Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

SECTION 10

I move amendment No. 22:

In page 11, line 3, to delete "6 lay persons" and substitute "5 lay persons".

This proposal is to substitute the reference to "6 lay persons" with "5 lay persons". It is designed to bring about a situation in which it is very clear that the lay participation in the judicial appointments commission should not be a majority of that commission. The thinking behind this proposal is to ensure that, although there would be a significant number of lay persons on the commission, they would not constitute a majority. As to whether the commission should or should not be composed-----

I have allowed Senator McDowell to move amendment No. 22, which was discussed with amendment No. 13. We cannot have another discussion on the amendment.

I may only move the amendment.

That is all I can allow.

Amendment put.
The Committee divided by electronic means.

Under Standing Order 62(3)(b), I request that the division be taken again other than by electronic means.

Amendment again put:
The Committee divided: Tá, 17; Níl, 23.

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Daly, Mark.
  • Daly, Paul.
  • Davitt, Aidan.
  • Freeman, Joan.
  • Gallagher, Robbie.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • McDowell, Michael.
  • Mullen, Rónán.
  • Norris, David.
  • O'Sullivan, Grace.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coghlan, Paul.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Reilly, James.
  • Ruane, Lynn.
  • Warfield, Fintan.
Tellers: Tá, Senators Gerard P Craughwell and Michael McDowell; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

I move amendment No. 23:

In page 11, line 3, to delete "6 lay persons" and substitute "4 lay persons".

Amendment, by leave, withdrawn.

Amendment No. 24, in the name of Senator Ó Donnghaile, has been ruled out of order as it involves a potential charge on the Revenue.

Amendment No. 24 not moved.
Government amendment No. 25:
In page 11, between lines 3 and 4, to insert the following:
"(2) Subsection (1) is without prejudice to sections 17, 44 and 47 (which make provision, in limited and defined circumstances, for substitutes for certain of the foregoing persons).".
Amendment put.
The Committee divided by electronic means.

Under Standing Order 62(3)(b) I request that the division be taken again other than by electronic means.

Amendment again put:
The Committee divided: Tá, 21; Níl, 14.

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coghlan, Paul.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Reilly, James.
  • Warfield, Fintan.

Níl

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Daly, Mark.
  • Daly, Paul.
  • Davitt, Aidan.
  • Gallagher, Robbie.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • McDowell, Michael.
  • Norris, David.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Kevin Humphreys and David Norris.
Amendment declared carried.
Question proposed: "That section 10, as amended, stand part of the Bill."

On the section, the first thing I would like to say-----

The Minister is not here yet.

I am happy to wait.

I have five minutes to get a cup of tea.

A cup of tea. You mean you are going to rob a bank.

Although the Minister is not here, the Seanad is in session so Members should be careful of what is said. I invite Senator Norris to speak on section 10.

The first thing I would like to say is not directly related to section 10 but has some relevance. I was very shocked to read in the Sunday Independent a vitriolic personal attack on-----

I ask those who are leaving to do so quietly. We cannot hear Senator Norris.

-----Senator Michael McDowell who, I have to say, throughout the debate has been very level headed, reasonable, scrupulous and well informed, as one would expect from a former Attorney General.

The Senator's point may be interesting but I think it is obiter dicta - a statement of-----

I have not said this before but I did say that it was a bit fat coming from someone who used the Sunday Independent, his own newspaper, in an abuse of privilege. This is the newspaper into which he introduced his son-in-law and his election workers. It is a great advertisement for cronyism.

The Minister, Deputy Shane Ross, is not here to defend himself or otherwise. Section 10 is not about Senator McDowell or the Minister.

I just wanted to make those preparatory remarks.

Allow me to reject what Senator Norris has to say on behalf of my colleague.

The Minister, Deputy Flanagan, cannot reject it because it is the truth. Is he denying the facts?

I am appearing on behalf of the Minister, Deputy Ross.

He cannot deny the facts.

On a point of order, is the Senator allowed to name people who are not here to defend themselves?

I did not name anybody. The Leader should sit down.

It is okay for Senator Norris to make comments but it is not okay for us to rebut what he is saying.

The Leader cannot rebut them, they are the facts.

I am dealing with this. Senator Norris is to return to the section.

With respect, a Chathaoirligh, if I may, this is a debate on a substantive piece of legislation and to trivialise and personalise it ill behoves Members of the House. We should have a debate on a substantive issue. If Members have a legitimate concern, as some do, around the composition of the Bill and what it is trying to do, that is fine. However, to come in here and personalise-----

If I may, this is important. To make personalised attacks on Ministers and Members of the Government is unfounded and downright wrong.

It is not unfounded.

The Leader can come in at a later stage. Senator Norris should please resume to the purpose of section 10.

I would like to move on to the kernel of the situation and point out that a member of Sinn Féin, Deputy Aengus Ó Snodaigh, who I know is not here to defend himself, thought this Bill was a great idea because it would prevent judges with what he described as an anti-republican bias from being appointed to the court.

If that is not political interference, I do not know what is. They can interfere to make sure that somebody who does not suit their particular political complexion does not get to be considered for appointment as a judge.

We have heard a certain amount about the GRECO report. It recommended that "the current system for selection, recruitment, promotion and transfers of judges be reviewed with a view to target the appointments to the most qualified and suitable candidates in a transparent way, without improper influence from executive/political powers". It refers to encouraging the Government to introduce reforms. I received its submission through the post, not from the Minister.

The report also states:

In addition to the information [directly] submitted by the Government, GRECO has also received information, directly submitted to it, by the judicial authorities, through the Chief Justice of Ireland, the President of the High Court and Acting President of the Court of Appeal, the President Designate of the Court of Appeal, the President of the Circuit Court and the President of the District Court concerning Recommendation vii. In their submission they stress that the Judicial Appointments Commission Bill 2017 has not been subject to in-depth consultations with the judiciary (contrary to what is stated by the Government).

I would like to get the Minister's view on this. The GRECO report clearly and explicitly states that what the Government has said, which has been repeated in this House, about there having been extensive consultation with the judges is simply not true. The Judiciary has consistently opposed the content of the Bill, the components of which it believes are inconsistent with European standards. The GRECO authorities find themselves in agreement with these judges.

I will not read all the report into the record. Is the Minister inquiring about the relevant page? It is page 7.

The Leader was offering some advice to the Minister.

I beg your pardon. I thought he was looking for the page. I was just trying to be helpful. Sections 35 and 36 read: "GRECO has significant concerns about the composition of an appointments commission as proposed in the Judicial Appointments Bill (as amended on 31 May 2018), [This is a very recent comment, made a month ago, at a maximum] which would place judges in a clear minority position". This is what is being considered in the amendments. I advise colleagues that I withdrew my amendment, which would have reduced the lay participation, so that it can be resubmitted on Report Stage.

Tomorrow, possibly.

No. I do not believe Report Stage will be taken tomorrow because we usually allow a day or two before that.

Wednesday or Thursday.

The Minister has great expectations.

He can have great expectations as much as he likes. I was discussing this matter with Senator McDowell and he referred to the Charles Dickens case of Jarndyce v. Jarndyce, which is an apposite comment.

The report further states:

GRECO questions if this move is in line with the European standards which in situations where final judicial appointments are taken by the executive, calls for an independent authority drawn in substantial part from the judiciary [this is the important point] to be authorised to make recommendations or opinions prior to such appointments. GRECO also recalls its own position, as clearly expressed in the Evaluation Report ... that the composition of the JAAB (consisting of a majority of judges and chaired by the Chief Justice) was considered suitable for the selection [process].

That is its informed view and it is the senior anti-corruption body of the Council of Europe.

Paragraph 36 of the report reads:

GRECO takes the view that the Judicial Appointments Bill as far as the composition of the appointments commission is concerned needs to reflect European standards, aiming at securing judicial independent through substantial judicial representation in relation to the overall composition of the proposed commission. The controversial Bill, which has been subject to some amendments in this respect, is still under debate in Parliament, subject to critical media attention, and has been heavily criticised by the judiciary on grounds GRECO assesses to be reasonable. GRECO urges the authorities to re-consider this matter in order to limit potential risks of improper influence from the executive/political power over the appointment process to the judiciary, or any perception thereof, and to do so in close co-operation with the judicial authorities.

That is extremely important because it goes to the nub of the issue. The Bill is supposed to address the limiting of potential risks of improper influence from the Executive or political power and yet GRECO states it is opening up the possibility of political or Executive influence.

I thought Senator Norris could not get a copy of the GRECO report.

I stated I did not get it from the Government.

I believe that Senator McDowell will follow on this. I hope we will speak on the section because Senator McDowell showed me an earlier Bill from the then Senator Ross and I-----

On a point of order, we should have a quorum for the debate.

