Dáil Éireann debate -
Wednesday, 2 Jun 2004

Vol. 586 No. 6

Order of Business.

Minister for Agriculture and Food (Mr. Walsh)

The Order of Business today shall be as follows: No. 11, motion re proposed approval by Dáil Éireann for a Council framework decision on the application of the principle of mutual recognition to confiscation orders, back from committee; No. 12, motion re proposed approval by Dáil Éireann of a Council framework decision laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, back from committee; No. 13, motion re proposed approval by Dáil Éireann for a regulation of the European Parliament and the Council creating a European order for payment procedure, back from committee; No. 14, motion re proposed approval by Dáil Éireann of a Council framework decision on attacks against information systems, back from committee; No. 14a, motion re Standing Order 63A — procedure relating to removal of judge; No. 1, Copyright and Related Rights (Amendment) Bill 2004 [Seanad] — Second and Subsequent Stages; No. 14b, motion re Article 35.4 of the Constitution, to be taken after the announcement of matters under Standing Order 21(3) — approximately 3.45 p.m. — and the order shall resume thereafter; No. 19, Central Bank and Financial Services Authority of Ireland Bill 2003 — Report Stage (resumed) and Final Stage; and No. 21, Criminal Justice (Joint Investigation Teams) Bill 2003 [Seanad] — Order for Report, Report and Final Stages.

It is proposed, notwithstanding anything in Standing Orders, that Nos. 11, 12, 13, 14 and 14a shall be decided without debate; the following arrangements shall apply in relation to No. 1: the proceedings on Second Stage shall, if not previously concluded, be brought to a conclusion after 90 minutes; the opening speech of a Minister or Minister of State and of the main spokespersons for the Fine Gael Party, the Labour Party and the Technical Group, who shall be called upon in that order, shall not exceed 15 minutes in each case; the speech of each other Member called upon shall not exceed ten minutes in each case; Members may share time; and a Minister or Minister of State shall be called upon to make a speech in reply which shall not exceed five minutes; the proceedings on Committee and Remaining Stages shall, if not previously concluded, be brought to a conclusion after 30 minutes by one question which shall be put from the Chair and which shall, in relation to amendments, include only those set down or accepted by the Tánaiste and Minister for Enterprise, Trade and Employment; and Private Members’ Business shall be No. 41, motion re rural development (resumed), to conclude at 8.30 p.m. tonight.

An Ceann Comhairle

There are two proposals to be put to the House. Is the proposal for dealing with Nos. 11 to 14, inclusive, and 14a without debate agreed to?

Mr. Kenny

I do not object to the proposal regarding Nos. 11 to 14, inclusive. With regard to Nos. 14a and 14b——

An Ceann Comhairle

I am reluctant to intervene but I draw the attention of the House to the statement I made in recent weeks and again yesterday that to ensure the interests of the House and natural justice are best protected, Members should refrain from engaging in public comment or discussion. By doing so they could prejudice the decision of the House in the discharge of its obligations if called upon to do so at a later stage.

Mr. Kenny

I have no intention of infringing that ruling. However, no comment is allowed on Nos. 14a or 14b. With regard to No. 14b, is the Government happy that the evidential material referred to in the motion, which appears to have been acquired unconstitutionally on foot of a warrant which was outdated, will be admissible to the committee which is to investigate the matter? Does the Government expect that a High Court writ will be issued today against this matter proceeding, either by No. 14a or No. 14b?

Ms McManus

I appreciate the Ceann Comhairle's ruling and I seek clarification. I appreciate that we are in uncharted territory but it is important that the procedures we adopt are fair and proper. I also wished to ask about the possibility of court proceedings but Deputy Kenny has anticipated my question.

I seek clarification on two other points. Section (5) of the new Standing Order states: "The Select Committee shall, at all times, give due regard to the constitutional principles of basic fairness of procedures and the requirements of natural constitutional justice." This issue arose in relation to a committee investigation of another case. How is it to be copperfastened?

