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Dáil Éireann debate -
Wednesday, 29 Jun 2022

Vol. 1024 No. 4

Judicial Appointments Commission Bill 2022: Report and Final Stages

Amendments Nos. 1 and 5 are related and may be discussed together by agreement.

I move amendment No. 1:

In page 10, lines 23 and 24, to delete “or, in the English language, the Judicial Appointments Commission (in this Act referred to as the “Commission”)” and substitute “(in this Act referred to as the “Coimisiún”)”.

Most of the amendments Deputy Ó Snodaigh submitted are straightforward attempts to ask the Government to live up to commitments under the recently passed Official Languages (Amendment) Act 2021. It is disappointing that the amendments related to the Irish language were rejected on Committee Stage and the Government is not bringing forward any amendments of its own on Report Stage. This contrasts with the position of the Minister for Further and Higher Education, Research, Innovation and Science, Deputy Harris, and the Minister of State, Deputy Noonan, who engaged on Committee Stage. They met Conradh na Gaeilge in recent weeks and discussed how to improve the Higher Education Authority Bill 2022 and the Electoral Reform Bill 2022, respectively, to ensure that Irish is to the fore in both Bills.

However, the Department of Justice appears to have an approach unlike the rest of the Government and does not seem interested in implementing Government policy on the promotion of Irish. Even at this stage I ask the Minister to reconsider and accept the amendments or at least perhaps commit to meeting representatives of Conradh na Gaeilge and Deputy Ó Snodaigh with a view to introducing Government amendments in the Seanad.

With regard to amendment No. 1, there are examples in Córas Iompair Éireann, Raidió Teilifís Éireann, Bord na Móna and Bord Gáis and many others of public bodies given Irish names only. Such an approach is successful in building a strong Gaelic identity for the State, whose first official language is Irish. Normalising Irish words among the public is useful as part of revival efforts for the language. I have mentioned road signs, and prominence should be accorded to the Irish language version of place names and logainmneacha.

We also know from discussions with the Minister for Further and Higher Education, Research, Innovation and Science, Deputy Harris, about the Higher Education Authority, HEA, that a public body will anglicise its name at any opportunity, and that is hard to undo once the English name has entered general parlance. The HEA's only legal name is An tÚdarás um Ard-Oideachas but the Act establishing it was known as the Higher Education Authority Act, so the body renamed itself.

We proposed on Committee Stage that neither An Coimisiún um Cheapacháin Bhreithiúnacha nor An Oifig an Choimisiúin um Cheapacháin Bhreithiúnacha need an English name. This should be the Coimisiún um Cheapacháin Bhreithiúnacha Bill and not the Judicial Appointments Commission Bill. The response from the Department acknowledged that the Official Languages (Amendment) Act 2021 specifies that new bodies should be as Gaeilge only but argues that it would set a precedent in doing this when the Act is not yet commenced. In summary, the argument was that it would do the right thing but it would be wrong to start doing the right thing now. I do not know if St. Augustine said something like that at some stage.

A Minister of State at the Department of Housing, Local Government and Heritage, Deputy Noonan, saw no problem setting that precedent with An Coimisiún Toghcháin in the Electoral Reform Bill 2022 and we now know from another Minister of State, Deputy Chambers, that the Official Languages (Amendment) Act 2021 has been commenced and has been formally adopted as Government policy. The provisions of that Act did not seem to be required when we consider the history of RTÉ, CIE etc., which were set up as public bodies long before the Act. I ask the Minister to consider accepting amendments Nos. 1 and 5.

The reasons I set out on Committee Stage are those mentioned by the Deputy, specifically that the Act in question had not commenced. I had no opposition to it other than on the basis we were pre-empting something that had not been commenced. My information is it has not been commenced, but if it has, the provision is something I am very much open to. I must get clarification on that, however.

