the independence of our Judiciary. Accordingly, I commend the Bill to the House.

This legislation has been published by the Government as a consequence of the Sheedy affair and the controversy which resulted in the resignation of Mr. Justice Hugh O'Flaherty from the Supreme Court and Mr. Justice Cyril Kelly from the High Court. At the time of the Sheedy affair, considerable public attention focused on the current constitutional provisions concerning the impeachment of members of the Judiciary. In 1996, the Constitution Review Group published a report which recommended the replacement of the current constitutional provision with a more elaborate measure. Subsequent to the Sheedy affair, the All-Party Committee on the Constitution published its own report on the issue and in December last, a report was published by the Committee on Judicial Conduct and Ethics.

Fine Gael will oppose the Twenty-second Amendment of the Constitution Bill, 2001, on Second Stage in this House. It is widely acknowledged that there is need to enact new constitutional provisions in regard to judicial misbehaviour or incapacity and the powers of impeachment. However, the approach taken to date by the Government is substantially flawed and the Bill before the House is fundamentally defective. Instead of facilitating the impeachment of members of the Judiciary alleged to have seriously misbehaved, it will erect constitutional barriers to impeachment which will render the impeachment procedure practically redundant.

The new provisions proposed to be included in a new Article 35.4 of the Constitution provide for the establishment of a body to investigate allegations of misbehaviour or incapacity of members of the Judiciary while holding the office of judge. While the Government's referendum Bill provides that membership of this body "shall include judges and one or more persons who are not judges or former judges", it does not state how many members of the Judiciary are to form this body, who is to be responsible for appointing members of the Judiciary to this body, who is to be responsible for appointing one or more persons who are not judges to it, what factors will render a judge eligible for appointment to the body or a non-judge eligible for appointment to the body or how long will either a member of the Judiciary or a non-judicial person hold such membership. The Minister attempted to clarify some aspects of this but not in a way that is satisfactory.

The new Article 35.4, while envisaging investigation of allegations of judicial misconduct which occurred during the time a person held the office of judge, excludes from its remit allegations of misbehaviour by a judge prior to his or her appointment to the Judiciary, even where such misbehaviour would clearly render a person unsuitable to continue in office as a judge. For example, under this provision, should it emerge that prior to a person being appointed a judge, he or she engaged in major tax evasion, proof of such conduct would be outside the investigative remit of this new proposed body.

This new body will also be something of a toothless tiger. While it is envisaged that it will constitutionally be empowered "to make and publish findings and recommendations", there is no constitutional provision to enable it to reprimand a judge who has misbehaved where such reprimand would be appropriate due to the nature of the misbehaviour and where impeachment would be too severe a remedy. Yet, when the Minister first announced his intention to publish this Bill and upon its publication, he stated that the new investigative body he proposed to establish to investigate misbehaviour by a judge will, where appropriate, be empowered to reprimand a judge. Although the Minister may intend that the new proposed body be enabled by legislation to issue reprimands, it is not conferred with any constitutional capacity to do so and is confined under the new Article 35.4 to publishing findings and recommendations. This has not to date been adequately explained by the Minister nor was it adequately explained by him in his contribution to this House. Today the Minister dropped all reference to reprimands and has instead stated that "the proposed body would have only moral force to admonish or to seek to correct the misbehaviour found."

In the absence of proper constitutional provision which expressly confers on this new body a power to issue reprimands or to admonish, the Fine Gael Party does not believe this body will be able to so act. Legislation which empowered it to reprimand or admonish a judge would clearly violate the constitutional function of such body as established under the Constitution and any such legislation could be held unconstitutional. The new proposed Article 35.4 varies from the recommendation contained in the Report of the Committee on Judicial Conduct and Ethics published in December 2000 which stated that powers to reprimand should be conferred on any new judicial disciplinary body established. This committee also proposed the establishment by statute of a judicial council with substantially broader powers than those being constitutionally conferred on the body envisaged in the Referendum Bill. A similar proposal was made by the All-Party Committee on the Constitution. A constitutional provision for the establishment of a judicial council should have been contained in this Bill but has inexplicably been omitted by the Minister. He has now promised the enactment of legislation at a later date to establish such a council. If it is genuinely his intention to establish such a council, it should be given a constitutional status.

