Dáil Éireann debate -
Tuesday, 1 May 2001

Vol. 535 No. 1

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

Atairgeadh an cheist: "Go léifear an Bille an Dara hUair anois."

Question again proposed: "That the Bill be now read a Second Time."

Minister of State at the Department of Justice, Equality and Law Reform (Ms Hanafin)

Is mian liomsa labhairt ar an ábhar seo, ceann de cheathrar a bheidh ag dul os comhair an phobail go luath. Aon uair a bhíonn athrú Bunreachta á chur os comhair an phobail is ceart dúinn labhairt ar an ábhar sin agus ár gcuid dtuairimí a chur trasna.

The Twenty-second Amendment of the Constitution Bill gives us an opportunity to look at the rights which are in the Constitution. One of the rights which were enshrined in the 1937 Constitution is the unenumerated right to fair procedures. The State is obliged to ensure the existence and effective implementation of a constitutional scheme of fair procedures and that is included, unenumerated, in Article 40. Inherent in that scheme must be an effective system to address and rectify any wrongs that have been done. In this regard, the State is obliged to ensure, not just that wrongs are righted, but that perceived wrongs are addressed and seen to be addressed. Such established wrongs must be seen to be addressed in a proportional manner. Corrective action or punishment which is excessive or unwarranted, would also offend the constitutional requirement of fairness.

The existing constitutional structure is deficient in that it does not readily provide a proportionate remedy for persons who feel that a constitutionally appointed judge has behaved improperly. The power to remove a judge from office for stated misbehaviour is reserved, by Article 35 (4), to the Dáil and Seanad. It is proper that such a severe sanction be reserved to the elected representatives of the people. However, it follows that methods of checking perceived judicial misconduct should be reserved to the Houses of the Oireachtas. Indeed there are sound constitutional reasons why this should not be so. The doctrine of separation of powers, which has been referred to with approval in many decisions of the Supreme Court and on many occasions in this House, have served the State well. Its implementation ensures the existence of an independent judiciary. It also ensures that the executive powers of government are carried out only by those who are elected by the people. It ensures that the Government, which exercises executive power, is answerable to the Dáil, which is answerable to the people.

The courts have no role in the governmental exercise of executive power, save for one important exception. The Constitution is a document, not of the courts or the Oireachtas, but of the people. The powers of government must be exercised in accordance with the requirements of the Constitution and, if they are not, the courts are entitled to intervene on behalf of the people. Chief Justice Fitzgerald, delivering judgment in Boland vs An Taoiseach in 1974, explicitly recognised that this was so when he stated: "The courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution. The political task of levying taxes, determining priorities and apportioning public funds, is a task for the Government, which must discharge those duties in accordance with Article 28 (4), which states (1) that the Government shall be responsible to Dáil Éireann and (2) the Government shall meet and act as a collective authority and shall be collectively responsible for the Departments of State administered by members of the Government."

Our scheme of constitutional government requires that the executive functions of government are carried out by individual Departments of State and it also requires that the Government remains collectively responsible. In relation to issues of policy, individual Ministers are not answerable to the courts. In relation to the administration of justice, individual judges are not answerable to the Oireachtas. We must ensure that whatever changes are brought about, they do not do violence to this constitutional separation of functions.

The existence of a doctrine of separation of powers is not a reason to do nothing on the issue of potential judicial misconduct. It is, however, a reason to exercise significant caution. For members of this House to seek to take on the role of examining or criticising the day-to-day conduct of individual judges, save in the exceptional circumstances envisaged by Article 35 (4), would be just as wrong as it would be for individual judges to seek to take to themselves a supervisory role in relation to the exercise of the executive functions of government, save in the exceptional circumstances set forth by Chief Justice Fitzgerald.

Such constitutional changes as the people may decide to bring about in relation to the judiciary, must be cautious and limited. They must be sufficiently broad to bridge the existing lacuna and sufficiently limited so as not to give rise to any inappropriate interference with judicial independence. The proposals introduced by the Minister meet those requirements. They permit facilitating those who have grievances, real or apparent, in relation to judicial conduct a means of addressing their grievance in a proportionate manner which will not improperly interfere with judicial independence. There is a measure calculated to increase rather than diminish respect for judges in the discharge of their constitutional duty. It should not be seen as a crank's charter, an extra constitutional court of appeal or a fetter on legitimate judicial independence. It is a measure which is appropriate and necessary.

The measures which the Minister has suggested in this Bill, involve two major proposals. Article 35 (4), allows for the establishment of a body to investigate, or cause to be investigated, possible misbehaviour by, or incapacity of, persons while holding the office of judge. The new Article 35 (5) is a new provision for removing a judge for stated misbehaviour. There is a need for change to enhance public confidence in the judiciary and to support the independence of judges. This need has been recognised by a number of different groups, including constitutional review group of 1996, the all-party Oireachtas committee on the Constitution and the committee on judicial conduct and ethics.

The new judicial council to investigate complaints of misbehaviour and incapacity, can make reports and recommendations. This is an appropriate forum in which to deal with such complaints. At present, there is no forum to deal with complaints other than those which would warrant a judge being removed from office. We have seen various circumstances and various occasions where people have expressed disquiet and have felt that some form of investigative complaints procedure should be put in place in relation to actions by judges. Bearing in mind what I have said about the separation of powers, this judicial council would mean that judicial independence would still be guaranteed, because the investigation would be carried out by a judge or by a group of people, the majority of whom would be judges. It is important that judicial accountability should arise out of sanctions which are not, in their nature, legal sanctions but are in fact moral sanctions. The provision to remove a judge from office is, of course, already in the Constitution, by decision of the Houses of the Oireachtas. Such a decision might be made by one Government or, indeed, by one party with a simple majority.

It is right since we are putting other procedures in place that we should strengthen the procedure by which we can remove a judge from office. It is also noteworthy that the role of the courts is changing so much that giving better security of tenure to judges of the lower courts will also allow for the impeachment of judges of those courts. Their roles are changing as are their substantial responsibilities and the extra work which is being put upon them by the Courts and Court Officers Bill. The change in the Constitution will protect them and will also protect the separation of powers. By putting this proposal before the people I believe that they are willing to accept that the judicial council is necessary, that it will guarantee the separation of powers and judicial accountability. It will also protect their independence and will ensure that both the Executive and the Judiciary are more accountable to the people. Tá mé lán cinnte go mbeidh an pobal sásta an athrú seo a ghlacadh.

