It is not possible in the timeframe available to consider amendments. Therefore, I will raise some issues to tease out some aspects of the section a little further. The most serious question which worries me about this legislation, and on which I would like as much assurance as possible, is the basic issue of how the power of compellability sits with the right to silence. In light of the Abbeylara inquiry, there must be a question over whether a committee can use powers under the 1997 Act in a manner which might oblige someone to incriminate himself or herself. This is a general issue. In this Bill, we are dealing with judges. We must address the rationale for the change. Judges are exempt from the powers of compellability under section 3 of the 1997 Act. What has not been highlighted is that they are only exempt when, as the 1997 Bill states, one is referring to a person who holds or held that office in his or her capacity as such holder. That fits in with the independence of the Judiciary — that its members would not be compellable in any way in relation to the functions exercised by a judge in his or her capacity as a holder of that office.
I raise the question of whether there is a need for legislation at all, because the issue before us does not relate to any judicial decisions of Judge Curtin. It therefore appears that effectively that judge is in the same position as anyone else from the point of view of compellability except in relation to the exercise of his judicial function and we are not inquiring into the exercise of that function. That issue has not been teased out.
There is also a question mark about the general right to silence and whether anyone coming before the committee would be obliged to incriminate themselves, which arises in the post-Abbeylara context. I am also concerned by the new power being rushed in. I do not know if that is needed, but it is my job to raise these issues. I would have preferred a more reflective approach.
If we are putting a judge appearing before a committee for reasons other than his or her judicial functions in the same position as everyone else, then I return to the point that nobody else can be in the same position because nobody other than a judge can have an Article 35 motion tabled about them in the Oireachtas. We are not putting a judge in the same position as an ordinary person and we cannot do so.
The Minister of State said that it was inconceivable that the Houses of the Oireachtas should embark on such a solemn process under Article 35 without having the capacity to require the judge to assist them in that process. Let us reflect on that. Are we saying we must have the power to require a judge to assist in a process leading to his or her removal? I wonder about that broad statement.
I emphasise that my searching comments are designed to be constructive and to try to ensure that the process we end up with is a sound and valid one which will survive judicial scrutiny. The best way to do so is to be absolutely sure that the process is fair and in accordance with natural justice at all times. That is the thinking behind my fundamental questions about this process.
We should go back to Deputy Enright's point about whether compellability is the right approach for the committee, in directing attendance and production of documents. Under the definition of the 1997 Act a document is any class or description of document and also includes a "thing". Are we talking about a computer? I do not know. If we are directing someone appearing before the committee to produce documents and things and to make discovery on oath then one must go back to the purpose for which the committee was set up — to investigate certain matters which may, under Article 35, lead to the removal of that person. That is my concern.
Deputy Enright dealt with admissibility at greater length in her contribution than I did. If these documents and things, computers or otherwise, are admissible, despite the fact that they were held to be constitutionally tainted at the criminal trial, then the issue of compellability may not arise. I do not know. Has that been thought through? That is my concern. Admissibility is central to what we are discussing. Is this approach a fall-back if the admissibility approach fails?
