Amendments Nos. 1, 2, 66 to 72, inclusive, 74, 79, 80, 96, 98, 101, 103 and 104 are related and may be discussed together.
Judicial Appointments Commission Bill 2017: Report Stage
I move amendment No. 1:
In page 7, line 7, to delete “through committees of” and substitute “by”.
I do not intend to spend much time on this group of amendments as all of the Government amendments address some unfinished drafting business from Committee Stage. They all relate to the removal from the Bill of references to the relevant committee structure.
On amendments Nos. 1 and 2, the proposed changes to the Long Title relate purely to changes made on Committee Stage insofar as the relevant committee structure was concerned. They delete elements of the Long Title that concern this structure, the purpose being that the Long Title will be fully consistent with its provisions. Amendments Nos. 66 to 72, inclusive, 74, 79, 80, 96, 98, 101, 103 and 104 all achieve the same purpose of deleting what might be described as superfluous references to the relevant committees across ten sections of the Bill. There is, therefore, some tidying up to be done and amendment No. 66 does this in respect of section 26(1) by deleting a leftover reference to a relevant committee. Amendment No. 67 addresses a punctuation issue.
Amendment No. 68 deletes a drafting construction referring to a relevant committee inserted for the purposes of section 9, which is also superfluous. Amendment No. 69 removes a hang-over reference to "relevant committee" in section 27. Section 27(3), as passed by the select committee, provided for an interpretation in terms of the relevant committees of certain references. With the removal of the relevant committee structure, such interpretation has no meaning and amendment No. 70 simply deletes subsection (3), as is necessary.
Amendments Nos. 71 and 72 are further drafting amendments, in this case taken together, to make sense of section 28(1) in order that it is clear that the records to be kept include records relating to the recommendations of the commission as those of a relevant committee will not exist under the Bill.
Amendment No. 74 is a drafting amendment relating to the removal from the Bill of the word "committee" and inserts the term "Commission" in its stead. Again, the amendment is essential to achieve consistency across the drafting.
Amendments Nos. 79 and 80 are also drafting amendments. Amendments Nos. 96, 98 and 101 are further drafting amendments that propose deletions from the Bill. Amendment No. 103 removes the reference to "relevant committee" from section 55, while amendment No. 104 makes a similar correction in respect of section 58.
Having regard to the meat and veg of the Bill, so to speak, to which we will come later this afternoon, I put it to Members opposite that at this stage we are merely acknowledging issues that were considered and passed on Committee Stage. My contention is that these are merely drafting amendments to ensure consistency and that we have a workable legislation.
I welcome the Minister, Deputy Ross.
Does the Minister, Deputy Ross, intend to speak on these amendments?
Why? Of course, I was not aware of the transport implications of the Bill.
I welcome the Report Stage of the Bill. I acknowledge the presence of the Minister for Justice and Equality, Deputy Flanagan. We should also acknowledge the fact that the Minister for Transport, Tourism and Sport, Deputy Ross, is here. One way of looking at that may be that it is a reflection of the fact the Bill is, as I have said, a vanity project of the Minister for Transport, Tourism and Sport. Another way of looking at it could be that he does not trust the Minister for Justice and Equality and has to be here watching carefully to ensure that he does exactly as the Minister for Transport, Tourism and Sport says.
The introduction of contentious issues such as that are surely out of order.
They may be out of order but I guarantee they are 100% correct.
This is a team.
It is not for me to interfere but I would suggest to all, including Ministers, not to invite interruptions.
Deputy O'Callaghan has no one with him.
Out of order but correct.
The first group of amendments we are looking at relates to the amendments that were made on Committee Stage as a result of amendments I put down and which were passed by the committee. The purpose of those amendments was to remove from the commission the overly complex structure of committees that had been put into it by the Minister.
In considering all amendments to the legislation, in particular this group of amendments, we should take into account what is the purpose of this legislation. One cannot consider the amendments without considering the purpose of the legislation. The purpose of the legislation is to establish a commission, an advisory body that will provide advice to the Government on individuals who should be appointed or nominated as judges. It is important to note it is not a regulatory body. It is an advisory body. As it is an advisory body, it requires expertise. The reason it requires expertise is because in Ireland, as in virtually every country in the world, one can only be appointed as a judge if one is a lawyer. The Minister, Deputy Ross, may object to that. Maybe his next proposal is to insist that judges cannot be lawyers and we should only have other individuals appointed as judges. However, at present, the law is that one can only be made a judge in Ireland if one is either a practising barrister or a practising solicitor. Therefore, the whole purpose of the legislation is to try to ensure that there is a group of expert individuals who can give advice to the Government as to who is a suitable person for nomination for appointment to the office of judge. As a result of that, it requires expertise.
Notwithstanding that, when one looks at the commission that is being proposed by the Government, for some reason the objective of the Government is to ensure that the advisory body contains a majority of persons who do not have expertise. On numerous occasions, I have asked the Ministers, Deputies Flanagan and Ross, and other Deputies, whether they can identify the public benefit or purpose in having an advisory body which has a majority of persons who do not have expertise in identifying suitable persons to be appointed to judicial office. If this were a regulatory body I would understand perfectly why it would be appropriate and necessary to have a majority of persons who did not come from what the Ministers, Deputies Flanagan and Ross, refer to as the legal side of the house but this is not a regulatory authority. The reason one has a lay majority in a regulatory authority is because one wants to instill public confidence that the regulatory authority will not be making decisions based on the fact that they are members of the same group. Here it is completely different. It is an advisory body. One wants persons who have expertise to advise the Government in respect of who are the best persons to be appointed to the position of judge in Ireland.
The Minister, Deputy Ross, had a good point - regrettably, he is like a broken clock in being right only once or twice a day. His good point related to the mischief. I agreed with him on this. The problem the legislation needed to resolve was that in the past individuals had been appointed to judicial office because they had a political association. Deputy Ross overstates that problem but he is right in stating that occurred. I stated that occurred. The reason I brought forward legislation, and I thought the reason the Minister, Deputy Ross, brought forward legislation, was for the purpose of dealing with that mischief.
Where that mischief occurs is in the Cabinet. It is the problem with the political decision-making in Cabinet. The problem, which was identified and is correct, is that too broad a number of individuals were being recommended by the Judicial Appointments Advisory Board to the Government. The solution to that problem is not to attack the advisory board. The solution is to cut down on the numbers of persons who can be recommended to Cabinet. Instead, however, the Minister, Deputy Ross, has gone off on a completely irrelevant and unexplained tangent. Instead of concentrating on the mischief, which is politicians appointing persons because of their political connection, the Minister, Deputy Ross, has got another target in his sight, namely, the Judiciary. Nowhere has he ever explained what is the purpose behind that particular targeting. What is clear is that the legislation and the amendments, which are being put forward in many cases by the Government, will not deal with the problem.
In fact, they will set up an advisory body, a commission, that has as its sole objective that there must be a majority of lay persons on it. This is disrespectful to the Judiciary, which is not uncommon from this Government. I do not recall a Government that has ever been so disrespectful to the Judiciary. The purpose of their contentions is to suggest that judges and lawyers are all the same and in it together when, in fact, a judge is a former lawyer. Judges are independent of the legal profession. It is disrespectful to the Judiciary and wrong to suggest that judges and lawyers are the same cabal. It is completely incorrect.
The Minister for Justice and Equality is correct in stating that the amendments in this grouping are technical amendments which all arise from the deletion of the committee structure on the Committee Stage of the Bill. I will be supporting the amendments. They are mainly drafting amendments. They make sense.
It was beneficial to the Government that the committee made changes on Committee Stage. In fact, the amendments that were made on Committee Stage improved the Bill and the Ministers should recognise that.
Ar an gcéad dul síos, ba mhaith liom labhairt i gcoitinne faoin gcur chuige a bheidh ag Sinn Féin maidir leis an mBille seo. In general, as I outlined previously, my party's position on the final vote remains in open consideration but as regards each set of amendments and each individual amendment, we will evaluate them on the basis of their merits.
