Derek McDowell (Labour)
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Arising from the Minister of State's concluding comments on Second Stage, will she take me through the self-incrimination argument again? It is accepted, and is obviously a matter of law under the 1997 Act, that anything said during the course of the process cannot be used in the courts to sustain a criminal trial or anything of that kind. Surely, however, self-incrimination also applies to the integrity of this process in that we are obliging a judge to appear before the committee and incriminate himself by providing evidence against himself within what is, if not a trial process, then certainly one in which a decision will be made that will impact seriously on him. I ask the Minister of State to deal with that point.

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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Section 12 of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 states:

A statement or admission made by a person before a committee, or a document given or sent by a person to a committee pursuant to a direction of the committee to the person or specified in an affidavit of documents made by a person and given to a committee by the person pursuant to a direction of the committee to the person, shall not be admissible as evidence against the person in any criminal proceedings (other than proceedings in relation to an offence under section 3 (8) or the offence of perjury) and section 11 shall be construed and have effect accordingly.

That is quite specific.

Derek McDowell (Labour)
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I accept that is the case but I am concerned that we are asking, within the integrity of the process we are discussing, namely, the investigation followed by hearings, if any, of the House, the individual — the judge — to incriminate himself in a way that will obviously inform the decision ultimately taken by the Houses. Let us try not to discuss a specific case and remain theoretical. We are directing a judge to produce documents which could clearly be used to inform the decision of the Oireachtas to remove him. That is my concern.

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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It will be the nature of the process that the committee will be able to guard as much information as possible. Crucial to that will be the need to have a fair procedure and provide for due process to enable the person who is the subject of the investigation to come before it to give evidence which could be used in the person's favour. One must not assume that anything the person would say would automatically be used against him.

Derek McDowell (Labour)
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We are not allowing him to produce evidence in his favour but compelling him to produce evidence which can be used against him.

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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No, we are giving the committee power to compel, which it may not even have to use if, as Deputy Brian Hayes stated, the person appears before it voluntarily.

Joe O'Toole (Independent)
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I raised a question to which there is clearly no answer. We must have integrity in our process. The analogy Senator McDowell and I have used is that of court proceedings. I referred to the relevant section of the Bill, which I read carefully last night, because it only refers to criminal proceedings. Can this process be challenged? It is a completely different scenario where a committee invites somebody and he or she appears. If compellability is triggered and individuals incriminate themselves under direction, is the use of the evidence within the House hearing challengeable? I do not know the answer but it is one of the issues about which I am concerned.

Jim Walsh (Fianna Fail)
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The Senator has raised an interesting issue. Is it correct to use the word "incriminate" as it would apply in a court given that the committee will only gather evidence and establish facts to present to the House?

Joe O'Toole (Independent)
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The three Rs.

Jim Walsh (Fianna Fail)
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This is a distinction between that process on the one hand and the court on the other where a prosecution would follow. Evidence will be gathered through this process and it is open to anybody who is called before it, including the relevant judge, to provide the evidence and answer questions. The sub-committee will not act with adjudicative powers.

Joe O'Toole (Independent)
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However, the House will afterwards.

Jim Walsh (Fianna Fail)
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The evidence will be presented to the House and it will come to a conclusion based on the facts presented as to whether the judge should continue in office. There is no incrimination in that. Anybody could lose his or her job without being incriminated. It might not have implications for a criminal prosecution. There is a distinction but it is an interesting issue that must be teased out in a satisfactory manner. One could not afford to embark on the process without being sure about this because one would not want the process to abort as a result of something that could have been anticipated.

There is a distinction in the process and the analogy of the courts may not be correct to describe that on which we are embarking. As the Minister of State and others said, we are in uncharted territory and we are trying to tease out what should be the process.

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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The House in its process would have the right to get the facts from any person who would have those facts. The subject of the investigation would be one such person. I understand the powers of compulsion appear elsewhere in the Statute Book, for example, under the Companies Acts and, therefore, we could not presume that one is talking about incrimination when somebody just gives information, facts and evidence. It could not be used in a criminal case and a committee set up by the House would just receive and record factual evidence. It would not be used in a biased way when sent back to the Houses.

Brian Hayes (Fine Gael)
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The question of the status of evidence is essential and nobody knows the answer or how it will be tested ultimately. If a committee was established and it found a judge did not comply with its orders or did not fully provide the requested information, it could seek powers under the legislation. I am painting another way forward. Would it not have been more sensible to wait until the committee was established to see how its work was progressing and then if a difficulty emerged in terms of the provision of documents and the quality of evidence, the powers provided under this legislation could be used?

By amending the legislation and including the work of the committee under it, is a cover being given to the status of the evidence that will be presented to the committee ultimately? If a judge is compelled to appear before a committee and the evidence he or she gives is put to it, can the evidence be forwarded to the House for it to make a decision? It cannot under the existing legislation. Another avenue would be to wait until the committee is established to see if its work is progressing, as one would have hoped and thought, before this legislation would be triggered.

