Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) (Amendment) Bill 2004: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

As Members will be aware, this House will be asked shortly to initiate a process to deal with a matter of the highest national importance. I refer to the solemn responsibility placed by the Constitution on Dáil Éireann and Seanad Éireann on the possibility of the removal of a judge from office in accordance with Article 35.4 of the Constitution. It is proposed that motions to initiate that process will be brought forward next week. In the meantime the Government, acting on its legal advice, has introduced this Bill to facilitate whatever procedures the Houses decide to put in place to enable it to discharge that responsibility.

This Bill provides a power that will be available on any future occasion that the Houses of the Oireachtas may be called upon to contemplate the removal of a judge. I hope there will not be many such occasions. Under the provisions of the Bill, a judge may be compelled to appear before and provide evidence to any committee of the Houses of the Oireachtas that may be set up in connection with the exercise by the Houses of the power provided in Article 35.4 of the Constitution. Mindful of the importance of preserving the independence of the Judiciary, the power to compel a judge proposed by the Bill is framed very narrowly and specifically.

It relates only to circumstances where the removal of a judge pursuant to Article 35.4 of the Constitution is being contemplated and only to a judge who is the subject of such a process. It is inconceivable that the Houses of the Oireachtas should embark on such a solemn process without having the capacity to require the judge to assist them in that process. In all other circumstances, the exemption from compellability for judges in their capacity as judges will remain. I stress that the independence of judges in the exercise of their judicial functions is in no way compromised by this measure.

On the detail of the specific provisions of the Bill, it is proposed to amend the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 by inserting a new section 3A after section 3 of that Act. Paragraph (a) of the new section 3A provides that section 3 of the 1997 Act shall, notwithstanding section 3(4) and (11) of the 1997 Act, apply to a judge where a committee is established for the purpose of a matter arising under Article 35.4 of the Constitution, section 39 of the Courts of Justice Act 1924 or section 20 of the Courts of Justice (District Court) Act 1946.

Paragraph (b) of the new section 3A clarifies that a “committee” as defined in the 1997 Act, which is established in connection with the behaviour or capacity of a judge, means a committee established before or after the enactment of the Bill. The paragraph also clarifies that such a committee may deal with the behaviour or capacity of a judge whether the behaviour or capacity in question occurred or occurs before or after the enactment of this Bill.

When enacted, the Bill will mean that a committee, established to consider the possible removal from office of a judge, will have the power to direct a judge to attend before it, give evidence and produce any document in his or her possession or power as directed by the committee. I stress that it is just an enabling power. It is a matter for decision by any such committee whether it wishes to invoke the power, following the procedures laid down in the 1997 Act, which require, among other matters, the prior consent of the appropriate sub-committee.

Senators will also be aware that the "appropriate subcommittee" referred to in section 3A is defined in the 1997 Act. Where a committee appointed by either House of the Oireachtas or a sub-committee of such a committee is seeking powers of compellability, the necessary consent is given by a sub-committee of the Committee on Procedure and Privileges of that House. Where the committee in question is appointed jointly by both Houses of the Oireachtas, the consent must be given by a sub-committee appointed jointly by the Committee on Procedure and Privileges of each House. Under the existing legislation, a committee already has these powers in respect of other potential witnesses. The issue of compellability is only one component, but an essential one, of a framework in which a committee of the Oireachtas can effectively carry out its functions in regard to a process of this kind.

I commend this Bill as an essential component in a framework under which the Oireachtas can, when necessary, effectively discharge its duty on foot of Article 35.4 of the Constitution, by providing it with the power to call all witnesses who have pertinent information and also to obtain all relevant documentation and material.

I welcome the Minister of the State. I believe this is the first time the Minister has come before us, as a new Seanad, although I may be incorrect about that. She comes from an illustrious family in terms of its contribution to this House, not least her brother and her father. I welcome her to the House as Government Chief Whip.

