Judicial Appointments Commission Bill 2017: Report Stage (Resumed) and Final Stage

I remind Members that we dealt with amendment No. 37 before adjourning the debate. We will now resume on amendment No. 38, which was discussed with amendment No. 25.

I move amendment No. 38:

In page 13, to delete lines 39 and 40.

Amendment put:
The Dáil divided: Tá, 54; Níl, 40; Staon, 0.

  • Aylward, Bobby.
  • Boyd Barrett, Richard.
  • Brady, John.
  • Brassil, John.
  • Broughan, Thomas P.
  • Browne, James.
  • Buckley, Pat.
  • Burton, Joan.
  • Byrne, Thomas.
  • Chambers, Lisa.
  • Collins, Niall.
  • Connolly, Catherine.
  • Cowen, Barry.
  • Crowe, Seán.
  • Cullinane, David.
  • Daly, Clare.
  • Donnelly, Stephen S.
  • Ellis, Dessie.
  • Harty, Michael.
  • Haughey, Seán.
  • Kelleher, Billy.
  • Kenny, Gino.
  • Kenny, Martin.
  • Lahart, John.
  • Lawless, James.
  • MacSharry, Marc.
  • McConalogue, Charlie.
  • McDonald, Mary Lou.
  • McGrath, Mattie.
  • McGrath, Michael.
  • McGuinness, John.
  • Mitchell, Denise.
  • Moynihan, Aindrias.
  • Moynihan, Michael.
  • Munster, Imelda.
  • O'Brien, Jonathan.
  • O'Callaghan, Jim.
  • O'Reilly, Louise.
  • Ó Caoláin, Caoimhghín.
  • Ó Cuív, Éamon.
  • Ó Laoghaire, Donnchadh.
  • Ó Snodaigh, Aengus.
  • Penrose, Willie.
  • Ryan, Brendan.
  • Ryan, Eamon.
  • Scanlon, Eamon.
  • Sherlock, Sean.
  • Smith, Brendan.
  • Smith, Bríd.
  • Smyth, Niamh.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Troy, Robert.
  • Wallace, Mick.

Níl

  • Bailey, Maria.
  • Brophy, Colm.
  • Bruton, Richard.
  • Burke, Peter.
  • Byrne, Catherine.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Corcoran Kennedy, Marcella.
  • Coveney, Simon.
  • D'Arcy, Michael.
  • Daly, Jim.
  • Deasy, John.
  • Deering, Pat.
  • Doherty, Regina.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Fitzgerald, Frances.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • Harris, Simon.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kyne, Seán.
  • Madigan, Josepha.
  • McEntee, Helen.
  • McGrath, Finian.
  • McLoughlin, Tony.
  • Mitchell O'Connor, Mary.
  • Moran, Kevin Boxer.
  • Murphy, Eoghan.
  • Naughten, Denis.
  • Naughton, Hildegarde.
  • Neville, Tom.
  • O'Connell, Kate.
  • Phelan, John Paul.
  • Rock, Noel.
  • Ross, Shane.
  • Stanton, David.

Staon

Tellers: Tá, Deputies Clare Daly and Mick Wallace; Níl, Deputies Tony McLoughlin and Joe Carey.
Amendment declared carried.

I move amendment No. 39:

In page 14, line 1, after “finance,” to insert “or administration, including public administration,”.

Amendment agreed to.

As amendment No. 39 has been agreed to, amendment No. 40 cannot be moved.

Amendment No. 40 not moved.

I move amendment No. 41:

In page 14, between lines 1 and 2, to insert the following:

“(g) board membership and corporate governance; and”.

Amendment put:
The Dáil divided: Tá, 39; Níl, 48; Staon, 0.

  • Bailey, Maria.
  • Brophy, Colm.
  • Bruton, Richard.
  • Burke, Peter.
  • Byrne, Catherine.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Corcoran Kennedy, Marcella.
  • D'Arcy, Michael.
  • Daly, Jim.
  • Deasy, John.
  • Deering, Pat.
  • Doherty, Regina.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Fitzgerald, Frances.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • Harris, Simon.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kyne, Seán.
  • Madigan, Josepha.
  • McEntee, Helen.
  • McGrath, Finian.
  • McLoughlin, Tony.
  • Mitchell O'Connor, Mary.
  • Moran, Kevin Boxer.
  • Murphy, Eoghan.
  • Naughten, Denis.
  • Naughton, Hildegarde.
  • Neville, Tom.
  • O'Connell, Kate.
  • Phelan, John Paul.
  • Rock, Noel.
  • Ross, Shane.
  • Stanton, David.

Níl

  • Aylward, Bobby.
  • Boyd Barrett, Richard.
  • Brady, John.
  • Brassil, John.
  • Broughan, Thomas P.
  • Browne, James.
  • Buckley, Pat.
  • Burton, Joan.
  • Chambers, Lisa.
  • Collins, Niall.
  • Connolly, Catherine.
  • Cowen, Barry.
  • Crowe, Seán.
  • Cullinane, David.
  • Daly, Clare.
  • Donnelly, Stephen S.
  • Ellis, Dessie.
  • Gallagher, Pat The Cope.
  • Harty, Michael.
  • Kenny, Gino.
  • Kenny, Martin.
  • Lahart, John.
  • MacSharry, Marc.
  • McConalogue, Charlie.
  • McDonald, Mary Lou.
  • McGrath, Mattie.
  • McGuinness, John.
  • Mitchell, Denise.
  • Munster, Imelda.
  • Murphy, Eugene.
  • O'Brien, Jonathan.
  • O'Callaghan, Jim.
  • O'Reilly, Louise.
  • Ó Caoláin, Caoimhghín.
  • Ó Cuív, Éamon.
  • Ó Laoghaire, Donnchadh.
  • Ó Snodaigh, Aengus.
  • Penrose, Willie.
  • Ryan, Brendan.
  • Ryan, Eamon.
  • Scanlon, Eamon.
  • Sherlock, Sean.
  • Smith, Bríd.
  • Smyth, Niamh.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Troy, Robert.
  • Wallace, Mick.

Staon

Tellers: Tá, Deputies Joe Carey and Tony McLoughlin; Níl, Deputies Clare Daly and Mick Wallace.
Amendment declared lost.

I move amendment No. 42:

In page 14, to delete lines 3 to 8 and substitute the following:

“(8) The Irish Human Rights and Equality Commission shall nominate one of its members, being a lay person, to be the member of the Commission to whom section 10(1)(g) refers and the person, so nominated, shall accordingly be appointed by the Minister to be the member so referred to.”.

Amendment agreed to.
Amendments Nos. 43 and 44 not moved.

I move amendment No. 45:

In page 14, line 37, to delete “lay”.

Amendment put:
The Dáil divided: Tá, 30; Níl, 58; Staon, 0.

  • Aylward, Bobby.
  • Brassil, John.
  • Broughan, Thomas P.
  • Browne, James.
  • Burton, Joan.
  • Byrne, Thomas.
  • Chambers, Lisa.
  • Collins, Niall.
  • Connolly, Catherine.
  • Cowen, Barry.
  • Daly, Clare.
  • Dooley, Timmy.
  • Gallagher, Pat The Cope.
  • Kelleher, Billy.
  • Lahart, John.
  • MacSharry, Marc.
  • McConalogue, Charlie.
  • McGrath, Mattie.
  • McGuinness, John.
  • Murphy, Eugene.
  • O'Callaghan, Jim.
  • Ó Cuív, Éamon.
  • Penrose, Willie.
  • Ryan, Brendan.
  • Ryan, Eamon.
  • Scanlon, Eamon.
  • Sherlock, Sean.
  • Smyth, Niamh.
  • Troy, Robert.
  • Wallace, Mick.

Níl

  • Bailey, Maria.
  • Boyd Barrett, Richard.
  • Brady, John.
  • Brophy, Colm.
  • Bruton, Richard.
  • Buckley, Pat.
  • Burke, Peter.
  • Byrne, Catherine.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Corcoran Kennedy, Marcella.
  • Crowe, Seán.
  • Cullinane, David.
  • D'Arcy, Michael.
  • Daly, Jim.
  • Deasy, John.
  • Deering, Pat.
  • Doherty, Regina.
  • Durkan, Bernard J.
  • Ellis, Dessie.
  • Farrell, Alan.
  • Fitzgerald, Frances.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • Harris, Simon.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kenny, Gino.
  • Kenny, Martin.
  • Kyne, Seán.
  • Madigan, Josepha.
  • McDonald, Mary Lou.
  • McEntee, Helen.
  • McGrath, Finian.
  • McLoughlin, Tony.
  • Mitchell O'Connor, Mary.
  • Mitchell, Denise.
  • Moran, Kevin Boxer.
  • Munster, Imelda.
  • Murphy, Eoghan.
  • Naughten, Denis.
  • Naughton, Hildegarde.
  • Neville, Tom.
  • O'Brien, Jonathan.
  • O'Connell, Kate.
  • O'Reilly, Louise.
  • Ó Caoláin, Caoimhghín.
  • Ó Laoghaire, Donnchadh.
  • Ó Snodaigh, Aengus.
  • Phelan, John Paul.
  • Rock, Noel.
  • Ross, Shane.
  • Shortall, Róisín.
  • Smith, Bríd.
  • Stanley, Brian.
  • Stanton, David.
  • Tóibín, Peadar.

Staon

Tellers: Tá, Deputies Jim O'Callaghan and Mick Wallace; Níl, Deputies Tony McLoughlin and Joe Carey.
Amendment declared lost.

I move amendment No. 46:

In page 15, line 4, to delete “7 members, 4 of whom shall be lay members” and substitute “9 members, 5 of whom shall be lay members”.

Amendment put and declared carried.
Amendments Nos. 47 and 48 not moved.

I move amendment No. 49:

In page 15, line 15, to delete “7 members of the Commission” and substitute “9 members of the Commission”.

Amendment put and declared carried.
Amendment No. 50 not moved.

I move amendment No. 51:

In page 15, lines 15 to 17, to delete all words from and including “, the” in line 15 down to and including “determines” in line 17.

Amendment put:
The Dáil divided: Tá, 26; Níl, 60; Staon, 0.

  • Aylward, Bobby.
  • Brassil, John.
  • Broughan, Thomas P.
  • Browne, James.
  • Burton, Joan.
  • Collins, Joan.
  • Connolly, Catherine.
  • Cowen, Barry.
  • Daly, Clare.
  • Gallagher, Pat The Cope.
  • Kelleher, Billy.
  • Lahart, John.
  • MacSharry, Marc.
  • McConalogue, Charlie.
  • McGrath, Mattie.
  • McGuinness, John.
  • Murphy, Eugene.
  • O'Callaghan, Jim.
  • Penrose, Willie.
  • Ryan, Brendan.
  • Ryan, Eamon.
  • Scanlon, Eamon.
  • Sherlock, Sean.
  • Smyth, Niamh.
  • Troy, Robert.
  • Wallace, Mick.

