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

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

On 28 April last, the circumstances surrounding the relisting of the case of DPP v. Philip Sheedy, and the attendant resignations of Hugh O'Flaherty, Cyril Kelly and Michael Quinlan from their respective offices were outlined to this House, as were the severance terms which the Government was prepared to agree. Some time has elapsed since then and, in that interim, the Bill which is now before the House has been prepared and it spells out those severance terms in considerable detail.

It was always going to be the case that the legislation dealing with the pension arrangements of the three individuals would have to be advanced with reasonable expedition. A particular consideration here is the family and other commitments of the individuals concerned. It was also the case that the Government considered the question of severance payments in all three cases very carefully. There were a number of matters to be taken into account here, not least the actual pension entitlements of the parties concerned. There was no suggestion that any of the three was motivated by any prospect of achieving personal gain or reward and due recognition was also given to the fact that the individuals involved have undoubtedly suffered a substantial loss of earnings as a result of their resignations. Finally, it was also acknowledged that, in tendering their resignations, all three men had taken a course of action which was right and honourable and which, in the case of the two judges, avoided the need for embarking upon the unprecedented step of initiating impeachment proceedings.

I do not wish to deny the fact that the circumstances which have caused the Bill to be introduced are controversial and exceptional in nature. However, the Bill has a very limited purpose and it is my hope that the House will accept the provisions it contains to meet the matters in issue.

Senators will have seen that the Bill is very short, amounting as it does to no more than four sections. It is technical in nature and framed against the background of the law on pensions applicable to members of the Judiciary and court officers, as well as pension provisions in relation to the spouses and children of such members.

It may be of assistance to Senators if, before dealing with the substance of the legislation before the House, I mention briefly what the entitlements of the three persons as regards pension would be, were it not for this Bill. Those entitlements reflect their accumulated service up to the date of their resignations. Hugh O'Flaherty was appointed to the Supreme Court on 26 March 1990 and would, on the basis of his service up to the date of his resignation, have been entitled to a pension of £26,300 and a lump sum of £79,000 on 26 March 2005. Cyril Kelly was appointed to the Circuit Court on 4 June 1992 and would have been entitled, on the basis of his service up to the date of his resignation, to a pension of £17,000 and a lump sum of £51,200 on 7 June 2013. Michael Quinlan was appointed as Dublin County Registrar on 24 June 1991 and would have been entitled, on the basis of his service up to the date of his resignation, to a pension of £11,500 and a lump sum of £34,700 on 10 January 2019.

It is, perhaps, useful to focus on the fact that, had all three people remained in office until their statutory retirement dates, they would have all been entitled to the maximum amount of pension allowable under the relevant pension scheme. Based on their current salaries alone, the figures would have amounted to, in the case of Mr. Hugh O'Flaherty, a pension of £47,476 and a lump sum of £142,428; for Mr. Cyril Kelly, a pension of £43,719 and a lump sum of £131,156; and in the case of Mr. Michael Quinlan, a pension of £29,569 and a lump sum of £88,706. There would have been an entitlement in respect of all three men, in the event of their dying in service, to death gratuities and their surviving spouses and children would have been entitled to pensions.

I should add that, for the purpose of calculating the sums just mentioned, the assumption is made that present salary levels for judges and county registrars would remain static.

A final calculation which I would like to make reference to at this stage is the loss in annual earnings suffered by the three men – assuming that the pensions proposed in the Bill are agreed. On the same basis of calculation indicated above, those losses are, in the case of Mr. Hugh O'Flaherty, £54,952, Mr. Cyril Kelly £57,437 and Mr. Michael Quinlan £44,137.

To summarise the Bill's main effect, the severance terms for which it provides are directed towards the payment of annual pensions. There is no provision for the payment of lump sums. The pensions will be adjusted in the normal way in line with any salary increases for Supreme and High Court judges and equivalent county registrars which, in this case, would be the county registrar for Dublin. The Bill also provides for the payment of spouses' and children's benefits in accordance with current arrangements.

The main substance of the Bill is contained in section 1 and I will outline the content of that section in some detail. One aim of this Bill is to ensure that, in relation to the individuals coming within its scope, the payment of pensions in respect of them will be governed solely by its provisions. This effect is achieved by subsection (1) and, for the purposes of absolute clarity, subsection (4) disapplies any gratuity, at present amounting to three times the yearly amount of pension, which in the normal course would arise in relation to a pension granted under the relevant Acts. Existing legislation governing the payment of pensions, including gratuities, to members of the Judiciary and to court officers is contained in a number of different statutes, notably the Courts (Supplemental Provisions) Act, 1961, the Courts of Justice and Court Officers (Superannuation) Act, 1961, the Courts (Supplemental Provisions) (Amendment) Act, 1991, and, most recently, the Oireachtas (Allowances to Members) and Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Act, 1998.

Subsection (2) sets out the pensions which are to be payable over a full year to each of the persons specified in the Bill for the duration of their lifetime, namely £40,000 in the case of Hugh O'Flaherty, £30,000 in the case of Cyril Kelly and £15,000 in the case of Michael Quinlan. As I have already indicated, these amounts will be adjusted in line with adjustments in the salaries of ordinary judges of the Supreme Court, ordinary judges of the High Court and equivalent county registrars as the case may be. This link between pension increases and salary increases is, of course, a standard one, as is the provision that any pension adjustment shall take effect from the date of the relevant salary increase. These matters are provided for in subsection (3).

At this point, having mentioned the pension amounts proposed in the Bill, I believe it would be helpful to provide the House with information concerning the actuarial value to the three individuals concerned of those proposals. Given the various figures I provided earlier in my statement, I think it would be desirable, both for the sake of clarity and to ensure that like is being compared with like, not only to provide the actuarial value in each case of what is proposed in the Bill but also the actuarial value of the benefits which each man would have enjoyed had resignation not taken place. The figures which have been provided by the Department of Finance in each case are as follows. In the case of Hugh O'Flaherty the benefit now proposed has an estimated actuarial value of £699,000 and the benefits lost have a value of £1,336,183. The corresponding figures in the case of Cyril Kelly are £665,000 as against £1,703,990, and in the case of Michael Quinlan are £366,000 proposed as against £1,281,807 lost.

