Seanad Éireann debate -
Wednesday, 7 Jul 1999

Vol. 160 No. 5

Courts (Supplemental Provisions) (Amendment) Bill, 1999: Committee and Remaining Stages.

Bill put through Committee, reported without amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Mr. Costello

The Labour Party has opposed this Bill during its passage through the Dáil and Seanad. We do not begrudge the former judges their rather generous pensions. However, a very serious case underlies this Bill involving the death of a young mother and circumstances in which the entire judicial system was affected by unbe coming behaviour at the highest level. A considerable amount of embarrassment, to say the least, was caused to the system. The Chief Justice's report found that the procedures adopted by the two members of the Judiciary, in particular, were quite damaging to the judicial system.

The Joint Committee on Justice, Equality and Women's Rights invited the people concerned to appear before it to put on the record their perception of the events and to answer questions. Initially, that seemed to be accepted voluntarily but Mr. Hugh O'Flaherty subsequently refused to appear, while I understand Mr. Cyril Kelly left his options open on the matter. As a result, we have no explanation for the events – we know what happened but we do not know why it happened. There is no transparency or accountability in such circumstances. We are establishing a bad precedent by being seen to reward people who would not explain their actions, in circumstances where the prima facie examination conducted by the Chief Justice, his damning account of their actions and the findings of the Joint Committee on Justice, Equality and Women's Rights indicated their behaviour left a great deal to be desired.

The Minister for Justice, Equality and Law Reform indicated that the thinking of the Government was that impeachment proceedings would be instigated. The resignations occurred which meant that impeachment proceedings could not be undertaken. There was talk of establishing a tribunal.

These extremely serious matters form the context in which we are passing this legislation, which grants pensions to these people immediately rather than from the time they reach 65 years, as would happen in a normal case of resignation. They will receive pensions immediately which are far more generous than those which have accrued to them and to which they would be entitled in the normal course of events.

I wish to register our deep dissatisfaction that the Government is providing pensions in this fashion and that the Houses of the Oireachtas are being seen to reward people who misbehaved in carrying out their duties. We are trying to put our own house in order in the light of various allegations and accusations about people in high places, particularly politicians, and we have set up tribunals to deal with those matters and with other institutions in society which were seen to be wanting in the manner in which they conducted their business. However, we seem to have done the opposite in this case.

I am deeply dissatisfied that we are passing this legislation and by the manner in which we are doing it. It has been pushed quickly through both Houses at the end of the session, which I am unhappy about. I would have been happy to consider the legislation if the former judges had appeared before the committee and had been prepared to explain their actions. However, they have not done so and, in those circumstances, it is not possible to welcome this legislation.

Mr. O'Donovan

I welcome the Minister of State, Deputy Fahey, who is a former Senator, to the House. I am glad the Bill has almost passed all Stages in the House. One of the major factors arising from this affair is the clear recognition of the separation of powers and the independence of the Judiciary.

In contrast to what my colleague, Senator Costello, said, I believe the settlement of these pensions is just, fair and proper in the circumstances. The two former judges and the former County Registrar gave sterling service to this country for many years. Given that a senior counsel of reasonable calibre can earn ten times more per annum than a High Court or Supreme Court Justice, someone who accepted a position as a judge must be rewarded. Despite the criticism, it has been recognised that the two judges in question gave great service to the State. Mr. Hugh O'Flaherty had an impeccable record. If he slipped up and did something wrong out of kindness, then he has suffered more than enough. Mr. Cyril Kelly was recognised as a judge who took on warlords and drug barons without fear and with great distinction. He did his job very well.

My colleague, Senator Costello, could have opposed the passage of this Bill, which will now pass. The pensions being granted are fair and equitable, and I welcome this move. Those concerned have suffered enough. If there are further inquiries, it is a matter for another day and not for this House. I welcome the Bill and thank my colleagues for allowing its speedy passage through the House.

Mr. Connor

I was not here when section 3 was dealt with.

An Cathaoirleach

The question is "That the Bill do now pass". We are confined to a discussion on what is contained in the Bill. We cannot reopen Second Stage or have Second Stage speeches. I have allowed some latitude to Senators.

Mr. Connor

I appreciate that, a Chathaoirligh. You have always allowed as much latitude as possible.

I would like to make a general comment because I said everything I wanted to say on Second Stage. Nevertheless, it is regrettable that we will pass this Bill when one considers that until very recently, a public or civil servant found guilty of wrongdoing was dismissed from their post and forfeited their pension rights. That position was reversed by a court case.

