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Dáil Éireann debate -
Tuesday, 12 Dec 1995

Vol. 459 No. 6

Courts and Court Officers Bill 1995: Report Stage.

I move amendment No. 1:

In page 7, between lines 22 and 23, to insert the following:

"7.—From the date of operation of this Act, a judge sitting in any Court shall be addressed as `Bhreitheamh' or `Judge'.".

There is a typographical error, the amendment should read: "As and from the date of the coming into operation of this Act, a judge sitting in any Court shall be addressed as `a Bhreitheamh' or `Judge'.". It was Shakespeare in one of his more romantic moods who said that a rose by any other name would smell as sweet.

I thank the Deputy.

That has a certain amount of merit, but from the Circuit Court up a judge is normally referred to by counsel as "my Lord". Symbolic vestiges of what one might describe as old Victorian decency have no place in post colonial Ireland. The time has come to express the view that this is a young Republic in a new Europe and that the addressing of a judge as "my Lord" is now arcane, belongs to a different age. We do not have nobility or lords, in so far as there are lords my understanding is that they are attached to the British House of Lords. In those circumstances this amendment should be accepted by the Minister.

It is noteworthy that in section 6 the Minister proposes that the Supreme Court would be constituted of the President thereof, namely, the Chief Justice, who is described in this section as An Príomh-Bhreitheamh. Section 6 (2) (b) states that ordinary judges of the Supreme Court shall be styled as Breitheamh den Chúirt Uachtarach. In those circumstances there is a solid reason that in future judges would be referred to as "a Bhreitheamh" or "Judge". That would be much more prudent and appropriate to the Irish Republic than any terminology which refers to nobility, which is a relic of our colonial past.

I support the spirit of the amendment. In the equality provisions in the Constitution there is reference to not conferring titles of honour or nobility on citizens, but the Courts Act of the 1960s provided for a mode of address. The reason I am particularly moved to support Deputy O'Donoghue's amendment is that there are a number of women judges in our courts and they find themselves in the peculiar position where barristers call them "her lordship" or "her ladyship"— one High Court judge stated that she wants to be referred to as "Judge". The time has come for this matter to be regularised, but I suggest that the proper place to do so in the rules of the courts.

Hear, hear.

I strongly endorse the spirit of Deputy O'Donoghue's proposal that the titles used are effectively Anglo-Norman titles which are not appropritate any more.

I support the amendment. As Deputy O'Donoghue said, lords disappeared from Ireland in 1922. After a great struggle, we managed to get rid of some of the archaic dress in the courts and what we are trying to do here is get rid of the archaic language. There is an onus on the Minister to explain why she refuses to accept this eminently reasonable amendment. I take Deputy McDowell's point that this change may be made in the rules of court but we should take the opportunity to do so here in similar circumstances as the mode of dress has been changed. If the Minister does not take on board the amendment I would be intrigued to know the reason.

I thank Deputy O'Donoghue for the amendment. Deputy O'Dea first castigated me for refusing to accept the amendment and finished by saying that if I do not accept it he would like to know why. The Deputy had not even heard my comments on the amendment when he castigated me for refusing to accept it.

I sat through Committee Stage and know what to expect.

It reminds me of the old expression that you should get your retaliation in first, and the Deputy is good at getting in ahead of what I am going to say.

I accept the principle behind the amendment, to ensure that with the passage of time the procedures of the court are modernised. A number of steps have been taken in this Bill and previous legislation to make such changes, but I am not convinced it is appropriate to deal with the amendment in this primary legislation. As Deputy McDowell said, that is a matter of procedure that comes within the responsibility of the rules committee, which is made up of judges and others. The Superior Court Rules Committee includes the Chief Justice, the President of the High Court, the Master of the High Court, two practising barristers and two practising solicitors. Rules made by various committees provide for the modes of address of judges in the Superior Court, Circuit Court and District Court. I am satisfied that if judges wish to change their mode of address they could put forward suitable proposals to the rules committee in that regard.

I wonder what we would think if somebody outside this House decided we should change our title. I think we would want the Committee of Procedure and Privileges to consider the matter. There are probably people outside this House who think the very civilised rule of bowing is a little out of date. We do not normally bow to each other in normal relationships with people, but Members are obliged to show respect for the Chair. It is not appropriate for Members to deal with this matter in primary legislation. I have no doubt this debate will be brought to the attention of judges who may consider the customs and practices in the courts and perhaps change the terms of address themselves. There is merit in what Deputy O'Donoghue said. I recommend that he raise the matter with the working committee on the courts and make judges aware of his views on how they should address each other. The remit of that working group is to consider such issues. I do not believe it is appropriate to include the provision in this legislation.

My instincts were right.

I thank the Minister for her reply but I fundamentally disagree that the matter should not be legislated for. Surely it must be accepted that this House has responsibility in the final analysis to give a lead in such matters. It has been my experience that the rules committee to date has not decided to implement changes such as this, nor am I aware of any proposal brought before that committee to discuss the issue. In those circumstances I believe the relevant provision should be inserted in the Bill.

Under the Courts (Establishment and Constitution) Act, 1961, to which I referred in the context of section 6 (2) of this Bill, the style by which the Chief Justice and ordinary judges of the Supreme Court are to be known is specified in Irish. I see no difficulty with this House deciding, as an expression of its independence and mature and sovereign place in the world, that our judges would be addressed in appropriate Irish or, if they so prefer it, English terminology. I would have thought that would be an important symbolic act in the context of a new young Ireland which is emerging ever more strongly in a new young Europe.

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 8, to delete lines 30 to 33 and substitute the following:

" `judicial office' means an office being the office of Chief Justice, ordinary judge of the Supreme Court, President of the High Court, ordinary judge of the High Court, President of the Circuit Court, ordinary judge of the Circuit Court, President of the District Court or judge of the District Court.".

This amendment was discussed in great detail on Committee Stage and I do not intend to devote much time to it, but other Members may have different views. The effect of the amendment provides that the Judicial Appointments Advisory Board should recommend persons for appointment to all judicial offices, including the positions of Chief Justice and president of the various courts. The Minister for Justice rejected a similar amendment on Committee Stage. It is difficult to understand why an amendment such as this would be rejected. If the argument is advanced with any degree of cogency that the appointment of judges to the various courts should be recommended by the Judicial Appointments Advisory Board, it is difficult to understand the logic of excluding from the remit of that board persons who may be appointed president of those courts or Chief Justice.

Some judges might not like their peers to make recommendations to Government in respect of their suitability for appointment to the position of president of a court or Chief Justice. It is difficult to understand why such an individual is obliged to go before that board to be appointed a judge in the first instance. It might be considered that eminent judges might not be inclined to go before the Judicial Appointments Advisory Board for fear that they might not be recommended for the presidency of a given court or the position of Chief Justice. Conversely, and with equal cogency, the argument can be made that an eminent barrister working in the Law Library might not be inclined to go before that board because he or she would be aware that its composition would have been considerably widened and colleagues might learn that the board did not recommend that individual's appointment. To quote Shakespeare, if a barrister of long standing, earning a substantial sum of money were "to do the State some service", that barrister would not like word to spread to colleagues that he or she had failed for the fourth or fifth time to be recommended by the Judicial Appointments Advisory Board.

That would not be the case if he were a Fianna Fáil supporter.