Returning now to the substance of the Bill, the matters covered by subsections (5) and (6) relate to the payment of spouses' and children's pensions. Under existing schemes, a spouse's pension, when awarded, is one-half of the deceased's pension while the amount of a child's pension is normally one-third of the amount of a spouse's pension. This legislation does not affect this broad entitlement. However, it is made clear that it is the figures set out in subsection (2), as may from time to time be adjusted, which will provide the basis for calculating any pension entitlement that may exist.

Section 2 applies a standard provision relating to the abatement of pension. It would be triggered in the event of any of the persons to whom this Bill applies being subsequently employed in a position which is paid out of the Central Fund or the Exchequer. There is no proposal to this effect but it is considered an appropriate and desirable step to take and it is standard practice in respect of judges and court officers pensions legislation.

The remaining two sections are very short and of a standard nature. They require little by way of additional explanation. Section 3 is the usual payments and expenses provision while section 4 deals with matters such as the Short Title, construction and collective citation.

This legislation is exceptional in nature and is very specifically focused. To understand its genesis, it is necessary to refer briefly to the background against which it had to be developed, even if this does involve revisiting facts which have already been placed before the House. First, however, and I know that there will be no disagreement in the House on this point, we must acknowledge that these events will have caused added distress to the Ryan family who lost a wife and mother so tragically in 1996 and whose grief has been intruded upon by subsequent unfortunate happenings.

The House will know that on the evening of 10 February 1999 the Attorney General contacted the Minister for Justice, Equality and Law Reform at a meeting in Berlin regarding concerns that had been raised with him relating to the case of DPP v. Philip Sheedy in the Dublin Circuit Court in November 1998. The Minister decided that an immediate inquiry should be established. The Attorney General at his request then contacted the Chief Justice who initiated an inquiry. The Minister also instructed the Secretary General of his Department that the Garda authorities should be advised of the matter and that the Department should immediately conduct its own inquiries.

The Chief Justice provided the report of his inquiries to the Attorney General on 14 April who furnished it to the Minister. On the basis of facts either admitted or established at that stage, the Chief Justice concluded, inter alia, that the intervention of Mr. Justice O'Flaherty in the relisting of the Sheedy case was “damaging to the administration of justice” and that Judge Kelly – then a judge of the Circuit Court – in entering on a review of Philip Sheedy's sentence “failed to conduct the case in a manner befitting a judge”, and that Judge Kelly's handling of the matter “compromised the administration of justice”.

The report of the Department of Justice, Equality and Law Reform concluded that the action of all officials bar one, were carried out bona fide, in the course of what they took to be their proper duties. In relation to the Dublin County Registrar, Mr. Michael Quinlan, it concluded that his “performance . . . in connection with the official-level inquiry, fell well short of the standards that can reasonably be expected of a person holding the position of County Registrar. In the circumstances it obstructed and misled the Department's investigation and . . . amounted to misbehaviour on his part”.

On 16 April 1999 the Government considered the contents of the Hamilton report. The departmental report was not finalised at that stage as account had to be taken of the Chief Justice's report and replies due from the county registrar to a series of questions put to him on 9 April about his role in the matter. The Government decided, inter alia, to approve the delivery of letters to both judges stating that, in the light of the Hamilton report, it would consider at its meeting scheduled for 20 April, proposals for resolutions for the consideration of both Houses of the Oireachtas for their removal from office under the provisions of Article 35.4.1WP extended char 1,14 of the Constitution. Michael Quinlan was provided with copies of the Departmental report on a confidential basis on the evening of 19 April 1999. Mr. Justice Hugh O'Flaherty resigned on 17 April 1999. Mr. Justice Kelly and Mr. Quinlan resigned on 20 April 1999.

On 20 April 1999 the matter was again considered by Government and later that day a statement was made to the Dáil in connection with the circumstances surrounding the relisting of the case of DPP v. Philip Sheedy. That House was informed of the resignation of the two judges and the County Registrar and the severance terms to which the Government was and is prepared to agree were outlined. This House was informed in similar terms on 28 April last.

That, briefly, is the sequence of events which has led to this Bill and its provisions. When introducing this Bill in the Dáil, the Minister for Justice, Equality and Law Reform, in order to avoid any possible confusion or misinterpretation on the matter, gave details about certain payments which were made recently to the former County Registrar, Michael Quinlan. I wish to allude briefly to this matter for the benefit of Senators.

In addition to his normal duties Mr. Quinlan, having been nominated by the then Minister for Justice, Deputy Owen, performed the duties of Dublin City Sheriff on a temporary basis between 3 January 1995 and 1 August 1995 while a vacancy existed in that office following the retirement of the previous incumbent. At the time, it was decided by the then Minister that Mr. Quinlan would perform these duties and be remunerated on the same basis as the Cork County Registrar who did so in similar circumstances in 1991 and 1995. This involved an ex gratia payment equivalent to the amount the sheriff would have received following the collection of fees etc. and the disbursement of all the moneys due, including payment to the staff in the office of the sheriff.

The acting sheriff's accounts were fully audited. This process took some months and a reconciliation was required to be made which showed an amount of £140,014.89 remaining in the acting sheriff's account from collection of sheriff's fees after payment of staff and other necessary disbursements. Department of Finance sanction was sought for payment of this amount to Mr. Quinlan, which was due to him in line with the conditions of his appointment to sheriff duties over the relevant period. A number of detailed queries were then raised by the Department of Finance which took some time to resolve and approval to pay was only received in the Department of Justice, Equality and Law Reform on 18 February 1999. Further correspondence then took place between that Department, the Revenue Commissioners and the Department of Social, Community and Family Affairs who were fully informed of the details of this payment which was finally made on 28 May 1999.

For the purposes of record, I would add that significant changes in the method whereby sheriffs are remunerated were made by the Minister for Justice, Equality and Law Reform in 1998 and a joint standing committee is currently considering, inter alia, the remuneration of sheriffs. Its membership includes a representative of the Department of Justice, Equality and Law Reform, the Revenue Commissioners and the sheriffs themselves.

