I apologise to the House and to the Minister for the late start. The management of parliamentary business is not yet an exact science, but we are doing our best.
Courts and Court Officers Bill, 1995: Committee (Resumed) and Final Stages.
SECTION 14.
Debate resumed on amendment No. 7:
In page 9, subsection 2 (c), line 33, after "Board" to add "with the prior approval of the applicant".
—(Senator Mulcahy.)
I note what the Leader of the House said and comments made by his colleagues earlier that there will be no attempt to rush through the provisions of this Bill, for which I am thankful. Although every Bill is important, this is particularly so as it relates to the administration of justice and it may not be amended for some time. There have only been three or four Courts Acts in the history of the State. Although it is an unseasonal time of the year, it behoves us to give the closest attention to each section and it is our duty as Members of the Oireachtas to do so.
My amendment relates to the ability and the right of the board to consult persons concerning the suitability of applicants to the board. The number of ways in which this type of consultation could prejudice the career, position or standing of a person are infinite. If a solicitor who is a partner in a firm of solicitors applies to the Judicial Appointments Advisory Board to become a judge and the board in its wisdom decides to consult with one or more members of that firm, such consultation would alter the relationship between that partner and his fellow partners.
If my amendment was accepted, the approval of the applicant would need to be obtained. In such a situation the applicant could say that he did not want his partners to be consulted or that certain partners but not others could be consulted. If this amendment is not accepted, the confidentiality aspect of this application will be breached. As I said to a colleague, one could become the object of discussion and, indeed, gossip. As I said earlier, the board will lose nothing as a consequence of my amendment. It could say to the applicant that unless it can consult with certain people, then their application has no chance of succeeding. I believe that the choice as regards consultation should rest with the applicant and not with the board.
Section 14 (2) (c), which the Senator seeks to amend, enables the Judicial Appointments Advisory Board to consult persons concerning the suitability of applicants for appointment to the board. The Senator's amendment would allow such consultation only with the prior approval of the applicant. I believe that qualification of what is merely a permissive power to consult is unnecessary. We can rely on a board made up of such eminent jurists to act in a fair way to all persons who apply to the board.
Senator Mulcahy referred to confidentiality. We all are concerned about confidentiality in cases of this nature. I draw his attention to section 20, which states: "All proceedings of the Board and all communications to the Board shall be confidential and shall not be disclosed except for the purpose of this Act." I am satisfied that these provisions requiring confidentiality in relation to the proceedings and deliberations of the board will ensure that the utmost caution will be exercised as regards consultations with persons about applicants.
Amendment put and declared lost.
Question proposed: "That section 14 stand part of the Bill."
On Second Stage I stated my objections to the Bill, and particularly to this consultation with this board. Those objections remain as very strong reservations on my part. I wish to make it quite clear that in making my contribution at this point I am not implying that the Minister here, or any of the three or four Ministers we have had here in the course of this debate, has any ulterior motive in including this. I have given my reasons why I have strong reservations about the genesis of this bad Bill. My reservations have nothing to do with the Minister's party but have a good deal to do with representatives of my party in Government in consultation with the Labour Party initially. I take it that my views will be seen as objective and based on strong legal and constitutional reservations.
When the type of consultation envisaged in section 14 (1) is introduced, one is running the risk not only of undermining the independence of the Judiciary, the status and quality of those who would apply, but also the risk of constitutional action which would not serve the purpose either of the Government or the Judiciary. Let me give some examples of what I mean by this. Under this, the board, to which I strongly object in principle, may among other things consult persons concerning the suitability of applicants to the board. Let me continue for a moment in view of the unprecedented nature of these arrangements. The board may consult persons without any distinction, limitation or definition as to who those persons might be.
When we pass legislation here we have to stand over the terms of the laws that we pass. We are enabling this board to consult persons — any persons — about the suitability of the applicants for appointment to the Judiciary. Take that in conjunction with the provisions of section 16 (7) where the board must satisfy itself that a person is suitable on grounds of character and temperament. This infringes one of the most fundamental rights enshrined in our Constitution as well as rights which are antecedent to the rights stated in the Constitution. That any persons can be consulted by a board about the suitability of character and temperament of people who may be considered for judicial appointment is in my view an outrageous instrusion in the right of each citizen to have his or her character protected at all times against any unnecessary or unlawful intrusion.
As the Bill stands, anybody can be consulted. The board may simply tell the person they are consulting that Mr. O'Kennedy, for example, or Mr. Mulcahy has applied for appointment and ask that person's view as to his suitability and character. Did we ever have this before in the Oireachtas? I cannot remember if we ever did, and I have 30 years experience here now. I do not recall anything of this nature coming before us as a result of an ill thought out notion that emerged some time back in hasty conclusions in some airport at some stage. This is reprehensible. I have good reason to believe that I am not alone in my view. A number of members of both professions who have made their views known to me, as well as members of the Judiciary who will not be affected by this, have very strong reservations about it.
Before this, an application for appointment as a judge was a matter of total confidentiality. It was discussed in Government. Views may have been expressed around Government tables under the seal of collective Cabinet confidentiality. I may have taken part in some of those discussions, but that is where they stayed. It was the function, and in my view it always is and should be, of Government and Government alone to determine the suitability of applicants. Can the Minister tell me on what basis these decisions will be made? There is no point in telling me in this context that the intention of the legislation is to do such and such, in practice it will be so, in common sense it will be thus, that we all know that there is no such evil intention. This is of no consequence because the law will now allow this group to consult persons concerning the suitability of applicants.
Let me take it a stage further. The same section enables the board to invite persons identified by the board to submit their applications to the board, in addition to the fact that people can apply themselves under the procedures already laid down. That they can invite people to apply is reasonable enough; but they can invite people to apply and then, having taken action to activate an application, go out and consult other persons, not just those on the board, as to the suitability of character and temperament of the person they have invited to submit an application. It is outrageous. No proper thought has been given to it and it is a natural consequence of a procedure that I wish had never been introduced. The Minister and the Government need to re-examine this. The Minister is breaking onto ground which in my view is unprecedented in any legislation we have passed here.
The Minister mentioned eminent jurists in the course of a response he made. There may be eminent jurists. People might describe me as an eminent jurist; I hope it would not give me a false impression of just how eminent or less than eminent I am. Of course there will be lists of distinguished jurists, the presidents of the various courts will be involved, but the Minister is now introducing power to nominate three other people to the board in respect of whose qualifications there is no definition in this Bill. I will no doubt be told by the Government that it will not invite just anybody, that it will be somebody representative of this or that interest, responsible, respectable people and so on. They will be accepted as being responsible and respectable, but whoever they may be, they will be adjudicating not just on the respectability but on the character and temperament of people who have been invited to have their character analysed, scrutinised and, perhaps, rejected by people who have no qualification at all in the legal area and may have less qualification in terms of judging character and temperament.
Has anyone thought out the consequences of this? In my view they are very serious. I do not see any reason if this were challenged it would not be seen as being a gross intrusion in the fundamental right of each citizen to have their character protected as distinct from inviting unnamed, anonymous persons to offer views as to the suitability and character of applicants. This is very serious. It is in a sense a natural consequence of setting up this kind of procedure, for which there is no precedent elsewhere as far as I am aware. There is certainly no precedent for it here and I see no reason we should go down this road at this point. It illustrates the natural consequence of what is a very misguided, albeit well-intentioned, approach. The Minister of State indicated during yesterday's debate that the Irish Judiciary was of a pre-eminent standard in all things.
I do not know if the Minister of State present this evening can provide satisfactory replies to the queries I have already raised. The media will probably avoid reporting this debate. That is fine with me because it is too late to do so. We will not be recorded as having said anything of great significance. However, the fundamental points I have raised should be entered into the record of this House. Will the Minister explain how the Government intends to guarantee that there will be no unnecessary or unlawful breach of the right of each individual to the vindication of their character?
With regard to the phrases used in legislation, the parliamentary draftsman will always return to precedent. Section 14 (2) (f) states that the board may "do such other things as the Board considers necessary to enable it to discharge its functions under this Act.". I am aware that such a board should be competent, capable and able to discharge its functions. However, this provision is too wide-ranging. It is the function of the existing courts to ensure that legislation enacted by the Oireachtas does not breach constitutional propriety. I believe that the courts will have grave reservations in relation to such provisions. They are vague, unlimited and confer authority upon a board that goes beyond what is necessary for the proper discharge of its responsibilities. I regret the fact that we did not have an opportunity to discuss this matter privately, not to score political points, but in order that we might be seen to have really examined the consequences of this provision.
The Minister of State, Deputy Burton, stated yesterday that Irish judges are of a standard which is second to none. I endorse those comments. I was called to the Bar in 1961 and have practised law for 34 years. I have been a Senior Counsel since 1974. During that period I have gained considerable experience of how the courts operate and I acknowledge that there is need for improvement. However, I am very concerned in relation to these provisions. Will the Minister inform me why the Government is proposing to change utterly procedures which have been seen to be good, confidential and have given Ireland a Judiciary of which any country would be proud? I would ask the same question if my own party was in Government. I ask again "Why this nonsense?". Can someone provide me with some rationale for such this action?
I listened with great interest to the contribution of my learned friend, Senator O'Kennedy. However, I disagree profoundly with him. As I listened to his contribution, I became aware of the extent to which the legal profession has taken over from the priesthood with regard to the sacred ties which bind its members together, irrespective of political allegiances. I married a lawyer. Senator Gallagher, who is seated beside me, is also a lawyer. I am very conscious that we live in a world where lawyers have great traditions and are becoming ever present in many activities.
In relation to procedures, I believe Senator O'Kennedy stated that he finds it offensive, possibly unconstitutional, that other opinions should be canvassed with regard to a person's suitability for office. Surely that happens on a daily basis in relation to every other profession. If I were to seek a position in a university, I would be obliged to submit myself to seminars where I would be judged by my peers. It would also be necessary for me to submit the names of a number of referees to assess my character. I hope that they would say good things about me and I would choose them with that in mind. I have partaken in many interview boards and read referees' reports, which are generally good. However, such reports might contain information which might question the suitability of the interviewee. It is better to discover such information now, rather than six months later when a completely unsuitable person is in office.
Referee's reports are requested when anyone is seeking appointment to a senior professional post. It is normal practice. Such reports are treated in confidence. I have never known a referee's report to be disclosed or enter the public arena. I am quite sure that the procedures and practices of the body under discussion would be of the highest professional standard. Given the nature of our legal profession and the board itself, it is a small world and people will express views. Lawyers tend to speak of each other in cold and clinical terms. Senator O'Kennedy would not describe someone as a good lawyer for the simple reason that they share the Senator's political beliefs. He will apply cold professional standards in relation to the competence and integrity, which is usually taken for granted, of a lawyer. The members of the board will apply similar standards.