Notice taken that 12 Members were not present; House counted and 12 Members being present,

We shall now resume. Senator Norris is here. I was going to call another Senator.

I thank the Cathaoirleach. I appreciate that.

I know the Senator is anxious to conclude.

Yes. I was just about to conclude. I was making the point that this Bill will have the effect of opening up the possibility of political intervention. That is quite extraordinary. My good friend and colleague, Senator Michael McDowell, will be contributing on this so I will not trespass on his area. May I anticipate his remarks, however, by saying-----

The Senator should not anticipate and should allow Senator McDowell to comment.

I accept Senator Warfield's advice because he is a young Sinn Féin person and, therefore, untainted.

Please. I call Senator Clifford-Lee.

I wish to speak on section 10. I reiterate my disappointment and that of Fianna Fáil that this Bill is proceeding in its current format. Much has been said already today about the GRECO report but I want to add my voice. I want to refer, in particular, to paragraphs 35 and 36 of the report. Some of the Members do not have it in front of them so I will read the paragraphs. Paragraph 35 states:

GRECO has significant concerns about the composition of an appointments commission as proposed in the Judicial Appointments Bill (as amended on 31 May 2018), which would place judges in a clear minority position in favour of a strong lay representation (including the chairperson), accountable to Parliament. GRECO questions if this move is in line with European standards which, in situations where final judicial appointments are taken by the executive, calls for an independent authority drawn in substantial part from the judiciary to be authorised to make recommendations or opinions prior to such appointments. GRECO also recalls its own position, as clearly expressed in the Evaluation Report (para. 132), that the composition of the JAAB (consisting of a majority of judges and chaired by the Chief Justice) was considered suitable for the selection procedure.

That remains the position. We have debated this. The Leader stated that the main concerns of GRECO have now been rectified by the Government amendments but this has not been rectified. This is very clear and very damning. GRECO's significant concerns are really concerning to me. GRECO's preferred position is to have the Judicial Appointments Advisory Board consisting of a majority of judges, with the chairperson being the Chief Justice, yet the Government is doing something in clear opposition to that. I know the Minister's heart is not in this legislation. I know plenty of people in the Minister's-----

I just know it is not. The Minister cannot stand over this report.

The Senator might sense it but she does not know his mind.

I can sense from my dealings with the good Minister that his heart is not in this legislation, nor are the hearts of the majority of members of his party. It is very concerning that the Government is pressing ahead with this ill-advised legislation.

Section 36 of the GRECO report states:

GRECO takes the view that the Judicial Appointments Bill as far as the composition of the appointments commission is concerned needs to reflect European standards, aiming at securing judicial independence through substantial judicial representation in relation to the overall composition of the proposed commission. The controversial Bill [Even the report states "controversial Bill".], which has been subject to some amendments in this respect, is still under debate in Parliament, subject to critical media attention, and has been heavily criticised by the judiciary on grounds that GRECO assesses to be reasonable. GRECO urges the authorities to re-consider this matter in order to limit potential risks of improper influence from the executive/political power over the appointment process to the judiciary, or any perception thereof, and to do so in close co-operation with the judicial authorities.

It is clear that this has not been addressed by the Minister for Justice and Equality or by the Government.

Senator Norris made clear reference to the statements uttered by Deputy Ó Snodaigh in relation to the anti-republican bias of some judges, and who hoped this would not be the position going forward. That clearly outlines the position that GRECO is trying to avoid, and that the Government is allowing to proceed. I am very open to diversity in both branches of the legal profession and the Judiciary. However, this Bill goes nowhere to solve those problems. As I outlined last week when I spoke on the Bill, it is very hard for people of diverse backgrounds to get into the legal profession, and to be in the position to become judges. I asked the Minister to work with Members of this House who are very concerned about the diversity of the legal profession. I would like him to address that point in his response.

The GRECO report states:

40. The Government of Ireland maintains its position that the establishment of the Public Service Pay Commission is relevant for this recommendation, in the light of Article 35 of the Constitution, which provides for judicial independence and safeguards around remuneration and that in this context there is no provision to provide separate structural pay determination arrangements for the judiciary.

41. The representatives of the judiciary ... take issue with this position as this recommendation extends beyond the question of pay determination arrangements to issues which have direct impact on judicial independence, integrity and quality.

I do not know how any House of this Oireachtas, the Minister or his Government can stand over this. It is outrageous.

In the conclusions of the GRECO report, point 52 states that in view of the foregoing, GRECO concludes that Ireland has still implemented satisfactorily, or dealt with in a satisfactory manner, only three of the 11 recommendations contained in the fourth round evaluation report. How can we continue with this? Surely the independence of the Judiciary is a cornerstone of our democratic process and judicial process, and of everything that Ireland has been very proud to stand for since the foundation of our State. It is outrageous that this has not been addressed significantly. It is political pressure coming from one individual who has issues with the legal profession and the Judiciary, outside his own remit. The Government is hanging onto power and allowing this disgraceful piece of legislation to pass because of its hunger for power. I want the Minister to say to this House that he is happy with this. On behalf of the Fianna Fáil group, we are very disappointed. We would be willing to work with the Minister if we felt this was correcting some of the much-needed reforms, but it does not do anything in that regard. It does not help diversity within the legal profession or the Judiciary.

On a point of order, the House might be interested to know that Boris Johnson has resigned.

That is not a point of order.

I refer to what Senator Norris said about weekend journalism. Sticks and stones may break my bones but words will never harm me. I would like to remind the Members of the House of some of the things that have happened in this debate thus far, apart from the GRECO report and its non-publication, to which I will return. We should remember that the origins of this legislation predate the emergence into a position of political leverage of the Minister for Transport, Tourism and Sport.

As I understand it, the Department was working on legislation along these lines well in advance of his accession to the Cabinet so it is unfair to say, and I do not make the charge, that this Bill is entirely his creation or that the fact that we have this legislation is entirely his doing. The record shows otherwise. The record shows that as far as back as the former Minister for Justice, Alan Shatter, work was being done on a Bill along the general lines of this legislation to replace the Judicial Appointments Advisory Board which, as I have acknowledged, had deficiencies in the way it operated, particularly in respect of the District Court where it was overwhelmed with applications and had no real means of vetting them very carefully or coming to any detailed knowledge as to the merits or demerits of any particular applicant. I am not trying to attribute responsibility for this legislation to the Minister for Transport, Tourism and Sport or anybody else. It was coming anyway. Bringing this legislation through was part of the Department's long and short-term agenda.

Again, prior to the inclusion of the Independent Alliance in the Government, there was quite a detailed interaction between the Government of the day and the Judiciary in which the Judiciary expressed its views about the inadequacies of the Judicial Appointments Advisory Board system and the way it worked.

May I ask the Senator, insofar as it is possible, to confine his remarks to section 10.

I am and, therefore, I am coming to the question of a lay majority and where it came from. We should bear in mind where it came from. My attention was drawn to an article in The Sunday Times recently which referred to a new book of essays on judicial power in Ireland. It referred in particular to one essay in that book that set out in detail the circumstances that led to the particular features of this legislation being put in place that section 10 now deals with. Prior to becoming a member of the incoming Government, the Minister for Transport, Tourism and Sport was engaged in negotiations with Fine Gael among others. To my complete surprise, as part of the negotiation, he proposed that a Bill he had tendered in Dáil Éireann on this subject while a member of the Opposition should be made part of the programme for Government. He adamantly fought for it at the time. His Bill proposed a constitutional amendment regarding the appointment of judges.

I want this House to consider what he was proposing then and where the provisions in section 10 now emanate from. He proposed at the time that the judges of the Supreme Court, High Court and all other courts established pursuant to Article 34 of the Constitution, should be appointed by the President on the nomination of a joint committee of both Houses of the Oireachtas in a manner provided by law. Far from depoliticising the appointment of judges, it was his intention to, and I will come back to this, emphatically politicise it and make it a matter of public debate as to the qualifications of any particular individual by Members of the Oireachtas in a system similar to the US system.

He proposed at that time that a judicial appointments council composed of persons drawn from a broad spectrum in society - where have we heard that recently? - in a manner provided by law would recommend suitably-qualified candidates on merit for consideration of a joint committee of the Houses of the Oireachtas for nomination for appointment as a judge by the President. He then proposed that no member of the Judiciary or of any legal representative body would be a member of the judicial appointments council. It was his proposal at that stage that one group of people could have no input whatsoever into the process, namely, anybody who was either a judge or a practising lawyer. He proposed to insert that provision into the Constitution.

