Mary Hanafin (Dún Laoghaire, Fianna Fail)

I thank the Senators for their welcome contributions and for their non-opposition, as it was phrased in the Dáil, to the passing of the legislation. Two important issues have been raised. One deals specifically with the process in respect of the specific case and the other deals with the legislation. The Constitution gives power to the Oireachtas for the removal of a judge. Equally, the Constitution does not set out the process by which we would have to do that. That is a matter for the Houses of the Oireachtas. As Senators have said it is the source of much consultation between Senators. It is also before the Committee on Procedure and Privileges of both Houses in order to put in place procedures which will ensure fair process. These matters are being considered from the point of view of Standing Orders and from the process to be put in place by way of committee investigation and so on. The points raised about that process are valid but they perhaps belong in that forum rather than just here in the House today when specific legislation is being considered. Even though the legislation before the Houses today is very important to enable us to do our duty and fulfil our obligations under Article 35.4 of the Constitution, it is a general Bill which has general application.

Senators asked why we are rushing the legislation. As I stated, a particular issue has given rise to public disquiet and concern. The Houses of the Oireachtas have been forced to address it and this is one of the Bills which will allow us to do so in an appropriate manner.

The question as to whether the legislation is necessary is a valid one on which there are different legal views. The legislation brings certainty and clarity to the situation. The compellability legislation refers to a judge in his capacity as a judge. Would activities of a judge outside of his role in the court, perhaps in passing judgment, be covered by the Act? The answer is that in the context of our constitutional role or any process one would use to come to a conclusion under Article 35.4, the end result would certainly affect the judge in his capacity as a judge. It is for this reason that it is probably better to bring clarity and certainty to the whole process.

Whereas the Oireachtas will deal with the procedures in the committee, it is important to specify that the judge who is the subject of the process of removal from office is the only person who will be compelled under the legislation. The legislation will not, therefore, be widely applicable to all other judges and does not, therefore, affect or interfere in any way with the independence of judges, an issue raised by Senator Jim Walsh. It also provides for a power which the committee may use, rather than must use.

To return to Senator Brian Hayes's point, if a judge were to voluntarily come before a committee in a particular case, the power would not have to be used. It is an enabling power for the committee and may never need to be used. It enables us to put in place the necessary framework and structure before starting to invoke our powers, as it were, under Article 35.4.

The issue of judicial conduct, which Senators raised, is being addressed in judicial conduct and ethics legislation which is under preparation and due to come before the Houses before the end of this year. Senators will recall that an effort was also made to deal with this issue in a constitutional framework in 2001. Unfortunately, however, all-party co-operation was not possible at the time and it was decided not to proceed. Again, the matter could in future be examined in the cold light of day to determine how we proceed.

Senator O'Toole asked a question about evidence that could be self-incriminating. Section 12 of the Act of 1997 provides for the non-admissibility in criminal proceedings of evidence given under direction. This appears to imply that evidence or information given by a judge, having been compelled to appear before the House, could not be used subsequently in criminal proceedings. The judge in this specific case is autre fois acquit, the criminal law principle which means he cannot be put in jeopardy in a criminal case a second time for the same offence.

As regards the question regarding privilege, the privilege attaching to a person who has been compelled is the same as that of a High Court witness. In these circumstances, therefore, the person has a further protection.

Senator Brian Hayes raised a question about a person who agrees to co-operate with the Houses of the Oireachtas. In the event that the Houses put in place a process, it would involve a committee specially established to receive, record and report. If that was the case, one might need the power to compel somebody to appear before the group in question, rather than the full membership of the Houses. As I stated, procedures and so forth for compellability are being dealt with by other groups in and of the Houses.

The matter of compelling a judge is obviously a sensitive one, which is the reason we sought to be highly restrictive in the legislation. We recognise the independence of the Judiciary and, naturally, the separation of powers as set out in the Constitution forces us to do so. Equally, however, we must ensure that in using our powers under the Constitution we put in place a framework which ensures due process. We aim to do precisely what Senators have asked, namely, to establish a framework before starting on a process. This is the reason two Bills have come before the Houses today and I admit it has been done quickly.

I thank Senators and the parties generally for their co-operation on this matter as it allows us to put a distance between a specific process and having a framework in place to carry it out. As has been stated many times, these are completely uncharted waters, which is the reason the co-operation of all parties and the workings and contributions to the various processes being established is so valuable.

This legislation is narrow in focus and applies only to a judge who is the subject of a process of removal from office. It provides that he or she may be compelled to appear before a committee which is investigating that very process. It is an important part of the framework which will give clarity and certainty to the issue. For this reason, I commend the Bill to the House.