Brian Lenihan Jnr (Dublin West, Fianna Fail)

First, for the reasons outlined by all the Senators and accepted by Senator Norris, the effective operation of the judicial power in the State requires that absolute privilege should attach to the statements made by the Judiciary in court. Members of the Oireachtas enjoy such privilege and it is absolute in character. While Members also have a committee that regulates the abuse of that privilege, from a constitutional point of view it is clear that if Members enjoy this privilege for their effective operation, a co-ordinate branch of government, namely, the judicial power also should have that privilege. Moreover, apart from the question of equality, there are far more practical reasons that one must have such a privilege attaching to statements made in court, which have been outlined by Members in the course of their contributions.

Another reason becomes obvious when one considers the list of those to whom absolute privilege attaches. It attaches not only to statements made by judges or other persons performing a judicial function, but also to statements made by a party, a witness, a legal representative or a juror in the course of proceedings presided over by a judge or other person performing a judicial function. The reason for this is that in addition to being essential for the effective operation of the particular institution, the State has an interest in preventing further litigation about litigation. Were one not to have an absolute privilege attaching to court proceedings, one would have fresh actions stemming from disputes that were already resolved in the original action, in which points of fact were at issue. This would be a disastrous inconvenience for the State and constitutes the other reason for attaching absolute privilege in this regard.

However, the sentiment that motivated the tabling of this amendment concerned the issue of judicial conduct and misconduct. While this is an area in which Members must respect the independence of the courts, I can state that the Government is committed to a judicial council Bill that will provide for the regulation of judicial conduct. Of necessity, a great deal of such regulation must be self-regulation. However, there is a strong case for collective self-regulation in this area and this is in accordance with the Constitution. I am aware that Senator O'Donovan explored the outer limits of the constitutional provisions that we posses in this regard.