This is the man who now stands for a very different proposition, to which we will return. His Bill stated, "For the purposes of this section," wait for it - this is one of the most extraordinary and most undemocratic proposals I have ever heard, "the joint committee duly appointed shall [consist of] members of the Houses of the Oireachtas, the majority of whom are not affiliated to the political parties who form the Government." This was an extraordinary proposition because it meant in effect that what he was then canvassing for was a system of appointment whereby the Opposition would have the veto and the Government would have a limited input. This is relevant to section 10 because, as the essay in Judicial Power in Ireland, to which The Sunday Times referred, states of the proposal:

The political aspect had two expressions: the politics within the proposed Government in 2016 and the politics external to government with the Judiciary. The 2016 general election produced an inconclusive political picture and great uncertainty about whether a new Government could be formed. It could, but a part of that new Government depended on the support of a newly formed alliance of independent Members of Dáil Éireann, each with their own political interests and priorities. One of those Deputies was the then Deputy, now Minister Shane Ross, TD, who had a long-standing interest in the subject of judicial appointments and published a Private Members' Bill in 2013 that proposed rather dramatic changes to the judicial selection system. The change proposed was a constitutional amendment to create a committee of the Houses of the Oireachtas that would consider judicial appointments, hold hearings with judicial candidates and recommend the name of the judge to be appointed by the President. There was no additional substance to accompany the proposed constitutional change, no supporting legislation or detail, but the primary problems with this model was that it was fundamentally undemocratic. It gave power for judicial selection to those Members of Parliament who did not command sufficient support to form a Government and it replicated the worst and most politically charged element of the federal judicial selection process in the United States, the public hearing of a proposed judge before a parliamentary committee. It was, in short, a risky and unnecessary change with no supporting theoretical or practical examples of where such a model was working well. It was unthinkable to the Fine Gael Party leading the negotiations and could not have progressed.

The interesting point about this is that the Minister, Deputy Ross, later stated of that negotiation that it was the most important issue, as far as he was concerned, in the formation of the Government and that he argued about this for days on end with the Fine Gael Party to bring in the principle which is now in section 10 as a compromise which was forced on him by the Fine Gael Party at the time. I just want the record of the House and the public discourse to show that this proposal for a majority of lay members, albeit part of a Bill which was in embryonic form before the Independent Alliance ever came near entering government, was an effort to buy off a crazy, undemocratic and unthought-out scheme for which one would-be Minister was arguing with all the force at his command.

Additionally, the Minister said no one had a veto over the appointment of judges, and a number of appointments have been made in the recent period. The Taoiseach recently said that the newspapers sometimes distort things, and perhaps they do. His remarks in America, in my view, were probably a little exaggerated, and the media took too much offence to them. They did not worry me all that much, infelicitous as the side reference to President Trump may have been. I looked this morning at the record among newspapers of this issue.

Much of this related to a time before the current Minister took up his position, but there is no doubt that, systematically between 2015 and 2017, there was detailed resistance to the appointment of judges. The Minister for Transport, Tourism and Sport, Deputy Ross, stated that there would be no further appointments until the Bill had been passed. He stated: "We have appointed the last judges under the old system." It is good to know that the Minister, Deputy Flanagan, has at least agreed that it will probably be between one and two years before this system is up and running and properly constituted. That is optimistic. Take the example of the Legal Services Regulatory Authority. It was not due to any obstruction by anyone outside that body that it has taken a long time to get up and running and to get itself the offices, staff, resources and systems it needs to carry out its functions. Regardless of whether there is a lay or non-lay majority under section 10, the claim made consistently by the Minister for Transport, Tourism and Sport that we have appointed the last judges under the old system is wrong.

More worrying is a report in The Irish Times, published on 25 March under the byline of a senior journalist, Mr. Pat Leahy. I do not believe this is fake news or exaggerated. He wrote: "Minister for Transport Shane Ross has said politicians are continuing to appoint 'their friends' as judges, but that legislation to reform the process will be in place by the summer." It is scandalous for a member of the Government to say that the other members of the Government are simply appointing their friends to high judicial office. I do not believe it is true, as I have some knowledge of the appointments made by this Government in recent months. Its members are not in any sense engaged in a campaign of appointing "their friends". It has to be said that the suggestion that the Government is somehow continuing to act improperly by exercising its constitutional function is unjustified and a shameful allegation by one member of the Cabinet against other members of the Cabinet.

Either we are to take it that the claim that the Cabinet was appointing its friends to judicial office was made by the Minister, Deputy Ross, or we are not, but it was a quote given to a respected journalist. I would prefer to accept the word of the respected journalist than any denial, which never came, by the way, from the Minister, Deputy Ross. It is a very serious matter that someone in his position, who is part of a Cabinet that has to meet and act collectively under the Constitution, is making a charge of misbehaviour against his fellow Ministers and doing so in support of his desire that there should be a majority, as provided for in section 10, of lay people rather than a mixed group of judges, laity and practitioners, which was the most obvious model that we could have expected.

In addition to claiming that the Government was appointing its friends, I find it offensive that the Minister, Deputy Ross, threw in the proposition that the present procedure was a "rotten system". I suggest that that is not only an exaggeration, but an untruth in the circumstances.

On 21 March, Ms Sarah Bardon, another The Irish Times reporter of some experience and quality, wrote an article in the same newspaper where she quoted the Minister, Deputy Ross.

He is reported as saying that he would not facilitate any more judicial appointments under the rotten system and that he expected to see this Bill in the Dáil next week or else - he warned - there would be serious consequences. The Minister, Deputy Flanagan, can come into this House and say there was no veto or no go-slow and the like, but either the Minister for Transport, Tourism and Sport, Deputy Ross, is engaging in transports of untruth or alternatively he has been attempting to wield this veto and to demand that there should be no further appointments.

On 25 April Ms Bardon reported:

It is understood Mr. Ross and Mr. McGrath said this was the last appointment the Alliance would sanction. Moreover,-----

Is there a quorum in the House?

Notice taken that 12 Members were not present; House counted and 12 Members being present,

Senator McDowell was in possession and may resume.

The point that I was making was relates to a quick search of the Internet this morning on the question of a lay majority. On 30 October 2016, almost two years ago, in an article in The Sunday Times, Mr. Mark Tighe, another respected journalist, stated, "Shane Ross has insisted that the Independent Alliance will block the appointment of any new judges until next June, by which time he expects a new judicial appointments system will be ready". This is the point that really worries me. If this new system is going to take between one and two years to put in place after the Bill is enacted in whatever shape or form it takes, that threat has been made repeatedly in the media - I only spent a short time earlier ferreting out all the occasions on which it was made - and it promises to do very serious damage to the judicial process and the administration of justice.

It is interesting that in October 2016, the Minister for Transport, Tourism and Sport, Deputy Ross, stated that the Independent Alliance agreed with Fine Gael to appoint judges as long as they were the final ones appointed in that way. Those involved agreed to that. It was an extraordinarily claim and it was not denied at the time. The Minister continued by stating that this was an incentive for the Independent Alliance and Fine Gael to let it through and, indeed, that it should also be for the judges. That sounds as if the judges were stopping it from going through. In the Dáil that week, the Minister claimed that the idea of a lay majority on the appointments commission was "loathed by the judges". He continued by stating that he thought there was a campaign saying that justice was being denied to the people but that the number of gaps was minute and not at a critical level. The Minister then said that anybody suggesting justice was being denied was just using that argument for their own ends and if they co-operated in respect of the Bill - and this was in a statement to the Judiciary - and did not obstruct proceedings, then it would go through very quickly. He stated that it was a reforming Bill.

The Minister then indicated that Fine Gael was not as enthusiastic but that he had had meetings with the then Tánaiste, Deputy Fitzgerald, and the Attorney General to discuss the Bill the previous Friday. He stated that they shared his sense of urgency. This is the important point I mentioned earlier about the crazy scheme to have an opposition committee determine who would be judges from now on. The debate the Minister had with Fine Gael, as recorded in an essay by Dr. Jennifer Carroll MacNeill, was the biggest battle he had during the negotiations on the programme for Government. In the same quotation attributed to the him. the Minister stated that it took days and nights of fighting, that it was resisted strongly by the entire Fine Gael delegation and that he did not expect the members of the latter to be as enthusiastic as him.

Let us be very clear about from where this idea came. It was something which was jemmied out of Fine Gael at gunpoint. The gun in question was a demand for a crazy system allowing the American model whereby every judge thereafter would have to be approved by a committee of the two Houses of the Oireachtas on which the Government had to be in a permanent minority. It also had to come from the nomination of a body on which not one single judge or lawyer could serve. That was the demand from the Minister, Deputy Ross, at the time and that was what he spent days and nights arguing for. Eventually, he was fobbed off with a concession that there should be a lay majority on this committee.

