The need for a procedure to deal with judicial misconduct became obvious following the premature release from prison of Philip Sheedy and all that followed from it. Although ultimately two senior judges resigned as a result of a non-statutory inquiry into that affair, the full facts never emerged precisely because the inquiry was non-statutory.

At the heart of the problem was the reluctance of the Government to get to the bottom of the Sheedy affair. But, at constitutional level, the system of judicial accountability was shown to be unworkable. The problem is caused by the text of the Constitution. The power to impeach a judge is specified but the Constitution is silent on a process to achieve that end.

The 22nd Amendment of the Constitution Bill is the Government's response to this constitutional impasse. Given the political difficulties experienced by the Government last year arising from the O'Flaherty affair, you would expect that response to be thorough and systematic. It is neither. The Bill sets out the Government's position on the impeachment process and on the establishment of an investigative body into judicial behaviour. Both objects are desirable, but Labour fundamentally disagrees with the Government's approach to achieving them.

Taking the impeachment process first, the present position is that a simple majority of those present and voting in each House of the Oireachtas can pass a resolution to remove a judge from office. The Government proposes to change this so that in future, two-thirds of the membership of each House, including those absent or abstaining, would be required.

The net result is to make it substantially more difficult to remove a judge than it was before. It is extraordinary that the Government's principal response to the biggest judicial scandal in the State's history is to make it more difficult to dismiss judges.

The Minister for Justice, John O'Donoghue, says he wants to guard against the risk that some future government would use its majority in the Oireachtas to remove a judge from office for purely partisan reasons. The reality is that the Houses of the Oireachtas have had this power since 1922. It has never been used.

So the Government is creating the possibility of a new form of constitutional crisis. Suppose the Dail voted by 100 votes to 50 to remove a judge from office. Does anybody seriously believe that, for want of 11 more votes from the total membership, that judge could return to the bench as if nothing had happened?

Secondly, at present the constitutional safeguard preventing judges from being removed except on grounds of misbehaviour or incapacity is confined to judges of the Supreme and High Courts, the two courts created by the Constitution. The judges of the lower courts, district and circuit, hold office under statute.

I believe it is a necessary quid pro quo, to safeguard judicial independence, that superior court judges, who may be deciding issues of major controversy against the interests of the executive, are not answerable to the Government or the Oireachtas. Part of the price we pay to secure their independence is that we sacrifice normal job assessment criteria. We can move to dismiss a High or Supreme Court judge only where standards are breached that have serious consequences for public confidence in the administration of justice.

BUT the Government now proposes to extend these immunities to cover the judges of all courts while at the same time making the impeachment procedure much more difficult.

If these proposals are passed, the judges of all courts will be even more removed from public accountability than at present. What crisis of political interference with the judiciary have we experienced that requires this response?

Finally, the Amendment Bill provides for a new investigative body, although the Government has failed to publish its precise legislative proposals - something that has become common in recent referendums. According to Mr O'Donoghue, this body will fill a major gap that now exists, "in that there is no sanction against misbehaviour other than removal from office". There is indeed a major gap, but this toothless investigative body will not fill it.

More glaringly, the grounds for an investigation by the new body are confined to cases of misbehaviour or incapacity, the very grounds for which impeachment is the sanction. So, again, the lesser charges of incompetence or inefficiency are outside its remit.

And, if there is an investigation, the powers of the body are simply "to make and publish findings and recommendations". The Minister believes this form of words allows for "a form of moral sanction which acknowledges that misbehaviour has occurred and makes recommendations, with a view to ensuring that such misbehaviour is not repeated". He believes the body's power to make recommendations would include a power to require a judge to apologise for conduct or to undergo particular training.

But it seems to me that it is unclear from the Minister's proposals what is meant to happen when this body produces a report. No one knows how the body's recommendations are to be enforced, or if they are enforceable at all. The problem is that the body's recommendations are not stated to be self-executing but no one else is given the constitutional power to execute them.

But even if the reprimand is meant to come from somebody else, acting on the body's recommendation, an absurd situation arises. If we need constitutional footing for a body with a power only to make recommendations, surely we also need constitutional footing for the body or person supposed to enforce them. Who is to sanction a judge who ignores a "mere" recommendation, that has been given no binding effect?

No one doubts that judicial accountability is a difficult subject to deal with, but I believe the Government has ducked the hard issues and produced a shambles. It is a totally inadequate response to the crisis of confidence in the judicial system arising from the Sheedy affair. In an effort to be seen to be doing something, the Government is tinkering with a flawed system and is making it worse in the process. Its package of proposals is ill thought out, restrictive and deeply flawed. Unless radically changed by the Oireachtas, this regressive and unjustified amendment to the Constitution should be rejected by the people.

Brendan Howlin is deputy leader of the Labour Party