I am convinced about the Government's sincerity in the way it is dealing with this issue, particularly the way it has involved all voices in this House at leadership level in terms of the groups we represent, and in the way it has dealt with the matter in the other House. In putting my views forward on this proposed legislation, I want to make it clear that I am in no way undermining the Government's strategy on this matter or its handling of the matter.

This is new ground and while our duties are clear under Article 35.4 of the Constitution, I want to make it clear that there is no legal or procedural framework we can follow in terms of seeking precedent in former cases. Because there is no precedent in this matter it is important that we take our time and tease out this matter, and that there is maximum consultation over a period of time.

I put this question to the Minister of State. Some members of this House attended a meeting with the Attorney General last Thursday, and we also attended a meeting with the Minister for Justice, Equality and Law Reform and the Minister of State yesterday, and during both meetings we were not given an assurance that legislation would be needed in advance of this process beginning. That is an indication of the fluidity in the situation and the fact that many new issues can arise. We appear to be determined to follow a course of action whereby at some point next week, on Tuesday or Wednesday, a motion will be put to this House or the other House. I ask the people involved, even at this late stage, to examine this matter seriously and tease it out with all Members in the House to ensure we get it right. We do not want a repeat of other examples where the Houses of the Oireachtas got it badly wrong when some of these matters went before the courts.

On a second issue, and I will put this view as neatly as I can, are we not putting the cart before the horse in respect of this legislation? The controversy that arose in recent weeks concerning a member of the Judiciary is well known but that member of the Judiciary has told the Government he believes he has a right, which he has, to address the Oireachtas and not the Government per se. That is explicitly the case under Article 35.4. Why should we change that legislation in advance of that committee being established and its work advancing? Would an issue of compellability arise given that the person in question has already publicly stated that he wants to meet the Oireachtas to deal with these matters, as is his right? Why is there a need for compellability? Why is there a need for compellability regarding this matter if the Oireachtas is determined that a committee be established to look into it and if the person in question then deals directly with that committee? If a difficulty arose at that stage, for instance, would it not be wiser for the committee to decide that legislation was necessary in this area in terms of compellability rather than the Oireachtas doing it first? I simply pose that question and ask the Minister to reply.

The Minister is well aware that the issue of judicial conduct came to the fore some years ago in regard to the Sheedy affair. A clear commitment was given by the former Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, to bring forward legislation in this area. To his credit, he published a Bill but despite the fact that it is in the Government's programme and identified as an area of priority, it has not yet been enacted in the House. The House has no framework, therefore, upon which the issue of Article 35.4 can be determined. We are rushing through this legislation in that we are taking only one day to deal with what is a fundamental constitutional duty. Would it not have been more sensible to have the legislation in place, tease it out over a period and then deal with the other matter as needs be? All our actions today and in recent days appear to be predicated on the notion that early next week a motion on this matter has to come before this House and the other House. There is no reason that has to be the case and the matter should be clarified.

Why is the power to compel required in this instance? I have already stated, and it is public knowledge, that in regard to the matter we are discussing it is clear the member of the Judiciary concerned wants to deal directly with the Oireachtas, as is his right. Why are we forcing, through compellability legislation, a situation where it is already sated policy on the part of the person concerned that he will deal directly with the Oireachtas? If the Oireachtas establishes this procedure, one would presume the person would, in all fairness do that.

Another question concerns the power of compellability of a person to attend and the rule against self-incrimination, which I am aware was raised by my colleagues in the other House this morning. When it comes to this important issue, if evidence is given at a committee predicated on Article 35.4, can it then be used to support any contention of misbehaviour which may be in the motion before the House next week? This is a fundamental rule of natural justice. If a person gives information freely to a committee of the Oireachtas, can the information be used to come to a determination by the committee or by the House at some later point? Similar rules apply to tribunals. Evidence given to a tribunal, for example, cannot directly deal with a criminal case. Such evidence must be gathered separately.