Section (9) refers to the right of the judge and his or her legal representative to be heard prior to any vote on a motion regarding Article 35.4.1o. Can it be specifically stated that the judge could be heard by the special committee? This is not stated in the Standing Order.

Mr. Sargent

It is important that each Member be fully involved in this matter, regardless of the work of the special committee. That is the spirit in which the procedure is being approached. I would like clarification on that matter so that it is clear that this is a matter for the Oireachtas, as laid down. In that regard, what time is it expected will be needed for the procedure to take its course? Will that change, depending on legal action which may be taken by Judge Curtin's team?

Caoimhghín Ó Caoláin

May I address Nos. 11 to 14, inclusive, or does the Ceann Comhairle wish to confine this discussion to Nos. 14a and 14b?

An Ceann Comhairle

The proposal before the House refers to Nos. 11 to 14, inclusive, and No. 14a.

Caoimhghín Ó Caoláin

On No. 14a, it is important that Members, who will subsequently be called upon to make a decision on this case, are fully informed of its detail and are not dependent on the report of a select number from within the body of the House. The Technical Group, which constitutes two political parties and Independents, will have only one nominee. There is a difficulty there. As an important decision is, perhaps, to be addressed, we are keen to ensure that all Members have full details and all explanations offered.

Last week, we were requested to refer Nos. 11 to 14, inclusive, to committee without debate. As a result of the number of committees, it is impossible for the Technical Group to cover each of them and we do not have representation on the committee dealing with these matters. However, we understand that only three of the four items have been addressed, and in a very short time. Furthermore, there has been no report to the House on the committee's deliberations. This has been promised continually in relation to these matters and has been done in the case of the European refugee fund, for example. With regard to these matters, however, there has been no report back. The Technical Group has no way of evaluating our questions and concerns and whether or not they have been addressed. They certainly have not been answered.

No. 11 deals with matters which oblige us to recognise and execute confiscation orders issued in other member states. This can have serious consequences for citizens in this jurisdiction. I will not go through each of them individually but they are important matters. The process of addressing such EU-led propositions by the House is unsatisfactory. Matters are referred to committees which have little time and are already overburdened with 40% of legislation which goes through the House. This procedure is not practical. We must recognise that the way we conduct our business with regard to important matters which can seriously impinge on the rights of citizens means these issues not being addressed by the Houses. I have made this point on numerous occasions and I make it again today.

I do not oppose the propositions and enthusiastically support the motion referred to in No. 12. While I have some concerns regarding the detail of the motion I wish to see it progressed.

An Ceann Comhairle

We cannot debate these proposals. The Deputy has made his point.

Caoimhghín Ó Caoláin

I am not debating the proposal. I make the point that I do not speak from a position of opposition to the motion but from a concern for the importance of proper scrutiny. That is the point I have made continually and I repeat it this morning in relation to Nos. 11 to 14, inclusive.

Mr. J. O’Keeffe

I raise a point of order regarding No. 14b. No. 14a is to be taken without debate. No. 14b is to be taken at 3.45 p.m. Will the Minister clarify what is proposed to happen at 3.45 p.m. Is it proposed to have a debate and, if so, what are the arrangements for such a debate?

On a matter related to another forum, I understand a High Court writ has been issued. Does the Minister have information regarding any further steps that might have been taken on that writ?

An Ceann Comhairle

The Deputy has made his point.

Mr. J. O’Keeffe

In particular, has the Government received any information on the possibility of an application for an injunction?

Mr. Costello

I echo what has been said by Deputy Ó Caoláin regarding the four items back from committee on which there are no reports before the House. They are substantial issues. It was agreed that all material would be reflected in reports to be circulated to Members. It is not satisfactory for a person to have a report and not circulate it to the House.

It would be useful if the Minister clarified how it is proposed to proceed on Nos. 14a and 14b. What information will be put before the House today and what are his views in terms of Members’ responses to it given this unprecedented step forward?