Mr. Noonan

The Judiciary plays a pivotal role in the operation of democracy in this State under Bunreacht na hÉireann. Since the foundation of the State the impartial, independent and fair manner in which the justice system has been run by our judges, from District to Supreme Court, has served to maintain, strengthen and deepen our democracy.

In a republican democracy such as Ireland's, the trust and confidence of the public enjoyed by the Judiciary is vital life-blood for the operation of our court system. The citizens of a republic can justifiably expect to lead fulfilling lives in the knowledge that they are protected by a democratic core principle – that the rule of law is applied in an even-handed way and that all are equal before the law. Anything that threatens to erode that trust or weaken our confidence in that principle is a threat to one of the foundation stones of our democracy.

Regrettably, events of the recent past have done just that. Misconduct by a minority of members of the Judiciary has had a damaging and corrosive effect on confidence in the judicial system. It is essential that neither wealth nor connections influence, or are perceived to influence, judicial decisions. It is crucial that the Judiciary behave in a manner that is above reproach and that there be in place proper mechanisms to investigate and adjudicate on allegations of judicial misconduct.

As a consequence of the Sheedy affair, it is widely recognised that there is a need to reform the existing constitutional provisions relating to judicial impeachment and to replace them with more elaborate and detailed provisions. A need was also identified for new mechanisms to deal with allegations of judicial misconduct, the nature of which should not require resorting to the nuclear option of impeachment.

The new constitutional provisions in the Bill, which are intended to address these issues, are fundamentally flawed. Those flaws were identified and dealt with by Deputy Shatter, Fine Gael's Justice spokesperson, in this Chamber on 10 April. A body is to be established to investigate allegations of judicial misbehaviour or incapacity. While the new proposed article states that the body shall include judges and one or more persons who are not judges or former judges, it does not state the number of judges who will be a member of such body, who is to select the judges to be appointed, how long a judge is to serve, who is eligible for appointment who is not a judge or former judge, how many persons who are not judges are to be appointed, whether lawyers other than judges are to be appointed, whether lay people are to be appointed, how long the non-judicial appointees are to serve on the body and who is to appoint them.

This new body is empowered "to make and publish findings and recommendations on allegations investigated by it". When first announcing this legislation, the Minister for Justice, Equality and Law Reform stated that this new body would be empowered to reprimand members of the Judiciary who are found to have misbehaved. However, no constitutional authority to reprimand is contained in the article published by the Minister. The provisions concerning this body do not detail how its power to investigate allegations of judicial misbehaviour or incapacity is to interact with, and affect, the power of impeachment conferred on the Oireachtas.

This new article provides for the enactment of legislation to give effect to the provisions concerning the establishment of this body. Presumably, this will address some of the unanswered questions detailed by me. It is unsatisfactory that the Government should require the Dáil to complete its deliberations on this new provision without giving Members an opportunity to consider in detail the draft Bill the Government proposes to enact should a majority vote in favour of constitutional change. It is outrageous that people should be asked in a referendum to sign a political blank cheque authorising the Government to enact whatever legislation it wishes without the detail of that legislation being properly prescribed and constrained by constitutional provision. This measure should not be considered further and no vote should be taken on it in this House without the Government first publishing the draft legislation it proposes to enact. The Taoiseach may feel comfortable with signing blank cheques but the Fine Gael Party will not sign any blank cheque for this Government. I believe that as a consequence of the Sheedy and O'Flaherty affairs, the people, rightly, do not trust the Government when addressing issues relating to the Judiciary. Fine Gael will urge the electorate to vote against this flawed change in the law.

The reforms required concerning the impeachment procedures of the Houses of the Oireachtas must be such as to ensure that, should it prove necessary to invoke the impeachment process, it is seen to work both fairly and efficiently. The reforms proposed by this Government, if enacted, will create new obstacles to the use of this fundamentally important constitutional mechanism and render it practically redundant. At present, on the vote of the majority of Members of this House, the impeachment process can commence. If a serious allegation of judicial misconduct needs to be addressed, there is no valid constitutional reason to require that the motion tabled calling on the House to investigate this allegation be signed by 30 or more Members. If a majority of the Members of either the Seanad or the Dáil vote for an allegation of judicial misconduct to be investigated, such a vote should be sufficient for an investigation to commence and the judge whose conduct is being investigated should be suspended from judicial functions until such investigation is completed.

The Government's proposal that two-thirds of the Members of this House or of the Seanad must vote in favour of such an investigation before one can take place is ill-conceived and clearly intended to provide Fianna Fáil with an automatic political veto in this House on the use of the impeachment process to address allegations of judicial misconduct. It should not require the vote of two-thirds of the Members to suspend a judge under investigation.

The Minister for Justice, Equality and Law Reform has failed to provide a single convincing argument in favour of the fundamental constitutional changes proposed by him. The motives of the Government in attempting to rush this measure with undue haste through the Dáil this week should be treated with the greatest suspicion. Fine Gael will call on the people to vote no to prevent the Government from putting in place a measure that erects a barrier to the impeachment of judges that is a constitutional version of the Berlin Wall. It is wrong to hold the referendum on the proposal concerned with judicial misconduct on the same day as the referendum on the Nice Treaty. By doing so, the Nice Treaty could become an innocent casualty of a referendum battle over a fundamentally flawed proposal on judicial misconduct.

Mr. B. Lenihan

The Bill just published by the Minister for Justice, Equality and Law Reform contains two important proposals on the Judiciary. The first relates to the impeachment of judges for stated misbehaviour or incapacity and the second to the establishment of a judicial council which, among other things, would provide disciplinary measures for lesser forms of judicial misconduct. They are the two principal features of this legislation. Before discussing them, it is important to record the tremendous contribution which judges and the Judiciary made to the operation of our system of Government since the foundation of the State in 1922, something no Opposition speaker mentioned. It is disappointing to realise that the Leader of the Opposition is playing politics with this important asset of the State. The party which established the Judiciary and laid down its foundation in the Courts of Justice Act, 1924, has reduced itself, through Deputies Shatter and Noonan, to engaging in a crude exercise in party politics concerning the proposal to amend the Constitution.

