I wish to make a point about this section, if I may. I got a ruling from the Chair today that three of my amendments were out of order, which came as a bit of a surprise given that one of them had previously been debated extensively in the House as part of the previous iteration of the Bill.
Judicial Appointments Commission Bill 2022: Committee Stage
SECTION 1
Question proposed: "That section 1 stand part of the Bill."
It was the Cathaoirleach, not I, who ruled them out of order.
I find it odd that the amendment is now found to be beyond the scope of this Bill. I will take up the matter with the Cathaoirleach. However, I will say that one of those amendments is very important. The purpose of the Bill is to amend the Judicial Council Bill and there is a mistake in that legislation which needs urgent amendment. I am more relaxed about my third amendment. I want to make the point that these rulings are not in anybody's interests. These are matters which should be dealt with soon.
We are amending it in the miscellaneous Bill. I can speak to the matter later. I was not sure what had been ruled in or out.
Whatever section the Senator's amendments have been ruled out of order in-----
I just find it strange that on one of the few occasions that I was not here during Committee Stage of the previous Bill, one of the amendments I have tabled here today was debated and the then Minister, Deputy Flanagan, said it was an important issue which he might consider including on Report Stage, and I am now told the issue cannot even be discussed. That is strange.
The Senator can certainly speak to the section his proposed amendments would have dealt with when we get there.
Question put and agreed to.
NEW SECTION
I move amendment No. 1:
In page 6, between lines 13 and 14, to insert the following:
“Object of Act: judicial independence
2. (1) With a view to upholding the independence of the judiciary as the foundation of public confidence in the administration of justice, the Oireachtas in passing this Act seeks to ensure that the recommendation and selection of persons to serve in judicial office is based on merit and is free from political patronage.
(2) All persons concerned with the administration of this Act or who perform functions under it shall act in accordance with the object specified in subsection (1).
(3) This Act shall so far as is practicable be construed in accordance with the Dublin Declaration on Standards for the Recruitment and Appointment of Members of the Judiciary, adopted by the General Assembly of the European Network of Councils for the Judiciary at its meeting in Dublin on 9 to 11 May 2012.”.
The Minister is very welcome. This amendment is based on upholding judicial independence. In particular, our amendment seeks to incorporate as an interpretative aid the 2012 Dublin declaration on standards for the recruitment and appointment of members of the Judiciary, adopted by the General Assembly of the European Network of Councils for the Judiciary. On that basis, we are asking the amendment to be adopted.
This is an important amendment which I support. It clearly sets out that the selection of persons to serve in judicial office is based on merit, which is in the Bill already, but also "is free from political patronage". Two points occur to me. I do not accept that, for instance, in deciding which of three people should be recommended for appointment to the Supreme Court, the Government of the day is debarred from making a political choice - with a small "p" in the word "political" - in the sense that it could decide it wants a liberal person and does not want a conservative person. That is a political choice which the Constitution confers on the Government.
During the time I was Minister for Justice and the late Rory Brady, senior counsel, was Attorney General, the great majority of the appointees to the superior courts were people who we understood to be supporters of the Opposition parties at the time. I want that point on the record. It has not always been the case that political patronage has been the determinant or a major determinant of judicial appointments.
I broadly agree with the statement Senator McDowell has made. It is tremendously important to remember that there is a basis on which there should be a political involvement, a democratic involvement, if you will, in the appointment of judges.
They are a branch of the Government in the Judiciary, as a whole, and it is appropriate that the people have some say through the Government. That is the way it has worked and that is the way it should continue to work, which is why the Government still makes those appointments even under this legislation.
I wish to raise a point that is important to remember. Once appointed, judges have no colour and no politics. That has been the overwhelming experience of the Judiciary in this country for generations and continues to be the case. There is a broad misconception that somehow, because a judge may have been politically active in the past, and many of them have been, that that politics continues into their judicial life. In my experience, it does not. They put that behind, separate themselves from it and it does not affect their decision-making on the bench. That can be seen in countless examples of where judges who might be of one party have made decisions against that party when it was in government, for example. The former political life of a person does not intersect with his or her judicial life, once appointed, in my experience. It is very important to state that because to have it any other way would be to absolutely denigrate the good work that is done by the Judiciary. As I have said in this Chamber on many occasions, we are lucky enough to have a Judiciary that is on the whole excellent. That comes from the fact that those people divorce themselves from any political opinions they might have held before being appointed to judicial office and they take very seriously the independence that they need to exercise as a judge.
The Constitution provides for judicial independence and this Bill supports judicial independence. I support the Senator's last comments that we have an independent Judiciary, one that we can be very proud of and one that is held up right across the world.
I thank the Senators for tabling this amendment. The amendment provides for a new section. It provides for an object of the Act being judicial independence and obviously there has been an explanation as to where this has come from. The object of the proposed Act in itself is relatively straightforward; it seeks to establish a new commission to recommend persons for appointment. Of course it does more than that. It puts the entire system of appointments on a completely different level in terms of transparency and strengthens the procedures we have to safeguard the integrity that is already there in terms of the process of appointment. I would say it is already manifesting, perceived and recognised at home and internationally as a very good, transparent and independent process.
The Bill is compliant with international standards. The Court of Justice has taken the view that because national courts such as our courts in Ireland must implement and adjudicate on various fields of EU law, the process of appointment of judges to these courts must ensure the effective judicial protection of individual rights. The Bill will achieve that and these provisions are also consistent with the Dublin Declaration, which was referred to in the amendment tabled by the Senators.
The method of appointing judges is seen as having a key impact on independence from an EU context. The specific concern of the European Commission in the context of the rule of law report, and the Council of Europe's Group of States against Corruption, GRECO, is the level of discretion a member state government might have vis-à-vis an advisory or recommending body when it comes to appointments. In particular, the European Court of Justice ruling has made it clear that an obligation under the rule of law it operates in the European Union is the maintenance and enhancing of the impartiality and independence of the courts. The possibility that a Government would appoint a person who is not recommended by the independent body would be contrary to this rule of law in that context. Also, it would be contrary to a merit-based approach.
Senator Ward referred to political patronage in the amendment and the requirement, under the amendment, is for a merit-based system and that is very clearly set out in the Act. For the first time, this Bill will essentially provide that no appointment can be possible without the Government first receiving a recommendation from the commission. Under section 39, they have to be merit-based. Merit will have regard to a number of objectives set out in section 39, which we will mention later. Government discretion to appoint will be from a limited choice of three candidates, while at the same time providing for the fact that our Constitution sets out clearly that a Government must appoint and so it still allows for that.
Senators will know that currently and historically when an appointment of a serving judge to a higher office is made that it will not have come through the Judicial Appointments Advisory Board, JAAB. The remit of the board, under the Courts and Court Officers Act 1995, is restricted to people seeking appointment for the first time. We will change that and make sure that everybody has to go through the judicial appointments commission.