I want the record to show what we are dealing with. This Minister recently accused his colleagues in the Government of appointing their friends to judicial positions, a scandalous and outrageous accusation. The same Minister stated that his proposal, "was very strongly resisted by the entire Fine Gael delegation, so I do not expect them to be as enthusiastic as I am". It is the public record so let us not kid ourselves that there is a united Government here. There is not. The Minister, Deputy Ross, told us there was not. Let us not kid ourselves that this came from a conviction that there should be a lay majority on the judicial appointments commission. It came from a man who at the time of negotiations on the programme for Government argued that judges should not have any role whatever in the appointment of judges. He argued that lawyers should not be consulted either and he had a crazy idea that an Opposition committee would interview and examine people who wanted to be judges on the American model, and its nomination would go to the President.

How does this colour our view of section 10? It demonstrates its origin and indicates precisely from where this idea came. It came from a tawdry compromise between people who knew it was wrong on one hand and a person coming up with a far-fetched, deeply destructive and anti-democratic proposal on the other, based on a profound animus against the Judiciary. This is a man who has written books about cronyism in the Judiciary, etc. It is what we are dealing with.

We can get back to the question as to whether we should agree with section 10, the point of the debate at which we are at. Nobody wants it except one or two people. The Independent Alliance has togged out on occasion in support of the Minister, Deputy Ross, on the matter. I have a very good idea that if the Minister, Deputy Ross, did a Boris Johnson on this matter and left the Cabinet, the Minister of State, Deputy Finian McGrath, would be into his seat as quick as one might imagine. The Minister, Deputy Ross, would then be isolated on the subject and forgotten.

We are into the realm of speculation now. Perhaps the Senator is having a dream or a nightmare.

Not for the first time.

I am asking the Fine Gael Members in this House in particular about this. I am coming to the conclusion that anything I say to Sinn Féin is wasted, especially in view of what was said earlier about the party's desire to ensure nobody with anti-republican views can get on the Judiciary in future. I ask the Fine Gael Members of this House to stand up for what they believe in. It is simple. They should call the bluff and let the Minister, Deputy Ross, go.

He will do nothing. There are a few Independents in Dáil Éireann who would happily tog out to sustain the Government over the next year or so if Deputy Ross flounces off in a sense of disillusioned temper because this provision does not go through.

What is the particular advantage of having a majority of lay people on this commission? There is only one explanation, which is a sentiment of distrust. It is that lawyers, be they judges, practising lawyers or the anomaly of the human rights commission, left to their own devices would produce insider, unmerited and unrepresentative appointments. It is that their view of merit would be different from those who lie outside the area of having some basic knowledge of how the legal system works. For one, I believe strongly that this provision for a lay majority - having the origins I have made clear before the House - was not believed in by the man who has insisted on it. He said it was the biggest battle in negotiating the programme for Government and it took days and nights to do it. He did not believe in this solution at the time but rather in an alternative crazy world in which we would go down the American route.

It is worse than the American route.

It is worse than the American route.

In America, the opposition has a say in it.

At least a majority in the Senate judiciary committee has a-----

A number of other Senators are indicating their wish to speak.

In any event, I am strongly of the view that this is a misguided idea. I appeal to the members of the Fine Gael Party to do what another senior journalist, Stephen Collins, advised them to do in an article he wrote on 29 June 2017 in this respect. In an article "Fine Gael risks core values by appeasing Shane Ross", Mr. Collins stated, "Fine Gael has stumbled into a dangerous confrontation with the Judiciary that threatens to do serious damage to the image of a party that has always prided itself on standing by the institutions of the State." I will not quote at length from his article-----

We are on section 10 now.

We are on section 10.

The Senator is very definitely on the section.

He is wandering down the garden path a little.

Conceding this idea of a lay majority goes against the grain. That is not my view, it is that of the Minister for Transport, Tourism and Sport, Deputy Ross, who stated, "It was certainly resisted, very strongly, by the entire Fine Gael delegation." He stated that, so why should we not trust him at least in that regard? Is he to be believed? He is to be believed because he was boasting about it as one of his great achievements.

There is something else I wish to add. The excerpts from the GRECO report that have been read into the record are fine as far as they go. The report indicates that the Government had informed GRECO that it had engaged in a process of dialogue with the Judiciary in respect of the changes to this Bill. GRECO quotes the Judiciary as denying this and it expressed concern about that fact. I do not know where the truth lies. However, I do not believe that the Judiciary, if it had been the subject of intensive consultation, would have told GRECO that it had not been. There is a danger here that an effort was made to spin GRECO into believing that the original version of the Bill was one thing but that this was something entirely different, and that the Judiciary was consulted on it and was more or less all right with the idea. That is not the case. The Judiciary has rightly said that the lay majority idea is misconceived and that the way in which a lay majority will operate is dangerous to the independence of the Judiciary. I agree with that proposition.

On the previous occasion, we discussed the manner in which the people who apply to sit on this body will be remunerated, the terms of their appointment and the extent of their duties. In reply to my queries on that, the Minister said that he imagined they would be remunerated in a similar way to other people who are appointed to State boards. For a start, there are State boards and there are other State boards. Are we talking about a €12,000 salary for the chairperson of this group or a €25,000 salary? Are we talking about €9,000 or €18,000 or €20,000 for board members? If there are 51 judicial appointments every year and there is a serious interview process relating to each of them, with the members of the commission seriously engaged in such interviewing and assessment processes and devoting considerable time to examining the merits and demerits of a number of people, giving them an emolument of €9,000 per year for such activity would be entirely wrong.

With regard to this section and having had time to think about this, I ask the Minister to tell us what he believes he will pay these people to do this job. We are entitled to know because it will affect the amount of time they have and their willingness to apply themselves unreservedly to what is going to be a very complex process.

In the consideration of the next section, I will come to the idea of having outside agencies do preliminary vetting and having private enterprise bodies sift through applications in order to advise the commission on who is or is not appropriate for appointment or for selection for interview by the commission. It is a really deep concern of mine that we are being asked not merely to appoint lay persons, but to appoint lay persons who will in turn appoint independent for-profit contractors to go through all the applications and weed out the people they think are unsuitable. That is really a shocking idea. Is its purpose to keep down staff costs on the commission, to keep them under control and to offer cut-price contracts to unidentified private enterprise bodies to come up with quick evaluations as to whether a given candidate does or does not merit further consideration from the board?

The terms, conditions and remuneration of members of the commission or its chair are entirely within the remit of section 11, to which we have not yet come.

We will come to that-----

I allowed Senator McDowell to meander a little.

----but it does affect the decision as to whether this function is handed over to a group which is, in the majority, composed of lay people if we are in fact handing that function to a group of people receiving a rate of remuneration which would not be appropriate given the seriousness of the business it is carrying out. We are entitled to some clarity. If I do not get in on section 10, I will get it on section 11. It is not enough to simply state they will be remunerated like members of any other State board. There are very different State boards, membership of which attracts very different salaries and very different calibres of candidates. We are entitled to some clarity on that.

I would like to welcome the Minister to the House and to express my own views on section 10, which we are currently debating. This is a critical section of the Bill as it deals with the membership of the commission. It is therefore central to the purpose of the Bill, as is evident from the contributions of my colleagues on it. This section came to us in an internally incoherent fashion with the numbers stated for membership of the commission at odds with the numbers of persons actually specified. I know the amendments passed by the House have resolved that to some extent whereby we now have a 17-member commission.

I have a preliminary question for the Minister about that because clearly it was not the number initially envisaged by the Government in its initial setting out of the commission's membership. We have heard from the Attorney General as to the state of the legislation being a dog's dinner due to the way in which it had been dealt with in the Dáil and these inconsistencies we saw in it. How workable would a 17-member commission be, given it was not what was originally anticipated and the framework set out in section 10 of the Bill was envisaged for a smaller number of persons on the commission? I wonder how it will work in practice. Why could an approach not have been taken similar to that we put forward in our amendment No. 14, instead? I have withdrawn that amendment with a view to bringing it back on Report Stage but it suggested that the non-judicial members of the commission should be appointed by specific bodies such as the Citizens Information Board, the Free Legal Advice Centres or the Irish Human Rights and Equality Commission and that, therefore, each individual member would have brought with him or her a particular expertise and a particular experience which I argue would be relevant for the workings of a commission such as this.

I wonder why that approach was not taken, given that a larger group of people will now be appointed under section 12 and will comprise a sizeable group on the commission, although not a majority as it will now have 17 members.

