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Seanad Éireann debate -
Wednesday, 20 Jun 2018

Vol. 258 No. 12

Judicial Appointments Commission Bill 2017: Second Stage

Question proposed: "That the Bill be now read a Second Time."

I am very pleased to be back in the Seanad. After the pleasant experience yesterday evening, I expect that the Seanad will continue to speak with one voice as far as this important legislation is concerned, having regard to the goodwill generated by yesterday's debate. I am pleased to see it continued into this morning and I believe it will continue for the foreseeable future as far as this legislation is concerned.

Now, Senator McDowell, no contrary behaviour.

Democracy will prevail.

As it always does.

Uno duce, una voce.

I am dying to see Fine Gael support a Bill like this.

Please allow the Minister to speak.

I have no doubt but that Senators will be aware that the Bill, which had its Second Stage reading in the Dáil last summer, has been thoroughly debated and quite comprehensively amended during its passage through the Lower House. Due to mainly procedural challenges on Report Stage, a significant number of official amendments could not be moved. I intend tabling these mostly technical provisions before Senators at the appropriate Stage.

Let me be clear, however, that there are some substantive changes that I want to reinstate in the Bill which were an integral part of the Bill as published. I do not wish in any way to gainsay the will of the Dáil in this matter or indeed the will of Seanadóirí, but there are some critical issues that the Government is committed to legislating for, not least the provision for a lay majority on the commission. These are proposals which I want this House to have the opportunity to consider in its own right. I will return to this and other issues presently.

The Bill provides for a number of very substantial changes which I believe represent a defining reform, providing for a modern, comprehensive and fit-for-purpose system to deal with judicial appointments in the State.

These are innovative reforms of the judicial appointments process that has been operating for the past two decades or so. The Bill also sets out a progressive and forward-looking approach to allow for ongoing improvement and updating of the appointments arrangements to best suit the justice, social and economic environments as they evolve.

At the end of 2013 and going into 2014, the then Minister for Justice and Equality set about bringing our system of judicial appointments in line with international best practice. An innovation in this area was to engage in a process of public consultation and to get the views of stakeholders on the ideal model of judicial appointments and what it might look like to best cater for the needs of the judicial and courts processes in the 21st century. Themes in that consultation process included: the need to continue to protect the independence of the Judiciary; the role of the Judicial Appointments Advisory Board; eligibility issues; and diversity among our judges and the Judiciary. The Bill reflects the outcome of that process and the research and policy analysis which followed it in my Department. Reform does not imply that the present system has impaired the quality, diligence and integrity of the judicial function, which has contributed greatly to the success of Ireland as a modem democratic State. I do not believe anyone would argue with. Under this Bill, however, the appointment system needs to be expanded, modernised and resourced.

The provisions of the 1995 Courts and Court Officers Act, as amended, were significant at the time, introducing a new independent element to the judicial appointments process. Article 35.1 of the Constitution provides that judges are appointed by the President. Under Article 13.9, such power is exercisable and performable only on the advice of the Government. Nothing in the Bill adds to or takes away from that position. At the same time, the onus rests on us to continuously assess the need to update our legislative arrangements and in this case the appointments system to ensure they are at all times fit for purpose. We are all agreed that it is timely now for the Oireachtas to legislate for the systems and procedures that are needed to support decision-making in the context of these constitutional arrangements and functions.

It was progressive in 1995 to bring lay people into the role of identifying persons suitable for appointment to judicial office and to bring in a more consultative and transparent approach to the process of appointing judges. From this standpoint, after more than 20 years of this experience, notwithstanding the outstanding work of the JAAB and the high calibre and quality of our judicial appointees, the arrangements now seem limited in a number of respects. The Bill brings the system to a new level of openness and effectiveness. The JAAB deals with first-time judicial appointments only. These procedures are concerned with only one dimension of the judicial appointment process. The elevation of serving judges from one court to another is specifically excluded from the remit of the appointments board. There is in effect, therefore, no system at all, other than the Constitutional process in place to deal with this category of appointments, which can be significant appointments to senior positions in the Judiciary. In this regard, it is important to note that at every remove we have been particularly fortunate to be in a position to appoint the highest calibre of exceptional individuals. However, it not good enough in the Government's view that in this day and age there is no statutory process in place to address perhaps the most important appointments to any offices in our State. The requirements of transparency, accountability and good governance demand that we update our arrangements in the manner envisaged in the legislation. In consequence, the new commission will have a remit under it to deal with all appointments. That is a big advance and improvement compared to what we have now. The approach is in accordance with the views of the Judiciary.

In the Bill, as published, the Government's intention was to provide that the appointments process for the three most senior posts in the Judiciary, namely, Chief Justice, President of the Court of Appeal and the President of the High Court, would be subject to a variation of the general process. That variation was broadly similar to the arrangements deployed in the recent filling of the posts of Chief Justice and President of the Court of Appeal. However, a statutory basis for that did not find favour in the Dáil and the Bill was amended on Committee Stage to provide that the regular process for applications generally under the Bill will apply in the case of these three senior posts. I am considering how best to approach this matter and I welcome the views of Senators on how best to do so. We will have the opportunity to discuss on later Stages how best we might do that.

I wish to address the matter of recommended names. Where the appointments board has a role under the current arrangements in recommending persons for appointment, the board must recommend at least seven persons, if it can, to the Minister of the day. The legislation amends that radically. The Bill the Government published provided that three names should be furnished by the commission, if possible, in respect of a vacancy among the Judiciary. Where there are two vacancies, the Bill provides that five names would be provided by the commission. The new independent commission will, therefore, have a much more definitive and meaningful selection and recommendation function than currently pertains with the advisory board. The amendment made to the Bill in the Dáil in this respect enhances the determinative nature of the commission's work. Section 40 requires the commission to rank those names in order of preference. I have been advised that this is constitutionally permissible. There was a strong view in the 2014 submissions, including that of the Judiciary, that the slate of candidates presented to Government needs to be reduced significantly.

No dedicated resource was assigned in the legislation to support the appointments board over the years. It has fallen to the Courts Service to provide the resources necessary. It has provided the necessary financial, technical and administrative support to the board. I acknowledge this invaluable contribution to the process. However, the Government envisages the commission having a more substantial role than JAAB, not only in recommending persons for all judicial positions but in the longer-term development of procedures for appointment. I am convinced that the commission's work should be adequately supported. This is too important an area to leave with an undetermined resource. I am providing, therefore, in Part 5 for a commission office and director, which will cost approximately €500,000. This will not be a quango, but a lean, professional and independent organisation with a small but sufficient resource base to allow it clearly to stand on its own feet.

The three elements I have mentioned are significant - first, the expansion of the recommendation system to every judicial post in the State; second, the move to three recommendations in order of preference; and, third, a proper resource with a modest budget. They have been overlooked in a rush to criticism of the Bill in some quarters on the basis of other elements. I will address these as well.

I wish to deal briefly with the issue of membership composition. It is more than 20 years since the JAAB process was conceived in legislation. That was the first time the Government function in the matter was supplemented by an independent element in the process. It was the first opening to any scrutiny of the process and, at the time, it was an important move forward. The justice system now operates in a modern administrative environment. More transparent and participative approaches are apparent in public policy decision-making models here and on the international stage. In this context, the new commission will have a strong lay representation reflecting today's governance and participation models of public policy decision-making. This legislation is largely about getting the balance right between different contributions and interests. There is a discrepancy, effectively technical in nature, in the Bill regarding the number of members of the commission.

Section 10 provides that the commission shall have 13 members. However, the section otherwise goes on to provide for a membership of 16 persons. This arose as a result of an amendment being passed by the Dáil that provided for three additional members, despite the amendment to change the number upwards from 13 not having been successfully passed. The Ceann Comhairle explained in some detail how this came about. He made a ruling as to how several other amendments in my name could not subsequently be moved. My intention was to provide for the membership of one further layperson, subject to changing the stipulated number from 13 to 17, so that the commission will have a full complement and so provide for the fundamental aspect of the programme for Government which is the assurance of a lay majority.

It is now my firm intention to present those amendments to this House and to provide for technical and consequential matters. This had been my intention in the first instance in the Dáil.

A most significant change in the Bill as passed by the Dáil is to provide for the membership of all four court presidents as well as the Chief Justice on the commission. That is somewhat different from the published Government position, which accommodated these officeholders but within a different committee arrangement. I fully accept that what we have now is an improvement in this regard. We have a good balance of judicial involvement and lay involvement along with the involvement of the Attorney General and specific input from the Bar Council and Law Society. I am very pleased that the Dáil accepted the new role for the Public Appointments Service in selecting the lay members and the lay chairperson based on the very important criteria set out in section 12. The inclusion in the membership, following amendment in the Dáil, of a nominee of the Irish Human Rights and Equality Commission is positive.

The Government has consulted with the representatives of the judicial appointments review committee which is the senior Judiciary grouping tasked with making contributions to the change process. I have met the Chief Justice and all court presidents. It has to be said that very substantial and significant elements of the legislation are consistent with the views of the Judiciary. My predecessor, the former Taoiseach and Attorney General also met representatives of the Judiciary and listened carefully to their express opposition to aspects of the Bill and explained the Government’s policy position to them.

Of course, Senators will be fully aware that the Judiciary is opposed to having a majority of laypersons on the commission and a lay chairperson presiding over that commission. While I am grateful for the very substantial contribution senior members of the Judiciary have made in consultations, the Government does not agree with this and I am pleased that a lay chairperson is provided for, following the passing of the Bill by Dáil Éireann. The Government’s policy position is clear: the commission is proposed to have a lay chair and a lay majority but balanced by a very substantial judicial presence and by the presence of the Attorney General and the representatives of the legal professions. Every skill and brand of experience that will be necessary to continue and professionalise the selection of excellent judges will be represented with its own voice on this commission. There is little doubt that the experience, wisdom and expertise of the Chief Justice and other senior judges will, and should be, a first port of call in any deliberation of the commission.

Part 8 is important and breaks new ground. The commission, working through a procedures committee established under section 16, will have a remit to determine, in a consultative process, new procedures for judicial selection, and the skills and attributes required for the job. These procedures will reflect best-practice professional selection methods and processes. The procedures committee will be required to prepare a statement for approval by the commission, setting out the procedures for selecting persons for appointment and a statement of requisite skills and attributes that a person must possess to be suitable for selection.