Irrespective of whether he supported Fianna Fáil or Fine Gael, I assure Deputy McGahon that under this Bill no supporter of Fianna Fáil would have much chance of becoming a judge.

They were looked after down the years.

They were well looked after.

The recent two appointments must have slipped by the Minister. If we go down the road of judicial appointments being recommended by a Judicial Appointments Advisory Board and the requirement that all those who wish to become judges must go before that board which recommends appointments to the Minister, it does not seem logical to exclude the appointment of presidents of the various courts or the position of Chief Justice from the remit of that board.

Considerable time was devoted to a similar amendment on Committee Stage. Under the 1994 Bill the appointment of presidents to the various courts was excluded from the remit of the Judicial Appointments Advisory Board, but Deputy O'Donoghue's amendment seeks to include them within the remit of the board. On Committee Stage I said that it was appropriate that individuals applying for the position of president of one of the various courts should not have to go before the Judicial Appointments Advisory Board.

The Government will be guided by section 23 of the Bill which obliges the Government to have regard for the suitability of serving judges when appointing persons to fill these high offices. Like politicians, the work of most judges, with the exception of cases held in camera, is open to public scrutiny, criticism, praise and the glare of the media. The public can assess if judges are suitable for the high office of president of the court in which they serve. It is not appropriate that such individuals should be obliged to go before an advisory board as many of them will have gone through that procedure to become judges. A barrister or solicitor who is appointed a judge must go before the Judicial Appointments Advisory Board. Judges who are considered for the position of president of the various courts of Chief Justice will have gone through that procedure when their appointments were recommended by the Government of the day to the President. It is not appropriate that judges should go before the advisory board for such senior positions. The Government should retain the initiative to consider the suitability of serving judges for those high positions. Deputy O'Donoghue has not said anything to change my mind in that regard. Despite the speed with which the earlier Bill was prepared, it was decided that it was appropriate that appointments to such high offices should not fall within the remit of the Judicial Appointments Advisory Board.

In case Deputy O'Dea speaks on this, I retaliate by saying that I could not anticipate what decisions might have been made if the earlier Bill had gone to Committee Stage. I can only respond to what Deputy O'Dea said on Committee Stage that almost everything that was included in the earlier Bill that his party wishes to include in this one seemed to be up for grabs on Committee Stage.

That is what Committee Stage is all about.

Neither Deputy O'Dea nor I can anticipate what might have been decided if the earlier Bill had gone to Committee Stage. The provision in the earlier Bill to omit senior judicial appointments from the remit of the board was correct.

I outlined the logic of the matter and explained that what is sauce for the goose should be sauce for the gander. As the Minister has decided not to accept this amendment, the only logical conclusion I can draw is that she is not satisfied with the concept of a Judicial Appointments Advisory Board. If it is not appropriate for individuals being appointed to the position of president of one of the courts or Chief Justice to go before a Judicial Appointments Advisory Board and such individuals are to be appointed by the Government without recommendation, I draw the conclusion that the Minister and the Government suspect that it may not be the best idea for barristers seeking judicial appointment to go before that board for fear they may be rejected and that decision would be the subject of common gossip and, in some instances, a matter of ridicule, even of a jocose sort. As the Minister will not accept the amendment, I withdraw it.

Amendment, by leave, withdrawn.

We now come to deal with amendment No. 3. I observe that amendments Nos. 4 and 11 are related and suggest that the three amendments be taken together by agreement.

I move amendment No. 3:

In page 9, to delete line 3.

Amendment No. 3 seeks to delete the Attorney General from a position on the Judicial Appointments Advisory Board. Amendment No. 4 suggests that the chairman of the Law Reform Commission should be a member of the Judicial Appointments Advisory Board. In general terms, this amendment had already been explained on Committee Stage. My view and that of my party was that it is not desirable to have the Attorney General, who is an ex officio member of the Cabinet and the first law officer in the land, as a member of the Judicial Appointments Advisory Board, first, for the reason that he is a member of the Cabinet and, secondly, his independence is being interfered with where judicial appointments are concerned. It would be preferable if the Attorney General were to advise the Minister and the Government on the suitability of the members recommended by the Judicial Appointments Advisory Board. I do not think he can do this with the same degree of independence if he is excluded from the board.

Amendment No. 11 is merely consequential in that it would provide that there would then be no need for the Attorney General to withdraw from the board if it was considering whether the should be recommended for appointment as a judge by the Judicial Appointments Advisory Board. In general terms it is not desirable that the Attorney General be a member of the board. I have explained the reasons and I leave it to the Minister to reply.

I support Deputy O'Donoghue's amendment. The Minister should take this last opportunity to have a careful look at the change proposed in this amendment and the onus is on her to explain the reason she is taking the President of the Law Reform Commission off the Judicial Appointments Advisory Board. She did not answer that question on Committee Stage. There is an onus on her to state precisely the reason she proposes to appoint the Attorney General to the board. To my knowledge that was not explained to anybody's satisfaction on Committee Stage.

As Deputy O'Donoghue said, I am sure the Minister will consult the Attorney General, when a person has been recommended for appointment by the Judicial Appointments Advisory Board, when she is making her final decision. From that point of view it is totally inappropriate that he should be on the board which submits the list in the first place. In the ludicrous situation where the Attorney General is interested, there is a provision stating that he must step aside from the board. If he steps aside from the board and is not appointed he participates in the debate relating to other appointments. This will not make for a good relationship between the Attorney General and his other colleagues on the board. I suspect the real reason the Attorney General is replacing the President of the Law Reform Commission on the board is to make up a part of a Government block of four, 40 per cent of the board, which would recommend not fewer than seven people to the Minister. The Minister is well aware that where 40 per cent of any board represents a particular interest it can ensure when submitting not fewer than seven names, that any desired name goes forward. That is the object of the exercise. The Minister should examine this carefully and tell us the reason she considers the President of the Law Reform Commission is not a fit person to be a member of the Judicial Appointments Advisory Board and the reason the Attorney General should be a member of that board, particularly when he has another function in relation to giving advice when the Minister or the Government of the day are making their final decision.

We have had a long debate on this issue and I am perfectly clear as to where Deputy O'Donoghue stands. Clearly, he wants to lay people off the board but I am utterly confused about Deputy O'Dea. I recall in his contribution on Committee Stage that he came around to saying that he did not have any great problem with lay people on the board——

Provided they were appointed independently.

——but he wanted to know who they would be.

Do not mislead the House. On a point of order, the Minister will not put words into my mouth about what I said on Committee Stage. It is on record. I said I had no objection provided they were independently appointed, not three of the Minister's hacks.

The Minister is in possession, let us hear her.

I was correct in saying that, in principle, the Deputy does not have any worry about lay people on the board, he is just worried about how they might be appointed. I remind Deputies, as I did on Committee Stage, that during the aborted Second Stage of the original Bill, the then Minister, Deputy Geoghegan-Quinn, in view of what many people said that they felt the advisory board was overloaded with legal people — judges, barristers, solicitors — but nobody with any other aspect to bring to the consideration of recommending names for judical appointment, wisely, said she would be open to considering that point on Committee Stage. I considered that point. I did not have a Committee Stage then because the Bill died. I believe the points made then were valid and reasonable and I have taken them on board in accordance with a good tradition in this House where there was a general feeling that the board would be strengthened by having lay people on it.

