Tuesday, 11 May 1999
Dáil Éireann Debate
2. Mr. J. Bruton asked the Taoiseach if he will publish the letters sent on 16 April by the Secretary to the Government to former Judges Hugh O'Flaherty and Cyril Kelly; and if he will make a statement on the matter. [11324/99]
The Taoiseach: The terms of the letters sent from the Secretary General to the Government to former Judges Hugh O'Flaherty and Cyril Kelly on Friday 16 April, 1999 were placed on public record by the Minister for Justice, Equality and Law Reform in his statement to the Dáil on 20 April, 1999. As I said in response to questions in the Dáil on the Sheedy case on 28 April, the letters are in the public domain. However, in order to be helpful, I arranged to have the letters laid before the Houses of the Oireachtas and this has been done.
Mr. J. Bruton: Is the Government satisfied it had the right, as the Government, to write this letter in view of the fact that under Article 32.2.5º of the Constitution the only function attributed to the Government is that of informing the President of a decision already taken by the Oireachtas but that any decisions concerning impeachment are a matter for the Oireachtas and not the Government?
Mr. J. Bruton: Has the Government considered, in retrospect, if it might have been better to have allowed the matter to be dealt with by motion in the Oireachtas whereby the judges concerned would have had an opportunity to answer questions in a constitutionally legitimate fashion rather than deal with it outside the Oireachtas as the Government did by letter? This has made it difficult for the judges to provide the explanations which they would, no doubt, have readily provided if the matter had been dealt with by motion here.
Mr. J. Bruton: Does the Taoiseach not agree that all such matters must be judged by their results? The result of the course taken by the  Government is that the Oireachtas is experiencing great difficulty in getting the information which would probably have been readily available if the matter had been dealt with differently, by means of motion in Dáil Éireann. This would not have precluded any pension arrangements being made; it would simply have allowed the matter to be dealt with – I believe in accordance with the Constitution – by the Dáil and Seanad and not, as the Government has done, by Executive action which seems not to be envisaged in the Constitution.
Mr. J. Bruton: Does the Taoiseach not recall that Mr. Justice O'Flaherty has stated that he would have dealt with the matter if it had been dealt with by means of a motion? Therefore, the Taoiseach is incorrect in saying that the Government was merely asking the people concerned to state their positions. In specific terms, the Government asked them to resign. That resignation precluded any consideration of the matter in the House by means of motion which would have allowed to be considered the question of why these decisions were taken. It might also have meant that the House might not have sought the resignation of both judges – a different and acceptable outcome.
The Taoiseach: The letter stated that the Government had decided at its meeting to forward the report of the Chief Justice to the Oireachtas Committee. It went on to say the Government would “consider, at its meeting next Tuesday, proposing resolutions for the consideration of the two Houses of the Oireachtas, pursuant to Article 35.4.1 for your removal, on the grounds that the facts admitted to the Chief Justice or established by him in his report, amount to misbehaviour within the meaning of the said provision of the Constitution”. The letter was telling the judges what would happen in the Oireachtas the following week.
Mr. J. Bruton: Does the Taoiseach agree that the Government's letter stated that the Government had already made up its mind that the judges' behaviour amounted to misbehaviour within the meaning of the Constitution, that the Government had prejudged the issue and that was what was being stated in the letter? In so doing the Government prevented the judges from appearing in the House and giving answers.
The Taoiseach: I do not see it in that way. Natural justice must apply and it would have been wrong not to inform the judges of the Government's action. Natural justice dictated that they  be informed of the Government's action and they were.
Mr. Quinn: First, did the Attorney General advise on the content and form of the letter and in his advice, did the Government debate whether it was appropriate for the Executive to take the action it took or if that was the prerogative of the Oireachtas, as set out in the Constitution? Second, in view of the fact that the Government appears to have acted unilaterally and to have pre-empted the powers of the Oireachtas, why did the Taoiseach not see fit to consult the leaders of the Opposition parties in the matter?
The Taoiseach: What the Government said in the letter is: “I have been asked to advise you that the Government will consider at its meeting next Tuesday proposing resolutions for the consideration of the two Houses.” The Government was pre-empting nothing. The letter was sent on Friday and the Government was stating that, at its meeting on the following Tuesday, it would consider resolutions for the consideration of both Houses. That was the proper procedure.
