I wish to share time with Deputy Jim O'Keeffe.
I want to avoid going over much of the ground that has already been covered in the report of the committee, which was debated last night, and in the extensive question and answer session and discussions which have taken place in the House on the Sheedy affair. It is good that we reflect on these events, examine what occurred, consider the difficulties the House has experienced in discovering not simply what happened – we know what happened – but why it happened and look to the future.
The events surrounding the Sheedy case, the tragic death of a young woman in a driving accident, the resignation of a judge of the Supreme Court and of a judge of the High Court and the subsequent difficulties can only lead to one very specific conclusion, namely, that there is a fundamental democratic and constitutional deficit which the House and the country must address.
Our Constitution has provisions which allow for motions by the House, in very restricted circumstances, to remove or impeach a member of the Judiciary. In this case members of the Judiciary behaved in a manner which undermined public confidence in the administration of justice. Both members duly resigned following publication of the report by the Chief Justice, but for constitutional reasons it is clear that at least one member, the former High Court and Circuit Court judge, Mr. Cyril Kelly, cannot be required to come before a committee of the House to explain why he behaved the way he did. I believe if the House passed a motion establishing a tribunal to investigate the matter we would discover the same constitutional difficulty would impact on the tribunal as impacted on the committee of the House which sought to investigate the issue.
There are certain principles in the Constitution under the doctrine of separation of powers which are extremely important and fundamental to democratic society. It is right that the Judiciary is independent of Government and that it is largely independent of Parliament, and that decisions made by the Judiciary or decisions which it is called upon to make in cases coming before it cannot be in any way varied, changed or interfered with by the House. However, it is not right that where there is apparent judicial misbehaviour there is no mechanism in place, either constitutionally or legislatively, which ensures that those who behave improperly can be required to explain the reason for their actions. A constitutional amendment is necessary if we are to address this issue. We must put in place either a judicial commission or confirm specific but restricted powers on a committee of the House which facilitates it in carrying out an investigation into why certain conduct took place where there is a prima facie case of inappropriate judicial conduct, stated to be such by the Chief Justice. It is essential, of course, in addressing this issue that nothing is done which would allow the House to interfere in any way with judicial decisions properly made.
There is a fundamental constitutional and democratic deficit which we should not ignore. From time to time in the House issues gather great momentum with exchanges taking place across the floor and the media focusing on them for a time. However, we then move to the next agenda and the spotlight focuses on a different issue. This issue is too fundamental and important and should not be lost in the individualisation of what occurred – we must approach it from a broader perspective. As a very minimum the Government or the Attorney General must for mally request the committee of the House which is reviewing the Constitution to consider how we address this lacuna in our constitutional system so as to ensure that if there is a repetition of the events, or if in future there is a view that a member of the Judiciary has behaved in an inappropriate manner in the context of interfering with the administration of justice, that it could be properly investigated. It is necessary that not only what happened be clarified but that those who behaved inappropriately be required to explain the reasons behind their behaviour.
In her speech yesterday, the Minister of State said something which is true but unacceptable, namely, that we may never know why these events occurred. In a democratic society where people are accountable for their actions and where the Judiciary is vested with very sacred constitutional obligations, it is not good enough that we will never know why. It is not good enough for the Government to sit back, throw its hands in the air and say we can take this matter no further. The truth of the case may be that we will never know why certain things happened, but we should never again be put in a position where we cannot know the reason behind events of this nature.
As a practising lawyer, I felt a profound sense of sadness about what occurred. Mr. O'Flaherty graced the Bench of the Supreme Court for many years and made a very valuable contribution to our jurisprudence. I find the behaviour of Mr. Cyril Kelly, who was a member of the Circuit Court and the High Court and who in his work sought greater efficiency in the administration of criminal justice, as a sitting judge on the Bench completely inexplicable. I feel a great deal of sorrow for Michael Quinlan who was an excellent registrar of the Circuit Court, administering the Circuit Court in Dublin. Most Members would not be familiar with him or his work. He substantially reformed the administration of justice by the Circuit Court and sadly he is receiving and will receive no credit for doing so. To some degree he was caught in a judicial vice and it is a great shame he is not being given the opportunity to tell the committee what he said he is willing to tell it. He should be given the opportunity of coming before the committee. That the two former judges will not come before the committee should not exclude Mr. Quinlan from telling his tale and explaining his actions. I think he found himself somewhere between a rock and a hard place whereby he believed a judge of the Supreme Court was seeking certain things to happen. Certainly, Mr. Quinlan made wrong judgments – there is no doubt about this – but he should not be censored because others are unwilling to come before the committee. As we know, Mr. Hugh O'Flaherty previously volunteered to come before the committee. In the context of the constitutional issue, the former Supreme Court judge, Mr. O'Flaherty, should have had no such difficulty because his behaviour did not relate to anything he did in a judicial capacity. I understand the former High Court judge, Mr. Kelly, finds himself in a different constitutional position, but Mr. Quinlan should be given the opportunity to be heard.
There is an extraordinary contrast between the Government's generosity to these two former judges and the speed with which the Government has introduced this legislation when compared to its miserly approach to the disabled. Individuals who undermine public confidence in the administration of justice have not been forced to protest outside this House seeking their pensions. I am not suggesting they should have been put in that position but, just as they should not have been put in that position, why should they get a priority for funding over people confined to wheelchairs who have been forced for two days to protest outside this House to get a miserly sum to facilitate the continuation of a transport system which has worked so well? I do not understand the reason for that. It reflects extraordinarily badly on the Government.
This legislation is being introduced in haste. It could have been introduced in the autumn. There is a second question, the answer to which I do not understand. Many weeks ago the Minister for Justice, Equality and Law Reform received a report which recommended that the pool of lawyers from whom we can make judicial appointments should be extended. The report recommended that when it comes to making High Court and Supreme Court judicial appointments those eligible for appointment should not be confined to practising barristers of ten or 12 years standing but should extend to solicitors who regularly practise before our superior courts. A two section Bill is required to introduce that amendment to the law but it has not been introduced. I estimate there will be eight new appointments to the Supreme Court and High Court in the next 12 months. The Government should ensure that that legislation comes before this House without further undue delay so that we widen the pool of lawyers from whom we can select these new judges. They should not be confined to members of the Bar library. My suspicion is that the Attorney General's office, which is inhabited solely by members of the Bar library, has a vested interest in delaying the production of that legislation.