Members will recall that on Committee Stage I strengthened the appointment of those people by indicating the type of experience and knowledge they would need to be considered. I reject the allegation by the Deputy that it might live up to his expectations. It is wrong for Members to automatically assume that the names of the lay people I would bring to Government for consideration for appointment to the board would be of low calibre, of a particular persuasion or no persuasion. Members should deal with the issue rather than anticipate who those people might be and their particular affiliation. That is how I do my job. I ask Members to respect that I will not be necessarily bound by the words of Members opposite who say that, automatically, I must appoint three party people to the board.

We know the Minister's record.

They are implying I will have no other choice. I have already shown in a number of appointments to various boards how broadly based those appointments have been. I have no idea of the politics of a number of people I have appointed to various working groups, etc. I have asked various bodies to appoint people, some of whom may well be the biggest supporters of the Deputy's party.

I have not met them.

I do not really care if they can do the job I am giving them to do. The time has come for members on all sides to respect people for the job they might or might not do based on their qualifications for doing that job. Everybody in this country should vote. If you persevere you will find a political persuasion somewhere, it may be very deep. The appointment of three lay people to the board is a step forward and will strengthen the board.

The Attorney General has been appointed to the board. This is not because the President of the Law Reform Commission, even now or in the future, may or may not be a suitable person. It has no relevance to suitability. I have decided I would like to have the Attorney General on the board for precisely the reason Deputy O'Donoghue highlighted. The Attorney General will bring the information back to the Cabinet when it is considering the recommendations of the advisory board. It is right and proper that Office of the Attorney General, who is the senior law officer of the land, should be involved in the Judicial Appointments Advisory Board. Although the Deputies have prefaced all their remarks by saying they are not saying this about the present Attorney General, it makes me wonder whether they are drawing an inference——

——about the present Attorney General or some future Attorney General they might appoint if they ever return to Government. The Deputies should respect the office of the Attorney General.

This section should stand as it is. We had a detailed discussion on the matter and it is appropriate that the Attorney General should be on the board. It is also appropriate that there is an opportunity to appoint people who are not judges, barristers or solicitors to assist the advisory board in its work.

It has become clearer following the Minister's reply that the Attorney General should not be on the board. She stated that it was necessary for the Attorney General to be on the board so that he could subsequently advise her. It now appears that the Attorney General will not only sit at the court of first instance but that he will also be the court of appeal. This is undesirable for the reasons I have stated.

On the question of the three persons to be appointed by the Minister, nobody has objected to the appointment of lay people to the board. That is a figment of the Minister's imagination. Rather we are dealing with the motivation behind appointing three lay people to the board. It is clear that the Government intends to appoint these three people and the Attorney General to the board to give it, in effect, a 40 per cent shareholding.

Precisely.

Given that the Bill proposes that at least seven names should be submitted to the Government by the board for consideration for judicial appointment, it is evident to anyone with any sense that the intention is to make absolutely sure that the names the Government wants appear before it. In that context, anyone who believes anything else is living in fantasy land.

The interesting point is that when the Bill was originally framed in November 1994 the Labour Party had a considerable input into it. It trumpeted and heralded on the streets that this Bill would ensure transparency and openness in regard to the appointment of the Judiciary, regardless of the fact that under the 1937 Constitution this was a sovereign duty of government anyhow. The aim was to give the impression that the appointments board would be entirely independent. In that context, it did not refer to the three people who would be appointed by the Government or to the Attorney General.

The Deputy knows the reasons.

One wonders what happened during the past year. My suggestion is that inasmuch as the Bill was an urgent imperative one year ago, the Government worked flat out for one full year to make absolutely sure that it would take that length of time to produce this urgent imperative minimally revised in a most intriguing way. By including these provisions the Government will have a 40 per cent shareholding in the appointments board. This board will not be independent and nobody could believe otherwise.

If the Minister had said not more than three persons would be appointed by her and that one of these would be the President for the time being of the Chamber of Commerce of Ireland or the President for the time being of the Vintners' Federation of Ireland then she would have no difficulty in convincing Deputy O'Dea or me that the intention was to ensure there would be a lay input. However, it is clear that this is about a lay political input. Bolstering this point of view is the fact that not only will 30 per cent of the board be appointed by the Minister but the Attorney General, an ex officio member of the Cabinet, will also be appointed, bringing the Government's shareholding to 40 per cent.

I have nothing against the Attorney General — the present Attorney General is one of the finest legal brains of his or any other generation — but the Government is playing politics with this board and Bill.

That is nonsense.

A year ago the Labour Party had no difficulty in insisting on independence and transparency but it has now decided for some reason which has not been explained adequately to us by the Minister, to change its mind. This represents another blemish on what can only be described as the steel mirror of openness and transparency which the Government represents. There is no point in putting any amendment to a vote so I withdraw it.

Amendment, by leave, withdrawn.
Amendment No. 4 not moved.

We now come to amendment No. 5. As amendments Nos. 6 and 7 are related and amendment No. 8 is cognate, I suggest that we discuss amendments Nos. 5 to 8, inclusive, together. Is that agreed? Agreed.

I move amendment No. 5:

In page 10, line 28, to delete "at least seven" and substitute "not less than three and not more than five".

The Minister originally suggested to the House that the names of not more than ten persons would be submitted by the appointments advisory board for appointment to the Judiciary. This was subsequently changed to at least seven names. Under the original November 1994 Bill when the Labour Party was in Government with Fianna Fáil and following the famous meeting at Baldonnel it was proposed that the judicial appointments advisory board would recommend not fewer than three persons and not more than five persons. The idea at that time was to give some autonomy, limited though it had to be by the Constitution, to the appointments board in making recommendations to the Minister. It must have been perfectly clear to the Tánaiste and the Labour Party that if one extended the number of names which could be submitted to the Government then one would negate to a large extent the effectiveness and autonomy of the board.

I do not know what changed between November last year and December this year but we now have the extraordinary situation where the judicial appointments advisory board must submit at least seven names. I stress that the board is not being asked to submit for recommendation not more than seven names, but rather is being told to submit at least seven names. Given the Government's 40 per cent shareholding on the board this means that the board could decide to submit seven, 77 or 777 names. On one occasion the Minister for the Environment on the recommendation of this House sent each local authority a list of the applicants for lottery funding from their county requesting it to prioritise and return the list. The lists were returned but I do not recall that they were prioritised.

A post box.

I am beginning to wonder if the Judicial Appointments Advisory Board will operate in the same way. Will it decide in the final analysis that it is best to send the Minister for Justice at least seven names or in effect the names of all applicants? There is nothing in this Bill preventing the board from doing just that. If the board does so, what is it all about? We have a broadened board that can recommend many names to the Government. Guess who then makes the choice — the Government. With the changes that have been introduced during the past year one gets the feeling that the Labour Party, in particular, has decided that political expediency is the better part of valour. Having made that decision, the Bill has been changed to the point where theoretically this Judicial Appointments Advisory Board effectively could be called a charade. Its autonomy is gone, the Government holds a 40 per cent stake in its membership and every name that comes before it can be sent on to the Government for appointment to judicial office. It is difficult to understand that in the context of the 1994 Bill. I think the Minister should tell the House why the figures were changed from "at least three and not more than five names" to "at least seven names". One might as well have said at least 100 names or at least one because the board is left with the discretion — and perhaps it might consider it its obligation — to send as many names as it wishes to the Government for appointment to the judicial office. This makes no sense.