These proposals deserve greater respect than has been given to them by the Opposition who elevated points made on Committee Stage, some valid and worthy of consideration, to points of principle. It is not behaving in a responsible manner.

The judges put forward their views on reform. The Minister did not agree with them. He went further and acted in broad accordance with an all-party committee report. The Opposition parties resiled from what they agreed to then. It is their right, under the terms of reference, to disagree with the conclusions. The Opposition was convinced of the reasonableness of these proposals in the all-party committee. However, since their introduction it has persistently sought to play politics with the issue.

Mr. Shatter

On a point of order, will the Deputy give way to allow me to ask him a question?

Mr. B. Lenihan

Absolutely.

An Ceann Comhairle

It is usually left to a later stage after the Deputy's contribution, but he has indicated his agreement.

Mr. B. Lenihan

I am agreeable to Deputy Shatter posing any question he wishes.

Mr. Shatter

In the context of the Deputy's contribution, he might explain how the all-party committee's recommendation that issues of impeachment be dealt with by a majority vote of the House, can be reconciled with the Minister's proposals that it requires a two-thirds vote of the House even to investigate an allegation of judicial misconduct.

Mr. B. Lenihan

I have every intention of dealing with that matter, but there are certain points of principle – and we are on Second Stage, not Committee Stage –—

Mr. Shatter

I would have thought that it was a fundamental principle.

An Ceann Comhairle

Deputy Brian Lenihan without interruption, please.

Mr. B. Lenihan

The point of principle is that there is substantial reform of the current procedures envisaged in this legislation. The All-Party Committee on the Constitution was founded on foot of a review group established by Deputy Bruton. It did a detailed analysis and Deputy Bruton secured the agreement of all the party leaders to establish a committee to look at the review group. The Taoiseach, as leader of Fianna Fáil, agreed to participate in this and renewed it on the formation of the present Government.

This is the first proposal from the All-Party committee. There is little point in having an all-party Committee on the Constitution if the Opposition take that kind of approach to constitutional change.

Mr. Shatter

Or if the Government ignores its recommendations.

An Ceann Comhairle

Deputy Shatter will have his opportunity.

Mr. B. Lenihan

I will deal that matter in a moment.

An Ceann Comhairle

Please, Deputy Lenihan without further interruption.

Mr. B. Lenihan

I am talking about the spirit in which the Opposition parties have treated these amendments.

Mr. Shatter

The Government ignored the recommendations of the committee.

An Ceann Comhairle

If Deputy Shatter continues with this disorderly behaviour I will have to ask him to leave.

Mr. B. Lenihan

I will not waste the House's time dealing with the bizarre character of Deputy Shatter's contribution. A proposal was brought forward by the Minister, in accordance with the broad spirit of the committee's recommendation. The Opposition seeks in this debate to raise political hares. That is disappointing especially in a party such as Deputy Shatter has the honour to represent, which always had respect for the Judiciary and judges and talks about the institutions of State. We have a duty in this House to secure and improve those institutions.

The Government should not proceed with this proposal if all-party agreement is not forthcoming. I am sceptical of it, and urge the Government not to proceed given the spirit of the Opposition's approach. We should not have a referendum to reform and improve the Constitution—

Mr. Shatter

That is a neat way of personally disagreeing with it.

Mr. B. Lenihan

—if the Opposition is not prepared to examine any reform proposals constructively.

If we do not have this constitutional reform of the Judiciary it will be because of the Opposition's attitude in the debate. The independence of the Judiciary, and the people's respect for it, is not something to be cast aside for specious barrack room lawyering by the Opposition. We should not have a referendum or a popular debate on the subject if it is not prepared to be constructive.

Deputy Shatter requested me to deal with the committee's recommendation on what proportion of the membership of the Houses should consider this question. This was that the appropriate majority was of the total membership of each House, both in referring the charge and the impeachment. The committee also recommended, with no objection from Deputy Shatter's party, that 30 Members should sign the necessary notice of motion, despite the objection to this made by the Deputy in his contribution. He said that the committee did not reason that conclusion. It did reason it because they felt that the procedure which applied to the President should also apply to judges of the High and Supreme Courts.

The Minister took a different view on the necessary quantum of the majority to either prefer a charge or impeach a judge. It is an argument that can be pursued in a balanced way. The Minister will make announcements this evening to address the points raised in the debate.

The crucial question for Deputies Shatter and Howlin is that this debate is too important to let it go off the rails on a party political witch hunt. The issues of principle should be distinguished from those of detail. The principle of establishing a judicial council with a lay element to investigate allegations or matters of dispute about judges' conduct is agreed by all parties. The issue of principle that the impeachment provision should be revised did not stem from the review group but because, following the Sheedy affair, the Ceann Comhairle wrote to the party leaders about it. The committee looked at it and reached a conclusion.

The matters of detail raised by the Opposition are for Committee Stage and should not form the basis of the kind of contribution made by Deputy Noonan when he said that he would urge the people to vote no because of what he read to date. If that is the Opposition's approach to constitutional reform, the people will not entrust it with the mantle of Government in the next general election. It is wholly irresponsible to a part of our Constitution which Mr. de Valera drafted with extreme precision, elegance and ability. Further changes should be contemplated only with great caution. The Minister did this. The Minister has introduced certain modest proposals for the improvement of current arrangements. We have been subjected to a deluge of partisan abuse from Opposition parties who do not really care about the institution of the Judiciary. That is the only conclusion a reasonable person who has followed the debate to date could draw from the tenor of the contribution of some Opposition speakers. Of course, we know why that political line has been taken by the Opposition, namely, because there was a grave controversy in relation to the Judiciary during the current Dáil, and because the Opposition wants to milk it to the best of its political ability. I understand that, but there should be a disinterested look at this important issue.

The Minister of State, Deputy Hanafin, mentioned the separation of powers and the various considerations which apply. It is clear that the Houses of the Oireachtas or those we appoint as Ministers cannot be given any detailed role in relation to the scrutiny of judicial behaviour as that would wholly infringe the principle of the separation of powers. It is an important principle in our system of Government and any discussion we have in the House must take account of it.

The advantage of the revised impeachment procedure proposed by the Minister is very clear. There is a clear division of function between both Houses of the Oireachtas, there is a clear distinction between the charge and the hearing, there is a requirement that a minimum number of Members initiate the charge and there is a clear recognition of the right of the charged party to appear and be represented at the hearing of the charge. These were taken from the report of the committee in which Deputy Shatter's party participated. I accept his party is entitled to resile from that view and express what view it wishes.