It is extraordinary that the legal profession finds it so repulsive that a referee might be called upon to provide a professional view in relation to a candidate's suitability for office when this has long been a norm and has proven to be a useful aid in choosing the best candidates in all other professions.
In relation to section 14 (1), I raised the point on the previous section with regard to a quorum required for a meeting of the board. Could the Minister of State ensure that the Minister for Justice directs the board in a particular way in this regard? Perhaps there could be at least six members present in order for a meeting to commence. If the Minister does not make such a stipulation, one person could decide to recommend a shortlist of candidates without due consultation.
Section 14 (2) states that without prejudice to the generality of subsection (1) of this section, the board may do specific things. I am not that experienced in terms of the law, but from other discussions which have taken place in the House I understand that the word "shall" places an obligation on a body to carry out some action. The term "may" is more discretionary. Can the Minister of State indicate that this does not place an onus on the board to do so?
I may be wrong but if so, there is some conflict between section 14, where the board is given discretion, and section 16 (7) which states that the board "shall not recommend the name of a person to the Minister unless, in the opinion of the Board, the person has displayed in his or her practice as a barrister or solicitor" a degree of competence etc. If the board has discretion under section 14 in that it "may" advertise and consult etc., as the Bill does not oblige it to advertise, how does it fulfil the requirements under section 16 to inform the Minister of its recommendation and that in the board's opinion the person concerned has displayed ability as a barrister, for example, and is suitable on grounds of character or otherwise?
Part IV is not clear and Senator Gallagher also said that. It does not give the kind of clarity one expects from legislation. It all hinges on what I referred to originally as the "Baldonnel One" Bill. It was not thought out. It was cobbled together in order to come up with a solution to try to hold a Government together.
It had nothing to do with the courts anyway.
I do not disagree with some of the Senator Manning's points or with the requirement that the applicant should be of sound character or temperament. It is important that a judge have a good temperament. On Second Stage, Senator Henry said one particular judge in domestic violence cases used to send people home to have a cup of tea or a meal. That is not suitable when dealing with domestic violence cases. I am not trying to score points and I understand practitioners have a particular view, but section 14 is probably unimplementable and seems to conflict with section 16.
I have found the discussion so far extremely interesting but I am sorry I am not able to accept the amendment.
Senator O'Kennedy objected to this as a matter of principle. He was candid enough to admit his objections related to the proposals of a previous administration he and his party supported. He asked me to explain the necessity for this board and for this legislation. When my colleague, Minister of State at the Department of Justice, Deputy Joan Burton, spoke on Second Stage yesterday, she said:
I would like to briefly put these new arrangements in perspective. The procedure for appointing judges is governed by the Constitution. Article 35 provides that the judges of the Supreme Court, the High Court and all other courts shall be appointed by the President. That power is exercisable and performable on the advice of the Government. That fundamental arrangement is, of course, unaffected by this Bill. I need hardly say that our Judiciary is widely respected for its fairness, integrity and independence. The focus of these measures is, however, on the Government's role in the judicial appointments process. Because of the Government's central role in the appointment of judges, there should be guarantees to ensure that procedures to appoint judges are not only appropriate but are seen to be so.
That is the reason for this proposal.
Senator O'Kennedy also told us of his experience in Government when judges were being appointed. I am quite sure there was some consultation with outside people with regard to the character of candidates for judicial office. As Senator McGennis said when appointing judges, we must be careful in relation to their integrity, character and temperament. These people can put the Senator and me away for a considerable time if they decide to do so. I would like to think that if I appeared before a judge as, indeed, I have in the past——
The Minister has a distinguished record.
Did he get a good judge?
On a number of occasions, I nearly did time. On one occasion when I was sentenced to six months imprisonment for participating in a banned march in Newry after Bloody Sunday in 1971 I was greateful to hear the judge suspend the sentence for 12 months. I was glad Judge McBirney was of good temperament and I am sorry to say he was murdered by the IRA a short time later. I was glad to have him on the bench that day and to know he was a judge of integrity and good temperament. It is important. If a person is in the dock awaiting judgement, it is nice to know that some inquiries have been made as to the judge's temperament, integrity, etc. and that someone has satisfied himself or herself of it. Otherwise, we would be in serious difficulty. I assume discreet inquiries have been made in the past and discreet inquiries will be made under this proposed legislation — and it is important the inquiries be discreet.
I find it difficult to accept some of the reservations were expressed by Senator Mulcahy. He seemed to suggest he would restrict the number of people who could be asked about a candidate to those likely to be in favour of him or her.
That was on the amendment.
The applicant would have the right to say "no" to particular people being consulted. Then a situation could develop where the only people——
On a point of order, that point was defeated on the amendment. It is not now in the section with which we are dealing. We are now dealing with the section as it is and the references the Minister is making to Senator Mulcahy's proposal are irrelevant.
I thought it was a point worth making.
It is not in the Bill.
If I had been so insistent on order, I could have objected on points of order when Senator O'Kennedy made his speech.
I would have welcomed it.
I thought it was a useful contribution to the discussion. I did not wish to foreclose but I have made that point and let it stand.
In general, I found Senator O'Kennedy's view extremely conservative. One finds this more and more among people who have been in a certain profession for many years. Senator O'Kennedy said he has been a practising barrister since 1961. I am not only critical of barristers in this respect. I have been in politics almost as long as Senator O'Kennedy——
I thought it was somewhat longer.
I have been in politics since 1964.
The Minister was a year ahead of me then.
The Senator was a barrister in 1961 and a politician in 1965. We tend to get conservative when we serve a long period of time in politics. However, I fail to understand what is so special about barristers that they strongly object to people inquiring as to their integrity and temperament that does not apply to people in other professions, like doctors, for example, or others who apply for certain jobs? Why does this also not apply to politicians? Presumably our temperament and the way in which we are likely to respond to cases that arise is considered by the electorate when they decide whether to vote for us or not. It would certainly be considered by a Taoiseach when appointing people to public office. Why should barristers be put on a pedestal?
We are not making it compulsory for barristers to apply to be judges. There was no intention in the divorce amendment to make divorce compulsory. It is also not compulsory for barristers to apply to be judges, but if they decide to apply, there is a procedure they will have to go through which will be the same as that for people applying for other jobs and for less reason in most cases. We do not appoint people in other cases to positions where they can deprive us of our liberty for a considerable period of time.
Senator McGennis referred to the quorum for the board. She asked the Minister to instruct the board as to the number of people who would form a quorum.
Did I say "instruct"? I meant advise. I withdraw that remark.
The Senator did say "instruct". This is an independent board and the reason we are making it so or establishing it at all is to prevent Ministers from issuing such instructions and interfering. Therefore, I cannot give any credence to that suggestion.
I hope I gave a satisfactory reply to these points.
While the Minister gave us anecdotal experience relative to his experience and attitude to the judge who imposed a sentence on him, it is of no consequence to the issues I raised. I invited the Minister to make precise responses to precise points, but he has not addressed them at all. I also invited him to indicate to me what in this subsection would clearly define the limits on the persons, whoever they may be, to be consulted? What is there in this section that would enable the Minister to say that it will not allow this board and its members, individually or collectively, to ask anyone? I asked that question precisely and the Minister has not even addressed it, much less answered it and I do not propose to comment any further on it. Much of what I wanted to say in terms of the procedures we are putting through is a matter of record.
I will not engage in this general observation as to who is conservative and who is not; it is totally irrelevant. What politicians think about lawyers and vice versa is the kind of thing we would say in casual conversation in the corridors. I am damned in that I wear both hats and neither profession may be of the highest standing from time to time. Other than that, many of the views and opinions I express are not of any relevance or consequence. I do not intend to comment on whether people are conservative or not or whether barristers are special. It is not my purpose to say how special barristers are. They are not special nor have they any right to be regarded as such and this would also apply to solicitors.
I asked the Minister to show if there was precedent in any legislation that has come through the Oireachtas since the foundation of the State for this specific provision in respect of appointments? I am not saying that barristers or solicitors should be privileged when they apply for appointments to the Bench. Can the Minister point this out, even in respect of appointing chairmen to semi-State bodies or members to the various statutory agencies? Is it is in a section of any legislation, apart from something as important as appointments to an independent constitutional function? I am not concerned about barristers but about the independent constitutional function of the courts, which made my life uncomfortable from time to time when I was a Minister. However, I endorse that independence. This measure, which will grossly risk undermining that independent function because of these kind of inquiries in respect of people discharging that function, not only greatly worries me but also leaves me alarmed.
The Minister said that from time to time people will have some consultations under the existing procedures where the Government has made appointments; I cannot say he is not correct in saying that. However, one does not have to be a lawyer but only be aware of constitutional rights to know there is a real distinction in the Constitution between discussions conducted under the bond and pledge of collective confidentiality — unless and until the Government changes it, and I hope it does not — and discussions that will take place on a board with responsible individuals. They are not on the same scale at all and the Minister must know that.
We are dealing with courts and court officers, and the functioning of the system. This is apparent in the short title which refers to amending and extending the powers and providing for all of the functions of the courts and court officers. The Minister of State at the Department of Justice, Deputy Burton, said yesterday: "I need hardly say that our Judiciary is widely respected for its fairness, integrity and independence" on this Bill, which is intended to be directed at making the courts more effective and efficient. The Minister quoted Deputy Burton and went on:
The focus of these measures is, however, on the Government's role in the judicial appointments process. Because of the Government's central role in the appointment of judges, there should be guarantees to ensure that procedures to appoint judges are not only appropriate but are seen to be appropriate.
This is all about focusing on the Government's role, somehow conveying a notion to the public that the Government is really what we want to vindicate here. If the Minister will tell me there has been even one example — I am not sure whether it would be permissible for him to do so — of the need to reform the Government's role following its failure to discharge its function properly in the appointment of judges or if he would tell me there was evidence at any time over the years of this role being abused I will accept there is a case for this.
However, the statement by Deputy Burton, which the Minister quoted, has nothing to do with vindicating or enhancing the status of the Judiciary, its role or its function. It is about something different altogether, which is how this nonsense started. The Tánaiste and Minister for Foreign Affairs wished somehow to convey an impression, to demonstrate to some people who thought the Labour Party was not clothed with some kind of special virtue and integrity——
We wanted proper procedures to be put in place regarding judicial appointments.
He wanted to demonstrate that the Labour Party had a cloak of virtue and integrity.
The Senator should speak to the amendment.
Senator O'Kennedy without interruption.
It has nothing to do with the efficiency, or standard of integrity of the judges appointed. I have not heard any argument to impugn the people appointed nor have I heard anything against the system, which has worked so well over the years, and has discomfited many of us in Government from time to time, having regard to the independence of the judgments made by the people some of us appointed.
It has remained in place for the last 12 months.