Under Part 8, the committee will also have the ongoing role of reviewing the effectiveness of the selection system as well that of the functions assigned to the commission under the Bill. Two years after the commencement of the provisions, the committee will be required to prepare a report which may include any recommendation relating to the implementation of the Act. The commission will be required to submit the report and recommendations, together with any observations it may have, to the Minister. The work of the procedures committee will not, as has been suggested in some quarters, be the work of some over-elaborated or engorged element of bureaucracy, but will deliver to the new commission a simple and specialised mechanism to design modern selection processes into judicial selection. These will be processes and standards similar to those which are in play for all senior public appointments in Ireland and which are already in play in judicial selection processes in the neighbouring island and elsewhere.

The new system of appointments will be open and transparent, as illustrated by some examples from the Bill. The new commission chairperson will be accountable to an Oireachtas committee under section 22 for the general administration of the commission as envisaged in the Government programme. Under section 21, the director will be required to forward to the Committee of Public Accounts reports regarding the commission's accounting transactions and its economy and efficiency among other matters. The commission will be required to report annually to the Minister on its activities and the Minister shall have the reports laid before both Houses. The Minister will also have the power to request a report by the commission on any matter relating to its functions. Taken together, these elements amount to a progressive reform bringing the future appointments processes to a new level of accountability.

Each of the Houses of the Oireachtas must approve by resolution, if they so choose, an appointment by the Minister of the lay members and lay chairperson of the commission. Under section 49, the Minister will be required to make an annual statement to the Houses relating to appointments to judicial office made during the year. This will include a statement that the appointment was recommended under the new arrangements if that is the case. A similar statement will be required of the Minister in the form of a notice to be published in Iris Oifigiúil in respect of all appointments. I will be tabling amendments in respect of these provisions because, given legal advice I have received, I am concerned about the appropriateness of subsections 48(2) and 49(2) as amended on Committee Stage in the Dáil, concerning the explanation of decisions of Government with regard to appointments.

Section 7 focuses the recommendation and selection process on merit as the criterion to underpin the selection and recommendation of persons for appointment. It is an important statement of intent that merit is the basis on which all recommendations will be made. This means that merit is front and centre as the determining factor in selection and recommendation. Section 7 is also important in providing that subject to this criterion, regard shall be had to objectives that the membership of the Judiciary should comprise equal numbers of men and women, that membership of the Judiciary should to the extent feasible and practicable, reflect the diversity within the population as a whole and that the membership of the Judiciary should include persons with a proficiency in the Irish language. Let me point out once again that the Judiciary and others highlighted putting merit at the top of the agenda in their submission in 2014.

The Bill extends eligibility arrangements to District Court judges in terms of eligibility for appointment to the High Court and to legal academics for appointment. These matters are addressed in section 33. This has been welcomed virtually all round as has the other change under section 59 setting at 70 the retirement age for District Court judges which is the same as for judges of other courts.

I want to mention the important provisions in section 5 that the Minister shall review the working of the Act and report on the matter to the Houses of the Oireachtas. I assure Senators that this is a genuine and quite fundamental reform of our judicial appointments system so as to ensure to the greatest extent we can that the quality of our judicial system is maintained to the benefit of all in society.

I think the Minister will be disappointed to hear that the goodwill from yesterday evening does not translate into support for the Bill from those on this side of the House today.

It will come as no surprise to him that Fianna Fáil is not supporting the Bill.

I am disappointed.

Fianna Fáil is committed to the need to reform the manner in which judges are appointed. We already agreed to this in the confidence and supply arrangement between my party and the Government. We would like to see legislation establishing a judicial appointments commission that would be fully independent of the Government and would make recommendations to the Government based on an independent assessment of the merits of applicants for judicial office. Fianna Fáil will put forward wide-ranging amendments to the Bill and give consideration to any amendments that will improve what is widely recognised as a very poorly drafted piece of legislation that does not serve the public interest. With its proposals for a lay majority and the downgrading of the position of the Chief Justice, the Government is letting the Minister for Transport, Tourism and Sport, Deputy Ross, drive a personal agenda that risks undermining the independence of the Judiciary.

Hear, hear. This is a vanity project for Minister Ross.

I refer to the notion of a body to choose judges, the lay chairperson and the lay majority. There is also the idea that it will somehow be better. There has been no convincing public policy explanation of the benefits of such an approach and we should not just reject expertise because the Minister for Transport, Tourism and Sport says so. It is ridiculous to think expertise is not needed in this regard. The Minister, Deputy Ross, has a particular issue with judges and likes to typecast them as villains. I would go as far as to say he casts a very low opinion of members of the legal profession of which I am a very proud member. Perhaps the Minister before us or the Minister, Deputy Ross, could address what they are doing to change the face of the legal profession and support and encourage people from various backgrounds into the legal profession. I am a proud working class girl from rural Ireland who was lucky enough to make it into the legal profession and got good support from various people throughout my legal career, as well as encouragement. I was very lucky and not many people from my kind of background would be as lucky in this day and age.

I am glad the Senator declared her interest.

It is on public record that I am a member of the legal profession.

Why does the Minister not declare that he was blackmailed into this by the Minister, Deputy Ross?

Senator Norris will have his time so allow me finish my piece.

Allow the Senator to continue.

Senator Norris's comment should be withdrawn.

With all the voices speaking I did not really hear the comment.

Would you like me to repeat it?

I would prefer not.

I hope I will be afforded extra time at the end. The changing face of the profession needs to be addressed. We have people from all sorts of backgrounds living in Ireland and it not just about being male, stale and beyond the Pale any more. The majority of members of the legal profession are female but the problem is they are not progressing to senior positions or on to the Bench. Perhaps that should be looked at. I have heard much about merit but surely women have equal merit in this regard. As we are not progressing in the profession, the Minister should address the problem.

As the Bill stands, the commission would provide three names to the Government for appointment. Under the provisions of the Bill it will remain open to the Government to reject names proposed by the new commission. Fianna Fáil believes the Government should be obliged to provide a reasoned explanation for that rejection. Otherwise, it is too easy for the Government to go outside the process and sidestep the recommendations. If the number of people on the commission is increased to 17 members, as is sought by the Government, it will be totally unwieldy. It should be borne in mind that the body is expected to fill approximately eight to ten judicial vacancies per annum.

The Bill passed through the Dáil because of a deal done with Sinn Féin and the manner in which it passed was a total farce. The Bill is riddled with inconsistencies and even within the ranks of Fine Gael there is deep unease about the damage this Bill will do to the justice system and the reasons for and manner in which it is being pushed through the House.

On 7 March 2018, the European Commission published a country report on Ireland in which it expressed concern about this Bill, saying it is not in line with European standards. The criticism centred on the fact that the Bill provides for insufficient input from the Judiciary on the commission and does not conform to standards that Ireland signed up to in 2010. The report indicates, "The European Commission is watching closely the relationship that exists between national governments and their judiciaries and monitoring any steps by governments that may undermine or damage the independence of the judiciary within a member State." The reputational damage for Ireland would be significant if it is found that our judicial appointments regime is not in line with European standards. It is shocking that the Government is continuing to support this utterly flawed piece of legislation.

This Bill has travelled a very rocky road to this House and it comes here in a fragile state. It is internally contradictory and some of the principles set out in the first version of the Bill to be presented to Dáil Éireann by the Government have been seriously compromised. I intend to be constructive and participate in the debate in such a manner. I agree with the previous speaker that this Bill seems to be driven by a kind of determination on the part of one member of the Government to settle scores with the Judiciary and the legal profession-----

-----rather than a well-considered view of what is needed in the appointment of judges. That was absolutely confirmed for me when I discovered in last week's edition of The Sunday Times that his extremely ill-considered proposal to have a committee of Dáil Éireann vet all judicial appointments, with the majority being Opposition Members, was placed before him for negotiation with the Fine Gael Party but he stamped his little foot in order to try to persuade Fine Gael to adopt its policy. As the article's reference to a book by Ms Jennifer Carroll MacNeill makes clear, eventually this compromise emerged and this was enough to satisfy the Minister's-----

-----blood lust and ego in this matter.

Let us be clear about what is being proposed. There is nothing wrong with the idea of a judicial appointments commission. There is nothing at all wrong with having lay people on it. If the commission comes up with a list of people, there is nothing wrong with it expressing preferences in order of choice. These are not wrong in principle. Where the Bill goes much too far is that it does not differentiate between the types of judicial appointments made. Yesterday in these Houses we had statements on the decriminalisation of homosexuality by statute under the ministry of Ms Máire Geoghegan-Quinn. This brought to my mind the circumstances in which our colleague, Senator Norris, litigated in the courts of our land to seek to have the criminalisation provisions of the 1885 Act ruled as unconstitutional. It is interesting that the Supreme Court, by a majority of three to two, refused him the relief he sought. I was thinking about the two people who held with him in very fine judgments. I think I am right in saying they were Mr. Justice McCarthy and Mr. Justice Henchy and these were models of jurisprudence.

They were the dissenting judgments.

Yes. The three other judgments were delivered by more conservative members of the Supreme Court.

We must remember that when the Government - and it is only the Government that can do so under the Constitution - decides who should or should not be appointed to the Supreme Court, it is making political decisions. It is pointless to pretend otherwise. I am in the happy position of having been a member of the Judicial Appointments Advisory Board for three years in my capacity as Attorney General and having been Minister for Justice for the following five years. I had eight years continuous involvement in the appointment of judges, and I know that when it came to appointments to the Supreme Court, the issues that were considered by the Cabinet were not party political issues. They were much more concerned with the outlook and the philosophy of the people who were put there. Catherine McGuinness was not appointed to the Supreme Court because she was a woman, but rather because she was a woman of liberal intent and perspective.

She was a very fine judge.

She was a very fine judge as well. I want to make it very clear that the process by which the Supreme Court is composed falls, in the final analysis, to the Government of the day to decide. The Government decides whether it wants liberals or conservatives, people who are pro-life or pro-choice or people who are pro-European or pro the rights of Ireland under the European treaties. These are issues on which the Government alone is competent to make decisions. I have no problem with people who want to become High Court, Circuit Court or District Court judges for the first time being asked to go through an interview procedure or being looked at by a commission to see whether they are suitable to be appointed. I have no problem with that principle at all. However, I have a huge problem if, when a vacancy arises in the Supreme Court or there is a vacancy for the position of Chief Justice, the Government does not do what the Constitution requires it to do, namely, make a considered decision on foot of advice received and on the basis of internal discussion as to who it wants to be Chief Justice and who it wants to be on the Supreme Court. These are the people who decide what the Constitution actually means. I see a huge problem in a Bill which requires the Minister of the day to require everybody wishing to be appointed to the Supreme Court to submit himself or herself for interview by a group of laypersons who do not share the responsibility of Government in this matter.