The committee believed that a simple majority of the total membership should suffice to remove a judge from office. The current voting arrangement permits a majority of the Members present and voting to remove a judge. The requirement that a simple majority of the total membership so vote precludes abstention and compels Members to exercise their responsibility in what is a very serious constitutional question.

A crucial issue arises under this legislation as to how the circumstances surrounding a possible impeachment are to be investigated. The adoption of the presidential procedure would mean that one House would prefer the charge and the other would investigate it. The investigating House would be empowered by way of an alternative to cause the charge to be investigated. The committee believed the House investigating the charge should have the pivotal role of directing what inquiry should take place. The Minister for Justice, Equality and Law Reform, in the amendment which changes the impeachment procedure, follows in broad outline, certainly for the purposes of Second Stage, the views of the all-party committee.

In considering less serious misconduct it is important to distinguish judicial decisions made by a judge in court and the behaviour of a judge. Judicial decision making, which is the core concern in relation to the independence of judges, is subject to an appeal system of the courts themselves, a system which is wholly open. The issue of misconduct can be dealt with separately. The various committees which have examined this question have recommended that a judicial council should be established with the capacity to impose moral rather than legal sanctions. The reason the various committees came to that view is that a judge must be personally independent in the exercise of his or her functions and cannot be forced to subject himself or herself to a collective public opinion, either of his colleagues or this House, in arriving at decisions. That is at the core of the issue regarding the separation of powers and is why we must be very careful while protecting and refining the ultimate option of impeachment not to invent sanctions which would create a climate where judges would be subject to pressure in arriving at their decisions. That is one of the great dangers in imposing real legal sanctions short of impeachment. The individual personal responsibility of the judge, which is at the heart of the common law system and to which every judge on entering office must publicly subscribe, must be observed by every judge in the conduct of his or her office and be transacted in open court. We had the regrettable controversy which has given rise to so much of this difficulty because matters were not transacted in open court.

I appeal to the Opposition, perhaps on a less partisan note, to be careful to ensure the preservation of that core principle, namely, that the judge has a personal responsibility, quite apart from any collective system established by the Judiciary with lay participation, and quite apart from the ultimate sanction which this House must have, which is part of the constitutional balance we must preserve. This is not something which should be lightly set aside, but something about which we must be very careful. I appeal to the Opposition to address the substance of the legislation in this context. This Bill is too important for party politicking. It is easy for a Government speaker to urge that point on the Opposition, but I repeat that if the proposals before the House do not command support from the Opposition parties, the Government will have to look again at putting them before the people.

This is a valuable and important reform, and if it is to be set aside because of barrack room lawyering on the other side of the House, so be it, but let not Fianna Fáil be accused of not being prepared to take on progressive constitutional reform on this issue, to explain to the people what is afoot and to put a rational proposal before them. As a party in Government we have no fear of doing that. It is for the Opposition to decide whether it will persist in the attitude it has displayed to date or address the serious issues raised by the controversy referred to in the Sheedy case, in the letter which the Ceann Comhairle wrote to the party leaders, in the various committees presided over by Justice Denham which have produced such admirable reports and in the report of the all-party committee. These issues have been discussed at length. We are dealing with a very sensitive balance between the institutions of State and are trying to draw a line between the responsibility of the judge, of judges collectively and of the Houses of the Oireachtas and the Government. We must be careful in these matters and look at them in the spirit in which the founding fathers of the State would wish.

When Dáil Éireann was set up in 1919 it was not afraid to establish its own courts in opposition to the imperial courts which then exercised jurisdiction in the country. The republicans were never afraid of establishing our own legal system, and this is another step in the establishment of a legal system which belongs to the people and which dispenses justice in an independent and impartial way.

Mr. Durkan

I am not sure I agree with Deputy Lenihan's dissertation. It is not true to say the Opposition, for purely political reasons, wishes to undertake a witch hunt. Everybody is anxious to respond to the situation which developed over the past couple of years and to try to avoid a repetition. It is in the interest of all parties in the House, and of the House itself, that such an event does not recur.

Reference has already been made to the separation of powers, which is important. I have no legal training, but we should try to superimpose the proposed legislation on the situations which have developed over the past couple of years to see how it works.

There is a worry on this side of the House that under the proposal before us the House could find itself in a worse position and have its hands tied to an even greater extent then previously. Lest I appear to suggest that the House should interfere in the courts in relation to the separation of powers, we must revisit that issue as often as possible to clearly define where the responsibility of each begins and ends. In the past the House has tended to stray into the judicial area. However, the reverse has also happened on more than one occasion. We should have due respect for the institutions of the State, but the institutions of the State should have respect for the Houses of Parliament because the Houses of Parliament are the driving force in all such situations. They are not always right but they try to be in so far as they can.

In politics, there is always a tendency for the Opposition to seize the initiative at the expense of the Government and vice versa. That is the political system we have, and it has worked reasonably well over many years. In countries that have replaced that system with a different system things have not worked so well. This situation comes down eventually to the whole question of the separation of powers. In the context of this legislation, I can think of another incident and other cases which I will not detail.

We argue among ourselves about where accountability begins and ends in this House. That will become much more important. Almost 90% of institutions set up by the State are accountable to a Minister, but the Minister is not accountable to the House. The late Brian Lenihan used to call them quangos and he fought against them all his life. He was absolutely right to do that because whenever a Minister is not accountable to the House it has no control, and the result is tribunals of inquiry to inquire into how certain situations were dealt with. We are the Houses of Parliament and it is ridiculous that we have to plead and beg to inquire into people's activities. I am not referring to any one situation. There have been scores over the years. Every week I table questions in this House on different matters only to be told that the Minister has no responsibility to the House in regard to them. To whom are Ministers accountable? They dictate policy, that policy gets the imprimatur of the Houses of Parliament and, ultimately, Ministers must provide the necessary funding to allow the body in question to exist. It is most peculiar that various quangos that are paid for out of the State coffers are virtually autonomous, are not accountable to the House but are accountable to the Minister, but not in relation to the day-to-day running of their affairs. That is unacceptable. During my time in this House – there are people who have been here a lot longer than I have – I have seen the creation of many bodies of that nature and it is frightening because on each occasion we have handed over more and more powers.