Last summer, Fine Gael's policy document entitled "A Democratic Revolution" proposed the establishment of a judicial board, the functions of which will be similar to the judicial council proposed by the Committee on Judicial Conduct and Ethics in its December 2000 report. Fine Gael is committed to the establishment of such a body, consisting of the Chief Justice and the Presidents of the High, Circuit and District Courts. We also proposed that there be appointed as advisory members to the board, the President of the Law Society, the Chairman of the Bar Council, the Attorney General, the Comptroller and Auditor General and the Ombudsman. In addition, the President of Ireland, we proposed, should appoint four members of the Council of State to the board as advisory members who would neither be former or current Members of the Houses of the Oireachtas nor the Judiciary.

The proposal that such appointment be made by the President of Ireland was to preserve the concept of the separation of powers and the non-interference by the Government of the day with members of the Judiciary, while allowing for making appointments of members to such board also independent of the Judiciary itself. The Fine Gael proposal provided for an equal number of legal and non-legal members under the chairmanship of the Chief Justice.

The board Fine Gael proposed would monitor and address overall issues relating to the administration of our justice system and judicial conduct such as ethics; efficiency; consistency; regard for sentences and awards in other courts of the State and in other jurisdictions; personal demeanour; common sense; hours and days of work; complaints; training and re-training; research; staffing and other facilities. The judicial board or council proposed by Fine Gael would be empowered to seek reports from the Chief Justice or the President of the appropriate court, or, when necessary, from an individual judge on any issue of concern that arose under any of these headings. It is regrettable that the Government has not used this Bill as a vehicle to establish by way of constitutional provision such judicial council or board.

The new Article 35.4 provides for the enactment of legislation to confer "all necessary powers by law on the body, person or persons conducting an investigation" as envisaged by the article. This Bill, dated 27 March, was only published and distributed to Members of this House on Thursday, 29 March. Thus, it was published less than two weeks ago. The legislation envisaged by Article 35.4 should have been published in draft form by the Government at the same time as this Bill and both proposals should have been published and available for public debate and discussion at least four weeks prior to the commencement in the House of this Second Stage debate.

The provisions contained in the new proposed Articles 35.4 and 35.5, which I will refer to shortly, effect a fundamental change in the approach by this State and under our Constitution to the issues of judicial misconduct and incapacity. It is totally inappropriate that the legislative process commence in this House until the detail of the Bill has been in the public domain for sufficient time to enable its proposals to be given detailed consideration. It is scandalous that a constitutional amendment, the effectiveness of which is dependent on the enactment of legislation by this House, should be published and that a Second Stage debate should commence in this House without the detail of the additional substantive legislation required to give effect to the new article being publicly available.

It was originally the Government's intention to enact all Stages of the Twenty-second Amendment of the Constitution Bill, 2001, this week. It was only as a consequence of the opposition to this approach voiced by both the Fine Gael and Labour Parties that the completion of the legislative process will not take place until after Easter. Prior to the resumption after Easter of the Second Stage debate in this House, Fine Gael calls on the Government to publish in draft form the legislation it proposes to enact should the new Article 35.4 be included in the Constitution as a consequence of the holding of a referendum.

The new Article 35.5 which the same referendum Bill envisages should be included in the Constitution deals with the power of the Houses of the Oireachtas to impeach a member of the Judiciary for stated misbehaviour or incapacity. Under the current constitutional provisions, a member of the Judiciary can be removed from office for stated misbehaviour or incapacity by a resolution proposed by a Member of each House and passed by a majority vote in Dáil Éireann and Seanad Éireann. Under the new provisions, a proposal to prefer a charge of misbehaviour or incapacity against a judge cannot be entertained unless a notice of motion in writing is signed by not less than 30 Members of either the Seanad or the Dáil and such charge cannot be considered and investigated by either House of the Oireachtas unless a resolution is passed by not less than two thirds of the total membership of either House calling for such allegation to be investigated. Instead of facilitating the proper investigation by a House of the Oireachtas of alleged judicial misbehaviour or incapacity these provisions erect an unnecessary barrier to the commencement of any such investigation.

The Government has to date failed to explain the reasoning behind the proposal that a motion preferring a charge against a judge in either the Dáil or the Seanad to be entertained should require the signature of at least 30 Members of either House. This issue was not even addressed by the Minister in his contribution. At present, such motion can be tabled by a single Member. Whilst it may be argued it should not be possible for a single Member to table a motion of such seriousness, which could result in a crisis of public confidence in a member of the Judiciary, there is no reason the tabling of such a motion should require a minimum of 30 signatories which, in the case of a motion being brought before the Seanad, would require the support of a minimum of one half of the existing Members of that House.