More generally, I am confident that the new approach will enhance the reputation that we already have in terms of the independence of the Judiciary. The Bill contributes to that. As I have said, the Constitution provides for judicial independence and the Bill in itself supports that.
Briefly arising out of that, I am a bit mystified by some of the provisions of this Bill and I have studied it more carefully. One of these provision is section 42. Section 42(1) provides:
The Minister may request the Commission to make recommendations for appointment or for nomination for appointment to judicial office, as the case may be, where—
(a) a judicial office stands vacant, or
(b) he or she reasonably anticipates that there will be a vacancy in a judicial office.
That seems to be discretionary in that the Minister "may" do so but is not obliged to do so. I can see one circumstance in which the Minister might not make request the commission to make recommendations if it was intended to decrease the number of judges, say, in the High Court, the Court of Appeal or the Supreme Court. He might say we are leaving that vacant so although there is a vacancy there, it stands vacant and not ask for recommendations. I can see that that could happen but if one combines that with section 51-----
I remind the Senator we are on section 2, amendment No. 1.
Yes, but I am talking about what the Labour Party amendment is about, which is the appointment of people. I am not trying to waste time at all and I will be very brief.
Section 51 seems to confine the Government to considering "recommended persons only" but section 42 seems to say that the Minister has a discretion as to whether he looks for recommendations in the first place. I wonder how the word "may" gels with section 51 and what the Minister has just said. Is it to be the case that the Government is to be prohibited from considering for appointment any person who has not been recommended? Is that what this Bill is saying? If so, why is it that section 42 does not make it mandatory rather than discretionary in terms of filling a vacancy?
What is very clear in this Bill is that a person cannot be and will not be appointed unless he or she has gone through the process. As the Senator has outlined, there may be a situation, as is currently the case or had been previously the case, where vacancies are not filled. For example, in the Supreme Court if a vacancy arises but it is not to be filled immediately, then it is not absolutely the case that the Minister of the day may ask for or should ask for a process to start. The Bill is absolutely clear that no person will be appointed unless he or she has gone through the judicial appointments commission, unless he or she has gone through an interview process and unless the person is one of the three names that have been put forward to the Minister. There is no other intention behind the provision.
I can understand that is the purpose of the Bill.
Section 51(1) seems on the face of it to say that a person could be appointed who had been recommended by the commission but was not recommended on this occasion. The provision seems ambiguous and I am interested in that aspect. Maybe we will come back to it later when we discuss the section.
Yes, Senator. When we reach the section we will come back to that.
Amendment put and declared lost.
SECTION 2
Amendments Nos. 2, 3, 5, 29 and 37 are related. Amendment No. 37 is consequential on amendment No. 5. Amendments Nos. 2, 3, 5, 29 and 37 may be discussed together, by agreement. Is that agreed? Agreed. .
I move amendment No. 2:
In page 8, between lines 34 and 35, to insert the following:
“ “practitioner representative” means a practising member of the solicitors or barristers profession nominated by the Law Society of Ireland or the General Council of the Bar of Ireland, as the case may be, and appointed by the Minister;”.
Amendment No. 2 is in the names of myself and my fellow Independent Senators. Amendment No. 2 is part of a number of amendments, which are now grouped together for discussion. Its purpose is to ensure that the judicial appointments commission should include among its members one practising barrister and one practising solicitor nominated by their respective professional bodies. I know it is an objective of the Minister to keep the commission small.
I regard it as close on ridiculous that in making judicial appointments both branches of the practising legal profession are given no input whatsoever into a consideration of the suitability of a candidate for appointment to the Bench at any level. This seems to be a deliberate policy in this legislation and it is a change from the previous legislation promoted by the former Minister Deputy Flanagan.
To say that we do not want to hear what the representatives of either legal profession have to say at all on the suitability of candidates for the Judiciary and - worse than that - that the professions are effectively debarred from having any part in the process whatsoever because if they interfere, they will be accused of seeking to influence the outcome of the commission's activities seems to be completely indefensible.
Nobody is in a better position to judge the temperament of a solicitor or a barrister than his or her colleagues in either branch of the profession. If they are ten years in practice, nobody is in a better position to say that while the person may appear squeaky-clean, there is a screw missing, there is an attitudinal problem, they are personally not given to being impartial or are unsuitable for 1,000 different reasons. Nobody knows these things, but their colleagues do know these things. Their colleagues on the Judicial Appointments Advisory Board have that function.
As Attorney General, I was a member of that board. The judicial members of that board would ask if anybody knew much about the person being considered. The legal practitioners would generally say that he or she is a good person. However, sometimes they would say, "A big warning should be attached to that person. They are really not suitable. Their CV as handed in may look brilliant but we are warning that there could be question marks there." There could be a conversation about why that was said about individuals. I am not cooking up some crazy theory here. I am talking about every court in the land. There are solicitors and barristers who want to become District Court judges. The people with whom they practise in their local county will have a view and their view may not be determinative if but at least it should be heard. I find it difficult to understand why an ideological decision has been made here.
Regarding independence from the Government or political independence, the input of the legal practitioners heretofore has been absolutely neutral. Nobody in the Judicial Appointments Advisory Board will point out that a candidate is a member of the Labour Party, Fine Gael or whatever and should or should not be appointed on that basis. Nobody will say something like that on behalf of either of the professions. Nobody who was appointed to the Judicial Appointments Advisory Board would for one minute consider discussing the politics of somebody who is under consideration.
We are left here with what I consider to be a brazen attempt to exclude a group of people who really have some practical experience of their colleagues. They have some vague idea of their reputation, how they really conduct themselves and what kind of person they really. If they are extremely touchy, short-tempered or whatever, this may not come out in a carefully schooled interview. This may not come out if the decision is left to a number of judges and laypersons who have not heard of the person in question and know nothing about how they spent the ten years in practice that they are obliged to have spent in order to qualify for appointment.
I understand the Minister's desire to keep this body reasonably small and compact. However, the extension from nine to 11 for the purpose incorporating two practitioner representatives in the manner suggested in the group of amendments we are discussing here would enhance the board, would make its decision safer and would eliminate risks which otherwise will not be adverted to. People will present letters of recommendation or whatever. People will present themselves for interview but will be interviewed by strangers who know nothing about them, know nothing about their weaknesses and have not been warned by anybody that this is not a good idea.
From my own participation in JAAB I know that the presence of practitioners did not affect the independence of the appointees, but brought this vital element of reality in possibly identifying someone as being seriously unsuitable because they did X, Y or Z. They may have fired all their staff from the solicitor's office. They have misled judges as a barrister and things like that. That information is only available if there is some channel for it to come before the persons who are making a recommendation. Unless the members of the Judiciary or the lay members are to go around and try to pick up gossip about people, that whole dimension of the candidate's personal standing in their professional community is completely left out.
In conjunction with this, because two extra lawyers were to be on the commission, I tabled an amendment proposing that the number of laypeople be increased by one. That has been ruled out of order because it might impose a charge on the Exchequer, which frankly is weird, but there you are. Another amendment, which was debated at length here under the Bill proposed by the former Minister Deputy Flanagan, is now said to be outside the scope of this legislation.
