Mary Hanafin (Dún Laoghaire, Fianna Fail)

As Members will be aware, this House will be asked shortly to initiate a process to deal with a matter of the highest national importance. I refer to the solemn responsibility placed by the Constitution on Dáil Éireann and Seanad Éireann on the possibility of the removal of a judge from office in accordance with Article 35.4 of the Constitution. It is proposed that motions to initiate that process will be brought forward next week. In the meantime the Government, acting on its legal advice, has introduced this Bill to facilitate whatever procedures the Houses decide to put in place to enable it to discharge that responsibility.

This Bill provides a power that will be available on any future occasion that the Houses of the Oireachtas may be called upon to contemplate the removal of a judge. I hope there will not be many such occasions. Under the provisions of the Bill, a judge may be compelled to appear before and provide evidence to any committee of the Houses of the Oireachtas that may be set up in connection with the exercise by the Houses of the power provided in Article 35.4 of the Constitution. Mindful of the importance of preserving the independence of the Judiciary, the power to compel a judge proposed by the Bill is framed very narrowly and specifically.

It relates only to circumstances where the removal of a judge pursuant to Article 35.4 of the Constitution is being contemplated and only to a judge who is the subject of such a process. It is inconceivable that the Houses of the Oireachtas should embark on such a solemn process without having the capacity to require the judge to assist them in that process. In all other circumstances, the exemption from compellability for judges in their capacity as judges will remain. I stress that the independence of judges in the exercise of their judicial functions is in no way compromised by this measure.

On the detail of the specific provisions of the Bill, it is proposed to amend the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 by inserting a new section 3A after section 3 of that Act. Paragraph (a) of the new section 3A provides that section 3 of the 1997 Act shall, notwithstanding section 3(4) and (11) of the 1997 Act, apply to a judge where a committee is established for the purpose of a matter arising under Article 35.4 of the Constitution, section 39 of the Courts of Justice Act 1924 or section 20 of the Courts of Justice (District Court) Act 1946.

Paragraph (b) of the new section 3A clarifies that a "committee" as defined in the 1997 Act, which is established in connection with the behaviour or capacity of a judge, means a committee established before or after the enactment of the Bill. The paragraph also clarifies that such a committee may deal with the behaviour or capacity of a judge whether the behaviour or capacity in question occurred or occurs before or after the enactment of this Bill.

When enacted, the Bill will mean that a committee, established to consider the possible removal from office of a judge, will have the power to direct a judge to attend before it, give evidence and produce any document in his or her possession or power as directed by the committee. I stress that it is just an enabling power. It is a matter for decision by any such committee whether it wishes to invoke the power, following the procedures laid down in the 1997 Act, which require, among other matters, the prior consent of the appropriate sub-committee.

Senators will also be aware that the "appropriate subcommittee" referred to in section 3A is defined in the 1997 Act. Where a committee appointed by either House of the Oireachtas or a sub-committee of such a committee is seeking powers of compellability, the necessary consent is given by a sub-committee of the Committee on Procedure and Privileges of that House. Where the committee in question is appointed jointly by both Houses of the Oireachtas, the consent must be given by a sub-committee appointed jointly by the Committee on Procedure and Privileges of each House. Under the existing legislation, a committee already has these powers in respect of other potential witnesses. The issue of compellability is only one component, but an essential one, of a framework in which a committee of the Oireachtas can effectively carry out its functions in regard to a process of this kind.

I commend this Bill as an essential component in a framework under which the Oireachtas can, when necessary, effectively discharge its duty on foot of Article 35.4 of the Constitution, by providing it with the power to call all witnesses who have pertinent information and also to obtain all relevant documentation and material.