Why should it not prove possible for a motion signed by either ten, 15 or 20 Members of either House of the Oireachtas to be entertained, debated and voted on? The reality is that this part of the new proposed Article 35.5 simply slavishly adapts to the impeachment of members of the Judiciary procedures prescribed in 1937 by the Constitution for the impeachment of the President of Ireland without any detailed analysis of the desirability or otherwise of members of the Judiciary being placed in an identical constitutional position concerning allegations of misconduct to that of the President.

In criticising the inadequacy of the existing constitutional provision for the impeachment of members of the Judiciary, both the Constitution review group and the All-Party Committee on the Constitution proposed we adopt the 30 Member signatory rule without either report containing any detailed analysis of the constraints the inclusion of such a rule in our Constitution may impose on either House of the Oireachtas properly considering whether or not to investigate allegations of judicial misbehaviour or incapacity.

The Constitution review group recommended that an investigation of alleged judicial misbehaviour or incapacity should only be undertaken upon a resolution for such investigation being supported by a vote of two thirds of the Members of either House of the Oireachtas. The all-party committee rejected the two thirds requirement and proposed that a simple majority vote should facilitate the commencement of such investigation.

Fine Gael believes that if a serious allegation is made against a member of the Judiciary, which a majority of Members of either the Dáil or the Seanad believe should be investigated, the public interest demands that such investigation occur. No reasonable argument can be made that for an investigation to be conducted, there should be a vote supported by two thirds of the Members of either House. If a majority of Members is short of two thirds vote for such investigation, the position of the member of the Judiciary concerned would become untenable, but the impeachment investigation could not take place. Fine Gael is totally opposed to this provision and believes that a resolution supported by a simple majority of the House should be sufficient to commence an impeachment investigation.

If the new proposed amendment relating to judicial impeachment had been contained in the Constitution at the time of the Sheedy affair, does anyone doubt that Fianna Fáil would have used its position in this House to prevent an investigation into that affair by the House or a committee of this House? There is a serious suspicion that the 30 Member rule proposed in the Bill for a motion "preferring a charge against a judge" taken together with the imposition of the two thirds majority barrier to an investigation of judicial misconduct or incapacity is designed by the Government not to facilitate either House of the Oireachtas addressing issues of judicial misconduct or incapacity, but to ensure that, should there in future be a repetition of the Sheedy affair, both Houses of the Oireachtas and Oireachtas committees are rendered politically impotent to address the consequences of any such affair.

That is illogical.

Following one House of the Oireachtas agreeing that an allegation of judicial misconduct or incapacity should be investigated, the Bill provides that a resolution declaring that the charge preferred against a judge has been sustained requires support from not less than two thirds of the total membership of the other House. The committee appointed to review the Constitution, which published its report in 1996, proposed that the dismissal and impeachment of a judge should require a two thirds majority of the House.

Whilst the All-Party Committee on the Constitution proposed that for an impeachment resolution to be successful, only a simple majority should be required. Under the current Constitution, only a simple majority is required for impeachment and since the enactment of the 1937 Constitution, there has been no suggestion that this provision has been abused by any Government. However, there is a possibility that a judicial dismissal could be effected by a simple majority in the future in circumstances in which Opposition parties regarded it as completely inappropriate that a judge be dismissed from office and were concerned that the Government of the day for politically partisan reasons was abusing its majority support in either the Dáil or the Seanad.

Fine Gael supports the view that the resolution to dismiss a judge by either House of the Oireachtas should require a two thirds majority in the interests of maintaining the independence of the Judiciary and upholding the concept of separation of powers. The fundamental flaw in the referendum Bill results from the Government's failure to recognise the different principles that should apply to either House of the Oireachtas first determining that an allegation of misconduct be investigated compared to a subsequent determination that the allegation has been sustained and that the alleged misbehaviour or incapacity is such as to render the judge unfit to continue in office.

I referred to the fact that where an investigation is conducted by the new proposed judicial body under Article 35.4, the behaviour of the judge prior to being appointed to the Judiciary cannot be investigated. Under the new Article 35.5, it appears misbehaviour by a person prior to judicial appointment can be the subject of impeachment by the Houses of the Oireachtas. The Minister should explain the reason for this inconsistency. If a person appointed as a judge is guilty of some minor misconduct prior to such appointment, why should that not fail to be investigated by the new body that is to be created and why should the only constitutional remedy available to address the issue be the route of impeachment?

