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Seanad Éireann debate -
Tuesday, 3 Jul 2018

Vol. 259 No. 4

Judicial Appointments Commission Bill 2017: Committee Stage


Amendment No. 1 has been ruled out of order as it forms a composite proposal with amendment No. 2 in conflict-----

Why is amendment No. 1 out of order?

Amendments Nos. 1 and 2, in the names of Senators McDowell, Boyhan and Craughwell, form a composite proposal and seek to make the commencement of the Act conditional on the passing of a resolution by the Houses confirming that the Act reflects European standards and secures judicial independence. The effect of the amendments would be to impose conditions for the commencement of the Bill that are external to the provisions of the Bill and would require additional action by the House external to the consideration of the Bill. The required action cannot be guaranteed by the provisions of the Bill and the amendments must therefore be ruled out of order on the grounds that they are in conflict with the principle of the Bill as read a Second Time in accordance with Standing Order 154.

I wonder could we hear Senator Michael McDowell on this. Would he like to give us his opinion?

It is out of order and I am not allowed to let anyone make a contribution as a consequence.

The Senator asked about it. I was outlining-----

I want to be orderly. I accept the ruling of the Chair.

Amendments Nos. 1 and 2 not moved.
Section 1 agreed to.

Amendments Nos. 3 to 5, inclusive, are related and may be discussed together, by agreement.

I move amendment No. 3:

In page 8, between lines 4 and 5, to insert the following:

" "diversity" means a wide range of backgrounds, experiences, interests and perspectives, reflective of the diverse nature of Irish society and including but not limited to socio-economic status, gender, race, ethnicity, minority groups and the majority group;".

I thank the Minister for his time this afternoon. I support the principles of this Bill, especially in regard to diversity, but nowhere in the Bill is there a definition of "diversity". The diversity envisaged seems more like the diversity of sectors or different professions than diversity in society as a whole. This amendment seeks to define "diversity" for the purpose of the Bill.

It is a welcome provision of the Bill that achieving greater diversity in judicial appointments is central but we want to ensure this is not simply paying lipservice and actually has some substance. I drew my definition from a set of diversity guidelines issued by Mr. Brian Lenihan when he was Minister of State with responsibility for children in 2007 and I adapted it for use in this Bill. I believe the definition is broad and encompasses a wide range of diverse factors that would be welcome in regard to new judges to be recommended under the Bill. It would also ensure that the achievement of diversity could not solely be defined by moving away from the current cohort, with close associations with the current law practice, but would actually be reflective of broader Irish society.

I spent a lot of time in the courts over the years with clients in respect of addiction. I wish to refer to a judge who passed away in recent years. My clients really appreciated her in-depth understanding of addiction. When they were in front of her for a crime, they definitely did not feel shamed or stigmatised because of their addiction. Her attitude to sentencing and the manner in which she spoke to the addicts were usually greatly welcomed by a certain cohort of society. It shows that when we consider diversity, especially in regard to a class dimension, we realise we have to move towards having a more diverse slate of judges. The position of a judge as a legal arbiter is strengthened when he or she is reflective of the broader population. He or she is given legitimacy as a result. It would only add to public confidence in our Judiciary if people felt represented and similar to those charged with interpreting our laws. This can be a positive thing, and it would be possible if the definition were accepted.

I wish to speak on amendment No. 5, the Labour Party's amendment in the grouping. It is a more technical amendment, simply offering a definition of a person who is employed in the service of the State. It specifies that a person is employed in the service of the State if he or she is a member of the Garda or the Defence Forces, or a civil servant.

I support Senator Ruane's amendment No. 3. On Second Stage I made reference to the need to ensure diversity. Clear respect for diversity is stated in the Bill as part of the reform of the judicial appointments process. I also support amendment No. 4 in the name of Senator McDowell which he has not yet had the chance to move. I will come back to it.

In a more general sense, I am disappointed that the House did not accede to the amendment I moved to the Order of Business earlier, to defer the consideration of Committee Stage of this Bill today because we have not yet had sight of a published report by the Council of Europe's Group of States against Corruption, GRECO. We know from the leaked excerpts of the report that it is highly critical of various provisions of this Bill. GRECO has expressed serious concerns about the composition of the commission envisaged in the Bill. As far as we are concerned, every provision of this Bill should be scrutinised in light of the GRECO report but we cannot do that until we have sight of it.

