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Dáil Éireann díospóireacht -
Wednesday, 30 Jun 1999

Vol. 507 No. 3

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

SECTION 1.
Question proposed: "That section 1 stand part of the Bill."

(Mayo): We oppose this section. This is the section of substance. It effectively approves an index linked pension of £40,000 for the former Supreme Court judge, Hugh O'Flaherty, £30,000 for the former High Court judge, Cyril Kelly, and £15,000 for the former County Registrar, Michael Quinlan. Fine Gael does not have any objection in principle to the payment of these pensions. These judges served for varying lengths of time in the courts over which they presided. Mr. Hugh O'Flaherty had an illustrious career in the Supreme Court going back to 1991. Mr. Cyril Kelly had an illustrious career in the Circuit Court and, latterly, in the High Court. While all three gentleman resigned and saved the Oireachtas considerable trauma in terms of not having to bring forward impeachment proceedings, too many questions have been left unanswered.

The former Supreme Court judge, Hugh O'Flaherty, initially wrote to the committee, which was presided over at the time by Deputy Monica Barnes, offering to appear before it to make a full statement and answer all questions. At that time, Mr. O'Flaherty was a serving judge in the Supreme Court. The committee acceded to his request and wrote to him. In the interim he resigned and he is now claiming that he cannot come before the committee because this would trespass on judicial function. I made the point that there was no exercise of judicial function. He simply had a chance meeting in Herbert Park with family friends and was asked to intervene in the listing of the case. He intervened and for that he stands indicted. In the words of the Chief Justice, he "compromised the administration of justice". There was not a judicial function involved.

We have made the point repeatedly that it is illogical for Mr. O'Flaherty to claim while he was a Supreme Court judge that he was willing and able to come before a committee, answer all questions and make a statement, yet, having resigned, he finds it is not constitutionally permissible for him to do so. He was not exercising a judicial function; one might say he was exercising the dog. He was taking a walk when he happened to meet somebody who asked him to intervene. There is an obligation on Mr. O'Flaherty to come before the committee and answer the unexplored aspects of the case.

Mr. Kelly is in a different category. We do not expect him to explain anything that transpired within the precincts of the courtroom but there is no constitutional impediment on Mr. Kelly answering questions in relation to the lead-up to the case, the approaches that may have been made to him, the manner in which he believes he has been or could have been compromised by virtue of contacts made in relation to the manner in which he might have handled this case. We also need a clear explanation as to the contradiction implicit in the version of events of Mr. Kelly as against the version of Mr. Justice Joseph Matthews.

There are too many unanswered questions and until such time as these questions are explored and fully determined, this House should not vote on the proposal to give the three gentlemen in question pensions for the rest of their lives.

We have paid tribute to Mr. Michael Quinlan for his willingness to come forward and explain his role. He has written to the committee on two occasions. On the first occasion he set down a set of circumstances he would like to see brought about to enable him come before the committee. On the occasion of the second letter, he said he was prepared to come before the committee without any preconditions. The same level of co-operation that has been forthcoming from Mr. Quinlan should be forthcoming from the two judges before we accede to the Government's request to vote this legislation through the House to give them their pensions.

I support Deputy Higgins in this. The Opposition is extremely dissatisfied with the lack of response from the Government side on the report laid before the House yesterday from the Joint Committee on Justice, Equality and Women's Rights. That report suggested alternative ways forward in terms of either the committee examining the issue or establishing a tribunal of inquiry. The response from the Government was a nice biblical quotation about seeing through a glass darkly but that did not throw any further light on the Sheedy case.

As Deputy Higgins said, there are many unanswered questions in relation to both Mr. O'Flaherty and Mr. Kelly. My colleague, Deputy Howlin, indicated on Second Stage that he had made a request under the Freedom of Information Act in relation to how the figures for the judges' pensions were arrived at and for the documentation in the Department. There were no details of the arrangements for both judges. In the case of Mr. O'Flaherty, at the age of 67 he would have been entitled to a pension of £26,000 per annum and a gratuity of £79,000. Instead, at age 61, he is getting a pension of £40,000 per year. Mr. Kelly would have been entitled to a pension of £17,000 per annum at 65 and a gratuity of £51,000. Instead, he will receive an annual pension of £30,000 at 51. The former registrar would have been entitled to a pension of £11,500 at 65 and a gratuity of £34,7000. He will receive an annual pension of £15,000 at 45.

These are generous arrangements and seem to have been worked out in detail in the Department, but there seems to have been no information on paper regarding them. We are now being asked to pass this Bill, which would rubber stamp what was agreed. I do not know how this was agreed, as there are no documents recording that. Why are there no documents to show how this was worked out in such detail?

We are being asked to pass this Bill with no satisfactory answers about this case. We need to be told how this case could have been be relisted and how subsequent events occurred, given that it all started with a chance meeting with a judge walking his dog. There have been no satisfactory answers to that question and many others have been left hanging. This case reflects upon the administration of justice, given that those who do not meet judges when out walking may not have the same chances as those who do. I am not necessarily suggesting that is the conclusion one should draw from this case, but until such time as more light is thrown on this matter, that suggestion is in the air. It is essential, in moving forward, to get clarification on what the constitutional reference to the exercise of judicial functions means. We also need clarification on how answerable judges are to the law when not exercising their judicial functions. It is unsatisfactory that we are being asked to nod through this Bill, given the derisory response on behalf of the Minister for Justice, Equality and Law Reform last night.