Níl

  • Bailey, Maria.
  • Boyd Barrett, Richard.
  • Brady, John.
  • Brophy, Colm.
  • Bruton, Richard.
  • Buckley, Pat.
  • Burke, Peter.
  • Byrne, Catherine.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Corcoran Kennedy, Marcella.
  • Crowe, Seán.
  • Cullinane, David.
  • D'Arcy, Michael.
  • Daly, Jim.
  • Deasy, John.
  • Deering, Pat.
  • Doherty, Regina.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • Ellis, Dessie.
  • English, Damien.
  • Farrell, Alan.
  • Fitzgerald, Frances.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • Harris, Simon.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kenny, Gino.
  • Kenny, Martin.
  • Kyne, Seán.
  • McDonald, Mary Lou.
  • McEntee, Helen.
  • McGrath, Finian.
  • McLoughlin, Tony.
  • Madigan, Josepha.
  • Mitchell O'Connor, Mary.
  • Mitchell, Denise.
  • Moran, Kevin Boxer.
  • Munster, Imelda.
  • Murphy, Eoghan.
  • Naughten, Denis.
  • Naughton, Hildegarde.
  • Neville, Tom.
  • Ó Caoláin, Caoimhghín.
  • Ó Laoghaire, Donnchadh.
  • Ó Snodaigh, Aengus.
  • O'Brien, Jonathan.
  • O'Connell, Kate.
  • O'Reilly, Louise.
  • Phelan, John Paul.
  • Rock, Noel.
  • Ross, Shane.
  • Shortall, Róisín.
  • Smith, Bríd.
  • Stanley, Brian.
  • Stanton, David.
  • Tóibín, Peadar.

Staon

Tellers: Tá, Deputies Clare Daly and Mick Wallace; Níl, Deputies Tony McLoughlin and Joe Carey.
Amendment declared lost.

I move amendment No. 52:

In page 15, lines 23 to 25, to delete all words from and including “, the majority” in line 23 down to and including “determines” in line 25.

Amendment put:
The Dáil divided: Tá, 8; Níl, 75; Staon, 0.

  • Broughan, Thomas P.
  • Collins, Joan.
  • Connolly, Catherine.
  • Daly, Clare.
  • McGrath, Mattie.
  • Ryan, Eamon.
  • Shortall, Róisín.
  • Wallace, Mick.

Níl

  • Aylward, Bobby.
  • Bailey, Maria.
  • Brady, John.
  • Brassil, John.
  • Brophy, Colm.
  • Bruton, Richard.
  • Buckley, Pat.
  • Burke, Peter.
  • Burton, Joan.
  • Byrne, Catherine.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Chambers, Lisa.
  • Corcoran Kennedy, Marcella.
  • Cowen, Barry.
  • Crowe, Seán.
  • Cullinane, David.
  • D'Arcy, Michael.
  • Daly, Jim.
  • Deasy, John.
  • Deering, Pat.
  • Doherty, Regina.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • Ellis, Dessie.
  • English, Damien.
  • Farrell, Alan.
  • Fitzgerald, Frances.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • Gallagher, Pat The Cope.
  • Griffin, Brendan.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kelleher, Billy.
  • Kenny, Martin.
  • Kyne, Seán.
  • Lahart, John.
  • MacSharry, Marc.
  • McConalogue, Charlie.
  • McDonald, Mary Lou.
  • McEntee, Helen.
  • McGrath, Finian.
  • McGuinness, John.
  • McLoughlin, Tony.
  • Madigan, Josepha.
  • Mitchell O'Connor, Mary.
  • Mitchell, Denise.
  • Moran, Kevin Boxer.
  • Munster, Imelda.
  • Murphy, Eoghan.
  • Murphy, Eugene.
  • Naughten, Denis.
  • Naughton, Hildegarde.
  • Neville, Tom.
  • Ó Caoláin, Caoimhghín.
  • Ó Cuív, Éamon.
  • Ó Laoghaire, Donnchadh.
  • Ó Snodaigh, Aengus.
  • O'Brien, Jonathan.
  • O'Callaghan, Jim.
  • O'Connell, Kate.
  • Penrose, Willie.
  • Phelan, John Paul.
  • Rock, Noel.
  • Ross, Shane.
  • Ryan, Brendan.
  • Scanlon, Eamon.
  • Sherlock, Sean.
  • Smyth, Niamh.
  • Stanley, Brian.
  • Stanton, David.
  • Tóibín, Peadar.
  • Troy, Robert.

Staon

Tellers: Tá, Deputies Clare Daly and Mick Wallace; Níl, Deputies Tony McLoughlin and Joe Carey.
Amendment declared lost.
Amendments Nos. 53 to 60, inclusive, not moved.

I move amendment No. 61:

In page 17, between lines 3 and 4, to insert the following:

"(e) being a member nominated by the Irish Human Rights and Equality Commission, ceases to be a member of the Irish Human Rights and Equality Commission,".

Amendment agreed to.
Amendments Nos. 62 to 64, inclusive, not moved.

I move amendment No. 65:

In page 19, between lines 34 and 35, to insert the following:

“Advances to Commission

23. (1) The Minister shall from time to time advance to the Commission out of moneys provided by the Oireachtas such amount or amounts as the Minister may, with the consent of the Minister for Public Expenditure and Reform, determine for the purposes of expenditure by the Commission in the performance of its functions.

(2) This section is in addition to any other provision made by this Act with regard to the provision of funding for a particular purpose.".

This is largely a technical amendment.

Amendment agreed to.

I move amendment No. 66:

In page 20, line 34, to delete "a relevant committee,".

Amendment agreed to.

I move amendment No. 67:

In page 21, line 6, to delete "person;" and substitute "person.".

Amendment agreed to.

I move amendment No. 68:

In page 21, to delete line 7.

Amendment agreed to.

I move amendment No. 69:

In page 21, line 10, to delete "a relevant committee,".

Amendment agreed to.

I move amendment No. 70:

In page 21, to delete lines 25 to 28.

Amendment agreed to.

I move amendment No. 71:

In page 21, line 31, after “and” where it firstly occurs to insert "its".

Amendment agreed to.

I move amendment No. 72:

In page 21, line 32, to delete "of each relevant committee".

Amendment agreed to.

I move amendment No. 73:

In page 23, to delete line 37, and in page 24, to delete lines 1 to 11 and substitute the following:

"(3) Subsection (1) shall only apply to a legal academic who has qualified as a barrister or solicitor and subsequent subsections of this section, in so far as they relate to a person who is referred to in them as a 'head of a faculty' or 'head of another faculty', shall not be construed as enabling such a person to be the subject of such an appointment unless the person has qualified as a barrister or solicitor.".

This amendment relates to the requirement that a legal academic must have had continuous practice of four years to be considered for appointment. While it is important to ensure there is considerable legal experience involved, this requirement is too restrictive. While someone might have qualified, he or she might not have practiced in four continuous years. This raises a number of considerations. Generally, we should be more open to considering the appointment of legal academics, in particular, to some of the Superior Courts where the issues might be more technical or abstract and where academic experience would be beneficial. People with academic experience are considered in other jurisdictions for appointment. Provided that someone has qualified as a barrister or a solicitor and provided that he or she qualifies in every other respect and is a fit and proper person with good experience and knowledge of the law to serve in such a position, it makes sense that he or she should be considered for appointment. I also take into account the fact that the current provision might have implications for those who might have left practice for a period, for example, female barristers who have taken leave of absence at various points for family reasons. That is the general approach in other jurisdictions and it is one which makes sense and should be taken into account. For these reasons, I have brought forward the amendment.

This is the reintroduction of a similar amendment tabled by the Deputy which we discussed at some length on Committee Stage. Having considered the matter fully, I am not in a position to accept the amendment. First, it would remove the eligibility requirement that candidates be either a solicitor or a barrister.

Second, it would remove the requirement of practical experience. There are good and sound reasons that these have been in our legislation over the years. I am not in a position, therefore, to accept the amendment.

The law, at present, for appointments to the superior courts is that a person must have been working in practice as a barrister or solicitor for 12 years. What is proposed in the legislation put forward by the Government in this section, which is an amendment to the 1961 Act, is that the qualifications would be changed so that legal academics would be available for appointment to the courts. I agree with much of what Deputy Ó Laoghaire said. In other jurisdictions, particularly in the United States, for instance, academics are appointed to the highest court in that land, the Supreme Court, on the basis of their academic qualifications.

My concern about the amendment put forward by Deputy Ó Laoghaire is that it would mean that a person could merely qualify as a barrister or solicitor and then be in a lecturing role for, say, 20 or 25 years without having ever practised in the courts. It would be very difficult for anyone who, for instance, worked in the law department in Trinity College or in NUI Galway who had never worked as a barrister or solicitor to find him or herself being appointed to, say, the Circuit Court or the High Court. It may be feasible for such persons to play the role of an appeal court judge because an appeal court judge does not deal with witnesses and mainly has to deal with issues of strict interpretation of law. My concern here, in respect of the Sinn Féin amendment, is that persons could be appointed who would not have practical experience of what is happening in a court. This is no criticism of them. It is merely a fact.

One of the most important functions that a judge has to fulfil in a primary court is knowing the rules of evidence. No matter how well versed a person is on the rules of evidence as an academic, he or she would be at a severe disadvantage if that person did not have an opportunity to experience the rules of evidence operating in a court of law. For that reason, although I welcome the fact that there will be individuals who can now be appointed from legal academia, it is important that they bring with them an element of practical experience in our courts.

It brings another relevant matter to mind. At present, it appears that barristers can only be appointed as judges if they are practising barristers in the Four Courts. Some former barristers have contacted me and said that seems unfair. These are barristers who have left the Four Courts, who are no longer members of the Law Library but who continue to work, for instance, as in-house counsel. They see themselves working in a similar position to solicitors in the same office but the solicitors are eligible for appointment to the court whereas they are not because they are no longer practising in the Law Library. That is something the Minister might look at in due course.

I want to let Deputy Ó Laoghaire know that, notwithstanding my general support for the principle, I will not be supporting the amendment.

I think it is a good amendment. We must put it in the context of what we are trying to achieve here.

One of the fundamental aims is that we would have a more diverse Judiciary. We do not want a replication of what was there previously, albeit appointed in a different way. We want those appointed judges to have a knowledge of the law. In that sense, it is eminently sensible that those legal academics who are trained in the law and its relevance etc. would not necessarily have to practice as barristers or solicitors before they are appointed as judges. If we insist on appointing those who have the practical experience, we are insisting that those in the system who have adapted to the norms of court life would assume the position of judge. That will not shake up anything at all.

We all agree that anybody put forward for the office of judge should know, understand and uphold the law, but he or she should not necessarily only come from that narrow legal circle. Whereas I would have the height of respect for a few, if maybe not all, barristers and solicitors, it is not an absolute necessity that they would all be practising previously. To have qualified is necessary, thereby demonstrating a knowledge of the law.

It is quite a subtle amendment but it contributes quite positively to what we want to achieve, which is the appointment of persons who are not clones of those who are there but who may have a broader world vision, who better reflect what life is like and who operate in dispensing justice in the public interest. It is a good one. I, certainly, will be supporting it. It is a positive measure for diversity.

In the interests of diversity, the amendment is good. I agree with it. I agree with the Minister that it is important to have experience but there are many different types of experience. The experience of life is every bit as valuable as any other. I imagine that where someone was appointed who did not have the experience of a barrister or solicitor, if he or she was considered good enough to be put forward, there would be good reason for doing so. I am sure he or she would be no gom, as it were. In the interests of diversity, I approve of it.

On foot of what Deputy O'Callaghan said, my understanding is that it would still be 12 years' experience overall but that there must be four years' continuous experience. That is the point I was making in reference to those who might have taken a leave of absence for maternity leave etc. It is restrictive enough. Not only is 12 years' experience required but also, within that, four continuous years.

As I stated, there are considerations, especially in the superior courts, that can be quite theoretical and that might benefit from eminently qualified legal academics. Some, such as those who write the great constitutional law textbooks, would not be entitled to be appointed judges.

Unless Deputy O'Callaghan changes his position, I will press the amendment but not call a vote. I believe it is a correct amendment but I will not call a vote on it, if that is the position. In that context, I ask the Minister in a general sense that this matter could be given further consideration. Perhaps there is a middle ground to be found between the amendment I have put forward and the existing consideration so that there might be greater flexibility, albeit somewhat short of the greater discretion I have sought in my amendment.