We will be supporting this first group of amendments, which are largely technical. It mainly relates to providing, in a drafting sense, for a tidying up after decisions taken at committee to move from a position of separate committees being responsible for the appointment of judges to different courts to a position where the commission in general would be responsible for the appointment to those courts. The Minister was, with that approach of the different committees, trying to facilitate the participation of the President of the District Court and the President of the Circuit Court. Broadly speaking, I believe we were moving towards a consensus to resolving that issue on Committee Stage. The comments of the Attorney General may have thrown a spanner into the consensus that was emerging.
I nonetheless believe there was a general agreement about how it might be resolved. Perhaps the commission could be expanded such as is anticipated here or it could be done on the basis of ex officio members. That would facilitate the bringing on of the presence of those two courts. It makes sense to bring those two on. I am anxious to preserve the lay majority. It was the right decision to move to a more comprehensive single body and that the commission would be responsible for appointments. A number of amendments that were discussed on Committee Stage came from a submission from Dr. Patrick O'Brien from Oxford who made a number of points, some of which were taken on board. He made the point that the judicial appointments commission committee structure described in what was then section 11 and section 13 appears to be over-engineered having regard to the comparatively small number of appointments that are to be made to the Irish courts each year. He said it might be more economical and might lead to more consistency if the practice of constituting a slightly different committee for each appointment were replaced with a provision permitting the president of each court or their nominee to take part in the deliberations of the judicial appointments commission when they are considering candidates for that court. It is not quite what is anticipated by the Minister but nonetheless the same principle applies that the presidents of those courts should be in a position to participate. If all appointments come through the commission, there will be more consistency and there would be an understanding by the commission of the different needs and requirements in each of the appointments as well as the common attributes that would exist. In regard to those particular amendments, we will support them.
I will respond to what Deputy O'Callaghan said about the lay majority. It is something we firmly believe in. It is not a particularly radical proposal to have lay participation and a lay majority. While the Judiciary has served us substantially very well in the State there is an issue with regard to the transparency of the appointment of judges. Fianna Fáil has its own reasons for adopting the position it has adopted. There is history in that regard. It seems very clear to me that the Judiciary does not represent society as a whole. We will move further on into amendments which reflect upon how the lay appointments will be appointed and how we can ensure we have lay members on many public boards and that they are not necessarily reflective of society as a whole. We will move on to how we can improve it and how we can change the backgrounds of those lay members to ensure they are reflective of society as a whole. Our Judiciary does not reflect Irish society. The objective of several of the amendments that I and others have tabled is to ensure the judicial appointments commission tries to ensure we move to a position where the Judiciary is more reflective of society as whole. With regard to the lay majority, I do not believe it is entirely possible to achieve that objective and to move to that position if we have a judicial majority reproducing the same dynamic and being reflective of the reality that exists. That is the reason for the ideal that there would be people from organisations dealing with victims, people in rape crisis situations, young offenders, immigrant communities and a wide variety of experiences. It is important that it is part of the commission and that it makes up a majority of the commission. There should be significant representation there from the Judiciary, including all of the heads of the courts, namely, the Presidents of District Court and the Circuit Court. That is the dynamic that will best result in a process that is independent and transparent, which is what we all aspire to. It will ensure we have a Judiciary that reflects Irish society and that consequently the decisions it makes take account of the differing experiences of Irish citizens.
I apologise because I will not be able to stay for reasons beyond my control. I will be here 100% of the time next week. I did not think this business would happen this evening.
We spent five sessions over many hours deliberating in committee. The Minister, Deputy Ross, might not think we were genuine but there was no bias against one side or the other. I agree 100% that reform of how we appoint judges is really important. It is crucial we do that. I am 100% in favour of reform of the way we appoint judges. I am sure the Minister read the Official Report of the proceedings of the committee. Before the Minister, Deputy Ross, went into government he said political paws had to be taken off how we appoint judges. What was presented to us in committee was not doing that. We were doing anything but taking the political paws off it and, in some way, even increasing them. I disagreed with that and I have said so. The way we have done it in the past is not good. I agree that it does not reflect society as much as it should. We all accept that one needs a certain amount of ability to do the job. We all know that such-and-such a judge was appointed by Fine Gael, Fianna Fáil or the Labour Party and that should not be the case. We are all conscious of the fact that it is what transpired. We are in favour of changing it. I am not hung up on a lay majority either. Who are the lay people that will be in the majority? We argued a lot about that at the committee. If they are from the political stable or the Civil Service, then I would be just as comfortable with the legal crowd picking them. Our amendment, No. 7, was ruled out of order because it was deemed it would result in a cost on the Exchequer but it is not true. I put two judges on to sit in the District Court and the Circuit Court and we all agree the District Court judge and the Circuit Court judge should be on it. They are getting paid by the State already. They will not get a salary from the commission. I took off a lay person who would get a salary. The result of my measure would be to save the State money. The Government had 13 members but I put forward 14 members. I had two extra judges who would not get a salary from the commission and I took off a lay person who would have been getting a salary. How can the Government or the powers that be deem that to be the case? I am not saying it is the Minister's fault. I do not know where the decision comes from. I do not understand this process.
It is not the Government. The Government has nothing to do with it.
I am in here only seven years, which is probably seven years too long. I still do not understand how the system works. It is not true to say my amendment would result in a cost to the Exchequer. I strongly disagree with that. I have appealed to the Ceann Comhairle and he said if my amendment does not come up until next week he will look at it again, and that is fair enough.
I am inclined to support Deputy O'Callaghan's amendment, No. 11. That amendment would not incur a cost to the Exchequer. My amendment provides for seven judicial members and seven lay members and the 14 would pick their own chairman. The committee was determined to come up with something that was better than what we had. We wanted to take the political paws out of the equation a bit more.
The Judiciary, in its preliminary submission to the Department on the legislation, said that radical improvement is required with regard to judicial appointments and not a tinkering around the edges of the current process. They acknowledge that we need to do things better.
I cannot help feeling that the fact that the amendments tabled by me and Deputy Clare Daly were thrown out means that we are being thrown back into having to bring the Attorney General back into the equation. That is where Fianna Fáil is going to be driven. Sinn Féin will not support it as there will be no lay majority, but perhaps it is a done deal. I do not know what goes on behind the scenes between Fianna Fáil and Fine Gael.
That is very unfair.
I said I did not know.
Is the Deputy suggesting there is a conspiracy?
The Ceann Comhairle will back me up and confirm that I made no allegation. I said I did not know; there was a lack of knowledge on my part.
There would not be any conspiracy around here.
That is a fair point. At the committee we all agreed that there was no logic to the Attorney General being involved in both processes. The Attorney General has more control and authority in the second process. As a member of the Cabinet at the time when the three names are presented for one to be selected, he or she has huge influence. That is fair, but where is the logic in him or her being involved in both decisions? It does not stack up. Because of the tinkering with the amendments, we are being driven back to having to get the Attorney General back on both sides again. Give us a break. We are trying to do it right and want to reform how we appoint judges in Ireland. If one looks at all of the current judges, one can see how many came from private schools and all of the political connections to one party or another. It is a joke. People want to see things being done differently. We agree 100%, but we need a little common sense.
I agree that there is something utterly demoralising about having to be here today and the manner in which this incredibly important issue is being dealt with by the Government. The judicial appointments process is in need of radical reform. We, as legislators, have a job to do which we take very seriously. Bringing forward legislation requires a hell of a lot of work in our offices at all stages. It should be done in the interests of the common good, not political expediency. I take no pleasure in saying the manner in which the Bill is being handled and the presence of the Minister for Transport Tourism and Sport, Deputy Ross, show that this is a politically expedient measure, which is not a good way to produce legislation.