That group will rank people in order of choice, be it Michael McDowell, Ivana Bacik, David Norris or whomever. That is the choice of the group, but the Government might believe that the choice made is completely wrong. A procedure that is perfectly reasonable and defensible in terms of international practice is being applied to the Irish Supreme Court under our Constitution. Our Supreme Court is equivalent to the American Supreme Court, the composition of which is a matter of huge political importance to the American people. The case of Roe v. Wade would not have been heard if certain people were involved. Certain people are trying to reverse Roe v. Wade by decisions made. Whether that is a pleasant reality to reflect on is one thing, but it is the nature of the Supreme Court. It is a political appointment. I have never known party politics to be part of the equation when it comes to appointments to the Supreme Court. The other criteria I have mentioned - the philosophy, the outlook, the type of person desired, the type of Ireland one wants to see and the type of future development of constitutional theory - count when that decision is made.

A different provision was proposed at first. The Minister started out with a small committee which was to make recommendations for high judicial offices. We now have this Bill, which, to coin a phrase, is a bit of a dog's dinner and which has removed that small committee and replaced it with the ridiculous idea that a group comprising laypersons will put before the Government its choice for the position of Chief Justice or for a position on the Supreme Court on the basis that it is somehow better qualified to make these decisions that members of Government. This is not personally directed at the Minister for Justice and Equality, but it is the responsibility of each and every member of Government to make these decisions. If the members of Government want to take advice they should do so, but they should not delegate to a group of people who are not responsible for the decision on the ultimate composition of the membership of the Supreme Court. It is wrong in principle and is indefensible. Any Minister who would shirk that responsibility is not worthy of being a Minister. I am not talking about the Minister of Justice here present when I say that. Any Minister who is not willing to personally take the responsibility of choosing the next Chief Justice or decide which member of the High Court should be a member of the Supreme Court is not worthy of being a member of Government because he or she is abdicating a responsibility thrust onto him or her by virtue of his or her membership of the Government.

The Minister has conceded that what we have before us is not the Bill that was originally tabled. He made a very important point when he said that there are provisions in this Bill which require, in the event of the commission's choice for Chief Justice not being agreed to by the Government or its choice for appointment to the Supreme Court not being accepted, that the Government should issue a statement, in Iris Oifigiúil, a reasoned statement as to why one appointment was made rather than that recommended. The Minister has said that he wants to take advice on the constitutionality of that. If that provision is left in this Bill I will certainly ask President Higgins to refer it to the Supreme Court-----

-----because it is designed to subvert the capacity, duty, right and the autonomy of the Government to make decisions about who should be Chief Justice and who should not.

There are good things in this Bill. I am not going to pretend that it is all bad. The principle of an open and fair method for people wanting to be appointed to the Judiciary to go to a neutral body for evaluation before the Government makes its decision is both good and internationally recognised. Throughout the common law world, as well as in the civil law world, it is accepted as an international norm. Nobody is arguing with that principle. The idea that legal academics of certain types be eligible for appointment to the Judiciary is also a good idea; I have no problem with that in principle. However, every ten years or so a leading lawyer has been appointed directly to the Supreme Court, one of who was Niall St. John McCarthy, one of the dissenting minority in the case taken by Senator Norris. He was one of the most brilliant judges of our era. I do not want to personalise things, but at the moment there would be general acceptance that one of the other great advocates of our era is Donal O'Donnell, who was appointed directly to the Supreme Court by the Government. My late friend, Adrian Hardiman, was appointed directly to the Supreme Court, having been a barrister.

We have to ask ourselves whether we are going down the road of making it more or less likely that our Supreme Court, High Court and Court of Appeal in future will consist of the type of people who should be there. Will people who are in the position of, for example, Mr. Niall McCarthy, go through a process of applying to a lay group to be considered for appointment? Is it not better that someone in such a position would be tapped on the shoulder by the Government and told that he or she should be on the Supreme Court, that the Government wants to put him or her there and asked that he or she consider doing the Government the honour of accepting such a position?

The Minister for Transport, Tourism and Sport has constantly presented the contrary view but, under the Constitution, the sole right to make a decision as to who becomes a judge is vested in the Government.

One cannot have a commission which can bind the hands of the Government in this respect. The Government, under the Constitution, is the sole determiner in the final analysis of who the President appoints and who it advises the President to appoint. For the reasons I mentioned earlier, especially with respect to the Supreme Court, one cannot take politics with a small "p" and non-party politics out of the appointment. These are profound political and philosophical decisions that fall to the Government of the day to decide. Maintaining a balance on the Supreme Court, whether it is Justice Ginsburg in the USA or whoever the latest person was to be appointed by President Trump-----

-----these are profoundly political decisions for which elected politicians must be primarily responsible. Therefore, in that spirit, I will not oppose this Bill on Second Stage.

I thank the Senator.

This is to allow the debate to continue.

It will be opposed.

I am sure that it will be opposed but I will not oppose it on Second Stage to show that I have some goodwill left towards the good parts of the Bill. I make this gesture on the basis that I hope that this House will live up to its constitutional responsibilities to examine this legislation very carefully and will not be bullied, bounced or blackmailed by one tail wagging the governmental dog, but will make up its own mind on what it considers to be the right thing to do in respect of the appointment of judges from now on.

I also welcome the Minister, Deputy Flanagan, back to the House. He is a regular visitor at this stage. I will begin on a positive note. It is commendable that Senator McDowell will not oppose this Bill on Second Stage. People putting forward Bills often call for Bills to go to Committee Stage, and ask others that they not oppose Bills on Second Stage but allow the debate to continue. Senator McDowell's leadership on this should be followed by all Members and allow this Bill to go to Committee Stage and beyond.

I also commend Senator McDowell on identifying what he considers the positive elements of the Bill. It is great when someone can say that there are parts of the Bill that they agree with and support and other parts he or she does not. While this Bill has had to tread a rocky path through the political process, that is true of many other Bills. The idea when a Bill goes through Parliament is that it should change and improve and that it should be enhanced, developed and made better. The idea of a parliament is that Bills can be improved. The reason the Seanad was established originally was to bring in people with specialisms in different areas and to allow them to contribute to and enhance legislation. I sincerely hope that this would happen in the case of this important Bill.

I also agree with the sentiments expressed today that to date, the Judiciary has done an exemplary job. We are probably one country that can say, hand on heart, our Judiciary does a superb job and is in no way interfered with in any shape or form. The calibre of people who have been appointed to Irish courts is beyond reproach and is something of which Ireland can be proud. However, just because a system is working well does not mean it should not be improved or that there should not be more accountability. It does not mean that they should not be made answerable or questioned about their suitability to do a job. We had a referendum on whether the Government should be allowed to reduce judges' pay in times of austerity. I recall that the vast majority of judges opposed that legislation but the people took a different view. Judges are not always right. There should be some system of tracking and supervising the manner in which they do their business.

There can be improvements in training and upskilling for judges to develop their skills base. That is welcome. The lay majority of the commission has been discussed and there will be plenty of opportunity on Committee Stage to debate such specific aspects of the Bill. I acknowledge Senator McDowell again in saying that the Bill contains good elements and that a judicial appointments Bill is not a bad thing. Certain elements in politics and the media have portrayed the idea of a judicial appointments Bill as a bad thing. I contend it is not and we should always wish to make our system better. It might be good but it can always be improved.

I look forward to engaging on this Bill on Committee Stage. I do not believe for a moment that a tail is wagging the governmental dog.

Senator Conway is too innocent. He does come from the west.

Senator Norris is not too far out either. However, I suggest that sometimes a tail might put it up to a governmental dog that something should be done-----

This whole argument is very male.

-----and perhaps change is not such a bad thing. One thing we are afraid of in this country is change. We have often seen that in respect of social change, however, when change happens the sky does not fall in. There have often been situations where we were told we face Armageddon should something pass yet when calm is restored, we find that the laws have improved things. I challenge those who have issues with this Bill to make it better on Committee Stage but do not oppose it on Second Stage. That would go against the arguments they have put up since I came into this House seven years ago to the effect that Bills should be allowed to pass Second Stage and be allowed to progress to Committee Stage where issues, difficulties, challenges or areas where they might be improved would be dealt with before going on to Report Stage. I challenge people to follow through on their logic and not call a vote but allow it to go to Committee Stage. That would be a great gesture of goodwill and would allow this House to do what it does best, namely, to put down, debate and tease out the amendments.

I call Senator Niall Ó Donnghaile.

The Senator is busy on his phone.

It is not the case that I am busy on my phone. I think I may have fallen down the list of speakers, I believe the Civic Engagement Group is before us, but I will not refuse the opportunity while I have it.

I have the list before me.

Maith thú. I will not question the Chair.

The Senator was questioning the Chair.

Senator Norris is in funny form today.

I can show the Senator the list afterwards.

I concede that it is my mistake. I welcome the opportunity to speak on the Bill, which has seen much public comment and has been subject to considerable scrutiny at various stages in the Dáil. As has already been outlined, Sinn Féin will support its passage to Committee Stage, where I will move several amendments to address some of the issues that have not been addressed in earlier stages.

While we will support the Bill on Second Stage and will allow it to pass, our support is not unqualified as there are flaws in the Bill that must be addressed in this House. I believe they can be addressed but it will take consideration and thought.

There are also drafting issues requiring rectification, to which other Members have alluded. Some of these are not complicated. Confidence in the justice system is contingent on a Judiciary which is free from political control or political or any other bias. Not only must society have a Judiciary free from bias, it must also be free from the appearance of bias. That is very much in the interests of the public, despite the apathetic feel to this Bill outside the Leinster House bubble. There is an understandable perception that the Judiciary and the judicial system are removed from the experience of working class communities and working class life. If this is accurate, then it is incumbent on the judicial system to rectify this concern by being intimately aware of the experience of working class and other communities, members of whom find themselves before the courts.

It is essential that we have an independent and impartial Judiciary that is representative of the community that it serves. A truly representative Judiciary would enhance confidence in the judicial system, and that can only be welcome and positive. Future judicial appointments should be drawn from a wider pool of qualified candidates so that it is fully representative of the community, to eradicate the corrosive and unaccountable system of patronage previously in operation.

There is no doubt our courts are populated by many committed people with great legal minds who do an excellent job on a daily basis. I am not here to criticise members of the Judiciary or to do their profession down. However, that does not mean that the process for appointments is above criticism or alteration. It would be naive to believe some of the commentary on the Bill to the effect that there was no problem up until now; even Fianna Fáil has accepted that. Are we expected to believe that there is not now, nor has there ever been, any system of political patronage within this jurisdiction? We know that is not the case. We do not say that those who are currently in place cannot do their jobs but the Bill is concerned with the process of how they get there in the first place, or how they will get there. I agree that judges who take the oath are impartial and independent. However, the Bill does not deal with people who are currently judges. For anyone who thinks that this is a left-wing or left-leaning view, I ask them to consider why we are discussing this in the first place. There must be a fair and accountable appointment process for the Judiciary which is representative of the public interest.