Much of the debate in relation to this Bill and the issues surrounding it has centred on the suggestion that conditions should be attached to the payment of pensions in the case of Hugh O'Flaherty and Cyril Kelly. It has been indicated in previous statements that the advice available is that it would be unconstitutional to include in legislation providing for pensions or payments to judges or former judges any provision that payment would be dependent on the individual judges complying with any requirement that they provide some explanation or self-justification or make themselves available to give evidence before an Oireachtas Committee. It is worth reiterating that advice now. However, unpalatable it may be, the time may have come to accept the fact that we need to move on from this particular episode and, in looking to the future, learn such lessons as we can from recent events.

I wish to address briefly the findings in the Report of the Joint Committee on Justice, Equality and Women's Rights on Matters arising from the Early Release from Prison of Mr. Philip Sheedy. The Minister for Justice, Equality and Law Reform has noted that the committee finds itself unable to inquire further into the circumstances surrounding the early release from prison of Mr. Sheedy for the legal, constitutional and other reasons outlined in the report, and has sought the views of the Oireachtas as to how the outstanding issues can be resolved.

It is the case that judges are exempt from compellability under the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997. The committee has considered that 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. The committee also noted that any such amendment was likely to give rise to a potential dispute as to what amounts to judicial functions. It is the Minister's view that the committee rightly points 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 the handling of a court case.

That said, the Minister, Deputy O'Donoghue, has no difficulty with a comprehensive review of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997, as suggested by the joint committee and he believes that such a review might provide some assistance in determining the practical benefits from any proposed amendments. Moreover, he believes that it is essential that any proposed amendments should be examined thoroughly with due regard to the balance that must be maintained between the different branches of Government.

The committee's second option is the establishment of a tribunal of inquiry under the Tribunals of Inquiry (Evidence) Acts, with appropriately narrow terms of reference which included a fixed time for reporting. The Minister considers that the same difficulties referred to above may come into play, in particular the categorisation of judicial and non-judicial functions and the requirement to recognise the independence of the Judiciary. The committee points up the fact that it may well be that a tribunal of inquiry would stand little better prospect of bringing matters to a satisfactory conclusion than would the option of amending the 1997 legislation.

The events of the past few months have given added focus to the overhaul of the Courts Service. The Department of Justice, Equality and Law Reform's inquiry into the Sheedy case resulted in a number of far-reaching recommendations for change, the fundamental purpose of which is to ensure that confidence in the judicial system is maintained. These recommendations dealt with issues such as the performance of duties by court staff, judicial conduct and ethics, the review of sentences and establishment of a parole board, the method of appointment of county registrars, the method of listing of court cases, the assignment of cases to particular judges, court rules, plea negotiations and the formal transfer of responsibility for the administration of the Courts Service to the new Courts Board. Some of these recommendations have been implemented already and others will be the subject of proposals to be brought before Government in due course.

On 19 April 1999, the Department issued a circular to all court staff who have a role in the listing of cases, reminding them of their obligation to carry out those duties in a fair and reasonable manner which avoids any possibility of a miscarriage of justice.

The Sixth Report of the Working Group on a Courts Commission, chaired by Mrs. Justice Denham, dealt, among other matters, with the topic of judicial conduct and ethics and recommended the establishment of a judicial committee. On publication of that report in April, such a committee was duly established by the Chief Justice. Among other matters, it will advise on and prepare the way for the establishment of a judicial body which would contribute to high standards of judicial conduct and establish a system for the handling of complaints relating to such conduct. The Minister for Justice, Equality and Law Reform has warmly welcomed these developments and has assured the Chief Justice that the committee will have every support from his Department and the Government in carrying out its work.

Another important change emanating from the Department's report is that appointments to the post of county registrar will now be made by way of open public competition. Such a competition is now under way and an Appointments Advisory Board has been established to consider applications for current vacancies. The board will soon be in a position to recommend suitable candidates for these vacancies to the Government.

Much work has been done in preparing the way for the establishment of the independent Courts Service to manage the courts. One of the main functions of the service will be the provision of support services for judges. The transitional board, chaired by the Chief Justice and established under the Courts Service Act, 1998, is, in conjunction with the Department of Justice, Equality and Law Reform, actively involved in making the necessary arrangements for the establishment of the Courts Service. It is expected that this task will be completed later this year. What is at issue here is the provision of an efficient, effective and accountable service to judges, practitioners, court staff and, most importantly of all, the users of the system, supported by information technology systems which will facilitate the organisational changes which are now under way. A very significant step towards the formal establishment of the Courts Service was taken during the month of June when 24 members of the staff of the courts division of the Department moved to new offices in Conyngham Road, which will be the future location of a number of Courts Service functions.

The legislation before us deals with three people and it behoves us to recognise that they have paid a price for their actions both in terms of emotional stress and in terms of financial loss. Nor should we lose sight of the fact that apart from the events resulting in this legislation, each of the three men made valuable contributions to the administration of justice. Hugh O'Flaherty was one of the most eminent members of the Bench and his compassion, wisdom and insight were applied in the many important cases with which he was involved. Cyril Kelly had the particular capacity to balance his efficiency in approach with his legal expertise both in his dealing in the courtroom and as chairman of the interdepartmental committee on the video-recording of evidence. Michael Quinlan dealt resolutely with the changing demands of the Dublin Circuit Court and the management of the volume of cases in that area. It would be grossly unfair to dismiss years of sterling service, which is what a decision to refuse pensions would entail, because of errors of judgment in the handling of one case.

In this regard, I note the concern of the Oireachtas Joint Committee on Justice, Equality and Women's Rights to minimise any further hurt that might be caused to those whose lives and careers have been so adversely affected. One way in which we can meet that concern is by passing this legislation in an atmosphere of calm co-operation and with a minimum of unnecessarily critical and personalised comment.

The office of judge is both onerous and prestigious. Often those who accept judicial office do so in full knowledge that they are embarking upon a career path which, in purely financial terms, will be less rewarding for them than if they had chosen to advance their careers in private practice. There is a status which goes with judicial office and, of course, a corresponding loss of status when, as in the present case, that office is vacated in the type of circumstances which arose here. That loss of status has impacted very heavily, and in a very public way, on the personal lives of all concerned and it would be wrong when debating the Bill to forget this.

In weighing up all the relevant issues of this very difficult situation, the Government concluded that the pensions mentioned should be payable in each case but that no gratuities should be paid. This legislation gives effect to that decision. I commend this Bill to the House.