That is correct, however, I will not make any further observations on this, because it risks being something of an argumentum ad hominum, which I do not like to indulge in, having regard to two colleagues for whom I have regard and who have, in recent months, been appointed to the Bench. If it is right now, one would have to say why was it not right then? There has been no attempt to explain, much less justify this change in procedure.
I know Senator Manning will not take offence if in response to his reasonable view informed by his experience in terms of university appointments and such matters I am more concerned to hear the ministerial justification, as distinct from the observations of Senator Manning. I do not question the bona fides, nor the accuracy of what he has said but we are speaking of appointing people to what must under the Constitution be an independent function. This is of a totally different dimension from any academic appointment, and the two are not comparable. I make no distinction between barristers and university lecturers. I am concerned with the function to be discharged. Senator Manning knows well that the position of a judge when appointed under the Constitution is very different from the position of the most distinguished academic who is appointed by a governing body after consultation.
Senator Manning spoke about supplying references of one form or another. The Minister may disabuse me on this point, but there is nothing regarding this in the Bill. It is standard practice when applying for many jobs to supply a reference and a curriculum vitae. This happens at university level and elsewhere, and properly so. If this were merely a matter of checking referees, I would consider that reasonable protection was provided. However, this is not the issue. There is nothing in the Bill to this effect.
I find the procedure set out here objectionable. It seriously risks breaching constitutional rights. There is no comparison between this and the case of anybody applying even to a distinguished university for appointment to a chair and who supplies references that can be queried. I have not heard a response from the Minister to any of the issues I have addressed. If he will not respond I will have to leave it at that.
I find it hard to add to the eloquent and persuasive criticism that my colleague, Senator O'Kennedy, has put forward on section 14 and its subsections. We are not opposing the principle of a Judicial Appointments Advisory Board.
Senator O'Kennedy is.
I am, but there is no point at this time in the evening. My views are well known. I abhor it and always did.
What we are objecting to is the way in which this board may operate and the fact that, according to the subsections of the Bill, it may be unconstitutional, may breach the fundamental rights of people who apply to the board and may make people and their reputations the subject of gossip.
The Minister said that the consultations will be discreet. How do we know they will be discreet? There is nothing in the Bill to say that they will be discreet. I am somewhat surprised by Senator Manning's contribution. He obviously has never read or seen advertisements for positions in the newspapers which state: "Replies will be strictly confidential" or "Replies treated in strictest confidence". That only underscores the point made by myself and Senator O'Kennedy. The reason such advertisements state that replies will be strictly private and confidential is to ensure that the person to whom one is applying for a job will not go back to one's colleagues and tell them one is applying for the position. That is a matter of common sense and I am sorry Senator Manning did not refer to it. That is the basis for my belief that many of the subsections are repugnant.
Senator O'Kennedy rightly said that there is no power for the applicant to bring forward other persons who might support the application. In other words, the board may consult with persons who are negative towards the applicant and there is no power for the applicant to give evidence, either by letter or oral testimony, that the applicant is suitable for judicial appointment. The Minister might address that issue.
When the Minister of State, Deputy Burton, said that this procedure had to be seen to be fair, she let the cat out of the bag in terms of the rationale for this Bill. It is not about appointing judges in a fair way and it is not about making sure our judges are of the highest calibre; we already have these things. It is typical Labour Party cosmetics.
It is Labour Party policy to be open with all proceedings and we are proud of that policy.
It is a typical attempt——
We are proud to see it enshrined in legislation.
Acting Chairman
Senator Mulcahy without interruption.
Senator Mulcahy should stick to the section.
On a point of order, it is for the Chair and not the Senator to rule on whether I am straying from the section.
Acting Chairman
I am ruling that Senator Mulcahy has the floor and is speaking on section 14.
I am confining myself to section 14.
Acting Chairman
I hope you will and that everybody else will. I remind the House that we have spent almost an hour on this section. We have given it adequate time and I hope we can bring it to a conclusion.
I take the Chair's point, but this is the crucial section in the Bill.
Acting Chairman
I will not impede debate on the section but Senators should confine their comments to the section.
The consequence of enacting this section and giving the board these powers is that barristers and solicitors who submit their names to the board will have their names, characters and reputations bandied about. We saw how the Labour Party this time last year seemed to be happy to put people's reputations on public trial. It is a sad day when the Fine Gael Party will let——
I ask you to rule on this matter, Sir.
——the Labour tail wag the dog in such a shameful way.
The Senator is talking nonsense.
Sour grapes.
I am not talking nonsense.
Acting Chairman
Senator Mulcahy without interruption. I ask the Senator to confine his comments to the section.
This section will allow people's reputations to be discussed in an open way and there is no control on the amount of gossip and talk that can emanate.
The other point is that there are many eminent barristers and solicitors who will not want to go through this process, will not want to be interviewed, will not want to have their good names and character references discussed and will not want people inquiring about them from their friends and so forth. This will have the effect of discouraging top calibre lawyers from applying for judicial appointment. Perhaps the Government wants to secure politically, morally, ethically correct and perfect specimens of human beings who have never misbehaved and who must provide character references from the age of ten — perfect people who never had a row, an argument or an enemy — to fill the places on the Bench. Is that what we are down to? That is the effect of this provision. Some people who aspire to be judges might say: "If I do not behave myself in a perfect way all the time, I may never be a judge".
We do not know what this section will allow in terms of background. It has been known for a judge to be found with a little excess drink taken. Would it be the case that if such a fact were known before the judge was appointed, he would not have been appointed? If this is what the Government is saying it should be spelt out. The Minister has failed to articulate the parameters within which this board will be able to operate with regard to looking at people's backgrounds and consulting with persons unknown and of unknown qualifications. The better way — although the amendment was defeated — would have been to restrict consultations to those which have the consent of the applicant. This section is abhorrent.
I reiterate the point made by my colleague, Senator O'Kennedy. The Minister made several judicial appointments this year and did not appear to be troubled by the absence of a Judicial Appointments Advisory Board. She did not appear to be troubled that the interviews, advertisements and consultations were not available to her. As many of us have said: if it is not broken, why fix it? What is the reason? Would the Minister not have preferred to postpone those appointments until after she had the benefit of the wisdom of the Judicial Appointments Advisory Board? These questions remain unanswered.
It is a sorry day that the Seanad will enact these sections. They will have the effect of reducing the calibre of people presenting themselves for positions as judges in this country. This Government will take full responsibility for that over time.
Senator Mulcahy's argument that the board will be a source of information which will lead to gossip, scandal mongering and the maligning of the characters of those who apply is beneath contempt. He is saying that a board which has among its membership the Chief Justice, the President of the High Court and the Attorney General will behave with less professional competence than a board appointed by a county council to fill vacancies or a university assessment board, where basic normal procedures ensure that matters which are confidential will remain so. He is doing a terrible disservice to his own profession by suggesting that the Chief Justice and the other board members would even be party to procedures which would have the results he suggests.
There will be three outsiders on the board.
Senator Mulcahy knows that the Chief Justice and others will not serve on a board with people who are not suitable in terms of their professional integrity and competence. Senator O'Kennedy makes serious points and they are worth addressing, but the idea that this board will be the source of malice and slander which will find its way into various fortnightly organs is beneath contempt.
That is a cheap jibe.
Senator O'Kennedy stressed the constitutional nature of these positions. It is for this reason that we must get the procedures right. It might have been the case when we were a smaller State with far less litigation that the Government had a much greater knowledge of the people they appointed. When UCD appoints professors it is virtually impossible to remove them, because these posts are statutory. It would almost require an Act of Parliament to do so even though these persons may not perform their jobs properly or discharge their responsibilities to their students. It is even more difficult to remove judges, given the protection they have under the Constitution.
Both Houses of the Oireachtas must be involved in the removal of a judge. I have the height of respect for Senator O'Kennedy's views and I accept his sincerity. I have discussed this issue with him privately as well as publicly. However, we will have to have a fundamental disagreement on this. I believe that because constitutional protection is so important, we must get the procedures as right as is humanly possible. On this point Senator O'Kennedy and I will have to part ways.
When I raised the issue of the quorum, my wrists were slapped. I did not mean that the Minister should instruct anybody to do anything.
The Senator said "instruct".
If I said this, it was not my intention. I am trying to be helpful, but this does not seem to be working. I asked the Minister about the use of the word "may" as opposed to "shall" in an effort to defuse the argument we had for about an hour but he did not respond. The suitability of applicants is causing problems. Section 16 refers to "suitable on grounds of character and temperament" but it also refers to "otherwise suitable". Senator Mulcahy raised the analogy of being drunk before being appointed as opposed to after this.
That might deem half the Bench ineligible.
The board might decide that this is a reason somebody should not be appointed. Could the board, because of its composition, its collective experience and the input of its outside members, decide that members of political parties should not be deemed eligible for appointment to the Bench? The board is being given discretion to do what it considers suitable. Members of the public might believe that anybody who has been a member of a political party should not be considered for appointment to the Bench and the board might think is reasonable.
I asked the Minister about the use of the word "may" instead of "shall" in relation to giving discretion to the board but he did not reply. I am now expanding my question to ask about the kind of discretion it is being given. The Minister did not expand on how the board may come to the conclusion that a person is suitable to be a judge. There are certainly drafting defects in this section.
I take issue with the jibes being made about the Labour Party which seem to be nothing short of sour grapes and bitterness on the part of Fianna Fáil because it was in Government with us when we introduced the original Bill but is not in a position to bring forward any legislation this year. The fact that Fianna Fáil now finds itself in Opposition does not go down too well with it. I am proud that it was my party which pushed for legislation in this area and I have no qualms about this.
We agreed with this legislation.
To argue that the Labour Party is putting itself on a moral pedestal is way off the mark. The Bill deals with much more than the appointment of judges. I find it difficult to accept that this section is the only one worth discussing.
No one said that.
Senator O'Kennedy said this was the crux of the Bill and I do not agree with this.
The Senator does not know what she is talking about.
Acting Chairman
I ask Senators to confine their remarks to section 14.
I am entitled to respond to points raised about my party.
Acting Chairman
You had the chance to make your point.
I am dealing with the section. Certain matters have been raised which are way over the top. Senator O'Kennedy insisted that the Government show what precedent there is for this type of action. This is not a court of law and the Government is not bound by precedent and does not have to show any. We are introducing new legislation which we are entitled to do. We are debating a Bill which is novel, but this should not be forward on because it is the nature of our job as legislators.
Judges are appointed to serve in this capacity up to the age of 70 and they have serious powers, such as the right to detain people for life. Therefore, we must be sure that we appoint the right people. It is long overdue that we look at how we do this and this Bill is attempting to do so.