This section will allow the Government to pay pensions to the three people concerned. Nobody would deny a person a pension if he or she had worked for it and if incapacity forced him or her to leave a job, as provided for in the 1961 Act. However, these three people are not leaving their jobs due to reasons of incapacity as we understand it, such as ill health. The Minister said last night it is time for us to accept this reality and to move on from this episode, as if it were an episode of "The Riordans". This was not just an episode. It goes to the operation of our justice system in a fundamental way.

In his report, the Chief Justice said Mr. O'Flah erty's intervention in relisting the case was in the spirit of humanitarian interest. If so, why was Mr. O'Flaherty so unwilling to come to an Oireachtas committee and explain his humanitarian motives and why he felt he had to help someone for those reasons? If the Chief Justice felt Mr. O'Flaherty did what he did for humanitarian reasons, I cannot understand why he will not come to the committee. Mr. O'Flaherty clearly understood what the Chief Justice meant and was willing to come before the committee before he resigned. As Deputy Higgins said, he was not willing to do so afterwards. That defies logic and clarity. Why was Mr. O'Flaherty willing to explain his humanitarian motives when a judge and yet, when no longer a judge, he said his lips were sealed and that the Constitution forbade him from attending the committee? If ever there was a contradiction, this is one. If he claims the Constitution stopped him, it would have been a much more relevant argument when he was still a judge than when he resigned.

Mr. Kelly had a good reputation as a judge in the Circuit Court and in his short time in the High Court. I am disappointed he felt he could not explain his motives to the committee. If his motives were good and if, as he tried to explain in his correspondence with the Chief Justice, there was nothing wrong with his handling of the case, what was he afraid of? What was he afraid of from Deputies O'Sullivan, Barnes and Jim Higgins as well as the other committee members? What did he have to hide? We are getting no explanation and must sail into the sunset with the Biblical quotation "For now we see through a glass, darkly" in mind.

We will never know what happened and fundamental damage has been done to the system of justice. If an ordinary people are not happy with what happens in court, they will say they did not speak to the right person. They will say they did not have the right dog to take for a walk or meet a judge in the right park, which is unacceptable. I am not saying people have a basis for saying this, but they will say so, and we have heard it already. My post has increased greatly since the Sheedy case, with letters from people who believe that not everything was done in cases that concerned them and colleagues have told me the same has happened to them. I do not understand why these judges were so reluctant to appear before the committee. It is a pity, given the service they gave to the State, that they have allowed this dark cloud to remain over the justice system by not coming clean.

I am critical of the Government because we heard the Taoiseach, the Tánaiste and the Minister for Justice, Equality and Law Reform say they wanted to give time to those concerned to give explanations. Suddenly, however, it is time for us to accept this reality and to move on from this episode, in the words of the Minister. Why the change of face? Why did the Tánaiste say on the Order of Business that she would demand answers when there is not a sign of a Progressive Democrat for this debate? There is no sign of an objection to this happening without our knowledge. That is why the Opposition is so angry with the Government.

When this was announced on 20 April, the Government had agreed to the pensions but there was no mention of the fact that the law had to be changed. I had already consulted the 1961 Act and could find no reference to a mechanism whereby people leaving their jobs for reasons other than incapacity could be given pensions before reaching pension age. The Minister of State slipped a line into her speech that night when she said the Minister had outlined the severance terms to which the Government was and is prepared to agree. The sentence continued, ".and which would be brought before the House in due course for approval." It took the Opposition to ferret out the fact that this needed new legislation and the Government had to come to the House afterwards with its hands up and say "Goodness me, we forgot to tell you we need legislation." The Government assumed the House would rubber stamp this legislation before the committee or before the ink was dry on the Chief Justice's report. It was trying to pull a fast one, which is the only way I can describe it, and that has added to the sense of disquiet generated by this case.

Deputy Power referred to how awful the Opposition was for criticising the judges, given the pain their families have suffered. I understand the pain the three families have suffered and it was difficult for them to live through what they did. However, none of this would have happened if a young mother had not been struck down and killed by a car taking off and landing on the roof of the car she was in, injuring her children and leaving her husband bereft of his wife and his children bereft of their mother. That is what we should remember.

We feel some sympathy for the families of the judges because the cases gained a great deal of publicity, but they must accept the consequences of their actions, just as politicians do. A woman is dead and a young man who took too much drink and caused the accident received an appropriate punishment. Following legal advice he succeeded in having the sentence reviewed and his term of imprisonment shortened. He then tried to give the impression that his legal advisers had acted without his knowledge in seeking a review of his sentence. I do not believe a solicitor could take such an action without informing his client. The young man subsequently went back into court and, in 90 seconds, had his sentence suspended. The woman is still dead. The man is still without his wife and their children will grow up without the help and support of their mother.

We are now subjected to the Government telling us to face reality and to move on from this episode. It will not be time to move on until the Government does its job and finds out from the judges why they did what they did.