Others have spoken about the GRECO report, which has now been published. I should stress that last week, I received a copy of the original report from a journalist and not directly from the Government. Senator Clifford-Lee has read from paragraph 35 of the version of the GRECO report we now have. The paragraph in question specifically addresses section 10 of this Bill, which deals with the composition of the appointments commission. I read passages from an earlier version of the GRECO report into the record of the House last week. It is interesting to note that paragraph 35 of that version of the report was somewhat different from paragraph 35 of the apparently final version, which we now have. In both versions, paragraph 35 starts with the same sentence:

GRECO has significant concerns about the composition of an appointments commission as proposed in the Judicial Appointments Bill (as amended on 31 May 2018), which would place judges in a clear minority position in favour of a strong lay representation (including the chairperson), accountable to Parliament.

It is interesting to note that there seems to be just one difference between the two versions of paragraph 35 of the GRECO report. The original version, to which I referred in the House last week, stated that "this move is not in line with European standards", whereas the current version states that "GRECO questions if this move is in line with European standards". I notice that the Minister is nodding. I presume he and his officials are well aware of this small change, not in substance but in emphasis, in the wording of paragraph 35. The Minister said last week that the Department of Justice and Equality and GRECO were in negotiations - that may not have been the word he used - on the final text of the report. I see the Minister nodding again. One presumes that some negotiation led to that small change in emphasis in paragraph 35. Can the Minister say any more about that change in emphasis? GRECO was initially stating that the proposal in this Bill was "not in line with European standards", but now it is merely questioning whether it is in line with European standards.

Notwithstanding the small change I have mentioned, it seems to me that GRECO is still as critical of section 10 as it was in the previous version of the report. According to the current version of the report:

GRECO questions if this move is in line with European standards which, in situations where final judicial appointments are taken by the executive [as here, obviously, under the Constitution], calls for an independent authority drawn in substantial part from the judiciary to be authorised to make recommendations or opinions prior to such appointments.

It seems to me that the sense of it is still the same. The report continues:

GRECO also recalls its own position, as clearly expressed in the Evaluation Report (para. 132), that the composition of the JAAB (consisting of a majority of judges and chaired by the Chief Justice) was considered suitable for the selection procedure.

I referred on Second Stage to the view that if the composition of the Judicial Appointments Advisory Board had been tweaked and its powers had been strengthened, this would have answered many people's concerns about the need for the reform of judicial appointments.

Senator McDowell mentioned Dr. Jennifer Carroll MacNeill, whom the Minister knows well. She has done a great deal of research into this matter and has published an excellent book on the Judiciary. From memory, Dr. Carroll MacNeill's view was that the Judicial Appointments Advisory Board could have significantly improved its own procedures within the powers conferred on it. That would have been one way to ensure some reform of the appointments procedures. This significant perspective appears to be shared by GRECO. In paragraph 37 of the current version of its report, GRECO "concludes that recommendation vii [relating to the appointment of judges] remains not implemented". That is a serious conclusion. Paragraph 55, which is in the section of the report setting out GRECO's overall conclusions, reads:

GRECO notes that the Judicial Appointments Bill 2017 is subject to much controversy and it appears questionable whether it is in line with European standards aimed at securing judicial independence in respect of appointments and promotion of judges. GRECO urges the authorities to continue their efforts to reform the judiciary, as indicated in the Evaluation Report, and to carry this out in close co-operation with the judiciary.

Previous speakers referred to the concerns of GRECO regarding the lack of close co-operation or consultation with the Judiciary that the Government suggested had taken place when the Bill was being prepared. That is set out in the current version of the GRECO report, which indicates concern that the Judiciary had not been consulted in the manner indicated by the Government. Paragraph 30 of the GRECO report states that it directly received information from the judicial authorities to that effect. GRECO has raised serious concerns which are clearly reflected in its conclusions and which do not diverge from the conclusions reached in an earlier draft of the report. This begs the question as to why we did not get the report last week if that was the only change.

It also begs the question as to why there could not have been more negotiation with those of us in opposition who tabled amendments to the Bill, particularly in respect of section 10, in good faith. My amendment No. 14 on behalf of the Labour Party and that tabled by Senator Clifford-Lee on behalf of Fianna Fáil anticipated a compromise on the composition of the commission and had there been more willingness to consult Opposition Members it would have been possible to achieve a section 10 that would not have been so strongly opposed by so many and might have met the concerns clearly expressed by GRECO. Will there be any compromise or willingness to take Opposition comments on board on Report Stage, particularly as Senator Clifford-Lee and I have withdrawn our amendments with a view to resubmitting them for Report Stage such that there might be time for consultation on the final shape of section 10? I have a concern about the functioning of the overall membership of 17 given that it is quite removed from what was originally anticipated by the Government. Will any input be possible on changes to section 10 on Report Stage in light of the fact that we now have the GRECO report, which contains clear criticism and are aware that, apparently, there was a negotiation with GRECO on the wording of section 10 that resulted only in the tiny change to which I have referred?

I have pointed out that I have consistently argued for a form of judicial appointments commission. There are very positive aspects to the Bill, especially the ban on canvassing in section 62 to which I referred on Second Stage. All Senators acknowledge that the Judicial Appointments Advisory Board, JAAB, needed reform and a strengthening of its powers, if not its outright abolition.

It is not helpful that a Minister has launched personalised attacks on Opposition Senators in a newspaper column. I do not intend to personalise anything. Apart from anything else, I do not have a newspaper column in which to retaliate at anyone, so will not personalise my comments. The Minister's approach is unfortunate. It is very easy to mount a populist attack on the Judiciary and judicial appointments. However, it is rather tedious to hear the word "cronyism" consistently being used-----

Particularly by the Minister in question.

-----by a particular Minister who has set himself up as a champion of the Bill. As Senator McDowelll clearly set out, the Bill has had a long genesis. GRECO and many others, including Opposition Members, have called for a form of judicial appointments commission. It is important to note that the Bill and judicial appointments are not a one man show. Unfortunately, that is how the Bill is being portrayed and pushed and it will be claimed as a huge victory by a certain individual if and when it is finally passed, although it will be a dog's dinner in my view and that of the Attorney General. It is a pity that it is developing in this way. Had there been willingness to engage and compromise on various issues, particularly section 10, a very different Bill might have emerged. That was probably the intention when the Minister's predecessor, Alan Shatter, embarked on a process of judicial appointments reform. All Senators accept the need for legislation in this area and for judicial council legislation, to which GRECO referred at length in its longer report. We all support that.

There was goodwill for the principle behind the Bill and it is unfortunate that it has developed in this way. Section 10 is at the heart of the matter. A significant amount of time has been spent debating it in the context of the GRECO report because it is such a crucial section of the Bill and I make no apology in that regard.

It is tedious to hear populism being used in attacks on those who have reasonable critiques of certain aspects of the Bill, particularly section 10.

I join colleagues in expressing concern on aspects of the Bill, the amendment to the GRECO report, GRECO's question as to whether this move is in line with EU standards and why there has been a move away from the original position that it was not in compliance with those standards. Senator Lorraine Clifford Lee put forward the Fianna Fáil amendment to the effect that the commission should consist of 11 members, namely, the Chief Justice, the President of the Court of Appeal, the President of the High Court, the President of the Circuit Court, the President of the District Court, a layperson nominated by the Irish Human Rights and Equality Commission, a layperson nominated by the Free Legal Advice Centres, a layperson nominated by the Citizens Information Board, a layperson nominated by an tÚdarás um Ard-Oideachas, a practising barrister nominated under section 13 and a practising solicitor nominated under section 13. The amendment also proposes that the commission shall elect its own chairperson. We shall retable the amendment for Report Stage. In the meantime, the rationale for the current manifestation, as proposed by the Minister for Transport, Tourism and Sport, Deputy Ross, needs to be explained further. We saw recently in the Dáil that the numbers simply did not add up. That tells us a great deal about the real agenda behind this.

There is also the issue of the cost and the establishment of a quango. The programme for Government contains a commitment to get rid of quangos but this commission would cost nearly €1 million per year, as per the explanatory memorandum. The commission would replace the Judicial Appointments Advisory Board, which has nine members and costs less than €10,000 per year. By any standards, this does not seem like reform. Our amendment proposes to simplify the commission. Having lay members on the commission may have its merits but the issue is about reform. We all agree the situation needs reform, but the Bill could make it worse. While lay members bring a different perspective they certainly will not have any expertise in appointing judges. I could be wrong and I am open to correction on this. The disqualifying criteria should also be considered. If a person had a previous conviction, should he or she be allowed to be selected as a lay member of the board?

Or a person who is issued with an indictment.