Mr. Walsh

The Minister for Justice, Equality and Law Reform, Deputy McDowell, in moving the motion at 3.45 p.m. will address in detail the issues raised. I can assure Deputies that fair procedures will be observed. The steps being taken are unprecedented. I accept the Ceann Comhairle's admonishment that Members must be careful in any statements they make. The matter of composition of the committee will be dealt with tomorrow.

On reporting procedures, I refer Deputies to subsection (8) of the motion which states:

Following the completion of its proceedings, the Select Committee shall furnish a report of those proceedings to the Dáil, together with appropriate transcripts and associated audio-visual material. Provided that the Committee shall first send its report to the Clerk of the Dáil, who shall arrange in the first instance for the report to be circulated to the members of the Dáil and to the Judge who is the subject matter of an Article 35.4.1 motion. Provided further that the Dáil may subsequently order that the report be published and laid before the Dáil.

Yesterday evening, the Taoiseach reported that the Secretary General to the Government had the previous day received another letter from Judge Curtin's solicitors indicating they had instructions to commence legal proceedings on behalf of the judge against the State. It is still the case that the Government has not had sight of any proceedings.

I am informed that Judge Curtin's solicitors have stated to the Chief State Solicitor's office that they intend to serve, later today, a plenary summons and statement of claim.

Mr. Howlin

On whom will it be served?

Ms Lynch

The State.

Mr. Walsh

We do not yet know what will be the content of the proceedings. However, the Government is satisfied, in light of legal advice received from the Attorney General and senior counsel, that the procedures it proposes to adopt are constitutionally sound. To date no court order has been made that prevents this House running its intended course. That is what we intend to do.

The Government Whip will today propose the amendment of Standing Orders by the introduction of a new Standing Order which will facilitate a process pursuant to Article 35.4 of the Constitution. The Minister for Justice, Equality and Law Reform, Deputy McDowell, will later propose to the House a motion calling for the removal of Judge Curtin. The Leader of the Seanad will shortly afterwards propose an identical motion in that House. The process previously outlined by the Taoiseach will then officially commence.

The Taoiseach reported last week, in the context of that process, that in a letter dated 21 May 2004, Judge Curtin's solicitors had requested of him an opportunity to make submissions on the motions which it was envisaged would apply in this matter. In a letter dated 25 May 2004, the Secretary General to the Government outlined to Judge Curtin's solicitors the proposed scope of the process in great detail. On Monday, a short letter was received from the solicitors in which they suggested submissions will not now be made to the Government but may be made to the Oireachtas. Other correspondence, concerning reports from the Garda Commissioner and the DPP, were received and replied to last week. Copies of all correspondence will be circulated to Members of both Houses in the context of the motions being considered.

The removal of a judge is a solemn process provided for by law. It is a process of removal, not an impeachment, a term incorrectly used. That term is used at Article 12 of the Constitution regarding the President. The process we are undertaking is not a trial. There is, however, a duty to accord fair procedures. The past five weeks from 27 April have involved giving opportunities to Judge Curtin to make representations and submissions and to provide explanations. We have now reached a point where the matter is to be considered by the Houses of the Oireachtas in the context of motions to be laid before them. The Government is satisfied it can proceed in the manner as outlined. Members queries will be dealt with by the Minister for Justice, Equality and Law Reform later today.

The Government Whip will ensure that party Whips and justice spokespersons will be advised of all details regarding the motion to be discussed this afternoon.

An Ceann Comhairle

Before I call Deputy Kenny, I remind Members that a Member who contributes to today's debate on the motion will not be permitted to make another contribution on the matter when it comes back from committee. Members will be aware they can contribute only once on a motion. I will hear briefly from one member of each party and will then put the question.

Mr. Kenny

I thank the Minister for his detailed reply. Is the Government satisfied that data and information received by the committee, when established, by way of material acquired from Judge Curtin's house on the basis of an out of date warrant will not be deemed as unconstitutionally acquired? Will that material be admissible to members of the committee?