If a person is compelled to attend there is no certainty that he or she must answer questions or provide evidence. The stated position of the person in question is that he will deal directly with the Oireachtas in a manner the Oireachtas sees fit. Why, then, is compellability necessary? How does the power of compellability sit with the right to silence, which is a fundamental aspect of our law? Can the Oireachtas, or a committee of the Oireachtas, come to a determination as to whether or not that right can be quashed? Does compellability confer privilege and is that privilege absolute or qualified?

I appreciate the difficulty in which we find ourselves. All contributions in the House have approached the subject with the single objective of making sure the procedures and process are fair and that the dignity of the House and its constitutional obligations under Article 35.4 are inherently fair and are seen to be so by all citizens.

Members have an obligation to put questions to the Government regarding its strategy. I thank the Minister of State for her attendance and for considering this matter.

I join Senator Brian Hayes in welcoming the Minister of State. Deputy Hanafin's family has a long and distinguished connection with the Seanad. I also welcome the introduction of this Bill.

The purpose of the Bill is to assist any process initiated with regard to the constitutional or legislative issues which arise under Article 35.4. As Senator Hayes has pointed out, that process needs to be fair. The Bill seeks to ensure there is a legislative framework for the unprecedented step on which the Houses may embark.

Confidence in the Legislature and the Judiciary is fundamental to any democratic society. Senator Brian Hayes referred to the fact that following a controversy regarding a judge of the High Court, a Bill was published which outlined a way in which matters in this area could be dealt with in the future. It is my recollection that there was general agreement in committees of the Oireachtas regarding that legislation but that opposition was raised to it subsequently in the other House. This may have led to the Bill not being pursued and processed. With this type of legislation it is important that the groupings in the House come to a consensus to ensure there is broad support in both Houses for the measures to be put in place. Such consensus generates the necessary confidence in any system to be set up.

I have always felt the need for some form of arrangement which safeguards the independence of the Judiciary but retains elements of accountability which can be processed. That is not the case at present. People on all sides of the House had considerable sympathy for the judge in the case mentioned by Senator Brian Hayes. It was felt the matter needed to be processed in a way which might not, necessarily, have led to the loss of the judge to the Bench.

The principle of separation of powers is absolutely essential. The Executive cannot have any connection with or influence over the processing of cases by the Judiciary. At a recent Garda conference complaints were made regarding certain judges who, perhaps in an abuse of their position on the Bench, have been critical of gardaí, solicitors and witnesses. While we all have mornings when we get out of the wrong side of the bed and say things we may regret, if the legal system is to have public confidence there must be accountability. Some form of independent commission, removed from the Executive and perhaps including retired members of the Judiciary, could pursue such instances and call such judges to order. We must have safeguards to ensure people who are in privileged positions do not abuse that privilege. This is particularly important in a republic. There ought to be a procedure for dealing with that. There is such a provision to deal with serious issues which arise in the case of judges of the District Court but the same is not the case for other judges. Perhaps this proposal could be examined. The Bill to which Senator Brian Hayes referred could be reactivated and a system, which would be independent of the Oireachtas, could be put in place to process such issues. The Houses might then act on foot of recommendations from that commission if the ultimate step has to be taken.

Given that motions are to come before the Oireachtas, a legislative framework must be put in place to facilitate committees in operating effectively. Any assistance to be given to committees should be clearly set out in legislation so they can function effectively. It would be regrettable if a course of action embarked upon by either House subsequently had to be abandoned because the necessary legislation was not in place.

For that reason, I welcome the Bill. I hope it will assist a committee in dealing with whatever or whoever is brought before it in the future. The steps being proposed have serious consequences for all concerned. We must have a system by which issues of this nature can be pursued and regulated. It is in the interest of maintaining public confidence in the Oireachtas and in the Judiciary that this be done. I welcome the Bill which will give any such committees established the powers of compellability to direct witnesses or judges to attend, give evidence and to produce any documents it considers necessary. The framework we are putting in place — I am sure Senator O'Toole will make this point — is strong in terms of constitutional issues in that the House must take ownership and responsibility for the process. That, presumably, is the manner in which issues will proceed. Notwithstanding that, it is essential we put in place whatever legal framework is required to assist that process so it is not inhibited or aborted at a future stage.