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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In the absence of procedures, due process is the one thing we must ensure. Anybody who is the subject of such a matter would be entitled to know the rules that govern the procedure. It would be wrong to commence a process and then dip in and out to change it as people go along. It may happen as we go along that there may be other issues but, if we can foresee things that will enable us to put the framework in place to undertake a process that the Houses of the Oireachtas deem to be the most fair, it should be done at the outset.

Derek McDowell (Labour)
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The powers of compellability are being extended to cover judges. Will the committee have the power to compel the judge to answer questions or will he be at liberty to refuse to answer particular questions?

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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It does under the principal Act. It could compel him to answer questions. A judge could not come in and sit there.

Jim Walsh (Fianna Fail)
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What will the committee do in a scenario where conflicting evidence is given? Does it report both sets of evidence to the House so the Houses can adjudicate on the confliction? For example, it could be claimed things happened accidentally or whatever. How is that resolved? Who makes the decision, particularly if it involves significant IT complications that the average person might not be able to resolve in his or her mind? How will that be dealt with in this process?

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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I refer again to Senator McDowell's question. Section 3 of the Act refers to the provision to direct in writing any person to give evidence and to produce documentation.

With regard to Senator Walsh's question, that should be dealt with by the committee itself or through its terms of reference or Standing Orders.

Brian Hayes (Fine Gael)
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Is it envisaged by the Government that the committee members who must assemble the information concerning the motion that will be tabled before both Houses will stand back from the process once they report to their colleagues in both Houses?

Michael Finucane (Fine Gael)
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That goes beyond the scope of what we have been discussing.

Derek McDowell (Labour)
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I am concerned at the Minister of State's response. I am sure it is in conformity with the Act but I am still a little worried. This is not a criminal trial but it is a process, which may result in the removal of a judge from office with significant implications in terms of his or her reputation and livelihood. A young fellow who appears before the District Court having been accused of robbing a bar a chocolate is entitled to say, "You lads go away and prove I did this." We are saying if a judge is brought before a committee, it is entitled to ask him whether he did something that may be tantamount to a criminal offence and is also entitled to an answer from him or her. Perhaps we are entitled to do that but that is a substantial presumption about which we need to be sure before we go down that road. We are saying we are entitled to ask the judge whether he or she committed a criminal offence and he or she is obliged to answer truthfully, failing which he or she would be guilty of a criminal offence in any event such as perjury or contempt.

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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This is an enabling power, which the committee does not have to use. Equally, the section to which I referred grants an enabling power. It states a committee may direct in writing any person to give evidence and to produce documentation. The committee may well decide not to invoke the power to compel somebody to attend at all or, having compelled somebody to attend, not to invoke the power to obtain evidence. I would have thought the bottom line was that, in enforcing their role under the Constitution, the Houses of the Oireachtas would have all the evidence available to them to make a fair and just decision. Part of this evidence would be evidence that a person compelled to attend would possess.

I will refrain from answering Senator Brian Hayes's question because it is a matter specifically for the process. We can certainly take it up some other time.

Jim Walsh (Fianna Fail)
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I thank the Minister of State for attending. This Bill is short, just like the one we considered this morning. It provides enabling powers to the committee. Given that the Houses of the Oireachtas will have powers under the Constitution, I presume any committee of the House will have to get its own independent legal advice on the process. I assume some of the questions raised would also have to be clarified before the committee would assume its full investigative role concerning any issue regarding which it might be established to consider with a view to reporting back to the Houses. I thank the Minister of State for being very forthcoming in her answers.

Brian Hayes (Fine Gael)
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I thank the Minister of State, Deputy Hanafin, for attending and for the way in which she has dealt fully and honestly with the questions that can be answered at this stage. There are many questions which I suspect will be answered elsewhere. We have a very specific role in this matter under Article 35.4 of the Constitution. The approach taken by all sides, which was, by and large, on the basis of consensus, represents the way to proceed. It may well follow that additional legislation will be necessary as the matter progresses. Therefore, I encourage the Government to continue consulting the Opposition fully, as it has done, and to apprise it of all the facts of which it becomes aware. It is very important that we continue to work through this issue on a cross-party basis.

Derek McDowell (Labour)
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I thank the Minister of State for attending and for doing her best to answer the questions. No doubt she will get her thanks for taking on this crown of thorns in a different place or perhaps later in the year.

Mary O'Rourke (Fianna Fail)
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Let us not anticipate.

Derek McDowell (Labour)
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We can only speculate about those matters. When is it intended to present the Bill to the President for her signature?

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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I understand it will be tomorrow.

Michael Finucane (Fine Gael)
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When is it proposed to sit again?

Jim Walsh (Fianna Fail)
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Next Wednesday at 10.30 a.m.