As regards No. 14b, will Opposition spokespersons on justice be in a position to reply to the motion tabled by the Minister for Justice, Equality and Law Reform? Will Deputy Jim O’Keeffe have an opportunity to make a contribution in that regard if he so wishes? We have not been down this road before. A new Standing Order is to be introduced later today. If a Deputy from a particular party, or none, makes a contribution today and, during the course of committee proceedings, new evidence or details come to light which would warrant all Members to contribute on the matter to the best of their ability, then we should amend Standing Orders to provide that he or she be allowed to contribute more than once. A Member who contributes today by way of initial reaction should, on the basis of further details and discussion, be facilitated in making a further contribution when the committee reports on the matter given the duty of Members of the Oireachtas to deal with the removal, as distinct from the impeachment, of a judge. If we are to fulfil our constitutional duty in this regard, Standing Orders should be flexible in allowing for more than one contribution where that might be patently obvious.

Ms McManus

On whom is the court order being served? It is important we have that information.

Mr. Walsh

There is no court order.

Mr. J. O’Keeffe

It is a plenary summons.

Ms McManus

It is an application.

Mr. Walsh

We do not know on whom it will be served.

Ms McManus

I am not too sure who is in charge. It is of concern to me that the Minister for Agriculture and Food is in charge of the country——

An Ceann Comhairle

The Deputy has put her question.

Ms McManus

——but it is of even greater concern when it turns out he is not in charge of the country. Will the Minister who is taking questions state if we know who the court order has been served upon?

I will ask the rest of my questions before I am interrupted by the Minister for Communications, Marine and Natural Resources, Deputy Dermot Ahern. We are all conscious of the seriousness of this business. I ask that we try to obtain clarification to ensure that the procedures are proper.

On the statements being made, I concur with Deputy Kenny that we should consider changes to Standing Orders to ensure it will be possible to allow Members contribute for a second time as the process unfolds.

In what capacity is the Minister proposing this motion? Is it as a Minister or on behalf of the Dáil?

Mr. Sargent

I do not want to speak on this because I feel it is eating into Dáil time, but it is important that we receive clarification on the questions raised by the media on whether this is a Government or Oireachtas action or whether it is being taken against the Government or against the Oireachtas. If we are to challenge it, our language should be clear and every reference to this process should be accurate. I understand the proceedings are being taken on behalf of the Oireachtas rather than the Government.

Caoimhghín Ó Caoláin

Will the Minister clarify the procedure in respect of the committee? I understand from information offered yesterday that those nominated to the committee are obliged to remain in service throughout the period of its session. This could last for an indefinite period. It is impossible to say for how long at this point. I understand that if a Member were to become ill or were for some other reason unable to attend the session, he or she might not be able to re-engage subsequently in the work of the committee. If more than one Member were to find themselves in such circumstances, the committee would not be able to proceed and it would have to be reconstituted. This is a little like the position in respect of a jury. These are serious questions on how the process will be conducted.

It is a serious and important issue and therefore it is important that the House be fully informed as to how the procedure applying to the committee's examination of all the facts will be undertaken. There are concerns over the information offered yesterday and I ask the Minister to clarify the position to the House.

Mr. Walsh

It is still the case that the Government has not had sight of any proceedings. However, I am informed that the solicitors of Mr. Justice Curtin have stated to the Office of the Chief State Solicitor that they intend to serve later today a plenary summons and statement of claim.

Ms McManus

Against whom?

Mr. Walsh

We do not know because they have not been served yet. This afternoon, the Minister for Justice, Equality and Law Reform will move a motion in this House and will outline the procedures in great detail. He and the Chief Whip are available for any briefing on any detail. The motion will then be adjourned to allow the committee to be established. The committee will be established tomorrow and it will carry out its work under the terms of reference under which it will be established by Standing Order.

Ms McManus

On whose behalf will the Minister be proposing the motion?

Mr. Walsh

The Minister for Justice, Equality and Law Reform will propose the motion as a Member of the Oireachtas.