There is irony in the fact that the Government has probably created records in the history of the State in the political appointment of judges. About a year ago we were reminded that appointments would only take place over the dead body of the Minister for Transport, Tourism and Sport, but here he is, despite the fact that so many have been made in the meantime. Clearly, there is not enough work to be done in the Department of Transport, Tourism and Sport, even though there is a lot to be done in respect of Dublin Airport in my constituency. I wish somebody was doing it.
We have put in a huge amount of work into the Bill and agree that there is a need for radical reform. However, a couple of things really get my back up. First, the intervention of the Attorney General after Committee Stage was a disgrace and I have no problem in saying so. The committee had put in hours of work. I had the misfortune to sit in at a different committee this morning and, given the way that committee conducted its business, the Government should be incredibly grateful for the hard work and diligence of Opposition members of the justice committee. They are without parallel in this Dáil. The Attorney General said we had made a dog's dinner of the Bill, but if he had listened to a fraction of the arguments that had been made in the committee's deliberations, he would have known precisely that the Bill had been a mess from the start.
Hear, hear.
In our engagement we all tried to put together better legislation. We all agreed in our own way that we wanted the Presidents of the Circuit Court and the District Court to be involved and on Committee Stage grappled with the different ways of doing this. The amendments in this group are a tidying-up exercise to deal with leftover references to the relevant committees - the Government's original way of getting the two boys in without making the committee too unwieldy. However, in the spirit of the deliberations, we put back in the Presidents of the Circuit Court and the District Court, while also respecting the wishes of the committee to keep the Attorney General out because it would have given him two bites at the cherry and meant too much political influence.
The Government has tabled an amendment to increase the size of the committee to 17 to bring back the Attorney General, with the two Presidents. On the other hand, our amendments have been ruled out of order. If our amendments which seek to have a 14-person committee, including the Presidents of the Circuit Court and the District Court, were to be passed, we would save the Exchequer money, in comparison to the Government's option of having a 17-person committee, as the Minister is proposing today. I do not accept that our amendments should have been ruled out and agree with the points made by Deputy Wallace. Whether there is a lay majority is not the most decisive issue for us. The debate was always about removing political interference from the process. I also believe the manner in which we are handling this issue is an insult to the Judiciary and that it will go down very poorly in the history books.
The incredibly speedy manner in which the legislation has come back from the committee for Report Stage is a little odd, given the complexity of the issues raised as a result of the changes made in full engagement by the committee. As every vacancy in the next ten years has probably been filled, there is no urgency. The Department of Justice and Equality was charged with the responsibility of dealing with many other urgent items of legislation. The Coroners (Amendment) Bill was a priority for the Department, the Minister and his predecessor, Deputy Fitzgerald, who met us and senior officials this time last year to discuss advancing it through all Stages before the summer in order to provide for mandatory inquests in cases of maternal death. The Minister and the Taoiseach assured me that the Department would bring forward the legislation in February and March, but it is now May and it is not even listed. We are again heading towards summer without it, which is why a lot of people have come to the conclusion that we talk a lot here but do not deliver. We have a responsibility to call Departments to account, but in doing this in the interests of political expediency we are not treating the legislation with the seriousness it merits. It is indecent, very wrong and regrettable.
I congratulate Deputies Clare Daly and Wallace and acknowledge the great work they did at the committee. They knuckled down and produced amendments. They are genuinely interested in reform of the Judiciary. That is what Committee Stage is for and it did take a long time to complete. I have no quarrel with this because of the thorough and forensic way in which they addressed the Bill. I might not agree with all of their amendments, but I accept, as I am sure they do, that it will be the Dáil which will give its verdict on what has come back from the committee when the amendments are voted on. If Deputy Clare Daly believes there has been reluctance to accept her good work, she should not do so. She did tremendous work, as did Deputy Wallace and all other members of the committee.
I thank the Minister.
It is extremely important that it be acknowledged. It is also important that Deputy O'Callaghan realise Ministers are not totally and utterly confined to their portfolios. I was elected on a platform, as was the Deputy, and he is entitled and duty bound to speak about the issues about which he was elected to speak. The fact that he has landed the justice and equality portfolio does not exclude him from speaking about other issues. I hope he does not regard it as a compulsory muzzle on what he has to say because he says it with great eloquence. However, he speaks with equal eloquence when he speaks in the Four Courts. In what we are discussing he is representing not only the people of his constituency but also the voice of the Law Library. That should be acknowledged by us every time he speaks about this issue, but he does have a vested interest in promoting the interests of the Law Library. I acknowledge, of course, that he is capable of separating that vested interest when he comes into this House, but it should be pointed out that his opposition to the Bill is probably related to his experiences in the Law Library, which are very valuable. However, they bring him from a certain perspective in addressing this issue.
The Minister forgot to mention his journalistic background.
It is important that I comment on the lay majority and what Deputy O'Callaghan had to say about not attacking the Judicial Appointments Advisory Board, JAAB. We are all united on one issue, namely, that the prime objective of the Bill is to remove the rotten practice of politicians appointing friends, cronies and political loyalists to the Bench. The Deputy is correct in stating the Bill he produced also included this objective. One of the problems with the JAAB was that there were three lay people on it, which was often cited as justification for its independence and impartiality, but the three lay people were always nominated by the Government or the Minister of the day. I do not propose to name anybody. If memory serves me correctly - I think it does - of the three appointees to the last board under Fianna Fáil, one was a former candidate for Fianna Fáil in the European Parliament elections, while another was a gentleman who had been director of elections for Fianna Fáil in Dún Laoghaire-Rathdown. That puts into perspective the respect with which Fianna Fáil treated the particular body. This practise had to end. The Bill may be imperfect, but it will end that practise.
We can go on debating until the cows come home who is going to be on the commission of selection, but following enactment of the Bill what we will have is a lay majority, which Deputy O'Callaghan from the Law Library cannot stomach. Having a lay majority is imperative because we do not want to see political patronage and insiders replaced solely by judges and legal insiders. It is all very well to say we need to end political patronage and be united in that regard, but to say we have to have a judicial majority - we know that the judges do not want lay people to be on the board-----
That is not true.
The Deputy may want to have them on the board. He may be the spokesman for the judges and no doubt we will hear from him again on this issue. To replace the lay members with a group of insiders would be wrong.
This is the wrong road to take.
We would be leading ourselves into a difficult situation where we would replace one group with another. I would prefer to have a smaller commission than what is being proposed, but that is not going to happen. The great virtue of the Bill is that there will be a huge independent input into the choice of judges. Let no one say there will be no judicial influence because the representative of every court will be on it. They will have massive influence, more than I would like, but I acknowledge the importance of having them there to have a major input because they have expertise in the area. They should not, however, have the final decision because that will lay open the charge that we are just replacing one group with another. When the Bill is passed, political interference will be no more. That will be a great and radical achievement.
Does the Minister, Deputy Flanagan, support his colleague's comments?
I will speak to the amendments. I have tabled 69 amendments to the Bill, the vast majority of which seek to return the Bill to its original state, as initiated, because of difficulties we encountered when reflecting on the amendments made on Committee Stage. Some of the amendments made were inconsistent with Government policy, while others were unworkable from a practical point of view, which I believe is accepted. Some were unacceptable from a legal perspective and also a constitutional standpoint. I have proposed a number of key ministerial amendments, some of which we are debating, on which I hope to receive the support of the majority in the House, acknowledging that due to the configuration of the Parliament the Government is in a minority. I appeal to Members to ensure that, ultimately, we will have legislation that is consistent with the Constitution, legally robust and responds to the need for reform of the appointments system in accordance with a number of items of legislation, not all of which came from this side of the House, introduced in the past few years in response to the need to modernise a vital component of the democratic system.
