Dáil Éireann díospóireacht -
Thursday, 24 Jun 1999

Vol. 507 No. 1

Courts (Supplemental Provisions) (Amendment) Bill, 1999: Second Stage (Resumed).

The following motion was moved by the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, today, Thursday, 24 June 1999:

That the Bill be now read a Second Time.

Debate resumed on amendment No. 1:

To delete all words after "That" and substitute the following:

Dáil Éireann declines to give the Bill a Second Reading until such time as the two former judges referred to in the Bill give a clear undertaking that they are prepared to make themselves available to answer questions before whatever course of enquiry is recommended by Dáil Éireann in order to establish the full truth of the involvement of both individuals in the Sheedy affair.

–(Mr. Higgins,Mayo)

Mr. Higgins, (Mayo)

On Tuesday, 15 June the Minister for Justice, Equality and Law Reform, replying to a question I put down, said that legal advice given to him stated it would be contrary to the Constitution for the Government to enshrine a condition of co-operation on the part of the judges in this legislation. That could well be the case, although the Minister has declined to make the legal advice available. There could, however, have been no constitutional difficulty whatever in telling Mr. O'Flaherty that the Government had taken its own legal advice and-or the Joint Committee on Justice, Equality and Women's Rights had received legal advice to the effect that Mr. O'Flaherty's involvement in the Sheedy case did not constitute a judicial function and in light of this the Government would appreciate a written undertaking from him to co-operate with whatever further inquiry would be undertaken in order to fully establish the circumstances surrounding the Sheedy affair.

For the Government to expect the Oireachtas to agree to legislation guaranteeing the former judge, Mr. O'Flaherty, a £40,000 index-linked pension for life, in the light of his illogical, inconsistent, contradictory and unco-operative attitude is irresponsible on the Government's part. Granting him the pension in such circumstances is tantamount to an invitation to dig in further, and Fine Gael is not prepared to be a party to this strategy. Similarly, in the case of Mr. Kelly, one could scarcely hear a more damning denunciation from a fellow judge than the Chief Justice's commentary. He should not have heard the appeal case – the transcript runs to less than one and a half pages and the case took only a few minutes to hear. Contrary to the impression given by Mr. Kelly, there was no up-to-date psychologist's report. Neither party to the case was allowed to make submissions. Now, without any guarantee of co-operation, the Irish taxpayer is expected to reward the judge, who in the words of the Chief Justice compromised the administration of justice and did not conduct the case in a manner befitting a judge, with a handsome pension of £30,000, index-linked for the rest of his life. As in the case of Mr. O'Flaherty, this is wrong.

What written commitments, if any, have been given by the Minister and his Department in relation to the judge's pension entitlements. What correspondence has been exchanged between his Department and the representatives of the two judges in the pension negotiations? Is there anything in writing or were all negotiations carried out orally?

The Oireachtas has no desire to trespass on the domain of judicial function or to infringe on judicial independence in any way. There is, however, a clear absence of judicial accountability at present and this is not the fault of the Constitution. The legal advice available to the joint committee is to the effect that the Constitution permits judges and former judges to give evidence and offer explanations in relation to matters not concerned with the exercise of their judicial function. However, in the absence of a constitutional amendment it would not be open to make an inquiry into the exercise of their judicial function by a judge or former judge. Therefore, depending on the progress or lack of progress of any further inquiry into the Sheedy affair, a constitutional amendment which provides some limited degree of accountability may have to be considered, while at the same time respecting the separation of powers.

The ready co-operation of the former Dublin County Registrar, Mr. Michael Quinlan, is to be welcomed. It is clear, as the Minister said, that his handling of the listing of the case was flawed. His office is a quasi-judicial one but he should not have allowed himself to be influenced in relation to the listing of the case. He is, however, partially exonerated by a paragraph in the Chief Justice's report in which Mr. Justice Hamilton states: "I am satisfied, therefore, that had Mr. Justice Hugh O'Flaherty not spoken to the County Registrar, he, the County Registrar, would not have telephoned the accused's solicitor and opened the possibility of the case being relisted in the Circuit Court." Mr. Quinlan's offer of co-operation is in stark contrast to the refusal in the case of Mr. O'Flaherty and the tardiness in the case of Mr. Kelly in coming forward and discharging their public civic responsibility.