With regard to the constitutionality argument of whether the board is entitled to make telephone calls or consult people about the suitability of applicants, there is no legislation of a similar nature to protect ordinary people who apply for ordinary jobs. Anybody can phone the Garda Síochána to inquire about somebody and there is no protection against this type of inquiry. Why should the law be any different in this instance? Section 20 guarantees that all proceedings and correspondence of the board shall be confidential. I do not know what better protection the Bill could give the individuals concerned and I think concerns on this point are unwarranted.
A number of points have been raised by the three Senators on the opposite side of the House, some of which have already been answered by Senators Manning and Gallagher. I do not intend to repeat the points they made because there has already been too much repetition. I do not expect to have a meeting of minds with Senator O'Kennedy or with the other members of the same party on this matter. He has made it perfectly clear where he stands on the principles of the Bill.
Senator O'Kennedy knows from experience that we cannot legislate for all eventualities. That is true no matter who is responsible for the legislation. The board will include respectable people of great integrity. We must rely on them to do the right thing. I am confident they will, otherwise they should not be in the positions they currently hold. As regards the three extra people who will be appointed to the board, they will be selected on the basis of the calibre of those already on the board. It would be wrong for any Minister to appoint people to a board, which includes such people as the Chief Justice, the President of the High Court and the Attorney General, who would not have the same integrity, stature, knowledge and experience. This board will be a responsible one and will not behave in the way some have suggested.
I cannot answer the questions relating to precedence. I am not aware of any precedent but I am sure if there was one, Senator O'Kennedy would find it, particularly if it was a bad one. I would like to think, whether this precedent is enshrined in legislation, that a Minister or Government when making the appointment would be careful to vet applicants to ensure they were suitable on grounds of character and temperament.
Senator McGennis and Senator Mulcahy mentioned judges who might imbibe too much in a public place, as one judge did recently. That is a matter for consideration. If an applicant or a candidate for a position on the Bench has a drink problem, that is a valid consideration for his or her appointment. I would like to think that even without the requirement of legislation this was considered in the past. Senator O'Kennedy described my anecdotal experience as irrelevant. However, if I had thought that judge had a serious drink problem, I would not have been happy standing in the dock on that Monday morning.
On a point of order, we are not referring to any particular judge.
Acting Chairman
That is not a point of order, but a point of information.
This is a valid consideration.
Senator Mulcahy asked how I knew the inquiries would be discreet as it was not mentioned in the Bill. This is provided for in section 20 which states that "All proceedings of the Board——
On a point of order——
Acting Chairman
The Minister is in order and the Senator may reply when the Minister has finished speaking.
I have been interrupted on many occasions today because I strayed from one section to another. It is not good enough that the Minister can make his argument based on the examination of another section. I do not agree with his interpretation of that section.
Senator Mulcahy said it was not included in the Bill. However, it is provided for under section 20.
It states: "for the purposes of this Act".
Section 20 states that "All proceedings of the Board and all communications to the Board shall be confidential and shall not be disclosed except for the purposes of this Act." The Senator was talking about gossip, tittle tattle and the fact that everyone would talk about the characters of applicants to the Bench. This section covers the matters to which the Senator referred.
Senator McGennis made a point that members of political parties may not be appointed by the board. Over the years some of the most distinguished members of the Judiciary were former active members of political parties. Senator McGennis's point betrays a misunderstanding of this matter. She is wrong. The board does not have the right to appoint members of the Judiciary; the Government has the right to do so. The board will consult, but it does not have the right to appoint people.
I did not say "appoint", but "consider as suitable".
Acting Chairman
The Senator will have the right to reply to the Minister.
The Senator said "appoint". It would be unconstitutional if we gave the board the right to appoint people because it would be contrary to Article 35 of the Constitution. For the benefit of Senator Mulcahy and Senator McGennis, I reiterate that the board can adopt its own procedures. The board has that right and a person who applies to it will know, on the basis of the Bill, that the board may consult other persons. The power to consult is enabling, not mandatory. It may be that, in a particular case, the board will not wish to consult. It may not wish to consult on any case. If an applicant does not want the board to consult, he or she can tell the board that they do not wish such consultations to take place. This will limit the options of the board because in those circumstances it will be precluded from making what it considers necessary inquiries to particular sources to make a judgment. This reflects reality.
Senator O'Kennedy's points are interesting and given his standpoint, most valuable. However, I am not sure that they are a matter for prolonged discussion on Committee Stage as distinct from Second Stage.
If Committee Stage is not the time for prolonged and serious discussion, I do not know when is.
The Senator described them as matters of principle.
This is the time to tease out such matters. I expressed reservations and I will not repeat them. However, the record of the debate will be available to people later and they can reach their conclusions. Time will demonstrate and experience will show whether the points are valid.
A number of my professional colleagues indicated to me that under no circumstances will they allow their names, characters or standing to be subjected to the type of scrutiny envisaged under the Bill. These people — not confined to one party — are generally regarded as well suited, competent and respected members of the profession. Experience will show that where a range of choice existed previously, a number of people who might have applied will not do so now as a result of these procedures. They do not wish to have their characters and suitability denigrated.
The Minister said the Minister and the Government should have information regarding the character and suitability of applicants. I agree and I wholeheartedly endorse that point. In the past consideration of the suitability of characters and temperament was carried out by Government under a constitutional obligation of confidentiality. It is very different from the type of consideration the body which will be established will carry out. People will be invited to express views on the character and suitability of applicants and are not bound by constitutional confidentiality. They are not part of Government and will not have that responsibility. This is the distinction and I have experience of both professions
If I were to talk in my sleep or suffer an aberration I would repeat things said in Government from time to time about individuals which should never have been disclosed. However, as long as I do not suffer that aberration, it will never happen. I am concerned that while that protection existed for every character in the past, it does not exist now. The Bench and the quality of those who apply for it will be diminished and I greatly regret that. Time alone will prove whether my reservations are well founded.
It is unfair and incorrect of the Minister to suggest that I displayed a misunderstanding of the purpose of the section and perhaps of the Bill. I understand the section in particular and many other sections of the Bill. I read precisely from the Bill when I said the board shall not recommend the names. I asked the Minister a question and he did not answer it. Perhaps the fact that I am not a lawyer explains why it appears many of my questions are not being answered, although Senator O'Kennedy also said he was not receiving replies to questions.
Senator Manning nodded when I asked a question in relation to suitability and the Minister went to great lengths to discuss whether somebody with a drink problem would be rendered unsuitable. I asked whether, under section 16, membership of a political party would render a person unsuitable to be recommended. Does the board have that discretion? The Minister dismissed the question as a misunderstanding of the Bill. I do not think I suggested at any point that the board could appoint people. However, if I did so, it was probably because of the lateness of the hour. I am aware the Minister will make the appointments on the basis of names forwarded to her. Perhaps this clarifies my point and that I understand the section.
If the Senator understands it I should not have to make the point that the board will advise on the suitability of particular candidates. The appointment will be made by the Government. I was asked whether the board could recommend that politicians should not be appointed to the Bench. It is an independent board and, presumably it could do that, but the appointment is made by the Government which comprises politicians. I can imagine the attitude if such a recommendation was made seriously.
Senator O'Kennedy said, as a result of the unwillingness of barristers to accept these procedures, that some will not apply for positions. That is unfortunate and regrettable but it is their choice.
It is also the Government's choice.
The Minister is in order. The debate on the section has lasted 90 minutes.
It is their choice as to whether they undergo the procedure. Regarding the alleged lack of confidentiality in relation to the board and the inquiries it will make as compared to the confidentiality of Government, Senator O'Kennedy said time will show who is correct. However, I am prepared to bet the board will at least be as confidential as Cabinet and Government discussions in the past.
I can make this point as confidently as I raised the precedent earlier without having to look it up, given the unprecedented nature of the Bill. I am not aware of an occasion under any Administration where Cabinet discussions in respect of judicial appointments were disclosed.
What happened in 1994?
Is the Minister talking about the unfortunate issue of the proposed appointment of the President of the High Court? That became a major political issue, unfortunately. I have the highest possible regard for the person concerned who has the highest standing in the Law Library and has since been vindicated. I greatly regret that he was dragged into the political arena which I found utterly regrettable if not contemptible. In that context I am glad to say — now that it has been brought up — that that person back in practise has been vindicated by the most important judgment of all, the judgment of those solicitors who brief him and the colleagues who work with him. That is not the issue I have been addressing.
Shame on the Labour Party.
Would Senator Mulcahy cop on to himself?
I have been talking about people who have been appointed and in respect of whom the Minister suggests there seems to have been the possibility of a leakage from Government, which was at least as possible as a leakage from this board. In my experience there has never been any leakage from Government in respect of judicial appointments, with a reservation in respect of that particular case the Minister mentioned.
There may have been a couple of others.
Question put and declared carried.
SECTION 15.
Question proposed: "That section 15 stand part of the Bill."
This came up accidentally with a previous amendment when it was pointed out that provision has been made in this section for the Chief Justice, the President of the High Court and all these other people to be replaced on the board in the event of their retirement or death. There is no reference at all in this section to the position of the Attorney General. I presume the Minister would say that when the Government collapses the Attorney General retires. However, we might have a situation such as Senator Manning referred to where people can go mad. It is very difficult to dismiss judges in particular. In the event of a Chief Justice or any of these people named being dismissed, there is no provision in this section for them to be replaced. It simply says that on the death or retirement of these specific people they are to be replaced. In order to protect future Governments, the Minister might consider tabling an amendment on Report Stage to incorporate the dismissal of these high officers of the land.
It might be necessary to insert something to cater for or cope with the position of the Attorney General as well in relation to a change of Government.
Senator McGennis made an excellent suggestion that this matter might be addressed on Report Stage. In most Bills where appointments are dealt with, there normally is a casual vacancy clause. Section 15 refers to "death or retirement" and I suppose that an impeachment pursuant to the Constitution could be a retirement in one sense. Even if we feel that judicial appointments to the board are covered well enough, there is a question mark. For example, if during his or her three year term such a person retired from practice as a barrister or solicitor it would seem that they would have little place on the board.
We also had the question earlier, which the Minister answered to a fair degree, that if the Attorney General ceased to be Attorney General he or she would have to resign from the board. That was implied.
I hope I do not detect any rush on the part of the Government to get this Bill through quickly, because these matters should be properly addressed on Report Stage so there can be no room for ambiguity.
I agree with Senator Mulcahy and I thought I had answered the question in relation to the Attorney General. He holds his position on the board because of the office of Attorney General which he holds. Therefore, when he ceases to be Attorney General he would cease to be on the board. Article 30.5.4º of the Constitution states:
The Attorney General shall retire from the office upon the resignation of the Taoiseach, but may continue to carry on his duties until the successor to the Taoiseach shall have been appointed.
I must have missed that, but the other point concerning the possible dismissal of the named members is not covered.