I welcome the Minister of State to the House. It is wrong for him to proceed with this legislation in the face of the complete lack of co-operation by the former Supreme Court judge, Hugh O'Flaherty, and the former High Court judge, Cyril Kelly, and the efforts of the Oireachtas expressed, in particular, in the efforts of a committee of both Houses to get at the truth of the matters relating to this case known as the Sheedy case. Now it can be more truly known as the Sheedy scandal.

In principle, this side of the House has no objection to the payment of reduced rates pensions to former judges O'Flaherty and Kelly. We certainly have no principled objection to the payment of an early reduced pension to the unfortunate Mr. Michael Quinlan, the former Dublin County Registrar. We fully acknowledge that these gentlemen during the careers on the Bench and in the office of county registrar contributed to the State superannuation and pension scheme. While these pension schemes, as far as contributions are concerned, are short of maturity, there is a moral onus to pay them some reduced rate of pension or severance allowance. We fully acknowledge that on the basis of their contributions, they are entitled to this.

However, the Minister did not tell us how he reached these figures on the amount payable to former judges O'Flaherty and Kelly in particular. Let us assume their pensions were valued at this time, what is the amount to which they would be entitled? That has not been stated and would be easy to find out from the pension and superannuation section of the Department of Justice, Equality and Law Reform or the Department of Finance. What is the value of added years, as it is called in the public service, which has been given?

People see the Government as being very generous to these gentlemen, and I fully acknowledge they had distinguished careers and were very senior judges. Yesterday, however, somebody asked me to look at the disabled people demonstrating outside the House over a few paltry pounds to keep in place a transport system and at the very generous pension allocation being made to these judges. Maybe it is not a fair comparison but one has great difficulty when asked such a question. Will the Minister explain in a more transparent way to what would these gentlemen be entitled given the level of their contributions in their careers in the public service up to now? Will he detail the enhancement or the value of the added years, as I call them as a former civil servant, given to them?

All that is an aside as the real point at issue is the extraordinary refusal of the judges, particularly one judge, to explain why they engaged in a series of irregular actions – I stress away from the Bench and outside the court – which led to the wrongful early release of Philip Sheedy? In October 1998 Mr. Justice O'Flaherty, then a Supreme Court judge, suggested to people he casually met on an evening stroll that the case of Philip Sheedy might be relisted having heard from them about Mr. Sheedy's misfortune of landing in jail – we understand that is the first time he heard about it – and about his deteriorating health. There was also the McDonald decision and so on. Taking into account that by amazing happenstance the people he casually met on his evening stroll were the sister of Philip Sheedy and neighbours and friends of Mr. Sheedy and that when he made the suggestion to them about the possible relisting of the case – it was, to say the least, an unusual suggestion for a senior judge to make to people he met casually – he was not acting judicially or sitting on his bench, yet his suggestion had a major influence on events which were to follow. That is why we call on Mr. O'Flaherty, in particular, to explain himself. Is it not obvious to anyone with the usual modicum of common sense that former Judge O'Flaherty should explain the background to his actions that evening?

Let no one use the separation of powers argument, which was mentioned in the Minister of State's speech, because it is irrelevant to this point. Mr. O'Flaherty was not in court when he suggested or advised these people. In a sense he was acting outside of any judicial role or mode. Nor was he in his court or in judicial mode when he called in the Dublin County Registrar, the unfortunate Mr. Quinlan. He indicated to him his interest in the Sheedy case and suggested the possibility of having it relisted. He handed Mr. Quinlan a copy of the McDonald judgment which, he suggested, might help confirm that the Sheedy case could be relisted for hearing – for a very friendly hearing as it turned out.

It is interesting at this stage to look at what Mr. Justice Liam Hamilton had to say in his findings in this regard. In his comments about the Honourable Mr. Justice O'Flaherty he stated in paragraph 5 of his report: "I therefore conclude that this case might not have been re-listed in the way it was but for the intervention of Mr. Justice O'Flaherty."

I am a member of the Joint Oireachtas Committee on Justice, Equality and Women's Rights. That committee received a letter from Mr. O'Flaherty on the day it was considering the report of the Chief Justice. I am aware that the letter has been published in the newspapers and other publications. However, I believe that its contents should be read into the record of the House. The letter is addressed to Deputy Eoin Ryan, Chairman of the Joint Oireachtas Committee on Justice, Equality and Women's Rights, and dated 16 April 1999. At this time, Mr. Hugh O'Flaherty was in situ as a member of the Supreme Court. The letter states:

Dear Mr. Ryan,

I received the Chief Justice's report on the circumstances of The Sheedy Case late yesterday afternoon. I entirely accept the facts stated in it in so far as they concern my own actions.

The report contains much material from a number of sources, some of it going back almost twelve months before my involvement which is new to me.

I wish to take this, the earliest possible opportunity, to express my deep regret for my own inappropriate and unwise action. Despite my humanitarian motivation (which the Chief Justice has very fairly acknowledged) I accept that this action has left my position open to misinterpretation and in that way damaged the administration of Justice. I am determined to do all I can to redress this damage.

I am now concerned fully to explain my position, especially in light of the many aspects of the case, new to me, which the Chief Justice's report has elicited. I do this in an attempt to dispel as far as possible the doubt and suspicion which has accumulated around the Sheedy case in the interests of the community, justice and in my own interest.

To that end, and in view of the widespread concern and many questions surrounding the case, I request if it is thought appropriate, to make a statement to the Committee on Justice, Equality and Women's Affairs and to answer any and all questions its members may raise.

I stress that my attendance would be entirely voluntary and at my own request. It would not, therefore, create any problem relating to the Constitutional separation of Powers that I can see.

Whatever the Oireachtas decides to do in response to the Chief Justice's report, I am extremely anxious that there should be no remaining question or doubt that I can answer or dispel. I would therefore ask that, before any further step is taken, the Committee accept a full statement from me and allow me the opportunity to respond to their questions.

I believe that in the extraordinary circumstances of the case this course of action is in the public interest, the interest of Justice and public confidence as well as my own interest.

Yours Sincerely

Hugh O'Flaherty

That was a letter from Mr. Hugh O'Flaherty dated 16 April 1999, two days before he resigned from his position on the Bench. He stated clearly to the committee appointed by both of these Houses to inquire into the issue that he wanted to come before it to explain the circumstances. He repeated that he wanted to do this in the name of justice, of having confidence in the judicial system and in his own interest.