I acknowledge what Deputy Ó Laoghaire and others have said. I have given the matter consideration. It is one that requires further consideration, but I am not sure that the immediate result of any further reflection might give rise to the amendment being accepted now.

I note an important point that Deputy O'Callaghan makes with reference to the possibility of dispensing with the requirement to have the legal practical experience in respect of the appeal courts. It is a reasonable point but I am not sure the extent to which that change would be required immediately. It is something that we would look to in the medium term. I am not minded to change in the context of this legislation but it is something important we would keep under review. The reasonable comments of Deputies on the other side would play an important role in feeding into that review which may take place on this legislation once enacted.

Amendment put and declared lost.

I move amendment No. 74:

In page 25, line 30, to delete "committee" and substitute "Commission".

Amendment agreed to.

Amendment No. 75 is in the names of the Minister and Deputy Clare Daly. Amendments Nos. 75 to 78, inclusive, 81 to 86, inclusive, 91 to 95, inclusive, and 97 and 99 are related. Amendment No. 82 is a physical alternative to amendment No. 81. Amendment No. 86 is an alternative to amendment No. 85. Amendment No. 86 is consequential on amendment No. 13. Amendments Nos. 93 and 95 are consequential on amendment No. 8. Amendments Nos. 75 to 78, inclusive, 81 to 86, inclusive, and 91 to 95, inclusive, and 97 and 99, will be discussed together.

I move amendment No. 75:

In page 27, between lines 11 and 12, to insert the following:

“Extent of application of Chapters 1 and 2

36. Nothing in this Chapter or Chapter 2 shall be construed as being applicable to a judicial office to which section 42 applies.”.

Amendment No. 75 introduces a new section. I share the amendment with Deputy Clare Daly. Its purpose is to reinstate what was previously section 39 of the Bill, as initiated. It is a general explanatory provision to the effect that Chapters 1 and 2 of Part 7 of the Bill do not apply to procedures in respect of certain senior judicial posts which are provided for separately in section 42 of Chapter 3. I do not anticipate that it will be controversial.

Amendment No. 76 is identical to the amendment in the name of Deputy Clare Daly. It is a drafting amendment which arises from a revised text of section 36, formerly section 39, which was amended on Committee Stage on the proposal of Deputy Clare Daly. Select committee members will recall that the word "publicly" was unnecessary and, accordingly, the amendments delete it.

Deputy Clare Daly and I share amendment No. 77 which is another drafting amendment and consequential on a series of amendments made on Committee Stage regarding the removal of the relevant committee structure.

Amendment No. 78 in my name is a reflection of a concern expressed at the select committee. While we did discuss these matters at it, I am advised that we need to state the order of preference will not limit the advice the Government might give to the President under the Constitution. There is no doubt that the list of three persons is the minimum to allow choice in the names the Government may nominate to the President for appointment. It also remains open to the Government, in accordance with the retaining of the constitutional prerogative, to nominate a person other than those who may be listed. In addition, the Bill deals with situations where it is not actually possible to recommend three persons.

There are a number of challenges. For example, on the matter of the order of merit, if the listing was seen to be in any way as a binding order of merit which confined the Government in the exercise of Executive discretion under Article 35 of the Constitution, we would have a constitutional difficulty. I have to reiterate at this stage that any ranking in order of merit of nominees for judicial office which would be submitted to the Government could interfere with and unlawfully fetter the Executive discretion of the Government under Article 35 of the Constitution. If there is any misconstruing or doubt or if there can be any potential misinterpretation that it, in effect, may be binding on the Government, we have a problem. To all intents and purposes, the Bill already reflects a significant narrowing of the discretion of the Government under the previous set of reforms dating back to 1995. It provides for three names to be recommended and five names where there are two vacancies, for example. The ranking of names in order of preference of the commission is a new element. On the basis that it is not binding, which is the overall effect of my two amendments, the Government has decided to support the change to an order of preference. Overall, my conclusion is that in respect of the constitutional function of the Government in the matter, it must have an element of choice. It must have choice in the names it may nominate for transmission to the President for ultimate appointment.

Amendments Nos. 81 and 83 to section 39 simply follow on from what I have set out with regard to amendments Nos. 77 and 78 and apply to the order of preference. I am unable to accept amendment No. 82 in the name of Deputy Clare Daly which overlaps with amendment No. 81 in my name. The amendment recognises and incorporates into the text of section 39(2) the order of preference concept. Amendment No. 74 in my name expands on the text of section 39(2) to make it clear that the expression of preference on the part of the commission will make no distinction between several vacancies. It is important that we add to the text of section 39 to put beyond any doubt the very particular aspect of the order of preference in situations where there is more than one vacancy in the same court.

With regard to amendment No. 84, the provision of the Bill, as published, whereby the names of all eligible persons will be forwarded to the Government where none or fewer than three can be recommended, was deleted by amendment. It is linked to a further amendment passed on Committee Stage which directs the commission to rerun the invitations at three-monthly intervals where no names could be recommended. Amendment No. 84 in my name seeks to reverse these amendments and address the provisions of section 40 because I am unhappy with the state of affairs left in place as a result of the amendment made on Committee Stage. I ask Members to bear in mind that the original purpose was to deal with something that would be exceptional enough in featuring, that is, a situation where the commission could only recommend fewer than three, that is, one or two, and could not recommend any person. The general thrust of the provision is based on the corresponding provision in statute that provides for the work of the JAAB. I ask Members to ensure we will have an element of consistency and that they consider previous positions with a view to supporting the amendment.

With regard to amendment No. 85, the Bill was amended on Committee Stage to remove a requirement that records and results of any interview be forwarded by the commission to the Government in respect of recommended persons. This was a new provision and a change from the JAAB provisions. It was intended to reflect the strongly perceived need for the commission to conduct interviews and inform Ministers of the outcome. The effect of amendment No. 85 is to reinstate that provision on the grounds of inconsistency.

There are a lot of things going. In half of them what the Government is trying to do is undo the changes brought forward at the select committee. Amendment No. 75 in our name and that of the Government does the same thing but for very different reasons. In the Government's case, it is being brought forward to preserve the special procedure involving the Chief Justice, the Attorney General and the chairperson, known as the senior judicial appointments committee, coming together to agree on who should be nominated for appointment as Chief Justice, the President of the Court of Appeal or the President of the High Court, whereas in our case it is to preserve an amendment we succeeded in having accepted on Committee Stage, namely, that it is the commission that will make the decisions on senior judicial appointments, albeit using a slightly different procedure than that used for other judicial appointments, rather than a conclave of the three individuals to which the Government seems to be wedded. Without amendment No. 75, the procedure for appointing senior judges would be very confused; therefore, it is necessary. We have to make the point that the Government is attempting in some of the amendments in this group to do away with our successful committee amendment which took senior judicial appointments out of the hand of the conclave, for example, in amendment No. 87 which is in a different group of amendments. That is why this batch is slightly confusing.

Amendment No. 76 in our name and the Minister's is harmless enough. It proposes to delete the word "publicly". It arose because on Committee Stage we got the words "shall publicly" inserted. The "shall" was more important to us than the "publicly". We are happy enough with that.

We are also happy with our amendment and the Government's amendments Nos. 77 and 81. We are happy to withdraw our amendment No. 82 in deference to the Minister's amendment No. 81 which is better drafted than ours. On Committee Stage, despite fierce resistance from the Government, we succeeded in obliging the Government to rank its judicial nominees in order of preference and, while the Government expressed concern that it might not be constitutional, we are very glad the Minister has pulled back from that position and agrees that there is no constitutional impediment to the commission ranking nominees. The Bar Council of Ireland and the Judicial Appointments Review Council suggested this and if we did not allow the commission to rank applicants we would end up with a commission that would differ from the current system only in its make-up, the outcomes would inevitably be the same. That should not be what we are aiming for out of this process.

Amendments Nos. 78 and 83 are the Government's way of reassuring itself as to the constitutionality of the commission being empowered to rank the nominees it is putting forward. We do not think they are necessary. They are redundant, a bit of window dressing but we are not going to lose any sleep over it. We know that ranking does not limit the Government in who it can tell the President to appoint. In amendment No. 84 the Government is trying to re-gift itself the power to completely ignore the commission's advice in a circumstance where the commission cannot in good conscience recommend anybody for appointment. We are strenuously opposed to this. The amendment means that after the commission has been through the whole process of inviting applications, going through CVs, interviewing applicants, debating the applicants' merits, drawing up a short list and sending it to Government, the Government can say it could not be arsed and it is not going to nominate any of these people. The Government could appoint somebody whom the commission has actively rejected. It is a nonsense. It could appoint somebody who had not even applied. Under amendment No. 85 the Government will force the commission to gather up all the application documents that it has gone through painstakingly, send them to the Government only for it to do the very thing the Bill is intended to stop and appoint whoever it likes as a judge.

Amendments Nos. 84 and 85 are re-gifting the power to the Government, a change we succeeded in getting on Committee Stage, that where the commission could not in good conscience recommend anybody for appointment it should be asked to re-advertise every three months until it recommends at least one person. That is in the Bill now and the Government wants to get rid of it. On Committee Stage the Minister argued against our amendment saying vacancies have to be filled and all that sort of good stuff. In effect, what he is saying is that the commission does not think any of the applicants are qualified to fill a vacancy. Rather than allow the commission to go out and find someone good, the Government thinks it is better that it go ahead and appoint whoever it likes. This is serious and that is not good enough.

We are talking about circumstances in which the commission could not recommend anyone. That would be incredibly rare because the commission has the power to recommend three names for a vacancy but it does not have to. It could recommend one. We are talking about circumstances where it cannot recommend any, which would be exceptional. What is so wrong if once in a lifetime it has to re-advertise a position? That is a better way of going about it.

Amendment No. 92 is our attempt to make it so that the Government can consider for appointment only people that the commission nominates. We went through this at length on Committee Stage and I am not going to rehash the arguments. I just want to briefly reiterate that the Bar Council argued in its 2014 submission on the reform of the judicial appointments process that only candidates recommended by the Judicial Appointments Advisory Board, JAAB, should be eligible for appointment. The Government is fettered in its choice in law with regard to judicial appointments. What we propose is no different from that. The Minister tried to say it was unconstitutional. I do not buy that. I would love to be a judge. I would like that more than anything else in the whole world but I cannot be appointed as a judge because I am not a barrister or solicitor. There are restrictions already in law as to who can be appointed. Our putting in a criterion to say a person can be appointed a judge only if he or she is recommended by the judicial appointments commission is no different from any other restriction in law and there are plenty of restrictions when it comes to appointing judges.

I am delighted to hear that Deputy Daly has made herself available for judicial appointment. I hope the Minister will amend the legislation to make an exception for her. She would make an excellent judge.

This is the core of the legislation we are discussing. Sometimes in this House we discuss issues which are peripheral and probably are not the crux of the legislation. We have had days of debate about the make-up of the commission, whether there should be a lay majority or lay chair. They are important issues. I argued on them and there is a division in the House on them. The most important part of the legislation is what actually happens when individuals have been recommended by this commission or board for judicial appointment. The flaw in the whole process - this was something that people saw from the outset and that the judges put in a submission in respect of some years ago - is that under the JAAB legislation the board has to nominate approximately seven people for each position. There is a large number of people who can be nominated by JAAB, and that goes to Cabinet where there is huge discretion to choose the successful applicant. The judges argued in their submission that the number should be narrowed so that the body that has expertise would identify three individuals who could be recommended to Government. I do not know whether the judges argued that it should be ranked, and if they did, we agree with that.

There was also a recommendation made by the judges, with which I disagree, that when names were being given to the Cabinet an outstanding candidate could be identified. I thought that was an unwise proposal because this being Ireland there is no doubt that people would be able to identify who was nominated as an outstanding candidate. There would be two categories of judge, the "outstanding candidate" judges and the others. It makes no sense to go through this process unless at the end of it the advisory board or the commission we are establishing has the ability to rank individuals and to limit the number recommended to Government.