There are other major difficulties with regard to this proposed constitutional amendment. Where judicial misbehaviour or incapacity is being investigated under the new proposed Article 35.4, the body investigating it is conferred with no authority to suspend the judge under investigation. Where a charge is preferred against a judge under the new proposed Article 35.5, which could result in impeachment should either House of the Oireachtas decide the allegation needs to be investigated, the judge concerned can be suspended from office but only if a two thirds majority of the House so vote. The body envis aged under the new proposed Article 35.4 should have a constitutional power of suspension. Under the new proposed Article 35.5, judicial suspension should be effected automatically upon either House of the Oireachtas by a majority voting for an investigation of alleged misconduct or incapacity to take place.

The new proposed constitutional Articles do not clarify the interaction between the new body proposed by the Minister and the impeachment powers of the Oireachtas. If the new proposed body determines that an allegation of judicial misconduct is unfounded, will that exclude either House of the Oireachtas from further investigating such an allegation? Where the body makes recommendations as a consequence of an investigation, what relevance will such recommendations have should either House of the Oireachtas commence an impeachment procedure? Where either House of the Oireachtas undertakes the impeachment procedure in circumstances where a member of the Judiciary for the same alleged misconduct or incapacity was investigated by the new body envisaged under Article 35.4, will the members of that body who conducted the investigation be required to come before the House of the Oireachtas considering impeachment to give evidence of their investigative process and to explain any recommendations made? These and other questions need to be addressed.

The Fine Gael Party recognises the need for new constitutional and legislative provisions with regard to the Judiciary. As stated in our document, Democratic Revolution, the Fine Gael Party committed itself in Government to the formation of a judicial board with a substantial remit to address a broad range of issues that affect the Judiciary and impact on the public. It also proposed the enactment of legislation containing new provisions for impeachment and for the imposition of lesser penalties and disciplinary procedures where appropriate.

The Fine Gael Party's Courts Bill, 2000, which the Government voted down last autumn, also sought to provide for a new approach with regard to the making of judicial appointments. We proposed that upon the Government deciding on a nominee to a vacant judicial office, the name of the person proposed should be submitted to the Oireachtas Joint Committee on Justice, Equality and Women's Rights for its consideration. The Bill proposed that the committee hold public hearings on any such nomination and that it furnish its opinion on the nomination to the Government and that such opinion be laid before both Houses of the Oireachtas. This proposal was designed to ensure proper accountability by Government to the Houses of the Oireachtas for the appointment of members of the Judiciary and to afford Members of the Oireachtas a forum within which the suitability of proposed judicial appointees could be considered. The Fine Gael Party's proposal was essentially designed to redress the current democratic deficit in the mak ing of judicial appointments. Unfortunately, the Government voted this measure down. The need for greater transparency in this area is widely acknowledged and should have been provided for either under this constitutional referendum Bill or could be provided for in the additional legislation envisaged by the Government.

The Bill requires substantial revision and its envisaged workings need comprehensive clarification. Any proposal by the Government which renders it more difficult to impeach a judge for misbehaviour or for incapacity to perform his or her duties should be treated by the public with great suspicion. The Government has failed to adequately explain why it should require a minimum of 30 Members of either House to propose an impeachment motion or a majority of two thirds of the Members to facilitate the commencement of an impeachment process and the investigation of alleged misbehaviour or incapacity. The Government has also been grossly derelict in its duty by publishing a constitutional proposal to establish a new judicial disciplinary body while, at the same time, failing to publish in draft form the legislation it envisages enacting to provide a structure for that body and to detail the powers it can exercise in investigating members of the Judiciary.

The Fine Gael Party will oppose the Bill on Second Stage and if the Bill is not amended in a manner we deem appropriate and the outstanding draft legislation prescribing a framework with which we agree is not published, we shall oppose the incorporation of these new provisions in our Constitution upon a referendum taking place and calling on the public to vote "no".

The Government's proposal is that the referendum on the new proposed Articles 35.4 and 35.5 of the Constitution should be put to the people in conjunction with the referendum on the Nice Treaty, the referendum to abolish capital punishment and the referendum on the International Criminal Court. The proposals on judicial misbehaviour and incapacity have been unnecessarily rushed into the House and are contained in a Bill for which the Government has to date failed to even publish an explanatory memorandum. It is noteworthy that explanatory memoranda in relation to the referendum Bills concerning the Nice Treaty and the International Criminal Court have been published. The Fine Gael Party has already called for the referendum on the Nice Treaty to be held on a separate day to any of the other referendum proposals.

