Derek McDowell (Labour)

I welcome the Aire Stáit to the House. I will start where Senator O'Toole finished, on the subject of the whole business of making it up as one goes along. We all acknowledge that there is of necessity a certain ad hoc air about this. It strikes me we are just looking around the next corner rather than trying to look around a few corners at a time. In essence, we are doing today what we have been doing for most of the last week which is considering how the committee can be established, how the process can be properly initiated and the procedures the committee might undertake.That must be done and the Opposition has co-operated with Government in looking to put those procedures in place. If thought has been given to what happens once the committee reports, then we have not been involved in negotiations or discussions about that. I have not the remotest idea how the Houses of the Oireachtas will process the report once it comes before us.

We should now be looking to give a week or two weeks thought to that. What format will the debate take? Will Members be entitled to literally say anything they wish to say? If a Member gives the impression that he or she has come to a conclusion or came to a conclusion two months ago following the collapse of the criminal trial, is that open in any fashion to judicial review? Is anything which a Member says indicating the basis of his or her decision open to review or does it matter? It may very well be that it does not matter. It may well be that the Constitution gives that power to Members of the Oireachtas and they can make up their minds irrespective of how irresponsibly they choose to do it or based on whatever evidence they choose to take into account. The truth is that we do not know. We need to have a firm view even at this stage or before we initiate the process, be it next Tuesday or whenever, as to how the whole process will pan out and not just how the committee will pan out. I regret that we have not thought sufficiently far ahead and we should take a week or two to do so now.

Like Senators O'Toole and Brian Hayes who spoke before me, I am not sure what is meant by an impeachment process. Is this akin to a criminal trial where the judge is being cast in the role of defendant and the Houses of the Oireachtas are cast in the role of judge, with all the rights and requirements of process that entails? Is it perhaps an investigation where various Members of the Houses can be taken away and put into a committee room for however long it takes to assemble facts and then Members of both Houses make up their minds based on those facts or any other facts, at a later stage?

It seems to me the Government is taking the second view. I am not a constitutional lawyer but on balance, that is probably right. There is no doubt that it would be safer to take the former view. It would be safer to take the view that the judge is the defendant or potentially the defendant and the Members of the Houses are the judge and jury and to accord the judge all the various rights that go with that state. Implicit in that would be the right not to incriminate himself; the right not to give evidence against himself or to produce documents that would incriminate himself; the right to silence; and the right not to attend, which is important in the context of today's Bill, if we choose to treat him as being defendant or akin to a defendant in a criminal trial. I appreciate it is not a criminal trial.

We are taking the opposite view that the judge is part of an investigation. That implies we are saying to a judge in those circumstances that he or she is obliged to satisfy or be party to satisfying the Oireachtas, that he or she is suitable for the job. We are placing a certain onus on the judge by putting a resolution before the Houses to state, "Yes, I am a suitable person and no, I am not guilty of stated misbehaviour or I am not incapable."

If one thinks in terms of a job interview or assessment or membership of a club, to what extent are we entitled to reverse that onus? To what extent must we say to the judge that we do not think him capable or, more to the point, think he is guilty of stated misbehaviour and then prove that before the judge, in turn, responds? To what extent can we ask the judge to bring along all the documents he has that might be relevant to this case and satisfy us as to his position? I do not know the answer to that question but it is important that we have some advice and concept in our minds as to exactly where it stands before we begin the process.

My opinion is not worth a great deal but if the Oireachtas initiates the process properly and if it is based on some class of evidence, then there is or should be an onus on the judge to satisfy the Oireachtas that he has not been guilty of stated misbehaviour if that misbehaviour is stated by way of resolution or otherwise. I would like an explicit response from the Minister of State as to whether she thinks that is the case.

I am somewhat although not overly concerned about the retrospective element. We are setting in place a process of investigation of activities which may or may not have happened before the process itself is in place. That would cause difficulty were we talking about a criminal trial. If one extends the logic of what we were discussing earlier that it is not a criminal trial, then it is not a problem. This requires clarity of thought and I am not conscious we have that clarity of thought. I am anxious to hear the Minister of State's thoughts and the Government's view as to whether there is any difficulty in making this applicable retrospectively as opposed to just prospectively.

It is a pity this is being done so quickly. I would have liked the opportunity over the weekend or over the next week or so to take advice. There are many people in the Law Library, as the Minister of State well knows, who have views on these issues and we all have access to some of them. It is a pity we do not have the opportunity to use some of that advice and to gather together the collective wisdom of our colleagues in the legal profession. The process is moving quickly and there is nothing this House can do at this stage.

My party did not oppose this Bill in the Lower House and we will not do so here.