Following his resignation, the committee received a rather convoluted letter from Mr. O'Flaherty. Our legal advice is that the letter does not appear to have great standing. In that letter he explained that he no longer wished to come before the committee. In other words, he was cancelling his offer to come before the committee to explain his actions. He stated that he had now resigned and that he made his original offer – which, incidentally, he did not state in his letter – in the light of possible action being taken by the Oireachtas pursuant to the provisions of Article 35.4 of the Constitution. This article provides for impeachment proceedings and the removal of a member of the Bench from office for stated misconduct or incapacity. He stated in a letter three days later, "I cannot help further your Joint Committee in relation to these matters. The Constitution does not permit me to do so." The committee's advice is that the Constitution would allow him to do so. It would certainly allow him to explain the actions he took when he was not acting judicially.

It is difficult to fill in the gaps in the circumstances that led to the listing of the case before the then Judge Cyril Kelly. There is no doubt that Mr. Quinlan needs to explain why he recommended to Mr. Staines, the solicitor acting for Mr. Sheedy, that if and when he was applying for a relisting of the case, he should apply to have it heard before the judge in court No. 24, who happened to be Mr. Cyril Kelly.

Mr. Quinlan offered to come before the committee in an open manner. His only request was that the questions put to him should be communicated to him beforehand in order that he could deal adequately with them. On two occasions solicitors acting on behalf of Mr. Quinlan wrote to the committee reiterating his intention and desire to come before the committee to explain his actions. However, the committee felt that it would be unfair to bring Mr. Quinlan before the committee when the two judges were not making themselves available. Mr. Quinlan came in for some criticism in the report drawn up by the Department of Justice, Equality and Law Reform. Nevertheless, I should, as a member of the committee, acknowledge in the House his willingness to co-operate.

I was making the point that Mr. Quinlan needs to explain why he suggested to Mr. Staines that if he was applying to relist the case he should seek to have it heard before the judge in court No. 24. Due to the fact that Mr. Cyril Kelly, unlike Mr. O'Flaherty, has said very little about his involvement in the case outside the courtroom, we must be careful not to impinge upon the separation of powers.

The section in the Chief Justice's report on the affair dealing with the interviews conducted by the President of the High Court with Mr. Kelly, makes extraordinary reading. The President of the High Court asked him what medical reports were on the court file when he dealt with the case on 12 November 1998 – that was the re-hearing of the case. Mr. Kelly said in his judgment that he was very worried about the mental condition of the accused "at the moment". The President of the High Court rightly asked him what documentation there was and the dates of that documentation. He also asked him why he did not call on the counsel for the defendant, who was the moving party in the application – we should remember the hearing lasted only approximately one and a half minutes – why he did not call on the prosecution during the hearing and whether the judgment of Mr. Justice O'Flaherty, to which reference is made by Mr. O'Flaherty in his state ment, was on his file on 12 November 1998. These very relevant questions were put by the President of the High Court to Mr. Cyril Kelly in his investigation. This is all in the Chief Justice's report.

The Chief Justice, having read what former Judge Kelly had said to the President of the High Court, concluded:

Judge Kelly is unable to remember what expert reports were before him on the 12th November, 1998, when he dealt with this case, but he believes that any expert reports that he relied upon would be contained in the court file and he is satisfied that it was such expert reports that enabled him to form his view which he expressed in court.

Judge Kelly is also unable to remember if the court file contained a judgment of the court of criminal appeal that had been delivered by Mr. Justice O'Flaherty.

He did not require Counsel for Philip Sheedy or the Prosecution to make detailed submissions to him because, as was his practice, he had re-read the papers before he sat and accordingly was fully familiar with the details of the case.

In the light of that, it is no harm to repeat some of what the Chief Justice had to say, and none of it was very complimentary, in relation to then Judge Kelly. He stated:

There is no practice in the Circuit Court whereby a Circuit Court Judge can review, in a criminal case, the final order of a judge of equal jurisdiction who is available or is likely to become available.

In so far as Judge Kelly thought such a practice existed he was mistaken. In so far as he followed such an alleged practice himself, he was wrong. The transcript of the entire hearing before Judge Kelly on the 12th November 1998 runs into less that 1½ foolscap pages. The hearing can have lasted for minutes only . . . I conclude moreover that, having entered on the review, he failed to conduct this case in a manner befitting a judge.

That is a Supreme Court Justice's judgment on Mr. Cyril Kelly's involvement in this case.

I am grateful to the leader of the Fianna Fáil group and Members on this side of the House for allowing me to speak out of order. Senators may not be surprised to hear that my mind is on events in Belfast today and I am anxious to get back there this afternoon.

I am a friend of Hugh O'Flaherty and I admire and respect him. I hope that will not cloud my judgment or objectivity. I do not know the other two gentlemen involved, nor have I any connection with anybody involved in the case. I speak as a former public servant who had responsibility for public sector pensions in another jurisdiction. I had hoped we could keep to the pension elements of the discussion. It is very easy to join the hunting pack and shout "tally-ho" but I would like us to deal with this with a degree of dignity and compassion.

I do not for a moment condone any abuse of judicial or court process. I do not excuse any acts of misjudgment. I certainly do not condone the early release of Mr. Sheedy and I deeply sympathise with the family of Mrs. Ryan.

Having said that, a fairly standard legal principle of double jeopardy exists. We do not try people two or three times for the same offence and there is a danger of that happening. These people have lost their profession, peace of mind and status, and their families have been affected. They have paid dearly for whatever it is they might be seen to have done and it is not fair to put them through the mill again.

I sympathise with the chagrin of members of the joint committee at their failure to elicit responses from the judges. Like the rest of the public, I would like to get to the bottom of this affair. However, if people plead a constitutional bar to response, the place to deal with it is in the courts. It is for the courts to decide whether the separation of functions may be breached and whether a judge ceases to be a judge behaving judicially when he takes off his wig and gown.

By resigning in the way they did, these people did the State a service, whatever their previous behaviour and its causes. We would have been faced with an unprecedented position in which the Oireachtas would have been making up the rules as it went along. It could have gravely damaged the body politic and the relationship between the Legislature and the Judiciary. In some senses, what happened was as near as may be to constructive dismissal.