The amendments I have tabled are the original provisions but it appears to me that the story got lost in the telling as far as the Labour Party is concerned. At some point, quite when I do not know, the Labour Party changes its mind and decided it was not such a good idea after all to allow the board to take part in the selection process, that it would be better that the Government retain that discretion for itself. Labour party members did not turn up to debate this Bill, except one Minister who turned up briefly on Committee Stage, and they are not here this evening. That is extraordinary when one considers the Labour Party believed this legislation to be imperative in November 1994. What is even more extraordinary — mind boggling, in fact — is that the powers of the board have been so broadened that it does not appear to exist any more. That is the extraordinary political acrobatics that the Tánaiste and Minister for Foreign Affairs appears to be able to exercise on the high wire of political life.

The Minister has made much of the provisions of the earlier Bill and accused us of wanting to insert in this Bill things we did not include in the earlier Bill. One measure in that Bill was a proper filtering system for the Judicial Appointments Advisory Board. The 1994 Bill stated quite clearly that the Judicial Appointments Advisory Board should recommend not less than three and not more than five names for consideration for appointment to the Bench.

The amendment introduced originally by the Minister specified that the board would have to recommend not fewer than ten names. Under the 1994 Bill the totality of what was required of the Judicial Appointments Advisory Board was a list of names, not fewer than three and not more than five. Under this Bill it is proposed that the Judicial Appointments Advisory Board send two lists, first a list of everybody who has applied and, second, a list of not less than ten names for consideration. The Minister in an effort to delude us reduced the number from ten to seven, but that of course makes a difference because it states "not less than seven". Not less than one, not less than seven or not less than ten all means the same thing — the number of names the board is empowered to send to the Minister is unlimited. I can envisage many situations where the second list could almost be as long as the first list. As Deputy O'Donoghue rightly says, there is hardly any point in compiling the second list. The board will follow the example of the local authorties in relation to the allocation of lottery funds. Once the form is filled out properly it will send it on.

The one obstruction to the Government in taking total control lay in the fact that if the Government had somebody in mind for appointment and wanted him to go through the charade of applying to the Judicial Appointments Advisory Board it would have a problem if the person had not applied in the first place but section 14 (2) (d) provides that the board can alert persons to the vacancy and to send their name in for consideration. This is not a proper filtering system for judicial appointments but a transparent effort by the Government to retain total control of judicial appointments. If the Judicial Appointments Advisory Board is required by law to send forward not less than seven names and the Government of the day controls 40 per cent of the board, is it not obvious that it can ensure the name the Government wants is sent to it? This is a charade. There is about as much honesty to it as the Government's set of accounts for 1996 which is a transparent scam.

I say to the Minister and to the Labour Party, whose members are absent, that this will not wash. I said on Committee Stage that it will change nothing and will please nobody but one can be absolutely certain that it will not fool anybody either.

I support the amendments. We had a comprehensive debate on this issue on Committee Stage. The point needs to be hammered home to the Minister that the elaborate procedure we are putting in place does not appear capable of achieving the real objective of this Bill.

We have already criticised the fact that the Government has a 40 per cent veto, through its 40 per cent control over its nominees to the Judicial Appointments Advisory Board. In insisting that the number of candidates should be not fewer than seven — that is the number of names being submitted by the board to Government — for appointment to judicial office, the Minister is removing any power that should properly reside in this newly appointed board.

On Second Stage the Minister made the case, rather unconvincingly, that to reduce the list of candidates from three to five would unduly restrict the Government's discretion whereas I thought that was what we were about anyway, removing political influence from judicial appointments. When it comes to the point, the Government cannot withhold that control and by maintaining a large number of candidates and packing the Judicial Appointments Advisory Board, it is merely maintaining the status quo whereby it appoints whomsoever it wants to judicial office.

This means that we are attempting to enshrine the status quo in our laws rather cynically. The Government will continue to examine this list of seven candidates and the advisory board that will have submitted that list will have been reduced to the status of an elaborate postbox for potential candidates. The Government is not making any real attempt to evaluate, select or filter any of those candidates. In fact it will have no power because those seven names submitted are too many and will allow the Government too much discretion to give any credence to the premise that this board will be exercising any depoliticising influence on the judicial appointments system.

For that reason I support Deputy O'Donoghue's amendments which go to the heart of the absence of any real Government commitment to change the status quo and highlight his indictment of the Government, that it is merely copper-fastening the status quo, without any commitment to change the perception and/or reality that politics is linked intrinsically to judicial appointments.

We have gone through these provisions line by line and the same arguments have been repeated.

I refute the allegation of what has been described as packing. Any Attorney General, the senior law officer of this land, should not be referred to in this House as someone who is packing a board or would influence or suspend his judgment in a task such as this, or not advise the Government or not behave in a proper manner vis-à-vis a judicial advisory board. I am sorry to have to refute that again, but that is the way Members' comments come across through their use of words like “veto”, “packing”, of 40 per cent control and so on. Even if there were to be a vote taken at a meeting of the Judicial Appointments Advisory Board at which the Attorney General and the three lay members ganged up — to repeat the kinds of expressions used in this debate — to push the name of a person to a vote, 60 per cent always will win over 40 per cent. The way Members are portraying very eminent people performing that task, leads me to be thankful that I am not a barrister or being considered for appointment to judicial office, because if so, I would be highly insulted at their comments.

They must remember they are talking about the Chief Justice, the Presidents of the High Court and Supreme Court, contending that those eminent people would be party to some kind of chicanery, packing or some such exercise not befitting their office.

It is the Minister's decision that they will have no power anyway.

That type of political point-scoring is quite distasteful. Indeed, Deputy O'Donoghue knows better than most other Members that, under our Constitution, the Government must advise the President on such judicial appointments. No referendum has been held to change that practice. This board can be no more than advisory, as it was in 1994 and will remain so.

Members argue for the submission of three to five names as opposed to seven proposed in my amendment——

At least seven.

I might add that, even if the three to five continued to obtain, the Government would not be obliged to accept any of those candidates; it could make another selection. Irrespective of the number of names presented to it, if it deemed it proper, the Government could select another candidate for appointment where there might be a need in a court for a given type of experience. All of those factors must be taken into account by a Government in making any judicial appointment.

Indeed the way Members argue leads me to conclude that perhaps the manner in which some parties or some Members made such appointments in the past is really what concerns them. I am informing Members of the requisite limitations on this board under the Constitution. I should not have to lecture eminent lawyers, three of whom are present, and another Member who has legal training but, as she said, has not practised at the Bar or as a solicitor. I cannot go against the constitutional imperative on the Government in this respect.

Earlier Deputy O'Donoghue argued that solicitors and barristers might be slow to submit their names in the belief that their colleagues would know, might laugh at them — I think that was the expression he used — or ridicule them. If this board wishes to nominate and recommend more than seven names to Government, it should be able to do so. It has been suggested that up to 770 names may be submitted but everybody knows there will not be that number of applications for any judicial appointment, nor will there be that number of recommendations to Government. The board will have to consider the names of candidates, or of those with whom they consult or invite to submit their names under whatever procedure it decides and, thereafter other factors such as whether any of them is fully qualified for appointment. On occasions applicants may believe them to be qualified but their service as a solicitor or at the Bar may have been broken. In such circumstances, the Judicial Appointments Advisory Board will have to be satisfied that the requirements of section 5 (2), as amended, of the Courts (Establishment and Constitution) Act, 1961 are met in the case of any appointment to the High Court or Supreme Court.