There is much in this Bill relating to the Irish language and specifications. I know there are later amendments in that regard specifically around judicial appointment nominees and ensuring we have a sufficient number proficient in the Irish language, as well as displaying diversity and everything else. If the Act in question has been commenced - I was informed it had not but we should be able to get clarity on it - I am open to revisiting the name.

If the Minister cannot accept the amendment now, perhaps she will meet with us and introduce a Government amendment in the Seanad.

Once it does not delay the process, I am happy to look at it.

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 10, line 27, after "members," to insert "who shall be competent to conduct their functions through the medium of Irish,".

This is a provision to ensure sufficient appointments of people competent in Irish to serve the needs of both the Irish-speaking community and the Constitution. We know there has been a problem in the courts because there are not enough judges who are competent in Irish to handle cases as Gaeilge. That is not satisfactory. We even had a senior member of the Judiciary publicly state that people who seek to have their cases heard in Irish face prejudice. This is not equal treatment before the law. These problems have gone unnoticed or ignored by the Government. Ensuring the director and commissioners responsible for the new judicial appointments commission are competent in Irish will help to address this lack of understanding at least.

We are referring to nine members, four of whom will be lay members and four of whom will be from the Judiciary, along with the Attorney General. The point I made on Committee Stage was that three of those are ex officio members, including the Chief Justice, the Attorney General and the President of the Court of Appeal. If the President of the Court of Appeal is temporarily replaced by the president of the relevant court, he or she becomes an ex officio member as well. It would not be appropriate to provide in legislation specifically that an ex officio member of a committee should have proficiency or should be competent in the Irish language. Unfortunately, the population of Ireland is not universally proficient in the Irish language. We are trying to ensure members of the commission and candidates being considered for judicial positions would demonstrate diversity and flexibility.

For the specific purposes of the Bill, the attributes of qualification sought in the lay members is that they have knowledge of business, human resources, the courts and human rights, among other things. There is nothing here that precludes anybody from being proficient in Irish or fluent in both Irish, English or any other language. With the ex officio members specifically, I am not sure it would be good to specify they have to be proficient in the Irish language. Again, we have set out different types of qualifications, not excluding the fact people can be competent in the Irish language when included in the nine-person membership.

Amendment, by leave, withdrawn.

Amendments Nos. 3, 7 and 15 are related and may be discussed together.

I move amendment No. 3:

In page 11, line 12, after "office," to insert the following:

"ensuring that recommendations in the case of no fewer than 20 per cent of judicial offices, and 100 per cent in the case of appointments to the Supreme Court, in a given year, the nominees shall be exclusively drawn from candidates who are competent to read and understand the Constitution and matters of law in both official languages,".

Ensuring the minimum requirements that 20% of new appointments to judicial positions are reserved for people who can practise bilingually is imperative if we are to rectify this unfairness at the heart of our courts and get started towards the 20% goal for public bodies that has been committed to in the Official Languages (Amendment) Act 2021. Sinn Féin is also proposing that for the very top level, the Supreme Court, all judges appointed should be able to practise bilingually. This is, of course, because Irish is a necessary skill for that job. Supreme Court judges are charged with interpreting the text of the Constitution, which is not only bilingual but also states categorically that the Irish text is the authoritative version. There are significant differences between this text and the English translations.

We are demanding that judges in charge of interpreting the law should be able to read it. If the Government is serious about the rule of law in respecting the Constitution, there should not be any difficulty with this.

Amendment No. 3 specifies a 20% figure for all judicial appointments. We have tried to set out very clearly in this new legislation that any appointment to judicial office would be based on merit and we must take into account the objective of the membership of the Judiciary in each court. We should have a sufficient number of members who are proficient in the Irish language but, again, we do not set out specifically that there should be a specific number who are men or women. We ask for a sufficient number of men and women. When setting out that there should be sufficient diversity among those being put forward, we are not prescriptive. That is because we want this to be based on merit and we do not want to have to put any specific number or percentage down for any of those requirements or qualifications we have asked of the commission when putting names forward. By putting the 20% figure in the amendment, it would be applied separately and differently from the requirement for diversity and a gender balance.