I am not trying to diminish the level of participation of laypeople or to switch the balance in any way. We have something that works well with input from professional colleagues which can be extremely valuable in the consideration of a person's suitability. Instead, we will have a group of people who have never met the person before they interview them, know nothing about them, and will not try to pick up intelligence as to whether they are good, bad or indifferent because that will not happen. Neither the laypeople nor the members of the Judiciary will do that. Appointments will be made on the blind. People who present well at interviews and seem to have a squeaky-clean paper application will get appointed even though there were people who could have said it was a mistake.
We have not done much in our proposed amendment.
We have merely said that one practising member of the solicitors' profession and one practising member of the barristers' profession, nominated by their professional bodies for appointment by the Minister for a term of three years and removable in the same way as a lay member if there is any problem with them, would bring significant added value to the commission and that their absence would make it seriously more likely that mistakes will be made by appointing people on temperamental and other grounds to the Bench.
Before I call Senator Ward, I welcome Lucy Whelan and her dad to the Visitors' Gallery. Lucy is here on an internship, I believe, in the Minister's office. She will be able to put that on her CV when she is going for a job, perhaps in the Judiciary, but we will see how this Bill works out.
I will support the amendments, which make a great deal of sense. The notion that the professions that know and understand the role a judge plays would be cut out of the decision-making process is, I think, flawed. They should not have a veto. I have a certain discomfort that the words as spoken by Senator McDowell, with the greatest of respect, sound a little like a boys' club supporting or endorsing one of their own. That is not what it is about. It is about people having an understanding of the individuals involved in a profession who might have a reputation among their colleagues. It is less about a veto because there is no perfect system and any lawyer will agree there are colleagues who seem like perfectly reasonable people but who find themselves on the Bench and suddenly develop what we know as "judgitis" and can sometimes manifest traits they did not have in practice, and vice versa. People who you might have thought would be wonderful members of the Bench do not always turn out to be that way. There is no perfect system and no hard and fast way to assess who is or is not going to be a good judge.
Nevertheless, there is a benefit in having what a colleague of mine refers to as a smell test or a litmus test, which somebody might not pass for a good and justifiable reason, not because Joe does not like him or Mary thinks he is whatever. It is about knowing the person in the context of his or her professional past, behaviour or reputation. If a lot of laypeople who have no connection to the legal professions and no understanding of how they work are brought in to make that decision, that will divorce that professional experience from the decision-making process, and there will be a loss in that regard.
On Second Stage, I raised this issue and the Minister pointed out that there are provisions to ensure that some of the judges from the Judicial Council who are put onto this commission will include both those who formerly practised as solicitors and those who formerly practised as barristers and I applaud the attempt to recognise the professions in that respect, but I do not think it is adequate for a number of reasons. As I said just a moment ago, when a person becomes a judge, he or she leaves behind in many respects his or her past experiences, albeit not all of them and they inform his or her judicial persona. There are not judges who are former solicitors and judges who are former barristers. We could certainly point out judges who previously practised as barristers and those who previously practised as solicitors, but that is not their persona on the Bench. Their persona is as a judge and they change when they move from the role of poacher to that of gamekeeper, if I can put it in those terms. They change and no longer occupy a position as a former solicitor or former barrister. I think there is a fundamental flaw in trying to address the absence of the professions' input into the decision-making process by having that in the judicial corner. I do not think that works.
The other difficulty with that is there will not necessarily be a balance of barristers and solicitors in any court. For example, there will be far more solicitors in one court than another and far more barristers in one than another, and there will be no guarantee as we go through the process that there will be an adequate number of people from whom to select former solicitors and former barristers. The notion of doing it that way is inadequate and far inferior to the notion of putting a representative of each of the professions on the commission who, as a representative of his or her respective profession, will have the ability to have that input at the point where the decision and the appointment are being made. It is akin to a committee to appoint a consultant cardiac surgeon having no cardiologist or doctor on the committee. We would not say that was reasonable because there would need to be somebody who has the expertise to understand the application coming before the committee. Those two circumstances are comparable because the appointment of a judge requires a level of professional understanding of the individual but also of the role and where that person can fit into the role.
I support the notion that there would be professional representatives. Where that has been the position in the past, in the case of JAAB, it has worked well. I return to the comment I made earlier in respect of our Judiciary. On the whole, our Judiciary works very well, diligently and impartially and does a very good job. To an extent,, it is a case of "If it ain't broke, don't fix it". For that reason, these amendments make sense and are worthy of consideration if the Minister feels that is appropriate.
The illumination from Senator McDowell, particularly in regard to amendment No. 2, was helpful. I am minded to support that amendment because of what he said. Moreover, for all the reasons Senator Ward acknowledged, it would make sense to have practitioners who are not members of the Judiciary. That would give a valuable insight and I recognise that. I was not entirely convinced by Senator Ward's earlier contribution, given it may leave the matter open to accusations of a boys' club, a girls' club or whatever the case may be. I am keen to hear what the Minister has to say about these amendments but in particular about amendment No. 2 because a strong argument has been made as to why it would be a sensible approach to have two practitioners on the commission who could give an insight. I do not like the notion of every practitioner knowing every detail about every fellow practitioner in the State. That would be worrying but from an experience perspective, it may prove helpful to the work of the commission.
Strong cases have been made by Senators McDowell and Ward. This area is not my focus, which tends to be on human rights representation and the very important layperson's perspective. I have always been an advocate in general, in all areas of public service, for 360° references, whereby not just those who have worked above a person but also those who have worked below and alongside him or her would give references. I think that is a great idea and there is something to be said for those who have argued cases before judges and have that sense of how it works. For me, the proposal to expand the numbers is the key in this context. I do not think 11 is too onerous a number to allow the commission to perform its functions. It is important we do not erode the lay persons' votes but some strong arguments have been made.
There are a number of elements to this, as the Senators pointed out. One aspect I wanted to ensure was that there will not be a large commission whose number just continues to increase. There are a number of later amendments regarding specific numbers of lay persons who should be appointed and how to reduce that. I do not think the figure, therefore, would go from nine to 11 but rather to 13 because, as I have set out clearly, there need to be an equal number of legal persons as well as lay persons on the commission, working with the Attorney General but with the Chief Justice as chair.
We are moving away from the use of peer impressions of individuals. I do not necessarily agree it is the case that a nominee from the Bar Council and a nominee from the Law Society would know every person in the professions and be able to comment on every one of them. It is just as likely that a person who has more recently been appointed to the District Court, having come from one of those legal professions, would have as much an understanding of an individual but also, as someone now sitting on the Bench, he or she would have an understanding of what is required of the candidate.
Currently, there are no interviews, so perhaps it works better that people know, to a greater extent, whom they are talking about, although I reiterate I do not think any individual could know everybody. We are now focusing on an interview, objective testing, skills and knowledge, all set out by the commission.