As I said on Second Stage, and earlier today on the Order of Business, we are legislating in the dark. We finally had sight of the Minister's amendments, but very late in the day. There are 111 amendments, of which my Labour Party colleagues and I have tabled 20. Others have tabled some also. There is a significant number of Government amendments. We are seeing them without knowing whether the Government has drafted them in response to the GRECO critique or whether there are further amendments to come that will address the concerns raised in the critique, particularly that on the composition of the appointments commission. Therefore, it is somewhat problematic to be in the process of proposing any amendments, even the technical one I am proposing, amendment No. 5, without knowing the ultimate shape of the Bill as envisaged by the Government or what it is proposing to be the shape of the Bill.

Many Members spoke earlier about the unseemly haste with which the Bill is being rushed through, with late-night sittings proposed for tonight and tomorrow night, and with Report Stage to be taken in less than a week. This is not a satisfactory way to legislate. It is most unfortunate given that there is goodwill in this House generally towards the principle of judicial appointments reform. I said in my Second Stage speech that I want to be constructive. I am approaching this Bill in that spirit. That is why we are putting forward amendments such as amendment No. 5. We will also be tabling more substantive amendments and supporting the more substantive amendments being tabled by colleagues.

I, too, welcome the Minister to the House. Has he any knowledge as to when the GRECO report will be published by the Government? He is shaking his head to indicate he does not. I echo what Senator Bacik has said, namely, that it seems extraordinary when such an important report-----

I was outside when the Seanad voted on this issue.

Oh, yes. It voted because there were deals done.

I did no deal. I was outside in the anteroom when-----

I am not saying the Minister did.

The Minister for Transport, Tourism and Sport, Deputy Ross, did the deal for him.

The Minister should not get cantankerous.

I was outside when the Seanad voted.

The Minister should not get cantankerous. He should think of the lovely uplands of County Laois, the Slieve Bloom Mountains, and pacify himself. It seems a great pity, no matter what way the Seanad-----

The vote is a great pity. I do not have anything to do with that.

The Minister regrets the vote. I do understand his position. It is very welcome that the Minister regrets the vote. So do we.

I said I do not have anything to do with it.

No. The Minister said he regretted it.

I did not say I regretted it.

The Minister did.

I said the vote took place. I do not have anything to do with the vote.

I did not regret the vote.

The Minister said he did.

I did not say that.

Notwithstanding the vote-----

I will let the Minister in.

Every time I come in here, without fail, I am misrepresented by Senator Norris. The only occasion on which I was not misrepresented was when he left the House before I replied. I did not regret the vote. I abide by the vote of the Seanad. I am dictated to by the vote of the Seanad.

Yes, absolutely.

I did not vote. I do not have a vote.

Therefore, for Senator David Norris to go back over issues that have been decided is, to my mind, out of order. I will let the Acting Chairman deal with that, however.

Senator Norris should go ahead with his point, and then we will let the Minister back in.

The Minister did not pick up on Senator Bacik. We will see what the record says. It is interesting that the Minister did not pick up on what Senator Bacik said.

I believe it was a verbal slip.

It was a verbal slip but the Minister did say it.

He said the vote was a pity.

It was a verbal slip but the Minister said it, and I picked it up.

I did not have anything to do with the vote.

Yes. Let us leave this side-----

Senator Norris should continue with his points on amendments Nos. 3 to 5.

I still believe it is perfectly legitimate for me to say, as Senator Ivana Bacik said before, without interruption, that it is regrettable that we did not have access to the GRECO report before this debate and before the vote. It might have changed things slightly if we had access.

I support the thrust of amendment No. 3 in the name of Senator Ruane. I agree with her that there should be diversity. I remember being in the Dublin District Court and seeing the implementation of what I can only describe as class justice. One had a far greater chance of being convicted and sentenced to jail if one came from a working-class background or certain areas of Dublin, particularly the north inner city. I believe, however, it is a wish that there should be the kind of diversity envisaged because I have not seen any black or Indian judges, nor have I seen any Traveller judges.

Very few judges come from a lower socioeconomic status. If this amendment can increase that quotient then I think that would be extremely good.

I welcome the fact that the Labour Party has decided, under amendment No. 5, to insert:

“(3) A person is employed in the service of the State if he or she is—

(a) a member of the Garda Síochána,

(b) a member of the Defence Forces, or

(c) a civil servant in the Civil Service of the Government or the Civil Service of the State.”.

I am not 100% sure that exhausts all the possibilities. That is, of course, always the problem with putting down these kinds of statements of fact and recitals of lists. There is always a possibility that the list is not exhaustive. I would have preferred if we said that a person is employed in the service of the State "if, among other things, he or she is" or "if, among other groups, he or she is" and so on.