The Government is obliged to make arrangements for a public information campaign concerning all four referendum proposals and, under the McKenna judgment, to provide funding for the publication of documentation arguing in favour and against each proposal. Bizarrely, the judgment in the McKenna case requires the Government to provide funding for the publication of reasons to encourage the public to vote "no" to the establishment of an international criminal court. It also requires the Government to fund the arguments for and against the proposed constitutional changes relating to allegations of judicial misbehaviour and incapacity and to impeachment of members of the Judiciary. This issue is so complex and the proposals of the Government are so ill-conceived that putting it to the people in a referendum should be postponed and should not coincide with the referendum on the Nice Treaty.

To coincide these referenda will inevitably result in substantial public confusion and could damage the possibility of a successful outcome to the referendum on Nice. As Opposition parties in this House which will call for a "yes" vote on the Nice Treaty will call for a "no" vote on the restrictions the Government proposes to introduce on the impeachment of judges under the Bill in its current form, there is a substantial risk that the different campaigns relating to each of the different proposals will cause a great deal of public confusion. The proposed referendum on the Twenty-second Amendment of the Constitution Bill should be postponed. After it has completed Second Stage, it should be referred to the Select Committee on Justice, Equality, Defence and Women's Rights for the holding of public hearings on the proposals contained in it and for the processing and amendment by that committee of this Bill. Essential changes need to be made because the legislation is fundamentally flawed.

In June, which is only a few weeks away, the Government wants the people to vote on four proposals to change the Constitution. Two of the proposals are relatively innocuous – one relates to the formal abolition of the death penalty while the other is a proposal to enable jurisdiction to be exercised by the International Criminal Court. These two proposals deserve our support. The point the two measures have in common is that they are essentially addressed to other countries to which they are more directly relevant. Neither will have great domestic impact after they are passed; nobody has been executed in this jurisdiction. However, Ireland will be able to hold its head high on the international stage and claim that it has practised what it has preached because our national laws are in accordance with the standards we call on others to meet.

Thrown in with these two uncontentious measures are referenda on the Nice Treaty and on judicial conduct, the Bill to enable which is before the House. The Labour Party has already asked that the referendum on the Treaty of Nice be postponed until the autumn. It needs full and frank debate. The majorities in favour of successive European referenda have reduced as the issues have become more technical and the public has become increasingly disinclined to wade through the obscure maze of cross-referenced jargon that now characterises what we still like to describe as the European project. Anyone who has read the Treaty of Nice will know it is unreadable because it cross-references all previous treaties. We have learned in putting these referenda to the people that we cannot take the public for granted any longer. This means, at European level, making clarity and simplicity an essential component at the heart of the treaty-making process. In the immediate context of Nice, it means we must not rush our fences.

The Bill dealing with the referendum on judicial conduct also needs much more thought than has gone into it to date. I have already made clear my strong belief that this measure is ill-thought out, restrictive and deeply flawed. Unless it is radically changed on Committee Stage in this House, it should be rejected by the electorate since its net effect is to make what is by consensus an unsatisfactory situation even worse.

It is ludicrous that a proposal as ill-thought out as this should be rushed through the Oireachtas. The All-Party Committee on the Constitution now argues in favour of a rule that 90 days should elapse between the publication of a constitutional amendment Bill and its passage through the Houses. It is the view of the committee that there should be 90 days to reflect on changes in our basic law. It also believes a further 90 days should elapse between the passing of the Bill and polling day. That clearly will not happen in this case. That committee, the Constitution Review Group prior to that, the Hamilton committee on judicial conduct and ethics and, presumably, the Government have had weeks if not months to consider and tease out the issues that arise in the context of judicial conduct. I find it nothing less than offensive for the Minister to say these bodies have had months to tease out the matter and, by definition, Members of the House should act as ciphers or rubber stamps for them. The Minister's view is an incredibly arrogant one and is an insult to the proper standing of Parliament.

The issues which arise are of fundamental importance. They relate to the balance that must be struck between the safeguarding of an independent Judiciary from political interference and the need for a workable system of public accountability for all those, including judges, who serve in public office. That wind of change is unanswerable. It blows through membership of the House and anyone who serves the public in any capacity. Judges are no more immune from that wind of change than anyone else. It goes without saying that, in the vast majority of cases, judges have served this country well since the foundation of the State, sometimes at great personal risk to themselves and their families. However, judges cannot be allowed to operate in an untouchable ivory tower. It is bad for the citizen and for the Judiciary. The most important judge in the country, the Chief Justice, Mr. Ronan Keane, has recognised this fact and supports reform.