Nobody said this board will have power to make judicial appointments and it would be wrong of me or anybody else to pretend that that was the case or was its objective. This is an advisory board and that is all it can be under the Constitution. Some Members say that seven nominees are too many and suggest it would allow the Government greater discretion than it should have. I might point out that three to five nominees gave the Government of that day all the discretion it needed. If the Government do not consider any of the three to five nominees suitable for appointment and/or submission to the President, it can select another candidate. We must remember that the appointment of judges does not take place in a vacuum. On the advice of that board, and in accordance with the needs of any vacancy, the Government must decide on and advise the President of the most suitable candidate. Whether Members like it or not, that will be the task of this advisory board and was its task in November 1994 whatever the political background to its establishment, to which I was not privy.

This will allow for names to be recommended to the Government and the remainder of the names to be given to the Government so it can see the range of names. I believe that is what Deputy O'Donoghue is looking for by saying that barristers would be shy of putting their names forward. This gives them a chance to be considered. I have said it over and over again and I am sorry to have to say it again, but it is an advisory board. I am not dressing it up as anything more than that; nor, indeed, did the last Government. It is an advisory board due to the imperatives of the Constitution.

I fully accept the Minister's statement that it is the duty of the Government, in accordance with the Constitution, to make judicial appointments. I have made that point on numerous occasions, including in this House during the 1994 discussion on the Bill. However, the 1994 Bill, in so far as these amendments were concerned, provided that at least three persons and not more than five persons would be recommended to the Government for judicial appointment. That, quite clearly, circumscribed the discretion of the Executive and the Government to a certain extent.

They may have thought it did, but it did not.

To a certain extent it did, for the reason that it is also provided in the Bill at section 16 (8) that notice of an appointment to judicial office should be published in Iris Oifigiúil and the notice shall, if it be the case, include a statement that the name of the person was recommended by the board to the Minister pursuant to the section. Effectively, if an individual recommended by the board was appointed, the Government would be obliged to publish in Iris Oifigiúil the fact that the person it appointed was recommended by the board. If the person appointed by the Government was not recommended by the board, there would be no reference to the board in Iris Oifigiúil. To that limited extent there is no doubt that the Government's discretion was circumscribed. Only between three and five persons could be recommended by the board. If the Government went outside of that, everybody would know that the Government had not appointed one of the people recommended by the board.

Under the provisions of this Bill the board must recommend at least seven, and it can recommend as many as it wants. This means that under the broadened powers agreed to by the Labour Party during the year, the Government can appoint anybody it wishes. The logic of that is that, because the board is empowered to advise the Government of as many names as it wishes, and irrespective of where on the list a person recommended by the board may or may not have been, there will hardly be an occasion when it will not be stated in Iris Oifigiúil that the individual was recommended by the board. In those circumstances it makes perfect sense to say that the circumscribing to a limited extent of the discretion of Government in the interests of openness and transparency in the area of judicial appointments appears to have been abandoned by the Tánaiste and the Labour Party during 1995. I can guess at the reasons, but it is not for me to give them because the jury is not here but out on the street, and I think the people have a fair idea what all this is about.

Under the Constitution, it is the sovereign duty of the Government to make judicial appointments. It could be argued that the 1994 system, under which up to five persons could be recommended and that the individual had applied to the board had to be stated if he was appointed, could alone have led to it becoming the convention for the board's nominee to the Government to be appointed. It is also conceivable that that could have been the custom. It is even conceivable that that custom could have become law, but that would have been unconstitutional. It is not a matter for me to decide on, but in fairness to everybody and in the interests of the transparency and openness the Tánaiste heralded and trumpeted last year, it must be made clear that this is nothing less than a charade. It is one of the biggest jokes ever to be passed through this House because its powers have been negated to the extent that the judicial appointments board might as well not exist.

Did the Deputy have the Iris Oifigiúil in his Bill? He did not. He could have made appointments behind closed doors. There was no disclosure procedure.

The manner in which the powers of the board have been circumscribed means that under this Bill the position will be as it was before this Bill ever came into this House; the Government alone will decide who is appointed to the Judiciary.

Read the Constitution.

Let us not put up smokescreens and pretend this appointments advisory board is meaningful.

I am not; the Deputy is.

If the judicial appointments advisory board has no powers, what in the name of goodness are we speaking about? The whole thing is a joke, a charade and a laugh, and it is time it was said. The original board was told it could recommend at most five and at least three names.

: The Government did not have to take the recommendations on board. The Deputy is seriously misrepresenting the situation.

This provision clearly states that at least seven names must go before the Government, but any number of names can go before the Government. In that likely eventuality, the names will be published in Iris Oifigiúil and it will be stated that that individual was recommended to the Government.

That was not inserted. A sixth person could have been appointed and no one would have known. Tell the truth.

The facts are simple. When the Tánaiste and Leader of the Labour Party decided it was no longer politically expedient or necessary to have a judicial appointments advisory board he decided political expediency was the better part of valour. He negated the powers of the board, left it as a smoke-screen and left the power to appoint the Judiciary with the Government where it lay under the Commission. I will leave it to the people to decide why he and the Government did so.

Amendment, by leave, withdrawn.
Amendments Nos, 6 to 8, inclusive, not moved.

I move amendment No. 9:

In page 11, between lines 21 and 22, to insert the following;

"17.—(1) The Minister shall, in appointing persons to the Board pursuant to section 13, subsection (2) (c), ensure that not fewer than one of the persons so appointed is a woman and not fewer than one of the persons so appointed is a man.

(2) In recommending to the Minister the names of persons for appointment to judicial officer pursuant to section 16, the Board shall ensure that not fewer than one of the persons whose names are so submitted is a woman and not fewer than one of the persons whose names are so submitted is a man.".

The issue of gender equity was raised on Committee Stage, not only in relation to the list of names which will be sent to the Government by the judicial advisory board but also in the context of the board's composition. The participation of women in the administration of justice and at senior levels of decision-making on such a board is vital. The Minister was warm and generous in her commitment to ensure, as best she could, that one of the appointees to the board, which is the gift of the Government, will be a woman.

It is important that gender equity is enshrined in the legislation. My amendment requests the Minister to include a requirement that there should be one woman on the panel appointed by the Minister to the board. On Committee Stage all the Minister could do was assure me of her commitment to address the gender issue and I hope she is in a position to give a firmer response now.

The second part of my amendment is to ensure that gender equity is addressed when the names of candidates for judicial appointment are sent to the Government for consideration. There should be one woman among the seven names, assuming a suitably qualified woman is willing to serve.

On Committee Stage the Minister was unsure of the relevance of a recent decision of a German court on the capability of the Government to enshrine such a section in the legislation. I requested the Minister to come back to the House with the considered views of the Minister for Equality and Law Reform on this issue. Under the present system, with all its faults women have been appointed and I want to ensure they are not forgotten in the new procedures we are putting in place. It is a modest but important proposal.

We often forget gender equity in many of our deliberations. We must be vigilant. The Government is committed to equality in making appointments to State boards and it is appropriate for the Minister to enshrine gender equity in this legislation.