While interviews might not be perfect, for any job or role they are the best test to see who is suitable for a job. People can always ask and inquire if there are questions or queries about an individual, but we are introducing a new system and structure whereby an interview will have to take place and a person will have to set out their competencies and skills.
I do not in any way want either profession to think that we do not respect the work done by the current Judicial Appointments Advisory Board, JAAB, or that its opinions are not worthy. I have made clear that of the nine people, there will be the Chief Justice, the president of the court that will be appointing a person to the particular vacancy and two nominees by the Judicial Council ensuring that we have a man and woman, because we need to make sure we have that gender balance, and somebody with a background in practising as a solicitor or barrister and that these are taken into account, acknowledging that it is important to have a balance of both professions.
Overall, this is not to reflect badly on how the Judicial Appointments Advisory Board has worked to date, but we are moving to a new system. We are moving away from this idea that it is based on impressions or on a peer-to-peer process. It is very much focused on merit, it is independent and it is based on people's skills, knowledge and understanding. Those sitting on the Bench would have a history and a past of practising on the other side of the Bench and would have a clear picture of what is required. This would obviously be supported by the lay members as well.
I am not sure why Senator McDowell’s second amendment has been ruled out of order because I think other colleagues will propose amendments that will balance it out. I am not sure what the issue is there. However, as I said, it would not be a case of moving from nine to 11 people, but it would be moving up to 13. It is important that we have a stakeholder representative group that is small and coherent in size and not large and unwieldy. Unfortunately, for those reasons, I cannot accept the amendments that have been tabled by Senators.
I will raise two points. First, the suggestion, as Senator Ward pointed out, that the Judicial Council members will somehow represent the diversity of the professions is just not statable as a proposition because the two nominees will be one male and one female nominee, one of whom, at the time of his or her appointment as a judge, will have come from the solicitor’s profession while the other will have come from the barrister’s profession. The Judicial Council could be appointing somebody who has been out of the profession for 20 years and who has about as much connection to the solicitor’s profession or to the Bar as anybody.
I am talking about granular, real understanding of the kind of people who we will have seen writing letters as a solicitor. We will have seen that a certain person is rude, offensive and all the rest of it and we will know that he or she has let down his or her partners on five different occasions. Things like that go to one’s reputation. That reputation should be just completely thrown out it is foolish, especially when there is an easy means to have at least some chance that a person with a poor reputation does not wander through the system and get selected.
The fact that a member of the Judicial Council has been elected by his or her colleagues and was a barrister or a solicitor 15 or 20 years ago will say nothing as to whether some young person who has been in practice for ten years is or is not suitable to be made a District Judge. It just simply will not speak to that issue at all, and it is of no help whatsoever.
It is a bit strange that my efforts to keep the lay and non-lay balance by reference to these amendments was ruled out of order on the basis that this might put a charge on the Exchequer. I just cannot understand it at all. It seems to be on the basis that they could get expenses and that there would be more expenses if there were one or two more people on the commission. That shows how ludicrous the Standing Orders of this House have become, that you cannot suggest that you are going to balance something without being told, “Oh they could claim expenses for turning up to a meeting so therefore you cannot make that balancing suggestion”. Therefore, it is effectively the Minister’s position that nobody can increase the size of this commission because to do so requires a balancing exercise which could give rise to expenses. This is something I find a bit difficult to swallow, but there you are. The Chair has so ruled, and I am stuck with that.
The difference between nine and 11 people is not all that important. Will they all turn up on the day? They may or they may not. Some may be on holidays. Some may be on maternity leave. You can never know; they may not turn up on the day. The difference between nine and 11 on this commission, therefore, is not some horrific difference in numbers. I have to reject the argument that it would make it in anyway unmanageable to have 11 rather than nine people on it.
While I am on that subject, I point that of the nine, the Bill as it stands at present states that the Attorney General cannot vote, so that is eight. You have four judges and four lay people. The Bill does not even give anybody a casting vote, which is even more remarkable.
My amendment will deal with that.
Senator Ward has tabled an amendment to do that. It is amusing because the Bill, as it stands at present, means there will be a deadlock. The four lay people will obviously listen carefully to the judges as a group. They will not come in say, “We are the lay people, and we have this candidate” and the Judiciary will not say, “Well this is our person”. I believe that the practitioner representatives would tend to assist the lay people rather than the establishment Judiciary in ensuring that there will be an openness to the whole thing. If I were a layperson who was appointed through this system and if I were one of eight people who could vote on this issue, I would much prefer to have somebody else who was not a judge saying, “I am with you on that person. I agree with you on that”. The notion that somehow the practitioners would all align with the Judiciary is in my view mistaken. This is a point of fairly fundamental importance. I did not table this amendment just to make a point or to hear the sound of my own voice. It is a huge, fundamental error in this legislation that the professions are being railroaded out of it. It is a big, fundamental mistake.
I heard what the Minister said by way of reply, but I do not accept the rationale of what she said. She has not said that professional representatives or practitioners would be a bad thing. She has not said that they would tend to be part of the status quo. If we are talking about old boys’ clubs, the Judiciary is far more likely to be an old boys’ club together, than the Judiciary with two practitioner representatives looking at what they are doing. I believe that it is a fundamental mistake not to accept this amendment.
I have to stress what we are talking about here. I appreciate that these amendments propose moving from nine to 11 people, but it would in fact become nine to 13, because I could not or would not accept that there would be a minority of lay persons.
We have tried to strike a balance to ensure an equal number of laypeople and legal professionals on the commission.
The Senator mentioned the fact that the Chief Justice will not have a casting vote and that decisions will be made on the basis of consensus. That is how JAAB has operated in effect. I understand there has never been a vote at the JAAB. It is important that names are put forward on the basis of consensus. That is a good way to work and it is why I want to continue in that vein. We are talking about a change from nine to 13, which would change the dynamic of any group.
In any other profession, people are appointed on the basis of an interview process in the vast majority of cases. Appointments are not based on what a member of the profession thinks or does not think about a candidate, or may or may not have heard about him or her. The Judicial Council must appoint people from the upper and lower courts. A solicitor or barrister appointed to the District Court may only recently have left their profession and may have as much knowledge or information about current practising barristers or solicitors as anybody else. We must get away from the idea of making appointments on the basis of knowing people's tics or lack thereof, or what they did or did not do in their previous roles. We must focus only on a person's skills, expertise, knowledge of the courts, performance, personality and temperament. Through an interview process, one can discover those things about a candidate. It is not a perfect process in any profession but we are trying to make it as transparent as possible. At the moment, the situation is that nobody is interviewed. A substantial number of names come to the Minister and he or she then has to make a decision having, in the vast majority of cases, never met any of the candidates. The Minister makes the decision on the basis of candidates' CVs, reputations and what they have put down. I do not mean in any way to say that the opinions of those at the Bar Council of Ireland and the Law Society of Ireland are not valued or important. What I have tried to do, albeit Senators do not agree, is to ensure we have representation of solicitors and barristers. I agree that once someone becomes a judge there is no such thing as a solicitor-judge or barrister-judge, in the same way that a person is not from a political party if he or she was previously active. There is still, however, that level of experience there and that can be reflected in decisions that are taken. Unfortunately, for those reasons, I am not going to accept the amendments that have been put forward.