The task, therefore, is to introduce a system whereby judges will be required to adhere to basic standards while maintaining judicial independence. The public must have confidence that a genuine complaint will receive fair and rigorous investigation and that, if a member of the Judiciary is found to have misbehaved, it is possible that sanctions might be capable of being imposed. Each of us in our working lives has certain standards to live up to. Judges are no different and, given the effect their decisions have on the lives of citizens every day of the week, it is vital citizens have confidence in the quality of justice dispensed in courts.

The urgency of the need for a procedure to deal with judicial conduct became obvious following the premature release from prison of Mr. Philip Sheedy who had been convicted and imprisoned for dangerous driving causing the death of Mrs. Anne Ryan in Tallaght in 1996. As the House knows, he was sentenced to four years in prison. However, Philip Sheedy received an early and entirely unorthodox review of his sentence and was released after serving just 12 months. The early release of Philip Sheedy was a devastating blow to the family of Mrs. Ryan. Opposition politicians and the public demanded an inquiry. Two senior judges, Hugh O'Flaherty and Cyril Kelly, resigned as a result.

Although ultimately these two senior judges resigned as a result of a non-statutory inquiry into the affair conducted by the previous Chief Justice, the full facts have never emerged. I was a member of the committee of the House that tried to discover those facts. Unfortunately, we were thwarted by a vote of the Government parties. It is precisely because the inquiry was non-statutory that it was incomplete.

At the heart of the problem was the reluctance of the Government to get to the bottom of the Sheedy affair. However, on a constitutional level, the system of judicial accountability was shown to be unworkable. The problem is caused, at least in part, by the text of the Constitution. The power to impeach a judge is specified, but the Constitution is silent on the process required to achieve that end. As the Ceann Comhairle pointed out in his letter to the leaders of the parties in the House on 20 April 1999:

Given that in any exercise of its constitutional function under Article 35.4, the Dáil itself is in judicial mode with its concomitant responsibility for impartiality and adherence to fair procedures and natural and constitutional justice, there is an onus on the Dáil to ensure as far as possible that the procedures to be adopted not alone meet the highest standards required but that the actions taken by the Dáil in passing any such resolution (including any preliminary steps undertaken to that end) are not open to successful legal challenge . . .

He went on later in the same letter to point out that:

It is generally acknowledged, e.g. Report of the Constitutional Review Group, 1996, that the impeachment process set out in Article 35.4 (i.e. apart from the wording of the paragraph itself which could create difficulties of interpretation) would need to be improved to correspond with modern requirements of fair procedure . . .

The problem is that the current text does not provide for any procedure to be observed prior to passing the envisaged resolutions in both Houses. Yet if resolutions were passed without due process, they would be liable to be struck down.

The framers of the Constitution made the mistake of borrowing a procedure from the constitutional framework in place at Westminster, where this difficulty does not arise. As the Houses of Parliament in the United Kingdom claim descent from and the inherent jurisdiction and powers of a court of law, they have power to conduct any form of inquiry they see fit while being immune from review by the ordinary courts. In this country matters are more complicated.

Among the other problems which arose, we had an individual who, while still serving as a judge, volunteered to appear before an Oireachtas committee to explain his role in the Sheedy affair, but once he had resigned from that office he declined to do so on the grounds that this was prevented by the constitutional guarantee of judicial independence. No one was sure whether his claim was sustainable and, as there was no precedent, no one knew what to do next. Despite the argument that the Houses of the Oireachtas were entitled to confer powers on the Select Committee on Justice, Equality, Defence and Women's Rights to conduct a sworn inquiry for the purposes of considering the removal of a judge from office, it was extremely doubtful whether powers could be conferred to compel the judge in question to attend once he or she had resigned. Judicial independence would have been impinged upon for no constitutionally mandated purpose. The Bill, at least, has the merit of plugging that loophole. It also has the merit of providing for a detailed series of procedural steps to be followed by the Houses of the Oireachtas to safeguard due process and natural justice. The Government's proposals, however, duck the hard issues. The amendment will not give a citizen a real opportunity to seek redress where they are of the view that they have been seriously wronged. It proposes a more conservative and ineffective process than that which obtains and is little more than cowardice dressed up as reform. The proposals will not work and do not deserve the support of the people or this House.