One of the issues that requires rectification is numerical. Intentionally or otherwise, Fianna Fáil and Labour voted against a proposal to extend the membership of the commission to 17 members, and then voted for a proposal that added another three to it. Much was made of this. However, it can be rectified without undue difficulty. We support retaining a lay majority. We will support amendments that are required to maintain that, and to give a place to the Presidents of the District Court and Circuit Court. We do not agree that the Attorney General should be on the commission and we have made that abundantly clear. We intend to table an amendment to deal with the diversity principle which we believe the commission should aim for. We will also seek to preserve the requirement for the commission to re-advertise if it is not successful in finding an appointment, rather than the Government doing so itself.

There are concerns regarding the Attorney General's membership of any future commission. It would be unfair in that he or she would have a vote at the commission and at the Cabinet table, which contravenes the essence of this Bill and what it aims to achieve. Our greatest divergence with the Government relates to section 44. The approach of allowing a subgroup to take responsibility for the appointments of the Chief Justice, President of the Court of Appeal and President of the High Court is inconsistent. Perhaps a different process to deal will these appointments is required, particularly since those positions to be filled are members of the commission. However, there must be much wider consideration, rather than a scenario where the Chief Justice, the Attorney General and the chair would make the recommendation. This is far too closed and is contrary to the philosophy behind this Bill. The commission as a whole, or some variation on that, with certain members absenting themselves, should make the recommendation. If the Minister is determined to have a two-stage process prior to reaching the Government, perhaps a sub-committee could consider expressions of interest before giving a number of recommendations to the commission as a whole, with certain members absenting themselves if they have expressed interest. However, the greatest consideration should be given by the commission itself. As other Members said, we are happy to see this Bill pass to Committee Stage and will address the amendments tabled on a case-by-case and sincere basis.

Before I get into the areas of the Bill with which I am concerned I was listening carefully to Senator McDowell, because he has a great deal of experience in this area. I was listening with an open mind, hoping to be persuaded by his expertise to go in a opposite direction to the one I had chosen. However, when Senator McDowell listed the outstanding judges who have been appointed, I could not understand how they would be at a disadvantage in a system based on merit. They were appointed on merit, and a politician or whoever makes the decision does so based on merit. If there is another process that is also based on merit but has a much more diverse setting, merit is still being considered. Merit does not change, no matter who is looking at it. To assume that lay people do not have the ability to assess someone based on merit is probably an little insulting remark.

Senator Norris always has to get the last word in.

Senator Norris knows he would not be here if lay people were voting for him. That is all.

A hell of a lot more lay people voted for me than for Senator Ruane.

I am only in my first term. I will catch up.

He had the undivided Trinity College Dublin vote.

I will ask him to respect the orders of the House.

I welcome the Bill to the Seanad and express my broad support for the equality and diversity principles that underpin it. The role that judges play in our democracy is important and their contribution is valuable. Therefore, who they are, how we select them and the criteria and system we use to do so is equally important. This Bill will substantially reform the system by which we appoint judges and create a new body that will be responsible for recommending these appointments. At its core, it seeks to diversify, decentralise and depoliticise the process by which members of the Judiciary come to office, which is welcome. It seeks to take the politics out of judicial selection, and has the welcome aim that "the membership of the Judiciary should reflect the diversity within the population as a whole". I strongly believe that a more diverse Judiciary that is better representative of society it presides over is a worthy objective, and I welcome the clear articulation of this aim.

I welcome the provision that appointments to judicial office shall be based on merit under this Bill, and that gender equality and socioeconomic diversity are explicitly mentioned as key objectives. I welcome the provision that a majority of the commission will be made up of lay people led by a lay chair. I welcome the clear criteria for judicial candidates, the transparency of the selection process and the relative independence from political considerations enshrined in the Bill. It is clear the major and substantive change from our current system under the JAAB is the inclusion of a majority of lay people in the process. The main way in which the depoliticisation of the process is intended to occur is the introduction of views from outside the current legal and political circles to judicial selection by bringing lay people into the process in the new commission. However, this has the practical consequence that who these lay people are and how they are chosen is important, as they are the engine and method by which the aims of the Bill will be achieved.

There is a significant responsibility on these lay people. Considerable importance attaches to their structural role in the process, the qualities they possess, their experiences and their knowledge competencies, as they are crucial for the success of the Bill. In light of the important and crucial role they will play, I am, therefore, concerned with the Bill's current provisions relating to lay membership of the commission and the criteria used by the PAS in selecting them. The current provisions will not reflect a sea change from our current process, or will result in a drastically different cohort of judges being selected and nominated. The lay person selection criteria under section 12 would largely reflect areas of expertise in which there are high levels of knowledge among our current cohort of judges and the system that selects them. Why, for example, are commerce and finance explicitly mentioned over broader socioeconomic issues such as addiction, homelessness or penal reform issues? If the lay people are the mechanism by which the views of those inside the current political and legal circles will be represented in the new system, the criteria for how they are chosen should capture a broader range of individuals and experiences in society, rather than just top-level abstract concepts or certain sectors arbitrarily selected over others.

If lay people chosen under the provisions of this Bill are not drawn from a large pool outside the usual suspects and meet diverse criteria this Bill will only take away jobs for one group of boys and give them to another group. If we truly want people from outside current legal practice to apply, be selected and contribute to choosing a more diverse slate of judges we need to do better and I hope the further development of criteria in section 12 and additional detail in respect of lay persons in section 10 is an issue we could work on as we move towards Committee Stage.

To further focus on the diversity provisions of the Bill, I welcome that in section 56 the commission's procedures committee will be given responsibility for monitoring the diversity of judicial candidates in subsection (1) and procedures and processes for developing and strengthening diversity in subsection (4). This is a very welcome provision but I would like to see more detail. How are we defining diversity for the purpose of this section? My concern is whether a broad and generous understanding of diversity is accounted for under this Bill. What metrics do we use when we measure diversity? I would like to see explicit mention in this section of a role for the procedures committee in identifying under-representation of specific groups in the Judiciary compared to their prevalence in wider society, the groups and communities that need to be targeted, measures such as quotas and applicant number targets and targeted measures to improve their representation, such as information campaigns and training. Let us agree what we mean by diversity in our Judiciary. How best can we rectify this under-representation and give the aim of ensuring diversity some real teeth in the Bill? I hope we can work on this issue on Committee Stage.

I welcome the new strong protections introduced in the Dáil for the Irish language in the Bill but has the Minister considered similar protections for Irish sign language in light of the recent passage of the Irish Sign Language Act 2017 and the fact that Irish sign language, ISL, can now be used in legal proceedings by deaf citizens throughout the State? It would be a strong sign of the State's efforts to vindicate the equality of our deaf citizens if proficiency in ISL would be recognised in the Bill as a valuable quality for a judge to possess.

This could even lead to the conduct of court proceedings without an ISL interpreter in the future which would be an incredible legacy for this legislation.

I am also concerned that the Minister can ignore the recommendations of the commission and appoint another candidate entirely to the Judiciary. While I recognise this is due to the constitutional prerogative given to Government in respect of appointing judges, it is still a concern that so much effort and work could be put into building a system that could be so easily circumvented. Could the Minister assuage these concerns and outline any circumstances he envisages for ignoring the commission and what sort of reasons would be provided to the Oireachtas under section 49 in such a case? I will support the Bill on Second Stage but will table amendments on Committee Stage. I would appreciate the Minister's thoughts on my concerns.

I welcome the opportunity to debate this important Bill and the principles it contains. I am an advocate of reform in the judicial appointments process. I wish to be constructive in the debate on this Bill and acknowledge its important positive aspects. As my colleagues in the other House, Deputies Howlin, Penrose and Sherlock have said, it is unfortunate that the Bill has come in this form and as a result of what appears to be a populist crusade by a particular member of Government, the Minister for Transport, Tourism and Sport, Deputy Ross. As others have said, and indeed Deputy Howlin has said, the shoddy motives behind the Bill have affected its provisions. I do, however, want to be constructive. It is also unfortunate that the Bill has come to us in a very internally contradictory shape, particularly section 10, which the Ceann Comhairle and others acknowledged, when difficulties arose in the Dáil. It is not good legislation that it comes to us with an inherent contradiction on this important provision in section 10.

It is a minority Government.

It is still not good legislation. We can all acknowledge that.

The response of the Minister, Deputy Ross, to the Attorney General's criticism of it as "a dog's dinner", which I read in a newspaper, referring to this as "a caviar and oysters" Bill was unfortunate. That language is not helpful.

It is classic Ross. He is very keen on-----

The Senator need not look at me.

I am simply saying that I do not think many of Deputy Ross's colleagues in government would agree with his description of the Bill. What we need in fact is a beans on toast version of reform, one that is practical, that does what it says on the tin, that moves away from canine analogies and references to the feast of caviar and oysters that----

A black pudding Bill.

Yes a black pudding Bill, I thank Senator Norris.

What is wrong with black pudding?

We need sensible, practical and robust reforms. I should declare an interest as a qualified barrister who was in practice for many years, no longer in practice, but as a legal academic also. There are very positive reforms in this that I, among others, have sought for many years. In 2003 I and colleagues in Trinity published a report entitled Gender Injustice which focused on the need to ensure greater diversity in the Judiciary and the legal profession to ensure positive measures to promote women to senior ranks in these areas. I welcome the provisions in the Bill referring to diversity and gender. We will table amendments on Committee Stage to strengthen those and to require that where, for example, three recommendations are made by the commission there would be at least one of each gender. That is an important, sensible and constructive way to strengthen the diversity and equality measures in the Bill in keeping with the measures we had for political selection in the Electoral (Amendment) (Political Funding) Act 2012. I also welcome the idea of a transparent process for appointment. We sought that too. I welcome the fact that the new measures will require a reduced number of recommended candidates, ranking of candidates and will provide for the first time for adequate administrative and logistical support to the body empowered to recommend to Government.

I also acknowledge the reform in favour of legal academics but then I would say that. It is positive. I also welcome the ban on canvassing. That is important. That was sought in 2014 by the Irish Council for Civil Liberties, ICCL, which called for a radical overhaul of the system of judicial appointments, for greater separation of political system and judicial appointments and recommended the removal of the Attorney General, a political appointee, from the appointments process. That is one respect in which the Bill falls down. It includes the Attorney General in the body, which is unfortunate given that the stated objective of those promoting the Bill is to depoliticise the judicial appointments process. We will put forward suggested reforms in our amendments.

