The first thing to be said about the Abbeylara case is that it was a tragedy for everybody. It was a tragedy for the family and the misfortunate man who, under conditions of extreme illness, appeared to be a threat. It was also a tragedy for the Garda Síochána. There is no question about that. I have been critical of the Garda in the past and probably will be again in the future, but we do not have a trigger-happy police force – quite the opposite. It could be argued that because we have had such a responsible use of armaments by our police force, they perhaps have not been trained in their use as fully as they should be. That is a matter to be investigated.
I never believed the Oireachtas sub-committee on Abbeylara was going to make factual findings about individuals. It was possible the investigation would raise questions about the behaviour of individuals, but I believe that sub-committee was simply going to examine procedures, processes and gaps in decision-making. I read the High Court judgment on the case taken by the Garda. I have not yet read the entire Supreme Court judgment, but given that at least one of the judgments runs to 90 pages, I do not think I deserve to be criticised for that yet. I will read the rulings because I find them interesting.
I will leave the investigation of Abbeylara to the tribunal. A method of investigating matters of concern and identifying the facts as far as is humanly possible is badly needed in every functioning democracy. I dispute with the Supreme Court the implied belief that there is an inherent defect in the political process which means it cannot be done that way. The Judiciary may deny this is what they said, but the bits of the judgments I have read, as opposed to the interpretations or opinions of them, come close to this implication.
The courts eloquently defend the good name of individuals, quite rightly, but I find it astonishing that they seem untroubled by the fact that somebody who is poor or a member of an identifiable minority could well be defamed, by a newspaper for instance, or by a politician outside the Oireachtas, yet there is no redress for people because they are poor and cannot afford access to the defence about which the Supreme Court so eloquently wrote, the protection of one's good name. If the courts are to assert the right of people to vindicate their good name, and as a civil libertarian I would not dispute the principle, then the question of class ought at some stage to enter the consciousness of the Judiciary.
The reality is that for a large number of people in Irish society, who can be and have been traduced in the past, there is no way of pursuing a legal challenge without putting everything they own in jeopardy. There is a fundamental and central issue here about access to justice, and it is an issue the Judiciary duck in most countries. We know this is the case in the United States, where many of those on death row, for instance, are there because they have been provided with appalling defence lawyers who are poorly funded, poorly advised and poorly equipped to do their job. If a society is divided like that, then the eloquent view of the courts that people should not be adversely affected by, for instance, the behaviour of a Member of the Oireachtas, is meaningless unless they address the fact that for many people it is practically impossible to vindicate that right because they cannot afford to take the risk to do so.
The courts have a job here, which is either to instruct the Oireacthas to ensure that people are financially able to access the courts, or else to begin showing some of the judicial activism which the present Supreme Court is clearly reluctant to do, and to address the issue of class and poverty when it comes to equality before the law. Otherwise, it may make fine rhetoric, but it contributes very little to the vindication of the rights of all those people who live on salaries unimaginably small to a successful barrister or member of the Supreme Court.
The High Court and Supreme Court rulings on the Abbeylara inquiry and also the judgment on Cabinet confidentiality have all, in their own way, made commentaries on politics and politicians. They have implied, for instance, that if Cabinet discussions were to be a matter of public record, politicians would wilt under the pressure of public opinion. That is a judgment about members of Government made by the Supreme Court which I, as a politician, have always found offensive. This is the most robust of all professions. In every other place except in Cabinet, members of Government and the Opposition have to debate what they stand for in considerable detail and with considerable robustness and they survive.
The Minister of State will remember a long and arduous pursuit of complex legislation here which we all survived. The Minister did not crumble under it. I have no reason to believe that a member of Government would find it impossible to express himself or herself freely because, under some circumstances, what he or she says might be a matter of public record. I find that astonishing and quite offensive and I have said that a number of times.
The references in this judgment to the inability of politicians to be unbiased implies a superiority on the part of the Judiciary which omits the possibility of a different kind of bias. I am not implying a deliberate bias; I am saying explicitly that we all try to be fair in most of what we say and do. None of us can say with certainty that we are entirely fair because we are influenced by our backgrounds, experience and the class from which we come. Our judgments are influenced by all such things. In politics, many of those things are severely challenged by the nature of the business – a person from a particular background, making assertions, would be subjected to vigorous debate. The correct nature of the Judiciary – it is outside the political process and independent of it – means those possibilities are not addressed within the Judiciary with the same vigour as they are in the political process. I invite the Judiciary to reflect on the absence from their rank of anybody who has ever experienced serious social or economic deprivation. How do they address that if nobody in their ranks or those aspiring to be members of the Judiciary have ever experienced such deprivation?
The record of Irish courts in vindicating the rights of poor people who come before them is, by and large, very good but they have to get there first. Increasingly, the question of cost arises. A very eminent member of the Judiciary, now deceased, suggested on occasion that it would be possible for a judge to ignore parts of the Constitution if they were in conflict with natural law which he saw as the law of God. He was an eminent member of the Judiciary and many of his judgments were wonderful, but it raises the basic idea of an inherent superiority and capacity on the part of the Judiciary to act with impartiality and without the sort of influences which influence mere mortals like me, who is neither a lawyer nor a judge. That point, which is the reason we are going down this route, deserves to be addressed.
I could, if I wished – the Cathaoirleach knows I will not – traduce every member of the Supreme Court. I could make statements about their character for which the Cathaoirleach would, correctly, reprimand me and I would be punished, but I would not be accountable to anybody else because of the absolute privilege we enjoy. I read the references to this in the judgments and I believe the conclusion which the
courts have drawn about the lack of an inherent right to make findings of fact about individuals does not fit very well with the constitutional assertion that Members have absolute privilege. Why do we have absolute privilege? Before the now notorious beef tribunal, many things were said in the other House about named individuals. The House chose not to punish people under Standing Order No. 58 which forbids such contributions. Leaving aside the merits of that decision, we had people making findings of fact without investigation. I am at a loss to know how it is possible to say that the Houses of the Oireachtas have no power to inquire about something with a view to making findings of fact when the Constitution carefully protects Members from any suit for defamation. We have the same protection as members of the Judiciary. I cannot accept that it is as clear-cut as members of the Judiciary seem to believe. These powers should be exercised with great discretion.
Many things about the way in which the sub-committee on Abbeylara did its business were open to criticism, particularly speaking to the media about the issue and matters relating to its procedures. Such things were not done properly. I cannot accept that there is a logical position which says that the Constitution gives Members of this House an extraordinary power of absolute privilege but, essentially, we were never intended to use it. I accept the circumstances are limited and constrained but I cannot accept that the power and the right to use it exists but the intent is that we should never use it. Whatever is contained in Standing Orders, I believe the power was included to ensure that, in difficult circumstances, the Oireachtas would be in a position to do what needed to be done. Who is to inquire into the misbehaviour of the Judiciary if the Members of the Oireachtas do not have the right to do so? I support the motion.