Who appoints the people who appoint? Let us consider also the issue of having laypersons appointed by different organisations or Ministers. How are those organisations put together and how are those people given those jobs? There is layer upon layer of appointments that come into question in view of the concept put forward by the Minister for Transport, Tourism and Sport's. Our amendment proposes that people who actually have an idea of how the legal system works, practically rather than just theoretically, be selected.

GRECO had on-site evaluation with representatives and interlocutors from civil society and the Judiciary, including the executive branches of the Bar of Ireland, the Law Society of Ireland and the prosecution services. The GRECO report states:

As reflected in the Evaluation Report, it is noteworthy that the perception of a “politicised” recruitment system was not aimed at the pre-selection procedure carried out by JAAB, but rather at the fact that the JAAB, a body of the judiciary, had to produce a list of candidates (at least seven) without priority and sometimes much longer lists without any order of priority to the government for its final appointment. Consequently, the potential risk of political lobbying [political lobbying was addressed in the Bill, which we welcome] and favouritism referred to in the report was in the second stage, i.e. once the list of candidates had been established and handed to the Government for decision.

The report states that GRECO takes note of the information provided by the Government as well as by the representative of the Judiciary. The Judicial Appointments Commission Bill 2017, which is currently in the parliamentary process, is aimed at reforming the system. It is about changing the system; it does not necessarily mean it will make it better. It is changing it because of one individual's point of view and a commitment in a programme for Government. I wish some of the other commitments in the programme for Government were focused on more than the one before us today.

The report states that it would appear that there is no disagreement in Ireland that all appointments of judges should be based on merit - that is what happens with the Cabinet, and former Senator Ross's appointment to the Cabinet was based on merit - following a pre-selection process and that the selection should lead to a limited number of candidates to be submitted to the Executive for a final decision. What was pointed out then was that the Government's proposal goes beyond that as it is proposed that the establishment of a new commission, which as I pointed out, will cost about €1 million a year as opposed to the current cost of €10,000 a year-----

(Interruptions).

For that, we could get numerous Garda stations.

The report states that the Government's proposal goes beyond that and according to the information submitted to GRECO, such a commission must consist of a strong majority of non-judicial members - ten members - and be chaired by a non-judicial member, all accountable to Parliament. It refers to such a commission replacing the Judicial Appointments Advisory Authority, which as I said is saving the taxpayer money rather than the system we are about to put in place.

The significant concern about the composition of the appointments commission as proposed by the Bill - this was being spoken about on 31 May 2018 - would put the judges in a minority position and the lay representation, including the chair, in a majority. GRECO questions whether this move is in line with European standards which in situations where final judicial appointments are taken by the executive, calls for independent authority drawn in substantial part from the Judiciary to be authorised to make recommendations or opinions prior to such appointments.

GRECO also recalls its own position, as clearly expressed in the evaluation report, paragraph 132, that the composition of the JAAB, consisting of a majority of judges and chaired by the Chief Justice, was considered suitable for the selection procedure. We are reforming but we are not making improvements.

The report states:

36. GRECO takes the view that the Judicial Appointments Bill as far as the composition of the appointments commission is concerned needs to reflect European standards [I am sure that is not something with which they agree in Westminster but I am sure this House should have some standard which we should aim to achieve] aiming at securing judicial independence through substantial judicial representation in relation to the overall composition of the proposed commission. The controversial Bill, which has been subject to some amendments in this respect, is still under debate in Parliament, subject to critical media attention...

The Taoiseach has his own view on critical media attention but we will not go into that here.

That is not relevant to this section.

I am reading from the report for the benefit of the Leas-Chathaoirleach. It referred to critical media attention, and I know the Taoiseach would have his own views on that issue.

I do not think that aspect arises.

A fair point. I accept the ruling from the Chair.

The report states that GRECO urges the authorities to reconsider this matter in order to limit potential risks of improper influence from the Executive or political power over the appointment process to the Judiciary, or any perception thereof, and to do so in close co-operation with the judicial authorities. We all know that perception is reality and we are all aware of the flaws of this Bill and the political rationale behind it, not the fact that we are looking for a better way of appointing judges, bearing in mind that we all accept there is no perfect way to do it. The proposal spoken about earlier for a US-style system, where judges are appointed by the Executive with the approval of the Senate, is not something we want to drift towards given the entirely politicised system in the United States. In this context, GRECO concludes that recommendation vii has not been implemented.

Paragraph 40 of the report states the Government of Ireland maintains its position that the establishment of the Public Service Pay Commission is relevant for this recommendation, in light of Article 35 of the Constitution, which provides for judicial independence and safeguards regarding remuneration and that in this context, there is no provision to provide separate structural pay determination arrangements for the Judiciary. We all know of the controversies that arose during the tenure of the previous Minister for Public Expenditure and Reform on the issue of judicial pay cuts and their constitutionality. We hope to avoid any idea that the political system is trying to cut pay to get judges to retire. The report notes that representatives of the Judiciary, in respect of the aforementioned recommendation vii, take issue with this position as this recommendation extends beyond the question of pay determination arrangements to issues that have direct impact on judicial independence, integrity and quality.

While there are numerous recommendation, the conclusion in paragraph 52 states that in view of the foregoing, GRECO concludes that Ireland has still only implemented satisfactorily or dealt with in a satisfactory manner three of the 11 recommendations contained in the fourth-round evaluation report. Four recommendations have been partly implemented and four recommendations have not been implemented. The report concluded that recommendations ii and iv have been dealt with in a satisfactory manner while recommendation xi has been implemented satisfactorily but that recommendations i, iii, v and vi have been partly implemented and recommendations vii to x remain not implemented.

Although we have not complied with the recommendations of this evaluation report, I note we are powering ahead with this Bill and its amendments. Moreover, the appointments do not enhance the diversity within the Judiciary or the legal profession. On this side of the House, Members have raised both the appointments and the training judges should go through to qualify as judges. They should not depend only on their legal experience but should have training in respect of victims of rape because in this jurisdiction, in general the judges, good or bad, are middle-aged to elderly men who have come from the middle class and who all have a third level education. Their world experience is very limited and having empathy training with those from minority groups and with the victims of crime is not required.

I could be wrong and it could be in a section I have not studied but surely, if one is appointing judges, one of the criteria for appointment even to be put on a list should be to go through that level of training. This is the opportunity to do that. Before they are considered, they should have to go through an eight-week course, sit an exam or undertake something of that description. Time and again we have seen fines and suspended sentences being handed down for the most horrendous crimes. Comments by some members of the Judiciary while giving out the sentence re-victimise the victim in many cases. We saw it in my own county of Kerry, where a judge allowed a perpetrator, who was convicted, to have his hand shaken by members of the public in the courtroom when the sentence was handed down. That should never happen. The woman was re-victimised. We have seen it in child abuse cases where sentences do not even come close to fitting the crime. In the Minister, Deputy Ross's desire for reform, where is the desire to ensure that judges are not just legally qualified but are also qualified to hand down sentences and have an understanding of the world they do not inhabit in terms of-----

With respect, many of them would surprise you with their life's experience.

The one thing that would surprise me is that-----

With respect, I believe the Senator to be wrong on that point.

One does not have to do to much searching in newspapers to find sentences that were handed down for the most horrendous crimes-----

An example is Mr. Justice Gannon's decision in the Declan Flynn case, where he let them off without any penalty and they had murdered a man.

Senator Norris will have the opportunity to outline that shortly.

The opportunity for amendment in this regard might arise in the other House. They might look at this again and take a step back. Those who will be considered obviously will be legally qualified. We should also consider any other training they would require to be in the position of handing down sentences and understanding their impact. Asking for victim impact assessments, as judges often do, is not the same as having the training they would require to be eligible to be on the list in the first place. That is something we need to consider in the overall context of the Bill.

There are the issues of the quango itself costing more money, the questions of the European Union and then all the amendments we have put down that have been so ably defeated by the Government. We will put them down again. My concern remains over the manner in which this is being done.

I note the Labour Party's amendment providing that no fewer than five members should be women and no fewer than five members should be men - again, it is about diversity. We brought diversity into the political system by having gender quotas and looking for quotas not just in respect of gender but in other areas. This opportunity is largely being missed because they are trying to have a go at the judicial system and to take the Judiciary out of the justice system. They are not trying to reform it in a way that would have a meaningful impact for minorities, women and victims of crime in making sure the judges are qualified to understand the context and impact rather than reading out victim impact reports.

They brought in laws in the UK where it is required for judges to receive training before they become part of the Bench. There should be continuous professional development, not just in the area of the law but also on a wider basis, as we get to know more about the impact of crime and criminality not just on the victims but also on the perpetrators.