It is important that we reverse the decision to remove the two court Presidents from the new process. I think there is agreement across the House that there is a role for the President of the Circuit Court and the President of the District Court, with the Presidents of the other courts, in the process. The removal of the Attorney General was a mistake. It is important that in the next few days in debate we acknowledge the role and functions of the Attorney General and provide a role for him or her in the process. Other aspects that were clearly unconstitutional are also being addressed, for example, the imposition of an explanation requirement on the Government subsequent to making some appointments. I look forward to the amendments being considered carefully.
I acknowledge the work done by the committee. It did a lot of work, as acknowledged by the Government, including the Minister, Deputy Ross. It is important that we do not lose sight of this.
Although the Minister, Deputy Ross, has been a Member of the Houses of the Oireachtas for 37 years, his comments displayed an extraordinary lack of political maturity. I fully recognise that a Minister is entitled to speak on other topics, in a way that I as a spokesperson for justice and equality am also entitled to speak on other areas. I was pointing out, however, that it is extraordinary that a Minister for Transport, Tourism and Sport is prepared to sit through all of the Report Stage amendments. I have no objection to the Minister, Deputy Ross, speaking on Second Stage when he did, or coming in at the end to give his speech when the Bill is passed or defeated. To have him sitting here for all of the Bill amendments while we have a crisis in our transport system is simply alarming. It underlines once again what this Bill is. It is a vanity project for the Minister, Deputy Ross.
The Minister also criticised me. He gave me the credit of stating that I am a representative of Dublin Bay South, which is my constituency. He said that I stand here and speak as part of a vested interest on behalf of the Law Library. I will not apologise to a former stockbroker for the fact that I am a barrister. I am very proud to be a barrister. When I come to the House, I speak on behalf of Fianna Fáil and on behalf of my constituents in Dublin Bay South. I do not speak on behalf of anybody else. The Minister, Deputy Ross, and I have no objection when it comes to the involvement the Law Library should have in the judicial appointments commission. The Minister's proposed legislation says that there should be one person nominated to the commission by the Bar Council. I agree with that. The Minister is also trying to put a second barrister onto the commission by including the Attorney General. The Minister wants two barristers on the commission and I only wanted one. The Minister needs to get his statistics correct.
As well as launching an extraordinary attack on the Judiciary by stating that their appointments are rotten, he then went on to make an even more extraordinary attack on the lay members of the current Judicial Appointments Advisory Board, JAAB. Now the villains are the politicians who appoint judges, the judges on JAAB who advise on the recommendation of judges, and the lay people who are JAAB. We must realise that there is only one solution to this problem. Let the Minister, Deputy Ross, pick every judge in the country.
This is incredible stuff. The whole thing is unbelievable. The Minister, Deputy Flanagan, has acknowledged that because what we did on Committee Stage was inconsistent with Government policy, the Government is trying to bring us back to where we were before Committee Stage. Has the Minister, Deputy Ross, not realised, two years on, that he is in a minority and that he has to suck it up and take on board the points of view of other people in the House?
Which we have done.
We put in hours in trying to improve the Minister's Bill. He has now come up with hare-brained arguments around unconstitutionality that were never made on Committee Stage. The Minister has said that he is reinstating the President of the Circuit Court and the President of the District Court, but he is wrong about that because it was everyone of us who argued for the presidents of the Circuit Court and the District Court to be members of this commission. In the original Bill the Government left them out and now we have this convoluted committee to try to get them in through the back door. That was the Government's mess, which it is now trying to reinstate. Members in this House tried to do this on Committee Stage in a better way, so the Minister's assertion and the argument about unconstitutionality are absolute nonsense.
The Minister, Deputy Ross, has said there would be a lay majority on the commission. He said that whatever happens from now on, it would be a lay majority, independent of political interference. This is nonsense. In fact, the Government's amendments to reinstate the Attorney General to the commission enshrine political interference and bring it back to the commission and to the final selection stage, because the final stage of judicial appointments will continue to rest with the Government. The idea that this proposed legislation will break the link between political appointments and that it will herald in a new dawn is utter nonsense. A lay person can be just as much a political appointee as a judge or can have political views. We are trying to reform the whole system and the manner in which this has been handled, and some of the commentary so far has been disgraceful and an abuse of an important function.
We are speaking to a group of amendments. As far as they go, the amendments are relatively sound and reflect the fact that on Committee Stage there was a general consensus on the direction in which the Bill would move. It is my analysis, while one would never think it, that Fianna Fáil has essentially conceded the principle of much of this argument. The comments of the Attorney General about the Bill, however, were ill-informed and very inappropriate because of the context in which they were made and the manner and type of language used. His comments were ill-informed because they separated out the text of the Bill, as it existed at that time, without considering the discussion that had happened on the Bill and what the discussion clearly pointed to, namely, consensus in favour of a lay majority, consensus about finding a way to return the President of the Circuit Court and the President of the District Court on to the commission, and consensus on the need to ensure the lay nominations for the commission and those who come from the public appointments system are more radically reflective of Irish society and bring in a greater breadth of experience. With regard to criteria that must be reached by the lay majority nominations, there is no question of these lay members being mugs. There is a very lengthy list of criteria and expertise expected. The lay members of the commission would be eminently qualified and capable.
I do not believe that this is radical legislation. We are all agreed on the need for independent and transparent judicial appointments. This is not a particularly radical proposal. If we want to be radical in dealing with this, then we also need to consider other reforms of the Judiciary, including sentencing guidelines. I have made this point a number of times and the Ministers will be aware of this. I firmly believe that both pieces of legislation need to be considered as a package to reform the Judiciary properly.
I merely say to the Members opposite that I appeal for calm. It is important that we have a constructive debate on the merits of the amendments. I acknowledge the good work by all members of the committee on many aspects of the Bill. I believe that everyone is agreed that on Committee Stage we were left with a document that was far from perfect. The purpose of the various Stages of debate is to improve on issues, if we can. I hope that over the next few weeks we can reintroduce the spirit of constructive engagement that we had on Committee Stage for a number of weeks, oftentimes outside the spotlight of the media, and that we can work in the way we need to ensure we can have improved legislation. Although it might seem strange, given the last hour's debate, it is my firm belief that there is not much between us. We can go through the more than 100 amendments to see how best we can reform the system in the way that life in 2018 deserves, and that we can modernise the manner in which judges are appointed. Ultimately, under the Constitution, this will be a matter for the Government. We are not changing the Constitution and we are not advocating a change to the Constitution. We are ensuring that we modernise our legislation in a way that brings about a greater level of transparency to the system.
Amendment agreed to.
I move amendment No. 2:
In page 7, lines 9 to 12, to delete all words from and including “and” where it secondly occurs in line 9 down to and including “relates” in line 12.
Amendment agreed to.
Amendments Nos. 3 to 5, inclusive, 100 and 102 are related and may be discussed together. Amendments Nos. 4 and 5 are physical alternatives to amendment No. 3.
I move amendment No. 3:
In page 9, to delete lines 30 to 34, and in page 10, to delete lines 1 to 6 and substitute the following:
“7. (1) No person shall be recommended, under this Act, for appointment to judicial office unless they are of sufficient merit to discharge with distinction the responsibilities of the office to which they are appointed (the “Merit Principle”).
(2) Subject always to the Merit Principle described in subsection (1), recommendations of persons for appointment to judicial office under this Act shall have regard to the “Diversity Principle”--
(a) the objective that membership of the judiciary should comprise equal numbers of men and women, and
(b) the objective that the membership of the judiciary should reflect the diversity within the population as a whole.
(3) Subject always to the Merit Principle described in subsection (1), a list of persons recommended for appointment to judicial office under this Act shall include at least one person whose appointment would further the objectives of the Diversity Principle described in subsection (2).”.
I apologise. I had misread the grouping. As I reflected in my contribution on the previous grouping, it is vital that the Judiciary reflects greater diversity because that would benefit those who appear before it, be they complainants or accused. The amendment would not change the fact that everyone appointed to the Judiciary should be adequately skilled, qualified and experienced, which is important. Rather, it would adjust the Bill slightly so that the commission would have regard to the diversity principle as outlined. On Committee Stage, the Minister, Deputy Flanagan, spoke in opposition to this idea on the basis that it would be too restrictive. As I pointed out then, there exists the objective of the Judiciary reflecting the diversity of the population as a whole. This amendment would make that a firmer principle, subject to the merit principle.
