On 28 April last, the circumstances surrounding the relisting of the case of DPP v. Philip Sheedy, and the attendant resignations of Hugh O'Flaherty, Cyril Kelly and Michael Quinlan from their respective offices were outlined to this House, as were the severance terms which the Government was prepared to agree. Some time has elapsed since then and, in that interim, the Bill which is now before the House has been prepared and it spells out those severance terms in considerable detail.
It was always going to be the case that the legislation dealing with the pension arrangements of the three individuals would have to be advanced with reasonable expedition. A particular consideration here is the family and other commitments of the individuals concerned. It was also the case that the Government considered the question of severance payments in all three cases very carefully. There were a number of matters to be taken into account here, not least the actual pension entitlements of the parties concerned. There was no suggestion that any of the three was motivated by any prospect of achieving personal gain or reward and due recognition was also given to the fact that the individuals involved have undoubtedly suffered a substantial loss of earnings as a result of their resignations. Finally, it was also acknowledged that, in tendering their resignations, all three men had taken a course of action which was right and honourable and which, in the case of the two judges, avoided the need for embarking upon the unprecedented step of initiating impeachment proceedings.
I do not wish to deny the fact that the circumstances which have caused the Bill to be introduced are controversial and exceptional in nature. However, the Bill has a very limited purpose and it is my hope that the House will accept the provisions it contains to meet the matters in issue.
Senators will have seen that the Bill is very short, amounting as it does to no more than four sections. It is technical in nature and framed against the background of the law on pensions applicable to members of the Judiciary and court officers, as well as pension provisions in relation to the spouses and children of such members.
It may be of assistance to Senators if, before dealing with the substance of the legislation before the House, I mention briefly what the entitlements of the three persons as regards pension would be, were it not for this Bill. Those entitlements reflect their accumulated service up to the date of their resignations. Hugh O'Flaherty was appointed to the Supreme Court on 26 March 1990 and would, on the basis of his service up to the date of his resignation, have been entitled to a pension of £26,300 and a lump sum of £79,000 on 26 March 2005. Cyril Kelly was appointed to the Circuit Court on 4 June 1992 and would have been entitled, on the basis of his service up to the date of his resignation, to a pension of £17,000 and a lump sum of £51,200 on 7 June 2013. Michael Quinlan was appointed as Dublin County Registrar on 24 June 1991 and would have been entitled, on the basis of his service up to the date of his resignation, to a pension of £11,500 and a lump sum of £34,700 on 10 January 2019.
It is, perhaps, useful to focus on the fact that, had all three people remained in office until their statutory retirement dates, they would have all been entitled to the maximum amount of pension allowable under the relevant pension scheme. Based on their current salaries alone, the figures would have amounted to, in the case of Mr. Hugh O'Flaherty, a pension of £47,476 and a lump sum of £142,428; for Mr. Cyril Kelly, a pension of £43,719 and a lump sum of £131,156; and in the case of Mr. Michael Quinlan, a pension of £29,569 and a lump sum of £88,706. There would have been an entitlement in respect of all three men, in the event of their dying in service, to death gratuities and their surviving spouses and children would have been entitled to pensions.
I should add that, for the purpose of calculating the sums just mentioned, the assumption is made that present salary levels for judges and county registrars would remain static.
A final calculation which I would like to make reference to at this stage is the loss in annual earnings suffered by the three men – assuming that the pensions proposed in the Bill are agreed. On the same basis of calculation indicated above, those losses are, in the case of Mr. Hugh O'Flaherty, £54,952, Mr. Cyril Kelly £57,437 and Mr. Michael Quinlan £44,137.
To summarise the Bill's main effect, the severance terms for which it provides are directed towards the payment of annual pensions. There is no provision for the payment of lump sums. The pensions will be adjusted in the normal way in line with any salary increases for Supreme and High Court judges and equivalent county registrars which, in this case, would be the county registrar for Dublin. The Bill also provides for the payment of spouses' and children's benefits in accordance with current arrangements.
The main substance of the Bill is contained in section 1 and I will outline the content of that section in some detail. One aim of this Bill is to ensure that, in relation to the individuals coming within its scope, the payment of pensions in respect of them will be governed solely by its provisions. This effect is achieved by subsection (1) and, for the purposes of absolute clarity, subsection (4) disapplies any gratuity, at present amounting to three times the yearly amount of pension, which in the normal course would arise in relation to a pension granted under the relevant Acts. Existing legislation governing the payment of pensions, including gratuities, to members of the Judiciary and to court officers is contained in a number of different statutes, notably the Courts (Supplemental Provisions) Act, 1961, the Courts of Justice and Court Officers (Superannuation) Act, 1961, the Courts (Supplemental Provisions) (Amendment) Act, 1991, and, most recently, the Oireachtas (Allowances to Members) and Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Act, 1998.