Judges should have the opportunity to be kept aware of the latest developments in that respect and with respect to children who are the perpetrators of the crime and the reasons they commit crime. Our system should be reformed in that way.

Needless to say, we are disappointed with the haste surrounding the passage of this Bill but we are most disappointed with the rationale behind it. It has not come forward from the best position. I accept the Minister's bona fides on this and I sympathise with him on the job he has been sent here to do.

I call Senator McFadden. My apologies, the previous occupant of the Chair did not guide me that the Senator wished to contribute.

I welcome the Minister to the House. I did not intend speaking and I do not have a need to talk down the clock as some Members are doing. When I hear phrases such as "rotten system", "appointing friends" and "threats to the media", I cannot but speak. While I understand the reason the Minister has put forward the Bill, it is important to point out that the Judiciary has served us very well since the foundation of the State.

It could be argued that the Judicial Appointments Advisory Board, JAAB, needs to be changed with respect to how it does its business, to make it more transparent and to ensure it proposes fewer names to the Government. It has provided us with many excellent judges over the years. We have a Judiciary that is proud of its independence from Government. I disagree with Senator Daly's comments regarding judges who are older and male. There are many great women judges and I can name three or four of them off the top of my head such as-----

Could the Senator name a dozen?

-----the late Gráinne O'Neill, Deirdre Gearty, Leonie Reynolds and Mary Devins. It is important we acknowledge that the Judiciary is independent of Government and that, thus far, all judges, male and female, have been appointed on merit.

Many Members of the Oireachtas have used this debate to attack the Judiciary. Some of them are interested only in progressing personal vendettas against the Judiciary. Ireland has a Judiciary that is equal or better than many others in Europe. It is made up of people with integrity and independence and has served the State well. I, for one, and my Fine Gael Party have always supported our Judiciary.

Whichever system we use to appoint judges, I believe we will continue to have a capable and independent Judiciary. Let us sort out the difficulties and anomalies in the Bill and move it on. I ask the Minister to consider the composition of the commission before Report Stage. I agree with Senator Bacik on the issue of having 17 members. I am not arguing that the chair of the commission must be a judge. However, judges should not be discriminated against or precluded from serving as chair.

This is the Minister for Justice and Equality, Deputy Flanagan's Bill. In 20 or 30 years' time nobody will ask who else was involved or what pressure was brought to bear to have this Bill put forward. It is the Minister's Bill and nobody else's. It is his party's Government, supported by the Independent Alliance, that is putting it through the House. Let us move away from the personalised issues that surround other Ministers who may or may not have influence on the Bill.

It is laudable to seek fair and transparent methodologies for appointing people to senior positions but I sometimes wonder about the drive to find independent committees and chairs. Senior military officers are now appointed by civilians who have never served in the field. Senior gardaí are appointed by civilians who never served on the ground. Now we will to try have judges appointed by committees whose members may or may not have some knowledge of the law and some of whom will have picked up their knowledge of the law from "Judge Judy" or some other television series.

There is something terribly wrong with this Bill. My father, God be good to him, who was a great supporter of the Minister's father and the Minister's party, would turn in his grave to think that Fine Gael is prepared to use the Whip to drive through something the party fundamentally disagrees with. Members of the Minister's party have stood up in this House and criticised this Bill. Members of the Minister's party outside this House have criticised this Bill.

It is important, now that we have come forward with a Bill to appoint judges, that we see it through. As my colleague, Senator McFadden, just said, the Judiciary has served this country well, by and large. I have not always liked many of the decisions made. That is not the point. The members of the Judiciary have shown their independence. They have shown their ability to stand up when called upon to do so.

I am a little concerned as to where we are going. I am a little concerned about the reputation of this country. Paragraph 29 of the GRECO report that I have reads, "The Government states that it has engaged in in-depth formal consultation with the senior representatives of the judiciary on this draft legislation." That is a statement made by the Government to GRECO. The Government has engaged with senior representatives of the Judiciary on this draft legislation.

Paragraph 30 reads:

GRECO has also received information, directly submitted to it, by the judicial authorities, through the Chief Justice of Ireland, the President of the High Court and Acting President of the Court of Appeal, the President Designate of the Court of Appeal, the President of the Circuit Court and the President of the District Court concerning Recommendation vii. In their submission they stress that the Judicial Appointments Commission Bill 2017 has not been subject to in-depth consultations with the judiciary (contrary to what is stated by the Government).

This is one of the most serious statements made in this report. Somebody has lied to GRECO. The Minister told me here, on 3 July, that there was no earthquake. That is an earthquake as far as I am concerned. That is damning.

How can we proceed with this Bill, given that our most senior judges have said they were not consulted when the Government says they were? We need to know which judges were consulted. The Minister should name them, if he can, because the Chief Justice is one who is saying he was not and the presidents of every court state the Government did not talk to them. Will the Minister tell me who was spoken to?

They have not said that at all.

I am afraid it is here in black and white. Let me read it again for the Minister because he might not have been listening. It reads:

GRECO has also received information, directly submitted to it, by the judicial authorities, through the Chief Justice of Ireland, the President of the High Court and Acting President of the Court of Appeal, the President Designate of the Court of Appeal, the President of the Circuit Court and the President of the District Court concerning Recommendation vii. In their submission they stress that the Judicial Appointments Commission Bill 2017 has not been subject to in-depth consultations with the judiciary (contrary to what is stated by the Government).

The Government, on the other hand, told the GRECO committee, "The Government states that it has engaged in in-depth formal consultation with the senior representatives of the judiciary on this draft legislation." How can the Government have engaged in in-depth consultation with senior representatives of the Judiciary when the senior representatives of the Judiciary are saying it did not?

This Bill has been a long time in the making. Perhaps it was before the Minister's time but the judges are saying the Government did not talk to them and the Minister is saying it did.

They are not saying that.

Senator Craughwell's point is so interesting that it is greatly regrettable that there is not a quorum here to hear it. I wonder whether we could have a quorum to hear the wisdom of the Senator.

Notice taken that 12 Members were not present; House counted and 12 Members being present,

I thank the Members who turned up to make up a quorum.

In his response, the Minister might deal with the issue of the disagreement between the various groupings in Ireland.

GRECO, in paragraph 35 of the report, "calls for an independent authority drawn in substantial part from the judiciary to be authorised to make recommendations or opinions prior to such appointments". That comes from the Committee of Ministers of the Council of Europe on 17 November 2012. I have had the misfortune to find myself lying on a CAT laboratory table with a cardiologist having a look at the inside of my ticker. I am delighted that cardiologist was appointed by people who were medically qualified. The same applies if I find myself in front of a member of the Judiciary.

I understand some of the points made here. Some of the rulings we get from the courts are hard to understand. In any walk of Irish life in which I have ever been involved there have been allegations of cronyism, and I take them all with a pinch of salt. People say it about things that go on here. I am not sure that cronyism is the real issue.

I am glad the Senator has changed his mind after his outburst last week and on social media. It is great that he can reflect.

Would the Leader like to take the floor?

I would love to. I would be happy to contribute to the debate. I would be more than happy to bring my insight into the Bill, unlike the contributions of some Members for the past two hours.

I will give the Leader an opportunity to speak.

I am sorry about the Leader's outburst, but I understand his pain in agreeing to get this Bill through the House.

On a point of order, Senator Craughwell was the Member who came into the House for the last month complaining about the appointment and methodology around the presidency, and giving out about his cosy cartel that he cares about.

That is not a point of order.

It is a very relevant point of order.

Unfortunately it is not. Senator Craughwell, without interruption.

On a supplementary point of order, it is most relevant.

I am advised it is not.

When the Leas-Cathaoirleach regains control I will start speaking.

The Senator should speak to the Bill.

Everyone is rambling about the Bill.

The GRECO report goes on to talk about the composition of the appointments commission, and it is concerned with the need to reflect European standards. We constantly talk about being good Europeans.

(Interruptions).

Order, please. The speaker in possession shall speak through the Chair. Senator Craughwell should not be interrupted from left field.

Senator Craughwell is of a number of committees in Europe.

The Leader is in need of medical attention. I wonder whether that could be arranged.

Everyone will have an opportunity.

Senator Norris could do with a cup of coffee because he was nodding off there some time ago.

Sometimes I just close my eyes and listen to the sweetness of the voices.

Everything can be arranged.

He was asleep, and then he woke up and looked for a quorum.

He was probably deep in pensive thought.

I have never seen such pain on the faces of the Government side in all my life. They hate this Bill. Why do they not stand up as people of their convictions and say, "Do you know what? We will not push this through"?

It would be the first time since 1922.