Most of the other members are there also because of the offices they hold or because they have been appointed by the Minister. If they cease to hold the particular offices then the same thing applies. The Minister who appoints them can presumably withdraw such an appointment.
That is my fear. If one of these people goes mad on the Bench are they still a member of the board? Can the Minister remove that person?
The Senator is talking about judges on the Bench. The Constitution is quite specific about how judges can be removed and we are certainly not proposing to change that. If he or she ceases to be a judge then he or she would cease to be a member of the board.
I am not disagreeing but the Minister is saying "if they cease". If the section stated "if the Chief Justice ceases to be a Chief Justice" then that would be fine but it does not say that. It says "on the death or retirement". There is another possible scenario. If the Minister reckons it is covered that is satisfactory, but I feel that it may not be.
They reckon that it is covered.
The Minister has not replied. I specifically mentioned the situation where if a barrister or solicitor ceased to practise during their three year tenure on the board, we would have a situation where a non-practising barrister or solicitor remained on the board. There does not appear to be a casual vacancy clause which covers such a situation. The only mention of such a situation is in an earlier section 13 (4) which states that "the board may act notwithstanding a vacancy in its membership". It would be simple for the parliamentary draftsman to come back to us with a casual vacancy clause that clarifies this matter properly. I get the impression that the Government is under some kind of pressure or that it is in some kind of rush to bring this matter to a head. It is quite unique.
I have been critical of the Minister today. No matter what we have proposed he has seen merit in none of our suggestions. He has not once said that he will go back to the parliamentary draftsmen or to the Minister to see if our views can be incorporated. This is the first Minister who has come in here with that type of inflexibility. I want my specific question answered as to whether or not a non-practising barrister or solicitor can remain on the board.
The other question concerns the three persons appointed by the Minister. The Minister said these people will have positions on the board by virtue of their office. If, for example, the Minister appointed the chairperson of Women's Aid, it is not clearly stated in the Bill that if that person ceases to be chairperson of that organisation they would be required to resign from the board. I would like an answer to those meaningful queries. Is the Minister under pressure to force this Bill through tonight without taking time to come back with proper amendments to clarify these situations?
We have been here since 10.45 a.m. this morning and it is now 7.40 p.m. What effort is being made by the Government to push this Bill through? I challenge anyone to produce proof that we are trying to do so. The Senator asked me to reply to his meaningful points, which I have done. The points to which I did not reply were not meaningful.
The Senator asked about a practising barrister or solicitor who would cease to be such over the three years. I thought the answer to that question was made clear at an earlier stage. Those people can be replaced if they cease to be a practising barristers or solicitors — a point which has been made clear.
The Bill does not say that.
The Minister will make appointments and she has made clear the reason why they will be made and the type of person she hopes to appoint to the board. The person who appoints them may withdraw the appointment.
Does the Minister accept that in Bills which provide for appointments to boards there is usually a casual vacancy clause? Why is there no such clause in this Bill? The Minister will agree that there is a vacancy clause for four of the appointees, although he may not believe it is meaningful for me to say so but I will not trade insults with him. However, there is no vacancy clause for any of the other appointees. Will the Minister not include a vacancy clause in respect of the other people?
It is clearly stated in the Bill that if one of the named people dies or retires the next person acting in that role will fill their position. If any of the other appointees from commerce, finance and so on, dies or retires, the vacancy will be filled in the normal way. In the event of them being absent, the board may act "notwithstanding a vacancy in its membership".
I do not disagree with Senator Enright. Did the Minister say that the three ministerial appointments are made by virtue of the experience or membership of a particular group or organisation of the appointee but that she may withdraw that nomination? Senator Enright rightly said that in the event of a vacancy the board may proceed. However, I cannot see where it refers the filling of vacancies in the case of practising barristers or solicitors during the three years. It is not clear that vacancies will be filled during that three year period. Did the Minister say that a nomination could be withdrawn?
If one of the three ministerial appointees dies, obviously the Minister can replace that person. I am satisfied that the proposed wording covers the points raised; I do not need to go to the parliamentary draftsman for advice.
Did the Minister say that a nomination could be withdrawn?
Like the Senator, I sometimes have difficulty remembering what I said.
Question put and declared carried.
SECTION 16.
I move amendment No. 8:
In page 10, subsection (2), line 22, after "shall" to insert "through its Chairperson".
Earlier we discussed the role of the Attorney General. In a statement to the Dáil two days ago the Minister said that the Attorney General will be the person who will bring the information back to the Cabinet when it considers the recommendations of the advisory board. The Attorney General will bring the shortlist of seven or more names to the Cabinet. The Minister will agree that this is not in the Bill. Section 16(2) states that the board shall "submit to the Minister the name of each person who has informed the Board of his or her wish to be considered for appointment". Section 16 (3) states: "The Board shall provide the Minister with particulars of the education, professional qualifications, experience and character of the persons whom it recommends under this section". It does not say the Attorney General will submit to the Minister or inform or advise.
I asked if this statement by the Minister that the Attorney General will bring the information to the Cabinet when it is considering the recommendations of the advisory board was Government policy. If it is, why has it not been included in the Bill? If not, will the statement be withdrawn? This statement on communications between the board and the Government is contrary to an earlier section in the Bill. As the Minister pointed out at great length, the board is entitled to adopt its own procedures. What would happen if the board adopted the procedure which I propose, that is, that it shall be the duty of the chairperson of the board who will, to use the Minister's words, bring the information back to the Cabinet when it is considering the recommendations of the advisory board?
Perhaps the Minister envisages two sets of communications — a formal recommendation from the board, while the Attorney General will bring back different information. This pertains to our general reservations about including the Attorney General on the board in the first place. The Minister will agree that the amendment proposed by Fianna Fáil would make it very clear, although I am sure he will think up some elaborate reason for disagreeing with the words "through its chairperson". However, it would make eminent sense that the chairperson of that board, the Chief Justice, or through his office the person in charge of this board, would be charged with the responsibility of communicating the recommendations of the board back to the Government. Perhaps I am mistaken; perhaps my amendment is not needed, but if I am mistaken, then we are entitled to an official withdrawal of the remarks of the Minister for Justice to the effect that the Attorney General will bring the information back to Cabinet when they are considering the recommendations of the advisory board. The Minister may not think these comments are meaningful but I would like a meaningful reply, either to the Minister's comments or to our proposal.
I remind the Senator that "meaningful" was first used by him and I responded using the same word so he should not take umbrage. I have no intention of going over ground already covered and most of what the Senator said was covered this morning on amendment No. 3.
Section 16 (2), which the Senator seeks to amend, provides that the Judicial Appointments Advisory Board shall submit to the Minister the name of each applicant for judicial appointment and recommend at least seven persons for appointment. The Senator's amendment would stipulate that the submission and recommendation of persons by the board would be made through its chairperson, whom, as section 13 (3) provides, shall be the Chief Justice. That is unnecessary. Section 16 is framed in such a way that the board will be responsible for the submission and recommendation of persons. It will act in this matter as a body. The Attorney General's role in this matter will be the same as that of every other board member. The board as a body will be responsible under section 16 for submitting and recommending persons to the Minister for appointment.
Can I take that then that the Minister of State accepts that what the Minister for Justice said is incorrect? She said "the Attorney General will be the person who will bring the information back to the Cabinet when it is considering the recommendations of the advisory board". She did not say the board — or its secretary — will bring the information back. She said it will be the Attorney General. That statement deserves clarification. If the Minister will not supply it, let him say so. It is a fair point.
I am not withdrawing the comment of the Minister for Justice. I repeat what I said earlier. This matter was decided this morning.
Question put and declared lost.
I move amendment No. 9:
In page 10, subsection (2), line 28, after "office" to add "and the Board shall submit to the Minister the name of each other person who has informed the Board of his or her wish to be considered for appointment to judicial office".
The purpose of amendment No. 9 is that as I understand it — the Minister will correct me if I am wrong — there are two situations in which the board communicates a recommended list of people to the Government. One is where at least seven people have applied and the other is in circumstances where fewer than seven people have applied. In circumstances where seven people have applied, there is no obligation on the board to give to the Minister the list of names of everybody who has applied, but when fewer than seven have applied, there is an obligation on the Minister or the board to give the list of everybody who applied to the Minister. I cannot see why there should be a difference. It is quite obvious that the Minister should be entitled to know the name of everybody who has applied, regardless of whether they are recommended.
Did the Senator read the Bill before he put down that amendment?
I did but I may have missed something.
It appears the Senator has. I draw his attention to section 16 (2):
Subject to section 17 of this Act, on a request made by the Minister the board shall—
(a) where a judicial office stands vacant, or
(b) before a vacancy in a judicial office arises,
submit to the Minister the name of each person who has informed the Board of his or her wish to be considered for appointment to that judicial office and the Board shall recommend to the Minister at least seven persons for appointment to that judicial office.
Amendment, by leave, withdrawn.
Acting Chairman
Amendment 10 to section 16. Amendments No. 10 and 11 are related and may be discussed together.
I move amendment No. 10:
In page 10, subsection (3), line 30, to delete "character" and substitute "general suitability".
The legislation mentions the professional qualifications, experience and character of the persons the board is to recommend under the section and the words "character" and "temperament" are used. The effect of these two proposed amendments is to take out the word "character" and leave in the concept of general suitability which I think is capable of including the notion of character although I am not saying that character is irrelevant. I will go further; in many ways character is an essential ingredient, but it is wrong and lacking in taste, if I can put it as finely as that, to include the notion of character checks on anybody, especially in a Bill. It is over the top, lacking in finesse, and it leaves open the possibility that there could be fairly petty discussions on what could be minor peccadilloes or aspects of people's personalities, so in general I find the inclusion of that word slightly offensive, draconian and over the top. The concept of general suitability would adequately cover the requirements of the Bill in this regard.
I do not understand this. I understood that it was a matter of principle that there should be no inquiries. The discussion we had earlier, particularly when Senator O'Kennedy was here, showed the Senators' strong objection to inquiries in relation to suitability on grounds of character and temperament. Now we are being asked to substitute "general suitability" because the other phrase is lacking in taste and finesse.
The purpose of these amendments is to remove the requirement of the board to recommend the name of a person to the Minister only if that person is, among other matters, suitable on grounds of character and temperament. I do not believe this is an unreasonable requirement. This board is charged with a very important function, to advise the Government in relation to the suitability of persons for appointment to judicial office which is one of the most important positions a person can hold.
Judges have great responsibilities and perform functions which affect the daily lives of individual citizens and the population as a whole. It is not unreasonable to require that the board satisfies itself as to a person's character and temperament before recommending him or her for judicial office. The section obliges the board to form an opinion on a person's character and temperament. The board is specifically empowered, under subsection (1), to request the person concerned to provide it with such information as it may require about that person, including information relating to their character. On balance, I prefer to have this requirement included in the Bill and I regret I cannot accept the Senator's amendment.
