Bernard Durkan (Kildare North, Fine Gael) | Oireachtas source

Most of them are not here now. The Deputy's party was offered 50:50 participation in Government. Deputy McGuinness could be over here participating in that process right now if he chose to at that time. There is no sense abdicating one's responsibility, standing aloof and pretending they can afford to criticise yet not getting involved. Various other parties were offered a similar opportunity and they did not accept it. I commend the Fianna Fáil Party on at least having the guts to stand up and provide the country with some degree of stability at a time the country needed it.

10 o’clock

I have listened and watched developments in the House in recent years. The previous speaker, Deputy John McGuinness, made a great case in respect of the degree to which the Houses of the Oireachtas should influence and investigate the Judiciary and judicial system. I do not agree with him because the separation of powers of must be distinct, respected and honoured. Houses of parliament should not undertake the work of the courts, as the Houses of the Oireachtas have tended to do in recent times. For example, some of the recent investigations of the Committee of Public Accounts have been completely out of order. The committee does not have the power or authority to deem a person to be guilty. Its role is solely to investigate the financial affairs of the various Departments.

Arising from the Abbeylara judgment, the same committee is presumed to have acquired powers that allow it to investigate everybody's responsibilities and make conclusions that appear to deem guilt on the part of the persons being investigated. This presumption is wrong. The reverse is the case because the inquiry into the Abbeylara case was stood down and a subsequent referendum to give extra powers to a committee of investigation of the Houses was lost.

I agree that the Government has a function in appointing judges to the Bench or making recommendations to the President, as provided for in the Bill. I do not agree, however, that the judicial system will be undermined by the establishment of the judicial appointments commission. The Judicial Appointments Advisory Board is already in place and its functions will be changed to some degree under the proposal in the Bill. I do not agree with Deputy Jim O'Callaghan that the changes undermine the whole judicial system. While I respect the Deputy's eminence in the legal profession, I believe his conclusion is wrong. I respect his views on the matter but there is a tendency to allow political shadows to overcome his thinking on the matter.

We must learn to respect each other. Members have a tendency to use a sensational method of making accusations against persons in the House or outside the House in such a personal way as to make it objectionable. The courts have dealt with some of these matters and, thus far, they have found in favour of privilege, which should and must be defended. However, we are fast approaching a time when the courts will find otherwise. They will find that the Houses of the Oireachtas, in one shape or form, have overstepped their authority and the rules of privilege and damaged the reputation of a person outside the House who has no recourse to reparation in any shape or form. Once mud is thrown, it sticks and the damage can never be undone.

Incidentally, I will paraphrase two recent judgments in which the courts ruled that the Houses of the Oireachtas had their own provision to deal with such circumstances. My interpretation of these judgments is that the Houses of the Oireachtas, through the Ceann Comhairle, Leas-Cheann Comhairle and those of us who sit temporarily in the Chair, have a responsibility to protect the reputation of people outside the House, while also allowing issues to be raised. However, they must do so without allowing the identification and personal vilification of someone who has no possibility of responding. The only place one can do this is in court, where one can say anything one likes. That is the job of the courts.

The Houses of the Oireachtas have tended to move into that area in recent times and we will pay a price for doing so. The individual Member will not have to pay fines or make restitution but the taxpayer will have to do so when the Houses of the Oireachtas are found to have been in breach of the laws of privilege and of failing to protect the reputation of persons outside the House. I will give an example. I was a member of the Committee of Public Accounts for such a long time that I decided to move elsewhere. The DIRT inquiry, which was a successful investigation, never once moved into the area where the courts might have overtaken us, although we were threatened several times. Members were not allowed to question politicians who appeared before the inquiry, including former taoisigh and Ministers for Finance. The reason was to ensure the hearing was not politicised because it is in the nature of politicians to seek advantage for political purposes when the opportunity arises. Members respected the ruling that we could not question the former Ministers or taoisigh. While the DIRT inquiry was controversial, from memory, I believe it netted £1.5 billion for the taxpayer at a time when billions were a scarce commodity.

The use of the Dáil or an Oireachtas committee for political purposes must be carefully watched, with particular reference to the finance committee and Committee of Public Accounts. The latter has been operating outside its jurisdiction and acting ultra vireson many occasions recently. We cannot treat the House as a court or treat each other as potential criminals. The disrespect we show for each other in this House is replicated outside. People come to the conclusion that we are all the same and do not have anything to offer and, as a result, they believe they can treat politicians, members of the Judiciary, gardaí, teachers, hospital medics and others similarly. Disrespect for authority is growing daily, as members of the professions to which I referred will immediately tell us.

