The Government's proposed legislation to force Circuit Court judge Mr Brian Curtin to appear before an Oireachtas inquiry had to be changed yesterday after it emerged that it would not apply to him.
The Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 must be amended before an inquiry can begin because judges cannot be ordered to appear before the Oireachtas.
The Attorney General, Mr Rory Brady, originally recommended that changes should cover attempts to remove judges from office under Section 35.4 of the Constitution.
It states: "A judge of the Supreme Court or the High Court shall not be removed from office except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his removal."
However, the amendment, which will pass all stages in the Dáil and Seanad today, would not have covered Mr Curtin since efforts to remove both Circuit Court and District Court judges are covered by Section 39 of the Courts of Justice Act 1924, or Section 20 of the Courts of Justice (District Court) Act 1946, rather than under the Constitution.
Labour TD Mr Joe Costello, who pointed out the discrepancy, said the original legislation would have failed to bring about the one act it was being specifically created to do.
"It would have been very embarrassing for the Government. They would have had to go back and do the whole legislation again."
Meanwhile, the Taoiseach, Mr Ahern, moved quickly yesterday to clarify the scope of the changes to be made today to the compellability legislation.
The Fine Gael leader, Mr Enda Kenny, questioned whether the action would mean all judges could be summoned before any Oireachtas committee "if a committee wants them here".
Mr Ahern said: "The question is important. It absolutely cannot be construed to be any judge. It would only be a judge before the House where there is an application to remove him, and it could not be extended to anybody else."
Meanwhile, the Government will also change the Child Trafficking and Pornography Act 1998 to ensure that TDs, senators, staff, and even Judge Curtin would not be left open to criminal charges if they handled child pornography during the inquiry.
The Government will next week move to set up a seven-strong Oireachtas committee to hold private hearings into Judge Curtin's case, though already there are signals that the Seanad is unhappy.
Independent senator Mr Joe O'Toole warned that the efforts to remove Judge Curtin would fail. "There was outrage when a court case collapsed on a technicality. We will be crucified, and rightly so, when - not if - we get this wrong."