Acting Chairman
Is the amendment being pressed?
Yes.
Amendment put and declared lost.
Amendment No. 11 not moved.
Section 16 agreed to.
NEW SECTION.
I move amendment No. 12:
In page 11, before section 17, to insert the following new section:
"17.—(1) The Minister shall, in appointing persons to the Board pursuant to section 13, subsection (2) (c), ensure that not fewer than one of the persons so appointed is a woman and not fewer than one of the persons so appointed is a man.
(2) In recommending to the Minister the names of persons for appointment to judicial office pursuant to section 16, the Board shall ensure that not fewer than one of the persons whose names are so submitted is a woman and not fewer than one of the persons whose names are so submitted is a man.".
I move this amendment on behalf of Senator Honan. The Government is committed to gender equity wherever possible in relation to the membership of boards. I do not expect the Government to appoint the Judiciary on a gender basis but I suggest that a gender basis is taken into account when the board is established. I hope Senator Honan will be permitted to reintroduce the amendment on Report Stage.
While I strongly support the objective the Senator is attempting to achieve, I cannot agree with the means adopted to do so. The difficulty I have with the first part of the amendment is that the Minister would be required to ensure that one of her three nominees is a man or a woman. I am concerned about this because five of the ex officio members of the present board are males, the Chief Justice, the President of the High Court, the President of the Circuit Court, the President of the District Court and the Attorney General. The Law Society and the Bar Council will also be entitled to nominate a practising solicitor and practising barrister, respectively, for appointment to the board.
The Minister already stated in the Lower House that she will request that these bodies have regard to the Government's policy in relation to gender balance when selecting their nominees. The Senator's amendment would limit the Minister's discretion when it came to making her appointments to the board. Given that so many members of the board will be males, it is important that the Minister should have as wide a discretion as possible when nominating members so that the board reflects a proper gender balance.
With regard to subsection (2) of the amendment, the inclusion of a man or a woman in the list of recommended names submitted to the Minister would depend, not upon their suitability for appointment — based, for example, on their experience, qualifications or competence — but would be made on grounds of sex alone. This is a complex legal area which raises constitutional questions, particularly in regard to a person's constitutional right to be treated equally. I understand there are doubts in relation to providing for a quota in employment based on sex. I also understand that the Minister for Equality and Law Reform is reviewing the employment equality legislation with a view to introducing proposals for changes in this area. I further understand the European Court of Justice handed down a recent judgment relating to the area of employment equality. This judgment only became available in recent weeks and its implications are still under consideration.
There are also a number of further difficulties with the amendment. Subsection (4) deals with cases where fewer than ten persons, now seven, inform the board of their wish to be appointed or where the board is unable to recommend at least seven persons for appointment. In such a case the board is required to recommend the name of each person who has informed the board of their wish to be appointed. If there were only three such persons, who were either all males or females, the board would be prohibited from making any recommendation. I hope the spirit of my reply will provide the Senator with the assurance she requires.
Like J.K. Galbraith I often talk about "the slow conversion of the human heart", which sometimes must be given an impetus. I believe that Senator Honan was attempting to introduce a pacemaker to the debate. The judgment of the European Court of Justice in relation to positive discrimination must be taken into account. However, I believe that Senator Honan tabled the amendment to place some emphasis on the issue of gender balance. It would not be desirable if people without merit were put forward for appointment. As a former President of the National Women's Talent Bank, I assure the Minister that we can supply the names of many eminently suitable law graduates for these positions.
I am aware that the Minister will accept the spirit of the suggestion, which is most important. The Minister for Education has, after all, put forward similar objectives within the university Bill. I am sure that all Government Ministers are working in the same spirit.
Amendment, by leave, withdrawn.
Sections 17 to 19, inclusive, agreed to.
SECTION 20.
I move amendment No. 13:
In page 11, lines 46 and 47, to delete "for the purposes of this Act", and substitute "to the Government".
We have, at last, reached the confidentiality provision. I believe Members will agree this is very important in ensuring that people's names and reputations do not become the subject of discussion among the general public and the legal fraternity when they offer themselves for judicial office. Section 20 (1), except for the purposes of this Act, is vague. The earlier sections permit consultations with third parties, etc. The board has authority under this legislation to do so. However, where people are permitted to disclose confidential information, for the purposes of the Act, in a general way, I believe that too large a licence is being created.
The only rationale for the publication of the proceedings of the board is in providing advice to the Government. The Minister of State indicated that the board itself will decide and organise the communication of such information to the Government. He refused to clarify the remark that the Minister for Justice made in the Dáil in relation to the Attorney General, that the Attorney General will be responsible for communicating information to the Cabinet when it is considering the recommendations of the advisory board. Is that for the purposes of this Act? I submit that it is not. The Minister of State indicated it is the board's function to organise such communication. Accordingly, the Attorney General has no role in communicating that information to the Government. It is the responsibility of the board.
It would be better and tighter if the Government was the only body to which information on the proceedings of the board could be disclosed and that such information would consist of the submission of names to the Minister. In that regard, I am not sure what the Minister meant when she said "the information". I must take note of her contribution on Second Stage because I do not know what she meant by it. She seemed to be implying it meant information which was outside the ambit of the recommendations of the board. Maybe I am weighing too heavily on it. I do not know. Unfortunately, the Minister is not here to enlighten me but she said that the Attorney General will be the person who will bring the information back to the Cabinet when "they", and I do not know who "they" refers to but I presume it is the Cabinet, are considering the recommendations of the advisory board.
Unless the Minister has a strong objection, it would be tighter and more confidential if the Bill specified that the proceedings of the board and their communications can be disclosed only to the Government. If the Minister was not happy with my wording, instead of deleting "for the purposes of this Act" he could use the words "for the purposes of this Act, to the Government".
The Senator denied this morning he was filibustering. If he is not filibustering, he keeps repeating points which have been made already, which I thought were resolved and which, as far as this Bill is concerned, have already been decided.
Section 20 of the Bill provides that all proceedings of the board and all communications to the board shall be confidential and shall not be disclosed except for the purposes of this Act. The Senator's amendment would seek to change that wording to provide that communications shall not be disclosed except to the Government. I can appreciate what the Senator is trying to achieve but his amendment might widen the number of persons to whom the board would have to disclose information. He talked about too large a licence but he would be contributing also to that too large a licence. It occurs to me that the effect of the Senator's amendment might be to require the board to disclose details of its proceedings and communications received by it to the Government. I do not believe the provision needs to be as wide as this.
The Bill gives powers to the board in section 14 to adopt such procedures as it thinks fit to carry out its functions and the Senator's amendment may be somewhat inconsistent with that section. In addition, section 16 requires the board to provide the Minister with particulars as to the education, professional qualification, experience and character of the persons whom it recommends for judicial appointment. However, the board is not required to disclose its proceedings to the Government under the provisions of section 20 and I do not think it should be required to do so. We are establishing a body separate from the Government to give advice to the Government on judicial appointments. I believe it should be free to settle its own procedures and, given the membership of the board, I think we can safely rely on it to carry out its proceedings in a proper and fair manner.
From that, the Senator will gather I am convinced his amendment is inappropriate and, for the reasons given, I ask him to withdraw it.
I thank the Minister for his reply. I am prepared to concede that my amendment might have the opposite effect in that extraneous material might have to be disclosed to the Government but I am sorry the Minister is showing such inflexibility. The other way to achieve a better result is to add, after the words "for the purposes of this Act", the words "to the Government". In other words, the only communication of material which could be made to the Government would be material which the board had considered for the purposes of the Act but it would only be to the Government.
Acting Chairman
That is not what is in the amendment.
I am aware of that. As I said before to the Minister——
Acting Chairman
Stick to the amendment.
——there has been a process in this House whereby the Minister for Justice, in the debate on the Criminal Law (Incest Proceedings) (No. 2) Bill, 1995, took on the intent of what was intended if it had a good effect. I concede that what the Minister said is correct. Does he concede that adding the words "to the Government" after the word "Act" might help strengthen and tighten what we all seek to achieve?
I do not.
Amendment, by leave, withdrawn.
I move amendment No. 14:
In page 11, after line 47, to add a new subsection as follows:
"(2) A person who is in breach of this section shall be guilty of an offence under the Official Secrets Act, 1963, and shall be liable accordingly."
It is important that people observe the confidentiality provisions of this Bill, and we do not have to restate the reasons for that, but the Bill has failed to provide a sanction for those who might breach those confidentiality provisions. There are, of course, some possibilities that there might be a duty of care that members of this board would have to people who came before it. They are probably not liable in negligence. They are certainly not liable in contract so we are in a position where there is no liability or sanction attaching to a person who breaches the confidentiality provisions of this Bill.
In order to safeguard the confidentiality provisions of the Bill, it should be made an offence contrary to the Official Secrets Act, 1963 to be in breach of those same confidentiality provisions. The amendment speaks for itself and, other than the Minister having a good reason for not introducing a sanction, I do not see why this amendment should not be accepted.
I have listened carefully to what the Senator had to say but I do not think it necessary to go as far as he suggests. What we are doing is establishing a board which will include some of our most eminent and respected judges and also the Attorney General. This is a board charged with the important function of identifying persons who are suitable for appointment to judicial office and making recommendations to the Government in that regard.
Section 14 provides that the board may adopt such procedures as it thinks fit to carry out its functions. I think it is better to leave it to the board to make its own arrangements in relation to its procedures, including matters relating to confidentiality of communications. The Bill makes it clear that the proceedings and communications of the board shall be confidential and may only be used for the purposes of the Bill. I am not convinced that we need go so far as to provide that persons who breach the provisions of section 20 shall be guilty of an offence.
Of course, a member of the board who breached a confidence which resulted in an applicant to the board suffering loss or damage would leave himself or herself open to an action in civil law and the payment of damages. This, I believe, will also act as an additional deterrent to any member of the board who might be tempted to breach a confidence.
Apart from these matters, I am advised there are some technical difficulties with the amendment. For example, there are a number of offences provided for in the Official Secrets Act, 1963 and I think the amendment would have to indicate which offence was committed.
I would also be concerned that the scope of the amendment is too wide. It would seem to prevent an applicant to the board from making available information, which he or she had willingly and voluntarily made to the board in support of his or her application, to another person — and I am sure that is not intended. It would be a poor reflection on the ex officio members of the board, which will be chaired by the Chief Justice of the day, if the Oireachtas had to provide for an offence under this section.
In all the circumstances, I ask the Senator to withdraw the amendment.
I would like to make a number of observations on the Minister's comments about which I am unhappy.
The Minister said that if there was a breach of the confidentiality clause, an aggrieved person would have an action in law for damages against the person who had breached the clause. Has specific legal advice been taken on that matter? Has the Office of the Attorney General advised that this is the case?