I welcome the steps taken which the Minister has announced, to tighten up court procedures. I urge the rapid establishment of a proper independent courts service and the implementation of the recommendations of Mrs. Justice Denham's working group.

However, public sector pensions are a different matter. Increasingly, pensions are not seen as a bounty to be given by the employer to mark good conduct or to be withheld if we do not like what the person has done. The modern concept of pensions is of a deferred income to which people have acquired a right. It requires enormous flagrant misconduct to justify taking that away from them. In my experience I was involved in withholding a pension only once and that was in an absolutely flagrant case. I would breach all sorts of confidentiality if I explained it.

Most public servants and trade unions would react with horror at the idea that people's pensions could be taken away if we do not like the way they have behaved. If we do not like the way they have behaved, there are other ways of dealing with it without using their pensions, particularly in the case of people who do not have pension schemes. It is an accident of the way things are done that judicial pensions are settled by the Oireachtas and not by regulation or through a scheme. The pensions of the vast majority of pub lic servants, no matter what their behaviour or what they have done, would not come before the House for discussion. My plea to the House is to deal with this as a pensions matter with humanity, equity and fairness. If we have crows to pluck with people or we are dissatisfied with their behaviour, let that be dealt with through the courts or in another way, not by means of a salary.

When this matter was debated here on a previous occasion Senator O'Toole pointed out that if a trade unionist had been treated in the way these men were treated with regard to dismissal or resignation, there would have been outrage. People would have downed tools around the country and stopped work on every building site and school. We are almost in danger of further punishing people who have already paid dearly and sorely for whatever it was they were thought to have done and for whatever reason they did it.

I am grateful to the Minister of State for the actuarial figures he outlined. If I heard them right, the difference between the pensions now being offered, if they were taken up to the maximum degree, and what these people might have earned during the rest of their working career is between £700,000 and £1 million. If anyone was fined that amount in the courts people would be astonished. There is no sense of proportionality or proper tariff in that.

I commend the Government's efforts to settle the pension element. We should deal with it as a pensions issue and as we would deal with a pension of any other public servant, not as a punitive expedition or a means of exacting retribution from people for not doing what we thought they should have done or as another means of drawing them to the bar of the House. There are other ways of doing that and they should be pursued. It is a debasement and an abuse of the pension scheme if we seek to use it as a means to secure other ends which we have not been able to secure. I thank the Minister of State for his proposals which I hope are carried.

Mr. Ryan

I am mindful of the suggestion by Senator Maurice Hayes to be careful about what we say and, to a degree, I agree with him. It is of no great benefit to resort to the rhetoric of the past few months on this matter. However, we must make a judgment on a matter like this. These are not innocent victims of a natural disaster, which is outside their control, who we are trying to compensate or people who were injured in accidents and were, therefore, prevented from continuing with their normal working lives. We have an obligation to lead public opinion and to understand how it regards these matters. I am disappointed with the Government's view in this regard. It seems to suggest that we should shrug our shoulders and get this matter, which is not too important, out of the way because there is nothing we can do about it.

I had the pleasure to spend some time in Mr. Hugh O'Flaherty's company on one occasion. I am aware he was a good Justice of the Supreme Court where, over the years, we have been extremely well served, although I disagree with some of its judgments. We have a sane Judiciary in that it bases its judgments on an understanding of life that is usually comprehensible to the citizens. This is not something one could say as easily about its equivalent in our nearest jurisdiction, where extraordinary moments can demonstrate the degree to which senior members of its Judiciary seem to live in a vision of British society which, in some cases, seems to predate the First World War in terms of attitudes, values and perceptions.

Without trying to read more into the matter than the evidence assembled in the various reports, certain things happened. A judge of the Supreme Court made a mistake of extraordinary proportions which his colleague, the Chief Justice, identified as a serious matter. Former Judge Kelly was accused by the Chief Justice of more than a mistake. I do not know, nor does anyone else, what motivated Mr. Quinlan – he did strange things, including withholding information from the Department of Justice, Equality and Law Reform.

A large section of public opinion regards it as yet another piece of a jigsaw that has been assembled tediously, painfully and embarrassingly for those of us who have been part of the political system for the past seven or eight years. This goes back before the beef tribunal and through a succession of other peculiarities and scandals, all of which give the citizen, who has the good fortune not to be as obsessed with politics as we are, a clear and unequivocal view that the system is rotten to the core. That unequivocal view of a significant majority of the population is unfair and harsh on 95 per cent of those in both Houses. It is as unrepresentative of us as the aspiration of people who believe we are in a class of sanctity above the rest of society. We are neither in a class of sanctity nor a class of moral turpitude which is much different from the rest of society. Sometimes that is disturbing.

We should remember what has happened and this is where I disagree with Senator Maurice Hayes. If I was forced to resign from the job I hold in the Cork Institute of Technology, I would get a small pension when I reached pensionable age unless I could prove I was sick. I would not be able to get an early pension as I would not have reached pensionable age. It would be interesting to work out the actuarial value of the loss that a primary or secondary teacher or a lecturer would suffer. There are many in our society, as there have been in Britain, demanding that we get rid of people in the public service who do not perform. What is manifestly true in this case, and everybody agrees because the Government was proposing to impeach the two judges and have them dismissed, is that these three people did not do their jobs properly. In the view of Irish public opinion, the reward that the system has given to these three people who did not do their jobs properly, to the degree that the Houses of the Oireachtas were going to be invited to dismiss two of them, is to give them pensions to which they would not otherwise be entitled.

We can do actuarial sums that show the pension is substantially less than what they would have received if they had worked through to retirement, but is it the fault of Government or the Oireachtas that these three men did not work through to retirement? It is their fault, in the conclusion of the Chief Justice of the Supreme Court who found that both judges had misbehaved to a greater or lesser degree.

The Minister of State legitimately referred to the actuarial value of the benefits lost. When they read, as I did, in the Official Report of the Seanad that young men of 31 and 32 years regard a salary of £175,000 as too little, most Members discover that we live on a different planet in terms of income aspirations. In Irish society an income of £40,000 per year is regarded as a very generous salary and is in the top 10 per cent of incomes declared to the Revenue Commissioners. It is approximately the salary that I would get at the top of the scale as a lecturer in the Cork Institute of Technology.