The same thing is happening at European level. Autonomous bodies are now accorded greater respect and there is greater decorum in dealing with them than with Members of Parliament, and Members of Parliament are pushed into a situation where they become cannon fodder. When decisions are taken that are perceived not to be in the public interest, public anger is vented on parliamentarians, be they national or European, and not on the body which made the decision. The perception is that the parliamentarians approved the budget that provided the facilities for the body to do whatever it wanted to do and that, therefore, parliamentarians are responsible if the body does something wrong. Occasionally the Minister is blamed but, generally speaking, Parliament is blamed because the Minister is supposedly accountable to Parliament.

We need to be extremely careful here. I listened to the debates on the monitor and I agree with much of what has been said on both sides of the House. Apart from scoring political points – that is par for the course and if politicians did not do that here they would not be doing their job – there has been a clear theme running through the speeches, and that is the concern at the erosion of parliamentary powers, the handing over of power and authority to bodies which have no right to them.

Are we improving the situation here or just papering over the cracks? We must ask ourselves whether more radical reform than this proposal anticipates is necessary? I have the greatest of respect for the legal profession and the Judiciary. We sometimes make pseudo-legal speeches in this House, and the Judiciary is not above making the odd political statement. That has been par for the course over the years and one can find ample evidence of it in the newspapers, but it is not a bad thing. A little bit of movement is healthy enough except where one side usurps the authority of the other.

Let us look at the most recent event to which Deputy Lenihan referred. I feel sorry for the main players and the victims. What can start quite simply may suddenly become far bigger than was ever anticipated and people on both sides of the line can fall very fast. Such a situation can accelerate and take on a life of its own. A minor controversy can suddenly become so great that both sides are affected in a detrimental way by it. One of the players in that controversy indicated that he wanted, and probably did at the time, to come before a committee of the House to explain, but having considered it, withdrew his offer at a later stage, I suppose for very good reasons. One thing that will have to happen eventually in regard to this House is that if somebody offers or is asked to come before a committee of the House they will have to do so. Otherwise the House will have to review its powers for the future. If it does not, there is a grave danger that the House will be treated with a certain amount of contempt. If that were to happen it would create many serious problems down the road.

It is said cynically that politicians do not have the highest standing in the eyes of the public. It follows that the Houses of Parliament do not have a great standing either. However, the same would probably be found to be true if one examined any other trade and profession. In the present climate there is need for a recognition that, whatever else, warts and all, Parliament deserves a certain amount of respect, but Parliament itself must do its business in an upright and honourable way to command that respect. This fledgling State was able to do that and did it for a very long time. It is still doing it. The danger is in departing from that and going for the quick line, for quick publicity and, in doing that, running into difficulty and falling foul of somebody outside. There will always be a danger in the quick line of publicity in that we will fall foul of somebody outside and will run into difficulty.

I refer to this proposal in relation to impeachment. When I was first elected to this House I remember talking to colleagues about a judge who had said something particularly obnoxious about politicians generally – this is going back quite a number of years. Some Members of the House were upset but other Members, with somewhat longer experience, were not so upset and took a totally different line on the issue. They said that if the guy was so full of his own importance, he should come and tell us face to face and that they would give him an opportunity to do so. That was confrontation. The theory was that the judge in that situation was asking for it, but we do not know. As it happened, it did not turn out in that way, but it was heading in that direction. Such a situation could arise in the future. The question of impeachment, as dealt with in this or the previous proposal, is an option to which one should not resort readily because it brings the two institutions into conflict. Bringing them into conflict in that fashion presents a grave danger.

The people's decision must always be respected and they will make that decision based on the information put before them. It is up to us on both sides of the House to present that information in the most palatable and digestible fashion possible and, hopefully, the right decision will be reached. In the final analysis, it boils down to one issue. We, in this House, need to preserve the integrity and standing of the House while at the same time have respect for other State insti tutions which, along with this House and the Executive, deliver and provide for the State generally in the area of public administration.

Mr. Roche

Understandably, much of the focus in the debate to date has been on the issue of judicial removal and impeachment. Given the need for a very rigid arrangement if an impeachment issue is to come to pass, it is understandable that the focus should be thus. I want to focus, however, on the second issue which is touched on and which has been largely neglected in the debate. I want to touch on the issue of judicial misbehaviour, incapacity and incompetence. The minor tragedies acted out in the name of Ireland in our courts daily are, frankly, of more concern to me than the magisterial issues raised in the Sheedy case.

"Who judges the judges, who guards the guardians", the old question put by Juvenal, the Roman poet, is as valid today as when the question was posed 2,000 years ago. The question is particularly relevant in Ireland where the judicial class has been elevated to a status which is almost mystic. In fact, it is interesting that I used a quotation from Juvenal because the only experience I have of reading of a class so elevated was in books about the Caesars – they were untouchable. The reality is that the judges, our Judiciary, our courts and our courts system are as frail and as capable of incompetence, as capable of mistake and error as any other frail human institution.

There is, however, I suggest to the House, very clear and disconcerting evidence of periodic – indeed, I would go further and say almost episodic – lapses in the Irish Judiciary. We have remained blind, or we have chosen to remain blind, to those lapses. We have chosen to ignore the lapses of a class which we regard as sacrosanct and untouchable. In recent years, there have been quite extraordinary and disgraceful examples of cases where there have been undue delays in reaching and issuing judgments. Justice must not only be done, but must be seen to be done and must be done with a relative degree of expedience. That is not always the case in our courts and it certainly is not always the case in the senior courts in this land.

Two such cases are currently the subject of complaint about Ireland to the European Court of Human Rights. The propensity of some judges to hold on to cases for protracted periods is well known among the Judiciary, in the Law Library and in this and in the other House but we have all chosen to ignore that reality. In the Flattery case, for example, which is now complete so I can mention it, a dying woman petitioned one of the most senior members of the Judiciary to resolve her case, hand down the judgment and release her estate and the patrimony to her children before she died. Her appeals, her entreaties, fell on deaf ears. Justice in that case was not just blind but was pathologically deaf. The judgment was only issued after Mrs. Flattery passed away. It has since gone to the European Court of Human Rights and I believe the State will be making a settlement.