I was not properly prepared, as I misread the grouping, so I might contribute again in a moment.
That is fine.
Of this grouping, Sinn Féin's amendment, No. 3, is probably the most interesting. The rest are concerned with tidying up, providing rules around the Irish language and so on. I support amendment No. 3, which is similar to the proposal that Sinn Féin tabled on Committee Stage of a merit or diversity principle. Under the amendment, when the commission is proposing a list of people for appointment, at least one of them should be someone who furthers at least one of the objectives of the diversity principle, mainly, that the membership of the Judiciary should be gender equal and reflect the diversity of the population as a whole. This is a good idea. I foresee practical difficulties with an absolute obligation that at least one of the names should further the objectives of the diversity principle, but we need to discuss this proposal further.
A Law Library submission on the gender pay gap in the barrister profession in 2017 pointed out that only 38% of the total Law Library membership was female. Worse still, the attrition rate among female barristers was much higher than it was among men, with only 16% of the inner Bar - senior counsel - being women. While it is not a requirement to hold a senior counsel position to become a judge, let us face the fact that, with such an attrition rate, it is likely that a good deal fewer than the 38% of barristers who are female will succeed in getting the full ten years of practice that are necessary to be appointed to the District Court or Circuit Court or the 12 years that are necessary to be appointed to a superior court. We need to factor these issues into our discussion. Granted, solicitors can also seek appointment as judges, but their success rates to date have been much slimmer. Only eight solicitors have been appointed to the superior courts since 2002, with none appointed to the Supreme Court. Of the eight, none is female. This problem needs to be addressed. I appreciate the Sinn Féin amendment's intention of trying to do so. If we do not include such measures, the problem will not be addressed.
If the amendment were to pass, would it lead to more women becoming barristers and more solicitors putting themselves forward for judicial appointment? One would hope so, but I imagine that it would be difficult in the first few years. That said, we should not resist the idea, particularly if it is put up to the Law Library to encourage more women to become barristers and more solicitors, including female solicitors, to apply for the role of judges. This positive principle sets the bar for the Law Library in encouraging diversity. Diversity is necessary and important if we are to have fair and impartial judgments and if judges are to reflect life's diversity when people appear before them.
We all agree on how important it is that the objective behind this legislation should be to try to ensure that the best people are nominated for appointment as judges. Consider the legislation that I introduced and the Bill that is before the House. Section 7 of the latter refers to the fact that people should be selected based on merit. Regarding Sinn Féin's amendment, I have no objection to inserting a specific principle called the "Merit Principle".
I also agree that we should make efforts to ensure that there is greater diversity on the Bench. As Deputy Clare Daly stated, however, that requires more diversity in the legal profession. One can only become a judge if one is a lawyer. That makes sense. It is required to have expertise to be a judge. Sometimes people believe it is just about making a decision based on a judge's preference for these facts over those facts, but lawyers are appointed to be judges because judges need to have expertise in the law. They must understand the Constitution, statute law and the rules of evidence. In this anti-expertise world, it is sometimes presented as though anyone could do the job. In many respects, being appointed as a judge is like being appointed as a consultant oncologist, in that one would need to be a doctor and have expertise first. We must recognise that the merit principle is necessary.
I have a slight concern about the diversity principle. I agree with Deputy Ó Laoghaire on the importance of ensuring diversity, but the diversity principle in Sinn Féin's amendment is unambiguous and has two requirements:
(a) the objective that membership of the judiciary should comprise equal numbers of men and women, and
(b) the objective that the membership of the judiciary should reflect the diversity within the population as a whole.
There are two parts to this principle, not one. Subsection (3), however, places an unambiguous requirement that at least one of the three people who are going to be recommended by the commission must be a person whose appointment would further the objectives of the diversity principle. In my reading, the principle would not necessarily be complied with if the commission simply recommended a woman, as a woman only complies with half of the diversity principle. I would be interested in the Minister's comments on this point. We should note that section 7 of the Bill contains a set of requirements:
(a) the objective that the membership of the judiciary should comprise equal numbers of men and women, and
(b) the objective that the membership of the judiciary should, to the extent feasible and practicable, reflect the diversity within the population as a whole.
The Ministers may not be aware - I hope that the Minister, Deputy Ross, does not object to the fact that I have some knowledge in this area - that trying to attract top lawyers, highly qualified lawyers and lawyers who would make good judges into applying for the Judiciary is difficult at the moment. If we are to ensure that the high standard of the Judiciary continues, we must make it more attractive if we are to get better people to apply.
The other amendments in this grouping relate to a matter on which my amendment was accepted on Committee Stage. I thank the Minister, Deputy Flanagan, for his generous comments about the contributions of all members of the committee. My amendment was on the necessity of ensuring proficiency in the Irish language among the Judiciary.
I tabled it not because I love the Irish language, which I do, but rather because it is important to recognise that people in this country have a constitutional right to have their case heard through Irish if that is feasible. It will not be possible in all circumstances. There have been attempts to have criminal trials heard in Irish, some of which attempts have failed. We must recognise that people should have an entitlement to have their cases heard through Irish if that is feasible and we should try to facilitate people in that regard. That right would be watered down by amendment No. 5 tabled by the Minister. One must also consider amendment No. 102 in that regard because it proposes that in order to ensure proficiency in the Irish language among the Judiciary "The Commission shall consult with the Courts Service for the purpose of keeping under review the needs of the users of the courts with respect to proceedings being conducted in the Irish language".
It is important to recognise that not everyone who applies to be a judge must be proficient in the Irish language and very few applicants will be. There must be, however, a sufficient number of judges on the High Court, appeal courts and, in particular, the Circuit and District Courts who are able to hear cases through Irish. I note the Minister's amendment but I would like to know the purpose behind it and whether in some respect it waters down the clear wish of members on Committee Stage in accepting the amendment now contained in section 7(2)(c). It is important that we recognise that entitlement of people to have their case heard through Irish and we should try to facilitate that.
Unfortunately, I did not expect this amendment to be dealt with at this point. Deputy O'Callaghan has mischaracterised the amendment, which contains several qualifications. Section 7(2)(a) addresses the objective that the membership of the Judiciary should comprise equal numbers of men and women and 7(2)(b) provides that the membership of the Judiciary should reflect the diversity within the population as a whole.
As regards expertise, it is probably true that there is greater hostility and there are issues in terms of the attitudes people have towards expertise in society as a whole, but that is not necessarily a feature of this debate. No Member is suggesting that any of the lay members of the commission would not be experts and the amendment does not suggest that any appointee to the Judiciary would be anything less than expert. Anyone to be considered for appointment under the diversity principle would also have to satisfy the merit principle. All persons considered for appointment would have to reach a certain minimum standard.
I disagree with Deputy O'Callaghan that one would have to satisfy both subsection (2)(a) and (2)(b) because the wording of the amendment is that "under this Act shall include at least one person whose appointment would further the objectives of the Diversity Principle". That is not the same as having to satisfy both those subsections. The amendment provides that the appointment of at least one of the candidates would be in furtherance of the objectives of the diversity principle, that is, either (2)(a) or (2)(b), which is quite a low threshold. For example, if the majority of the Judiciary were male, as is the case, at least one of the candidates would have to be female. That would very clearly be in furtherance of the diversity principle. Numerous other examples could be given. It is not an unreasonable expectation and would be very easily satisfied. There is no obligation to appoint a candidate who satisfies the provisions. Rather, the requirement would be that the appointment of at least one of the eminently qualified people would in furtherance of the objective of diversity but the decision on appointment would be for the commission. It is not a particularly radical provision but it is important.