In the past, many civil servants were dismissed for what we would consider trivial offences. They and their families suffered greatly because they were denied their pensions, although they had contributed towards them all their working lives. They were not able to benefit from their pensions, which they had to forfeit, because they were accused of wrongdoing and were dismissed from the Civil Service. One may contrast that with the generosity of the Government towards the three gentlemen about whom we are speaking. I do not wish to take from the judicial competence or the eminence of Mr. Hugh O'Flaherty, Mr. Cyril Kelly and, as I described him, the unfortunate Mr. Quinlan, the former County Registrar. Nevertheless, there are many unanswered questions.

I sat for hours at the meetings of the Joint Committee on Justice, Equality and Women's Rights. It is a cross-party committee and its members agreed that while they knew what happened, they wished to know why it happened. There was never great division at the committee about the investigation or the need to get the truth. Members were conscious of the letter received from Mr. Hugh O'Flaherty who said—

An Cathaoirleach

I cannot allow that. I have allowed much latitude but if the Senator starts to quote from correspondence—

Mr. Connor

I will summarise what he said. Mr. O'Flaherty said he was concerned to explain his position fully, especially in the light of the many aspects which were new to him. To that end and in view of the widespread concern and the many questions surrounding the case, he requested, if it was appropriate, to make a statement to the Joint Committee and to answer any and all questions its members might raise. Less than a week later Mr. O'Flaherty saw fit to write again with a rather convoluted argument which wound up by saying he could not be of any assistance to the committee because the Constitution did not allow it.

There were gaps in the information we were being given. In this age of openness, transparency and accountability, even judges must be held accountable. Some of the actions taken in this case were not taken when the judges were acting judicially. In the case of Mr. O'Flaherty, he was not acting while sitting on the bench or in his court room. The committee felt that it was at least due an explanation for those events which were clearly of a non-judicial nature. That was also the legal advice given to it by its senior counsel.

For those reasons, this side of the House is very reluctant to consent to this Bill. There is a different dispensation abroad for politicians and members of the Judiciary – maybe rightly so – but if we, as politicians, were found guilty of some wrongdoing and the pensions to which we were entitled came up for discussion in this House, the public reaction would not be good. Hurry on the publication date for Mrs. Justice Denham's report on instituting a procedure whereby judges and members of the Judiciary can be held more accountable. I hope her recommendations are comprehensive and meaningful and that they will put in place a procedure to avoid a repeat of the predicament in which we find ourselves today.

Mr. Coghlan

An unfortunate set of circumstances gave rise to this brief Bill. We should all feel compassion whatever wrongs were done. I feel sorry for one of the most distinguished and eminent judges of our time, Hugh O'Flaherty, who, as we all accept, acted out of humanitarian instincts. These people have paid a huge price and have suffered emotionally and financially. What is being provided by the State is reasonable.

If I had a complaint about this issue it would be that the Government's action in forwarding that letter pre-empted a number of things and, in effect, amounted to constructive dismissal. It was the wrong course of action because under Article 35 of the Constitution, it is a matter for both Houses of the Oireachtas. I am not trying to make excuses where the course of justice was compromised but we are dealing with pensions. I am sorry that in the case of Hugh O'Flaherty his actions, based on humanitarian instincts, were judged by the Chief Justice to have damaged the administration of justice.

Those involved have paid a considerable price and have suffered much. They have contributed to the superannuation fund all their working lives and in one instance – I do not want to single out one above another – whatever is being paid is justified. I am delighted a judicial committee has been set up by the Chief Justice following the sixth report of Mrs. Justice Denham's working group, and I hope it will ensure that such a situation will not be allowed to recur.

Minister of State at the Department of Justice, Equality and Law Reform (Mr. Fahey)

I note the comments made by Senators Costello and Connor and, as the Cathaoirleach said, it is not appropriate for me to comment on much of what was said. It is over two months since the resignations took effect and the time has come to draw a line under this chapter of events and provide the legislative underpinning which is necessary if the severance terms outlined to the Lower House on 20 April and to the Seanad on 28 April are to take effect. The Government will proceed to address problems identified in this case and there is no doubt that there are a number of problems to be addressed. Members are aware of a number of initiatives being taken as a result of the case.

I thank Senators for the orderly manner in which they contributed to the debate. It is fair to say it was a difficult case for everyone involved. The two judges and the registrar made mistakes but it would be wrong to punish them in a way which would affect the rest of their lives. They are losing a significant amount of income as a result of losing their positions. It is only fair the Oireachtas gives them the pensions which have now been approved. I thank Senators for their contributions to the debate.

Question put and agreed to.