In 2015 as a member of the Oireachtas Joint Committee on Justice and Equality I instigated a hearing day on reform of judicial appointments. We heard from academics such as my colleague in Trinity, David Kenny, and from Jennifer Carroll MacNeill, Laura Cahillane has also been very strong on the issue of judicial appointment reforms and was part of a conference in Dublin City University, DCU, at which I spoke in 2014 on reform of the appointment process. There has been a long process leading to this. It is not necessarily the right Bill or the right way to do it but there are important and positive measures in it. Those of us who are in favour of reform should acknowledge that. Many of the reforms that the ICCL sought in 2014 are in here.

The issue of the internal contradiction and the composition of the commission is still very problematic. Section 10 will be a focus for many of us in putting forward amendments. Certainly it will be for the Labour Party group. We want to ensure in particular that we do not have that contradiction and to remove the Attorney General. In the Dáil the Labour Party put forward an amendment based on a Bill introduced by Deputy O'Callaghan which proposed a sensible composition reform for the body. There are also issues around the Judicial Appointments Advisory Board, JAAB.

When we heard from David Kenny, Jennifer Carroll MacNeill and others, they spoke about the need to strengthen the JAAB. There were a number of changes that could have been made to the JAAB process as established in 1995 that would have addressed many of the issues we have now, such as to require JAAB to reduce the number of persons it recommended to Government and to rank those persons. The JAAB has also had powers for a long time which it did not exercise largely due to lack of resources, such as powers to conduct interviews. There were other measures that could have been implemented even within the 1995 system. It is unfortunate we did not move more swiftly on them. An argument has been made by David Kenny and others that if one politicises the system too extensively - I think Senator McDowell makes this point very well - it is not necessarily a good thing either. There has to be a recognition of the politics with a small "p" in judicial appointments, particularly to the superior court positions that we have referred to. Kenny has argued that the way forward lies in appropriately engaging with rather than concealing the politics at play in senior judicial appointments. The Minister referred to the judges' submission in 2014. I did not agree with it because it appeared to me to suggest judges would appoint their own and that judges would be in charge of the appointments. That would be much worse than politicians having a role in appointments because it lets in the danger of what we call affinity bias where one appoints people in one's own image. The debate about merit is important because one person's merit is another's affinity bias. We have to be careful when advocating for merit-based appointments that we do not use the concept of merit to disguise what is or can be an old boys' appointment system. There are all sorts of dangers and we have to look for balance in an appointments system.

It should also be said that the academics I have mentioned and others such as Ruadhán Mac Cormaic in his excellent text on the Supreme Court have pointed out that whatever the flaws in our judicial appointments model and whatever the need for reform, the Judiciary has exercised its function to a very high degree of impartiality and independence. It has been acknowledged by other speakers here.

I do not think anyone has mentioned the recent decision in the High Court by Ms Justice Donnelly to refer the Polish extradition case because of concerns about judicial appointment processes in Poland and changes being made to it. That case was heard last week. It shows the importance of an independent Judiciary and the huge significance that principle has as a cornerstone of our democratic system and the separation of powers. We will table an amendment on it on Committee Stage in the Seanad. We will also be tabling a number of other amendments.

We are concerned about some of the other aspects of the Bill. Deputy Howlin referred to them in the Dáil. We are concerned there may be too much of an administrative overkill in Part 8 of the Bill and scope for judicial review applications by disappointed applicants. That is something that needs to be reviewed.

The case for diversity needs to be made to ensure we have a Judiciary that is reflective, as far as possible, of the population. We need to look at taking out the party politics from selection. We have to be careful about deprofessionalising the appointment process to a degree where we lose some of the strengths in our system. We need to be balanced in approaching this and to acknowledge the strengths in the system and the fact we have been served very well to date by our Judiciary, for the most part.

Senator McDowell referred to Senator Norris's case, which we were all remembering and reflecting on yesterday in the historic debate in this House as we listened to an important apology to those who had been convicted for offences that have not been criminal offences since 1993. We might all be mindful of the majority judgment by Brian Walsh, which was described by Ruadhán Mac Cormaic as the worst judgment-----

I thank Senator Norris. I meant the judgment by then Chief Justice O'Higgins. In his book, Ruadhán Mac Cormaic described it as the worst judgment in the history of the Supreme Court. I do not think many would disagree with that, looking back at the tenor of that judgment. For the most part, our Judiciary has served us extremely well. While we are advocating for reform and while we are debating the most appropriate and effective way of bringing forward reforms, we have to be mindful of the strengths of our system.

I said at the start it was a Bill borne of a populist crusade, but there has been huge momentum and a process around the need for a reform of the judicial appointments process. That has to be acknowledged. It is a pity the Bill came to us in the state it did, largely due to a grubby deal that appears to have been made between Sinn Féin and Fine Gael, propelled by populist rhetoric. That is unfortunate. We can seek to improve it in debate and ensure it leaves the Seanad in a very different state from the one in which it came to us. It is a pity more time was not taken in the Dáil to ensure the internal contradictions were removed before it came to us. There are a number of ways in which we can work to improve on it and build on the strengths and positive reforms it contains while dealing with its more negative and unfortunate aspects. I look forward to the fuller debate I know we will have on Committee Stage.

Cuirim fáilte roimh an Aire go dtí an Teach. In welcoming the Minister, Deputy Flanagan, I reject Senator Bacik's assertion there is a grubby deal. It is anything but. Her own party was very happy to do a deal with Sinn Féin to get votes for the Seanad election on more than one occasion. To borrow a phrase - we are where we are. I am not quite sure if it is a plate of caviar, a dog's dinner or whether we are on the road to lobster. What we know is there is a need to be transparent and to end the perception of cronyism and patronage around the appointment of judges. We need to ensure there is a high level of transparency in the matter of appointments.

The fundamental point I will begin with is I would much prefer, as a lay person with no vested interest other than the pursuit of truth and the upholding of the law, that we would cut the cost of legal fees in the country and allow for improved access to information about how the courts are operating, as Stephen Collins said in his The Irish Times article. We have seen the establishment of the JAAB and a conversation centred on the appointment of judges. We have heard commentary and opinion from vested interests, including barristers, senior counsel, judges and solicitors. That is to be welcomed in a debate that has varying viewpoints regarding the Bill.

I welcome the fact the Minister is bringing the Judicial Appointments Commission Bill before us. I fully respect the views of all Members who have a different viewpoint about what the Government is bringing forward. We live in a democracy. Let us come to this debate and begin by saying we have been very well served by our Judiciary. We should always maintain the independence of the different branches. It must be at the core of what we do in a republic. I am mindful of the excellent contribution of Senator McDowell who spoke about the American system and the conservative versus liberal issue and the appointment of supreme court justices. Look what happened to President Obama. For a whole calendar year he could not get his Supreme Court appointment over the line. He could not even get it to the table.

The Minister, Deputy Ross, has vetoed appointments for the past year and the Government has limped through it.

President Obama could not even get an appointment over the line. Mr. Gorsuch was then appointed to the Supreme Court. If one looks at what happens in the context of the American Supreme Court, we want to avoid the situation here where people are afraid about what happens if a particular judge dies. We must avoid that situation. It is not about liberal or conservative, it is about merit and legal requirement and qualification.

It is about liberal and conservative.

It is not necessarily about that.

It is not about that per se.

If some people got their way, we would have all the one type on the Bench. We should have a balance and the criteria for appointment, on merit, should include legal qualifications. That is the point I am making.

Notwithstanding the amendments by the Minister, the Bill will change the manner in which judges are appointed. In creating the judicial appointments board, we will change the whole process. The one concern I have is about having a lay chairperson. I would prefer if we had the Attorney General or the Chief Justice as the chairperson. The most important point, however, is that we bring transparency and an end to inadvertent lobbying, despite what Senator McDowell and Senator Bacik said about canvassing. I remember elections to the Cork county board. One of the rules was a candidate could not canvass for election and yet people canvassed in a different way. I commend the Bills Office and the Library and Research Service and I want to dwell on a couple of points in the piece from the Library and Research Service.

Senator Buttimer has one minute left.

I will finish on this but I did not realise I had only one minute left. I thought I had more.

I go back to when the judicial appointments review committee was established in 2013. It said that the relative success of the administration of justice in Ireland was achieved in spite of rather than because of the appointments system. That was the process established prior to Deputy Ross becoming a Minister. That should raise questions for us. Senator Bacik referred also to the issue of diversity and gender. An inordinate number of senior counsels are male. The figure is 276 men and 53 women.

That is changing very rapidly.

It is an extraordinary indictment that the ratio under the current system is 84:16.

People were hugely critical of that.

That is at a time when we have quotas in politics for candidates.

There we go. Is it time we had quotas in respect of judges? I am just posing that rhetorical question.

Women need extra support.

This is a debate and I am only putting a question out there. The figures speak for themselves. I pose another question to Senator Clifford-Lee. We put supports in place in politics for women. I support those and I support women running for election. How do we put the same supports in place to change that imbalance in the legal-----

Support younger women in the legal profession.

I am posing my question as part of a debate. That is what this is about.

How is a lay majority going to ensure that?

I cannot allow questions at this stage. When the Leader announced the Order of Business today, he ordered 12 minutes and six minutes.

I did not realise my six minutes were up.

Senator Buttimer does not have to worry. I allowed him a bit of injury time. I call Senator Victor Boyhan.

I welcome the Minister for Justice and Equality, Deputy Charles Flanagan. I am conscious that when the Taoiseach was in this House he renewed a request for us to scrutinise legislation effectively and in detail. That was important for all of us and we should do that. I like the debate, which has been positive. On the whole, I want to welcome this legislation. The Judiciary has served this country with distinction over many years. We can all say that and that theme has been echoed here today. I am glad we are acknowledging that because it is important.

The independence of the Judiciary is a central tenet of our democracy and is enshrined in our Constitution. Article 35.2 of the Constitution states that "all judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law". My colleague, Senator McDowell, covered that in great detail and I am not going to elaborate on those points. Judicial independence does not just exist for the benefit of the judges. It exists also for the people and ensures public confidence in the administration of justice. The upholding of the tripartite constitutional separation of powers of the Legislature, the Executive and the Judiciary is fundamental for the functioning of our justice system. That is an important point to take as we debate this legislation. Article 35 of the Constitution states that "the judges of the Supreme Court, the Court of Appeal, the High Court and all other Courts established in pursuance of Article 34 hereof shall be appointed by the President". The Constitution further states that the President appoints judges on the advice of the Government and the Government alone.