Amendment No. 3 proposes to insert a new section in place of section 7. The amendment is identical to an amendment discussed at some length on Committee Stage and ultimately withdrawn by Deputy Ó Laoghaire to facilitate other amendments to section 7. I acknowledge that the Deputy flagged that he would resubmit the amendment on Report Stage but in so doing he has failed to take into account a change made to section 7 on Committee Stage by an amendment that introduced the objective of Irish language proficiency. I indicated on Committee Stage that I was not amenable to accepting the amendment and I reiterate that now.
Subsection (1) of the proposed replacement section 7 states that "No person shall be recommended, under this Act, for appointment to judicial office unless they are of sufficient merit to discharge with distinction the responsibilities of the office to which they are appointed (the “Merit Principle”)." Subsection (2) of the proposed new section has the effect of benchmarking the merit-based recommendation against the objectives of having an equality of men and women in the membership of the Judiciary and diversity among that membership. The objectives are denoted by reference to a diversity principle. Subsection (3) stipulates that "a list of persons recommended for appointment to judicial office under this Act shall include at least one person whose appointment would further the objectives of the Diversity Principle". I am not at all sure that the Bill should require the commission to select in such a specific manner.
I acknowledge the points made by Deputy O'Callaghan on the issue. He made a lot of sense on the merit principle. Deputies are aware that there are several elements to how the Bill addresses the issue of population diversity and gender equality. Under section 7, subject to decisions being based on merit, the concerns in regard to gender balance and diversity in the membership of the Judiciary are very clearly brought to the fore by way of a requirement that regard must be had to them for the function of selecting and recommending persons for appointment. Gender equality and diversity feature elsewhere in the Bill, such as sections 12(5) and 50(5). Section 12(7) provides that one area where knowledge and experience is to be to the fore in the selection of lay members is with respect to "human rights, equality or issues concerning diversity amongst members of society". Under the review process provided for in section 53 the procedures committee must monitor and review the implementation of the Act including, in particular, the diversity among candidates for appointment. It must report its findings to the commission which, in turn will report to the Minister with recommendations. I am satisfied that the Bill addresses this issue adequately as well as that which Deputy Ó Laoghaire intends to achieve through the amendment, and I am not inclined to support it.
I wish to discuss amendment No. 4 and other amendments in this grouping which are in my name. Amendment No. 4 is a drafting amendment. As regards amendment No. 5, section 7 was amended on Committee Stage such that, in addition to the objectives that membership of the Judiciary should comprise equal numbers of men and women and reflect the diversity of the population as a whole, a third objective now provides that there shall be proficiency in the Irish language among judges, subject to the fundamental requirement that merit be the basis for any decision to recommend a person for appointment to office. Under section 7, regard shall be had to those three objectives.
Section 50, which was section 55 of the Bill as published, was also amended on Committee Stage. It regards the procedures committee and its role and function. There ought to be more consistency in section 50(5)(f) with the language of the objective of gender equality in 50(5)(c) and that on the objective of population diversity in 50(5)(d). For that reason, I have tabled amendments Nos. 5 and 100 and related them to a new subsection, the subject of amendment No. 102, which I am sure Deputy Clare Daly will welcome. Similarly, amendment No. 100 provides that, in the context of the statement to be prepared by the procedures committee, section 50(5)(f) will prescribe that a matter to which the committee shall have regard will be the written statement to be provided under section 50(7).
Deputy O'Callaghan referred to the subject matter of amendment No. 102, namely, a new provision requiring the commission to consult with the Courts Service to enable the commission to keep under review the needs of court users with respect to Irish language proceedings. This new subsection will require the commission to provide a written statement to the procedures committee from time to time, addressing those needs.
My colleague, the Minister, Deputy Ross, has expressed certain views on the nature of judicial appointments. He is entitled to his views but I do not share them. I disagree with his view that our Judiciary is comprised of friends of Government, past and present. I believe that is unfair and untrue. As Minister for Justice and Equality I wish to state on the record that we have been very well served by our Judiciary, who serve our people on a daily basis without fear or favour. The Judiciary has been independent in that service since the foundation of the State. Our judges are highly regarded both at home within this jurisdiction and abroad.
The reforms in this Bill that the Government is bringing forward should not in any way be construed as casting any negative aspersions or otherwise on the quality of the Judiciary. These reforms modernise aspects of the judicial appointments system. I believe it is important that we keep our laws updated. I do not agree that the Judiciary has been in any way compromised down the years and I reject that notion if it was construed by what has been said earlier this afternoon in the course of this debate.
It is hard to follow that one. I will go back to the issue at stake. The Minister is correct that there are aspirations regarding the encouragement of gender equality and diversity throughout the Bill. The difference between an aspiration and what Deputy Ó Laoghaire is trying to do is that the amendment provides a lot more meat. I put it to the Minister that amendment No. 3 is very carefully crafted to do exactly that because it is subject always to the merit principle but it means that we are not just paying lip service to gender and diversity, we are putting it up to the commission to encourage more people to be nominated as judges by requiring at least one person in such a category to be appointed. I agree with that. To me that is the judicial equivalent of gender quotas for political parties. At the time when that idea was put forward I thought it was nonsense and I was of the view that it would just pay lip service to the issue and that we would get inadequate people, but the reality has proven that to be an incredibly positive measure which has meant more women have come through into the Parliament and that in and of itself has had a knock-on effect on the type of Parliament we have. It might not be perfect but it is more diverse than it used to be, so we are getting there. This measure is the judicial equivalent of that and we need to put it up to the commission that it has to deliver recommendations that encourage women and reflect diversity in society. That is an issue women need to look at because the real problem here is that there are very few people from working class communities of Dublin or the pauperised rural communities who end up as members of the Judiciary. Generally speaking, they come from the barrister profession and it is very difficult to become a barrister if one does not have parents to support one in all those years when one does not get paid. We must tackle those issues. We must define diversity. It is not just a case of being gay or black. It is primarily a class issue and that needs to be reflected. Amendment No. 3 is a very good step in that direction and it is carefully crafted. The Minister should accept it because it is important for all the other aspects also.
I welcome the comments of the Minister for Justice and Equality. It is about time that somebody in government has stood up to the cowardly and ill-informed assault that the Minister, Deputy Ross, has waged against the Judiciary for the past two years. It is regrettable that no one else in government has seen fit to do likewise.
In respect of Deputy Ó Laoghaire's amendment, there is something I did not notice when I was speaking about it earlier and I am afraid it has affected my view of it. I do not know if he intended this, but the effect is to remove section 7 in its entirety. Perhaps he is aware of this but if section 7 is removed that would have the effect of removing section 7(2)(c) which contains the objective I know he agrees with, namely, that there should be proficiency in the Irish language among the Judiciary. That would affect my view in respect of the amendment. It is important that there would be proficiency in the Irish language for the reasons I outlined earlier.
I note the interesting comments Deputy Daly made in respect of diversity. "Diversity" is a word that is sometimes overused. It sounds great in legislation but it is not meaningful. In order to get greater diversity in the Judiciary we need to get greater diversity in the legal profession. My experience is that it is changing. It is very hard to make it as a barrister in Ireland now, but it is not the case that it is the same type of people who are becoming barristers or solicitors. A much broader range of people is coming into the legal profession. It is a much tougher career than is presented by people who view it as being an easy career. It is very hard to make a living as a young barrister or solicitor. We must encourage people and ensure they are given a chance early on. The merit principle in the profession is really important so that people get a chance on merit to make a living and that will improve diversity in the Judiciary.
Like my colleague, Deputy O'Callaghan, I welcome the comments and clarification from the Minister. There is clearly a separation of opinion at Cabinet. It is bizarre seeing two Ministers reflecting opposite views. Does the Minister for Justice and Equality feel pressurised by the presence of the initiator of this Bill? His every move is being watched.
Not at all. It is a Government team. I said that from the outset.