Subsection (2) sets out the pensions which are to be payable over a full year to each of the persons specified in the Bill for the duration of their lifetime, namely £40,000 in the case of Hugh O'Flaherty, £30,000 in the case of Cyril Kelly and £15,000 in the case of Michael Quinlan. As I have already indicated, these amounts will be adjusted in line with adjustments in the salaries of ordinary judges of the Supreme Court, ordinary judges of the High Court and equivalent county registrars as the case may be. This link between pension increases and salary increases is, of course, a standard one, as is the provision that any pension adjustment shall take effect from the date of the relevant salary increase. These matters are provided for in subsection (3).
At this point, having mentioned the pension amounts proposed in the Bill, I believe it would be helpful to provide the House with information concerning the actuarial value to the three individuals concerned of those proposals. Given the various figures I provided earlier in my statement, I think it would be desirable, both for the sake of clarity and to ensure that like is being compared with like, not only to provide the actuarial value in each case of what is proposed in the Bill but also the actuarial value of the benefits which each man would have enjoyed had resignation not taken place. The figures which have been provided by the Department of Finance in each case are as follows. In the case of Hugh O'Flaherty the benefit now proposed has an estimated actuarial value of £699,000 and the benefits lost have a value of £1,336,183. The corresponding figures in the case of Cyril Kelly are £665,000 as against £1,703,990, and in the case of Michael Quinlan are £366,000 proposed as against £1,281,807 lost.
Returning now to the substance of the Bill, the matters covered by subsections (5) and (6) relate to the payment of spouses' and children's pensions. Under existing schemes, a spouse's pension, when awarded, is one-half of the deceased's pension while the amount of a child's pension is normally one-third of the amount of a spouse's pension. This legislation does not affect this broad entitlement. However, it is made clear that it is the figures set out in subsection (2), as may from time to time be adjusted, which will provide the basis for calculating any pension entitlement that may exist.
Section 2 applies a standard provision relating to the abatement of pension. It would be triggered in the event of any of the persons to whom this Bill applies being subsequently employed in a position which is paid out of the Central Fund or the Exchequer. There is no proposal to this effect but it is considered an appropriate and desirable step to take and it is standard practice in respect of judges and court officers pensions legislation.
The remaining two sections are very short and of a standard nature. They require little by way of additional explanation. Section 3 is the usual payments and expenses provision while section 4 deals with matters such as the Short Title, construction and collective citation.
This legislation is exceptional in nature and is very specifically focused. To understand its genesis, it is necessary to refer briefly to the background against which it had to be developed, even if this does involve revisiting facts which have already been placed before the House. First, however, and I know that there will be no disagreement in the House on this point, we must acknowledge that these events will have caused added distress to the Ryan family who lost a wife and mother so tragically in 1996 and whose grief has been intruded upon by subsequent unfortunate happenings.
The House will know that on the evening of 10 February 1999 the Attorney General contacted the Minister for Justice, Equality and Law Reform at a meeting in Berlin regarding concerns that had been raised with him relating to the case of DPP v. Philip Sheedy in the Dublin Circuit Court in November 1998. The Minister decided that an immediate inquiry should be established. The Attorney General at his request then contacted the Chief Justice who initiated an inquiry. The Minister also instructed the Secretary General of his Department that the Garda authorities should be advised of the matter and that the Department should immediately conduct its own inquiries.
The Chief Justice provided the report of his inquiries to the Attorney General on 14 April who furnished it to the Minister. On the basis of facts either admitted or established at that stage, the Chief Justice concluded, inter alia, that the intervention of Mr. Justice O'Flaherty in the relisting of the Sheedy case was “damaging to the administration of justice” and that Judge Kelly – then a judge of the Circuit Court – in entering on a review of Philip Sheedy's sentence “failed to conduct the case in a manner befitting a judge”, and that Judge Kelly's handling of the matter “compromised the administration of justice”.
The report of the Department of Justice, Equality and Law Reform concluded that the action of all officials bar one, were carried out bona fide, in the course of what they took to be their proper duties. In relation to the Dublin County Registrar, Mr. Michael Quinlan, it concluded that his “performance . . . in connection with the official-level inquiry, fell well short of the standards that can reasonably be expected of a person holding the position of County Registrar. In the circumstances it obstructed and misled the Department's investigation and . . . amounted to misbehaviour on his part”.