Both judges have done considerable damage to the credibility of a central instrument of our democracy. By falling on their swords they relieved the Oireachtas of the trauma of voting them out of office. There are, however, too many imponderables, unexplained irregularities, contradictions and inconsistencies to simply close the book and consign it to the shelves of history. It is important in the interest of democracy, the Judiciary and public confidence in the institutions of State that we establish the reasons the various actors in the Sheedy affair did what they did.

The two former court judges were central to what took place. Unless they co-operate, the truth will never be established. We owe absolutely nobody an apology for ensuring that every legitimate means of persuading them to assist in establishing the truth is availed of. For this reason, therefore, Fine Gael is not willing to grant this Bill a Second Reading until such time as clear undertakings are given by both individuals that they are prepared to co-operate fully with whatever further inquiry is deemed necessary and we ask all Members of the House to endorse this course of action.

Mr. Howlin

The Minister will concede that this is an unusual Bill. Its introduction is the latest in a series of bizarre and still unexplained events resulting from the traffic accident in which a car driven by Mr. Philip Sheedy killed Mrs. Anne Ryan and injured members of her family. Resignations of some of the highest judicial figures in the land have ensued, fine reputations have been damaged and families have been put under enormous stress and strain. However, we should never lose sight of the fact that those who are most affected, who have suffered most and endured the greatest loss are the family of Anne Ryan. In the midst of the judicial and political fall-out, the fact remains that a young woman was killed and taken from her family in the prime of her life, her husband was left seriously injured and her children left motherless because of the reckless driving of a man who had consumed more than the legally permitted level of alcohol.

As I remarked when we discussed the matter in this House before, nothing could compensate the Ryan family for their loss. However, they have a right to expect that if, and when, the person who caused the action was charged, convicted and sentenced, then justice, as set out in the enactments of this House, would take its normal course. The events of the past few months have flowed from clear attempts to ensure justice did not take its normal course and that, in effect, the course of justice would be perverted. These attempts might have been successful had not a vigilant person spotted Mr. Sheedy, whom he believed was properly in prison, and had not Mr. John Ryan shown the courage and determination to ask questions, to persist and to demand explanations.

The inquiry undertaken into this affair, at the instigation of the Government and at the request of the Attorney General, by the Chief Justice, Mr. Liam Hamilton, was, and is, unprecedented in Irish legal history. Its findings shocked the legal establishment to its core. The Chief Justice found that the actions of Mr. Justice O'Flaherty, who shared the Supreme Court benches with him, were "damaging to the administration of justice". The findings of the Chief Justice in relation to Mr. Justice Kelly were, in my view, even more damning when he found he had failed to conduct the case in a manner befitting a judge and that his actions "compromised the administration of justice".

It is against that background, and the background of the response of the two former judges to efforts by an Oireachtas committee charged with responsibility by these Houses to establish the full facts leading up to the early release of Mr. Philip Sheedy, that we must evaluate and pass judgment on this Bill.

The indisputable fact is that the report produced by the Chief Justice, Mr. Justice Hamilton, was, by any measure, severely critical of the actions of the two judges involved. The Government made it clear that, had the two judges not resigned, motions would have been placed before both Houses of the Oireachtas seeking their formal removal from office, in accordance with Article 35.4.2º of the Constitution. I am unaware of any precedent for formal letters of the type to be delivered to the two judges from the Government, consequent on formal decisions of the Government. That all underscores the uniqueness of the situation and the seriousness of the actions of the judges involved, as determined by the Government.

Had the Government been required to place a motion before this House in accordance with the Article 35 provisions, I have little doubt that such a motion would have received majority support. Had that happened, the judges would have been removed from office and would, as I understand it, have had no rights to pension or gratuity payments, whatsoever.

One must acknowledge that the resignation of the two judges averted the need for the Oireachtas to embark on that particular difficult voyage into uncharted waters, where, quite obviously, serious constitutional and legal difficulties would have arisen. I know that prospect was relished by nobody in this House. The two judges are entitled to credit for that, but they are entitled to no subsequent credit for their response to requests to co-operate with efforts on an all-party basis by the Joint Committee on Justice, Equality and Women's Rights to find answers to the questions that not only Members of this House and the committee wish to have, but which members of the public are entitled to have.