With regard to the Supreme Court, having candidates drawn exclusively from a pool of judges competent in reading and understanding the Constitution and matters of law in both official languages is one thing. The amendment would have the stipulation that they must be 100% proficient in the Irish language.

It removes the ability for diversity and quite a number of different elements we are requiring in this legislation. I am not sure it would be beneficial for any of us for that to be the case.

Amendment, by leave, withdrawn.

Amendments Nos. 4, 10, and 12 to 14, inclusive, are related and may be discussed together.

I move amendment No. 4:

In page 14, between lines 3 and 4, to insert the following:

“(3) There may be paid by the Commission such allowances for expenses (if any), incurred by lay members on a panel established under section 46(2), as the Commission may, with the consent of the Minister and the Minister for Public Expenditure and Reform,determine.”.

The amendment makes provision for the payment of allowances for expenses, if any, incurred by lay members on a panel established under section 46(2), with the new subsection to be inserted by amendment No. 10. These will be paid by the commission as it may determine with the consent of the Minister and the Minister for Public Expenditure and Reform.

Amendment No. 10 is the substantive amendment in the group. It makes additional provision for the conduct of interviewees and inserts a new subsection. The amendment proposes that an interview shall be conducted by a panel of no fewer than three members of the commission, at least one of whom shall be a lay member and one of whom shall be a judicial member. The composition of the interview panel shall be selected by the commission. Without this amendment, which I flagged on Committee Stage in our previous debate, there is an unintended implication that all nine members of the commission would be required to conduct the interview or indeed all interviews, which I do not think any of us think would be appropriate. This of course would not be practicable or desirable and having discussed the matter with the Chief Justice, I am satisfied that the change to clarify this position is necessary. It is not the intention of the legislation, however, to micromanage the commission process and it will, therefore, be a matter for the commission to decide which members will conduct the interview. The amended section will prescribe one thing, that the panel of the commission for the purpose of this shall have no less than three members and, importantly, at least one layperson and one judge.

Amendment No. 12 relates to section 50 and provides that the commission when it is recommending a person will provide certain information as set out to support the recommendation. Section 50(c) provides for the communication of the interview and other selection process results to the relevant Ministers. This is a technical drafting amendment that provides for a new cross reference from this requirement to the new section 46(2) inserted by amendment No. 10. The interview results, therefore, referred to in section 50 will now cross-refer to the new provision in section 46(2), which clarifies that the interview was conducted by a panel of the commission.

Amendments Nos. 13 and 14, taken together, make a necessary technical drafting adjustment to section 59. Amendment No. 13 removes the repeat interview condition from section 59(3)(c)(i) and amendment No. 14 replaces it with a simpler cross reference to the interview requirement in section 46. To summarise, all five of these amendments clarify in section 46 that a panel of the commission will conduct interviews as opposed to the commission as a whole and that lay members may receive necessary expenses and may make related necessary drafting adjustments.

None of the amendments are a problem. The only clarification I would like on is amendment No. 10 and the provision for no fewer than three members, one a lay member and at least one a member of the Judiciary. While expenses and all of that is dealt with through these amendments, what is the issue with regard to training of the people who will be carrying out these interviews? It is a very important job that they will have to do to select people. Will sufficient training be put in place to ensure they will be able to carry out that with the competency required?

It was never intended that the entire judicial appointments commission would interview every applicant. Is a panel of three sufficient? One has to be a member of the Judiciary and one a lay member. Is there a reason three is the required number? All panels could be panels of three then under this legislation to make the determination and do the interviews. The Minister does not want everybody but is there a particular reason the Minister has reduced it to three?

What we have said is "at least three". I felt one or two would not be sufficient. Three would ensure that we have at least one lay member, one member of the Judiciary and one additional person but it could be four. It can be additional numbers. In speaking to the Chief Justice, it would be desirable not to have the same three people all the time. That is something that will be made clear and we would need to make sure that happens.