On 16 April 1999 the Government considered the contents of the Hamilton report. The departmental report was not finalised at that stage as account had to be taken of the Chief Justice's report and replies due from the county registrar to a series of questions put to him on 9 April about his role in the matter. The Government decided, inter alia, to approve the delivery of letters to both judges stating that, in the light of the Hamilton report, it would consider at its meeting scheduled for 20 April, proposals for resolutions for the consideration of both Houses of the Oireachtas for their removal from office under the provisions of Article 35.4.1WP extended char 1,14 of the Constitution. Michael Quinlan was provided with copies of the Departmental report on a confidential basis on the evening of 19 April 1999. Mr. Justice Hugh O'Flaherty resigned on 17 April 1999. Mr. Justice Kelly and Mr. Quinlan resigned on 20 April 1999.
On 20 April 1999 the matter was again considered by Government and later that day a statement was made to the Dáil in connection with the circumstances surrounding the relisting of the case of DPP v. Philip Sheedy. That House was informed of the resignation of the two judges and the County Registrar and the severance terms to which the Government was and is prepared to agree were outlined. This House was informed in similar terms on 28 April last.
That, briefly, is the sequence of events which has led to this Bill and its provisions. When introducing this Bill in the Dáil, the Minister for Justice, Equality and Law Reform, in order to avoid any possible confusion or misinterpretation on the matter, gave details about certain payments which were made recently to the former County Registrar, Michael Quinlan. I wish to allude briefly to this matter for the benefit of Senators.
In addition to his normal duties Mr. Quinlan, having been nominated by the then Minister for Justice, Deputy Owen, performed the duties of Dublin City Sheriff on a temporary basis between 3 January 1995 and 1 August 1995 while a vacancy existed in that office following the retirement of the previous incumbent. At the time, it was decided by the then Minister that Mr. Quinlan would perform these duties and be remunerated on the same basis as the Cork County Registrar who did so in similar circumstances in 1991 and 1995. This involved an ex gratia payment equivalent to the amount the sheriff would have received following the collection of fees etc. and the disbursement of all the moneys due, including payment to the staff in the office of the sheriff.
The acting sheriff's accounts were fully audited. This process took some months and a reconciliation was required to be made which showed an amount of £140,014.89 remaining in the acting sheriff's account from collection of sheriff's fees after payment of staff and other necessary disbursements. Department of Finance sanction was sought for payment of this amount to Mr. Quinlan, which was due to him in line with the conditions of his appointment to sheriff duties over the relevant period. A number of detailed queries were then raised by the Department of Finance which took some time to resolve and approval to pay was only received in the Department of Justice, Equality and Law Reform on 18 February 1999. Further correspondence then took place between that Department, the Revenue Commissioners and the Department of Social, Community and Family Affairs who were fully informed of the details of this payment which was finally made on 28 May 1999.
For the purposes of record, I would add that significant changes in the method whereby sheriffs are remunerated were made by the Minister for Justice, Equality and Law Reform in 1998 and a joint standing committee is currently considering, inter alia, the remuneration of sheriffs. Its membership includes a representative of the Department of Justice, Equality and Law Reform, the Revenue Commissioners and the sheriffs themselves.
Much of the debate in relation to this Bill and the issues surrounding it has centred on the suggestion that conditions should be attached to the payment of pensions in the case of Hugh O'Flaherty and Cyril Kelly. It has been indicated in previous statements that the advice available is that it would be unconstitutional to include in legislation providing for pensions or payments to judges or former judges any provision that payment would be dependent on the individual judges complying with any requirement that they provide some explanation or self-justification or make themselves available to give evidence before an Oireachtas Committee. It is worth reiterating that advice now. However, unpalatable it may be, the time may have come to accept the fact that we need to move on from this particular episode and, in looking to the future, learn such lessons as we can from recent events.
I wish to address briefly the findings in the Report of the Joint Committee on Justice, Equality and Women's Rights on Matters arising from the Early Release from Prison of Mr. Philip Sheedy. The Minister for Justice, Equality and Law Reform has noted that the committee finds itself unable to inquire further into the circumstances surrounding the early release from prison of Mr. Sheedy for the legal, constitutional and other reasons outlined in the report, and has sought the views of the Oireachtas as to how the outstanding issues can be resolved.
It is the case that judges are exempt from compellability under the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997. The committee has considered that an amendment to that legislation could provide that judges and former judges could not be compelled to give evidence in relation to the exercise of their judicial functions. The committee also noted that any such amendment was likely to give rise to a potential dispute as to what amounts to judicial functions. It is the Minister's view that the committee rightly points to the serious difficulties which may follow from such a course of action. Judicial and non-judicial functions cannot be easily categorised, particularly in the context of the handling of a court case.
That said, the Minister, Deputy O'Donoghue, has no difficulty with a comprehensive review of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997, as suggested by the joint committee and he believes that such a review might provide some assistance in determining the practical benefits from any proposed amendments. Moreover, he believes that it is essential that any proposed amendments should be examined thoroughly with due regard to the balance that must be maintained between the different branches of Government.