The reason I find that approach disappointing is because it puts the onus on the aggrieved person to take a civil case. The State, to a certain extent, is washing its hands of the problem and seems to be saying that while there may have been a breach of this legislation, the aggrieved person must look after it themselves. Surely there is an obligation on the State to enforce rules and procedures on boards it has set up if there is the possibility of confidential information etc. being leaked? Should there not be some obligation on the State to protect these people? The best way to do that is by including some form of sanction.
I agree there could be some legal and technical difficulties with the sanctions proposed by invoking the provisions of the Official Secrets Act. If the Minister's principle was overcome and he accepted that the Government should provide a sanction for breach of confidentiality, could he not draft such a provision so as to satisfy the requirements of the Official Secrets Act? If the Minister's answer is no, then is he rushing this Bill through for a particular purpose.
I have asked three specific questions and while I acknowledge what the Minster said, I would like answers to them.
How can any Member suggest the Government is trying to push this Bill through and not want a debate after all the filibustering in which Senator Mulcahy has been involved all day? To even suggest this is noxious and I am outraged to hear it.
It is outrageous.
This is only to allow Donal Barrington to be promoted.
To answer Senator Mulcahy's first question, of course, a member of the board who breached a confidence which resulted in an applicant to the board suffering loss or damage would leave himself or herself open to an action in civil law and to the payment of damages. This is the legal advice the Department received.
I thank the Minister.
What was Senator Mulcahy's second point?
If the Minister and I are going to trade insults here——
Put the question, Senator.
My speech was clear.
Senator Mulcahy has accused me of refusing to answer.
The Minister claimed the Senator was filibustering.
What is your second question, Senator. You asked the Minister three questions and he has answered the first one.
Will the Minister accept, given that it is the legal advice to the Department that an action would lie, that the State is to an extent washing its hands of its responsibility? Since the State is setting up these structures and this confidentiality requirement, surely it is not good enough to say to the aggrieved person that they should look after that requirement if it has been breached? Surely there is an equal obligation on the State to enforce this provision by sanction?
I am satisfied that section 20 covers this matter. All proceedings of, and communications to, the board shall be confidential and not be disclosed except for the purposes of this Act. I do not believe sanctions are required. It would be a poor reflection on the ex officio members of the board in particular — this board will be chaired by the Chief Justice of the day — if the Oireachtas had to provide for an offence under this section. It would also be a poor reflection on those eminent members of the board if we sought to impose sanctions on them to carry out these responsibilities under this section.
The Senator's third question related to legal and technical difficulties. I disagree with the Senator on this matter and I made the point already. The State is not washing its hands of its responsibility. Section 20 makes that responsibility clear.
The Minister attempted to reply by saying that we did not need a sanction to cover the actions of such eminent members of the board. I accept that those people will be eminent and trustworthy. However, the same will not necessarily apply to the three persons appointed by the Minister or to the person nominated by the chairman for the time being of the Bar Council of Ireland or the Incorporated Law Society of Ireland. They may not necessarily be of the same standing and integrity as the judicial members of that board or of the Attorney General and that is why a sanction is needed. Would the Minister also accept that, for want of a better phrase, a sanction may be needed for lay people?
In his amendment, Senator Mulcahy does not differentiate between the ex officio and other members. These sanctions are to apply to all members of the board. The Senator made a second point about the three members appointed by the Minister.
I have already explained the qualities the Minister will take into consideration when making these three appointments. It would be very difficult to envisage that the Minister would appoint people who would not be of approximately the same calibre, integrity, etc., as the eminent members already on the board. We are speaking of people such as the Chief Justice, the President of the Bar Council and the Attorney General. It may be taken for granted that, when appointing these three people, the Minister will take into consideration, not only the job they will have to do, but who will serve on the board with them.
It is contradictory that the Senator is now emphasising the importance, integrity and character of these three people, whereas earlier he was arguing that such matters as character and temperament should not be taken into consideration. At the very least, it is inconsistent. It is not my intention to accept the amendment.
It is ironic that the Senator debated this at length, because when his own Minister produced a similar Bill, there was no clause on confidentiality. It was not relevant, and was not even mentioned in the 1994 Bill.
Amendment put and declared lost.
Section 20 agreed to.
Sections 21 to 24, inclusive, agreed to.
SECTION 25.
Question proposed: "That section 25 stand part of the Bill."
I am in favour of the section. From my experience as a barrister I know that court time is wasted by non-contentious and uncontested matters and motions. Transferring many of these items from the High Court to the Master of the High Court will go a long way in expediting the work of the High Court.
We perhaps need more than one Master of the High Court.
Or Mistress.
I can see much work being put on the shoulders of the Master of the High Court. Most motions are taken on a Monday morning, and it is frequently the case that the list is so large it is divided between two High Court judges, which means that two judges are hearing uncontested and one sided motions, in addition to contested motions, especially motions for judgment by consent or in default of an appearance, but of the type now being transferred to the Master of the High Court. There will, therefore, be an enormous amount of work for the master.
There appears to be an oversight in the section, and if the Minister is not rushing the Bill through he may amend the Bill, if necessary. Section 25 (1) states: "... in all such applications ... for judgement by consent or in default of appearance of defence ...". However, motions to dismiss for want of prosecution are uncontested on many occasions. These are cases where one writes letters to the other side of the proceedings asking them to bring on their proceedings as they have been left in abeyance. The frequent result is an uncontested motion before the High Court. Will the Minister consider it appropriate that a motion to dismiss for want of prosecution should be added to the list of new powers to the Master of the High Court pursuant to section 25 (1)?
No.
I thank the Minister for the considered thought he has given my proposal.
Question put and agreed to.
Sections 26 to 46, inclusive, agreed to.
SECTION 47.
Amendments Nos. 15 and 17 are related and may be discussed together.
May I move amendment No. 15 in the name of Senator Honan?
Has she give you her permission to do so?
No.
Then you may not do so.
Amendment No. 15 not moved.
I move amendment No. 16:
In page 22, subsection (1), line 20, to delete "and the High Court" and substitute "High Court and the District Court".
There is a mistake in the wording of the amendment. The intention is to bring the age of retirement for all judges into line at 70. As I understand the proposals contained in the Bill, the age of retirement for Supreme Court, High Court and Circuit Court judges will be 70, but for District Court judges it will be 65, although they will be able to apply for extensions,
Why should a District Court judge have to retire five years earlier than a judge of the Circuit, High or Supreme Courts? Surely it is time that there was equality of treatment between all judges, no matter which court they are on? There can be no rationale for distinguishing between District Court judges and other judges in terms of retirement. Senator Honan is not here to move her amendment but she informed me that several people had asked her to voice this concern. If the Minister agrees with the principle perhaps he could provide a suitable amendment to the Bill.
The amendment would provide for a uniform retirement age of 70 for all judges appointed after the passing of the Act. The retirement age for District Court judges is 65 but there is provision for extension up to the age of 70. There has probably been only one instance of such an extension being denied so, effectively, the retirement age is 70. We prefer to leave the situation as it is. Under the Act judges appointed to the Supreme Court and the High Court will be required to retire at 70 years of age. This is consistent with the position in the Circuit Court where all judges retire at 70 years of age. Under section 2 of the Courts Act, 1949, a judge of the District Court may obtain annual extensions of retirement age from 65 to 70.
The Minister merely said the Government wishes to keep the situation as it is. He did not provide any reason a District Court judge should be forced to undergo a different procedure from other judges. I am asking the Minister for a cogent reason one judge should have to retire at 65 or get extensions and other judges can continue until 70.
It is unbelievable that we are extending to 72 the age when these people retire.
We are reducing it to 70.
A garda has to retire at 57. These judges should be treated like everybody else. Are they gods who cannot be challenged in any circumstance? That appears to be the case. It is time we began to lower the retirement age. If one looks at some recent judicial decisions one can see that 72 is perhaps five or six years too old.
Amendment put and declared lost.
Amendment No. 17 not moved.
Question proposed: "That section 47 stand part of the Bill."
I am extremely disappointed the Minister has failed to give a real argument as to why District Court judges should have to retire at 65 whereas other judges retire at the age of 70. It is the custom when arguing a position to give a reason for it. All the Minister said was——
We already dealt with that when we discussed the amendment. If there are other points in the section which the Senator wishes to discuss, by all means do so.
I accept the amendment has been lost but I am entitled to say that the section as it stands is a form of discrimination against District Court judges who are forced to retire at 65 and must go, cap in hand, once a year for five years to seek extensions. Subjecting them to a yearly review in itself can be viewed as compromising their independence. Does this Government think less of District Court judges than other judges? The Minister has failed to give a rational explanation.
That was the effect of the Senator's amendment and that has already been dealt with.
The Minister's reply was totally inadequate.
That matter has been dealt with.
It is not doing honour to this House not to answer the point from an intellectual point of view.
The Chair has no control over the Minister's reply.
Perhaps when future judicial provisions are being introduced this situation could be looked at. It seems invidious that District Court judges are in a different situation from other judges. I can understand why the Minister does not want to do anything about it at present. However, there is a large body of opinion that the legal age for retirement should be reduced. This cannot be done immediately because people who might consider going forward for judicial appointments are cognisant of the fact that if they went for such an appointment now they would not have 15 years service before they would retire.
Over the next few years the Supreme Court, the High Court and other courts could be brought into line gradually so that if it is deemed reasonable that the age for retirement for all judges should be reduced to 69 or to 68, for example, this could be done under the various Bills introduced from time to time. It is invidious that District Court judges should have to go before some form of scrutiny, although this is invoked very rarely. However, if 20 per cent of the Supreme Court is deemed to be incapable of fulfilling their positions properly that means it applies to only one judge whereas 20 per cent of the District Court would mean ten judges. This is a serious situation and I would be grateful if the Minister could say that it will be looked at in the future and there will be an effort to get all judicial appointments into line. Reducing the retirement age for the Judiciary would require that due notice is given because barristers and solicitors will have to have sufficient service for pension rights and so forth.
Senator Mulcahy accused this Government of discriminating against District Court judges by making them retire at 65. This is governed by the 1949 Act which has been the law under successive Governments.
Change it.
I am pleased to accept Senator Henry's suggestion. We will look at it in the future in the context the Senator has suggested.
I thank the Minister. The rational way to go forward is to bring all these into line at the same time in the judicial provisions that are introduced from time to time.
Question put and agreed to.
Section 48 agreed to.
SECTION 49.
Question proposed: "That section 49 stand part of the Bill."
I welcome the compromise the Minister was able to accept with regard to wearing wigs. The Minister originally intended to ban the wearing of wigs heretofore worn or any other wig of a ceremonial type. She acceded to an amendment which has the effect of making the wearing of wigs in court voluntary. Under this section any barrister or solicitor appearing in court will be entitled to wear or not to wear a wig as he or she chooses.