The Minister has said that it is usual for people to interview for positions. Take the position of a lecturer or professor in a university. It is extremely unusual to say that the only groups of people who cannot be there at the interview board are lecturers or professors. That is what we are doing here. As Senator Ward said, if someone is to be appointed to a medical position, it is extremely unusual to say that the only people who cannot have any input into the decision at all are other medical practitioners. That is what this Bill is achieving. I accept the Minister's point that we would not have this legislation at all if JAAB was perfect. However, to say this is an improvement on JAAB does not and cannot mean that it is the ideal solution. I do not accept the proposition.
I often wonder who these laypeople are going to be. I am fairly certain they will face a cohort of judges and the judges are going to be in a position to discuss things beforehand and the laypeople will find themselves slightly on the outside. The groups of people who could come to the aid of the process and with whom appointers could discuss the matter are other practitioners, who could be asked if particular candidates are really as good as they are making themselves out to be. I would like the Minister's input on that point.
The Minister also made the point that a young District Court judge may be on the Bench. How likely is it that the Judicial Council is going to select the most recently appointed judge to go forward to this body? If I know judges, the least likely outcome is that they would appoint the most junior judge to this body when there are others who have spent 15 or 20 years on the Bench. Those judges are not going to prefer a barrister or solicitor who has recently been appointed a judge in order to find out what the professions think about the suitability of a candidate.
The Minister is well aware that everything in the legal profession is changing. The majority of practitioners on both sides are now women, or that is nearly the case. We do not have to lean over backwards to achieve gender balance in the professions. The professions are gender balanced at the moment. As far as I can see, the Bar Council of Ireland is a gender-balanced entity. We recently had two women chairpersons. The notion that barristers or solicitors should be excluded because they are barristers or solicitors is indefensible.
The point is that the definition of a layperson in section 2, which is the section we are dealing with, excludes barristers or solicitors, effectively, unless they are well out of practice. In its totality, this Bill means that the only groups of people being excluded from becoming members of this commission in any shape or form are practising barristers or solicitors. Of all the people who could be on the commission, this Bill goes to considerable trouble to state that a practising barrister or solicitor can never be part of this process. For the Minister to come before this House and say she has great respect for the two professions is fair enough, and I take her at her word. However, we are being asked to enact a Bill for the first time - and the former Minister, Deputy Flanagan, never tried this trick - to state that the only groups of people who cannot have any input whatsoever into the deliberation of this commission are practising barristers and solicitors. They are somehow considered unsuitable to participate in this commission because they are practising. That is the logic. Section 2 states that these professionals do not qualify as laypeople and are not judges. Therefore, the Bill is stating that veterinarians, advertising agents or medical doctors can be on this commission but a woman who is a practising solicitor or barrister is deemed unsuitable to serve on this commission. I do not accept that. I do not think there is any logic to it. A frozen mind is being brought to this issue, based on the proposition that we want to keep the commission small and even between laypeople and people who have legal experience. We are confining it, therefore, to judges versus laypeople, one block against another, when we could so easily have done what the former Minister, Deputy Flanagan, did, that is, to provide that the two professions could be represented on this commission.
When the dust settles on the debate around this Bill, we are saying to practising barristers and solicitors of either gender that as a matter of law, they are the only people who cannot participate in this commission for some ideological reason. That is wrong.
A truism that is constantly put forward in the context of all boards is that we need boards to be much smaller. It is a message that comes out again and again but without evidence.
In general, with regard to "nothing about us without us" and all these other principles for which we argue in different ways, there should be an openness to moving to 13 if that is the case. It is not so much to the Minister solely but I have noticed a pattern in State appointments. There is a narrowing and I worry about the weighting of the importance of having a small board. It is important there is at least an equivalent lay number of majority but I also think something can be added by those professions, so I think 13 is something that should be looked at. We will come to it later but I note one thing that could free up a space. The Minister will note that I suggest later that the Attorney General should be solely an observer and should not be a member in that context. This could open space within the constraints placed upon us in terms of adding numbers.
I also note that regarding the categorisation of lay persons, I am worried that there is some narrowness in terms of aspects of the lay experience and that we will end up with a very narrow contingent of the lay population who qualify because certain professions and expertise seem to be very strongly privileged over other very relevant areas of expertise but we will come to those amendments in due course.
We are not talking about the degree of connection to the profession here. Regarding the two nominees from the Judicial Council, it is about an understanding of the role, how it operates, how people feel and an appreciation and understanding of what is required. This is why we have the interview process as well. It is not about the connection to the profession and removing that connection or suggesting it is not important. It is about the role itself, and making sure the interview process focuses solely on the role and somebody's suitability for it. That is why we have set this out.
How stands the amendment?
I am pressing the amendment.
Amendment put:
The Committee divided: Tá, 9; Níl, 20.
Tá
- Boyhan, Victor.
- Boylan, Lynn.
- Craughwell, Gerard P.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Keogan, Sharon.
- McDowell, Michael.
- Ó Donnghaile, Niall.
- Wall, Mark.
Níl
- Ahearn, Garret.
- Blaney, Niall.
- Buttimer, Jerry.
- Casey, Pat.
- Cassells, Shane.
- Chambers, Lisa.
- Conway, Martin.
- Crowe, Ollie.
- Cummins, John.
- Davitt, Aidan.
- Fitzpatrick, Mary.
- Horkan, Gerry.
- Kyne, Seán.
- Lombard, Tim.
- Murphy, Eugene.
- O'Loughlin, Fiona.
- O'Reilly, Joe.
- O'Reilly, Pauline.
- Ward, Barry.
- Wilson, Diarmuid.
Tellers: Tá, Senators Michael McDowell and Gerard P. Craughwell; Níl, Senators Seán Kyne and Lisa Chambers..
Amendment declared lost.
Section 2 agreed to.
Sections 3 to 8, inclusive, agreed to.
SECTION 9
I move amendment No. 3:
In page 10, line 27, to delete “9 members” and substitute “11 members”.
Amendment put:
The Committee divided: Tá, 9; Níl, 19.
Tá
- Boyhan, Victor.
- Boylan, Lynn.
- Craughwell, Gerard P.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Keogan, Sharon.
- McDowell, Michael.
- Ó Donnghaile, Niall.
- Wall, Mark.
Níl
- Ahearn, Garret.
- Blaney, Niall.
- Buttimer, Jerry.
- Byrne, Maria.
- Casey, Pat.
- Cassells, Shane.
- Chambers, Lisa.
- Conway, Martin.
- Crowe, Ollie.