Let me turn now to the detail of the Bill which sets out the Government's position on the impeachment process and the establishment of an investigative body into judicial behaviour. While both objectives are desirable, we disagree fundamentally on the path chosen to achieve them. The current position on impeachment is that a simple majority of those present and voting in each House can pass a resolution to remove a judge from office. The Government proposes to change this in order that in future two thirds of the membership of this House, including those absent or abstaining, will be required to do so. The net result is to make it substantially more difficult to remove a judge. It is extraordinary that the Government's principal response to the biggest judicial scandal in the history of the State is to make it more difficult to dismiss a judge. The Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, says that he wants to guard against the risk of a future Government using its majority in the Houses of the Oireachtas to remove a judge from office for partisan reasons. The reality is that the Houses of the Oireachtas have had such a power since 1922 and, in all that time, it has never been used, much less abused.

In a wider context, the Houses of Parliament on these islands have had almost identical powers to address the Crown on the dismissal of a superior court judge since the Act of Settlement, 1701. During the course of 300 turbulent years only one judge has been impeached. Politicians are capable of restraint. In that context, how is there any argument for changing 300 years of history to make more impenetrable the barrier to the will of the people being exercised through their elected representatives? It should be borne in mind that a simple majority of both Houses of the Oireachtas is all that is required to declare a state of emergency on foot of which virtually all constitutional safeguards can be set at nought and that a simple majority in the Dáil can vote to declare war on another state. In this wider context, the obsessive desire for the most elaborate protection for judges from the risk of contamination by contact with the body politic is bizarre. It shows no regard for the ultimate truth of our constitutional, legal and political processes, that is, that in this Republic it is the people who are sovereign.

We, in this House, are the elected representatives of the people and entitled, on their behalf, to call to public account those who hold office in the service of the public. The argument that we must raise the hurdle in order to guard against politically inspired impeachment resolutions being whipped through the Houses of the Oireachtas ignores the reality that the courts are well equipped to protect themselves against unwarranted interference. The Minister of State, Deputy Hanafin, is well aware of this. As you indicated, a Cheann Comhairle, in the letter from which I quoted, in such a case the very real risk would be that any departure from the highest standards would leave the House open to a successful legal challenge whereby, albeit in a worst case scenario, the resolution of the Dáil and, presumably, that of the Seanad would be struck down by the courts. As those of us who have served or are about to serve on committees of the House which exercise statutory powers are aware, among the reasons such a resolution would be liable to be struck down would be improper motive, prejudgment of the issues involved or obedience to a party whip. In other words, the Minister is seeking to guard against a course of action that would be unlawful and invalid. In seeking to guard against such an entirely fanciful risk of impeachment inspired and supported on grounds of partisan politics, the Government is opening up the possibility of a new form of constitutional crisis. Let us suppose that the Dáil voted by 100 votes to 50 to remove a judge from office. Does anyone really believe that for the want of the 11 votes needed to secure two thirds of the total membership, the judge concerned could return to the bench as if nothing had happened?

Fundamentally, what is at issue is the claim of one generation, by simple majority, to outvote the simple majority of a future generation. It argues that, because we are convinced that we are in the right, we should have the right to bind future generations to our way of thinking, even if a majority in the future disagrees. This is fundamentally undemocratic and, rightly, Article 15.11.1 of the Constitution prohibits any attempt, by legislation, to create a requirement for special majorities in the voting arrangements of this House. Why was that done? One cannot create a new requirement whereby to be enacted some measures demand a different majority than others, which is what the Minister wants to do in this case.

The constitutional safeguard preventing judges from being removed except on grounds of misbehaviour or incapacity is confined to judges of the Supreme Court and the High Court, the two courts created by the Constitution. Judges of the lower courts hold office under statute. The Government proposes that the judges of all courts should only be removable under the new procedure, this new impenetrable barrier, solely for misbehaviour or incapacity. Grounds such as inefficiency or incompetence would be inadequate. I accept that it is a necessary quid pro quo that to safeguard judicial independence it is important that superior court judges who may, as the Minister of State is well aware, decide issues of major controversy against the interests of the Executive are not answerable to the Government or the Houses of the Oireachtas on a quotidian basis. Part of the price we pay to secure their independence is that, in their case, we sacrifice normal job performance assessment criteria. We can move to dismiss a High Court or Supreme Court judge only where standards are breached which has serious consequences for public confidence in the administration of justice. For the judges of these two courts, there is the nuclear option of impeachment on grounds of misbehaviour or incapacity but no lesser sanction.