I have some sympathy for the county registrar, Mr. Quinlan, who misguidedly tried to protect a Supreme Court Judge. The power of a Supreme Court Judge is illustrated in the way the county registrar did not tell all the facts to the Minister for Justice, Equality and Law Reform on three separate occasions and left the Minister within a hair's-breadth of giving wrong information to the House. As a former Minister for Justice, I know how appalling it is to come into the House wrongly briefed or not fully briefed. Nevertheless, on a human level, I can understand Mr. Quinlan's actions. He was trying to protect a Supreme Court Judge, who now owes Mr. Quinlan an apology for placing him in the position of feeling obliged to remain silent and not say who had asked him to relist the case. Why did Mr. Justice O'Flaherty find it impossible to come to the Select Committee on Justice, Equality and Women's Rights after he had resigned when it had been so easy before. Perhaps he thought that by doing so he could have saved his job. For the sake of his reputation and of his family, who must have suffered greatly, he ought to have appeared before the committee. Was he casually walking in the park? Did someone suggest that he walk in the park at that time? These questions have not been answered and many rumours and innuendoes have been repeated.

It is not sufficient for the Minister of State, Deputy Wallace, to quote St. Paul. We need a Pauline conversion. The Government must realise that it has promised the House that information and an explanation would be forthcoming. There is a danger that this can happen again.

I realise that the pensions will be the only ones of their kind. They have been granted, not because of sickness of incapacity, but because of actions which were inappropriate and, in one case, bad for the course of justice. Is the Minister concerned that in granting these pensions for very specific reasons we have created a precedent? We will find it very difficult to refuse similar pension arrangements to judges or senior civil servants who wish to return to private practice or retire early. An assistant secretary who has not actually been found guilty of misdeeds may choose to save himself and his family embarrassment by retiring. How can he or she be refused a similar pension arrangement? If a higher civil servant is obliged to retire because of incapacity, six and two thirds years are added to his or her pension payments. A civil servant who is only 45 would not qualify for a pension. This Bill has created a precedent and I do not believe the Govenment has sufficiently examined its implications.

I know of no other instance when three people who were found by the Chief Justice and the Minister to have acted inappropriately had a Bill passed to accommodate their specific needs. We remember the controversy which surrounded the passage of legislation to accommodate the Goodman difficulties in the summer of 1993. We are now discussing pension legislation for three people who have not been able to explain what they did, why they did it and what were their motives. Their motives may have been benign but we do not know, because they will not tell us.

Deputy O'Kennedy, who is a barrister, must hear what is being said in the Law Library. This case has left a cloud over the legal system. The Director of Public Prosecutions has had to repeat his direction to people acting for the State not to enter into behind-the-scenes discussions or deals. Justice must be seen to be done.

I wish the Minister had not rushed this legislation through the Oireachtas before the Committee's recommendations had been examined.

It is incredible that the deputy leader of Fine Gael has such a fundamental misunderstanding of the principle of the separation of powers.

The judge clearly did not understand the separation of powers when he offered to appear before the committee.

I will tell Deputy Owen a few home truths. Mr. O'Flaherty provided a full explanation of his involvement in this case to the Chief Justice. Deputy Jim Higgins, whom I commend for the measured way he has dealt with this issue, described the report of the Chief Justice as clear, unequivocal and decisive. In a response to another member of Deputy Owen's party the Chief Justice said, "In my letter dated the 25th ultimo to the secretary of your Committee, I stated that I was unable to accede to the Committee's request to make further inquiries into the circumstances surrounding Philip Sheedy's release from prison." Either Deputy Owen misunderstands the fundamental division between the powers of the judiciary and the Oireachtas—

I do not misunderstand.

—or she is playing a serious game of stroke pulling.

It is quite distasteful that Deputy Owen and one or two other Deputies have attempted to drag the tragic death of Ann Ryan into this debate. I find that quite upsetting. The legal advice received by the joint committee of the Oireachtas – this also concerns a misunderstanding between judicial and non-judicial functions – appears to suggest it has the authority and power to question a judge in connection with non-judicial functions. I also understand from the report of the committee that it considers an amendment to that legislation could provide that judges and former judges could not be compelled to give evidence in relation to the exercise of their judicial functions.

We all understand that.

The committee rightly pointed to the serious difficulties which may follow from such a course of action. Judicial and non-judicial functions cannot be easily categorised, particularly in the context of handling a court case. If the amendment was included in the compatibility legislation, further questions would have to be resolved, such as who would decide in any particular circumstance what constitutes a judicial or non-judicial function. Would the committee or a Minister certify that the actions fall within the judicial category?

Would taking one's dog for a walk fall into that category?

Would it ultimately be a matter for resolution by the court where there is a difference of opinion regarding classification? Does the Oireachtas committee or a Minister have the authority to adjudicate on issues such as whether a particular matter relates to judicial functions?

The fundamental point is that the independence of judges does not simply mean they cannot be required to answer questions. It also affects the position whereby the payment of their pensions may be made dependent on their doing so. A judge's independence is not something a judge or the Oireachtas can waive.

I wish to put a simple, straightforward question to Deputy Owen regarding one of the points she made. She sat around the Cabinet table when the Cabinet decided to make a package available to a former member of the Office of the Attorney General, then the senior legal assistant. The package was agreed by the Government in the wake of the Brendan Smyth case. At the time Deputy Bruton defended the Government's decision on the basis that the person involved had acted in error and had provided good service to the State during his career in the public service.

We knew what he had done. In this case we know what was done but we do not know why.

The comparisons with this case speak for themselves.

It is not the same thing.