That case should never have happened; it should not have been tolerated. It was well known in the Law Library and in some sectors of the media which were fearful to comment for fear that they would have found themselves in difficulties with the court. It was known in this House and it reflects very badly on the Judiciary, on this House, on the other House and, indeed on the media that nobody cried halt in that case. A dying woman wrote to a judge explaining her position and simply asked that a judgment, which was two or three years delayed, be handed down. It would not happen in a Third World country. When something similar happened with a High Court judge in the United Kingdom a number of years ago, he was invited to depart from the bench after 18 months. We have no such arrangement in this State.

The Doran case, described in the Bar Review as the little house of horrors, which has been resolved and which I can mention here, was an example of the judicial system, rather than vindicating the rights of a family, virtually crushing the family. I sat in the High Court and the Supreme Court during the hearing of that case. A combination of extraordinary incompetence and tardiness which should not be accepted in a junior court, which would not be accepted in the administrative structures of this State and which can reasonably be described as breathtaking, marked the painful and pathetic progress of that case through the High Court. It took so long for that judgment to be written – the case lasted for only a matter of days – that two Attorneys General expressed their personal concerns. The usual devices to try to persuade the judge to extricate his papers were engaged, all to no avail.

A ray of hope, a ray of light, in that case was the extraordinarily clear and unequivocal judgment unanimously handed down subsequently by the Supreme Court totally and absolutely vindicating the family and finding the High Court judgment deficient in each and every regard that was challenged. I will not mention the High Court case that followed later in the matter of compensation and costs; the less said about that one, the better. However, the facts of that case are such that they clearly illustrate the need for a council to examine the behaviour of a court and a council to intervene where a case has clearly lost its way; not to interfere with the judge in the exercise of his judicial responsibility but to ensure that there is competent administration in the court. At present there is no institutional arrangement in operation in this State to properly intervene and discharge that responsibility. That is an oversight which I have highlighted in several debates here and in the Seanad. It is one of the reasons I am pleased the Minister is taking this action. One of the reasons I hope the matter does not become clouded by partisan debate or point scoring is that reform in this area is so desperately needed.

The Doran case is again before the Court of Human Rights. Regrettably, official Ireland is showing no more compassion or even common sense than was shown when the case was before the courts where it was mislaid on a judge's bench. Some of the submissions to the Court of Human Rights I have seen are shameful. They are as unrepresentative of the views of this House or of the people, if the facts were known, than the original activities in the case. Official Ireland, through the Department of Foreign Affairs, has recklessly misrepresented the facts of the case and is again placing a huge burden on the family which has already been put through the mill by the High Court and by extraordinary delays. It is not willing to accept the injustices done but has instead invested considerable ingenuity and public funds in muddying the water and trying to defend the indefensible.

Judicial delay is not the only injustice the people suffer. I am pleased Deputy Shatter is present because he could bear me out on this. The behaviour of a small minority of judges, especially in the in camera courts, is a cause of grave concern. In recent years there have been disconcerting reports and complaints of harassment, bullying and discourtesy by judges in these courts. They are well known. One man on the Bench in Dublin would not be tolerated anywhere else.

An Leas-Cheann Comhairle

It is not appropriate to refer to judges.

Mr. Roche

I am not referring to judges but to the behaviour of a well known individual on the Bench. I am not identifying him because he works in an in camera court.

An Leas-Cheann Comhairle

Members of the Judiciary are independent by virtue of the Constitution and there is a long standing rule that they may be neither criticised nor have their rulings referred to in the House except on a substantive motion.

Mr. Roche

I do not refer to a specific judgment but to unacceptable behaviour. It is a cause of concern when a judge harasses a woman who seeks custody of her children, when he insults her, treats her like dirt and threatens to put her in prison. Members of the legal profession find themselves impotent before them.

There is a lacuna and a problem with a small minority of judges that has not been addressed by the State and will not be until these procedures are implemented. Members of the Judiciary are as aware of the problems as members of the legal profession, people who sit in the courts and as I am. Their long-standing silence is not to their credit.

I have the utmost respect for Ms Justice Denham. She has done remarkable work but her review of this area is disappointing. The Keane committee is weak. I do not accept the suggestion that there should not be any lay people on the judicial council nor the proposal that it should be formed entirely of judges. The suggestion that a complaint would go before a three person panel only after it had been passed by the disciplinary committee of the judicial council, only one of whose three members would be a lay person, is deficient. These proposals are to be put to the people and they will want to see a robust arrangement in place.

There is a need to establish a council to oversee judicial conduct and those occasions where judges have been "burnt out" because of the traumas with which they must deal on an almost daily basis. They are human and frail like the rest of us. There is also a need to deal with occasional cases of gross incompetence. Such a council would help to maintain the credibility of the Judiciary.

Any arbitration mechanism or review machinery put in place must not only be independent but accepted by the supplicants as independent and approachable. If and when appointed, the committee on judicial conduct and ethics must be seen to not just represent a vested interest judging itself. The judicial class is no more capable of judging itself than the political class or any other vested interest.

Some of the arguments put forward are extraordinary. I have no difficulty with the idea of a special majority if a judge is to be removed. Judges must be put in place and defended to the highest possible extent. They should not be irremovable but their removal is an onerous issue that should require far more than a simple political majority of Members whipped through this or the other House. I have no difficulty with the proposal to extend this degree of protection to all judges at all levels. Once we give them this special provision and these special conditions it is not unreasonable that a judicial council to oversee the issue of judicial performance and behaviour should be strongly representative of the public. It would be wrong to be able to second-guess judges but a clear distinction is to be drawn between a judge interpreting the law and behaving in a way that is administratively incompetent or unacceptable in terms of the way in which people are handled or the consideration afforded them. I hope that the proposals will become law and that they will reflect the points raised in this debate. I also hope there will be far greater representation of lay persons than is suggested.

Ms Fitzgerald

Despite Deputy Brian Lenihan's criticisms of the Opposition, the Government's approach to this referendum has been flawed, illustrated by the Minister's intention to propose amendments. Despite this, we expect the public to respond positively to these proposals in approximately five weeks. That is no way to approach a referendum or a topic the importance of which has been well illustrated by Deputies Lenihan and Roche.

The role of the Judiciary and public respect for it is a key element of our democracy. When that respect is shaken, as it was last year, it has huge repercussions for the balance between the Judiciary and our work. It is extraordinary that the Minister's amendment contains so little detail. How can we ask the public to agree to it when so much of the detail is outstanding, amendments are to be introduced later tonight a few weeks before the referendum is to be held, there is a guillotine on this debate and when one and a half hours is allocated to Committee Stage which is to be taken tomorrow?