In terms of the competencies, it will be a matter for the commission to make sure that anybody who is conducting interviews has the ability. If training or anything is required by those individuals, as I mentioned earlier, those who are on this panel and particularly the lay members should have a knowledge of business, human resources, the courts and human rights among other things. Most like when these are going through the Public Appointments Service, we will potentially be looking at those who have the ability to conduct interviews and perhaps who have done something similar in their previous roles as well. If that is something that is missing from the commission or something the commissioners themselves feel they require, it will be up to the commission and it will be allowed for the commission to be able to support them in that regard.

Amendment agreed to.
Amendment No. 5 not moved.
Amendment No. 6 not moved.
Amendment No. 7 not moved.

I move amendment No. 8:

In page 26, between lines 30 and 31, to insert the following:

“(i) in the case of all offices specified under paragraph (a), (b), (c), (d), (e), (f), (g), or (h), he or she has not held the office of Attorney General for a period of two years prior to their application under section 43.”.

This is a very simple little amendment in respect of the Attorney General's role in all of this. There have been issues in the past with regard to that. We feel that the amendment is appropriate because it provides that an appointee to the Judiciary cannot have held the office of Attorney General for at least two years prior to that appointment. It is appropriate that there would be that cooling-off period. The Attorney General is one of the central judicial offices in the land. It would be appropriate that he or she would be out of office for a period before he or she could be appointed to the Judiciary. It is fair and balanced and would allay public concerns in regard to that. In the past, regardless of how good a judge the Tánaiste thought he would make, I do not think it was a good idea to be appointing Attorneys General as judges immediately after their vacation of that post. This amendment would take care of that and would create a balance that is absent from the legislation.

My view on this is that I do not see why any Attorney General, be they serving or retired or having moved on, should be disbarred at all for any particular period from applying. On the judicial appointments commission we have the Chief Justice and two other judicial members. We are not saying that they should at any point recuse themselves or not apply for a promotion or position for at least two years. They of course will be allowed to apply to progress their career in the same way.

They are already members of the Judiciary.

They are but the Attorney General is not a member of Government; the Attorney General advises Government. I am not sure it should be a disadvantage to a person that they have taken on quite a significant and busy role. They would then be at a disadvantage having done that and having served not just the Government but the country in general. I am not sure that putting them at a disadvantage as opposed to other members of the commission is the right thing to do. The commission is independent and will set the criteria. There will be an interview process. There will be a very clear process that absolutely every individual right from the Chief Justice to any potential Attorney General, solicitor, barrister or other will have to go through. Individuals will be put forward on merit, taking into account the need for diversity, proficiency in the Irish language and gender balance as well.

I was interested in what the Minister's response would be. My experience is that senior practitioners of the law are appointed as Attorney General. They play a pivotal role in advising Government and they are the chief legal adviser to the Government.

It gives an extraordinary experience to somebody, no matter how senior he or she is in practising law at the Bar, to actually sit around the Cabinet table and run an entire Department, which is the Office of the Attorney General. It seems to me there would be an extra qualification in having done that. There probably would be a disincentive for people who might see themselves having practised at the Bar from applying for a judicial role or even accepting appointment to the role of Attorney General if they thought at the end of it there would be a period where they would first have to re-establish a legal practice, having given it up to serve as Attorney General, and then start a process after two years to apply for a judicial position. I would be minded to accept the Minister’s position on this.

Amendment put:
The Dáil divided: Tá, 49; Níl, 75; Staon, 0.