Given the findings of the Chief Justice and the early resignations of the two former judges, Mr. Justice O'Flaherty and Mr. Justice Kelly, they should now only be entitled to the pensions for which they would have qualified had they simply quit their posts because they chose to retire at this point. It is extremely difficult to justify rewarding the actions of the two judges and the County Registrar, which is what most people would regard this Bill as effectively proposing to do.

In a statement to the Dáil on 20 April, the Minister for Justice, Equality and Law Reform outlined the pension arrangements the Government had agreed upon. Mr. Justice O'Flaherty, had he continued to serve, would have been entitled at the age of 67 years to a pension of £26,000 per annum and a gratuity of £79,000; instead, subsequent to severe criticism and the threat by the Government of impeachment, at the age of 61 years he is to get an annual pension of £40,000 and no gratuity. Mr. Justice Kelly would have been entitled at the age of 65 years to a pension of £17,000 and a gratuity of £51,000; instead, at the age of 50 years he is to get—

Mr. O'Donoghue

Those figures are wrong.

Mr. Howlin

Are the figures wrong? They are the figures the Minister gave in his speech to the Dáil on 20 April. At the age of 50 years, he is to get an annual pension of £30,000. It is quite clear that what is proposed in this legislative measure is not simply that the judges and registrar involved – would the Minister like to interject?

Mr. O'Donoghue

Deputy Howlin is correct in outlining the figures which I outlined to the House on 20 April. However, they were based on the service to date at that time. If, on the other hand, they were to proceed to their proper retirement dates, the situation would be entirely different and the figures would be far higher. The fig ures which Deputy Howlin is utilising are certainly those which I gave to the House, but they were based on the pensions they would be entitled to on the basis of their service up to that point.

Mr. Howlin

I fully understand the point.

Mr. O'Donoghue

I understand why the Deputy could be confused by it.

Mr. Howlin

The net point is that, had the gentlemen retired because they received another offer or were unwell, or for family or any other reasons – in other words, had retired in good standing – they would have been entitled to a pension a fraction of the one now being provided for them in this Bill with the same service. That is the reality. The service has not changed. Had they retired voluntarily in good standing, had done absolutely nothing wrong and had not received a shred of criticism, they would have received substantially less money in annual pension than we are proposing to grant them in this measure, subsequent on the unprecedented criticisms of the Chief Justice.

These are very generous arrangements. It is not normal for people who are resigning under a significant degree of criticism, to put it at its mildest, to have their pension entitlements substantially enhanced. Comparing the actuarial value of their pension had they served a full judicial term in good standing with their position now is not a valid comparison. It is like calculating what a Dáil Deputy would be entitled to had he served a 30-year Dáil term, even though he might have lost his seat at the last election. It makes no sense to make such a comparison. The only valid comparison is with what he would be entitled to on the basis of service. On that basis, the provisions in the Bill greatly enhance the strictly legal entitlements of the two judges and the County Registrar. That is a point I want to make forcefully.

I cannot think of any other walk of life in which two senior officials who resigned in the wake of such severe criticisms by a superior – we are talking about the author of the criticisms being the Chief Justice of the land – would receive such generous settlements. In virtually any other case, a person in these circumstances would have received no more than their basic pension entitlement.

We have no idea how the Government arrived at the figures contained in the measure before us. We are asked to believe – and I am particularly anxious that the Minister would respond to these points – that the figures were arrived at entirely on the basis of telephone calls and that there was no written documentation prepared in advance of the statement made to this House by the Minister on 20 April when he announced details of the pension arrangements for the persons concerned. That was the response which I received to a formal application made under the Freedom of Information Act and by way of follow-up parliamentary question. I have been informed by the Minister and by the officials of his Department that there was, up to the day the Minister made his statement, no written documentation and no file in the Department in relation to these matters, despite the fact that the Minister was aware that they would require legislation.

Surely there was a legislative file? The actuarial figures were worked out by somebody. There must have been formal requests going back and forth between the Departments of Justice, Equality and Law Reform and Finance. However, I was told definitively by the Minister and formally by way of response to my request under the Freedom of Information Act that no file existed. Quite simply, that defies belief. Anyone who has held Government office and is familiar with the decision-making process will find it difficult to believe that such an important and sensitive decision would be taken without any papers or documents.