Cuirim fáilte roimh an Aire Stáit chun Tigh Uachtaraí an Oireachtais. This is the first occasion the Minister of State has attended this House. The Government and all concerned are in a difficult situation. The position regarding our relationship with the Constitution in terms of whether we are its guardians or defenders is not clear. I am certain, however, that we have obligations under it to ensure that rights conferred on citizens are observed and available at all stages.

I have no difficulty with the legislation before us although I believe it raises difficulties. In that regard, I concur with Senator Brian Hayes's earlier remarks. While I question this process, I have no doubt about the motives of the Government, the Attorney General and the Minister for Justice, Equality and Law Reform. I wish to put on the record that I do not wish in any way to impugn their motives because I believe they are acting from the highest and most admirable standpoints on this issue.

So strong are my feelings in terms of ensuring due process, fair procedures and the outermost limits of probity in dealing with this issue that I would personally take the House to the Supreme Court if I believed it was doing something wrong. I would not be waiting for representatives of those we might be considering to impeach to do it. I hope also that everybody else feels the same. I have many reasons for my point of view. It is in the interests of lawyers representing a person due to be impeached to allow us to make a mess of the process in order for them to undermine it afterwards. Everybody is coming from the belief that we will be taken to the Supreme Court if we get this wrong. That will no doubt happen. The best thing people, who believe they can catch us on a fundamental point of process which in some way infringes or delimits a citizen's rights, can do is let us make a mess of the process and later have it turned on its head. The public will not forgive us if we get this wrong. I am not speaking of obtaining a result. We must enter this process with an open mind and we will do so. However, if a procedural difficulty arises, we will not be forgiven.

Many issues arise in terms of this legislation. Members of the Houses of the Oireachtas are empowered by the Constitution to carry through the process of impeachment. In doing so, we will begin with a process of assembling a committee which will have the power to collect evidence. That is the mildest power I can attribute to the committee although I have heard others refer to it as an investigative one. The Bar Council, the Law Library and the Medical Council, in terms of how they do their business, always ensure a separation of the investigation phase and those involved in it from the deliberative phase to the judicial phase. In that regard, a question will quickly arise as to what will be the position of people sitting on a committee which we might establish following enactment of this legislation in a process of impeachment which may follow. A question will also arise in terms of the collection of evidence. Such a committee could not form a judgment on the core issue but would be required to form a judgment on what was appropriate evidence to bring before the Houses of the Oireachtas and in doing so would have reached a conclusion about certain aspects of evidence that were not appropriate or relevant. Nonetheless, it could be argued that having seen such evidence, they are different from the rest of us and should be excluded.

Another issue that could arise is people speaking out of turn on the core issue in the media or other places. It is clear that such people could be seen to be prejudiced. If that happens, who will pronounce them as being prejudiced? Who will deal with the matter of a person speaking out of turn and clearly giving to the media a biased view, thereby tainting or making unsafe any conclusions of the Houses? To that extent, any process going through either House needs to be managed by way of building into that process a management structure, be that a person or a sub-committee.

There has been little debate on the sub-committee on compellability, a sub-committee of the joint CPPs, which gives permission to allow compellability of a particular person. Members of the sub-committee are also members of the CPP which forms judgments based on evidence presented by members of the new sub-committee. Such a committee must form a judgment that it was appropriate to compel a person on a particular basis. That is its function. I would like a similar protection in the process to follow.

Senator Brian Hayes referred to evidence compelled and where we stand in that regard. The Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 includes a clear statement regarding evidence adduced through compellability and states that such evidence cannot be used afterwards in a criminal trial. I know the simple answer is that impeachment, if it were to take place, is not a criminal proceeding, but neither is it a civil proceeding. Impeachment does not come under the category of criminal or civil proceedings. If such proceedings are not criminal, one could adduce that the burden of proof would be the balance of probability. How does that affect evidence collected? Given that the committee can compel a person to attend the proceedings, can it compel a person to give evidence which could be later used against him or her? A constitutional issues arises in that regard. I am only relating that point to a particular section of the Bill and do not suggest the two issues are the same. However, it is a matter we must consider.