It is a bizarre and divided team. Deputy O'Callaghan makes a very valid point. The amendment proposed by Sinn Féin has the effect of deleting the objective that there should be proficiency in the Irish language among the Judiciary. We know what Sinn Féin is trying to do in the North and the importance of the Irish language. Sinn Féin has tabled very few amendments. I understand the party is supporting the Bill, as it has said that previously. Perhaps Deputy Ó Laoghaire could set out what is the crux of his party's support for the Bill. Is it this amendment or is it another amendment? I am a bit confused by the lack of amendments Sinn Féin has tabled in terms of what is the crux of its support for the Bill. More than 100 amendments are being tabled and we need to know how they will be supported. What is the central tenet of Sinn Féin's support if this does not have the Government's support as set out by the Minister?
I will observe future Bills for Fianna Fáil amendments as a measure of the party's level of interest. I do not know whether that is a very good criterion to use. With only two minutes speaking time I am not sure I will have time to respond to that point but I might get to it.
I am conflicted over the amendment. I accept the point made by Deputy O'Callaghan. It is an oversight that the point is not included.
That is fair enough.
It was a change of lines. I would like to see both measures included. There is still the Seanad in terms of effecting change. That said, the Government has to a large extent accepted paragraph (c). I will consider the issue further. I would like to see the Irish language proficiency retained but I also think the reference to diversity is important. I wish to emphasise that this is not a huge ask. Deputy Daly's analogy was very good. Such an approach is very sensible because just as quotas did not put women in the Dáil or Seanad, they put them on the ballot paper and gave the public the final say in that regard.
In the same manner, this is not going to do anything other than put people who further, rather than comprehensively satisfy, the objective of the diversity principle on the shortlist. That makes sense and is reasonable. The opportunity will then exist to evaluate all the people who will have satisfied the merit principle. I will consider further whether to press this amendment. It is my strongly held view that the Minister should take this point on board but I am also anxious to ensure that there is proficiency in the Irish language among the Judiciary.
As to supporting the Bill, I have made it clear on the public record that Sinn Féin views this Bill and the Judicial Council Bill as a package. We want to see progress in the reform of the Judiciary generally and we want to see the introduction of sentencing guidelines. Our position on the final vote is still being considered and depends on a number of factors. It is important to reform the independent appointment of the Judiciary process. Fianna Fáil may have its own reasons for opposing changes in the judicial appointments system.
How stands amendment No. 3? Is it being withdrawn or pressed?
I cannot support it.
In that context my amendment is likely to be defeated so I will table a slightly adjusted version for the Seanad debate. In the interim, I would like the Minister to consider the matter because I think there is a consensus on the principle contained in the amendment, whatever about the actual vehicle.
We cannot get into that discussion now. The amendment is either being withdrawn or pressed.
I will withdraw it.
I am conscious of what Deputy Ó Laoghaire has said about the context of the withdrawal and we will have a further opportunity to discuss this.
Amendment, by leave, withdrawn.
I move amendment No. 4:
In page 10, line 2, to delete “and” where it secondly occurs.
Amendment agreed to.
I move amendment No. 5:
In page 10, to delete lines 5 and 6 and substitute the following:
“(c) the objective that, consistent with the written statement most recently provided under section 50(7) to the Procedures Committee concerning the needs of the users of the courts in that regard, the membership of the judiciary should include persons with a proficiency in the Irish language.”.
Amendment agreed to.
Amendments No. 6, 8, 10, 12 to 23, inclusive, 45 to 57, inclusive, and 59 to 64, inclusive, are related and may be discussed together. Amendments Nos. 8, 10 and 12 to 16, inclusive, are alternatives to amendment No. 6. Amendments Nos. 15 and 16 are alternatives to amendment No. 14. Amendments Nos. 21 to 23, inclusive, are alternatives to amendment No. 20. Amendments Nos. 47 and 48 are alternatives to amendment No. 46. Amendment No. 50 is an alternative to amendment No. 49. Amendment No. 63 is an alternative to amendment No. 62.
I move amendment No. 6:
In page 10, to delete lines 20 to 28 and substitute the following:
“10. (1) The Commission shall consist of 11 members being—
(a) the Chief Justice,
(b) the President of the Court of Appeal,
(c) the President of the High Court,
(d) the President of the Circuit Court,
(e) the President of the District Court,
(f) a lay person nominated by the Irish Human Rights and Equality Commission,
(g) a lay person nominated by the Free Legal Advice Centres Limited,
(h) a lay person nominated by the Citizens Information Board,
(i) a lay person nominated by an tÚdarás um Ard-Oideachas,
(j) a practising barrister nominated under section 13, and
(k) a practising solicitor nominated under section 13.
(2) The Commission shall elect its own chairperson.”.
This is a very large grouping but I will try to simplify it for the thousands of people watching proceedings at home. All these amendments are concerned with how the commission is constituted, the number of people on it and how they should be appointed. Following the Committee Stage debate we have a Bill under which, at present, the commission has 13 members. Under the Minister's Report Stage proposals, the commission will increase to 17 members. Just looking at this on pure economic grounds, we are establishing a quango of 17 people that the Government has told us will cost €1 million per year. That information was contained in the explanatory memorandum that was attached to the legislation on Second Stage. The commission is replacing the Judicial Appointments Advisory Board, JAAB, which has nine members and which costs less than €10,000 per year. On first principles alone, an extraordinary quango is being established here. We know from the legislation that not only is the commission going to deal with recommending people to Government, there will also be an office of judicial appointments, a director general and no doubt there will be glossy annual reports, the commission will have a PR company advising it and so on. This is the sort of thing that an enthusiastic journalist would have criticised years ago and is a further example of this Government creating an unnecessary and very costly quango.
My amendment proposes to simplify the commission. The Government is proposing to put 17 people on the commission but my amendment provides for 11 members. I ask colleagues to approach this with an open mind. Under the proposal I have put forward in amendment No. 6 there would be five members of the Judiciary on the commission of 11. There is agreement among all of us that the presidents of each of the courts should be on this commission. They are in similar positions to the headmasters or principals of schools in that they know what is required in their courts. What they want most of all is not to have their friends appointed but to ensure that any appointees to their courts are people who can work hard, who know the law and who will be an addition to the courts over which they preside. It is essential, for that reason, that we have the five presidents of each of the five courts on the commission.
It is also important to have lay people on this body. Lay people will bring a different perspective. They obviously do not bring with them the expertise that judges have but they bring a different perspective on how individuals should be selected following the application process which is set out in the legislation. The Government has proposed that the lay people it wants on the commission should be appointed by public advertisement and a competition run by the Public Appointments Service, PAS. That is a very complicated process, particularly given that there will be nine lay people on the commission under the Government's proposals. We will have to go around the country, advertise and look for nine lay people who cannot be lawyers under any circumstances because lawyers might bring some knowledge or expertise to the process. A much better way of finding suitable lay people is to have them nominated by organisations and entities that are well respected. My amendment proposes that a lay person be nominated by the Irish Human Rights and Equality Commission, the Free Legal Advice Centres Limited, the Citizens Information Board and by an tÚdarás um Ard-Oideachas. That would provide a very good contribution to the commission. We would have four strong lay people nominated by each of those respected entities, based on what they think would be appropriate for the commission. I do not think there is disagreement in the House on the need to have a representative of both of the legal professions on the commission. As I have said repeatedly, one can only be a judge if one is a practising lawyer. Therefore, it is necessary that someone from the Law Society of Ireland who knows solicitors and someone from the Bar Council who knows barristers can bring their knowledge of the people who are applying. I heard the Minister for Transport, Tourism and Sport, Deputy Ross, being interviewed by Mr. David McCullagh on "Prime Time" a number of months ago. Mr. McCullagh made the point to the Minister that the advantage of having people on the commission who have knowledge of and who know the applicants is that they will "keep the eejits out". There are many people who can apply and whose applications will look great on paper. Some will have impressive a curriculum vitae and will do a great interview but the commission needs to have knowledge of the applicants' experience as barristers or solicitors over a period of 15 to 20 years. One will know a lot more about a person and whether he or she will make a good judge from knowing how he or she has been, as a practising barrister or solicitor for 20 years, than from looking at a three or four-page application. It is important, in that context, that the commission has that expertise. The Minister will note that in the commission I propose I have not included the Attorney General. That is consistent with the proposal that I put forward in the legislation that Fianna Fáil sponsored a year and a half ago. I must also speak on the other amendments in this grouping but before doing so, I must point out that amendment No. 6 proposes that the commission itself should be able to elect its own chairperson.