Deputy Bruton put on record the Government's view as follows: "court challenges were very likely and such legal challenges could have absorbed a great deal of valuable time and money for the State and their result would be unnoble". I emphasise the word "unnoble". I put it to the House that in the matter before us, particularly in respect of the unprecedented nature of the events – this is where Deputy Owen above everybody else is getting her figures mixed up – surrounding this legislation and the uncharted path of impeachment, the comparisons between both cases are very clear.

(Mayo): There is invariably an attempt to hold up the Constitution as a prohibition, cloak and deterrent in relation to anything we might do. Despite what the Minister said we are not anxious to play foot loose and fancy free with the Constitution. However, there is a lack of clarity in the matter. We do not know whether a challenge to the constitutionality of any role of any inquiry, be it a committee of the House or a tribunal of inquiry, would be successful. This is why we should not shirk from taking action. The matter should be fully tested in all its angles and aspects before the High Court, the Supreme Court and the European Court if necessary so that if an unfortunate event such as this involving a major judicial controversy arises in future we will have certainty in relation to how we should handle it. We should not shirk our responsibility in this regard. We should meet the challenge head on rather than always saying there might be a constitutional challenge. A constitutional challenge can be mounted to anything. When tribunals are set up, people are in and out of the High Court and it and-or the Supreme Court makes a determination. This provides clarity and allows tribunals to proceed. In relation to this issue we have an unprecedented situation where one judge compromised the administration of justice and another damaged the administration of justice and did not conduct the matter in a manner befitting a judge.

I am amused by the allegations from the other side of the House in relation to the role, in the words of Deputy Matt Brennan, of the media and the Opposition, that we hounded these two honourable gentlemen out of office. In both cases the Chief Justice said they had compromised and damaged the administration of justice. The Chief Justice said Mr. Kelly did not conduct the matter in a manner befitting a court case. These were not the comments of the Opposition but of the Chief Justice, a peer of the judges who carried out a calculated evaluation of the role of both gentlemen. He decided that both had damaged and compromised the administration of justice and that their positions, therefore, were untenable. The Government, not the Opposition, gave effect to this conclusion in the context of Article 35.4.1º of the Constitution. Following a Cabinet meeting the Government decided to write to both people and tell them in the clearest possible terms that unless they resigned the Government would have no option but to bring impeachment proceedings under Article 35.4.1º of the Constitution. Therefore, the Opposition and the media had no role in relation to the course of action which transpired and to try to blame the Opposition and the media for highlighting and raising the matter in the Dáil in order to ensure the Government did what had to be done is not fair and does not stand up.

We are not in a vengeance mood or part of a vendetta. We accept that there have been heads on plates, as somebody said today in a rather ungracious way. We are talking about establishing the truth and to say the matter has been concluded because both gentlemen fell on their swords is not sufficient. We need to know the roles of the other players, whether they were main players or bit actors. We need to know, for example, what Mr. Ken Anderson has to say. Allegedly, he is the person who approached Mr. O'Flaherty in Herbert Park. He was in the company of Mr. Sheedy's sister. We want to know what she had to say and what role she played. We want to know the role of Mr. Sheedy senior. One can understand the anxiety of a father whose son is facing a protracted spell in prison and that he will do everything he can to ensure his son is released at the earliest possible date. He played a central role in making contacts and we need to know what contacts he made, who he contacted and what level of contact there was to ensure this high level of preference was accorded to his son.

In relation to the Office of the Chief State Solicitor we need to know who phoned Ms Eileen Creedon when the case was mysteriously promoted from No. 19 up the list resulting in her absence from the court room. We want to verify whether this call was a decoy or some unhappy coincidence. We need to know the roles of the other officials involved, including those from the office of the Circuit Criminal Court and County Registrar, all of whom are named in the report of the Chief Justice.

The legislation does not preclude any of those inquiries.

(Mayo): Finally, we need to know the role of the different political people involved. For example, we need to know the role of the Taoiseach, Deputy Brian Lenihan, former Deputy Jim Tunney and Senator Don Lydon who submitted the two psychologists' reports. We must establish whether this was a bizarre set of unrelated coincidences which led to the maladministration of justice or whether somebody orchestrated the entire sad saga.

At the outset of the debate on Second Stage of the Bill which deals with a matter of principle, I felt compelled to declare an interest. The interest I declared was that I have been a member of the Bar since 1961, a member of the inner Bar since 1973 and a member of the Benches of the Kings Inns, which is the governing professional body for all practising barristers in respect of which judges are members as judicial benchers along with Bar benchers like me. I felt compelled to do that lest there be any implication that I was concealing from the House any interest I might have as a consequence of my interest in that area.

As we deal with this aspect of it, I also feel compelled to make another declaration, that is that I have known each of the three persons concerned in different ways and to a different extent for some considerable time. I have known former Supreme Court judge, Mr. O'Flatherty, since I was called to the Bar in 1961. He was just one year ahead of me. Anyone who had the privilege of knowing him, either as a member of the Bar or as a distinguished member of the Supreme Court, would have known that he was highly respected and regarded both for his humanity, his interest in individuals and, above all else, his interest in introducing young members of the Bar to the principles and administration of justice. I recall many of those who now sit on the High Court gathering around Mr. O'Flaherty's bench in the Law Library. On one occasion I recall mentioning to him that I found it impossible to consult him – he reminded me of Plato in the groves of the Academy with all the disciples gathered round trying to learn the principles of law from him. That is the man who is at issue in one of these cases, a man who has been highly respected not just nationally but internationally also as any inquiry of highly qualified significant members of the US Bar, the Australian Bar and many others would show. I am sure the former Minister for Justice, Deputy Owen, is aware of this. Mr. O'Flaherty has always been recognised as a constitutional lawyer of the greatest eminence and balance.