During the debate on the Bill yesterday evening, I listened with interest to references to class distinction. For example, the King's Inns were described as a class-ridden entity which only the privileged can attend. That is entirely untrue. Many men and women throughout this country have sons and daughters who entered the King's Inns and did very well there and afterwards. It is grossly unfair to label institutions in that fashion for no other reason than political gain and advantage. I do not mind telling Deputies that in the House because I have told them the same thing privately. We tend to allow ourselves the luxury, privilege and entertainment of going down that path but the Houses of the Oireachtas are not the place for that. We can have that discussion in a debate in an outside forum but not in the Houses of Parliament. We are extending our realm into an area over which we have no authority. We seem to take upon ourselves with alacrity the right to condemn somebody outside the House without knowing anything about the subject matter.

People will have different views as to whether the proposed Bill is a good or bad thing and whether the Judiciary will have a sufficient number of members on the judicial appointments commission to be able to assess the suitability of candidates for the various positions that arise. Deputy McGuinness referred to the repossession courts, as they are known. I and other Deputies have visited the courts numerous times in recent years and I have witnessed heart-rending cases. Generally speaking, the judges have been very fair and given the benefit of the doubt in almost every case. We should respect and acknowledge that. In particular, I compliment the judges in the higher courts, specifically the High Court, where they have been the epitome of courtesy and have encouraged and given every possible opportunity to the individuals in question to make whatever proposal they wish.

They go out of their way to ensure that the lay litigant is not left isolated and has some reasonable knowledge of the process that is unfolding. I compliment them on it. There have been similar experiences at District Court and Circuit Court levels.

There will always be exceptions to the rule. We all know that. There are exceptions to every rule, including the rule in this House. Some Deputies are seriously dedicated and do the job that they were given to do day after day, week after week and year after year. They have a vocation, but vocations are fast disappearing from every facet of Irish society. Careers have replaced vocations. We need to take stock of that from time to time and review what we need to do, the kind of people we need to attract, what they need to concentrate on and what is their mission.

Some time ago, I read about the famous American hanging judge, Isaac Clark, although I am not certain about that name at all. He tried 13,000 cases and gave 187 people the death penalty, half of whom were executed. I am not suggesting that we should do that in Ireland, by the way. In his memoirs, he referred to the legal battle that took place in the courts between representatives and several times mentioned cases that he had lost but should not have. However, he suggested that, because he was beaten by his opposite number - his legal opponent - it was really just setting the scales right for previous events. His point was that perhaps it was not such a great idea to have the same legal opponents facing one another on too regular a basis. They got to know one another's strengths and weaknesses with the client perhaps being the loser in the end. Enough about that famous man. He was appointed by George Washington, who had to remove him later. Not that that is of any consequence in Ireland. I read about him many, many years ago.

I will revert to the independence of the Judiciary and the courts. The Government has the right to appoint people. The commission will nominate suitable people from here on. This was heralded and agreed in the programme for Government. I do not doubt that there will be differences over how the proposal can be improved, if it can be, but it is a form of independence.

I wish to dwell on the issue of independence for a moment, if I might. There is an ever-increasing urge to get an independent view about everything. That is difficult to get on any subject in any country, but particularly so in a small country. The Leas-Cheann Comhairle has been here for as long as me. If people assume that, in the course of the formation of the commission, they will be able to scout the country and find apolitical persons, all I can do is wish them luck, because there are no such persons. I have not encountered them yet. It would be a boring place if there were people like that and if we were not in a position to have a toing and froing in politics that did not interfere in the judicial process.

The proposal before the House is a reasonable one. Members of the legal profession who have concerns about it should make those concerns known because they can be accommodated. The House cannot direct what the Judiciary does, nor should we. Neither should the Judiciary feel intimidated by the Houses of the Oireachtas. We have to act independently, respect each other and respect each other's existence. We must try to ensure that the legislation that we pass is of a quality that is effective, sufficient, efficient and capable of meeting the requirements of a modern society. We need to keep that in mind now in particular.

I do not want to get into the issue of bail laws, which I have referred to often, and I will not be critical of anyone, but if we believe that the bail laws that the country has had to date, which are thankfully now being amended, can continue when we want to make a reasonable impact in terms of curtailing crime, we are codding ourselves. We can make whatever excuses about that that we like, but it is our job to change the legislation to enable judges and courts to deal with the situation as presented to them.

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