The Government not only proposes to extend these immunities to cover judges of all the lower courts, it is also making the whole impeachment process much more difficult. In short, there will be less, not more, public accountability. District Court judges will have the same constitutional immunities granted exclusively to one individual under the Constitution, Úachtarán na hÉireann.

Extending the prohibition on removing superior court judges, except by way of impeach ment, to cover the judges of all courts might be acceptable if it was done in the context of introducing a comprehensive system of judicial discipline covering cases falling short of impeachable offences. If the Constitution is to be changed to make it more difficult to remove judges, which, patently, is the proposal of the Government, perhaps an acceptable system could be put in place whereby more limited sanctions could be applied. The Government's proposal, however, is to create an investigative body which further demonstrates that it is unable to tackle these basic issues. The Minister proposes a new judicial conduct committee which will be totally ineffective because it will not be able to take any action against a judge it finds guilty of misbehaviour. It will not even be allowed to consider if a judge is guilty of a less serious charge such as incompetence. At the end of its investigation, under the terms of the constitutional amendment, its constitutional function will be confined to making recommendations and findings of fact. While the terms of the constitutional amendment have been spelled out, we have not seen the legislative proposals. The grounds for an investigation by the new body are confined to cases of misbehaviour or incapacity, the very grounds for which impeachment is the sanction. Lesser charges, therefore, will be outside its remit.

The Minister talked about filling the gap, but his proposals, most certainly, do not fill it. What is to be done once recommendations are made? The Minister is twisting plain English to state that the new judicial conduct committee will be able to admonish somebody. In a recent statement the Minister said that it could direct that they retrain, which would, patently, be unconstitutional. The only actions of the committee that will be constitutional will be the making of findings of fact and recommendations. An admonition is not a recommendation. If the committee recommends that somebody else should admonish someone, who will implement that recommendation? To whom is the committee supposed to make its recommendations since under the Constitution nobody else will be able to sanction a judge? Clearly, the constitutional amendment has been ill-thought out. The Minister is, retrospectively, defying the laws of plain English to justify a concoction of a constitutional amendment that does not merit the support of the people.

The Hamilton committee proposed the establishment of a body which could impose so-called moral sanctions. Its scheme involved a judicial conduct and ethics committee to consider all questions of judicial conduct and ethics arising in particular cases. The body would have power to issue a private reprimand to a judge, a public reprimand, or recommend to the Attorney General that the Government consider tabling an impeachment resolution.

The committee included provision for recommendations that a judge be requested to attend courses of counselling or treatment and that the president of a court be requested not to assign duties to a judge for a specified time. It was anxious to describe the sanctions it proposed as moral rather than legal in nature. The vital consideration to bear in mind, however, is that its proposals were drawn up on the basis of no change in constitutional terms. It was attempting to draw up a scheme which could be implemented by ordinary legislation under the Constitution. In that context, it was at pains to indicate that, because it was proposing only moral sanctions:

the constitutional scheme, under which the only body which can impose legal sanction on a judge is the Oireachtas in the form of a resolution calling for his or her removal, will thus remain unaffected and it could not plausibly be suggested, in our view, that there is any constitutional frailty in the scheme we have proposed.

The absurdity of the Minister's position is that he has adopted the committee's proposals which it drew up as the furthest it could go in the current constitutional climate, but he is proposing to change the Constitution in order to enable it to do something that it can do already. Why have a referendum on this issue when judges say that there is no need for one? If we want to hold a constitutional referendum – we need one – let us do something meaningful. In a series of proposals that I have forwarded to the Minister, the Labour Party has spelled out an alternative scheme. Unfortunately, I do not have the time to spell out the proposals now, but I will do so as soon as a debate on these matters is instituted.

While no one doubts that judicial accountability is a difficult subject with which to deal – there are complex constitutional principles involved – no one can doubt nonetheless that there must be accountability. The O'Flaherty affair did enormous damage to public confidence in the judicial system. People genuinely believed that there was one law for a category who were well connected and another for the ordinary person. Those fears deserved a better response than that provided by the Government. Perhaps the Minister hopes the public memory of the O'Flaherty affair has, as the Tánaiste once hoped, subsided. If he presses this particular set of proposals, however, the Government will be surprised yet again. I hope the Minister will be open to listening to the arguments from this side of the House on which I hope he will engage in debate on Committee Stage. If these flawed and dangerous proposals are put to the people, the Labour Party will do all it can to defeat them.

Debate adjourned.
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