That is why it is such a mystery. Why did he do this?

It may be a mystery. Mysteries, by their very definition, sometimes remain unexplained.

Mr. O'Flatherty had the privilege and opportunity of practising before what was regarded as the most eminent Supreme Court the State ever had, that is, the court presided over by the late Chief Justice, Cearbhall Ó Dálaigh, the late Mr. Justice Brian Walsh, Mr. Justice Henchy, Mr. Justice Griffin, – I forget who else was involved – as well as the former Chief Justice, Mr. Justice Tom O'Higgins. It was not doubted that his qualification in the constitutional and jurisprudential area was almost unique. That is what commended him to the Government when his appointment came up for consideration.

For what it is worth, if this has any impact on the views of Members of this House, his acceptance of the great honour of being elevated as a relatively young man to the highest judicial office in the land outside that of the Chief Justice, also meant accepting quite a reduction in his income as an eminent practising senior counsel. Anyone who has any experience of the Law Library will know that to be a fact.

Some of those who sit in the High Court had access to Mr. O'Flaherty from time to time to consult his views. He did not set himself up as the arbiter and only judge of all things but he has always been highly regarded wherever he served.

Having taken a considerable reduction in income to serve – and nobody in this House will suggest that a Supreme Court judge's income is not adequate – much of what he would otherwise have earned, had his illustrious career as a member of the Supreme Court continued, will not be available to him now. The Minister stated this clearly. For reasons which I am not contesting although there could be other arguments, the lump sum provision and other things which would have arisen for him will not now arise. That is a simple fact.

Having said that, I look to see the basis of the argument. I have dealt with Mr. O'Flaherty but perhaps I should deal with the other two judges at this point. I did not know former High Court judge Mr. Cyril Kelly at the Bar. I certainly did not know him as a colleague at the Bar and when I returned to the bar he had been appointed to the Circuit Court. Incidentally, I remember that when he was appointed to the High Court I attended the usual reception. I could not but know, with some degree of gratification, that more than half of those who were present for that celebratory event were prominent lawyers who were well known members of the party opposite who obviously had a special regard for Mr. Kelly.

It has to be said so that we will know exactly the people with whom we are dealing. Not having known him, I resumed practise at the Bar some four or five years ago. When one returns to a profession having been away as long as I was away, one cannot just pick and choose work but must do whatever one can to get reintegrated into the range of the practice and procedure. I found myself more than once before Mr. Kelly in the Circuit Court. Given the nature of and the huge proliferation of cases continuing like an unstemmed tide in his court, it would not have been possible for any judge in this or any other jurisdiction to deal with them all. Unfortunately, the level of crime in this city was such that one would never get to the end of it. Mr. Kelly was known and appreciated by all. I practised before him on two or three occasions and he always did his work very properly and competently. He would consult when he was unaware whether on an arraignment the accused would plead guilty or not guilty and the consultations were always conducted properly. The representatives of the DPP, the defending counsel and the stenographer would meet in Chambers because some of these things can be done more expeditiously in that way and records of all conversations were kept properly. In the light of that consultation, Mr. Kelly would be able to reach a conclusion on what might be his position in the event of a plea. That was the manner in which he expedited the course of justice and, as one who did not know him and who had no part in his appointment, I found him as a judge to be entirely efficient, human and extremely effective.

There is another person concerned in this issue. I did not really know him but I knew, as anybody practising in the Four Courts would have known, that Mr. Michael Quinlan was highly regarded and ordered in everything he did. There were occasions from time to time when one or other of us wished to know when a case would be taken. Inquiring about something like that is standard procedure and does not pervert the course of justice. He was known to be one of the most efficient and courteous members of the administration. I presume Deputy Owen would confirm that from her knowledge of him.

We are dealing with three people who, in different ways, have lost considerably, both in terms of their personal standing and financial position and in other ways. The Chief Justice found that they compromised the administration of justice and we do not need to go back over that.

That is a serious matter.

I am not saying it is not a serious matter.

The Deputy is making it sound as if it is not serious.

No. The Deputy should wait a moment. I did not interrupt the Deputy. I am not saying it is not a serious matter and that it was not damaging to the interests of justice. Those are very serious matters. The Chief Justice reached a conclusion in his report. I formally invite Deputy Higgins to withdraw the remarks he put on record in the House last night. The terms of the Chief Justice's report were very clear. Deputy Owen asked what was being said in the Law Library. I can tell her what is being said in legal circles about the Chief Justice being dragged into this matter. I will quote extracts from the Deputies' statements in the course of my contribution.

Deputy Barnes understandably stated in the course of her report that ".all options were fraught with constitutional or legislative difficulties .". Had she examined the committee's terms of reference, that would have been very clear. The committee was taking on, and demanding, a role to which it had no right. There was not anything in the committee's terms of reference which entitled it to make the demands it made.

Members of the Deputy's party were also committee members.