I am pleased the Government is prepared to accept that and recognises there has to be a ranking system, otherwise the whole process would be fairly pointless. The Constitution is very clear that judges in this country are nominated by Government and appointed by the President. Nowhere in the Constitution is there any reference to JAAB, or any expert commission. The fact that there is no reference in the Constitution to such statutory bodies does not mean we should not try to provide Government with expertise in respect of who are suitable and the most eligible people for appointment to judicial office.

If the Government does not like the three ranked individuals at the end of the process it can decide under the Constitution it is not going for any of them but it is going to appoint another individual. There has to be some explanation for that. On Committee Stage, and in legislation Fianna Fáil introduced, we suggested that there be a requirement for an explanation if the Government decides to go off the list. It has happened on only two occasions since 1995 and in the appointment of the JAAB. It is perfectly acceptable for the Government to do that.

Deputy Clare Daly raised an interesting point. She said that we set out eligibility for judges, that we say a person must have 12 years' experience and must be a solicitor or a practising barrister. She asked why then can we not go one step further and say that a person must be recommended by the Judicial Appointments Advisory Board. My view remains, however, that this would constitute an infringement of the Government's decision making whereby it can decide who it wants to appoint as a judge. Obviously, factors such as eligibility by way of age or by way of legal qualification are not for the purpose of fettering a Government's discretion when it comes to selecting an individual. They are just standard eligibility requirements that a person cannot become a judge unless he or she is a lawyer of certain years standing.

If we were to include another provision that a person has to be recommended by the judicial appointments commission, it would constitute the fettering of the Government's decision making process. I see them as being viewed differently, although it is an interesting point.

Another aspect of these amendments concerns the senior appointments. It surprises me when I hear the Government wants to put forward this proposal in respect of the senior appointments. I have been saying for a long time here that these are advisory bodies and they require expertise. The reason I say that having a lay majority is not appropriate is that expertise is required - this is not a regulatory body. The Government disagrees and says lay people should dominate and run it, but when it comes to senior appointments, it says that it does not want the lay people to dominant and that it only wants only one of them. It wants the Attorney General and one other judicial figure. Where is the Minister, Deputy Ross, when it comes to this cartel, as he would criticise it? I made a decision on this on Committee Stage. It is a borderline call. I am going to stick with the decision I made on Committee Stage.

It must be infuriating for the President of the Court of Appeal, about whom I read in one of today's newspaper. He said he requires judges for the Court of Appeal to operate. We have been discussing for months in this House the theory of how we should appoint judges and whether we should appoint them on the basis of the recommendations by a commission may up of lay people or non-lay people. It must be infuriating for him but it is more infuriating for the general public in that if a person is appearing before the Court of Appeal, he or she cannot get his or her case heard until 2020. Rather than messing around here trying to appease a colleague of the Minister about the process that will be put in place for the purpose of the theoretical appointment of judges, would he do his job and appoint some judges to the Court of Appeal? Three judges of the Court of Appeal are gone and I believe it is down to six. It cannot function properly. The reason there are delays in the system is that the Government refuses to nominate people for appointment.

A number of references were made to amendment No. 87, which is not part of this grouping, but some of the references may be relevant depending on how that amendment fares. I had my mind made up about amendment No. 87 and I will not be supporting it. It is not consistent with the philosophy underlining the Bill. I find it difficult to understand the logic behind it. I am speaking to the amendment because it is relevant, in particular, to the first amendment in this grouping, amendment No. 75, and obviously the meaning of that will change depending on what section, or version of it, it is referencing.

The debate has been very much about open and transparent appointments and so on. Much of the discussion has been about a lay majority, having a wide experience of backgrounds and a mixture of legal, lay people and expert lay people. In that context, I find it difficult to understand why that process would not be followed when it comes to the superior court appointments. If we are going to the trouble establishing a commission of this nature, I do not understand, given the limited number of appointments that the members of it will have to make, why we cannot consider that they would be trusted with those appointments. It is right and proper that the appointments would be made by the commission much the same as any other appointments. I will be opposing that amendment. I will support the first amendment on the basis of that because it is referencing it, but I would hope that the section will remain the same.

Amendment No. 97 deletes an amendment which relates to written reasons. That is another amendment I will oppose. I do not believe that the requirement to give a written reason is in any way unconstitutional, legally unsound or in any way interferes with the independence of the Judiciary. As long as the names recommended by the commission are not released, it does not interfere with the ultimate jurisdiction and the constitutional right of Government to select the candidate it wishes. I made the argument on Committee Stage that one would hope the Government would depart only rarely from the names recommended to it. The provision is there to provide that if a Government was to routinely depart from the commission's recommendation, it would explain it. Otherwise, it would undermine the body and the approach being taken. The philosophy here is that there is a constitutional restriction so we set up this body, which will come up with recommendations and, consequently, the Government will feel obliged to follow it because this process exists and it would be reluctant to depart from it. If there are not written reasons, there is less of an incentive to do that.

I would add that this is the process in England and Wales, for example, where the relevant judicial appointments commission selects candidates and submits their names to the relevant authority which in that case would be the Lord Chancellor, the Lord Chief Justice or the senior president of tribunals and so on. Invariably that figure, albeit within a different constitutional framework, accepts the recommendation and can only reject it on the basis that the person recommended is not suitable and reasons are provided in writing. I believe it would be a mistake to remove that requirement. I do not believe it causes any difficulty or that it would be beyond the capacity of Government, particularly with the proviso that the names would not necessarily be published but that the rationale would be provided in Iris Oifigiúil.

I am not sure if the Minister, Deputy Ross, in his crusade to radically shake-up the way we appoint judges, is aware that the Government seems to be determined to hang on to the ultimate power to appoint judges itself. If he votes in favour of amendments Nos. 84 and 85, he would be voting to leave the status quo, which he has crusaded to change, essentially intact. As Deputy O'Callaghan said at the committee, if the Government or anyone else was really interested in reforming judicial appointments, it would be pushing for a referendum on the issue, not window dressing by way of statute that gives the impression that there will be reform.

Furthermore, the Government is looking to get rid of the little bit of accountability we managed to insert into that process in committee with a Sinn Féin amendment to the effect that if the Government appoints someone the commission has not recommended or someone the commission has rejected, it would have to publish a reasoned written explanation as to the reason in Iris Oifigiúil. Amendment No. 97 is the one that looks to do this and should be completely resisted. That provision is completely innocuous and there is no way on God's earth that there could be any constitutional issue with it.

The Government's amendment No. 99 wants to get rid of the obligation on the Minister, if he or she appoints someone not appointed by the commission, to lay before the Houses a written explanation of the reason.

In the UK, for example, the Lord Chancellor only receives one name. He can either accept it or reject it on suitability grounds but if he rejects it, it goes back to the commission. He is not pulling a name out of a hat.

There has been much talk about reducing political influence but the legislation we will be left with at the end of this process will not be as good as what we had previously. There will be more political interference as a result of this new Bill. As I said previously, I do not believe for a second that the Minister, Deputy Flanagan, agrees with this legislation.

I do not believe this is the way Fine Gael would have approached this issue. This is the greatest load of baloney driven by the Minister, Deputy Ross, and it does not stack up.

It is irrational and it is poor legislation. The price of keeping the Independent Alliance on board is too high. The matter is too important. The Minister, Deputy Flanagan, comes from a legal professional background. He cannot possibly believe that we are making progress here, that we are going in the right direction or that this is impressive. How can it be?

After the referendum that was held last week, Fine Gael looks a lot more progressive than Fianna Fáil, given that more than half of Fianna Fáil went for "No" and that more than three quarters of the population went for "Yes".

That is irrelevant.

On this issue, however, Fianna Fáil is looking more progressive than Fine Gael. The Government can thank the Minister, Deputy Ross, for dragging it down into a deep, dark hole in this judicial area. By God, Fine Gael will not be thankful.

If there is to be any reform in how we appoint judges, how in God's name can we justify going through a lengthy and difficult process of setting up a commission, being really fussy about who goes on it, after huge work eventually coming up with three names, then say we will not have any of them, and then pick someone else? We are not getting an explanation for this. Can the Minister, Deputy Ross, stand over the amendments that bring this about? I do not understand how he can do this. I do not expect the Minister, Deputy Flanagan, to answer for him but I put it out there that the Minister, Deputy Ross, is standing on wet sand. This does not make any sense. It is not how things should be done in the House. No Members will be thankful or will take any pleasure from saying, "We told you so." We were in this House as this legislation went through, and it will be shame on us because we have made a bollocks of it.

I certainly do not wish to have any responsibility for legislation that is passed through the House unless it is legally sound and constitutionally proofed. This strikes at the heart of the amendments under discussion.

We did not have a constitutional referendum to change the role of Government in the matter of the appointment of judges. That is retained. It was not part of any programme for Government commitment nor is it a Government policy. We are merely introducing changes within the current constitutional framework. My concern is the need to ensure, at every remove, that the Government retains the constitutional freedom to choose a person other than those who may be recommended. I cannot envisage circumstances where this might arise but it is nevertheless important that this constitutional preserve is maintained.

On amendments Nos. 97 and 99, I reiterate an important point about the requirement that a notice would at some stage include a reasoned explanation of a decision not to nominate a person. I gave this matter some consideration since we last discussed it. I have no doubt that a statement that a recommendation of the commission was not followed would undermine the credibility and the integrity of the appointee and the judicial system if it was known that a particular person was not recommended by the commission. This is a matter of great concern. We run too great a risk by leaving the Bill in its current form.

Deputy O'Callaghan referred to comments made by the President of the Court of Appeal. I agree with the Deputy. I take very seriously any point coming from the president of any court. I share Deputy O'Callaghan's concern on that matter and I will propose, at the earliest opportunity, that the Government acts accordingly so a situation is not allowed to develop where the Court of Appeal does not have enough judges. I take very seriously comments made in that regard in this House.

The Minister is not a commentator on whether individuals are appointed to judicial office. The Minister decides to nominate people and the President appoints them. It is inexplicable, and no explanation has been provided, as to why judges have not been appointed of the Court of Appeal. I have a strong suspicion as to why it has not happened. It is a political reason to appease one Member of the Government. That is not satisfactory from the public interest perspective.

The Minister also said that it is very important for the Government to preserve its constitutional freedom to appoint whoever it wishes. I agree that the Government has that constitutional freedom, but one does not need to identify a constitutional freedom by putting it into a statute. Either the Government has that constitutional freedom or it does not. I believe it does, but mentioning it in legislation is of no benefit in determining whether the freedom exists.

Section 45 reads:

In the event that a person appointed to judicial office has not been recommended by the Commission under this Act, the notice of that appointment published in Iris Oifigiúil shall include a reasoned written explanation of the decision of the Government not to nominate a candidate recommended by the Commission.

Let us say that the Government has a list of three people and the Minister, Deputy Flanagan, becomes aware that one of the best lawyers in the State is available. The Minister considers this to be a fantastic opportunity. As the Minister for Justice and Equality I would grab that person if he or she were available for appointment and had not gone through the process. Then the Minister could put in the Iris Oifigiúil the reason individuals who were recommended were not appointed. They do not have to be identified. The Minister could say that it was decided to appoint a particular person because of his or her outstanding legal ability and because of other characteristics.

There are very serious amendments under consideration here and there are some attempts to row back on some of the important improvements made to the Bill on Committee Stage, which is regrettable. Other amendments are just a matter of tidying up, and we agree with a chunk of stuff. With the big ones, however, why go to all the trouble of setting up a commission, giving it the power, and then keeping the power with Government absolutely and to utterly disregard that?