I support the various position papers adopted by the Bar Council on the wearing of wigs. The Council supported the amendment relating to wigs for the following reasons. A distinctive court dress is required in virtually every European jurisdiction. Wigs give equality of appearance to all barristers. There is no evidence that the public or court users want wigs abolished.
The Senator should ask Deputy O'Dea about this.
Deputy O'Dea made statements about this in Limerick. He is a crusader on the issue.
There is no evidence per se that wigs are intimidatory. Before this compromise was introduced, barristers introduced a voluntary code for the wearing of wigs in court.
Deputy O'Dea continued to campaign on this matter. He wanted wigs to be abolished.
So do I.
I compliment the Minister on her positive adoption of a compromise proposal. To have banned wigs completely would have been heavy handed and anti-libertarian. A voluntary code is much better.
I am slightly confused about the ruling of the Minister on this. Perhaps the Minister of State can elucidate it. If a judge says "wigs off" must everyone take off their wigs, or is it up to the individual?
In the hospital in which I work, a policy has developed of not wearing white coats unless this is necessary for certain procedures or for the safety of patients and doctors themselves. This policy applies more to consultants than to junior doctors because the latter are more involved in the day-to-day practical application of treatment. This policy has had the good effect of changing the "them and us" situation. In clinics we conduct, if practical procedures are not carried out, many of my colleagues and I do not wear white coats. We do not feel any lack of status or respect as a result. Few doctors would say they feel they are in a more authoritarian position if they wear white coats. Most doctors feel that it is their professional competence and not the wearing of white coats which is important.
I am delighted that the Acting Chairman does not need to wear a wig. Future speakers of the House of Commons will find it difficult to wear wigs because of the control exercised by the present Speaker, Ms Betty Boothroyd of the long flowing locks. She does not need the status of wearing a wig.
I feel this section should be either for or against wigs. My view is that wigs should be abolished. They were originally worn to cover dirty hair and fleas.
This may still be necessary.
Many of the wigs worn in the Four Courts are not original but are passed on and look dirty and filthy. I have nothing against barristers who want to wear them doing so, but the Bill should clearly state whether wigs should or should not be worn. The Government has bowed to the legal profession and accepted a compromise
With the support of the Senator' colleagues.
I am speaking for myself. This section is peculiar. It will result in barristers for one side in a court case wearing wigs and barristers for the other side not doing so. The Bill should either take the bull by the horns and abolish the wearing of wigs — a practice begun by the British about two centuries ago — or not deal with the issue.
I spoke about this on Second Stage. Wearing wigs is a relic of history and the Minister should have banned it completely. It does nothing but serve the ego of barristers and puts them on a pedestal which they have not earned and do not deserve. It does not help them do their job and does not help the people they represent to communicate properly with them. It has not served justice in any sense of the word and we should not continue to allow barristers to wear wigs simply to give them an air of importance. This is not a sufficient reason to allow this relic of history to be preserved.
I am afraid I have a copy of the Bill as amended by the Dáil Select Committee on Legislation and Security. I was about to rise to congratulate the Minister for insisting that wigs should not be worn, but I have now discovered that this is not the case. I do not care at whose behest the Bill was changed. We have discussed the Bill since 10.45 a.m. Worthwhile amendments tabled in this and the other House could have been taken on board and we discussed the position of the Attorney General and the people who are to be appointed to the Judicial Appointments Advisory Board. However, the only amendment accepted by the Government related to wigs. This says a great deal about the response to the attempts of the Opposition to improve the Bill.
It was obviously lobbying from within and without the Government which succeeded in having wigs retained, and this is a disgrace. Senator Gallagher and I concurred at various points during the debate, while I did not agree with Senator Mulcahy. The Government should have stuck to its guns on this issue. Separate dress and the wearing of what Senator Lydon described as flea ridden wigs is nothing but snobbery and is nonsense.
There seems to be differences of opinion between Senator McGennis and Senator Mulcahy.
Fianna Fáil is a democratic party.
This indicates there are different views on this subject. Senator Mulcahy praised the Minister, but I am not sure if she will appreciate this. Like myself, she would prefer him to be on the other side with regard to this and other matters. Senator Henry referred to Betty Boothroyd and speculated whether future Speakers of the House of Commons will go back to wearing wigs. It would depend on how concerned some of them might be about the lack of flowing locks, as wigs would cover the baldness. Senator Lydon suggested that the wigs were used to cover dirty hair and fleas. I do not mind that, as long as they keep their fleas to themselves. Section 49 states that a barrister or a solicitor when appearing in any court shall not be required to wear a wig. They do not have to wear a wig if they do not want to.
They are all consenting adults.
If someone got an invitation to court, rather than a summons, it might say the dress is optional as regards wigs.
Question put and agreed to.
SECTION 50.
Question proposed: "That section 50 stand part of the Bill."
I welcome this section because it enables the Master of the High Court to award interest pursuant to the Courts Act, 1981. As practitioners are aware, this is a great improvement. Frequently, when one obtained a judgment for a liquidated sum in the master's court or in the office of the High Court, one could not be awarded interest because it was a judicial function which had to be awarded by a judge. This makes it possible for somebody who is trying to recover a debt or a liquidated sum to get an award for the principal sum and an award of interest pursuant to the Courts Act, 1981, in the one proceeding. This is a great advance. People always had trouble seeking to recover debts or liquidated sums, but now they will be able to get their money and their interest back.
Question put and agreed to.
Sections 51 to 53, inclusive, agreed to.
First Schedule agreed to.
Second Schedule agreed to.
TITLE.
Question proposed: "That the Title be the Title to the Bill."
The Title states: "... to prohibit the wearing of wigs by barristers or solicitors in court". I am sure the Minister would not like an inaccuracy in the Title of the Bill.
The Senator should have tabled an amendment. This is not the time to discuss that matter.
It is an error.
The Title from the Bill as originally drafted may have been transposed in the printing on to the amended version. It would be a bad day's work if an incorrect part of the Title was put into the final Act. I am sure my colleagues agree with me. We should try to find a way to rectify this situation.
I am advised that the Bill prohibits the wearing of wigs by barristers or solicitors in court in certain circumstances. This provision is contained in sections 53 and 54.
The Minister should take this matter seriously. His reply is not good enough.
Question put and agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
Senator O'Kennedy said that neither party, including my own, should be proud of the origins of this Bill. We have said throughout this debate that, as far as it relates to setting up a Judicial Appointments Advisory Board, it is not necessary. We have said time and again that if it is not broken, why fix it? Although we helped to put this Bill through the House, I am disappointed that none of the amendments tabled by us was accepted in the letter or the spirit by the Minister. He is prepared to accept an incorrect Title to this Bill.
I thought the Senator was only going to make a few comments.
Acting Chairman
Senator Mulcahy asked to make a few brief comments, but the Bill has been passed.
I am entitled to make a few final comments. The Minister did not think it was necessary to take on board any suggestions made by this side of the House.
Acting Chairman
The House has passed the Bill. You asked to make a brief comment, so there is no point in discussing it again.
We were happy to have a constructive debate in the Dáil with the Minister for Justice and she was prepared to enter into that spirit. Yesterday I was informed by the Minister of State at the Department of Justice, Deputy Burton, that a similar spirit would apply here. I am sorry this Minister of State, Deputy Currie, did not enter into the spirit kindly articulated by Deputy Burton.
The introduction of this legislation was a matter of urgency a year ago. The previous Bill was not perfect, it was a concocted solution to a situation which arose as a result of a fit of pique by the Tánaiste and the Labour Party. This Bill contains good elements and the Minister will acknowledge that Members on this welcomed many of its provisions.
Members had an opportunity to leave the House at some point during the debate, if only to answer a call of nature. The Minister did not have this opportunity except when the sitting was suspended and the House was dealing with other legislation. It is not in the Minister's interest or that of the proper processing of legislation that the Bill was dealt with in this fashion. The Minister suggested we were trying to filibuster but he will acknowledge that was not the case. We were attempting to improve the Bill.
I did not say the Senator was filibustering.
Perhaps the Minister meant my colleague.
Acting Chairman
Senator McGennis, a brief statement only please.
The Bill contains some good elements and some important things will occur as a result of its enactment. However it could have been much improved but for the Christmas rush or whatever the reason for the urgency. When we were on the Government side, the leader of the Opposition repeatedly said Bills should not be rushed through the House before recesses. It does not make for good legislation. Opposition Members of both Houses put forward constructive amendments which would have strengthened the Bill.
I raised queries about aspects which may cause problems and it is a shame my suggestions were not taken on board. The appointment of additional judges to try to deal with the backlog of cases is welcome, as is the proposal for training judges. I spoke against my colleague's amendment regarding the temperament and suitability of candidates for judicial appointment. The Bill is flawed and probably will not stand the test of time.
Few things are more important than justice and the workings of the court system. Irrespective of flaws identified by Members on this side, the Minister considered the amendments put down and said he will take note of various points. If any deficiencies are found I hope they will be rectified in future legislation relating to the courts. As Senators Mulcahy and McGennis said, the introduction of Bills, such as the Courts and Court Officers Bill, is rare and they are most important.
I congratulate the Minister and thank him for dealing with the Bill for many hours. It is important legislation and we look forward to the report of the commission examining the efficiency of the courts. This will be a development in terms of the Bill and will provide an opportunity for the Houses of the Oireachtas to make further improvements. The Bill is the first substantial improvement to the court system and the first time any Minister or Government has made an effort to examine the serious situation in that regard. The Bill represents progress in that area and this must be welcomed. We had no problem going through the Bill in detail for as long as was necessary to ensure it was correct.
I compliment the Opposition, particularly Senators Mulcahy and McGennis, for their spirited, detailed, vigorous and at times abrasive but always constructive contributions. Theirs was a valuable contribution and I assure them there was no attempt to steam roll the Bill through the House. We were prepared to sit as long as necessary. The Bill is better as a result. It is a good Bill, which is required. In common with the Opposition Senators I do not like all Stages of a Bill taken in two days. However, this is the only occasion on which it has happened since I became Leader. There are other reasons the Bill was required at a particular time but I take seriously the point made by Senator McGennis. It is fair and not something over which I gloss.
I compliment the Minister for his good performance in the House. It has been a long day and perhaps we all became a little frayed at the edges once or twice. However, that is the nature of things and we will go and have a pint together afterwards. I also compliment the officials who put a great deal of hard and detailed work into the Bill, which goes a long way towards radically improving the judicial system.
I thank the Senators for their complimentary remarks. I also join in the tribute to the officials who worked so hard and who, like myself, could do something else in terms of feeding the inner man. However, that will be done soon.
Question put and agreed to.