Deputy Barnes should learn to contain herself; the Fianna Fáil Party practices that discipline. Having stated that all options were fraught with constitutional and legislative difficulties, Deputy Barnes proceeded to say that ".with that in mind, the committee decided to write to the Chief Justice.". I do not find her remarks as offensive as others that were made. The committee decided to write to the Chief Justice and request him to make further inquiries into the circumstances surrounding the Sheedy case. On the one hand, the committee pointed to constitutional and legislative difficulties and, on the other, breached the very principles which form the fundamental bedrock of the Constitution, namely, that of the separation of powers. The Chief Justice's report is on record. If Deputy Higgins does not withdraw his remarks, the Ceann Comhairle should ask him to do so. He stated that ".in essence, the Chief Justice said that justice was perverted in the Sheedy case and that the two judges involved played key roles in the perverting of justice.".

(Mayo): I reiterate the comment.

The Deputy's statement is outrageous. The Chief Justice did not say any such thing.

(Mayo): Does the Deputy understand English?

The administration of justice was compromised.

Deputy Higgins stated that the Chief Justice said that justice was perverted in the Sheedy case and that the two judges involved played key roles in the perverting of justice. The Chief Justice did not say any such thing. It is disgraceful that the Deputy should put those words into the mouth of the Chief Justice and then refuse to withdraw them.

(Mayo): What does it mean to compromise the administration of justice?

If the Deputy does not know the difference between "compromising" and "perverting" the course of justice, nothing I say will change that.

For a trained lawyer, Deputy O'Kennedy is not very good at analysing these matters.

Deputy Higgins then proceeded to really undermine the Judiciary by saying, ".am I not right, Sir, in asserting that to pervert the course of justice is a criminal offence?". Not only did he dream up the term "perverting", he also dreamt up an offence.

(Mayo): Is it an offence?

If the Deputy is able to dream up quotations the Chief Justice never made from his fertile imagination, he could obviously easily dream up offences which are not known in our law in any event. Having asserted that to pervert the course of justice was a criminal offence, Deputy Higgins went on to say ".in such circumstances, where there is clear evidence of a criminal offence.". What is happening to contributions in this House when Members can proceed from introducing terms which the Chief Justice never used to establishing an offence which was never mentioned? In my view, it would be nothing short of treason if someone perverted the course of justice while serving on the Bench. However, nobody perverted the course of justice and nobody found it to have been perverted.

Why did the Minister for Justice, Equality and Law Reform ask the Garda to investigate the matter or why did the Government threaten impeachment if nothing was wrong?

When Deputy Owen was making her contribution, I applied the discipline which each Member of the House should apply. She should do the same now.

Deputies should address the Chair and refrain from making disorderly comments.

Deputy Higgins stated that:

.in such circumstances, where there is clear evidence of a criminal offence – there will not be a clearer presentation of the evidence and the facts than that set out in the Chief Justice's report – the gardaí should be asked to investigate the matter and files prepared.

They were asked to do so.

They were, but not because the Chief Justice said the judges had perverted the course of justice and not because, as Deputy Higgins asserted, they committed a criminal offence as a result. I insist that, as a matter of proper practice and procedure, the Member of this House who distorted the terms of the Chief Justice's report and went on to assert, as a result of his lack of knowledge of criminal practices, that a criminal offence was committed, should withdraw his remarks. When the matter was referred to the Garda, it decided there was no basis for it.

I have a high personal regard for Deputy Higgins. I put it to him that if he will not be sufficiently honourable to withdraw his remarks, he will have reason to regret his attribution of words to the Chief Justice of this land which he never used and his subsequent conclusion that the two judges were guilty of criminal offences and should be prosecuted. Can we not engage in a debate on the facts, however impatient we might feel about not getting to the bottom of things?

Lest it seem that Deputy Higgins had only one flight of madness—

(Mayo): The Deputy will make me famous.

—I quote a further comment in which he stated: "Mr. O'Flaherty must be rendered accountable for the very serious charge of which he stands indicted by the Chief Justice". Is the Deputy aware of the meaning of the term 'indicted'? An indictment is a very formal and serious charge for a criminal offence. Indictments are presented by the DPP. Deputy Higgins stated that Mr. O'Flaherty must be rendered accountable – as every citizen who breaks the law should be – for the very serious charge of which he stands indicted by the Chief Justice. It would be very wrong for the State to fail to act if an ordinary citizen deliberately perverted the course of justice. The Deputy must know that the term "perverting", which he introduced, has very serious implications.

The Deputy should not take the term out of its context.

As if the Chief Justice had not been sufficiently drawn into matters with words being put into his mouth, Deputy Higgins stated:

Similar to other members of the joint committee, I am deeply disappointed that the Chief Justice has declined to resume his inquiry into the Sheedy affair. He claimed that it would be "constitutionally impermissible" and "improper and inappropriate" for him to make any further inquiries into this matter at the request of the committee.

With due respect, the Chief Justice was absolutely correct. He does not need my opinion to vindicate his decision. Anyone with the vaguest notion about judicial function would know that it would not be the role of the Chief Justice or anyone else to co-operate with the committee.

Deputy Higgins went on to say:

The request was motivated in the first instance by an acknowledgement of satisfaction with his original report and, second, with a view to allowing the Judiciary and the bar to deal independently with the issue themselves rather than having judges subjected to scrutiny by an outside or extra-judicial body.