The right to natural justice would clearly give the person the right to engage with the process and to question it. In normal circumstances, people examine evidence, offer rebuttals and present argumentation. There is no doubt in my mind — I am sure this is true of others, including the Minister of State who I know has views on this issue — that we would have to establish a process to allow that engagement. Such engagement may not sit easily with compellability. There is a difference between offering a person the facility to engage and compelling that person to give evidence which could be later used against him or her. I am not saying I know where that might lead us but, nevertheless, an issue arises in that regard.

If we are to get to the process of dealing with an impeachment arising out of this legislation, we will have to manage the engagement of the person who it might be contemplated to impeach and consider how that person will engage with the process. That issue must be managed. I do not know with whom that responsibility would rest. Would it be the Leader of the House, a person nominated by the House or a sub-committee of the House? How would it be done? Each House of the Oireachtas has rules of engagement in terms of what is parliamentary. Will the rules of parliamentary procedure apply to the process of impeachment? Given its powers, one would assume such rules will apply. However, is that a fair assumption given we are dealing with a person's constitutional rights? Can the hearing be moderated on that basis? We know that court rules need not apply but is that vacuum easily filled by the parliamentary procedures or is there some other way? I raised the question of the burden of proof. Do we give advice to people as to how they should deal with these issues? These are some of the questions that have troubled me. I do not have a problem with the legislation although I do not think it is necessary. What bothers me is how quickly this is coming before the House, not in the sense of whether the House can cope with it because it is easy enough to read and understand this Bill and come to a position on it. We had a very open and honest meeting with the Attorney General last week and with the Minister of State and the Minister for Justice, Equality and Law Reform yesterday. The other legislation which was dealt with in the House this morning was not even mentioned at those meetings. It had not come through as an important issue at that time because I am assuming the Minister of State would have informed us if it had been. I am bothered by that rolling approach. It seems to be a case of making it up as we go along.

There is a difference between not having a process and making it up as one goes along. I know we must make it up but I would like to make it up before we start. That is the point made by Senator Brian Hayes. I want to be clear in my mind about the way it will go, the timeline and the sequence of events and then press the button and agree to go. In this case we are rushing into it and saying that it must be right for tomorrow and these three pieces of legislation must be put through. I am worried about that approach. As the makers of law, we in the Legislature have a clear duty to ensure that the rights we want our citizens to have are protected in all cases, even in the case of somebody being impeached. That is our duty as much as it is to go through the impeachment procedure. They are equal and they must be balanced. There must be open-minded, fair procedures and we must then do our duty. I will support the Bill.

I welcome the Aire Stáit to the House. I will start where Senator O'Toole finished, on the subject of the whole business of making it up as one goes along. We all acknowledge that there is of necessity a certain ad hoc air about this. It strikes me we are just looking around the next corner rather than trying to look around a few corners at a time. In essence, we are doing today what we have been doing for most of the last week which is considering how the committee can be established, how the process can be properly initiated and the procedures the committee might undertake.That must be done and the Opposition has co-operated with Government in looking to put those procedures in place. If thought has been given to what happens once the committee reports, then we have not been involved in negotiations or discussions about that. I have not the remotest idea how the Houses of the Oireachtas will process the report once it comes before us.

We should now be looking to give a week or two weeks thought to that. What format will the debate take? Will Members be entitled to literally say anything they wish to say? If a Member gives the impression that he or she has come to a conclusion or came to a conclusion two months ago following the collapse of the criminal trial, is that open in any fashion to judicial review? Is anything which a Member says indicating the basis of his or her decision open to review or does it matter? It may very well be that it does not matter. It may well be that the Constitution gives that power to Members of the Oireachtas and they can make up their minds irrespective of how irresponsibly they choose to do it or based on whatever evidence they choose to take into account. The truth is that we do not know. We need to have a firm view even at this stage or before we initiate the process, be it next Tuesday or whenever, as to how the whole process will pan out and not just how the committee will pan out. I regret that we have not thought sufficiently far ahead and we should take a week or two to do so now.

