Brian Hayes (Fine Gael)

I welcome the Minister of the State. I believe this is the first time the Minister has come before us, as a new Seanad, although I may be incorrect about that. She comes from an illustrious family in terms of its contribution to this House, not least her brother and her father. I welcome her to the House as Government Chief Whip.

I am convinced about the Government's sincerity in the way it is dealing with this issue, particularly the way it has involved all voices in this House at leadership level in terms of the groups we represent, and in the way it has dealt with the matter in the other House. In putting my views forward on this proposed legislation, I want to make it clear that I am in no way undermining the Government's strategy on this matter or its handling of the matter.

This is new ground and while our duties are clear under Article 35.4 of the Constitution, I want to make it clear that there is no legal or procedural framework we can follow in terms of seeking precedent in former cases. Because there is no precedent in this matter it is important that we take our time and tease out this matter, and that there is maximum consultation over a period of time.

I put this question to the Minister of State. Some members of this House attended a meeting with the Attorney General last Thursday, and we also attended a meeting with the Minister for Justice, Equality and Law Reform and the Minister of State yesterday, and during both meetings we were not given an assurance that legislation would be needed in advance of this process beginning. That is an indication of the fluidity in the situation and the fact that many new issues can arise. We appear to be determined to follow a course of action whereby at some point next week, on Tuesday or Wednesday, a motion will be put to this House or the other House. I ask the people involved, even at this late stage, to examine this matter seriously and tease it out with all Members in the House to ensure we get it right. We do not want a repeat of other examples where the Houses of the Oireachtas got it badly wrong when some of these matters went before the courts.

On a second issue, and I will put this view as neatly as I can, are we not putting the cart before the horse in respect of this legislation? The controversy that arose in recent weeks concerning a member of the Judiciary is well known but that member of the Judiciary has told the Government he believes he has a right, which he has, to address the Oireachtas and not the Government per se. That is explicitly the case under Article 35.4. Why should we change that legislation in advance of that committee being established and its work advancing? Would an issue of compellability arise given that the person in question has already publicly stated that he wants to meet the Oireachtas to deal with these matters, as is his right? Why is there a need for compellability? Why is there a need for compellability regarding this matter if the Oireachtas is determined that a committee be established to look into it and if the person in question then deals directly with that committee? If a difficulty arose at that stage, for instance, would it not be wiser for the committee to decide that legislation was necessary in this area in terms of compellability rather than the Oireachtas doing it first? I simply pose that question and ask the Minister to reply.

The Minister is well aware that the issue of judicial conduct came to the fore some years ago in regard to the Sheedy affair. A clear commitment was given by the former Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, to bring forward legislation in this area. To his credit, he published a Bill but despite the fact that it is in the Government's programme and identified as an area of priority, it has not yet been enacted in the House. The House has no framework, therefore, upon which the issue of Article 35.4 can be determined. We are rushing through this legislation in that we are taking only one day to deal with what is a fundamental constitutional duty. Would it not have been more sensible to have the legislation in place, tease it out over a period and then deal with the other matter as needs be? All our actions today and in recent days appear to be predicated on the notion that early next week a motion on this matter has to come before this House and the other House. There is no reason that has to be the case and the matter should be clarified.

Why is the power to compel required in this instance? I have already stated, and it is public knowledge, that in regard to the matter we are discussing it is clear the member of the Judiciary concerned wants to deal directly with the Oireachtas, as is his right. Why are we forcing, through compellability legislation, a situation where it is already sated policy on the part of the person concerned that he will deal directly with the Oireachtas? If the Oireachtas establishes this procedure, one would presume the person would, in all fairness do that.

Another question concerns the power of compellability of a person to attend and the rule against self-incrimination, which I am aware was raised by my colleagues in the other House this morning. When it comes to this important issue, if evidence is given at a committee predicated on Article 35.4, can it then be used to support any contention of misbehaviour which may be in the motion before the House next week? This is a fundamental rule of natural justice. If a person gives information freely to a committee of the Oireachtas, can the information be used to come to a determination by the committee or by the House at some later point? Similar rules apply to tribunals. Evidence given to a tribunal, for example, cannot directly deal with a criminal case. Such evidence must be gathered separately.

If a person is compelled to attend there is no certainty that he or she must answer questions or provide evidence. The stated position of the person in question is that he will deal directly with the Oireachtas in a manner the Oireachtas sees fit. Why, then, is compellability necessary? How does the power of compellability sit with the right to silence, which is a fundamental aspect of our law? Can the Oireachtas, or a committee of the Oireachtas, come to a determination as to whether or not that right can be quashed? Does compellability confer privilege and is that privilege absolute or qualified?

I appreciate the difficulty in which we find ourselves. All contributions in the House have approached the subject with the single objective of making sure the procedures and process are fair and that the dignity of the House and its constitutional obligations under Article 35.4 are inherently fair and are seen to be so by all citizens.

Members have an obligation to put questions to the Government regarding its strategy. I thank the Minister of State for her attendance and for considering this matter.