- Davitt, Aidan.
- Fitzpatrick, Mary.
- Horkan, Gerry.
- Kyne, Seán.
- Lombard, Tim.
- Murphy, Eugene.
- O'Reilly, Joe.
- O'Reilly, Pauline.
- Ward, Barry.
- Wilson, Diarmuid.
Tellers: Tá, Senators Michael McDowell and Gerard P. Craughwell; Níl, Senators Seán Kyne and Lisa Chambers..
Amendment declared lost.
Amendments Nos. 4, 6 and 11 to 13, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 4:
In page 10, line 30, to delete “2” and substitute “3”.
I will speak to the grouping because amendment No. 4 is consequential on the other amendments in this grouping. The core of this grouping is amendment No. 6, which would delete the provision in the Bill as stands that the Attorney General would sit on the judicial appointments commission. During the pre-legislative scrutiny of this legislation by the Committee on Justice, the committee heard from a number of key stakeholders including the Law Society of Ireland, the Irish Council for Civil Liberties and academic experts including Dr. Laura Cahillane, Dr. Tom Hickey and Dr. David Kenny, that the Attorney General should not be a member of the commission. For example, the Law Society of Ireland's submission to the committee noted:
If the new Commission is to be genuinely independent in its functions, there is no reason for the Attorney General, who also sits at the Cabinet table, to participate. ... To the contrary, it becomes more difficult to defend the independence of the process if a significant player has a dual role both prior to, and post, the Commission’s recommendation.
On the issue of the dual role, it was also clear that as the chief legal adviser to the Government, the Attorney General would be taking part in Cabinet deliberations on the nomination of judges. If this is something new and we are creating this independent judicial appointments commission, we should not have a scenario whereby you have somebody involved who is appointed solely as part of the Government and who answers solely to the Government. We must bear in mind that none of us can see the Attorney General’s advice on anything as he or she is solely in a relationship with the Government in that regard. It is not an independent public role but one solely serving the Government. We cannot have a scenario where such a person would be allowed to sit on the commission and potentially have an important role, on the one side sitting on the commission and on the other side in the Government’s final decision on judicial appointments. It muddies the process and compromises its independence.
My amendment No. 4 is a consequential amendment which recognises that were we to remove the Attorney General from the commission, the number of spaces would need to increase. I had two amendments, one of which was to increase the number of laypersons accordingly and another one, which was to increase the number of other appointments. I understand that my amendment on laypersons was ruled out of order, which I was surprised by because I was told about the charges on laypersons and increasing the number of laypersons. I am surprised and that points to a wider problem whereby incidental costs are stopping us from making good legislative proposals. I have given two different ways whereby the removal of the Attorney General could be replaced. Some of the proposals put forward by Senator McDowell and others could be other potential substitutions following the removal of the Attorney General.
The other set of amendments in this grouping includes amendments Nos. 11 to 13, inclusive, and they go into a little bit more detail. Amendment No. 11 is consequential on amendment No. 6. Having removed the Attorney General from the commission, there would no longer be a need for the Attorney General to be removed from the voting because the Attorney General would not be a member of the commission. What are more substantial and relevant are amendments Nos. 12 and 13. Even if the Minister does not accept my proposal to remove the Attorney General, which would be wise and appropriate, amendments Nos. 12 and 13 seek to at least provide a greater degree of clarity and care around what role the Attorney General could play in the functioning of the judicial commission. Amendment No. 12 would add a new subsection to section 9, providing that "The Attorney General shall not, as a member of the Commission, play a role in the selection or recommendation of persons for appointment to judicial office in the Supreme Court”. So there is a provision stating that the Attorney General may not vote on a votable measure but there is no provision whereby, for example, the Attorney General could not end up playing the key role in the recommendation, nomination or selection of persons. The Attorney General could play a significant role right up to the point of the vote. That is a concern, especially given that dual role the Attorney General will then play in the Government’s final decisions.
My amendment would ensure the Attorney General would not have a role in the selection or recommendation process for domestic judicial offices. It is a compromise on my previous amendments, which removed the Attorney General entirely but it reflects recommendation 8 of the Committee on Justice’s pre-legislative scrutiny report on this Bill, which was to carefully revise the role of the Attorney General on the commission. The revision we are proposing would enhance the independent decision-making and independent operation of the commission when it comes to filling vacancies in our domestic courts. Again I note that in its submission to the committee, the Law Society of Ireland expressed a need for a greater independence. In addition, Dr. Cahillane, Dr. Tom Hickey and Dr. David Kenny noted that having the Attorney General also sit on the judicial appointments commission gives this law officer an outsized influence on the process. Those experts noted that it has been common in the past for Attorneys General to take up positions as judges in the superior court upon leaving office, again making it a little bit of a concern if they are intimately involved in the selection process for judges.
Amendment No. 13 is an alternative to amendment No. 12. Amendment No. 12 effectively removes the Attorney General from the selection and nomination process completely. Amendment No. 13 is a compromise to the compromise. It would simply remove the Attorney General from the key “role in the selection or recommendation of persons for appointment to judicial office in the Supreme Court, Court of Appeal or High Court". These are particularly sensitive roles.
These are the courts that need to effectively hold the Government to account at times. These are crucial roles. We have had situations in the past where there has been something of a migration from Attorneys General into those courts. At an absolute minimum, we should be looking to remove any question of the Attorney General being involved in the search or selection process leading to the appointment of members of those three senior judicial bodies. I will be happy to hear the Minister's response. I have further examples. This issue came through from multiple stakeholders who spoke to the Joint Committee on Justice. I urge that this anomaly be addressed because it will start us off on the wrong footing in terms of the independence of this new body.
I find myself in a difficult position on this. Although I fundamentally and wholeheartedly disagree with Senator Higgins, I find my name on one of the amendments she has tabled. For her it is consequential but for me it is primary. What my amendment, No. 11, seeks to do is remove the restriction in section 9(3) on the Attorney General having a vote on the commission. I do not think we should be removing the Attorney General from activity by him or her in any future decisions relating to our judges. I spent a lot of time earlier this evening talking about the importance of the involvement of the professions. As the leader of the legal professions in Ireland, the Attorney General is absolutely an appropriate person to be involved in that. The very academics to whom Senator Higgins referred were people I listened to carefully at the Joint Committee on Justice. They are seeking to substantially, if not completely, neuter any political activity in the context of judicial appointments. On the face of it that sounds like a good thing. There should be no politics in the Judiciary. I agree with that but there should be democracy. I have made this point already. There has to be a democratic element in the appointment of judges in this State because they are a branch of government. In a common law jurisdiction, they are particularly important one because they form part of a coterie of people who actually make the law. It is perhaps not in the same formalised way that the Legislature and the Executive do but they nonetheless interpret the documents that come from these Houses and apply them to the law and tell us what they actually mean. They are an important branch of the Judiciary. It is for that reason that, constitutionally, they are a branch of government. It is for that reason that the Government, as the delegate of the people, is involved in appointing those persons. The academics who were referred to seem to totally disagree with that notion. They want to absolutely remove the autonomy of politicians and the Cabinet in making those decisions, notwithstanding the fact that, over generations, those decisions have actually proven to be sound. The people who have made up our Judiciary have proved to be excellent lawyers who have followed the law rather than their own opinions or preconceptions. They have applied the law in an even way, which has benefited this whole country. We have benefited much more than our nearest neighbour, another common law jurisdiction, from a Judiciary that applies the law without fear or favour. I am not saying it is perfect by any stretch or that it has always got it right but we do not see the same level of interpretation in a particular vein in this jurisdiction as there might be in the other common law jurisdictions on either side of this country or the bodies of water either side of it.