The Bar will deal with the matter as it always takes responsibility for such issues. I was under the impression that the committee intended to get an external body to look into the matter. I understood that a suggestion was made to get a judge from another jurisdiction to consider it.

In a very critical reference to the Chief Justice, Deputy Higgins proceeded to state that ".not alone did the Chief Justice decline this option but his curt response to the series of valid questions put to him by the committee was unhelpful and discourteous". Have we lost the run of ourselves? The joint committee had no proper role or function in the matter which was not referred to it by the Dáil for consideration under its terms of reference. How then could it conclude its questions were valid?

Did the Deputy read them?

Having given the Chief Justice a lecture on constitutional law, His Lordship, Mr. Justice Higgins went on to say:

If he wanted to plead constitutional grounds, he should have done so in advance of writing his report at the Government's request. Having carried out his investigation into the conduct of the two judges while they held office and published his report on 14 April it is illogical and contradictory for him to try and argue that it is constitutionally impermissible for him to inquire further into the matter when both individuals are no longer judges.

I would like time to reply to some of the allegations which have been made. This is a filibuster.

It is not.

The Deputy is rereading Deputy Higgins's speech.

Deputy O'Higgins went on to say:

If he wished to plead constitutional grounds he should have done so immediately on being requested by the Government to investigate the affair. If there was no constitutional impediment in the way of his first investigation [this is the finding of fact from on high, the Mount of Olympus, the source of all knowledge] then there is no constitutional difficulty now.

It is better than St. Paul's Epistle to the Corinthians.

(Mayo): QED.

Deputy O'Higgins went on to say:

Having unsuccessfully sought to have the matter investigated by the joint committee where the key persons involved, prompted by the spirit of Mr. O'Flaherty's first letter, would have voluntarily appeared before it, the committee has furthermore been frustrated by the unco-operative attitude of the Chief Justice.

(Mayo): Curt and discourteous.

Who has damaged the administration of justice? How stands the fundamental principle – the bedrock of the Constitution – that Parliament, the Government and the Judiciary, under Article 35, act independently of each other in discharging their legislative, executive and judicial functions? I am about to conclude.

From Deputy Higgins's point of view.

(Mayo): I have never heard such drivel.

The Deputy put words in the mouth of the Chief Justice that he never used and drew conclusions—

(Mayo): I made a valid deduction.

The Deputy did not. In recognition of the separation of powers, I invite the Deputy to withdraw that perversion of reality, that the Chief Justice accused the two judges concerned of perversion of the course of justice. The Deputy went on to draw conclusions about how the criminal offence should be prosecuted.

I declare a personal interest, having declared a professional interest on Second Stage. I know Mr. Justice Hugh O'Flaherty rather well. I did not know Mr. Justice Cyril Kelly before I practised before him. Mr. Michael Quinlan was a courteous and efficient public servant.

I agree with the Chief Justice that the series of events in this case has damaged the administration of justice and caused difficulties for everybody. The arrangements being introduced by the Government will not measure up to what the two judges and Mr. Quinlan would have received at the end of normal service, excluding lump sum payments. This is a reasonable approach to what is a difficult matter which arose from a sad and tragic event.

I was criticised for mentioning that. Such nonsense.

The Deputy turned the matter into a political football.

I did not.

I invite Deputy Higgins to withdraw the terms that he put in the mouth of the Chief Justice. He accused him of not co-operating and questioned the basis of his judgment on constitutional issues.

Members should return to section 1 which deals with the granting of pensions. We have had a repeat of yesterday's Second Stage debate.

The joint committee, which was chaired by Deputy Eoin Ryan, undertook its task in accordance with the terms of reference agreed by both Houses of the Oireachtas. At no stage was it suggested that it was acting outside its terms of reference. Is Deputy O'Kennedy aware of the depth of concern and anxiety among the public about where we are at? The reason the joint committee was encouraged to seek answers to serious questions was that Mr. Justice Hugh O'Flaherty indicated in an interview that he was willing to appear before an Oireachtas committee to answer any questions put to him. How then can Deputy O'Kennedy condemn and arrogantly insult the joint committee by suggesting that it insulted the Chief Justice by taking this task unto itself?

In seeking a rational explanation and acutely aware of the separation of powers, the joint committee attempted to ascertain how far it could go within the parameters of its terms of reference with the voluntary co-operation of the individuals concerned. I express my anger at the attitude adopted by Deputy O'Kennedy to the members of the joint committee, the majority of whom come from his side of the House.

The reason the committee, with the agreement of all sides, applied again to the Chief Justice was that it was most impressed that, constitutionally, he appeared to be within his rights in responding to the Government and undertaking the task of interviewing the chief participants in this unfortunate event and presenting a report to Government. Our approach to the Chief Justice, despite the insolence the Deputy thinks the committee displayed in making it, was based on our logical belief that if the Chief Justice, within the parameters of the Constitution, could start the task, perhaps he could, within the same legal and political parameters, finish it in a way the committee could not.

I would not like to think there was such a division between the institutions of the State that it would be seen as insolent or arrogant on the committee's part to address itself to the Chief Justice on an issue of such huge concern to him, the institution he represents and to Members of this House. Is the Deputy suggesting there is such a chasm between us, that we should not even have the temerity to address him? With that positive and productive attitude, the committee approached the Chief Justice. I wonder if the Deputy read the contents of my letter.