Like Senators O'Toole and Brian Hayes who spoke before me, I am not sure what is meant by an impeachment process. Is this akin to a criminal trial where the judge is being cast in the role of defendant and the Houses of the Oireachtas are cast in the role of judge, with all the rights and requirements of process that entails? Is it perhaps an investigation where various Members of the Houses can be taken away and put into a committee room for however long it takes to assemble facts and then Members of both Houses make up their minds based on those facts or any other facts, at a later stage?

It seems to me the Government is taking the second view. I am not a constitutional lawyer but on balance, that is probably right. There is no doubt that it would be safer to take the former view. It would be safer to take the view that the judge is the defendant or potentially the defendant and the Members of the Houses are the judge and jury and to accord the judge all the various rights that go with that state. Implicit in that would be the right not to incriminate himself; the right not to give evidence against himself or to produce documents that would incriminate himself; the right to silence; and the right not to attend, which is important in the context of today's Bill, if we choose to treat him as being defendant or akin to a defendant in a criminal trial. I appreciate it is not a criminal trial.

We are taking the opposite view that the judge is part of an investigation. That implies we are saying to a judge in those circumstances that he or she is obliged to satisfy or be party to satisfying the Oireachtas, that he or she is suitable for the job. We are placing a certain onus on the judge by putting a resolution before the Houses to state, "Yes, I am a suitable person and no, I am not guilty of stated misbehaviour or I am not incapable."

If one thinks in terms of a job interview or assessment or membership of a club, to what extent are we entitled to reverse that onus? To what extent must we say to the judge that we do not think him capable or, more to the point, think he is guilty of stated misbehaviour and then prove that before the judge, in turn, responds? To what extent can we ask the judge to bring along all the documents he has that might be relevant to this case and satisfy us as to his position? I do not know the answer to that question but it is important that we have some advice and concept in our minds as to exactly where it stands before we begin the process.

My opinion is not worth a great deal but if the Oireachtas initiates the process properly and if it is based on some class of evidence, then there is or should be an onus on the judge to satisfy the Oireachtas that he has not been guilty of stated misbehaviour if that misbehaviour is stated by way of resolution or otherwise. I would like an explicit response from the Minister of State as to whether she thinks that is the case.

I am somewhat although not overly concerned about the retrospective element. We are setting in place a process of investigation of activities which may or may not have happened before the process itself is in place. That would cause difficulty were we talking about a criminal trial. If one extends the logic of what we were discussing earlier that it is not a criminal trial, then it is not a problem. This requires clarity of thought and I am not conscious we have that clarity of thought. I am anxious to hear the Minister of State's thoughts and the Government's view as to whether there is any difficulty in making this applicable retrospectively as opposed to just prospectively.

It is a pity this is being done so quickly. I would have liked the opportunity over the weekend or over the next week or so to take advice. There are many people in the Law Library, as the Minister of State well knows, who have views on these issues and we all have access to some of them. It is a pity we do not have the opportunity to use some of that advice and to gather together the collective wisdom of our colleagues in the legal profession. The process is moving quickly and there is nothing this House can do at this stage.

My party did not oppose this Bill in the Lower House and we will not do so here.

I thank the Senators for their welcome contributions and for their non-opposition, as it was phrased in the Dáil, to the passing of the legislation. Two important issues have been raised. One deals specifically with the process in respect of the specific case and the other deals with the legislation. The Constitution gives power to the Oireachtas for the removal of a judge. Equally, the Constitution does not set out the process by which we would have to do that. That is a matter for the Houses of the Oireachtas. As Senators have said it is the source of much consultation between Senators. It is also before the Committee on Procedure and Privileges of both Houses in order to put in place procedures which will ensure fair process. These matters are being considered from the point of view of Standing Orders and from the process to be put in place by way of committee investigation and so on. The points raised about that process are valid but they perhaps belong in that forum rather than just here in the House today when specific legislation is being considered. Even though the legislation before the Houses today is very important to enable us to do our duty and fulfil our obligations under Article 35.4 of the Constitution, it is a general Bill which has general application.