The statement given by the Minister to this House on 20 April was the announcement of a formal Government decision. We are told that it was worked out and agreed on the telephone and nobody wrote down anything. I would like the Minister to address that matter because I do not believe that is in accordance with normal practice. Is he seriously asking us to believe that decisions to grant these pensions were made without any actuarial written assessment of the likely cost to the taxpayer? Is he asking us to believe that there was no written legal advice sought or obtained on the pension entitlements of the two judges before the Minister made his speech in the Dáil in April? If this is the case, and that is my understanding from the formal response I got to my request under the Freedom of Information Act, then it is an extraordinary way to do important Government business.

In deciding what pension arrangements we should make for the two retired judges and for the former County Registrar, the Oireachtas is entitled to have regard to the manner in which they responded to the requests of the Joint Committee on Justice, Equality and Women's Rights in its search for the truth. In this regard we have particular cause to be disappointed with the reaction of the former Supreme Court Justice, Mr. Hugh O'Flaherty, who, as Deputy Jim Higgins has rightly said, prior to his resignation while he was in office, volunteered to assist the committee. He wrote to the committee and indicated that he would be happy to explain his actions. We were anxious to have as informal an inquiry into the matter as possible so that we would get at the motivation. Unfortunately, subsequent to resigning office, he stated that he believes himself constitutionally barred from assisting the commit tee. It is very difficult to reconcile those two positions.

Former Justice O'Flaherty felt able, without constitutional impediment, to assist the committee as a serving member of the Supreme Court because his actions, he contended publicly, were not judicial in nature, so there was no constitutional impediment. Subsequent to resigning as a member of the Supreme Court, when one would imagine there would be less pressure on him and less constitutional impediment placed upon him, he found that he could not assist the committee. That is a cause of disappointment to the committee, because we would have been able to advance greatly in the matters to which we sought to have answers by his full co-operation.

The position of Mr. Kelly is unclear. He wanted further information about the nature of any inquiries before he would definitively agree or not to come before the committee. Mr. Quinlan, to his credit, has indicated from the beginning his willingness to assist the committee, and that should be acknowledged publicly. Mr. Quinlan sought to come before the committee. He sought to have questions in advance and to have legal representation but offered to appear in any event, even without such public notice, and that is something the committee appreciated greatly.

It is in the public interest that the committee should be able to fulfil its stated objective of determining the lessons to be learned from this affair and making appropriate recommendations as to how to avoid a repetition of what occurred. However, the task of the committee has been made immeasurably more difficult by the lack of co-operation from the key parties involved. The people who are the potential beneficiaries of this Bill are those whose testimony would be crucial to finding the motivation behind the actions carried out.

I accept there are constitutional problems with regard to any attempt to require judges to attend at Dáil committees or tribunals of inquiry to testify in regard to judicial functions. That is clearly not constitutionally permissible. However, it is arguable whether the actions taken in this case, certainly by Mr. Flaherty and Mr. Kelly, amounted to an exercise of judicial functions. There is nothing to prevent a judge or a former judge giving evidence or offering explanations in relation to matters which are not connected to judicial functions. That sensitivity was perfectly understood by the committee and we would have accepted charting a course that did not trespass on the absolute right of the Judiciary to make decisions without oversight by the Oireachtas or anybody else. That is a precious separation of powers that the Oireachtas has no right to trespass upon and no intention of so doing. At the same time, no fundamental pillar of our democracy – the Judiciary is one such pillar – can be without oversight and accountable to no one. There must be a measure of accountability for actions, particularly actions which warrant the criticisms clearly stated in the report of the Chief Justice.

At the committee I argued that a tribunal of inquiry with a limited remit should be established to investigate the facts of this matter, notwithstanding the legal difficulties involved. I did not support the notion lightly of a new judicial inquiry under the Tribunals of Evidence Act. I am aware of the difficulties which would be implicit in such an inquiry, but unless we are to abandon our attempt to get nearer the truth, it is the best vehicle available to us. When I say this I am aware of the constitutional limitations and the difficulty for any inquiry to establish motivation – it is very difficult to establish. Facts can be got at but it is extremely difficult to reveal motivation. I felt, however, that Mr. Hugh O'Flaherty was anxious to tell his story. That was the impression from the beginning. Maybe he is still anxious to do that, and we should seek a mechanism which could fully ventilate that story.

