Joe O'Toole (Independent)

Cuirim fáilte roimh an Aire Stáit chun Tigh Uachtaraí an Oireachtais. This is the first occasion the Minister of State has attended this House. The Government and all concerned are in a difficult situation. The position regarding our relationship with the Constitution in terms of whether we are its guardians or defenders is not clear. I am certain, however, that we have obligations under it to ensure that rights conferred on citizens are observed and available at all stages.

I have no difficulty with the legislation before us although I believe it raises difficulties. In that regard, I concur with Senator Brian Hayes's earlier remarks. While I question this process, I have no doubt about the motives of the Government, the Attorney General and the Minister for Justice, Equality and Law Reform. I wish to put on the record that I do not wish in any way to impugn their motives because I believe they are acting from the highest and most admirable standpoints on this issue.

So strong are my feelings in terms of ensuring due process, fair procedures and the outermost limits of probity in dealing with this issue that I would personally take the House to the Supreme Court if I believed it was doing something wrong. I would not be waiting for representatives of those we might be considering to impeach to do it. I hope also that everybody else feels the same. I have many reasons for my point of view. It is in the interests of lawyers representing a person due to be impeached to allow us to make a mess of the process in order for them to undermine it afterwards. Everybody is coming from the belief that we will be taken to the Supreme Court if we get this wrong. That will no doubt happen. The best thing people, who believe they can catch us on a fundamental point of process which in some way infringes or delimits a citizen's rights, can do is let us make a mess of the process and later have it turned on its head. The public will not forgive us if we get this wrong. I am not speaking of obtaining a result. We must enter this process with an open mind and we will do so. However, if a procedural difficulty arises, we will not be forgiven.

Many issues arise in terms of this legislation. Members of the Houses of the Oireachtas are empowered by the Constitution to carry through the process of impeachment. In doing so, we will begin with a process of assembling a committee which will have the power to collect evidence. That is the mildest power I can attribute to the committee although I have heard others refer to it as an investigative one. The Bar Council, the Law Library and the Medical Council, in terms of how they do their business, always ensure a separation of the investigation phase and those involved in it from the deliberative phase to the judicial phase. In that regard, a question will quickly arise as to what will be the position of people sitting on a committee which we might establish following enactment of this legislation in a process of impeachment which may follow. A question will also arise in terms of the collection of evidence. Such a committee could not form a judgment on the core issue but would be required to form a judgment on what was appropriate evidence to bring before the Houses of the Oireachtas and in doing so would have reached a conclusion about certain aspects of evidence that were not appropriate or relevant. Nonetheless, it could be argued that having seen such evidence, they are different from the rest of us and should be excluded.

Another issue that could arise is people speaking out of turn on the core issue in the media or other places. It is clear that such people could be seen to be prejudiced. If that happens, who will pronounce them as being prejudiced? Who will deal with the matter of a person speaking out of turn and clearly giving to the media a biased view, thereby tainting or making unsafe any conclusions of the Houses? To that extent, any process going through either House needs to be managed by way of building into that process a management structure, be that a person or a sub-committee.

There has been little debate on the sub-committee on compellability, a sub-committee of the joint CPPs, which gives permission to allow compellability of a particular person. Members of the sub-committee are also members of the CPP which forms judgments based on evidence presented by members of the new sub-committee. Such a committee must form a judgment that it was appropriate to compel a person on a particular basis. That is its function. I would like a similar protection in the process to follow.

Senator Brian Hayes referred to evidence compelled and where we stand in that regard. The Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 includes a clear statement regarding evidence adduced through compellability and states that such evidence cannot be used afterwards in a criminal trial. I know the simple answer is that impeachment, if it were to take place, is not a criminal proceeding, but neither is it a civil proceeding. Impeachment does not come under the category of criminal or civil proceedings. If such proceedings are not criminal, one could adduce that the burden of proof would be the balance of probability. How does that affect evidence collected? Given that the committee can compel a person to attend the proceedings, can it compel a person to give evidence which could be later used against him or her? A constitutional issues arises in that regard. I am only relating that point to a particular section of the Bill and do not suggest the two issues are the same. However, it is a matter we must consider.

The right to natural justice would clearly give the person the right to engage with the process and to question it. In normal circumstances, people examine evidence, offer rebuttals and present argumentation. There is no doubt in my mind — I am sure this is true of others, including the Minister of State who I know has views on this issue — that we would have to establish a process to allow that engagement. Such engagement may not sit easily with compellability. There is a difference between offering a person the facility to engage and compelling that person to give evidence which could be later used against him or her. I am not saying I know where that might lead us but, nevertheless, an issue arises in that regard.

If we are to get to the process of dealing with an impeachment arising out of this legislation, we will have to manage the engagement of the person who it might be contemplated to impeach and consider how that person will engage with the process. That issue must be managed. I do not know with whom that responsibility would rest. Would it be the Leader of the House, a person nominated by the House or a sub-committee of the House? How would it be done? Each House of the Oireachtas has rules of engagement in terms of what is parliamentary. Will the rules of parliamentary procedure apply to the process of impeachment? Given its powers, one would assume such rules will apply. However, is that a fair assumption given we are dealing with a person's constitutional rights? Can the hearing be moderated on that basis? We know that court rules need not apply but is that vacuum easily filled by the parliamentary procedures or is there some other way? I raised the question of the burden of proof. Do we give advice to people as to how they should deal with these issues? These are some of the questions that have troubled me. I do not have a problem with the legislation although I do not think it is necessary. What bothers me is how quickly this is coming before the House, not in the sense of whether the House can cope with it because it is easy enough to read and understand this Bill and come to a position on it. We had a very open and honest meeting with the Attorney General last week and with the Minister of State and the Minister for Justice, Equality and Law Reform yesterday. The other legislation which was dealt with in the House this morning was not even mentioned at those meetings. It had not come through as an important issue at that time because I am assuming the Minister of State would have informed us if it had been. I am bothered by that rolling approach. It seems to be a case of making it up as we go along.

There is a difference between not having a process and making it up as one goes along. I know we must make it up but I would like to make it up before we start. That is the point made by Senator Brian Hayes. I want to be clear in my mind about the way it will go, the timeline and the sequence of events and then press the button and agree to go. In this case we are rushing into it and saying that it must be right for tomorrow and these three pieces of legislation must be put through. I am worried about that approach. As the makers of law, we in the Legislature have a clear duty to ensure that the rights we want our citizens to have are protected in all cases, even in the case of somebody being impeached. That is our duty as much as it is to go through the impeachment procedure. They are equal and they must be balanced. There must be open-minded, fair procedures and we must then do our duty. I will support the Bill.