Senators asked why we are rushing the legislation. As I stated, a particular issue has given rise to public disquiet and concern. The Houses of the Oireachtas have been forced to address it and this is one of the Bills which will allow us to do so in an appropriate manner.

The question as to whether the legislation is necessary is a valid one on which there are different legal views. The legislation brings certainty and clarity to the situation. The compellability legislation refers to a judge in his capacity as a judge. Would activities of a judge outside of his role in the court, perhaps in passing judgment, be covered by the Act? The answer is that in the context of our constitutional role or any process one would use to come to a conclusion under Article 35.4, the end result would certainly affect the judge in his capacity as a judge. It is for this reason that it is probably better to bring clarity and certainty to the whole process.

Whereas the Oireachtas will deal with the procedures in the committee, it is important to specify that the judge who is the subject of the process of removal from office is the only person who will be compelled under the legislation. The legislation will not, therefore, be widely applicable to all other judges and does not, therefore, affect or interfere in any way with the independence of judges, an issue raised by Senator Jim Walsh. It also provides for a power which the committee may use, rather than must use.

To return to Senator Brian Hayes's point, if a judge were to voluntarily come before a committee in a particular case, the power would not have to be used. It is an enabling power for the committee and may never need to be used. It enables us to put in place the necessary framework and structure before starting to invoke our powers, as it were, under Article 35.4.

The issue of judicial conduct, which Senators raised, is being addressed in judicial conduct and ethics legislation which is under preparation and due to come before the Houses before the end of this year. Senators will recall that an effort was also made to deal with this issue in a constitutional framework in 2001. Unfortunately, however, all-party co-operation was not possible at the time and it was decided not to proceed. Again, the matter could in future be examined in the cold light of day to determine how we proceed.

Senator O'Toole asked a question about evidence that could be self-incriminating. Section 12 of the Act of 1997 provides for the non-admissibility in criminal proceedings of evidence given under direction. This appears to imply that evidence or information given by a judge, having been compelled to appear before the House, could not be used subsequently in criminal proceedings. The judge in this specific case is autre fois acquit, the criminal law principle which means he cannot be put in jeopardy in a criminal case a second time for the same offence.

As regards the question regarding privilege, the privilege attaching to a person who has been compelled is the same as that of a High Court witness. In these circumstances, therefore, the person has a further protection.

Senator Brian Hayes raised a question about a person who agrees to co-operate with the Houses of the Oireachtas. In the event that the Houses put in place a process, it would involve a committee specially established to receive, record and report. If that was the case, one might need the power to compel somebody to appear before the group in question, rather than the full membership of the Houses. As I stated, procedures and so forth for compellability are being dealt with by other groups in and of the Houses.

The matter of compelling a judge is obviously a sensitive one, which is the reason we sought to be highly restrictive in the legislation. We recognise the independence of the Judiciary and, naturally, the separation of powers as set out in the Constitution forces us to do so. Equally, however, we must ensure that in using our powers under the Constitution we put in place a framework which ensures due process. We aim to do precisely what Senators have asked, namely, to establish a framework before starting on a process. This is the reason two Bills have come before the Houses today and I admit it has been done quickly.

I thank Senators and the parties generally for their co-operation on this matter as it allows us to put a distance between a specific process and having a framework in place to carry it out. As has been stated many times, these are completely uncharted waters, which is the reason the co-operation of all parties and the workings and contributions to the various processes being established is so valuable.

This legislation is narrow in focus and applies only to a judge who is the subject of a process of removal from office. It provides that he or she may be compelled to appear before a committee which is investigating that very process. It is an important part of the framework which will give clarity and certainty to the issue. For this reason, I commend the Bill to the House.

Question put and agreed to.

When is it proposed to take Committee Stage?


Agreed to take remaining Stages today.