The Government has put up weak arguments such as the unconstitutionality of it. Everybody accepts that the commission would make recommendations to the Government, the Commission would decide and then the President would appoint. The power to advise the President would still remain with Government. If the Minister says that our amendment, requiring that the Government be restricted in its options to "only" those people whom the judicial appointments commission recommends, is unconstitutional, then I put it to the Minister that so too are section 5 of the Court (Supplemental Provisions) Act 1961 and section 11 of the Court of Appeal Act 2014. I have not heard anything to the contrary in this regard. If the Government insists that our amendment No. 92 is unconstitutional, I would nearly be tempted to take a Supreme Court challenge on one or both of these issues on the basis that I would like to be a judge. If the Government is putting in restrictions on who can be a judge and with what qualifications, there is no impediment to the Members of the Oireachtas putting in other qualifications.

In order to give meaningful status to the commission, we debated at length who its members should be, what skill sets they should have, and what groups and diversities in society they should represent. We did all of that to reduce political interference, yet now we are coming up with a proposal that will allow the Government to do whatever it likes. Our amendments would be a better way of depoliticising the appointment process and providing broad expertise.

The Minister is trying to undo what we attempted to achieve on Committee Stage. That is contrary to the requirement for transparency. The programme for Government committed to reforming the judicial appointments process to ensure it was transparent, fair and credible, but this proposal breaks with that commitment. According to the 2010 Council of Europe recommendation, any body being set up was to ensure that the widest possible representation was engaged, procedures should be transparent, reasons for decisions should be made available to applicants on request, and steps should be taken to establish, where lacking, procedures for the selection, appointment and promotion of judges that were, using objective criteria, transparent. We are moving away from that. If the Minister has a defence, I would like to hear it.

I will make a few observations. I am open to considering amendment No. 92 further, but my sense is that it might be unconstitutional to restrict the Government to "only" the names provided to it. Given the next amendment that we will deal with, the approach being taken is to create an infrastructure in which, in terms of perception and practice, it is almost impossible - it is not constitutionally possible to make it impossible - to depart from the recommendations. As such, I am not in a position to support amendment No. 92.

Amendment No. 91 is an attempt to remove a provision that was made on foot of my own amendment. Deputy O'Callaghan made the case well. An appointment would not be undermined. The nature of the written notice would, to a large extent, outline the strengths of the appointee in meeting the criteria rather than the deficiencies of anyone else. I imagine the Government would be hesitant to do that, which is why the provision is in the Bill, but it still allows for the final decision to rest with the Government. That is a reasonable position to take.

Perhaps I have not fully understood the significance of amendments Nos. 84 and 85 and their relationship with what we discussed on Committee Stage. I had been minded to support them. Having considered the points that have been made on this Stage and Committee Stage, though, it is not unreasonable to expect that the process could be restarted at three-month intervals in order to fill positions. That is a normal procedure in many other areas of life. As matters stand, I am inclined to oppose these two amendments.

Deputy O'Callaghan referred to the Minister for Justice and Equality having observer or commentator status in the current situation, but let me assure him otherwise. I am conscious of my obligations in this regard and intend acting at the earliest opportunity, and will do so, on outstanding appointments. We are all agreed that we should progress this reforming legislation to the Upper House. Before doing so, however, it is important that we acknowledge the constitutional issues.

As to Deputy Clare Daly's comments, this is not a matter of undoing the good work of, or unravelling the improved state of affairs after, Committee Stage. Rather, it is an attempt to deal with very serious constitutional concerns regarding the manner in which the ultimate appointments are made, not only in respect of Article 35 and the power that rests within Government, but also the associated issue of the manner in which the Government does its business with reference to the confidentiality of Cabinet affairs. I want this House to be conscious of these two concerns prior to deciding the amendments.

Amendment agreed to.

I move amendment No. 76:

In page 27, line 14, to delete “publicly”.

Amendment agreed to.

I move amendment No. 77:

In page 28, line 17, to delete “ranked in the order of the relevant committee’s preference” and substitute “ranked in the order of the Commission’s preference”.

Amendment agreed to.

I move amendment No. 78:

In page 28, between lines 17 and 18, to insert the following:

“(3) Nothing in subsection (2) shall be construed as limiting the advice the Government may give to the President with respect to the appointment by the President, under Article 35 of the Constitution, of a person to be a judge.”.

Amendment agreed to.

I move amendment No. 79:

In page 28, line 25, to delete “relevant committee has received from the Commission” and substitute “Commission has received”.

Amendment agreed to.

I move amendment No. 80:

In page 28, line 29, to delete “relevant committee” and substitute “Commission”.

Amendment agreed to.

I move amendment No. 81:

In page 28, line 31, after “number” where it secondly occurs to insert the following:

“ranked in the order of the Commission’s preference (and that expression of preference shall not make any distinction between the several vacancies concerned)”.

Amendment agreed to.

Amendment No. 82 cannot be moved.

Amendment No. 82 not moved.

I move amendment No. 83:

In page 28, between lines 33 and 34, to insert the following:

“(4) Nothing in subsection (2) shall be construed as limiting the advice the Government may give to the President with respect to the appointment by the President, under Article 35 of the Constitution, of a person to be a judge.”.

Amendment agreed to.

I move amendment No. 84:

In page 29, to delete lines 10 to 19 and substitute the following:

“(3) In any case to which subsection (1) applies, the Commission shall cause its recommendation to the Minister to be accompanied by a statement of the name of each eligible person (other than a person the subject of its recommendation) who had made a relevant application.

(4) Subsection (5) applies where the Commission determines that it cannot, in accordance with this Act, recommend to the Minister the name of any person for the purposes of section 38 or 39 (and the case is other than one in which there were no relevant applications whatsoever by eligible persons).

(5) Where this subsection applies, the Commission, on making the determination referred to in subsection (4), shall inform the Minister of it and shall furnish to the Minister a statement of the name of every eligible person who had made a relevant application.”.

Amendment put:
The Dáil divided: Tá, 37; Níl, 40; Staon, 0.

  • Bailey, Maria.
  • Brophy, Colm.
  • Bruton, Richard.
  • Burke, Peter.
  • Byrne, Catherine.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Corcoran Kennedy, Marcella.
  • D'Arcy, Michael.
  • Deasy, John.
  • Deering, Pat.
  • Doherty, Regina.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Flanagan, Charles.
  • Griffin, Brendan.
  • Harris, Simon.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kyne, Seán.
  • Madigan, Josepha.
  • McEntee, Helen.
  • McGrath, Finian.
  • McLoughlin, Tony.
  • Mitchell O'Connor, Mary.
  • Moran, Kevin Boxer.
  • Murphy, Eoghan.
  • Naughten, Denis.
  • Naughton, Hildegarde.
  • O'Connell, Kate.
  • Phelan, John Paul.
  • Rock, Noel.
  • Ross, Shane.
  • Stanton, David.

Níl

  • Aylward, Bobby.
  • Brady, John.
  • Brassil, John.
  • Broughan, Thomas P.
  • Buckley, Pat.
  • Chambers, Lisa.
  • Collins, Joan.
  • Collins, Niall.
  • Connolly, Catherine.
  • Cullinane, David.
  • Daly, Clare.
  • Ellis, Dessie.
  • Gallagher, Pat The Cope.
  • Howlin, Brendan.
  • Kenny, Martin.
  • Lahart, John.
  • MacSharry, Marc.
  • Martin, Micheál.
  • McGrath, Michael.
  • McGuinness, John.
  • Mitchell, Denise.
  • Munster, Imelda.
  • O'Brien, Jonathan.
  • O'Callaghan, Jim.
  • O'Reilly, Louise.
  • O'Rourke, Frank.
  • Ó Caoláin, Caoimhghín.
  • Ó Cuív, Éamon.
  • Ó Laoghaire, Donnchadh.
  • Ó Snodaigh, Aengus.
  • Penrose, Willie.
  • Ryan, Brendan.
  • Ryan, Eamon.
  • Scanlon, Eamon.
  • Sherlock, Sean.
  • Smith, Brendan.
  • Smyth, Niamh.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Wallace, Mick.

Staon

Tellers: Tá, Deputies Tony McLoughlin and Joe Carey; Níl, Deputies Clare Daly and Mick Wallace.
Amendment declared lost.

I move amendment No. 85:

In page 29, to delete lines 20 to 23 and substitute the following:

“Particulars to be provided by Commission

41. (1) The Commission shall, in respect of each person whose name it has recommended to the Minister under section 38 or 39, provide to the Minister—

(a) particulars of the person’s education, professional qualifications, experience and character, and

(b) where applicable, the records and results of any interview or test held or conducted by the Commission in respect of the person.

(2) Where section 40(5) applies, the Commission shall cause the statement referred to in that provision to be accompanied by a statement, in respect of each person named in it, of each of the particulars referred to in subsection (1)(a) and each of the records and results (if any) referred to in subsection (1)(b).”.

Amendment agreed to.
Amendment No. 86 not moved.

Amendments Nos. 87 to 90, inclusive, will be discussed together.

I move amendment No. 87:

In page 29, to delete lines 26 to 40, and in page 30, to delete lines 1 to 42 and substitute the following: “Appointment as Chief Justice, President of the Court of Appeal, and President of the High Court 42. (1) Where—

(a) the judicial office of Chief Justice, President of the Court of Appeal or President of the High Court stands vacant, or

(b) the Minister reasonably apprehends that any of those offices will stand vacant, the Minister shall request the Commission to seek expressions of interest on the part of eligible persons who wish to be considered for appointment to such office and to forward the names of all eligible persons expressing such interest to the Minister, together with particulars relating to the education, professional qualifications, experience and character of those persons.

(2) On subsection (1) being complied with, the Minister shall convene a meeting of the following persons—

(a) the Chief Justice or, in the case specified in subsection (4), the person specified by that subsection to be the relevant person for the purposes of this paragraph,

(b) the chairperson, and

(c) subject to subsection (10), the Attorney General, and those persons, so convened, shall be known as the Senior Judicial Appointments Advisory Committee (in this section referred to as the “Advisory Committee”) who shall consider the suitability of all of those persons whose names have been forwarded by the Commission under subsection (1) and, subject to subsection (5), shall recommend, from among those persons, to the Government the names of 3 persons, ranked in the order of the Advisory Committee’s preference, for appointment to the judicial office referred to in subsection (1).

(3) Nothing in subsection (2) shall be construed as limiting the advice the Government may give to the President with respect to the appointment by the President, under Article 35 of the Constitution, of a person to the judicial office concerned.

(4) Where the vacancy concerned (whether an actual or apprehended vacancy) is that of the judicial office of Chief Justice, the relevant person for the purposes of subsection (2)(a) is—

(a) subject to paragraph (b), the President of the Court of Appeal, or

(b) if the President of the Court of Appeal has expressed, in relation to the foregoing judicial office, the interest referred to in subsection (1), the next most senior judge available, that is to say whoever of the judges specified in paragraphs (c) to (k) of section 9 (substituted by section 28 of the Court of Appeal Act 2014) of the Courts of Justice Act 1924 ranks first in precedence (after the President of the Court of Appeal) in accordance with that section 9 and who is available to serve on the Advisory Committee (excepting for this purpose any such judge who, in relation to the foregoing judicial office, has expressed the interest referred to in subsection (1)).

(5) If the Advisory Committee, having considered the suitability of all of those persons whose names have been forwarded by the Commission under subsection (1)

(a) decide that they cannot recommend to the Government the names of 3 persons for appointment to the judicial office referred to in subsection (1) but can recommend the names of a lesser number of persons for that purpose, then they shall recommend, under subsection (2), to the Government the names of that lesser number of persons for appointment to the judicial office so referred to, or

(b) decide that they cannot recommend to the Government the names of any persons for appointment to the judicial office referred to in subsection (1), then they shall inform the Government of that fact.