Ms McManus

It is important that we receive clarification. Will he then be in a position to contribute for a second time in the subsequent debate?

An Ceann Comhairle

The usual procedure for a motion is that the Minister is entitled to reply to the debate.

Ms McManus

That is when it is a Government motion. If not, what is the procedure?

An Ceann Comhairle

The same would apply to the proposer of the motion, just as happens when taking Report Stage of a Bill.

Ms McManus

This is a matter for every Member of the House.

Mr. Walsh

The position is similar to that on other motions. It will be discussed with the Whips and they will agree on how we should proceed. I have been told that the Whips have been in constant discussion on this matter. There has been unanimity regarding how we should proceed with this unique, solemn and grave matter. We must bear this in mind all the time.

On behalf of the Government, I express appreciation for the way in which matters have been dealt with. We want to ensure that fair procedures and due process are observed and that nothing will be done that would in any way prejudice the outcome of the decisions of the Houses of the Oireachtas. It is the Houses of the Oireachtas that will ultimately make a decision on this matter.

Mr. Kenny

Sorry——

An Ceann Comhairle

I would prefer if the Deputy did not go on about this. The Chair has been generous.

Mr. Kenny

I promise I will not go on about it. The central issue in this matter is the admissibility of evidence and material collected in the house of Mr. Justice Curtin given that the search warrant was out of date, which appears to have been the case. Is the Government happy that this evidence is admissible to the committee and the Members of the Oireachtas? Again, I strongly recommend that because we have not been down this road before and because it is a solemn process involving grave responsibilities——

An Ceann Comhairle

That is a matter for the Minister for Justice, Equality and Law Reform to deal with later.

Mr. Kenny

I recommend that the Whips examine the flexibility of Standing Orders given that Members, from either side of the House, may wish to contribute for a second time on the motion.

An Ceann Comhairle

Perhaps the last point the Deputy raised can be addressed later when the committee reports. It may not be necessary to do so at this stage.

Caoimhghín Ó Caoláin

A Cheann Comhairle——

An Ceann Comhairle

We are moving on. Are the proposals agreed to?

Caoimhghín Ó Caoláin

On a point of order——

An Ceann Comhairle

The Chair has been more than lenient. We cannot have a debate on the issue.

Caoimhghín Ó Caoláin

A Cheann Comhairle, on the matter of——

An Ceann Comhairle

One Member from each party is entitled to speak on a proposal. The Chair allowed six Members to contribute and then allowed them to do so for a second time.

Caoimhghín Ó Caoláin

I expressed concerns about Nos. 11 to 14 and I would like the Minister to address them. He has only addressed No. 14a.

An Ceann Comhairle

I am putting the question.

Caoimhghín Ó Caoláin

The Minister has not replied to the reasonable concerns I expressed about this matter proceeding without debate and without any report.

An Ceann Comhairle

Will the Deputy allow the Minister to answer briefly?

Ms McManus

On a point of order, I asked a question on the right of the judge to be heard by the special committee and I did not receive an answer. Will the Minister respond to it?

An Ceann Comhairle

The Minister for Justice, Equality and Law Reform will deal with that in the afternoon. I call on the Minister to reply to the question on the taking of Nos. 11 to 14.

Mr. Walsh

Those detailed issues will be a matter for the committee when it is established. It will have the best legal advice available to it and it will, under the compellability of witnesses legislation, decide whether the judge can be called. It will certainly have the authority to do that.

Ms McManus

What is the charge we are asking about?

An Ceann Comhairle

Are the proposals for dealing with Nos. 11 to 14, inclusive, and 14a without debate agreed to?

Caoimhghín Ó Caoláin

The Minister has not replied to my questions on Nos. 11 to 14, inclusive.

An Ceann Comhairle

The Chair has no control over the answers given.

Caoimhghín Ó Caoláin

Surely the Minister——

Mr. Walsh

The reports from those committees have been circulated.

An Ceann Comhairle

Is the proposal agreed? Agreed.

Is the proposal for dealing with No. 1 agreed? Agreed.