  • Andrews, Chris.
  • Boyd Barrett, Richard.
  • Brady, John.
  • Browne, Martin.
  • Buckley, Pat.
  • Cairns, Holly.
  • Canney, Seán.
  • Clarke, Sorca.
  • Collins, Joan.
  • Collins, Michael.
  • Conway-Walsh, Rose.
  • Cronin, Réada.
  • Crowe, Seán.
  • Cullinane, David.
  • Daly, Pa.
  • Doherty, Pearse.
  • Donnelly, Paul.
  • Ellis, Dessie.
  • Farrell, Mairéad.
  • Funchion, Kathleen.
  • Gannon, Gary.
  • Guirke, Johnny.
  • Harkin, Marian.
  • Healy-Rae, Danny.
  • Kenny, Gino.
  • Kenny, Martin.
  • Kerrane, Claire.
  • Mac Lochlainn, Pádraig.
  • McDonald, Mary Lou.
  • McNamara, Michael.
  • Munster, Imelda.
  • Murphy, Catherine.
  • Murphy, Paul.
  • Mythen, Johnny.
  • Nolan, Carol.
  • O'Callaghan, Cian.
  • O'Donoghue, Richard.
  • O'Rourke, Darren.
  • Ó Laoghaire, Donnchadh.
  • Ó Murchú, Ruairí.
  • Pringle, Thomas.
  • Quinlivan, Maurice.
  • Ryan, Patricia.
  • Shortall, Róisín.
  • Smith, Bríd.
  • Stanley, Brian.
  • Tully, Pauline.
  • Ward, Mark.
  • Whitmore, Jennifer.

Níl

  • Bacik, Ivana.
  • Berry, Cathal.
  • Brophy, Colm.
  • Browne, James.
  • Bruton, Richard.
  • Burke, Colm.
  • Calleary, Dara.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Carroll MacNeill, Jennifer.
  • Chambers, Jack.
  • Costello, Patrick.
  • Coveney, Simon.
  • Cowen, Barry.
  • Creed, Michael.
  • Crowe, Cathal.
  • Devlin, Cormac.
  • Dillon, Alan.
  • Donnelly, Stephen.
  • Donohoe, Paschal.
  • Duffy, Francis Noel.
  • Durkan, Bernard J.
  • Farrell, Alan.
  • Feighan, Frankie.
  • Fitzpatrick, Peter.
  • Flaherty, Joe.
  • Flanagan, Charles.
  • Fleming, Sean.
  • Foley, Norma.
  • Griffin, Brendan.
  • Harris, Simon.
  • Haughey, Seán.
  • Heydon, Martin.
  • Higgins, Emer.
  • Howlin, Brendan.
  • Kehoe, Paul.
  • Kelly, Alan.
  • Lahart, John.
  • Lawless, James.
  • Leddin, Brian.
  • Madigan, Josepha.
  • Martin, Catherine.
  • Matthews, Steven.
  • McAuliffe, Paul.
  • McEntee, Helen.
  • McGrath, Michael.
  • McHugh, Joe.
  • Moynihan, Aindrias.
  • Moynihan, Michael.
  • Naughten, Denis.
  • Naughton, Hildegarde.
  • Noonan, Malcolm.
  • O'Brien, Darragh.
  • O'Callaghan, Jim.
  • O'Connor, James.
  • O'Donnell, Kieran.
  • O'Dowd, Fergus.
  • O'Gorman, Roderic.
  • O'Sullivan, Christopher.
  • O'Sullivan, Pádraig.
  • Ó Cathasaigh, Marc.
  • Ó Cuív, Éamon.
  • Ó Ríordáin, Aodhán.
  • Phelan, John Paul.
  • Rabbitte, Anne.
  • Richmond, Neale.
  • Ring, Michael.
  • Ryan, Eamon.
  • Smith, Brendan.
  • Smith, Duncan.
  • Smyth, Niamh.
  • Smyth, Ossian.
  • Stanton, David.
  • Troy, Robert.
  • Varadkar, Leo.

Staon

Tellers: Tá, Deputies Martin Kenny and Pa Daly; Níl, Deputies Jack Chambers and Brendan Griffin.
Amendment declared lost.

The time for this debate having expired, I am required to put the following question in accordance with an order of the Dáil of 28 June: "That the amendments set down by the Minister for Justice and not disposed of are hereby made to the Bill, Fourth Stage is hereby completed and the Bill is hereby passed."

Question put and agreed to.
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