I support the Deputy's amendment. In general, I am not impressed by a system that imposes quotas for any purpose. I prefer to believe things can be achieved without quotas but there are occasions on which we try to ensure that the principle of equality is not just recognised in name but in reality. There should be provision in law that those who consider people for appointment to the Bench maintain the modest balance that is requisite in what the Deputy proposes.

There is a danger that at some point the board may have an all male list. The Government of the day might want to appoint a woman to the Supreme Court. There would be the unfortunate circumstance in which a woman would be appointed to the Supreme Court and it would be recorded in Iris Oifigiúil that she had not been recommended by the Commission. She would be a second class citizen just because her male colleagues on the Commission left women out of the equation and the Government stated it wanted to redress the balance. To avoid that evil, which would be a terrible burden for a woman judge to carry, the list should always include a woman. Then no one could point the finger at a particular woman judge and say she had been appointed because of her sex, not her judicial temperament.

I support this amendment. I do not believe a person should be appointed to any position unless he or she is capable of doing the job. It has been established that there are many capable women who would make excellent judges. A woman should be included in the composition of the board and if a woman applies she would, without question, be recommended.

I strongly believe it is important there should be gender balance not just on the board but also in the courts. Every Government has, where possible, decided to appoint lady judges where they were capable of taking up those positions. They have all done the bench proud by their contributions to date in whichever court they have sat. I support Deputy O'Donnell's proposals.

On Committee Stage I promised to return to this matter. Deputy O'Donnell indicated she would resubmit her amendment. I note she has added to the amendment with a provision that the Minister, in making the appointments of the lay people that nobody wants——

If they have to be lay there should at least be one woman.

The amendment proposes that if they are to be there we may as well have a say about them — it is a case of getting one's retaliation in first.

I understand Deputy O'Donnell's objective in the proposal but I am advised there are serious legal and constitutional difficulties raised where the Legislature attempts to impose quotas on the memberships of boards such as this and also where a board is instructed by statute to recommend persons for appointment based on their sex. At present there is a Government decision which advises Ministers to be cognisant of the fact that they should attempt to have 40 per cent representation of men and women on a board. However, it is not a statute.

There is a case in Europe which gives rise to concerns about instructing a board by statute to appoint somebody based on sex. The case involves a German national, Mr. Kalanke, who applied for a job for which he and a women were found to be suitable. German law dictated that if two people were equally qualified for the same position and women were under represented, that is under 50 per cent in a particular employment, then if one of the two suitable people was a woman the job must be given to her. The man in question took a case to the European Court of Justice and it ruled against the position in German law. That decision only became available in the last couple of weeks and it is still being considered as to its implications in bringing in legislation in this country which would oblige a person to be appointed.

It is a complex area of law. A question arises as to whether a gender based quota policy is compatible with our Constitution in seeking to achieve a balance in appointments to boards, such as an advisory board. That may depend on the ability of the State to justify that classifications by gender serve important objectives of the Government and must be substantially related to the achievement of those objectives. It is possible that the purpose of a discrimination based on gender might be recognised as an important Government objective.

One of the difficulties with the amendment — I refer to subsection (1) — is that a person's gender would be the determining factor in making a choice between prospective appointees to the board so as to meet a quota. In subsection (2) of the amendment the inclusion of a person in the list of recommended names submitted to the Minister would depend not on their suitability for appointment based, for example, on their experience or qualifications — although they may have been considered — but the final point of arbitration would be whether the person is a man or a woman.

Any attempt to provide a quota based on sex on the advisory board or in respect of the candidates whose names may be submitted by the board would have to be consistent with the Constitution, particularly with Article 40.1 which enshrines the principle that all citizens as human persons shall be held equal before the law. Therein lies the difficulty of declaring by statute that somebody must get a position because they happen by a fact of nature to be born male or female.

That is very conservative.

It is conservative but we do not have any other genders. I only know of male and female and there is nobody else I have to consider.

Let me bring the Minister out tonight.

Is that an invitation which I may accept?

Article 40.1 enshrines the principle that human persons shall be held equal before the law. It is a strong possibility that providing for mandatory quotas based on sex would conflict with that principle. Therefore, any affirmative action of this type would have to come within one of the two exceptions provided for in that Article. The first is differences of capacity. God forbid anybody would suggest a women or a man would be appointed because their capacity was lesser or greater. The second is differences of social function. I am sure Deputy O'Donnell would not like to take the course of deciding that a woman should be appointed because of differences of capacity or social function.

I would not attempt to give a learned and detailed legal argument. Far be it from me to do so in the presence of those in the House who could do it better. I am satisfied there are sufficient serious doubts about including such a provision in the Bill. I understand the spirit behind the amendments but I do want to put into statute a provision about which I have a doubt as to whether it will stand up. I would only do a disservice to the appointment of women, which Deputy O'Donnell wishes to ensure with her amendment.

I assure the House I will have regard to the gender quota on the appointments of the lay people when I am nominating them. Although I cannot oblige them by statute I will also bring to the attention of the nominating bodies, the Law Society and the Bar Council, the need to have regard to gender balance when making their nominations.

They are only allowed one nominee each.

Yes, they have one each. I cannot do anything about the presidents of the courts as they are all male at present. I hope a time will come when one of the presidents will be female and their appointment will not be made simply on a gender basis.

The Minister for Equality and Law Reform reminds us all when vacancies on boards arise of the objective of having 40 per cent men and women. I will be taking that into account in recommending those names. The matter of providing for quotas on boards such as the advisory board and requiring boards to recommend persons based on sex raises issues of law which require careful and detailed consideration. In light of the case I have highlighted we should move with caution. I do not believe they can be addressed in the manner which this amendment proposes. They are matters which are being considered by the Minister for Equality and Law Reform and they may be addressed in legislation when these issues have been teased out. Separate legislation may be introduced to make that a necessary requirement if it is so considered.

There have been improvements in the gender balance in a number of professions. I recently had reason to look at the gender of people going into a number of the professional courses in universities. It has changed greatly since I was in university in the early 1960s, when the full extent of females doing science was about a dozen lay women and half a dozen nuns. There are not quite yet 50 per cent men and 50 per cent women in veterinary and engineering courses but there has been a sea change in how those professions are approached by female students and career guidance teachers in schools. There have been great improvements.

The other difficulty, which I also raised on Committee Stage, concerns subsection (4), which deals with cases where fewer than seven persons inform the board of their wish to be appointed or the board is unable to recommend at least seven persons. The board is then required to recommend the name of each person who has informed the board of his or her wish to be appointed. If there are only three such persons and they were all male or all female, the board would be prohibited from making any recommendation.

While I have great sympathy and support for what Deputy O'Donnell is endeavouring to do, in view of the legal uncertainty about putting a provision like this into a Statute I regret I cannot accept the amendment.

I am disappointed that while there is sympathy and support for the motivation behind my amendment, it appears to be the sum total of what the Government offers in response to the gender issue on the appointments board and in the names sent for evaluation and consideration for judicial office. On the basis of the Minister's outline of the present law, it is alarming that even minimum gender rights cannot be enshrined in legislation, according to the constitutional points raised today. I ask for a written copy of the consideration of the Minister for Equality and Law Reform on this issue, because the arguments proffered by the Minister for Justice appear to drive a coach and four through any effort we might make to address the gender issue and ensure minimum gender rights in our deliberations on any law we might put on the Statute Book.