At the outset of this crisis we as politicians, arising from the level of public concern expressed about this issue, resolved collectively to get to the bottom of the story, but we have failed to do this so far. We know the circumstances in which Mr. Sheedy was released, but the question why remains unanswered. There are legal difficulties, but they are difficulties which we will have to resolve at some stage. Were we to decide not to establish a tribunal of inquiry solely because we would fear legal action or a constitutional challenge, as the events of the last year have proven, we would never establish one. Many of the tribunals established by this House have been tested in the courts subsequently.

The only issue involved is whether we think the matters under investigation are sufficiently serious to warrant a tribunal of inquiry and if the reputation of the institution tarnished by the affair warrants getting to the bottom of the matter. Reluctantly I feel the answer to both those questions is yes. There is an obligation upon us to pursue this matter as far as we can. On balance, a public tribunal of inquiry is the best avenue open to us. The committee does not possess the expertise, time or skill to pursue the matter sufficiently. I referred to the onerous workload facing the Department of Justice, Equality and Law Reform. By extension, the workload of the Joint Committee on Justice, Equality and Women's Rights is equally onerous. The exchanges between the Minister and me in the course of the past hour underscore that.

Given the response of the Chief Justice to the supplementary request of the committee, a response which is absolutely at odds with the Chief Justice's actions thus far, it is clear that no further assistance will be available from the quar ter. It strikes me as an unfortunate short-term approach by the Judiciary.

Mr. O'Kennedy

Will the Deputy read out the Chief Justice's response to the committee? It is not freely available.

Mr. Howlin

The report of the committee will be placed in the Oireachtas Library at 5 p.m.

Mr. O'Kennedy

That is after this debate.

Mr. Howlin

We sought for two days to postpone this debate until the report became available.

Mr. O'Kennedy

The correspondence is in the public domain.

Mr. Howlin

That correspondence is published but it would aid every Member if the full report and all the correspondence was available before Members spoke. That is why this side of the House worked hard to ensure it was published before this debate. Unfortunately, although the report is now concluded, the committee has not formally adopted it. It is due to do that at 4.45 p.m. and then it will be placed in the Library. The Deputy is right, Members are at a disadvantage in contributing to the debate before the full report of the committee is available. I regret that is the situation.

Regardless of the issues of this case, the more fundamental issue – I am genuine when I say this – is that every pillar of our democracy must be accountable. It is clear that if there is a suspect action or a misdemeanour by a member of the Judiciary, the only sanction available to anyone in this State is the action under the Constitution of impeachment by this House. If something untoward outside the scope of this matter happened and the judicial figure involved resigned and could not, therefore, be the subject of a formal motion of impeachment in this House, there is no mechanism to investigate that matter because there are no constitutional avenues for us to travel. That is untenable in a democracy and this House has a responsibility to address it.

In the circumstances I have outlined, I support the reasoned tenor of Deputy Jim Higgins's amendment and I hope Members will reflect upon it before we vote.

Mr. O'Kennedy

I wish to declare an interest in this matter. I have been a member of the Bar since 1961 and a member of the inner Bar since 1973. I am currently a Bencher at the Kings Inns. The Benchers of the Kings Inns have not discussed this matter in any way, but it is important that I make those declarations. Another declaration applies to all of us as Members of the Oireachtas under the Constitution. We are bound by the terms of that Constitution and are bound to do nothing which might in any way cut across the separation of powers under that Constitution or the clear provisions of it.