The committee's second option is the establishment of a tribunal of inquiry under the Tribunals of Inquiry (Evidence) Acts, with appropriately narrow terms of reference which included a fixed time for reporting. The Minister considers that the same difficulties referred to above may come into play, in particular the categorisation of judicial and non-judicial functions and the requirement to recognise the independence of the Judiciary. The committee points up the fact that it may well be that a tribunal of inquiry would stand little better prospect of bringing matters to a satisfactory conclusion than would the option of amending the 1997 legislation.
The events of the past few months have given added focus to the overhaul of the Courts Service. The Department of Justice, Equality and Law Reform's inquiry into the Sheedy case resulted in a number of far-reaching recommendations for change, the fundamental purpose of which is to ensure that confidence in the judicial system is maintained. These recommendations dealt with issues such as the performance of duties by court staff, judicial conduct and ethics, the review of sentences and establishment of a parole board, the method of appointment of county registrars, the method of listing of court cases, the assignment of cases to particular judges, court rules, plea negotiations and the formal transfer of responsibility for the administration of the Courts Service to the new Courts Board. Some of these recommendations have been implemented already and others will be the subject of proposals to be brought before Government in due course.
On 19 April 1999, the Department issued a circular to all court staff who have a role in the listing of cases, reminding them of their obligation to carry out those duties in a fair and reasonable manner which avoids any possibility of a miscarriage of justice.
The Sixth Report of the Working Group on a Courts Commission, chaired by Mrs. Justice Denham, dealt, among other matters, with the topic of judicial conduct and ethics and recommended the establishment of a judicial committee. On publication of that report in April, such a committee was duly established by the Chief Justice. Among other matters, it will advise on and prepare the way for the establishment of a judicial body which would contribute to high standards of judicial conduct and establish a system for the handling of complaints relating to such conduct. The Minister for Justice, Equality and Law Reform has warmly welcomed these developments and has assured the Chief Justice that the committee will have every support from his Department and the Government in carrying out its work.
Another important change emanating from the Department's report is that appointments to the post of county registrar will now be made by way of open public competition. Such a competition is now under way and an Appointments Advisory Board has been established to consider applications for current vacancies. The board will soon be in a position to recommend suitable candidates for these vacancies to the Government.
Much work has been done in preparing the way for the establishment of the independent Courts Service to manage the courts. One of the main functions of the service will be the provision of support services for judges. The transitional board, chaired by the Chief Justice and established under the Courts Service Act, 1998, is, in conjunction with the Department of Justice, Equality and Law Reform, actively involved in making the necessary arrangements for the establishment of the Courts Service. It is expected that this task will be completed later this year. What is at issue here is the provision of an efficient, effective and accountable service to judges, practitioners, court staff and, most importantly of all, the users of the system, supported by information technology systems which will facilitate the organisational changes which are now under way. A very significant step towards the formal establishment of the Courts Service was taken during the month of June when 24 members of the staff of the courts division of the Department moved to new offices in Conyngham Road, which will be the future location of a number of Courts Service functions.
The legislation before us deals with three people and it behoves us to recognise that they have paid a price for their actions both in terms of emotional stress and in terms of financial loss. Nor should we lose sight of the fact that apart from the events resulting in this legislation, each of the three men made valuable contributions to the administration of justice. Hugh O'Flaherty was one of the most eminent members of the Bench and his compassion, wisdom and insight were applied in the many important cases with which he was involved. Cyril Kelly had the particular capacity to balance his efficiency in approach with his legal expertise both in his dealing in the courtroom and as chairman of the interdepartmental committee on the video-recording of evidence. Michael Quinlan dealt resolutely with the changing demands of the Dublin Circuit Court and the management of the volume of cases in that area. It would be grossly unfair to dismiss years of sterling service, which is what a decision to refuse pensions would entail, because of errors of judgment in the handling of one case.
In this regard, I note the concern of the Oireachtas Joint Committee on Justice, Equality and Women's Rights to minimise any further hurt that might be caused to those whose lives and careers have been so adversely affected. One way in which we can meet that concern is by passing this legislation in an atmosphere of calm co-operation and with a minimum of unnecessarily critical and personalised comment.
The office of judge is both onerous and prestigious. Often those who accept judicial office do so in full knowledge that they are embarking upon a career path which, in purely financial terms, will be less rewarding for them than if they had chosen to advance their careers in private practice. There is a status which goes with judicial office and, of course, a corresponding loss of status when, as in the present case, that office is vacated in the type of circumstances which arose here. That loss of status has impacted very heavily, and in a very public way, on the personal lives of all concerned and it would be wrong when debating the Bill to forget this.
In weighing up all the relevant issues of this very difficult situation, the Government concluded that the pensions mentioned should be payable in each case but that no gratuities should be paid. This legislation gives effect to that decision. I commend this Bill to the House.