The Minister compared this to the German case, saying it was a cause for doubt about the possible inclusion of such a quota on this list of names. The circumstances in question here are quite different from those of the German case. In the latter instance, the person was definitely — or definitely not — going to get the job. In this case, all we are ensuring is that a woman's name is included on this list of names which are getting through a type of obstacle course — there is no obligation on the Government to appoint that person because as we have seen there is no obligation on it to accept any of the names put forward by the board. The comparison drawn and fears raised by the German case do not apply to my proposal because all it asks is that if a women is as qualified as her peers, willing to serve and has put forward her name, she should be included in the list of seven. There is no obligation on the Government to appoint her or any of those nominees. This is a different consideration from that which applies in the German case.

I am sorry the Minister has not been able to offer anything by way of gender equality in this section. I will consider changing my proposed section 17 (2) to read that the board "shall endeavour to ensure that not fewer than one of the persons whose names are so submitted is a woman and not fewer than one of the persons whose names are submitted is a man". The Government might accept that a board should at least endeavour to respect and vindicate gender rights at this point in the Bill — this would be a reasonable acknowledgement of the point.

The Minister may realise that the sympathy and support she offers me are no substitute for including a provision in this legislation which would enshrine and vindicate gender equity. It would be a shame to allow this Bill to go through without some recognition by Members that there is a need to ensure more women end up at the top of the profession and do not remain in the infantry, as is the case at present. The number of women entering both legal professions is increasing — they make up about half of new entrants every year.

It is a shame that the Government does not see fit to act on its stated commitment for the promotion of women to high office. It must address the gender imbalance which runs through our State systems and boards. It is committed to the 40 per cent rule for State boards. I believe this Minister will honour that commitment in the appointment of lay members to this board but that does not mean a future Minister for Justice will be so inclined. It is imperative that a stronger commitment to gender equity be included in this Bill before it is passed. By the time it arrives in the Seanad the Minister may have seen her way to including the objectives of my amendment.

Amendment, by leave, withdrawn.

I move amendment No. 10:

In page 11, to delete lines 34 to 37.

This amendment suggests the deletion of the current section 17 on the basis that it is not needed. I have already made my case on this section, which reads:

Where the Government proposes to advice the President to appoint to judicial office a person who is for the time being a judge of the High Court, Circuit Court, District Court or who is eligible for appointment to the Supreme or the High Court under the provisions of section 43 of this Act, the provisions of section 16 of this Act shall not apply.

This means that if the person is already a judge he shall not have to go before the judicial appointments advisory board if he is being considered for a position on a higher court. As I made the point earlier there is little to be gained by pressing the issue so I withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment No. 10a is consequential on amendments Nos. 13 and 15, which form a composite proposal, and amendment No. 16 is related. It is suggested that these be taken together. Is that agreed? Agreed.

I move amendment No. 10a:

In page 11, line 26, to delete "section 44 of this Act" and substitute "paragraph (c) and (d) of section 5 (2) (as inserted by section 28 of this Act) of the Act of 1961".

Amendments Nos. 10a, 13 and 15 are in my name, while amendment No. 16 is an Opposition amendment. The purpose of my amendments is to amalgamate sections 28 and 44 of the Bill as passed by the select committee. Both sections amend the same provision — section 5 (2) of the Act of 1961 — so these amendments comprise a technical tidying up of the Bill. The sections dealt with the qualification for appointment as a judge of the High Court or Supreme Court. Amendments Nos. 10a and 15 are consequential on amendment No. 13. I amended these sections on Committee Stage after listening to the case made at that time.

The effect of the word "ordinary" was to make a judge of the Circuit Court of four years standing eligible for appointment as an ordinary judge of those courts but not President of the High Court or Chief Justice. That would have introduced a slight distinction between practising solicitors and barristers in terms of their eligibility for appointment as judges and this amendment is necessary in order to tidy that up.

Amendment agreed to.
Amendment No. 11 not moved.

I move amendment No. 12:

In page 12, to insert the following:

24.—(1) The Minister for Justice may establish a judicial commission to be known as "the Courts Commission".

(2) The Courts Commission shall have the function of advising the Government and the Minister for Justice on the organisation and management of the courts and court service and on such matters as in the opinion of the Minister or the Commission have a bearing on the capacity of the courts to discharge their functions.

This amendment was voted down on Committee Stage so I do not see any point in proceeding with it now.

Amendment, by leave, withdrawn.

I move amendment No. 13:

In page 15, to delete lines 6 to 11 and substitute the following:

28.—Subsection (2) of section 5 of the Act of 1961 is hereby amended by the insertion of the following paragraphs:

`(c) For the purposes of paragraph (a) of this subsection, service as a judge of the Court of Justice, a judge of the Court of First Instance attached thereto or as an Advocate-General of the Court of Justice shall be deemed practice at the Bar.

(d) A judge of the Court of Justice, a judge of the Court of First Instance attached thereto or an Advocate-General of the Court of Justice shall on vacating any of those offices be qualified for appointment as a judge of the Supreme Court or the High Court: provided he or she has been a practising barrister of not less than 12 years standing by virtue of paragraph (c) of this subsection or otherwise.

(e) Notwithstanding paragraphs (a) and (b) of this subsection, a judge of the Circuit Court of four years standing shall be qualified for appointment as a judge of the Supreme Court or the High Court.'.".

Amendment agreed to.

I move amendment No. 14:

In page 15, to delete lines 28 to 39 and in page 16, to delete lines 1 to 10 and substitute the following:

"32.—(1) Where a person (in this section referred to as the accused) has been sent forward for trial to the Circuit Court, the prosecutor or the accused may cause an application grounded on affidavit to be made on his or her behalf to the High Court for the transfer of the trial of the accused to the Central Criminal Court and if the High Court is satisfied that it would be manifestly unjust not to do so, the High Court shall grant the application and the decision to grant the application shall be final and unappealable.

(2) Provision shall be made by rules of court for the giving of notice of intention to make an application under subsection (1) of this section and the grounds on which such an application should be based.

(3) Where——

(a) two or more accused are sent forward for trial to the Circuit Court and it is proposed to try them together, and

(b) an application by one or more but not all of the accused under subsection (1) of this section be granted,

an application without notice to the accused by the prosecutor to the Judge who granted the application to have the trial of one or more of the remaining accused transferred to the Central Criminal Court shall be granted.".

Regional circuit courts have a habit of transferring criminal trials to Dublin because accused persons, more often than not, feel they can delay their trials by coming to Dublin and for some strange reason in some instances they believe they will get a more lenient sentence. That has the effect of not just delaying the criminal trial concerned but of also clogging up the courts in Dublin.

I realise the present provision is an attempt to ensure that cases will be heard on the circuit where the crime was committed or where the accused resides unless it is manifestly unjust to do so. The amendment merely transfers the matter to the High Court and the Central Criminal Court because there might be a tendency for Circuit Court judges to transfer the case to Dublin, which would not be desirable. The Minister indicated on Committee Stage she was prepared to look at this matter later on in the context of different legislation. I accept her good faith on that matter.

Amendment, by leave, withdrawn.

I move amendment No. 15:

In page 20, to delete lines 27 to 40.

Amendment agreed to.
Amendment No. 16 not moved.

I move amendment No. 17:

In page 20, to delete lines 44 to 48 and in page 21, to delete lines 1 to 51.