(6) The cases to which subsection (5) applies include a case in which the number of eligible persons who, in relation to the judicial office concerned, have expressed the interest referred to in subsection (1) is less than 3.

(7) In a case to which subsection (5)(a) applies, the Advisory Committee shall ensure its recommendation is accompanied by a statement of the name of each eligible person (other than a person the subject of their recommendation) who expressed, in relation to the judicial office concerned, the interest referred to in subsection (1).

(8) On informing the Government, in a case to which subsection (5)(b) applies, of the matter referred to in that provision, the Advisory Committee shall furnish to the Government a statement of the name of every eligible person who expressed, in relation to the judicial office concerned, the interest referred to in subsection (1).

(9) Any decision of the Advisory Committee made under subsection (2) or (5) shall be a unanimous one.

(10) Where the Attorney General expresses, in relation to the judicial office concerned, the interest referred to in subsection (1), then subsection (2), and the other provisions of this section, shall apply and have effect as if paragraph (c) of subsection (2) were omitted.

(11) In this section “eligible person” means a person who the Commission is satisfied is qualified for appointment to the judicial office concerned by virtue of section 5 or 45A of the Act of 1961.”.

Section 46 is being replaced by a new section 42 which removes from the Bill the role and functions of the senior judicial appointments advisory committee which, as Members will be aware, was composed of the Chief Justice, a lay chair and the Attorney General, in order that the function of recommending names for appointment as Chief Justice, President of the Court of Appeal and President of the High Court will fall back on the commission. In addition, for these appointments the new section mirrors the provisions of section 38 which relates to ranking in order of preference and section 40 which relates to the re-running of invitations when a name cannot be recommended.

I have reflected on this matter with some care since Committee Stage. I have concluded that it is not a viable option for me to accept that the commission as a whole which includes the specified three members can perform the task now conferred on it by section 42. My strong preference, therefore, is to reinstate the original section, as published, replacing the new section 42 with amendment No. 87 in my name. The reinstated section I propose is, however, adjusted by providing for the order of preference, in line with the approach adopted under section 38, but it will not allow for the re-running of invitations when a person cannot be recommended. Details of eligible persons who have expressed an interest will be furnished to the Government, these points being in line with my approach to recommendations generally under the Bill.

I see the role of the Chief Justice and that of the Presidents of the courts as meriting a two-stage process, whereby, in the first instance, the commission obtains expressions of interest and those eligible persons are then considered by a committee specially convened for the purpose. There will be judicial involvement, lay involvement and the involvement of the Attorney General. That will allow for the appropriate and complementary contributions in the making of recommendations to the Government. Recently, we had the very useful practical experience of using an arrangement adapting these provisions in respect of the positions of Chief Justice and the President of the Court of Appeal. Up to this, only the Government had a hand in such appointments. The experience of the new model demonstrates that the combination of the relevant expertise is an appropriate model to deal with what will be very infrequent appointments. I specifically invite the main Opposition spokesperson who has made public comment on both appointments to agree with me that this model is both appropriate and workable and has been seen to be both in the past 12 months. The amendment acknowledges what was a very positive experience and the intention is to put it on a statutory footing.

I will briefly refer to amendment No. 88 in the name of Deputy Mick Wallace. The amendment seeks to move the section 42 “expression of interest” process to the commission proper. We have discussed that issue at some length. I will not accept the amendment because I am not convinced that it would be move the procedure into that of the mainstream commission.

Amendment No. 89 also in the name of Deputy Mick Wallace is consequential on amendment No. 88. It envisages that potential candidates for the most senior judicial positions would make a formal application under the commission process, as distinct from an expression of interest. As I have stated, the “expression of interest” procedure has worked and is working. Section 42 will prescribe it in full on a formal basis. I point out to the Deputy that, in respect of recent appointments, there is no greater example of endorsement than to say the proof of the pudding is in the eating, as it were. I think that is what we have seen. Therefore, I am not minded to depart from the “expression of interest” route.

On amendment No. 90, I appreciate what Deputy Mick Wallace is seeking to achieve, but I do not see the necessity for the amendment because there is nothing whatsoever to prevent the published statements to which he refers from referencing one or all three of the most senior judicial positions. In the circumstances, it would be overly prescriptive to take the route proposed by the Deputy, especially having regard to the provisions of section 49.

I will accept the Minister's invitation to speak. He is correct; I did comment publicly on the fact that a small grouping such as that proposed in the Bill had been used in making appointments to the Office of Chief Justice and the Office of President of the Court of Appeal. I welcome the appointments. I congratulate the Minister on making what are good appointments. However, what has to be said about the amendment being put forward by the Minister is that it illustrates the incoherence and inconsistency at the heart of the Government’s proposals in this area. We have spent weeks discussing the fact that when it comes to judicial appointments, what the Government wants is a commission or body with a lay majority.

We know that this is at the insistence of the Minister for Transport, Tourism and Sport, Deputy Ross, but when it comes to the appointment of members of the Judiciary to certain senior positions, the Government does not want a lay majority. In fact, it expressly wants what the Minister for Transport, Tourism and Sport would refer to as a legal majority comprising the Chief Justice or a president of one of the courts, the Attorney General and one lay person, namely, the chairperson of the judicial appointments commission. At no stage has the Minister for Justice and Equality or anyone else in government given an explanation as to why it is deviating from stated policy in respect of this particular form of appointment. Why is it that when it comes to the offices of Chief Justice, President of the Court of Appeal and President of the High Court that this wonderful new commission proposed by the Government is not good enough and cannot be used? Instead, when it comes to those particular judicial appointments, the Government has decided to go back and rely upon a body with a lay minority, one which will comprise the Attorney General, a president of the court and one lay person. I have consistently stated my belief that having what is referred to as a lay majority is going to damage the administration of justice in this country. It is going to result in a lowering of the quality of people being nominated for judicial office. I am not prepared to bail out the Government's inconsistency on this issue. No explanation has been given as to why, for these three offices, we should not rely on the judicial appointments commission. It is instructive that there is such an inconsistency at the heart of the Government's proposals. It is for that reason, as well as the reasons I gave on Committee Stage, that I will not be supporting amendment No. 87.

The Minister is correct on one point, however. If we were just starting and if we had rational, coherent legislation, I would have no objection to a separate process for appointments to senior office. What we have here, however, is completely irrational and inconsistent legislation. In respect of three offices, the Government is effectively stating that those roles are so serious that it cannot allow the mess that is the proposal from the Minister, Deputy Ross, to be involved in those appointments. The offices are so important that the Government cannot allow this commission to advise in respect of them. This is the Government's commission. The Minister for Justice and Equality has put it together and said it is suitable for the appointment of judges in this country. If it is suitable for the appointment of judges to the Supreme Court, the Court of Appeal and the High Court, then the Minister must explain why it is not suitable for the appointment of the most senior judges in the country. The Minister knows the reason for this. The commission that he is proposing is a nonsense and the objective of having a lay majority is going to damage the process. He is prepared to risk it when it comes to the appointment of judges to the superior courts but not when it comes to the appointment of the Chief Justice, the President of the Court of Appeal and President of the High Court. I am not going to bail the Minister out on this one.

This illustrates once again the many problems with the Bill. Amendment No. 87 seeks to restore to the Bill the provision that the most senior judicial appointments, that of the Chief Justice, the President of the High Court and the President of the Court of Appeal are not made by the commission but by a tiny conclave of the Chief Justice, Attorney General and the chairperson of the commission at a meeting convened by the Minister. We discussed this on Committee Stage and I am not going to wear myself out making the same arguments again. The use of the word "convene" does not explicitly exclude the Minister from sitting in on a meeting of the most senior judicial appointments committee. We discussed this on Committee Stage and it is still vague. Convene means to bring together a group of people for a meeting or to meet for a meeting. Therefore, it is open to the Minister to sit in on the meeting, although he or she does not have to do so, such is the vagueness of the language. The use of the word "convene" means that we are possibly looking, not at a three person meeting but at a four person meeting, with the Minister in attendance. This represents a blurring of the lines between two properly separate stages of the judicial appointments process. Why does the Minister need to seek to interfere with the commission's work and its independence in convening the meeting, particularly if he or she is going to attend? That is a little ridiculous and goes against all of the Council of Europe's recommendations.

On Committee Stage our proposal that senior judicial appointments be made by the commission as a whole succeeded. That is logical. We have been through this big fanfare around this commission that is going to be an oversight body for judicial appointments and then we bin it all and elect a little super group to do the most important, senior appointments. It makes a mockery of the rest of the legislation. We won that argument on Committee Stage and succeeded in providing that the commission would deal with senior appointments and would follow the exact same procedure for such appointments as for all others. This includes ranking the names being put forward and being allowed to recommend fewer than three people if it cannot in good conscience recommend that number. We had also provided that the commission would be obliged to rerun the selection process in the unlikely event that it could not recommend anyone for appointment. That provision has not succeeded at this stage but that is generally the situation that applies in the Bill at the moment. The Minister said previously that with the commission as it is currently constituted, there might be a problem with lower ranking judges deliberating on who should fill the vacancies at higher ranks but I do not buy that argument at all. I do not see any legal impediment to this. I do not see a problem with it in theory either because if these are men and women who are noted for their judicious thinking and independence, which we are always told is the case and it is generally so, then they should be able to manage the job of recommending people to ranks above their own. If lay people can do it, I am quite sure that judges can do it too.

One of the key problems with amendment No. 87 is the presence of the Attorney General and potentially, of the Minister, at meetings of the senior appointments committee. The committee itself is problematic. It is a small committee and the fact that the commission is sidelined in these crucial appointments goes against the grain of the Bill. It seems mad to go to all of the trouble and expense of creating a judicial appointments commission and then not give it the most important job in the land when it comes to judicial appointments. It is a little bit crazy.

Given that we are a little bit ahead of ourselves today, perhaps the Minister, in the interests of transparency, will answer questions about the process used recently to select the President of the Court of Appeal, Mr. George Birmingham. The 1995 Act provides that JAAB has no role in any of these senior appointments, which are purely political, which goes against European best practice. Did an ad hoc, four person committee with no legislative basis make the recent appointment of a President of the Court of Appeal, as has been hinted at in the media? Who were the four people involved? I assume the committee comprised the Minister for Justice and Equality, the Taoiseach, the Minister for Transport, Tourism and Sport, Deputy Ross, and the Minister of State, Deputy Finian McGrath. How did that appointment come about? When one looks at that and at what the Government is trying to with amendment No. 87, which is to undo the work we did on Committee Stage, one sees the hypocrisy behind the Government's stance on this.

I disagree with almost everything that Deputy O'Callaghan said except for the point about inconsistency. I do not see any reason to support the amendment but I do not agree with Deputy O'Callaghan that the commission creates problems in terms of the quality of the people that will be appointed. Some of the commentary around lay members of the commission is unhelpful and ignores the reality of the high threshold that the lay appointees will have to reach. These are people who will have significant experience in many areas of the administration of justice, law and various related areas and will have an interest in a variety of areas. It is right and proper that there be lay people on the commission and that there be a lay majority. This is something that exists in other jurisdictions and the sky has not fallen in by any manner or means. It is the case that there are lay chairpersons in several jurisdictions and I have no problem with that. I do not believe that it causes any of the difficulties to which Deputy O'Callaghan adverted. However, I agree with him that amendment No. 87 is inconsistent. I do not see the sense in establishing a commission of this nature, having gone through a lengthy legislative process and debated the arguments in support of such a commission, which included independence, transparency of process and a broad representation of society and then not allowing that commission to be involved in the appointment of people to the most senior judicial roles.