What I am trying to do in amendment No. 11 is give the Attorney General a greater role in the process to allow him or her to have a proper voting role. The proposal is that the Attorney General be a member of the commission in any event. It stands to reason to me that he or she would have a voting role in that. Another later amendment of mine would deal with the issue that has been raised in relation to possible tied votes and things like that. There is a myopia to the decision that the Attorney General should not be part of this because the Attorney General is accountable to the Government. The Attorney General is also the law officer of the State. The Attorney General is a professional lawyer. The Attorney General has an insight into what is required of judicial office in a way that very few people on this commission, including the judges themselves, will have. To my mind, it is right and proper that he or she should have a more involved role, not a lesser one. That is why I am bringing forward amendment No. 11.
I find myself in the same position as Senator Ward. I find myself put down as a co-sponsor of an amendment that has been proposed for a very different reason by Senator Higgins. I am very happy to co-operate with her in any sensible way but I want to put on the record that my signature to this amendment, and those of my fellow Independent Senators, is for the precise opposite reason to hers. There is a number of things I want to say on all of this. First, the Attorney General is a constitutional officer. The Attorney General is not some political hack put in by the Government simply to do its bidding. The Attorney General, on the contrary, is a constitutional officer who has functions under the Constitution, such as nominating counsel in Article 26 references. Much more than that, the Attorney General is the adviser to the Government on issues such as the constitutionality of proposals that come before the Cabinet for scrutiny or legislation. The Attorney General is the person who advises the Government as to whether proposals for legislation are compatible with the Constitution, with EU law or with obligations under the EU treaties. Having held the office, I know this to be the case. The Attorney General is the person who, on occasion, may be asked to vindicate the rights of individuals where they stand to be infringed, such as people who are being denied their rights. The Attorney General has a function to vindicate the rights in present circumstances, to uphold the laws of the State and to take injunctions against people who are infringing the laws of the State or the provisions of the Constitution. It is unfair to take the view that the Attorney General is a highly political person whose function is to do the political bidding of the Government. It is quite the reverse. Any person who has served in Cabinet will find that the Attorney General is the person who, more than anybody else at the Cabinet table, tells them what they cannot do rather than what they should do. There is a misconceived notion that the Attorney General is somehow a political figure whose judgment in relation to the appointment of judges is somehow suspect. It is the contrary.
I will go back to the point I made at the very outset of this debate. When I was Minister for Justice and Rory Brady was the Attorney General, a great many judicial appointments were made. We knew at the time that the great majority of them were people who did not come from the same political stable as did either he or I. The appointments were made on merit. They were made, first because the people involved were vetted in the great majority of cases by the Judicial Appointments Advisory Board and found to be worthy of appointment, and second, because they struck us as people who would improve the quality of the Judiciary. I make the point because there seems to be some notion, and I agree completely with Senator Ward on this, that the Government has no function in determining who becomes a judge. Even this Bill, however it is read, will put before the Government three names. Why allow the Government to select from those three names? What is the logic of that? If people were to be totally purist it should just be one name and the Government should not be given any choice, if the anti-political and anti-democratic viewpoint is correct.
I believe that view is wholly incorrect and that the appointment of judges is, as Senator Ward said, a democratic function envisaged by the Constitution to be carried out by one of the organs of government, namely, the Government itself, through advising the President. What is the logic of allowing the Government to choose from a shortlist of three? If one thinks about it, why should it have any say at all? Is it in a better position than the judicial appointments commission to vet people's suitability on grounds of merit? This is where I have a fundamental problem with some of the provisions of this Bill.
If you concede the proposition that the Government has a constitutional right and duty to make appointments to the Judiciary in accordance with its judgment of the matter - and, constitutionally, you must - even if the Government is restricted to a shortlist of three, the principle is conceded that it is the Government, qua Ministers nominated and appointed by the will of the people through the Dáil, that decides which of the three people is to become Chief Justice or a member of whatever court the shortlist refers to. If that is right, certain things flow from it. One is that the Government is entitled to know which of the three people before it is best qualified and to take the advice of the Attorney General on that issue. If the Attorney General is the legal adviser to the Government, he or she is entitled and duty-bound to express a view as to the suitability or unsuitability of any of the three people on the shortlist before the Government if that view is relevant to the appointment which may follow.
There seems to be a complete schizophrenia on this matter. People think that the Government should somehow not have a role in determining who becomes a judge and yet we are enacting a Bill that states that it must have a role, although it must also be confined to three names put before it by another body. What Senator Ward said is 100% true. This democratic function envisaged by our Constitution is being heavily curtailed. Whether that curtailment is constitutional itself is a matter on which I have some views. It may be that the Attorney General now believes that the requirements of European law and our adherence to European law standards entitles the Legislature to confine the right of the Government to the appointment of persons recommended to it rather than to make appointments at large.
I will now come back to my point about the function of the Attorney General. If he or she is going to be on this commission at all, we cannot have the Attorney General sitting there like a eunuch in a harem, not allowed to say or do anything but just observing what is going on in the commission like some kind of constitutional voyeur. It makes no sense to have a member of a commission, especially a small commission of reduced size, sitting there and watching what everybody else is doing while not participating in any shape or form in the discussion, in the debate or in the decision made by that commission. It is interesting to note that the Minister's Bill allows the Attorney General to propose people for inclusion on the shortlist at the judicial appointments commission and to oppose people proposed by others. He or she is entitled to do all of that but, under the Minister's text, he or she is not entitled to vote on the issue. He or she is entitled to influence the debate and say whatever he or she thinks about the candidates. The Attorney General is entitled to suggest that one candidate is better than another but, having made that contribution, is not entitled to be part of the decision should the matter come to a vote. Where there is no vote, under the Minister's version of the Bill, the Attorney General is a full participant in the process. If the commission is operating on consensus, the Attorney General is as entitled as any other member of the commission to play a full part in the deliberative process and, it must be presumed, in interviewing and setting out rules or procedures.