I greatly regret having inflamed the Minister once again. I am most penitent.

Senator Norris should try not to do it again.

That is Senator Norris's regret not my regret.

The Minister regretted the vote.

Senator Norris, try not to provoke any further, if you do not mind. Senator McDowell is next. You have until 11 p.m. to do more of that, Senator Norris.

Senator Ruane's amendment seeks to impose a statutory definition on the term "diversity", which is an inclusive definition. She is proposing that the term "diversity" should mean "a wide range of backgrounds, experiences, interests and perspectives, reflective of the diverse nature of Irish society and including but not limited to socio-economic status, gender, race, ethnicity, minority groups and the majority group;".

Let us be clear about this. People are nominated for service in senior judicial office. Let us look at a few things about them. First, I am quite happy with the legal academic category. However, unless they are in this new category they are by definition people who have spent ten or 12 years in practice as a lawyer. They are people who are required by this Bill to be learned in the law. They are people who are required by this legislation when it is enacted to be knowledgeable of the procedures of the courts in question. Let us not cod ourselves. The people who will be selected on merit for judicial appointment will be people who will have been successful practising lawyers. By virtue of that fact, unless they are legal academics contemplated by the Bill, they will be people appointed by virtue of their merit as judges. The statutory criteria for selection include the requirement that a candidate has a practice of ten or 12 years or whatever it is. The statutory criteria include the requirement that the candidate is knowledgeable in the law and knows what the practice of the court will be. People are codding themselves if they think that the Judiciary elected or selected on merit may also in some magical way be reflective of Irish society on a broader basis. They are codding themselves. It is a nice thought but it is a misconceived thought.

The term "diversity" was left undefined but Senator Ruane's amendment suggests that effectively the people making selections should have regard to "a wide range of backgrounds, experiences, interests and perspectives, reflective of the diverse nature of Irish society and including but not limited to socio-economic status, gender, race, ethnicity, minority groups and the majority group". The House should know that in the past there was a convention that there would be a reflection of the religious diversity of the State. Successive Governments were always careful to ensure minority religions were to be found in the Judiciary. Nonetheless, those appointed had to be qualified people with practice, experience, judgment and so on.

That was very useful sometimes.

Curiously, religion is one of the things that is omitted here, which is interesting.

Blame the prods.

Maybe that reflects our evolving society. That one factor for seeking diversity which was ingrained in the practice, but not in the law, is now to be omitted under this definition.

The other thing is that the terms "minority groups" and "the majority group" are concerning. Who is the majority group? Is there a thing called the majority group?

They are white heterosexual republicans.

They are people like Senator McDowell.

Who is the majority group in our society? Is it liberals or conservatives?

I do not identify with the use of the phrase "minority groups" and "the majority group" as if there is some big herd of people who constitute the majority group of Irish society and who can be identified and remembered by a committee when it is making appointments.

Then we come to socioeconomic status. If a person had been practising for many years in the Law Library or as a solicitor or if a person is a senior academic-----

Then that person is in clover.

Such a person is highly unlikely to be personally socioeconomically on the deprived end of the scale. It is highly unlikely. Such a person may have come from a socioeconomically challenged background. I know various judges, one of whom was born in Coolock and another who was a very successful judge – I will not mention them by name in order not to embarrass them – but who was brought up by a widow in another less fashionable part of this city. These things happen already. We have ill-informed commentators saying that they are all white middle-class males. That does not apply anymore because there is a significant number of female judges now being appointed. Are we to suddenly decide that if we have three people who are all pretty good but we do not have someone with the right coloured skin then we should hesitate and think about that? Are we to suddenly decide that since the past three recommendations have not included someone from the Traveller community then we should hesitate and think about that? I do not think that makes sense. This prescriptive approach is misconceived.

The greatest liberals and the greatest judicial radicals have come on occasion from the most conservative and most socioeconomically privileged backgrounds. They have been sent to fee-paying schools. They have come from wealthy backgrounds and they turn out to be great liberals. There is no reason to believe that because a person's parents were less well off than some of the others in the Judiciary that person is made into a conservative, liberal or radical. In my experience, it does not work out that way. In fact, it is quite the reverse. Sometimes, we see a complete reversion in the opposite direction. The people who, because of their background, might be considered to have one experience turn out to be very much different when it comes to their judicial record and philosophy. I wonder whether it is a good idea to recite all of this.

Gender is down there but not sexual-----

I ask Senator McDowell to adjourn this debate until 7.30 p.m.

I am sorry and I move the adjournment.

I ask the Leader to report progress.

I report progress.

Progress reported; Committee to sit again.