If this issue is of such importance to the Government, why is it approaching it in this manner? Why is more information not being given to the public and why has more time not been given to consider these serious issues? The all-party Committee on the Constitution recommended that 90 days should elapse from the publication of the details of a referendum to the holding of a vote. We do not have that amount of time in this instance. Why is that if this is such a serious issue?

The flaw lies with the Government. It is not on the Opposition side for questioning the approach. Deputy Shatter has put on the record of the House in great detail some of the concerns which we in Fine Gael have about the approach that is being adopted. Indeed, last year in our document on democratic reform, democratic revolution as we called it, which was published last summer, and when in government we committed ourselves 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. We also proposed the enactment of legislation containing new provisions for impeachment and for the imposition of lesser penalties and disciplinary procedures where appropriate. We feel that the Government has inadequately considered this in the proposed legislation, that there is inadequate detail and that some of the provisions are deeply flawed. We will be calling for a no vote, not because of any motivation attributed to us by Deputy Lenihan but because the issue is so important and because it should be referred to a committee where there should be public hearings.

This legislation should be referred to the justice committee. We should be asking interested groups and individuals to make submissions and recommendations to that committee. There should be public hearings, there should be detailed work on Committee Stage in the justice committee to tease out these important issues. It should then be put to the people. Clearly, all this cannot be done in a matter of weeks. It is wrong to approach a serious issue like this in such a manner.

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 alle gations 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 or 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 and what factors will render a judge or other person eligible for appointment to the body.

These are very serious questions and we have not been given any answers yet. I was delighted to hear Deputy Roche raise the very same questions and say that he is unhappy with the sketchy proposals which the Government is outlining at the moment. He said that he would have serious questions, given the situation he outlined, about the approach being taken.

Neither is it clear, from what we are being told, how long a member of the Judiciary or a non-judicial person will hold such membership. It is clear that there is a whole series of questions. In that case, why should the public support this amendment when so little is known about how the body will work? How can we ask the public to support this referendum when we do not have answers as to how this proposed body will work? Has the legislation not yet been prepared by the Government? If that is so, why is this the approach to such a serious issue? We should see legislation that will answer these questions.

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. This is another aspect which is not examined in any way. It is envisaged from what is published here that this body would constitutionally be empowered to make and publish findings and recommendations, but 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. In this, the new proposed Article 35.4 varies from a 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. Why is that provision missing from what the Government is proposing? The 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.

There are very serious questions that have not been answered by the Government, yet the Government comes into this House tonight with amendments, late in the evening, intends to hold a referendum in a few weeks and hopes for full support for this Bill. We would not be doing our duty if we failed to raise the questions posed by Deputy Shatter at an early stage and if we did not raise them in this House this evening. It is not reasonable to expect the public to support this referendum, given the state of current information being supplied.

Article 35.5 which the same Referendum Bill envisages being 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 resolutions passed by a majority vote in Dáil Éireann and Seanad Éireann. Under the new provisions, a charge that a member of the Judiciary is unfit to continue in office due to alleged stated misbehaviour or incapacity cannot even be considered 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.

Fine Gael believes very strongly that instead of facilitating investigation by a House of the Oireachtas of alleged judicial misbehaviour or incapacity, this proposal would create an unnecessary barrier to the commencement of any such investigation. I do not believe that members of the public or Members of this House would regard this as a good proposal.

If a serious allegation is made against a member of the Judiciary, which a majority of Members of either House believe should be investigated, the public interest demands that such investigation should occur. There is no reasonable argument that, in order for an investigation to be conducted, there should be a vote supported by two thirds of the Members of either House. The reality is that if a majority of the Members, 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. This is not the way to approach this issue. We are totally opposed to the provision and believe that a resolution supported by a simple majority of the House should be sufficient to commence an impeachment investigation.

We believe that the Government's approach and the detail of the provisions outlined to date are flawed. As they are presented at present, they would not merit the support of the public. That is not the way to deal with this important matter. We call on the Government to publish detailed legislation so that the public know precisely what they are voting for.

Mr. McGuinness

What is interesting about this debate is that it can be taken against a backdrop of demand from the public for higher stan dards both in the actions of the courts and of politicians. That debate has raged throughout the country, particularly in relation to politics. There has been a demand for greater accountability of Members of this House. The electorate is aware of the need for scrutiny at all levels of State activities, be it within the political structure or the judicial structure. There is also an awareness that the divide between the judicial system and the political system must be maintained at all costs. That stance has much merit and has served the Judiciary and the political system for many years. However, there is a need for regular reviews of how we conduct our business and how the Judiciary conducts its business. We have a view which should be expressed and we have a role to play in articulating the views put to us by the public.

There is a demand to modernise the functions of the courts. During the course of this debate there was mention of the Sheedy case, the O'Flaherty case and other cases. When this matter was discussed at the justice committee there was an open and frank debate on the issues. We had before us the procedure already in place to have these matters debated and comments to be made by members of the committee. We had the mechanism to discuss with the relevant parties the issues concerned. Despite the fact that the issues were spelled out and that the procedure was in place for any member of the committee, or any grouping on that committee, to come before the House to ask for the appropriate powers to deal with the situation, that did not happen. I am of the opinion that the Opposition opposed on that day for the sake of opposition on that issue. If it was sincere about its convictions and what it was trying to achieve it would have brought the matter to the floor of the House. In a sense, what we have here on the difference of opinion on the issue is somewhat similar.

The Government is asking for a yes vote and the Opposition, as far as I can see from the Order of Business today and the comments made outside the House, is picking minor issues in this amendment and trying to cause controversy. It is a valid amendment and is required by the public. It is a response to the current day situation vis-à-vis the judicial system, the modern system in which we should be operating, the demands of that system on the judges and the demands for accountability and greater scrutiny in the affairs of the State, be it judicial or political. There is an onus on us to correct the situation and to bring within the remit of the Dáil or Seanad the power to impeach and to create the judicial council to deal with minor matters other than impeachment and, perhaps, matters that we or the judicial council would wish to deal with in the context of some reprimand for the judges or a comment on the actions they may or may not have taken. This amendment moves towards that position and gives to this House, on foot of the judicial council, the right to comment on or to debate the impeachment of a judge. It extends that right to all judges within the system.