I welcome today's debate on the judicial appointments commission. Judicial appointments should only be based on merit and capability and should be open, fair and transparent. This Bill attempts to do that. The entire appointment and selection process should be open to public scrutiny since the public has a right to know how its judges are selected. The Judicial Appointments Commission Bill must ensure that there is a record of the verifiable, independent, open, fair and transparent process, which any unsuccessful applicant is entitled to access if he or she believes there has been unfair treatment in the appointment process.

I do not believe this is dealt with adequately in the legislation. I put the Minister on notice that I intend tabling amendments on this matter. I took the time to look at the Commonwealth tenure of judges legislation. Just by chance I was on a flight to London the other morning with the dean of the faculty of law at UCD. She did not know me and I did not know her but we got to talking, as people do, about the nature of our work and she sent me some interesting documents on best practice across the Commonwealth. It is an important document and I suggest people read it because it echoes some of the points I am making. The entire appointments process must be open and I made the point that I will be bringing an amendment on that particular issue.

I support the principle of diversity. Other people have spoken about this. The Council of Europe recommends that there should be no discrimination against judges, or candidates for judicial office, on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, disability, birth, sexual orientation or other status. I have no problem with the lay participation as envisaged in this legislation. I would like a balance, not a majority, of both sides, lay and judicial.

On the issue of the lay chair of the judicial appointments commission, I have a different story. I do not believe it is the right way to go. I was interested in the Leader's comments where he said he would possibly prefer that the Attorney General or the Chief Justice look at that. I intend to table an amendment on that also. I firmly believe the chair of the judicial appointments commission should be the Chief Justice of Ireland. We have had a good debate but I hope the Minister will be open to some reasonable amendments on Committee Stage. I would like to work collaboratively and I appeal to Senators to work collaboratively to bring about change. We do not necessarily need individual groups saying different things, although people are entitled to do that. Let us on this occasion, however, try to work collaboratively to bring change. Many people have spoken and there is an expectation in the media that we in Seanad Éireann might shake this legislation. We have that opportunity in the next two weeks. Let us use it, collaborate and bring constructive measures to this debate.

I speak broadly in support of the Bill at this Stage. I will be brief as I know we will have many contributions. This legislation has been controversial, and a large number of amendments were tabled in the Dáil. Many of those have ironed out some of the more contentious issues, but others remain. There is a valuable discussion to be had in terms of the size of the commission and ensuring that the number of members does not make it unwieldy. This was an issue in the Dáil and I am sure it is something that may be worked at on Committee Stage here.

Some technical amendments are also planned on Committee Stage that can clean up some of the discrepancies arising from the debate in the Dáil. Most seem sensible and I will support them.

In a wider sense, we should welcome the broad goal of the Bill. I am supportive of opening up the process of how judges are appointed, especially as this will still ultimately be an advisory board. We are not putting the selection of judges to a public vote.

The Bill is about ensuring that the advice given to the Government when appointing new members of the Judiciary does not come only from the legal profession. We are trying to capture the voices and perspectives of wider society and walks of life. As my colleague, Senator Ruane, has mentioned, I am thinking in particular of people who have personal experience of the criminal justice system, such as those who may have been in addiction and experienced the justice system as a result of that. I really believe that people from more marginalised communities can bring an important perspective on how the system works and how judges can better understand what it is like to be on the other side of the courtroom. There is also a significant value there in terms of attitudes to sentencing and what works to reduce crime in a humane, empathetic manner.

I would like to see a scenario where the new commission is discussing the merits of applicants in the presence of a legal voice but also with someone who can look at a candidate from a human rights perspective, as well as someone who can look at sentencing or past work and see how effective it has been in terms of behaviours such as addiction. I met the Minister, Deputy Ross, to discuss the Bill and mentioned this point specifically but I think more detail will be required on how it will actually work in practice. In terms of the lay people on the commission, there are two stages. The first concerns how they will be reached and encouraged to put themselves forward. I do not want to see a situation where we move from one type of jobs-for-the-boys scenario to another, in which the only applicants for these roles are from extremely well connected and well funded walks of life. If we are serious about getting new, diverse voices and perspectives onto this body, then we need to see specific detail on what will be done to reach them. Where will we advertise? What outreach will be done? How will we bring this to the grassroots community level?

The second point, and this is related, concerns the support provided for commission members once it is actually sitting. We need to have provisions in place for basic things like training and facilitation to ensure that people are encouraged to speak up and bring their expertise to the table. If people know this support is available, the pool of applicants will be bigger. It will encourage people to come forward. When the commission actually sits, it will ensure contributions are coming from all sides of the room. This is not necessarily something we need to put in the text of the Bill as it concerns granular detail but I would like to see some discussion with the Minister on what will be done on these points and commitments.

Senator Colm Burke has six minutes.

I welcome the Minister to the House. Coming from the legal profession, I have some concerns on the Bill. It is important to recognise that the system of appointment to the judicial service has been in place since 1922 and the Judiciary has served the country very well. The Judiciary has pushed out the boundaries in constitutional cases and has given rights which were perceived not to exist. These appointments were made by the Government of the day yet the Judiciary kept its independence at all times and the separation of powers was always maintained. We are very lucky as a jurisdiction that this has been the case since 1922.

We are now discussing setting up a commission. Members are elected to Dáil Éireann and the Cabinet is formed by the party with the majority of support. The Cabinet is drawn from all areas of Irish life, including some with judicial experience or teachers and doctors who work in the community, but it is not from any one group. We are now setting up a new process for selecting the people who will be appointed to a judicial role when in real terms the Cabinet, which is not drawn from any one group of society, is already in place. While we may have criticisms of Governments, down the years, overall the Government has acted in a reasonable and proper manner when making judicial appointments. I have appeared in all courts, namely, the District, Circuit, High and Supreme Courts, and have always found, on reflection, that the decisions have been correct based on the arguments that have been placed before the judge or judges. It has been set out quite clearly that there is a need to set up this new commission and I accept that decision but it is important not to over-regulate by stating the Government of the day cannot do A, B or C when the system has already worked very well.

The 13 members of the commission will be drawn from the courts, the Office of the Attorney General and six lay people. The lay people will come from the recommendation of the Public Appointments Service, PAS. I am not sure it can make a wiser decision than the Cabinet of the day as to who chairs a particular committee or commission. Are we setting up another structure? In recent years, the talk was of removing quangos and I wonder whether we are setting up a structure that is not necessarily in everyone's best interest. We have taken the decision. There are Members who have far more experience in this area than have I and who intend to table amendments, which must be considered carefully.

It is important to emphasise that the Judiciary has served us well since 1922 and has maintained at all times its independence. While we might be critical of some decisions, we have got a very good return overall from the system that was established in 1922 and subsequently under the Constitution of 1937. The Judiciary has been independent in constitutional matters, no matter which Government was in power. The courts have been extremely proactive in ensuring that where the State has overstepped the mark, it has been held to account and in making sure the ordinary citizens have the same rights, regardless of their status and social and economic background.

We must give the Bill before us careful consideration and must ensure that we will not need to come back in four or five years' time because the commission is not reaching the right decisions on recommendations.

Senator Norris has six minutes.

I am unambiguous in my attitude toward this Bill. I think it is an appalling tissue of rubbish. We have heard all kinds of stuff on dogs tails and transparent lobsters. They could not even get it right in the Dáil. They tried to squeeze 16 people into 13 places. How nonsensical can one possibly get?

There is a huge whiff of populism off this Bill.

I am not convinced that the Minister for Transport, Tourism and Sport, Deputy Ross, despite his public protestations, is that averse to cronyism. Reference was made to the judgment in the case I took in the Supreme Court. Chief Justice O'Higgins's judgment was stupid. He misdirected himself in law because all that can be decided on in the Supreme Court is material arising from legal points in the High Court. Two other nincompoops gutlessly signed the judgment without giving any reason for doing so. I regard that as an aberration.

On a point of order-----

It happened and it does not particularly bother me. We made our argument and we eventually prevailed, which is the important aspect of the case.

I cannot sit here and allow members of the Judiciary to be referred to in the manner in which Senator Norris has done. The fact that the persons concerned may be retired is immaterial.

I do not know whether they are retired but that is what they were.

It is an outrageous comment, but I will defer to the Chair.

Does the Senator wish to withdraw the manner in which he referred to------

No. When someone signs a document without giving any reason for doing so and when the Chief Justice misdirects himself in law, how else can one describe it? The Minister has-----

I want it recorded that I dissent from the use of such language in the House.

It is recorded. The Minister----

In fairness, the people to whom the Senator is referring are not here to give their views or defend themselves.

To stop the interruptions, I will withdraw the remark.

That is a cynical reason for withdrawing it.

The Minister, Deputy Flanagan, said that reform does not imply that the present system has impaired the quality, diligence and integrity of the judicial function. He significantly failed to point to any single instance of judicially inappropriate appointment. That is a very significant fact, so there is no real reason for concern. The Minister also said that his approach is in accordance with the views of the Judiciary. I would not have thought so.

I welcome that there will be a nominee from the Irish Human Rights and Equality Commission but I would be a lot more impressed if the suggestion I made some years ago that all legislation should be human rights proofed before it is passed by either House was taken up.

There are some aspects of the Bill that are good. For example, the promotion of academics of distinction to the Bench is a good idea. It is also stated in the Bill that people should be promoted on merit. It is unbelievable that people would find it necessary to include such a provision in legislation. The most noxious part of the Bill is section 16 (2), which states, "The Procedures Committee shall consist of 9 members of the Commission, the majority of whom shall be lay members and the chairperson of that Committee shall be such one of those lay members as the Commission determines." Section 16(5) states:

A committee established under subsection (4) shall consist of such and so many members of the Commission as may be determined by the Commission, the majority of whom shall be lay members and the chairperson of the committee shall be such one of those lay members as the Commission determines.

That is nonsense. Are we to have a situation where dentists, doctors, teachers, lawyers, lecturers and so on are to be dictated to by lay members? I agree with the appointment of lay members to the commission but to provide that they be in the majority is utterly preposterous. In the context of statements of the commission, section 54(1)(b) states that the commission make such modifications to either of them as it considers appropriate and approve them as so modified. How is that for democracy and accountability?

I regard this legislation as nonsense. It is plain that it was introduced at the behest of one Minister. There is also a funny deal going on with Sinn Féin, but that is its business. Politics is all about deals. There is no doubting that this is a fact. We have the absurd situation whereby this highly undemocratic process is forcing unnecessary change into the legal system in a manner which guarantees lay majority, lay chairpersons and so on in a profession. Do we trust our judges? I do. I have been critical of some of them and I believe that in some cases idiotic judgments have been made. However, that is the nature of things. One simply needs to proceed and continue to argue until one wins. I will be opposing this Bill, which is a noxious piece of nonsense.