I believe it is inconsistent. I find it difficult to understand how the Government has come to this conclusion. The Minister has made the point that some of the people in these positions will be on the commission. Surely there are other ways of dealing with that, for example, by requiring them to absent themselves. I do not believe the solution should involve confining the process to such a small group of people who, contrary to the spirit of everything else in the legislation, are not representative of the broad range of experiences and attitudes with regard to the law that exist across society as a whole. I do not believe I can support this amendment at present. The measures in the Bill as it stands make more sense. We are going to significant lengths to establish a commission. I think we should trust it and allow it to do its job. That applies to the superior courts and the superior positions as well.

If having a lay majority is such an essential requirement in the process of selecting judges, the Minister might explain why a lay majority will not exist when the most important judges are being selected. It does not seem to stack up. Deputy O'Callaghan has made a relevant point in this context. If it is the case that the commission we are establishing, with the possible lay majority to which the Government seems to be so endeared, is not fit to be selecting senior judges, that is a serious contradiction. If the Minister and the Attorney General can be part of a three-person advisory committee - or, by the sounds of it, a four-person committee - the committee will be 50% political. If this is how the Government wants it to be, so much for getting independent lay individuals involved in a reformed system for selecting judges. The Minister should try to explain this contradiction. Why is it okay to set up this commission to pick the less significant judges while at the same time putting in place a little cabal to pick the senior fellows? The Minister might explain that to us.

I will make two points by way of reply. For the benefit of Deputies Clare Daly and Mick Wallace, the role of the Minister will be to call the group together. Under no circumstances will the Minister sit on the committee, participate in it or be in a position to exercise any influence over it. The Minister will be at arm's length from the deliberations of the committee. The role of the Minister will be to convene the three-person committee in order to facilitate the filling of the vacancy. If Deputy Wallace reads the amendment, he will see that it is a three-person committee rather than a four-person committee. Nobody other than the three named persons will have a role. Neither the Minister nor any other fourth party will have a role. This process has been in place for the past 12 months. It has not involved any engagement on the part of the Minister or any other political figure in the course of making a recommendation to the Government.

I would like to make my second point in response to the perception that what we are putting in place to deal with the appointment of the three most senior judicial figures - the Chief Justice, the president of the Court of Appeal and the president of the High Court - amounts to the creation of a two-tier system. To ensure these positions attract the most senior judicial figures for consideration, we have deemed it appropriate to provide for them to be filled by means of expressions of interest rather than by means of the more general application process that will lead to the appointment of other ordinary members of the courts.

I feel compelled to contribute because it seems from what we have just heard that this Bill is getting worse. My concern all along was that our Judiciary would be insulted as an unintended, or maybe intended in some quarters, consequence of the process of this Bill. What I have just heard goes further, in the sense that we are demeaning politics now as well. Under the structure or process we are setting up, the idea is that the Minister of the day will be no more than a convening messenger boy or girl who would not possibly have a view or intervene. I think we are undermining our own importance. As representatives of the people, we are well qualified and well capable of being involved in a process like this. We have views and, if we are lucky to get ministerial office, we have powers. While I like the idea of having lay involvement and a process in which names are suggested to the political system, I do not think we should inadvertently demean - "demean" might be too strong a word for what the Minister has just said - our own role. At some point, we have to stand up for politics.

If we completely undermine this House by providing for it to be no more than a talking Chamber, we will end up with no powers for ourselves. I do not think that would do our constitutional Republic any service. I like our Constitution. I like the balance that is struck in the testing relationship that exists between the Judiciary, the Executive and the Legislature here. We should not give up our right to have some role in the process. At the end of this long, convoluted and - it seems to me - incredibly distorted process, it should not be a mere box-ticking exercise that involves simply accepting what another committee has decided. We do and should have views and we should be willing to express them. For those reasons, I have to join others in opposing this amendment, which looks like it is going to fall. I do not agree with the Minister's suggestion that the Minister of the day should not have anything to say. I think the Minister of the day has every right to have an opinion. First of all, he or she might not necessarily get his or her view through the Cabinet. The Minister is not the only person with a say. The Cabinet should hold on to some powers. As politicians, we should hold on to some powers. We have a valuable role, which we should not throw away completely.

I agree with Deputy Ryan. The approach that is being proposed undermines the political system and the legislative system. We have gone through the tortuous process of trying to put together a commission that will be responsible for advising the Government. At the same time, we are saying the commission should not have anything to do with certain appointments because they are too important. I did not hear anything from the Minister to explain why this inconsistency is being included in the legislation. It has not been explained why a separate process, not involving the proposed judicial appointments commission, needs to be put in place for these three judicial appointments.

I want to deal with the point made by Deputy Ó Laoghaire. He has said that many jurisdictions around the world have provided in these circumstances for a lay majority of people who are not judges or members of the legal profession. I ask him to identify those jurisdictions. I have no doubt that Deputy Ó Laoghaire is as aware as I am of the position in the North. The Northern Ireland criminal justice review, which followed from the Good Friday Agreement, adjudicated on the importance of how judges should be appointed in Northern Ireland. It proposed the establishment of what became the Northern Ireland Judicial Appointments Commission. I do not know whether Sinn Féin participated in the review, which decided that the chair of the appointments commission should be the Lord Chief Justice, who is the most senior judge in Northern Ireland. It also decided that there should be five judges on that appointments commission, as well as two members of the legal profession and five lay members. Not even our neighbouring jurisdiction above the Border has a lay majority, and neither is there a lay majority in England and Wales or in Scotland. I have not gone further afield. If Deputy Ó Laoghaire says there are other jurisdictions with a lay majority, I would like to hear about them, maybe not now but some other time.

I would like to respond to Deputy Ryan. In recent months, we have had a considerable amount of debate in this House and at the committee.

This is the first time I have heard a Member of the House actually argue for Ministers to have a greater level of influence. I remind Deputy Eamon Ryan of the current appointments board which was specifically designed to ensure there would not be the type of ministerial and, consequently, political involvement in which he now sees merit.

I have always said it.

While the Deputy says he is voting against the Government, his reasons for doing so are diametrically opposed to those of Deputies Mick Wallace and Clare Daly. I find his contribution quite extraordinary. He wants more ministerial involvement in the process.

Deputy Seán Barrett said the same.

He is a Shane Ross fan.

I make the point in the context of the amendment in respect of the three most senior positions. We can contrast it with the situation across the public service. The Top Level Appointments Committee is charged with certain responsibilities in order to make the process attractive for individuals at the very highest level. That is important in this context. The senior appointments committee, in effect, is reflective of the broader commission in that there is involvement by three people: a judge, a layperson and the Attorney General. That provides us with the appropriate level of balance, which is reflected throughout the Bill.

On Deputy Jim O'Callaghan's point, I think it would have preceded devolution in the areas of policing and justice in 2006; therefore, it would probably have been Westminster legislation. However, in Scotland I believe there is a 50:50 lay and legal-judicial balance. In England and Wales it is weighted equally between lay and judicial members, with two legal members. That is the argument Deputy Jim O'Callaghan made previously. I am sure I could find other jurisdictions. In Scotland the ratio is 50:50. I will try to find more examples for the Deputy's colleagues in the Seanad to discuss.

I do not agree with Deputy Eamon Ryan at all, even though I will probably be voting with him on the amendment. I do not even understand the argument. The Minister is right. I have not heard any Deputy argue for greater involvement of discretion for the Cabinet, the Dáil or anyone else. That is not an argument being made by those who are opposing the amendment.

I take on board the Minister's point about trying to make it more attractive. These are very particular and important appointments and I accept that there may be a slightly different requirement. I understand the distinction between expressions of interest and applications. For that reason, I will also be opposing the subsequent amendments proposed by Deputies Clare Daly and Mick Wallace and supporting leaving the section as it is. That is not the way to do it if we are serious about creating a process that will be transparent and independent.

We have set up a commission and gone to a lot of effort in debating it and its composition at length. I do not understand why the same commission, perhaps with some minor adjustments, could not make decisions on the most significant judicial appointments in the State. If a slightly adjusted process is required, we can come back to the issue in the Seanad. I do not see any basis for the amendment proposed by the Minister. It is far too tight and lacks transparency as a process.

If I am the only person to say politicians should have some role, I will happily take that angle. From experience, Ministers do have something to offer. They are setting strategy and policy and want to take the country in a certain direction. Why would we abandon having any power at all? My understanding was that the final arbitration was at the Cabinet, that the Minister had a choice between a few names and that we were holding on to the vestiges of some political investment. What I have heard the Minister say, however, is that in the committee he is proposing, he will sit in but will not have anything to do and will not dare say anything. He will just be there to convene the meeting and listen to whatever the Attorney General, the layperson and the member of the Judiciary have to say. I think that is an unnecessary abdication of political authority. If the Minister will be there, he should speak and, as a representative of the people and the Dáil, his view should be heard. A future Minister could come from any party represented here. I would like to think I am speaking on behalf of every party and grouping. Are we to completely neuter future Ministers? If that is what the rest of the House thinks, fine, but I stand against it. I stand up for keeping some power for those in political office.

Amendment put:
The Dáil divided: Tá, 38; Níl, 38; Staon, 0.

  • Bailey, Maria.
  • Brophy, Colm.
  • Bruton, Richard.
  • Burke, Peter.
  • Byrne, Catherine.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Corcoran Kennedy, Marcella.
  • D'Arcy, Michael.
  • Daly, Jim.
  • Deasy, John.
  • Deering, Pat.
  • Doherty, Regina.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Flanagan, Charles.
  • Griffin, Brendan.
  • Harris, Simon.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kyne, Seán.
  • Madigan, Josepha.
  • McEntee, Helen.
  • McGrath, Finian.
  • McLoughlin, Tony.
  • Mitchell O'Connor, Mary.
  • Moran, Kevin Boxer.
  • Murphy, Eoghan.
  • Naughten, Denis.
  • Naughton, Hildegarde.
  • O'Connell, Kate.
  • Phelan, John Paul.
  • Rock, Noel.
  • Ross, Shane.
  • Stanton, David.

Níl

  • Aylward, Bobby.
  • Brady, John.
  • Brassil, John.
  • Broughan, Thomas P.
  • Buckley, Pat.
  • Butler, Mary.
  • Chambers, Lisa.
  • Collins, Joan.
  • Connolly, Catherine.
  • Crowe, Seán.
  • Curran, John.
  • Daly, Clare.
  • Ellis, Dessie.
  • Howlin, Brendan.
  • Kenny, Martin.
  • Lahart, John.
  • McDonald, Mary Lou.
  • McGuinness, John.
  • Mitchell, Denise.
  • Munster, Imelda.
  • Murphy, Eugene.
  • O'Brien, Jonathan.
  • O'Callaghan, Jim.
  • O'Reilly, Louise.
  • O'Rourke, Frank.
  • Ó Broin, Eoin.
  • Ó Caoláin, Caoimhghín.
  • Ó Laoghaire, Donnchadh.
  • Ó Snodaigh, Aengus.
  • Penrose, Willie.
  • Ryan, Brendan.
  • Ryan, Eamon.
  • Scanlon, Eamon.
  • Sherlock, Sean.
  • Smith, Brendan.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Wallace, Mick.

Staon

Tellers: Tá, Deputies Tony McLoughlin and Joe Carey; Níl, Deputies Jim O'Callaghan and John Lahart.
.

There is an equality of votes. Therefore, pursuant to Article 15.11.2° of the Constitution, I must exercise my casting vote. In accordance with precedent, I vote against the question in this case, the result of the vote now being: Tá, 38; Níl, 39.

Amendment declared lost.

Amendment No. 88 has already been discussed with amendment No. 87.