Having made those declarations, I want to refer to the terms of the amendment and the suggestions made by the Opposition about this Bill. The position being taken by the Opposition is in contravention of both the spirit and the letter of the Constitution in a number of respects. The Opposition has requested that the Minister make available to the House the advice of the Attorney General. In so doing it does not seem to be aware of the provisions of the Constitution in respect of the Attorney General. I will quote those provisions lest there be any doubt about his fundamental role and responsibility. Article 30 states: "There shall be an Attorney General who shall be the adviser of the Government in matters of law and legal opinion, and shall exercise and perform all such powers, functions and duties as are conferred or imposed on him by this Constitution or by law." It goes on to state: "That the Attorney General shall be appointed by the President on the nomination of the Taoiseach." Note the terms. There shall be an Attorney General – that is not a matter of discretion in that he must be there. However, when he is there, he shall be the adviser of the Government in matters of law and legal opinion. That is the fundamental role of the Attorney General. He is accountable to and obliged only to advise the Government of the day. Implicit in that is that the Government of the day is obliged to act on his advice as the constitutional law officer under the Constitution. There is no discretion or hazy position in this area.

It is as well when we address such issues in the House that we are very clear about our obligations. When the Opposition asks that the Attorney General's advice be made available to this House so it would have the information it requires before coming to a conclusion in terms of discharging its role, it is acting contrary to the provisions of the Constitution.

Mr. Howlin

Does the Deputy accept that there are at least three instances of which I can think where the advice of the Attorney General was made available?

Mr. O'Kennedy

If so, those who did that did so for their own political reasons. What the Opposition wants to do is to create a very undesirable precedent.

Mr. Higgins (Mayo)

Where is the explicit exclusion in the Constitution which prohibits the advice of the Attorney General being made available?

Mr. O'Kennedy

The separation of powers and the functions of the Oireachtas, the Executive and the Judiciary are clearly set out in the Constitution. Every first year student of constitutional law is made aware of that, and I was made aware of it by a very distinguished former Member of this House, the late Paddy McGilligan SC. That is the most fundamental bulwark on which this Constitution and the exercise of our role is based. From that follow those conclusions I have been drawing.

The Opposition wants the Minister to make available to the House the advice of the Attorney General before it will agree to support this legislation. It is doing that as a condition and is insisting that we create a precedent here – an obligation on Government.

Mr. Howlin

There is no precedent.

Mr. O'Kennedy

If it has been done, it is wrong. It was a mistake if it was done, but it would be very wrong if it was introduced as a condition here. It would be an even greater mistake if the Minister of the day responded to that precondition which would breach the role and relationship of the Attorney General and the Government and the separation of powers enshrined in the Constitution. It is important that, wherever our human interest, curiosity and concern may be, we recognise where our role begins and ends.

I am not a member of the committee as are both Members who have spoken. They want to have this matter referred to the committee as a second bite. The terms of reference state very clearly:

That a Select Committee, which shall be called the Select Committee on Justice, Equality and Women's Rights . be appointed to consider such

(i) Bills the statute law in respect of which is dealt with by the Department of Justice, Equality and Law Reform and the Department of Defence, and

(ii) Estimates for Public Services within the aegis of those Departments.

So far so good, but the next line is the important one and states: "as shall be referred to it by Dáil Éireann from time to time."

The Leas-Cheann Comhairle has been in this House perhaps more regularly than me but I am not aware that this Bill has been referred to that committee. Nonetheless, in the confusion generated by elected representatives, who do not seem to be aware of the limits and parameters of our role and function, they are insisting that this committee would be seized of the responsibility to look into this matter at this time when it has not been referred to it by the Dáil. Has the committee looked at its terms of reference? It wants more. It wants a former member of the Judiciary to come before it to get to the end of the matter or to establish the facts beyond all doubt.

I remember a similar event in respect of the beef tribunal. I was Minister for Agriculture at the time and remember all the statements made then. We wanted the full facts, the information to get to the bottom of the matter and to know everything which was required to be known once and for all. I had decided we should not have a beef tribunal and drafted my statement on that basis explaining the checks and counter checks – inadequate or unsatisfactory though they may have been – which we had in the Department, the Court of Auditors and the Commission. A short time before coming into the House, I was informed the Government would fall if we did not have a tribunal, which the Labour Party, Democratic Left and Fine Gael were demanding.