I welcome the opportunity to contribute to this debate. I come to this debate having not been lobbied by anyone and, thus, I have formed a clear view regarding where I stand on the matter. I support the Bill, which I believe is the right approach. It is founded on the basis of international comparison and evidence. The Bill stands up to international scrutiny and, more importantly, it stands up to the principle of opening up decision-making and ensuring that the public has an opportunity to participate in that decision-making. I understand the concerns raised, particularly by my learned colleague, Senator McDowell, but those concerns can be teased out in more detail on Committee Stage. In general, this is a good Bill.

I commend the Government on the introduction of this legislation, which is the right thing to do when one believes a right approach is being taken on an issue. Much has been said about the Minister for Transport, Tourism and Sport, Deputy Ross. I commend him on the stance he has taken on this issue, but that is not in any way to suggest shortcomings across the Judiciary. As has been said, our Judiciary has served the country well since our independence but that does not mean we should not review the manner in which judges are appointed, as we do in regard to appointments to all State committees. If there is a perception - it may be more than a perception - that, depending on the colour of one's political skin, one can be appointed to a State committee or board or to the Judiciary, that is wrong. The thrust of this Bill is to bring about a re-evaluation of the process to eliminate that perception and that is to be welcomed.

The Bill has been open to public consultation dating back to 2013. Recommendations have been made and the Bar Council, the Judiciary and others have made submissions on it. I understand it has been welcomed across the legal profession among solicitors. This should be acknowledged. Excellent research carried out by Professor Erika Rackley and Professor Clare McGlynn on the diversity within the judicial appointments process, not only in Ireland but internationally, and whether it impacts on the decision-making process states that judicial appointments should not be necessarily restricted to liberal or conservative views but should look at wider issues such as equality of opportunity, democratic legitimacy and public buy-in and confidence. The Bill seeks to achieve this.

On lay membership, Baroness Fraser in the UK, who is a crossbench Member of the House of Lords and who was the first independent lay chairperson of the Judicial Appointments Commission in England, stated that lay membership is not necessarily about increasing transparency or openness, rather it is about adding value to the system.

What she valued most about being a lay member and observing other lay members was that they brought independence of mind to the process. That is welcome, not just necessarily with judicial appointments but with political appointments to State boards.

Other jurisdictions have introduced such measures. Recently, England and Wales reconfigured the manner in which judicial appointments take place. On their 15-member commissions, there are six lay members, six from the judiciary, two lawyers and one non-legally qualified judicial person. The chair is a lay member of the commission. In Ontario, Canada, the newly established 13-member commission for judicial appointments comprised seven lay members, which included the chair, three judges and three lawyers. Based on the evaluations I have read about these arrangements in these jurisdictions, it seems the public has bought into it and the system is working.

While this legislation is not perfect, it is a step in the right direction and I am glad to support it. It is a good idea that academics have an opportunity to be appointed to the commission as well. The criteria for the public appointments process are set down. Having a blend is a useful toolkit in bringing more diversity to the legal profession. We have seen with the recent referendum, despite which side people were on, that Ireland is changing. We have a diversity of opinion with many new people coming into our country, which we all welcome. That diversity will improve the commission.

The current process is open and recommendations are made between seven and 20 members, with no ranking criteria associated with that. Judges are not interviewed, despite the fact the current process provides for that, which is wrong. If one goes for any job, one is interviewed. Senators are interviewed by many people when we go before the public or councillors who are our electors. There should be an interview process for any position of substance in the State in which one fulfils an important role. Currently, it is confined to three members and, ultimately, a Government decision.

I welcome the Minister. Like others, I recognise the origins of the Bill, coming as it does from the issues identified by the public consultation regarding the independence of the Judiciary on the one hand, as well as the importance that the Judiciary would reflect the eligibility and diversity of our population and that there would be clear transparency in the judicial appointments process. I welcome the broad thrust of the Bill. The increase in the levels of transparency and accountability in the process of appointing judges is welcome overall. I also strongly welcome the achievement of diversity in the Judiciary as a goal for the commission. However, I have concerns that while diversity and gender balance are strongly emphasised in section 7, section 36 which relates to the appointment of individual judges may lack the same emphasis in putting that into effect. A good point was made by Senator Ó Domhnaill that lay members are not witnesses solely alone but there is a question of adding value. In that section, there is a clear emphasis on the kinds of experience and skills, including experience with the Courts Service, rehabilitation and a wide range of other skills, which can add understanding to the debate. The lay member is not there as a witness but as a contributor.

On particular skills which are necessary and stated as goals, for example, human rights skills, I am concerned the requirement not to have practised law for 15 years could inadvertently serve as a barrier to some human rights experts. I refer to Irish Centre for Human Rights at NUIG. Many people who work in the human rights sphere rather than in the legal system come from that background. I welcome the clarity in the Dáil debate on the specificity of the IHREC, Irish Human Rights and Equality Commission, nomination. I have some concerns around the question of legal academics. There is a slightly different category which does not relate to our Judiciary or practising barristers or solicitors but to legal academics who have a useful insight to bring into the mix. Lay persons who were legal academics could serve as a bridge. We do not want to see the full component of lay persons represented but I am concerned that the 15-year bar may potentially serve to deny credible candidates in that regard. I may table amendments seeking one role for a legal academic in the mix.

My other concern is in respect of the appointments of judges. I recognise and applaud the conveyance towards diversity. I am concerned how health is invoked as grounds in that regard. It is unusual, and somewhat out of date, to put in a health test, or anything that could be construed as one, as one of the grounds for the appointment of a judge. Competence is reflected in the requirements. There may be a case to be made for ensuring somebody who has the competence also has the capacity. A key test should be, however, whether the person can do the work rather than the abstract idea of the state of his or her health and what it might be. I am concerned that it could lead inadvertently to an ageist component or prejudices in terms of disability or ability. We should rank the health of candidates in that regard. The key question is the candidate's capacity to perform the functions. There are better ways to capture that. Senator Dolan is also concerned about this.

I welcome the idea of a full-time director of the commission and the provision of training. The lack of training schemes within our Judiciary has been a key problem. The role of the director in facilitating and supporting legal analysis and resources for lay members will be crucial as will the role of the chair. While it was rejected by the Dáil, the chair may need to be specific characteristics who can both understand the law but also be that bridge in bringing everybody with them in that discussion. If the chair were to be a lay person, then he or she should have a good legal grounding.

I intend to table a few amendments on Committee Stage.

I thank Senators for their sharing their views on this important legislation. We all acknowledge the independent role the Judiciary has played as a fundamental pillar of our democratic structures since the foundation of the State, acting at all times independent of the Executive and Legislature. Its members have always acted in a way that has been separate, irrespective of the background from which they came or their previous careers.

In that regard, I do not share the views of commentators on the Bill who have indicated it is an answer to some form of cronyism or bad practice and that it is the result of a need to check our Judiciary in some way. I very much acknowledge what Senators have said in that regard. I very much agree that we have been very well served over the years by an independent, impartial Judiciary.

I acknowledge that the Bill has had its ups and downs over the past while, in the Dáil and in wider public commentary, as was said at the start of the debate by Senator Lorraine Clifford-Lee. It has been the subject of lengthy discussion but also of vigorous and robust discussion. It has proved a challenge to bring the Bill to where it is now. It has been the source of some controversy. As has been pointed out and as has been obvious to everyone, it has been heavily amended. It is now quite different from its original state in many respects. In this regard, I want to refer to point made by Senator Martin Conway, who said the essence of parliamentary discourse is debate. I welcome those Senators who have expressed doubts about certain parts, aspects and sections of the Bill. I acknowledge the positive contribution made by all those Senators who said they will allow for the passage of the Bill on Second Stage with a view to determining afterwards, by way of line-by-line scrutiny, how best to deal with it with a view to improving it. In that regard, I acknowledge that this is far from the finished article. It is in need of further adjustment, not least through a series of amendments on which the Ceann Comhairle gave a procedure-related ruling in the Lower House following the defeat of an amendment consequent to an important amendment that provided for the inclusion on the commission of the presidents of the two lower courts and the Attorney General.

I acknowledge what was said by almost every Senator, or group leader in particular, namely, that he or she will be tabling amendments. I welcome that but I must point out that there are 15 amendments all stemming from the expansion of the commission membership in section 10 that I need to table for Committee Stage to ensure that the Bill is clear, consistent and workable. It very much needs to be workable. These are essentially drafting amendments but they will nevertheless amount to changes of a pretty important nature.

Two of the 15 amendments will amend section 10, which specifies the membership make-up. Two will amend section 11, relating to terms and conditions of membership of the two lower court presidents and the Attorney General and their terms of office. There will be consequential drafting adjustments to section 12 and to sections 16, 17 and 18, relating to a member ceasing to hold office, and to section 19, relating to a member being ineligible to hold office, and section 20, on the removal of a member of the commission.

Section 44 will be extended to provide for the recusal from the selection and recommendation process of additional members of the commission where they have applied for appointment to judicial office and for their replacement in such event by the most senior judge of the relevant courts or by a different nominee of the legal profession, as will arise from time to time. In addition, I will be tabling some drafting amendments to tidy up certain cross-references in the Bill. For example, there will be drafting amendments to sections 12 and 43 to ensure the text is clear and relevant.

How much time have I left?

The Minister has until 5.50 p.m. He will not need it.

I will not need it. If that represents a deal, it may well be the extent of the deal, as has been referred to.

That is the deal on offer.

I want to make reference to some of the points made by Senators. I will do so in the context of my having been very pleased to have had the opportunity to sit here listening to many very constructive contributions and important suggestions, all of which I will reflect on for Committee Stage, acknowledging, as I do, the number and variety of amendments to various sections that I am expecting from Opposition Members. I look forward to those. I am very keen to have appropriate time given to Senators to reflect on this debate, to examine the Bill as passed by Dáil Éireann and to allow for informed amendments to be tabled. I am not coming in here today saying I want amendments tabled in the next couple of days or that I want this debate to resume here next Tuesday. Acknowledging that there are some shortcomings in the legislation that we need to address, I am happy to allow time to facilitate the drafting of amendments following due consideration.