I move amendment No. 88:

In page 29, to delete lines 28 to 40 and substitute the following:

“42. (1) Where—

(a) the judicial office of Chief Justice, President of the Court of Appeal or President of the High Court stands vacant, or

(b) the Minister reasonably apprehends that any of those offices will stand vacant,

the Minister shall request the Commission to seek applications on the part of eligible persons who wish to be considered for appointment to such office.

(2) Upon receiving the applications referred to in subsection (1) the Commission shall consider the suitability of all eligible candidates and recommend, based on merit, to the Government ranked in the order of the Commission’s preference, the 2 most suitable candidates for appointment to the judicial office referred to in subsection (1).

(3) The Commission may accept applications from eligible members of the Commission.”.

Amendment put and declared lost.

I move amendment No. 89:

In page 30, to delete lines 1 to 3 and substitute the following:

“(4) In deliberating or making a recommendation to the Government pursuant to this section, the eligible members of the Commission who have made an application referred to in subsection (1) shall not sit as members of the Commission.”.

Amendment put and declared lost.

I move amendment No. 90:

In page 30, between lines 3 and 4, to insert the following:

“(5) In deliberating or making a recommendation to the Government pursuant to this section, the Commission shall have regard, in addition to the principles in section 7, to the objective criteria in the published statement in relation to this section.”.

Amendment put and declared lost.

I move amendment No. 91:

In page 31, between lines 2 and 3, to insert the following:

“Statement of recommendation

43. The Commission shall, in respect of each person whose name it recommends to the Minister, provide to the Minister a statement setting out the reasons the Commission is of opinion that the person is suitable for appointment to the judicial office concerned.”.

Amendment agreed to.

I move amendment No. 92:

In page 31, line 5, to delete “firstly” and substitute “only”.

Amendment put and declared lost.
Amendment No. 93 not moved.

I move amendment No. 94:

In page 31, line 13, after “office” to insert the following:

“and a reference, in either subsection, to the particular function is a reference to the function of the Commission of selecting and recommending persons in relation to that judicial office”.

Amendment agreed to.
Amendment No. 95 not moved.

I move amendment No. 96:

In page 31, line 21, to delete “relevant committee” and substitute “Commission”.

Amendment agreed to.

I move amendment No. 97:

In page 31, to delete lines 25 to 30.

Amendment put:
The Dáil divided: Tá, 38; Níl, 42; Staon, 0.

  • Bailey, Maria.
  • Brophy, Colm.
  • Bruton, Richard.
  • Burke, Peter.
  • Byrne, Catherine.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Corcoran Kennedy, Marcella.
  • D'Arcy, Michael.
  • Daly, Jim.
  • Deasy, John.
  • Deering, Pat.
  • Doherty, Regina.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Flanagan, Charles.
  • Griffin, Brendan.
  • Harris, Simon.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kyne, Seán.
  • McEntee, Helen.
  • McGrath, Finian.
  • McLoughlin, Tony.
  • Madigan, Josepha.
  • Mitchell O'Connor, Mary.
  • Moran, Kevin Boxer.
  • Murphy, Eoghan.
  • Naughten, Denis.
  • Naughton, Hildegarde.
  • O'Connell, Kate.
  • Phelan, John Paul.
  • Rock, Noel.
  • Ross, Shane.
  • Stanton, David.

Níl

  • Aylward, Bobby.
  • Brady, John.
  • Brassil, John.
  • Broughan, Thomas P.
  • Buckley, Pat.
  • Butler, Mary.
  • Chambers, Lisa.
  • Collins, Joan.
  • Collins, Niall.
  • Connolly, Catherine.
  • Crowe, Seán.
  • Cullinane, David.
  • Curran, John.
  • Daly, Clare.
  • Ellis, Dessie.
  • Howlin, Brendan.
  • Kelleher, Billy.
  • Kenny, Martin.
  • Lahart, John.
  • MacSharry, Marc.
  • McDonald, Mary Lou.
  • McGuinness, John.
  • Mitchell, Denise.
  • Munster, Imelda.
  • Ó Broin, Eoin.
  • Ó Caoláin, Caoimhghín.
  • Ó Laoghaire, Donnchadh.
  • Ó Snodaigh, Aengus.
  • O'Brien, Jonathan.
  • O'Callaghan, Jim.
  • O'Reilly, Louise.
  • O'Rourke, Frank.
  • Penrose, Willie.
  • Ryan, Brendan.
  • Ryan, Eamon.
  • Scanlon, Eamon.
  • Sherlock, Sean.
  • Smith, Brendan.
  • Smyth, Niamh.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Wallace, Mick.

Staon

Tellers: Tá, Deputies Tony McLoughlin and Joe Carey; Níl, Deputies Jim O'Callaghan and John Lahart.
Amendment declared lost.

I move amendment No. 98:

In page 32, line 5, to delete "relevant committee" and substitute "Commission".

Amendment agreed to.

I move amendment No. 99:

In page 32, to delete lines 9 to 15.

Amendment put:
The Dáil divided: Tá, 38; Níl, 41; Staon, 0.

  • Bailey, Maria.
  • Brophy, Colm.
  • Bruton, Richard.
  • Burke, Peter.
  • Byrne, Catherine.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Corcoran Kennedy, Marcella.
  • D'Arcy, Michael.
  • Daly, Jim.
  • Deasy, John.
  • Deering, Pat.
  • Doherty, Regina.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Flanagan, Charles.
  • Griffin, Brendan.
  • Harris, Simon.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kyne, Seán.
  • Madigan, Josepha.
  • McEntee, Helen.
  • McGrath, Finian.
  • McLoughlin, Tony.
  • Mitchell O'Connor, Mary.
  • Moran, Kevin Boxer.
  • Murphy, Eoghan.
  • Naughten, Denis.
  • Naughton, Hildegarde.
  • O'Connell, Kate.
  • Phelan, John Paul.
  • Rock, Noel.
  • Ross, Shane.
  • Stanton, David.

Níl

  • Aylward, Bobby.
  • Brady, John.
  • Brassil, John.
  • Broughan, Thomas P.
  • Buckley, Pat.
  • Butler, Mary.
  • Chambers, Lisa.
  • Collins, Joan.
  • Collins, Niall.
  • Connolly, Catherine.
  • Crowe, Seán.
  • Cullinane, David.
  • Curran, John.
  • Daly, Clare.
  • Ellis, Dessie.
  • Howlin, Brendan.
  • Kelleher, Billy.
  • Kenny, Martin.
  • Lahart, John.
  • MacSharry, Marc.
  • McDonald, Mary Lou.
  • McGuinness, John.
  • Mitchell, Denise.
  • Munster, Imelda.
  • O'Brien, Jonathan.
  • O'Callaghan, Jim.
  • O'Reilly, Louise.
  • O'Rourke, Frank.
  • Ó Broin, Eoin.
  • Ó Caoláin, Caoimhghín.
  • Ó Laoghaire, Donnchadh.
  • Ó Snodaigh, Aengus.
  • Penrose, Willie.
  • Ryan, Brendan.
  • Ryan, Eamon.
  • Scanlon, Eamon.
  • Sherlock, Sean.
  • Smith, Brendan.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Wallace, Mick.

Staon

Tellers: Tá, Deputies Tony McLoughlin and Joe Carey; Níl, Deputies Jim O'Callaghan and John Lahart.
Amendment declared lost.

I move amendment No. 100:

In page 34, to delete lines 22 and 23 and substitute the following:

"(f) 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.

I move amendment No. 101:

In page 34, line 26, to delete "or a relevant committee".

Amendment agreed to.

I move amendment No. 102:

In page 35, between lines 15 and 16, to insert the following:

"(7) 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 and shall, from time to time, provide a written statement to the Procedures Committee of matters that the Commission considers to be relevant to such needs of those users arising out of any such review and consultation.".

Amendment agreed to.

I move amendment No. 103:

In page 38, lines 11 and 12, to delete "a relevant committee of the Judicial Appointments Commission or".

Amendment agreed to.

I move amendment No. 104:

In page 39, line 19, to delete "relevant committee" and substitute "Commission".

Amendment agreed to.

I move amendment No. 105:

In page 40, between lines 4 and 5, to insert the following:

"(4) In the performance of its functions under this Act, a relevant Committee shall be prohibited from any consideration of an applicant’s political affiliation.

(5) In the performance of its functions under this Act, the Government shall be prohibited from any consideration of an applicant's political affiliation.

(6) An applicant for judicial office shall not have been a member of, or a representative of, or a donor to any political party in the State in the three years immediately preceding the date of application for judicial office.".

Amendment put and declared lost.
Bill, as amended, received for final consideration.
Question put: That the Bill do now pass.
The Dáil divided: Tá, 55; Níl, 49; Staon, 0.

  • Bailey, Maria.
  • Barrett, Seán.
  • Brady, John.
  • Bruton, Richard.
  • Buckley, Pat.
  • Burke, Peter.
  • Byrne, Catherine.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Corcoran Kennedy, Marcella.
  • Crowe, Seán.
  • Cullinane, David.
  • D'Arcy, Michael.
  • Daly, Jim.
  • Deasy, John.
  • Deering, Pat.
  • Doherty, Regina.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • Ellis, Dessie.
  • English, Damien.
  • Farrell, Alan.
  • Flanagan, Charles.
  • Griffin, Brendan.
  • Harris, Simon.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kenny, Martin.
  • Kyne, Seán.
  • Madigan, Josepha.
  • McDonald, Mary Lou.
  • McEntee, Helen.
  • McGrath, Finian.
  • McLoughlin, Tony.
  • Mitchell O'Connor, Mary.
  • Mitchell, Denise.
  • Moran, Kevin Boxer.
  • Munster, Imelda.
  • Murphy, Eoghan.
  • Naughten, Denis.
  • Naughton, Hildegarde.
  • O'Brien, Jonathan.
  • O'Connell, Kate.
  • O'Reilly, Louise.
  • Ó Broin, Eoin.
  • Ó Caoláin, Caoimhghín.
  • Ó Laoghaire, Donnchadh.
  • Ó Snodaigh, Aengus.
  • Phelan, John Paul.
  • Rock, Noel.
  • Ross, Shane.
  • Stanley, Brian.
  • Stanton, David.
  • Tóibín, Peadar.

Níl

  • Aylward, Bobby.
  • Brassil, John.
  • Broughan, Thomas P.
  • Browne, James.
  • Butler, Mary.
  • Byrne, Thomas.
  • Cahill, Jackie.
  • Casey, Pat.
  • Cassells, Shane.
  • Chambers, Jack.
  • Chambers, Lisa.
  • Collins, Joan.
  • Collins, Niall.
  • Connolly, Catherine.
  • Cowen, Barry.
  • Curran, John.
  • Daly, Clare.
  • Donnelly, Stephen S.
  • Dooley, Timmy.
  • Fleming, Sean.
  • Haughey, Seán.
  • Howlin, Brendan.
  • Kelleher, Billy.
  • Lahart, John.
  • Lawless, James.
  • MacSharry, Marc.
  • Martin, Micheál.
  • McConalogue, Charlie.
  • McGrath, Michael.
  • McGuinness, John.
  • Moynihan, Aindrias.
  • Moynihan, Michael.
  • Murphy O'Mahony, Margaret.
  • Murphy, Eugene.
  • O'Brien, Darragh.
  • O'Callaghan, Jim.
  • O'Loughlin, Fiona.
  • O'Rourke, Frank.
  • Ó Cuív, Éamon.
  • Penrose, Willie.
  • Rabbitte, Anne.
  • Ryan, Brendan.
  • Ryan, Eamon.
  • Scanlon, Eamon.
  • Sherlock, Sean.
  • Smith, Brendan.
  • Smyth, Niamh.
  • Troy, Robert.
  • Wallace, Mick.

Staon

Tellers: Tá, Deputies Tony McLoughlin and Joe Carey; Níl, Deputies Jim O'Callaghan and John Lahart.
Question declared carried.