That is a sensible move and the two thirds majority relative to impeachment removes the possibility of a Government – a coalition or single party Government with a majority – forcing through a decision on impeachment or on the Judiciary. It also ensures that the proper debate takes place. It ensures the rights of the Judiciary even on the debate on an impeachment issue and it does not give a strong hand to any Government, or any political grouping in this House, to remove a judge at a whim or without much grounds for removal. Within that there is protection for judges, I am sure there is a right of hearing and a two thirds majority of this House or the Seanad has to be acquired before a judge is removed. It caters for any political situation that may arise.

I do not agree with the comment by Deputy Howlin who stated that a simple majority would be sufficient. That would be totally out of line with what we are trying to achieve and would not do anything for either the political system or the judicial system. Establishing the two thirds majority protects the judge or judges concerned and the judicial system and keeps at arm's length the Judiciary as opposed to the political system. That is something that is demanded of our political system by the public. It is essential that that division is maintained.

The judicial council will deal with minor issues that may arise and make recommendations on the sanctions it wishes to have imposed relative to any particular breach of best practice within the judicial system. That is the way it should be. In his contribution the Minister dealt with this issue in great detail. The other issues about which the public is concerned are impeachment and the division of powers. Another matter about which there is concern is consistency in sentencing – while it is not dealt with in this Bill it will be dealt with in future legislation – and consistency in regard to the general comments of the Judiciary relative to many aspects of political life. The public would like greater consistency within the workings of the Judiciary in sentencing and in the attitude of judges towards the political system, as we have in our attitude towards the Judiciary. That is demanded and will have to be looked at in legislation in the future. There must be a focus on how we handle the judicial system and our prisons.

We have a responsibility to the people who receive sentences from various judges as well. Any future legislation will have to take account of what is happening in modern Ireland and what our response should be to it. There is an argument that we are simply putting people away and are not dealing with the long-term position of prisoners within the system. That strays somewhat from the content of this amendment but I am anxious to underline the environment in which we are working and the demand for change that is being debated by the general public. At some stage we will return to this issue and discuss what will be required in this area.

The amendment deals with the power to impose sanctions. Impeachment is the ultimate sanction and it requires a two-thirds majority of the House. Other sanctions can be imposed in relation to minor offences. It is most important that we keep this issue at arms' length and that the function is kept away from the political system. Under the amendment there is room for the judicial council to deal with these issues and to make the recommendations required in regard to minor acts of misbehaviour. The council will have powers to deal with a wide range of incidents which might be described as misbehaviour. These recommendations will be capable of being published.

My final point relates to the number of amendments and lack of information. There is sufficient information on this issue in the various reports that have been commissioned from time to time with regard to judicial recommendations and the behaviour of the Judiciary. This is a response to the demand of the general public for a method of sanctioning judges. The House has also had an extensive debate on the issue. The demand from the Opposition is that we refer this amendment to a committee which would tease it out over a long time. There would then be a 90 day period before the question is put to the electorate. That would be dragging our heels on the issue.

Over the past year and a half there has been a demand for serious and immediate action to be taken. It is a complex area in which we must maintain the rights of the Judiciary as well as the rights of politicians. We have no wish to see the edges blurred between the two groups. The debate that has unfolded in the House has been worthwhile. The issues have been covered in the time allotted by the Government to deal with them. There has been substantial debate on the issue, both public comment and a certain level of debate among political groups within and outside the House. The questions raised are legitimate but they have been answered. The amendments that will be tabled by the Minister will deal further with the issues that have arisen since the commencement of the debate.

Members underestimate the willingness of the electorate to engage in what is happening. People are aware of the level of debate taking place and of the positions taken by the political parties. They are well informed of the issues relating to this amendment. I do not believe a prolonged debate which would involve a 90 day delay before the matter is put to the electorate would serve in any shape or form. We have done our business publicly and well. The information to be given to the public on this issue will inform people further. They are comfortable with the debate so far and understand it.

Another point raised during this debate was the number of amendments being dealt with on the same day. I believe we have not gauged the electorate as we should. People are quite capable of understanding the complexity of the different issues raised. They have informed themselves on them. Substantial correspondence was sent to each voter in today's post. Anybody who wishes to be well informed before casting his or her vote is given every opportunity to access and understand the information. The reporting of this issue and the comments of senior political figures of all parties, whether they are for or against the amendments, are also a source of information which is beneficial to the overall debate and serves to inform people. They are clear on how they intend to vote and on the positions they will take.

It is wrong to suggest that spending one or two months in committee teasing out the finer points of this amendment will result in better legislation. We were elected to legislate and it is our duty to do so. We have all the information before us. To raise the matter in a spurious manner on the Order of Business or on other occasions in the House simply to oppose the Government while not being sincere about our commitment to it, does not make for good debate. I prefer to listen to what is being said in a sensible manner. However, what I have heard so far does not deal with the issues or assist the public in its understanding of what we are trying to achieve.

I am happy to support the Minister's intentions in this regard and I look forward to what he will say this evening. The Opposition should look again at the matter and at what its Members are saying. The public is aware of what is happening and will support what the Government is trying to achieve in this legislation. I look forward to the debate concluding successfully with the Minister's contribution.

Mr. M. Higgins

The last speaker seems to have a gift of prescience not enjoyed by other Members in so far as he is able to speak about what will be introduced later this evening by the Minister for Justice, Equality and Law Reform. It is rather curious that he is equally able to estimate the state of knowledge of the public about something we have yet to see this evening.

I can tell the Deputy what members of the public are saying when they discuss this amendment. They ask simple questions such as: "What is this amendment about? We hear it is about judges". I have not heard them being told clearly by the Government that the amendment, as drafted, is a proposal to extend immunity from the superior court down to the courts which were previously governed by statute. I read the proposals as a non-lawyer. For example, judges of the District and Circuit Courts would now enjoy an additional protection.

The first question that arose was a reasonable one: what has happened to justify the increasing of the threshold for impeachment of judges of the superior court? What great action have the Dáil and Seanad taken together that puts justices at peril? Then I asked myself, what has happened to District and Circuit Court judges that they suddenly feel threatened and that they need an immunity enjoyed by judges of superior courts extended to them?

Debate adjourned.