Mr. Quinn: Does the Government believe that it pre-empted the role of the Oireachtas in this matter? While I am aware that it was unprecedented, why did the Government not formally consult the leaders of the Opposition parties since the Oireachtas is the body that would have initiated the sanction?
Mr. J. Bruton: Will the Taoiseach reconsider, given that the decision was one for the Oireachtas, not the Government? It would have been more appropriate to allow the judges to present their case in the Oireachtas rather than  present them with a letter such as this which effectively had only one suggested conclusion. On reflection, will the Government agree – this is an issue that we need to look at for the future – that it might have been wiser to allow matters of this kind to be considered in the House rather than in a letter in view of the fact that the outcome of the Government's handling of the matter, however motivated, is that the House is having great difficulty in establishing a means of getting the information as to why one judge acted as he did? This is information that would have been readily and constitutionally available if the matter had been dealt with by motion rather than by letter.
The Taoiseach: The letters indicated that the Government would consider tabling resolutions at its meeting the following Tuesday. If one follows Deputy Bruton's logic, we should have tabled the resolutions without informing the justices. That would not have been in line with natural justice.
The Taoiseach: The Secretary General to the Government did not receive a reply from Mr. Justice Hugh O'Flaherty to the letter of 16 April. He tendered his resignation the following day. The Secretary General received a letter from the solicitors acting on behalf of Mr. Justice Kelly on 19 April asking which facts identified by the Chief Justice's report amounted to misbehaviour. In a separate letter Mr. Justice Kelly brought to the Government's attention the fact that he had reserved judgment in certain cases and had yet to deliver them.
Mr. J. Bruton: In view of the Taoiseach's justification of this letter on the grounds that natural justice had to be served, surely if the object was natural justice, a reply would have to have been issued by the Government to any request for information from Mr. Justice Kelly?
Mr. J. Bruton: Will the Taoiseach agree his response to my question to the effect that he is not aware of any reply having been issued demolishes his own defence that it was considerations of natural justice which justified the course of action he took rather than the alternative of a motion of impeachment?
Mr. J. O'Keeffe: I wish to explore a little further the issue of natural justice. Surely if natural justice was the issue, the judges should have been invited to respond to the report of the Chief Justice which was sent to them? Does the Taoiseach accept it is far more likely that this letter would have been interpreted by the judges when received, as well as the lack of any such invitation to respond, as being a threat that something would happen the following Tuesday if they did not resign in the meantime and that, in effect, meant that they or anybody else did not have the opportunity to find out the full facts of this case and why they did what they did?
Mr. J. Bruton: How can the Taoiseach say that a private letter, to which a reply looking for information was received in one case but which was not supplied, could possibly add up to natural justice given that justice is something which is supposed to be dealt with in public? It would have been better to have dealt with the matter in the House where the proceedings are public and where questions on why things were done could have been answered?
The Taoiseach: They knew if a motion was tabled in the House they would have been able to respond. That was made absolutely clear. The motion would have been cleared by the Government and put to the House and they would have been able to come and put their case, but they did not; they resigned.
Mr. Quinn: Is it fair to say that they also knew that if the House moved on foot of a motion proposed by the Government such a motion, upon being passed and becoming a resolution, would result in both judges losing all emoluments and pension entitlements forthwith? Were they, therefore, engaged in dialogue and discussion leading to proposals, which we understand from the Minister for Justice, Equality and Law Reform remain proposals rather than commitments? At what stage, if they were confronted with the probability of a motion of impeachment becoming a resolution, consequent to which they would have lost all their pecuniary entitlements, were discussions entered into with the Department of Justice, Equality and Law Reform on their behalf and understandings or proposals arrived at that pensions in the order of £40,000, £30,000 and £15,000 would commence forthwith?
The Taoiseach: Mr. Justice O'Flaherty resigned without any discussion or request, as did Mr. Quinlan. Mr. Justice Kelly was involved in discussions but resigned before the conclusion of those matters.
Mr. J. Bruton: Given that Mr. Justice Kelly did not reply to the letter, other than to look for information which he was not given, is it not the case that these negotiations effectively precluded a motion being considered in the House whereby the information being sought by the House would have been provided?
The Taoiseach: No. For some reason Deputy Bruton is trying to twist around the situation, something which will not work. The fact is these good gentlemen were informed, in line with natural justice, that the Government would consider  putting down resolutions the following Tuesday. This would have allowed them, if they wished, to come to the House and state their case. They did not do so, but rather resigned.
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