Let us not dress up this matter in language that suggests we are depriving these people of something. The £30,000 that Mr. Kelly will receive, at a considerably younger age, is still within the range of a generous salary and there are few secondary teachers, nurses, gardaí or others in the public service who could command that salary in a job they could aspire to at Mr. Kelly's age. Mr. Quinlan's pension is equivalent to the average male industrial wage. The problem for Irish society is that this is not the first time it appears wrongdoing at a certain level in society, while it is penalised by people having to give up their jobs, does not seem to carry another penalty.

The people in the Blood Transfusion Service Board who presided over one of the most disgraceful scandals in the history of the State went on what was euphemistically described as "early retirement" with substantial and generous pension arrangements. A Garda Commissioner who was injudicious in the way he allowed phone tapping and the use of Garda equipment to facilitate people overhearing or recording the conversations of others had to take "early retirement".

The point is that once one moves above a certain level in Irish society, wrongdoing – even now when we are beginning to confront the unpleasant underside of the establishment – carries with it a reasonable guarantee that, although one may be humiliated, embarrassed and one's career may be severely upset, one will not go hungry or poor. This does not happen in the rest of society. People who do not do their job or do it badly lose their jobs. Contrary to popular opinion, teachers, nurses and doctors who do not do their jobs properly will lose their jobs. Nobody believes that special legislation should be brought before the Oireachtas to compensate them for the inconvenience of their inability to do their jobs.

Irish society is asking a valid question – why are these three people different? The malign interpretation is that something is being hidden, but I do not accept that. Senator Connor and I have disagreed on this point on a number of occasions. I hold a long-standing belief that most things that go wrong do so by accident; they are cock-ups rather than conspiracies. As I have often said, conspiracies usually happen to cover up a cock-up, not the other way round. There was an element of that in this case when people were running around in circles trying to keep as much of the story undercover because it was obviously embarrassing, discomfiting and potentially dangerous for the careers of the three people involved. However, there is not a malign external body pulling strings to get the individual concerned released.

I have no doubt that the fact the individual came from what would be called a "better class of family" was regarded as a reason he should not be in jail. It has always been a mystery to me why people from good families should be less likely to go to jail because they have even less excuse for misbehaving since they have had opportunities.

It is a matter of regret that we are dealing with this matter in this way. It is an embarrassment to the political system and is further confirmation to citizens that there is one law for the rich and another for the poor. To suggest that it is a loss for Mr. Hugh O'Flaherty to be on £40,000 per year and Mr. Cyril Kelly to be on £30,000 a year when in the area of Cork city where the Minister of State, Deputy Dan Wallace, lives there is hardly a person, apart from himself, who would aspire to even two-thirds of Mr. Kelly's pension – £20,000 a year would be regarded as undreamed of riches.

I do not weep for Mr. Hugh O'Flaherty or Mr. Cyril Kelly. People, including politicians, take responsibility for their own actions. We must take responsibility for the fact that we have confirmed to Irish public opinion that there is one law for the rich and one law for the poor. That is a most regrettable event.

I welcome the Minister of State, Deputy Dan Wallace, to the House. It is regrettable that a Bill such as this has come before the House, but the bizarre circumstances surrounding the early release of Mr. Sheedy necessitate it. It is correct for the Government to pay pensions without conditions for the following reasons. It has been made clear by the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, that it would be unconstitutional to attach such conditions. Second, the persons concerned will not receive lump sum payments. Third, they have spared the State a considerable amount of money – by taking the honourable course of action in resigning impeachment procedures were not necessary. Apart from impeachment proceedings putting a huge financial cost on the State, it would also have been time consuming on both Houses of the Oireachtas. It is good we have been spared that.

As the Minister of State said, it would be grossly unfair to dismiss years of service because errors of judgment were made. Despite exhaustive inquiries we are still left with unanswered questions which we would like resolved. However, I believe personal gain was not the motive in this case. Great personal suffering and tragedy has been inflicted on all concerned. I agree with the Minister of State that there has been added distress for the Ryan family which we all regret. This matter has had a heavy impact on the families of all concerned and it is important to remember that.

As the Minister, Deputy O'Donoghue, said in the Lower House, considerable status is attached to judicial office. There is a corresponding loss of status when resignation is necessitated in such circumstances. The details of this case were made public. It has caused considerable hurt and embarrassment to the individuals concerned and their families. I compliment the Minister for dealing with this matter in a compassionate manner. We should also recognise that, having regard to the status attached to judicial positions, people who are willing to serve in public office often do so at a considerable financial loss to themselves when compared to continuing their careers in the private sector.

I compliment the Minister for the manner in which he has dealt with this case from when it first came to light to the introduction of this Bill. He was severely and wrongly criticised, especially in the initial stages, by Members on the Opposition benches. He did an excellent job. When he was first made aware of the circumstances of the early release of Philip Sheedy he initiated three separate inquiries to be carried out by the Chief Justice, the Department and the Oireachtas Joint Committee on Justice, Equality and Law Reform respectively. Senator Connor referred to the joint committee's inquiry earlier. I agree with the Senator's comments about the co-operation that was offered to the committee by Michael Quinlan. When the committee met on 24 June to agree to issue a draft report each member was at pains to ensure that the co-operation offered by Michael Quinlan would be acknowledged in the report.

Senator Connor commented on Mr. O'Flaherty's decision not to meet the committee because he felt it would be unconstitutional. I cannot take issue with Mr. O'Flaherty's decision because I am not qualified to do so. I acknowledge, however, that the committee had problems. It was unable to compel witnesses and there were constitutional obstacles. The senior counsel advising the committee also pointed out the complex consti tutional obstacles. It is not the Minister's fault that the various inquiries have been inconclusive.

However, some good can be found in every bad occurence. In this case our minds must focus on how events such as these will not happen again. A number of far-reaching recommendations have been made that are designed to prevent any reoccurrence. I welcome the proposed early transfer of responsibility for the administration of the courts service to the new Courts Board. I particularly welcome the decision taken by the Minister earlier this month to transfer 24 of his Department's officials to new offices on Coyningham Road. A number of court services will be located there in the future. I welcome the recommendation dealing with judicial conduct, ethics and accountability. There is merit in the argument to attach conditions to payment of pensions. If different circumstances prevailed I would agree with that suggestion.

