I am told, although I am not absolutely positive about this, that Judge Curtin has commenced proceedings this afternoon. I do not have any details about the nature of the litigation as no proceedings have been served. I have heard the same information as the Deputies.
I reported last week that by letter on 21 May 2004 Judge Curtin's solicitors requested of me the opportunity to make submissions on the motions it was envisaged would apply in this matter. On 25 May 2004, the Secretary to the Government outlined, by letter, to Judge Curtin's solicitors the proposed scope of the process in great detail. Yesterday a short letter was received from the solicitors in which they suggest, as mentioned by Deputy Rabbitte, that submissions will not now be made to the Government but may be made to the Oireachtas. Other correspondence was received and replied to last week concerning the reports of the Garda Commissioner and the Director of Public Prosecutions. Copies of all correspondence will be given to Members of this House and the Seanad in due course.
I intend to continue to follow the procedure I outlined previously. I understand that the necessary changes to Standing Orders will shortly be finalised. After the resolutions adopting the new Standing Orders are passed by both Houses, specific motions dealing with Judge Curtin will be moved at the most appropriate time this week.
There is one further matter I wish to bring to the attention of the House. Yesterday evening the Secretary to the Government received another letter from Judge Curtin's solicitors in which they indicated that they have instructions to commence legal proceedings on behalf of the judge against the State, including myself as Taoiseach. As yet I have not had sight of any proceedings so I do not know the nature of the litigation. However, I am satisfied, in light of the legal advice I have received from the Attorney General and senior counsel, that the procedure we have proposed to adopt is constitutionally sound. Needless to say, I welcome the fact that the judge is in a position to instruct his solicitors this week.
The removal of a judge is a solemn process provided for by law. It is not an impeachment, as that term is used in the context of the President in Article 12 of the Constitution. It is not a trial, as such. There is, however, a duty to accord fair procedures. Over the past five weeks, from 27 April 2004, the judge has been given opportunities to make representations and submissions and provide explanations. The matter is to be considered this week by the Houses of the Oireachtas in the context of motions to be laid before the Houses. I am satisfied that we can proceed with the matter as previously outlined.
In reply to the comments of Deputy Sargent, the process of removal from office is a matter for this House and the Seanad. It is exclusively within the constitutional sphere; it is not a matter for Government. Our Constitution is clear that the Houses of the Oireachtas will be in exclusive control of the process. Nothing can happen in or to that process without the approval of the Houses and that will remain the position.
I will now outline the procedure we are following. These are the procedures we propose for the consideration of the Dáil and the Seanad. First, a resolution will be moved by the Minister for Justice, Equality and Law Reform in both Houses calling for the removal of Judge Curtin. However, Members of the Houses will not decide whether to vote in favour of or against this motion until after all the relevant evidence is gathered and fair procedures are accorded to Judge Curtin. Second, a second resolution will be moved in both Houses which will allow for the establishment of a joint committee, to be known as the Joint Committee on a Matter Pursuant to Article 35.4 of the Constitution and Section 39 of the Courts of Justice Act 1924. Third, the joint committee will perform the functions set out in the resolution and will investigate the circumstances and matters relating to the information provided to the Oireachtas by the Minister for Justice, Equality and Law Reform which pertains to Judge Curtin.
Fourth, the joint committee will afford all fair procedures and due process to Judge Curtin, who will be entitled to advance such evidence and make such submissions as he deems appropriate. The joint committee will not sit in public session unless otherwise requested by Judge Curtin. Fifth, the joint committee will exercise the powers provided by the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997. In particular, it will have the power to compel any person whose evidence is required to attend before it and to give any evidence and produce any document in his or her possession as may be requested.
Sixth, pursuant to my statement in this House on 27 April last that amending legislation may be required to facilitate the process, the Houses of the Oireachtas last week passed an amendment to the Act of 1997 which, when signed by the President, will permit a committee of the Houses that is involved in a process pursuant to Article 35.4 to direct the judge who is the subject of that process to give evidence to the committee. Seventh, the Legislature has also passed a short amendment to the Child Trafficking and Pornography Act 1998 which will facilitate the investigation by Members of the Houses of the Oireachtas of matters relating to child pornography.
Eighth, it is envisaged that the joint committee will record all the evidence given before it and set it forth in a report to be transmitted to each House. The joint committee will not make any finding of fact, make recommendations or express any opinion to either House. Ninth, the Houses of the Oireachtas will consider said report and hear any address or submission Judge Curtin wishes to make. Having considered the report and any address made by Judge Curtin, the Members of the Houses of the Oireachtas will vote on the proposed resolution calling for the removal of Judge Curtin. The resolution may be passed by a simple majority of votes of each House. Tenth, if the resolution calling for the removal of Judge Curtin is passed I shall notify the President according to the provisions of Article 35.4.2° of the Constitution.
In order to facilitate the process outlined, the Committee on Procedures and Privileges is now examining any amendments to the Standing Orders of the Houses which may be required. The preparation of such changes is proceeding on an all-party basis with the assistance of a full-time official. It is expected the Houses may adopt the new orders tomorrow. The resolutions referred to would be proposed shortly after the adoption of new orders and after the signature by the President of the amending regulations.
I referred to three or four letters I received. I will refer to the letter Deputy Rabbitte mentioned. I have given an outline of the procedures the House jointly proceeded with. The letter from Pierse & Fitzgibbon to the Ceann Comhairle's Office dated 31 May, and circulated to all the Leaders, reads as follows:
His Honour Judge Brian Curtin.
I refer to our correspondence.
Having considered the proposals put forward by the Government to provide for the impeachment process against our client, we have to state unambiguously that we regard the proposals as constitutionally flawed and inherently unfair.
Firstly it appears to us that there is absolutely no constitutional basis for the committee structure proposed by the Government.
Having considered this matter and taken advice in respect thereof, we submit that the proper constitutionally mandated process for the impeachment of our client must consist of full hearings before the Houses of the Oireachtas.
Further, in our opinion Judge Curtin is entitled to a trial before both Houses of the Oireachtas as this constitutional function of both Houses of the Oireachtas cannot be delegated to any committee or other body.
Judge Curtin is entitled to fair process. This comprises, inter alia of:-
giving him factual allegations or wrongdoing against him,
giving admissible evidence in support thereof before each House of the Oireachtas,
giving Judge Curtin the consequential entitlement to challenge same by cross-examination, and giving Judge Curtin the right to make submissions through his Counsel so that he may defend himself before both Houses of the Oireachtas.
This submission and the advice received is grounded and supported by constitutional historical precedent.
We respectfully ask you to confirm by return that this letter will be made available to each member of Dáil Eireann in advance of that House proceeding to consider any matter relating to Judge Curtin.
I contend that the procedure as set out by the House is a far better due process procedure with regard to his Honour, Judge Curtin.