Where I come from on this question - and this is why it is ironic that Senator Ward and I find our names appended to an amendment put down by Senator Higgins for an entirely different purpose - is that the Attorney General is a very suitable person to participate in the activities of the commission, especially because, once the shortlist gets to Cabinet, he or she is perfectly entitled to strongly support a given candidate over others and to tell the Cabinet that, in his or her view, those other candidates are simply not suitable. The Attorney General is perfectly entitled to do that. If he or she is entitled to do that when the decision arrives at Cabinet, I see no reason for it to be somehow wrong for him or her to participate in the process leading up to that point.
I will make another point. This is something that some of the critics who have committed themselves to paper, including the academics Senator Higgins mentioned, seem to have missed. If the names of three different people come before the Cabinet for appointment to the Supreme Court, it is not some kind of chemical or mathematical formula that is used to decide which of them the Cabinet should put on the Supreme Court. If the Cabinet wants a liberal Supreme Court, it will go for the person who appears most liberal. If it wants a more diverse Supreme Court, it will look at the three candidates by reference to diversity in making its decision. If the Cabinet wants a more conservative Supreme Court, it may appoint the person who appears the most conservative of the three people on the list. There seems to be a notion that the Cabinet is somehow apolitical - I use that word in the democratic rather than the party political sense - in deciding that it wants another woman, a liberal woman or a conservative man on the Supreme Court or that the balance of the court requires a certain type of appointee but that is an entirely political decision being made by the people the Constitution entrusts with it. Even if the Government has a shortlist to work from as a result of this legislation, the decision remains profoundly democratic, political and accountable. The Government will choose which of the three persons is appointed to the Supreme Court.
Who is appointed to the Supreme Court matters. We do not need the wild American kind of political Supreme Court constituted along ideological lines for this to be the case. Ideology with a small "i" and things like liberalism, conservatism and so on are entirely reasonable bases on which to choose between recommended candidates, especially when they come without any stated order of preference from the judicial appointments commission. There is another point that has to be made about the role of the Attorney General.
Supposing that after five years, the Judicial Council is found to have constantly come up with one type of person rather than another. Suppose Senator Ward was a candidate and was constantly refused inclusion on the list going to the Government from the Judicial Council. Is it wrong that the Cabinet knows that this is happening? Is it wrong for members of the Cabinet to scratch their heads and say, "How come he's never on the preferred list? People come and go on the preferred list but he's never there. The four judicial people on the council seem to be vetoing that man for appointment to any of the superior courts or any court position." Is it right that the Government should know this is happening? Of course it is right. That is a point about this legislation. It is important that the Government should know who all the applicants were because it can then say, "Isn't it strange that Joe Bloggs or Josephine Bloggs never gets nominated by the judiciary. Have they a downer on him or her?"
I notice the Bill says that the commission can decide its own procedures but of the nine members of the Judicial Council, is there any right for three or four of them to insist that somebody's name at least gets to the Cabinet if five people say "No"? Is there something akin to proportional representation? Is there any right for a number of the members of this council to say, "We keep getting an application from Joe Bloggs or Josephine Bloggs. We think that person is suitable and a yet a majority on this commission keep saying "No" to that person." Is there no right for their nominee or the person they favour ever to be considered by Government just because they are in a minority? I wonder about the correctness of it. The Bill does not actually say that the composition of the list shall be determined by a majority vote in respect of each person. Is it permitted for the commission to accord to a minority the right to select at least one person in three if there is a division of opinion regarding which people are suitable to go to Government or must everything be decided by a majority so that there are separate votes on candidates A, B and C?
Section 51 states that in advising the President regarding the appointment of a person to judicial office in the State, the Government shall only consider for appointment those persons who have been recommended by the commission to the Minister under section 47. If a person has been recommended three times and is not on the fourth shortlist, which comes before the Government in respect of a particular vacancy, is the Government by reference to what is in section 51(1) entitled to say that this person has been nominated before and it is surprised to see that person is now off the list and that other people are being put on instead? Strictly speaking, that person is somebody whose name has been recommended by the commission in the past though not on this occasion. If that is what the Bill is supposed to say, it should say so. At the moment, it just seems to say that the Government can appoint any person whose name has been recommended, not is being recommended, for the particular vacancy. I would like the Minister to clarify this question.
Returning to my amendments, which relate to the Attorney General, if amendment No. 6 is not successful, I will not move amendment No. 11 so you will have it all to yourselves. I will certainly be opposing it if amendment No. 6 is not successful. The statements here have made the case for my amendments. I have not opposed the political stage of the process. My amendments do not seek to remove that discretion of the Cabinet between the three persons. As has been described, it is very likely that there will be multiple considerations applied in the Cabinet selection process, some of which may involve eyes with whatever size of eye attached to it in terms of ideology. This is why we are meant to be putting in place a process that has an independent stage previously and then a stage where the Cabinet looks and chooses which person it prefers from those deemed to be appropriate.
The problem is that the Attorney General is in both parts of the process. The Attorney General will be giving advice in respect of the deliberations of Cabinet between the three candidates put forward to it. As a result, it is inappropriate for the Attorney General to also be in a position to propose or oppose those in the other independent part of the process. There is a blurring of the lines between two processes where one is meant to feed into the other and the Attorney General is placed inside both of them. It is a concern.
We mentioned how candidates A, B and C might go forward and the Attorney General might say candidate B or C is a problem. None of us will be privy to that information because the Attorney General's relationship when it comes to giving advice to the Cabinet is bound by Cabinet confidentiality. There is a problem for all those engaging in the judicial appointments commission when one of its members says whatever. It is fine for the Attorney General to give confidential advice to the Government but it is a concern if people come out of one process and give unknown input onwards. There is almost a dual recommendation system where we will have the official three recommendations and then whatever the Attorney General says. I am not saying the Attorney General should not have a role but his or her role rightly belongs around the Cabinet table giving input at that point. To have the Attorney General in two different parts of the process is a problem and I am more convinced of that from today than ever before.
I urge the Minister to consider moving the Attorney General from this part in the process. If the Attorney General is to be there, and I agree it is frustrating to be solely in what is effectively an auditing role, I believe he or she must be in such an auditing role. If the Attorney General was to have such an auditing role, an actual active role for people who could vote and do all the other parts of the process could be created even within the limitations of the nine members.
I thank Senators for their amendments. Amendment No. 4 very much relates to whether or not amendment No. 6 is passed and is to balance out the number. I appreciate that. I reiterate what many colleagues have outlined. The Attorney General is a constitutional officeholder. He or she is not there to represent the Government. He or she is not on the commission to represent the Government. He or she is independent of the Government. That needs to be very clear. The independence has been consistently recognised in decisions of the Irish courts. The Attorney General also has a role in upholding the Constitution, including a duty to ensure the independence of the Judiciary.
Progress report: Committee to sit again.
When is it proposed to sit again?
At 10.30 a.m. tomorrow.
Cuireadh an Seanad ar athló ar 8.30 p.m. go dtí 10.30 a.m., Dé Céadaoin, 19 Deireadh Fómhair 2022.
The Seanad adjourned at 8.30 p.m. until 10.30 a.m. on Wednesday, 19 October 2022.