A tribunal was to be the answer to all our problems. I had a few minutes to address that position. I was faced with the fact that the Government would fall if we did not have a tribunal, and I am sure we have been criticised in a subsequent general election for not being agreeable to a tribunal. I invite Members to read the three sentences I wrote, the only changes I made to the statement I had prepared. I said that lest it be suggested that the Government was attempting to conceal irregularities in the beef industry or was complicit in any such irregularities, we have reluctantly decided to accept this motion. I said we were reluctant because tribunals have a habit of turning out very differently from what people expect of them. I also said they last a great deal longer and cost a great deal more than one would expect.

The people who called for a tribunal can face the consequences of the tribunal industry established as a result. I am even stronger in my conviction now, both as a member of the Bar and knowing the views of members of the Judiciary about tribunals. Will those who are suggesting a tribunal as a possible option learn from what we and the taxpayers have suffered as a consequence of what they demanded previously? Please dismiss the idea. I also ask the committee to look at its terms of reference.

The committee does not seem to know where its role begins and ends. The Chief Justice furnished the report but the Acting Chairman wrote to the Chief Justice asking him to revisit this area and to furnish the committee with a report. I have heard some strange requests in my time but this was a request to the Chief Justice to furnish the committee with a report, a committee which was not even seized of this matter under its terms of reference. Not surprisingly, the Chief Justice, or any Chief Justice for that matter, should write back and say he had completed all the inquiries open to him in connection with this matter and that his position was as stated in his letter. He said it was not a matter for him to advise – it surely was not – or make any suggestions to the committee as to how it should proceed in this matter. We are looking at the frustration of certain individual elected representatives who, to use the jargon so often heard in the House, could not get to the bottom of it all. They wanted to know the full facts for once and for all – how often I have heard that phrase used during my 34 years in the House. In insisting that we know the full facts for once and for all we are turning our Constitution, our role and the terms of reference of the committee on its head.

We may wish to know a little more from the human point of view, but we must recognise that we operate within constitutional constraints. In particular, the attempt to compromise the Attorney General by asking that the advice he is required to give to the Government be made available to the House is very dangerous. I hope we will never see a day when the advice of an Attorney General to Government is made available to the House. If Members want legal advice they should get it for themselves. Even those of us who are lawyers should seek advice from someone else – while I have a legal and constitutional view, I would not rely on it. There should be no breach of the Constitution, particularly in the context of the functions of the Attorney General and the Minister. If the Minister acceded to the request he would be outrageously breaching the Constitution. Fortunately, the Minister has no such intention or purpose.

I have witnessed the cut and thrust of debate in the House over the years, which is part of the business of politics. However, we may be now seeing the residue of the initial assumption that what was involved in this case was what was termed "the Cahirciveen connection". I recall the heated debate in the House. There were two people involved who happened to be from that small town in Kerry, namely, the Minister for Justice, Equality and Law Reform, and the former justice, Mr. O'Flaherty. It would be extraordinary if both gentlemen, coming from the same community and both with legal backgrounds, did not know each other personally. I assume they knew each other and that nobody would suggest there is anything wrong in that. However, it is a tribute to both men that the so-called "Cahirciveen connection" did not exist, except in the festered minds of some people in the House, and that, even though they knew each other personally and must have met socially on many occasions, including at many of the events in Kerry in respect of which Mr. O'Flaherty was a patron, at no stage did they have contact with each other. This must be said in recognition of the sense they had of their separate responsibilities. Mr. O'Flaherty did request to come before the committee—

Mrs. T. Ahearn

I wish to raise a point of order. I thought the procedure in the House was that when a person made an apology and when it was accepted by the Minister that that was the end of the matter.

Mr. Roche

Members opposite are very thin skinned.

Mrs. T. Ahearn

I understood that was the procedure in the House. It is regrettable that although a full apology was given and accepted, the matter is being dragged up again in an unfair manner.

Mr. O'Kennedy

I am conscious that an apology was made. There have been three interventions during my contribution. I accept an apology was made.

An Leas-Cheann Comhairle

If a Member has made an apology and it has been accepted by the party in question, then it should be accepted by Members.

Mr. O'Kennedy

I accept that an apology was made. Nonetheless, the genesis of this suspicious approach derives from a time when that was assumed to be the position. When it was subsequently discovered that the Minister for Justice, Equality and Law Reform was not even a moving target, it was thought necessary to maintain the political steam which had been generated, and that is what is really happening here today. The very same thing that happened before is happening now.

Debate adjourned.