Section 46 empowers the superior court rules committee or the Circuit Court rules committee to make rules requiring any party to a personal injuries action to disclose to the other party expert reports, names and addresses of witnesses, statements of items of special damage and other items of evidence. The rules may impose a sanction for non compliance, including termination of an action. The section introduces the unusual and undesirable concept of applying different rules of evidence to personal injury and non personal injury cases.

It is felt that the entire section may offend against the concept of the administration of justice in public courts and that it may interfere with the evenly balanced rules of evidence. There is a view that it is unnecessarily pro defendant and that an injured party should be entitled to have his experts give evidence on his behalf without that evidence having been disclosed to the other party in advance. Apparently, similar provisions in other countries have led to the front loading of legal fees and costs, where counsel have been engaged, along with additional experts, in advance of the disclosure of reports. It is also felt that it would lengthen proceedings with arguments being made in relation to each item disclosed. It is argued in some quarters that the section would prolong hearings, involve additional expense for litigants and erode plaintiffs' rights.

I understand the Minister's objective and I appreciate the idea is to shorten actions and make them less expensive. Nonetheless, it is the considered view in some quarters of the legal profession that the Minister may, by setting out to achieve these objectives, only succeed in defeating them. Will she clarify the matter?

This section, as with all the other sections was cleared by the Attorney General's Office so I have no worries about its constitutionality or legality. However, I listened to the Deputy and I accept this is breaking new ground. That is one of the reasons I decided to move cautiously in this area and not to set out in the primary legislation exactly what documents ought to be disclosed and which might be admitted in evidence. This provision confers the powers on the superior and circuit court rules committees to make the rules on these matters.

My intention, as the Deputy recognised, is to speed up the hearing of personal injuries actions which take up a considerable amount of court time. I indicated on Committee Stage that there are three year delays in some personal injuries actions. I am confident we can leave this issue in the hands of the rules committees which are comprised of eminently qualified jurists. For example, the superior courts rules committee includes the Chief Justice, the President of the High Court, the Master of the High Court, two practising barristers nominated by the Bar Council and two practising solicitors nominated by the Law Society.

The background to this provision came from the fact that in 1991 the Attorney General established a working party on increased efficiency and reduced costs in High Court personal injuries actions. The working party was comprised of representatives of the Bar Council, the Law Society and the Irish Insurance Federation. It made a number of recommendations which are the basis for this section. I am using this opportunity to put those recommendations into legislation. Members will recognise and accept this is an appropriate time to do so and to move cautiously in this way. Notwithstanding the case made by Deputy O'Donoghue, I recommend leaving this section in the Bill.

Amendment, by leave, withdrawn.

I move amendment No. 18:

In page 22, line 13, after "fees" to insert "but not in any case when Ireland and the Attorney General or any member of the Government sued in his capacity as a member of Government is a party to the proceedings".

This amendment was adequately discussed on Committee Stage.

Amendment, by leave, withdrawn.

Amendments Nos. 19 and 20 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 19:

In page 22, line 42, after "court" to insert "and a Judge sitting in any court".

If it is to be provided in Irish law that barristers should not wear wigs in court then, quite clearly, judges should not wear wigs in court either. There is no sanction provided for in this Bill if a barrister wears a wig in court. The only conclusion to which I can come is that a judge, who would wear a wig, would hold a barrister wearing a wig in contempt of court, which would be an extraordinary and ludicrous situation. I indicated on Committee Stage that I do not have a hard line either way on this matter but I do not want to see unhelpful contradictory provisions in Irish law.

I agree with Deputy O'Donoghue that it would be absurd to have one person holding another in contempt for doing precisely what he or she was doing at that time. I do not have strong views on this issue. However, as a barrister I spent 20 years of my life wearing a wig when I did not need one and I have now reached the stage when I feel cold on top. The matter is not of great significance.

We owe a debt of gratitude to those who raised the issue. It should be the law that barristers should not be required to wear wigs if they do not wish. We should not tell people what to do in such matters. We do not instruct county councillors to wear robes. We do not tell academics what to wear at conferring ceremonies or nurses or matrons what to wear in hospitals, even though most of those services are funded by the public. Amendment No. 20 strikes a fair balance between compulsion and common sense and does not require a person to do something he or she may not wish to do.

I support Deputy O'Donoghue's views and compliment him on his tour de force on this Bill and his portfolio generally. I strongly support Deputy McDowell's amendment. I am one of the older variety of barristers, a hazard type barrister rather than an academic brighter than bright one, like Deputy McDowell. Why should we throw away the wigs? For various personal and vain reasons I might wish to retain the wig, but that could not be further from the truth. I do not have any hang-ups one way or the other about wearing wigs. I fail to understand why the Legislature should hand out edicts on what professional people should wear. The Minister should accept Deputy McDowell's amendment which will receive universal approval. In these politically correct times, why not leave the matter optional? Why should we tell people to wear wigs or, for that matter, not to wear them? If people want to wear wigs they should be allowed do so and if they do not so be it. The Legislature should not interfere with an arm of the Judiciary in this manner. I support Deputy McDowell's views.

We had a lively and lengthy debate on this matter on Committee State which was destined to make the wearing of wigs hot business. I explained to Deputy O'Donoghue that there is not an obvious case for allowing judges not to wear wigs. I rise when the Ceann Comhairle walks into this House wearing his robe. It highlights the honourable position he holds and no one ever suggested he should not wear one. We should not be too dictatorial as far as a profession or occupation is concerned. I would not like if we were forced to wear a uniform and I hope that will never be the case.

Deputy Gregory may hold a different view.

I accept we must observe protocol on the wearing of ties. When I was first elected to the House women Members could not wear trousers, we had to wear dresses. That has changed and many women Deputies now wear trousers. If a male Member wishes to wear something a little different I am sure he would not be stopped.

We certainly have a few different Members here.

I await the reaction if a Member decided to wear a voluminous white dress similar to that worn by Demis Roussous. I am aware that this matter is of great interest outside the House. I cannot accept Deputy O'Donoghue's amendment but I am willing to accept amendment No. 20 which proposes to insert the words "be required to" before the word "wear".

Amendment, by leave, withdrawn.

I move amendment No. 20:

In page 22, line 43, before "wear" to insert "be required to".

I thank the Minister for agreeing to a sensible compromise on this matter.

I, too, thank her for her generosity in this regard.

Amendment agreed to.
Amendment Nos. 21 not moved.

I move amendment No. 22:

In page 24, between lines 4 and 5, to insert the following:

54.—Section 30 of the Judicial Separation and Family Law Reform Act, 1989, is hereby amended by the insertion after '(j) the Status of Children Act, 1987,' of `and includes proceedings relating to nullity of marriage'.".

Amendment agreed to.

I move amendment No. 23:

In page 24, between lines 4 and 5, to insert the following:

55.—Section 32 of the Judicial Separation and Family Law Reform Act, 1989, is hereby amended by the insertion after `Acts' of `and proceedings' and the section as so amended is set out in the Table to this section.

TABLE

The Circuit Family Court shall sit to hear and determine proceedings instituted under this Act and under the Acts and proceedings referred to in section 30 of this Act in a different place or at different times or on different days from those on which the ordinary sittings of the Circuit Court are held.".

Amendment agreed to.
Amendments Nos. 24 to 34, inclusive, not moved.
Bill reported as amended, received for final consideration and passed.
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