Senator Lorraine Clifford-Lee spoke about compliance with European standards and the criticism by the European Commission. I acknowledge that there was criticism. It is important that the point raised by Senator Clifford-Lee is addressed. When the European Commission made its comments in March, when it published its 2018 country report on Ireland as part of the European semester, it based its criticisms on a proposed appointments body comprising three judges and a membership of 13. It is fair to say the commission received a specific submission from the Irish Judiciary, and I am sure that heavily informed its view. The criticism was based on the appointments body proposed, but it is now different based on amendments made on Committee and Report Stages in the Dáil. The Commission stated:

The envisaged composition of a new body for proposing judicial appointments raises concerns regarding the level of participation of the judiciary in that body. The proposed composition of the Judicial Appointments Commission, which would comprise only 3 judges over 13 (including a lay chairperson accountable to the Oireachtas) would not be in line with European standards...

It acknowledges specifically that this was opposed by the Association of Judges of Ireland. The commission refers to paragraph 47 of recommendation 12 of 2010, adopted by the Committee of Ministers in the Council of Europe. This sets out that an independent and competent authority drawn in substantial part from the Judiciary should be authorised to make recommendations or express opinions concerning the selection of judges. As Minister for Justice and Equality, speaking on behalf of my Government colleagues, I emphasise that the Government has taken note of the European Commission's comments but there is no single international binding standard in this area, nor is there anything that might be considered an acceptable international norm in this area. It is important to point out that within the international forum, the Irish common law system needs to be acknowledged.

It is worth noting that the 2010 Council of Europe recommendation also states at paragraph 48 that membership of the relevant independent authorities should ensure the widest possible representation. I have no doubt that consideration of "widest possible representation" goes beyond mere membership by judges or the Judiciary.

In any event, it is my view now that the European Commission comments are by and large redundant given that the structure of the proposal for the appointments commission has been changed and expanded to ensure a greater judicial input and a substantial judicial presence. That is why I was pleased that the Lower House accepted the proposal to allow for a voice on the commission for judges from each arm of the courts. I believe that has improved the Bill. That was also an important point and submission made by members of the Judiciary in the context of my discussions with them. I acknowledged that point in light of their expertise and experience over the past two decades under the appointments board system. What we have now is greater judicial input coupled with a strong legal presence and membership drawn from both arms of the legal profession, the Bar Council and the Law Society of Ireland, as well as a lay presence. In the context of diversity and having a membership that in some way reflects, or, if not, is fully representative of, our society a lay presence is important. That is provided for in the context of maintaining the programme for Government commitment to a lay majority component.

I want to acknowledge many of the constructive suggestions made by Senator McDowell, in particular when he makes reference to political engagement or involvement, very much with a small "p". Senators need no reminding that the constitutional imperative of Government is still very much retained. There was never any question that this legislation in draft guise, prior to publication, at pre-legislative scrutiny stage or during the public consultation would consider the issue of a referendum to change the Constitution to allow for a system of appointment other than by Government. To my mind, that never gained traction either in the political or legal arenas or among the wider public. That was an important point made by Senator McDowell and the legislation has been formulated against that background.

I did not hear Senator McDowell specifically reference the senior appointments group, but I would invite him to do so because many of the points he made would fit comfortably into what was in the Bill originally but is not now in it. This is something we should revisit with particular reference to the method and mode of appointment for the three most senior judicial figures in the State, namely, the Chief Justice, the President of the Court of Appeal and the President of the High Court. We should revisit how those appointments in particular might fit into what I can describe as the regular or common or garden process within the legislation before us. We should revisit the original intention, which was that there would be a senior appointments group for dealing with these three important appointees, the three most senior appointees. If I heard Senator McDowell correctly, he spoke about a more general interview process, perhaps a more protracted and lengthy process, and how that might not be the most attractive means by which we could arrive at selecting the three most senior appointees for judicial office. I will be revisiting the matter but I call on to Senators to consider how best that might be done having regard to what we have before us at present.

I wish to acknowledge the strong contribution of Senator Boyhan. I agree fully with his comment that there are aspects of this Bill in respect of which it would be somewhat challenging to find cross-party or all-party agreement in the Seanad. However, he undertook to work in a collaborative manner. That is important and that is what we are here for. I welcome his comments and I hope we can all work to that spirit, if not to the letter, in the coming weeks.

I wish to acknowledge Senator Ó Domhnaill's strident contribution. I agree with much of what he had to say. He declared that he was not lobbied and that he came to this more dispassionately and perhaps more objectively than some of us might profess to be. That was an important contribution and I was struck by it.

Reference was made by several Senators to the fourth evaluation round compliance report on Ireland by the Council of Europe monitoring body GRECO. It is important to note that a plenary session is taking place in Strasbourg today that will examine the state of play with regard to this legislation. The examination is an important aspect of the fourth round evaluation currently under way. I know some Senators had the opportunity of engaging first-hand with GRECO, just as I had before I joined Government. It is important that this august body monitoring every move of our legislative programmes will be able to see and acknowledge the progress that we have made in the matter of the implementation of GRECO recommendations. While there has been criticism by that body of us, as legislators, and of the Government, as executive leader, there have been many positive developments since the publication of the compliance report in June last year. I expect that progress will be reported in a further positive light when we get sight of the next report.

I wish to make brief reference to the mention made by Senator Buttimer, Senator Boyhan and others of the lay involvement, especially the status or position of the lay or non-legal chairperson in section 12, which was formerly section 15. Section 12 deals with the recruitment of lay members by the Public Appointments Service. As Senators will be aware, the section was heavily amended on Committee and Report Stages in Dáil Éireann. I imagine Senators will agree that if we compare the initial draft with what we have now, the changes from what was section 15 to what is now section 12 are stark.

It is unfortunate that there are a number of inconsistencies in the section. Of course, there is now a gap or a shortcoming. Senator Norris would probably put it in more strident terms than that.

The Minister is correct.

I acknowledge there is a lacuna in terms of the appropriateness or suitability requirements for the non-legal chair, and I will be tabling an amendment to deal with that. I am open to giving consideration to any further improvements to section 12 that Senators may wish to put forward. We can come back to that in more detail on Committee Stage.

I want to acknowledge the positive disposition towards the Bill displayed by Senators Ruane and Black. I have even gleaned some positivity from the remarks of Senator Bacik.

I was being constructive.

I did not agree with the entirety of her contribution, but she has specialist knowledge in this area which always ensures that her contributions are worth listening to. I took some positives from what she said although I reject the references made by Senators Bacik and Norris to a form of grubby deal between certain parties. I reject the deal and the word "grubby". That is not my practice.

What was it, if not a deal?

In support of what I say, I invite Senators - who are not often minded to read the record of Dáil transcripts due to the superior nature of the debate here in the Upper House - to look at the number of amendments to this legislation on both Committee and Report Stages and assess the comparator in terms of agreement between the party groups. They will find, perhaps to their surprise, a strong trend where, on amendments and submissions, an agreement was reached between the two main Opposition parties - Fianna Fáil and Sinn Féin - rather than any particular trend, in voting or otherwise, between either or both of the Opposition parties and the Government.

I congratulate Sinn Féin on keeping the Minister for Transport, Tourism and Sport, Deputy Ross, in government.

That statement very much speaks for itself. I also point to what Senator Ó Donnghaile said in the course of his contribution. He put the Government on notice of a number of amendments that he will table, many of which will be controversial and some of which will be uncomfortable for Government. In the spirit of Senators Conway and Boyhan, let us agree to collaborate as much as we can and get the best from this legislation, which must be constitutionally sound, legally robust and practically workable. I believe we can do that.

The Bill, as originally drafted, involved a rather lengthy process involving groups, subgroups and committees, which has been removed. I believe that has resulted in a better Bill, the quid pro quo being that fewer committees and subgroups lead to a larger commission. That is why we must deal with the very glaring inconsistency, which formed the basis of the contribution made by Senator Norris, by having an enlarged commission with a lay majority and by ensuring there are no contradictions in the Bill. We can work towards that without having to throw out the entirety of the Bill, which unfortunately is the disposition of Senator Norris.

We will be in a position to move forward to Committee Stage. I have an open mind on many of the amendments coming forward but I ask that serious consideration be given by Senators to my Government amendments on the basis that they seek to ensure we have a Bill that is not in conflict with the Constitution. Senator McDowell is correct that there are certain aspects to this legislation which might conflict with it, one of which he referred to when he said he would call for the President to refer the Bill to the Supreme Court. It is important that we would, on Committee Stage, do what is required of us, which is to ensure that the Bill is constitutionally sound before it leaves us on its journey to Áras an Uachtaráin and does not require the type of referral that Senator McDowell has suggested. The point made by the Senator was valid.

I thank Senators for their positive contributions. I have outlined the amendments I will bring on Committee Stage. I am open to persuasion in terms of further improvements that might be made. I do not believe we should scrap the Bill. We should work on it. I detect a majority in the House who are in favour of some form of amended legislation along the lines of what is proposed in this Bill and I welcome that. I believe we can make further improvements to the Bill by working together. We have made significant progress, judging from the intimations of the party leaders, group leaders and individual Senators. We have benefitted from the Second Stage debate this afternoon. I thank Members for their contributions and their co-operation and I look forward to further debate. In fairness to everybody, we need to reflect where we are now, at the end of the Second Stage debate, before coming back with what I expect to be a considerable number of amendments. I will circulate the amendments I am proposing as soon as possible for the consideration of the Senators and I look forward to receiving the amendments proposed by each group. My officials are available, as am I, to answer any queries, questions or clarifications that might be required in the context of the preparation of amendments. It is my intention that we will complete this legislation by the summer recess. I hope that is possible but I am not going to hamstring Senators in any way. I want open debate and positive contributions and I want to deal with the issues. I hope that we can complete the legislation in the timeframe set down by the Seanad for its work to be completed, perhaps towards the end of July. I am available to discuss the Bill and I hope that we can conclude matters in a positive and constructive manner.

Question put:
The Seanad divided: Tá, 33; Níl, 13.

  • Black, Frances.
  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Craughwell, Gerard P.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Hopkins, Maura.
  • Lawless, Billy.
  • Lawlor, Anthony.
  • Mac Lochlainn, Pádraig.
  • Marshall, Ian.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Donnell, Marie-Louise.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Céidigh, Pádraig.
  • Ó Domhnaill, Brian.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Richmond, Neale.
  • Ruane, Lynn.
  • Warfield, Fintan.


  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Daly, Mark.
  • Daly, Paul.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • Kelleher, Colette.
  • Leyden, Terry.
  • Norris, David.
  • O'Sullivan, Ned.
  • Ó Ríordáin, Aodhán.
  • Swanick, Keith.
  • Wilson, Diarmuid.
Tellers: Tá, Senators John O'Mahony and Neale Richmond; Níl, Senators Lorraine Clifford-Lee and Diarmuid Wilson.
Question declared carried.

When is it proposed to take Committee Stage?

Committee Stage ordered for Tuesday, 26 June 2018.