Dara Calleary (Mayo, Fianna Fail)

I welcome the chance to speak on the Bill. We will support the Bill and the subsequent referendum. I thank the Minister and his officials who made themselves available over the summer to brief us on it and the Library and Research Service which produced a good document concerning the Bill.

While we support it, I genuinely have a number of concerns about the process on which we are embarking this evening. We are talking about a referendum to amend Bunreacht na hÉireann, not the standing orders of Ballymagash town council. The fact that the proposal is simple does not and should not hide the fact that this House will debate all Stages of a Bill concerning a referendum by 10 p.m. this evening with a break for an hour and a half for Private Members' business.

The fact that the referendum itself - this applies to the second referendum on the day - is only a door-opener, in that if it is successful further legislation will follow, is also of concern to me. All we have in respect of the further legislation is a draft scheme, which in fairness goes into some detail. However, there is nothing to stop any Government - I do not just refer to the make-up of the Government - with a majority such as this one has from producing completely different legislation after the confidence of the people has been won in a referendum. Bunreacht na hÉireann deserves much more. If we as an Oireachtas do not show full respect for the Constitution, it is difficult for us to ask the citizenry to do so.

I wish to focus on a number of areas in the course of the debate. I apologise in advance to the Minister as I have a long-standing commitment at 7 p.m. but I hope to be back in the Chamber around 8 p.m. It is important to point out, as the Minister has done, that 126 out of 147 serving members of the Judiciary took voluntary reductions in 2010 in line with the reductions caused by pension-related deductions in the pay of the general public and Civil Service. While the actual savings from the referendum would be small, it is important to acknowledge that the majority of the Judiciary made that sacrifice but I agree with the Minister's point on the need to see the Judiciary taking the cuts meted out to others.

We should focus on the thinking behind Article 35 of Bunreacht na hÉireann which underpins judicial independence in this country. It is easy in 2011 to dismiss the notion of judicial independence as being something that is not important. Since the foundation of the State the Judiciary has shown considerable independence and strength of thought. However, when we take something for granted we diminish its status. Judicial independence is a hallmark of a strong and functioning democracy and we should never take it for granted. We can never predict the future make-up of a Government or an Oireachtas. To date, there have been many situations where the Judiciary has challenged Government or Oireachtas decisions. The accompanying referendum on 27 October is a direct result of a difference of opinion between the Judiciary and the Oireachtas. It has been the case that the Oireachtas takes judicial decisions on board and makes whatever changes are necessary. However, in future the Oireachtas may not respond in such a way. It may choose to ignore the Judiciary or it may respond in a negative manner. I wish the Minister, not just as Minister but also a practitioner of the law, to provide an absolute guarantee that a future interpretation of the change to Article 35.5 which underpins judicial independence could not be applied to the broader provisions.

There is ambiguity concerning the wording proposed. I note the wording proposed by the Minister differs from that which he proposed during Private Members' business in 2010. I wonder why there is a difference in the wording. Could the Minister give an absolute guarantee, both as a Minister and a practitioner of the law, that he envisages nothing in the change to the Constitution that could potentially undermine the independence of the Judiciary?

Did the Minister give any consideration to establishing an independent body on judicial pay that would in line with the way he is proceeding convene at a time when other reductions are being made to bring an independent input into the management of judicial pay? The raison d'être of such a body would be to remove any question of decisions on judicial pay ever being influenced by aggrieved politicians or aggrieved Members of a future Oireachtas. If the Minister did consider such an approach, why did he decide not to proceed with it?

Given that we have such an amalgam of elections on 27 October - a presidential election, a by-election and another referendum - it is probable that the level of public discussion on the referendum in question will be relatively low in comparison to the other votes on the day. We should not mistake this probability for a lack of interest or respect on the part of the public in judicial independence. It is important to proceed with the referendum to protect the integrity of the Judiciary's standing, as the Minister noted. With regard to this I pay tribute to the late Mr. Justice Vivian Lavan and the late District Justice Con Murphy, both of whom were exemplary members of the Judiciary and who passed away during the past month. Mr. Justice Lavan, in particular, leaves the amazing monument of the free legal aid system and all that goes with it.

To maintain such integrity we must proceed with this referendum, endorse it and support it. However, in supporting it I hope the Minister can give us cast-iron guarantees that this Oireachtas is not undermining, in any indirect or unforeseen fashion, the notion of judicial independence in the country.

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