I note that Deputy Wallace's amendment No. 7 has been ruled out of order. Parts of that amendment appealed to me but it is now gone. I also note that Deputy Clare Daly's amendment No. 11 has also been ruled out of order. That amendment proposed that the Presidents of the Circuit Court and District Court be put back onto the commission. I would have supported that because it is just not tenable to have a commission without them. The Minister already knows my views on having the Attorney General on the commission and also at Cabinet afterwards, making the political decision.
Deputy Ó Laoghaire and others have to decide how they will vote, but I want to make it clear that if my amendment No. 6 is rejected, I will probably accept the Government's amendment No. 10 as the only way I can get the Presidents of the Circuit Court and the District Court back onto this commission.
I have listened carefully to what Deputy O'Callaghan has had to say on this issue. He has proposed amendment No. 6, which provides for an 11-member commission. The Judicial Appointments Advisory Board currently has the same number of members. A positive element of the Deputy's amendment is that it secures the membership on the commission of all the court Presidents, including the Chief Justice. That is a key objective of the amendment I am proposing in this regard. I agree with the committee's proposal, as replicated in my amendment, that it would be appropriate to nominate a member of the Irish Human Rights and Equality Commission. We will not be changing that proposal.
There are a number of problems with Deputy O'Callaghan's amendment. First, the amendment does not allow for a lay majority. The composition of the commission he is proposing barely represents any reform of the current position. Deputies will be aware that a key priority in the programme for Government is the establishment of a judicial appointments commission with "a lay majority" and "an independent chairperson". The Bill, as passed by the committee, provides for a lay chair and a lay majority. I do not see any rational basis for revisiting, much less reversing, that position.
I am still convinced that the use of the Public Appointments Service, operating on the basis of a set of competencies provided for in the Bill, is the best method of obtaining the knowledge and experience that may well be represented in some of these bodies. I say that in response to Deputy O'Callaghan's suggestion that it could be difficult to get lay people with sufficient expertise and experience. I think we will look to the Public Appointments Service in this regard.
Deputy O'Callaghan's amendment poses a number of policy difficulties. It does not provide for a lay chair and does not guarantee that there will ever be a lay chair. It does not provide for a lay majority. It provides for a membership of five judges, four lay members and two legal members. It does not provide for a role for the Public Appointments Service. I cannot support it for those reasons.
I would like to speak on the amendments in this group in my name, which are Nos. 8, 10, 12 and 14. Deputies will be aware that the relevant committee structure provided in the Bill, as published, was removed by a vote of the select committee. This means that the selection and recommendation function falls back on the commission. It also means there is no role in the Bill for the Presidents of the District Court or the Circuit Court. I believe we need to be as representative as we can. I think I have done that with regard to amendment No. 10.
Since this Bill was first published and debated, the provision that has attracted the most attention has undeniably been section 10. I believe amendment No. 10, which includes a reference to "the Attorney General", is important in that context. I acknowledge that the will of the select committee was to remove the Attorney General from the membership of the commission. The committee voted in favour of including the Chief Justice and the chief commissioner of the Irish Human Rights and Equality Commission. I accept the inclusion of the chief commissioner of the Irish Human Rights and Equality Commission, but I believe there is strong merit in revisiting the membership of the Attorney General.
The Government's view on this matter, which was reaffirmed recently in the context of this debate, is that the Attorney General should be included in the new commission, subject to the inclusion of the Presidents of the District Court and the Circuit Court and the retention of the chief commissioner of the Irish Human Rights and Equality Commission as a lay person. This would bring the total membership of the commission to 16 and would not bring about a lay majority. I am proposing in amendment No. 14, having regard to the programme for Government, to add one further lay person to the commission, thereby providing for a commission of 17 members with a lay majority.
We have a short amount of time available to us this afternoon. We will come back to this legislation next week. As Deputies are aware, the Attorney General has an important function in representing the State in legal proceedings. The Attorney General represents the public in all legal proceedings from the perspective of the enforcement of the law and the assertion or protection of public rights. The day-to-day interaction between the law and the courts, and at the highest level of legal proceedings before the courts, gives the Attorney General a unique perspective on the work of legal practitioners and on the deliberations of the courts themselves.
I have not heard a convincing argument for losing the Attorney General's potentially significant input into the deliberation stage of the selection process. During that stage, very many names may come before the commission, whereas a limited number of names come before the Cabinet at present. I do not believe there can be a convincing argument for the removal of the Attorney General from the commission. I see no justification whatsoever for turning on its head the very positive history of the Attorney General's involvement in the advisory board process, the benefits of which the courts and the system have enjoyed for over 20 years.
I assume Deputy Clare Daly will move amendment No. 13, which is linked to amendment No. 16. Perhaps we will have an opportunity to deal with those amendments when these proceedings resume after they have been adjourned today.
It is important to note that the amendment in the name of my colleague, Deputy O'Callaghan, proposes a commission of 11 members with an appropriate mix of lay people and a spread of key people across the Judiciary, including the President of the District Court, the President of the Circuit Court, the President of the High Court, the President of the Court of Appeal and the Chief Justice. I think it is right that he is proposing that lay members of the commission should be nominated by the Irish Human Rights and Equality Commission, the Free Legal Advice Centres, the Citizens Information Board and an tÚdarás um Ard-Oideachas. He is proposing that a barrister and a solicitor should be nominated to the commission under section 16 of the Bill. He is also proposing that the commission should be able to appoint its own chairperson. As none of these people would have a single majority, there will be a genuine mix or spread of people across the commission. It would be a misinterpretation to say that there will be a majority of any type.
The Minister for Justice and Equality is proposing that there will be up to 17 people on this board, which would be an overwhelming number, especially given that the judicial appointments commission will appoint very few judges in any given year. I note that the Minister for Transport, Tourism and Sport has been sitting at the Minister's shoulder since the beginning of these proceedings. I assume he will do likewise next week and in the weeks beyond. As someone who read the newspaper columns that the Minister, Deputy Ross, used to write over many years, I am surprised by this proposal. He was the biggest critic of quangos and of excessive costs and layers within the public service. The pressure brought to bear by this proposal would impose a hundredfold increase in cost. I suggest this would probably be the biggest increase in costs associated with a single quango during the term in office of this Government and its predecessor. Under this proposal, we will have a director of the office being appointed. The establishment of a judicial appointments commission office is being proposed. There will be a spread around the director in terms of the secretariat. I am surprised that the Minister for Transport, Tourism and Sport, who has a number of quangos in his own area, is proposing one of the biggest expansions in bureaucracy we have seen. The Judicial Appointments Advisory Board, as it currently stands, is efficient. We all accept that reforms are needed.
To propose such a multiplication of cost just to integrate his own reform proposals is really surprising. Can the Minister explain the necessity for that cost increase? Why do we need to bring the budget, as Deputy O'Callaghan said, from €10,000 or €20,000 on an annual basis from the Department of Justice and Equality to one of €1 million? As per the previous proposal, if the Minister had his way with the various procedural committees and everything else, this would have cost even more.
I am sorry to interrupt the Deputy. As it is 5 p.m., by order of the House we must adjourn the debate. When we resume, he will be in possession with in excess of three minutes remaining.
Debate adjourned.