We want to know why these people got involved in this case to such an extent. That said, we must balance it with the fact that they did not set out with personal gain in mind. We must also take account of the fact that it would be unconstitutional to attach such conditions. The Minister and the Government are correct to make these pensions available to these unfortunate people.

Not alone do we have an obligation to treat these people with respect and decency but we must have regard for their family and other commitments. I support this Bill but in doing so I do not condone any abuse of judicial power. I agree with the Minister that these people have already paid a high price.

I thank Senators who contributed to this important debate. I do not doubt the sincerity of the views expressed by all sides on this unprecedented case. This has not been an easy matter for anyone involved. The events leading to our consideration of this Bill have been controversial and unfortunate and, understandably, there are different views on how best to address them. The Government believes that the provisions contained in this Bill are justified.

Senator Connor has sought further inquiries. The Minister for Justice, Equality and Law Reform on becoming aware of this matter decided that an inquiry should be established immediately. The Chief Justice has produced a report of his inquiry. The Department and the Chief State Solicitor's Office have produced reports. The Garda Síochána and the DPP, having considered the matter, took the view that a criminal investigation was not warranted. The report of the Oireachtas Joint Committee on Justice, Equality and Women's Rights recommends furthering the matter.

Senator Connor has asked for a further explanation. He decided that Mr. O'Flaherty was not acting in a judicial mode. The legal advice received by the Oireachtas Joint Committee appears to suggest that it has the authority and power to question a judge in connection with non-judicial functions. I also understand from the committee's report that it has considered that an amendment to legislation could provide that judges and former judges could not be compelled to give evidence in relation to the exercise of their judicial functions. The committee correctly pointed out the serious difficulties which may follow from such a course of action.

Judicial and non-judicial functions cannot be categorised easily, particularly in the context of the handling of a court case. If the amendment were to be included in the compellability legislation further questions would have to be resolved – for example, who might decide in any particular circumstances what constitutes judicial or non-judicial functions; whether a committee or a Minister would certify that the actions fall within the judicial category; whether it would be a matter for resolution by a court were there to be a difference of opinion regarding the certification, and whether an Oireachtas committee or a Minister has the authority to adjudicate on whether a particular matter relates to judicial functions.

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

Senator Connor is not interested in the separation of powers. He played down the importance of the separation of powers in our Administration. In Ireland, as in other jurisdictions, the constitutional separation of judicial power is the most significant aspect of the separation of powers. The separation of powers doctrine can be extended to the separation of institutions, by which it is meant that the organs of Government should be independent of each other. In other words, no organ should be in a position to control or dominate another or interfere in its workings. Much has been said and written about the independence of the Judiciary. The separation of powers is how the fundamental building blocks of democracy have served us so well. Members would be loath to trespass on these fundamental principles or to do anything which would disturb the core principle of judicial independence in the application of the law. However, this episode has shown that those responsible can be held to account when mistakes are made or improper behaviour occurs. No one is immune from the ultimate court of accountability to the public, who we all serve, in whatever capacity.

The calculations take a number of factors into account, including the current value of entitle ments, loss of earnings and the value of the pensions package contained in the Bill. When added, these calculations show that the financial losses to those concerned, because they took the honourable course and resigned, are substantial and cannot be ignored.

Senator Connor inquired about the value of the pensions to which the individuals concerned would be entitled. Based on accumulated service, Hugh O'Flaherty would have been entitled to a pension of £26,306 and a lump sum of £79,000 on 26 March 2003. Cyril Kelly would have been entitled to a pension of £17,000 and a lump sum of £51,200 on 7 June 2013 and Michael Quinlan would have been entitled to a pension of £11,500 and a lump sum of £34,700 on 10 January 2019. Under the terms of the Bill no lump sum can be paid.

Senator Connor also asked about the calculation of the proposed pensions. The Minister indicated what the preserved benefits would be and when they would be payable. In the absence of this legislation the persons concerned would have no entitlement to an immediate pension. This legislation is unique and designed to deal with a set of unprecedented, unfortunate circumstances. Accordingly, the normal rules for calculating pensions are not relevant. Added years, therefore, are not an issue.

The pensions decided upon by the Government take account of a number of factors including previous good service record, length of service, the fact that those concerned resigned and prevented the Oireachtas having to face an unprecedented set of decisions, the considerable loss of income which results from the resignations, the fact that no lump sum is being paid and the personal damage suffered to reputations.

Senator Maurice Hayes made a sensible and welcome point that it was a pity the debate did not focus more on the pensions aspect of the Bill rather than on the more speculative aspects of the Sheedy case. I endorse the view that we should have regard to the feelings of the families concerned and acknowledge the valuable service given by these people in the past. These are the considerations which the Government took into account when determining the level of pension payments.

Senator Ryan mentioned the need to lead public opinion on this issue and suggested that the Government is trying to dispose of this matter. I assure the Senator that the Bill does not seek to set these events aside. The Government is preparing a considered agenda of actions which will seek to ensure that similar events do not occur again. The Department of Justice, Equality and Law Reform's report tabled a range of recommendations which will be considered by the Government in the coming weeks.

Question put.

Bohan, Eddie.Bonner, Enda.Callanan, Peter.Cox, Margaret.Cregan, JohnDardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Gibbons, Jim.

Glynn, Camillus.Kett, Tony.Kiely, Daniel.Kiely, Rory.Lanigan, Mick.Leonard, Ann.Mooney, Paschal.Moylan, Pat.O'Brien, Francis.Ó Murchú, Labhrás.Ormonde, Ann.Ross, Shane.Walsh, Jim.

Níl

Burke, Paddy.Connor, John.Costello, Joe.Doyle, Joe.Hayes, Tom.

Manning, Maurice.O'Dowd, Fergus.O'Meara, Kathleen.Ridge, Thérèse.Ryan, Brendan.Taylor-Quinn, Madeleine.

Tellers: Tá, Senators T. Fitzgerald and Gibbons; Níl, Senators Burke and Ridge.
Question declared carried.

An Leas-Chathaoirleach

When is it proposed to take Committee Stage?

Next Tuesday.

Committee Stage ordered for Tuesday, 6 July 1999.
Barr