I then proceeded to say to the Chief Justice, not with the intention of putting him in a difficult position, that due to the difficulties that he, more than most, knew the committee was encountering and given that he had been able to produce such a good report, could he, in the event that he might not be able to complete that report, advise the committee as to how it could proceed. Is the Deputy suggesting that the committee is bringing itself into a position of contempt by asking this of the Chief Justice, who was fully and centrally involved in trying to resolve the same issue the committee was attempting to resolve?

The last matter I wish to raise is one which should be debated either within the All-party Oireachtas Committee on the Constitution or in this House. An interesting point was raised during our legal briefing. We did not act as idiots or as blind fools; we got an extraordinarily good legal briefing from a highly respected senior counsel. The Deputy, by making his allegations against the committee, is also more or less denigrating the briefing the committee got and—

You are.

—under which the committee acted at all times. Something of huge interest and importance arose. It was pointed out that the Article in the 1922 Constitution which provided for the separation of the judicial and political spheres merely referred to functions. The 1937 Constitution, however, was careful to specify judicial functions and there appeared to be a good reason for that. The interpretation could be, therefore, that judges in areas other than strictly judicial functions could and should be accountable and could be asked questions within that parameter by the committee or anybody else without it interfering in their judicial functions.

The work carried out by the committee was done with concern about and consideration for the constitutional separation of which everybody is hugely aware. We were desperately trying to resolve something and get the answers the people really want. Above all, we did this work in a spirit of minimising both the hurt to everybody and the fall-out which this terrible event has had, first, on the Ryan family – we will continue to mention this because that family will continue to live with what happened to them – and, second, on the career and family difficulties and traumas suffered by other people as a result.

I am proud of the committee's work and I am disappointed that the Oireachtas did not accept what the committee asked it to do.

As it is now 6.45 p.m., I am required to put the following question in accordance with an order of the Dáil of this day: "That the sections undisposed of and the Title are hereby agreed to in Committee and the Bill is accordingly reported to the House without amendment; Fourth Stage is hereby completed and the Bill is hereby passed."

Question put.

Ahern, Dermot.Ahern, Michael.Ahern, Noel.Ardagh, Seán.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brady, Martin.

Brennan, Matt.Brennan, Séamus.Briscoe, Ben.Byrne, Hugh.Callely, Ivor.Carey, Pat.Collins, Michael.Cooper-Flynn, Beverley. Tá–continued

Coughlan, Mary.Daly, Brendan.Davern, Noel.de Valera, Síle.Dempsey, Noel.Dennehy, John.Doherty, Seán.Ellis, John.Fahey, Frank.Fleming, Seán.Flood, Chris.Foley, Denis.Fox, Mildred.Gildea, Thomas.Hanafin, Mary.Haughey, Seán.Healy-Rae, Jackie.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy.Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Michael.Kitt, Tom.Lawlor, Liam.Lenihan, Brian.

Lenihan, Conor.McDaid, James.McGennis, Marian.McGuinness, John.Martin, Micheál.Moloney, John.Moynihan, Donal.Moynihan, Michael.Ó Cuív, Éamon.O'Dea, Willie.O'Flynn, Noel.O'Hanlon, Rory.O'Keeffe, Batt.O'Keeffe, Ned.O'Kennedy, Michael.O'Malley, Desmond.O'Rourke, Mary.Power, Seán.Roche, Dick.Ryan, Eoin.Smith, Brendan.Smith, Michael.Wade, Eddie.Wallace, Dan.Wallace, Mary.Walsh, Joe.Woods, Michael.Wright, G. V.

Níl
Ahearn, Theresa.
Barnes, Monica.
Barrett, Seán.
Bell, Michael.
Belton, Louis.
Bradford, Paul.
Broughan, Thomas.
Browne, John(Carlow-Kilkenny).Bruton, Richard.
Burke, Liam.
Burke, Ulick.
Carey, Donal.
Clune, Deirdre.
Connaughton, Paul.
Cosgrave, Michael.
Crawford, Seymour.
Creed, Michael.
Currie, Austin.
Deasy, Austin.
Deenihan, Jimmy.
Dukes, Alan.
Durkan, Bernard.
Enright, Thomas.
Ferris, Michael.
Finucane, Michael.
Fitzgerald, Frances.
Flanagan, Charles.
Gilmore, Éamon.
Gormley, John.
Hayes, Brian.
Higgins, Jim.

Higgins, Joe.Hogan, Philip.McGahon, Brendan.McGinley, Dinny.McGrath, Paul.McManus, Liz.Mitchell, Olivia.Moynihan-Cronin, Breeda.Naughten, Denis.Neville, Dan.Noonan, Michael.Ó Caoláin, Caoimhghín.O'Keeffe, Jim.O'Shea, Brian.O'Sullivan, Jan.Owen, Nora.Penrose, William.Perry, John.Quinn, Ruairí.Rabbitte, Pat.Reynolds, Gerard.Ring, Michael.Ryan, Seán.Shatter, Alan.Sheehan, Patrick.Shortall, Róisín.Stagg, Emmet.Stanton, David.Timmins, Billy.Wall, Jack.Yates, Ivan.

Tellers: Tá, Deputies S. Brennan and Power; Níl, Deputies Sheehan and Stagg.
Question declared carried.

It is a disgrace.

Barr