Paragraph 36 of the GRECO report refers to "limit[ing] potential risks of improper influence from the executive/political power over the appointment process to the judiciary". It expresses a concern about that. I thought the whole purpose of the Bill was to remove that.

Hear, hear. It is so lovely to hear the old tunes.

I said it to the Minister for Justice and Equality last week. I will move tomorrow morning at the Order of Business that we set aside any further debate on this, and that we debate the GRECO report properly, rather than pursue this Bill which nobody in here wants. Everybody wants to see judges appointed, and I understand there are difficulties progressing that right now. At the end of the day, the Bill that we are pushing through here will come back to haunt us. While the Minister might be somewhat annoyed about the way the legislation is going through, I have not seen that on the Minister's face, in fairness to him. He is sitting there and he is progressing the legislation as best he can, but I have seen annoyance on the face of some of his colleagues. At the end of the day, when this Bill is passed, it will come back to haunt us. That is what we are looking at. It is the Minister's Bill. We are asking him to take amendments as they come up on Committee and Report Stages. We will ask him to think about them as they go through. Everyone wants a fair, open and transparent system, but we want a bit of honesty. We want to know precisely who spoke to whom, when they spoke and the outcome of those discussions and deliberations. The Judiciary is telling GRECO, "Nobody spoke to us. Here is our view."

I did not say that. That is the third time the Senator has misrepresented me.

Will I read the paragraph again?

The Senator read it twice already and then proceeded to misquote it, so I expect him to do the same again.

It is black and white. GRECO has also received information directly submitted to it by the judicial authorities.

On a point of order, unless I am dumb, I think that what the paragraph read out by Senator Craughwell said was that there was no in-depth analysis or engagement. That does not mean there was no engagement. They may think it was not in-depth but the Government certainly believes it was.

That is not a point of order.

It is a very valid point.

In the Senator's view but, unfortunately, it not a point of order.

It is a pity some people cannot tell whether they read GRECO before today.

I think I have the floor. In fairness, I have been hassled-----

It is the single transferable speech. Senator Craughwell should just pass it on to all of us so we can all read it.

It would be more than the Senator did. He did not give it to any of us.

Senator Norris got it off the Internet.

I did not. I have never touched a computer in my life. I did not get it off the Internet. I got it through the post.

Senator Norris got it from a friend.

Yes, from a friend.

For the record, paragraph 29 of the GRECO report stated that the Government stated that it had engaged in in-depth formal consultation with the senior representatives of the Judiciary on this draft legislation. For God's sake, tell me who decides what is in depth and who are the senior members of the Judiciary the Government engaged with when the President of the High Court, the President of the Court of Appeal, the President-designate of the Court of Appeal, the President of the Circuit Court and the President of the District Court all say they were not engaged with.

They were engaged with but not in depth in the way they wanted to be.

Is Senator Conway now speaking for the Government?

I am trying to bring a bit of common sense to the whole thing.

Senator Conway is a lot more knowledgeable than Senator Craughwell. He knows a lot more about the Bill than Senator Craughwell does.

The Senators can come in next. I will let them in after Senator Humphreys who is next when Senator Craughwell finishes.

One of the other definitions I would like to get from the Minister is what "in-depth" means. Is a phone call an in-depth consultation? Is it an actual round-table meeting where we sit down and discuss each aspect of the Bill? The Government cannot just fob off what is in this document and it is unfair of it to think it can.

It is wrong in every sense of the word to think that we can take this document and say "Ah, there was consultation. You just don't understand", or, worse still, that the members of the Judiciary did not understand what in-depth consultation meant. That is just unfair and an insult to the Judiciary. We are talking about the most learned judges in the country - the men and women who make decisions every day of the week and who will be called upon to make decisions at the highest level in this country. The Government says they do not understand the difference between in-depth consultation and the Government's interpretation of in-depth consultation. That is an outright insult to the Judiciary.

I have asked the Minister to explain those issues to me. They are there in black and white. The public has a right to know what consultation took place and what the outcome of that consultation was because two arms of the State are offering two different views of what happened. That is where we need to start. It seems nonsensical that we are trying to progress this Bill when we do not know. This was the Bill of the Minister for Justice and Equality, nobody else.

The Minister will be glad to hear that I will be brief. There has been a long debate. At least two Fine Gael Senators have now expressed concerns about the Bill. They have also spoken about the distrust shown by the Bill towards the legal profession and the Judiciary. Senator McFadden was correct when she said that the independence of our courts is of the utmost importance. As this legislation goes through, I am certainly concerned about whether we are undermining the independence of the courts.

We have to be cautious in that regard. As Fine Gael has been known as the law and order party, I am certainly concerned about the manner in which this is being processed. I have great sympathy for the Minister with regard to progressing Bills such as this. I have sat in the seat in which he now sits and have had to put legislation through that was part of the programme for Government but which I would not have wholeheartedly supported. When a deal is done in respect of a programme for Government, however, that programme has to be honoured. I have to ask the Minister if his alliance is still in existence or if this is just a single person's crusade, as has been said repeatedly.

Senator Mark Daly raised the issue of the almost €1 million cost of this commission. If it improved the Courts Service and the appointment of judges, it would be €1 million well spent, but there is a question mark over whether it will improve things or whether it will make things worse. I do not believe that case has been fully won. It certainly has not been won in this House during the period of this debate. If a single person says that we must have this legislation and that we must reopen Stepaside Garda station, but proof is put out and independent research shows that neither measure is economically viable, there is then a question mark over whether one should continue with the measures when the independent evidence says that it may be the wrong way to go, even when one is in a partnership or a programme for Government.

One of the things we said when the Labour Party was in government with Fine Gael was that we would pass legislation on the basis of evidence. There is very little evidence on which to base this Bill. I am conscious of whether we are on a slippery slope. There is a perceived populist element to this legislation which we should run down. Despite that, we have heard at least two Senators from the Fine Gael group say that they will vote with the Whip. I compliment Senator Noone on her contribution in that regard. I respect that if one is a member of a party, one can sometimes do an awful lot more for the greater good inside it than outside. I am by no means being critical of Senator Noone, but she should throw up warning signals to the Minister to say that-----

I hate to remind the Senator but this section is about the membership of the commission.

I am getting to section 10.

The Senator is getting there.

I am getting there. It is a long journey but these points have all been mentioned during the debate on the section. I was replying to Senator Mark Daly's remark on the cost of the appointments. That is where that element comes in. I have been attendance for, or listening in my office to, all of this debate. I am raising these items in response to issues that were raised over the past two hours. As Senator Buttimer said recently, the debate has been going on for the past two hours. We have an amendment, No. 14, which we have withdrawn but reserved for Report Stage. I do not want to speak for too long on it. I ask the Minister to reflect clearly on it before we get to Report Stage to see if we can have some meeting or reach some compromise to improve the Bill. Of course the Judiciary needs modernisation and reform. Nearly every element of our government systems can be improved, and should be where they can be. In respect of section 10, the question of whether it is an improvement or a disimprovement has been raised constantly. We have a well-used and trusted system which we are now tearing down. We are not that confident that what we are putting in its place is any better.

The GRECO report has been discussed at length. I know the Deputy Leader is in the House. Rather than going through the GRECO report line by line or section by section, perhaps there could be an opportunity tonight for the Deputy Leader and Leader to reconsider having a motion on the Order of Business to allow for a debate on the GRECO report at some stage tomorrow so that we can extract it from our conversation and discussions here today. I am sorry, Minister. I am not too sure what you are indicating.

It is of no concern to the Senator. It is on the brief.

Through the Chair please, Senator Humphreys.

I am sorry, Acting Chairman. The Minister was indicating something. I am not quite sure what it was.

I thought he had a wooden spoon in his hand for a minute.

It is of no concern to the Senator who is on his feet. He should continue.

We are all going slowly mad.

It must be a good one. I wish the Minister would share it.

Senator Humphreys, without interruption.

We are seeing another side of the House.

The badness is contagious.

I welcome back Senator Norris.

I thank the Senator.

I would appreciate if Senator Conway would-----

I do not think Senator Conway-Walsh has said anything on this matter.

I said Senator Conway. I would appreciate if Senator Conway would show a bit of decorum in the House. He is inviting interruption.

Is the Acting Chairman looking for a quorum?

Senator Conway-Walsh is always a woman of decorum.

Was the Acting Chairman looking for a quorum? I am quite happy if he wants one.

Senator Humphreys on section 10.

Senator Norris is calling for a quorum.

Notice taken that 12 Members were not present; House counted and 12 Members being present,

As we have a quorum I call on Senator Humphreys to continue with his-----

Senator Humphreys has returned. The Senator, without interruption.

I thank the Leader of the House.

As Senator Humphreys was not here, the Bill should have fallen.

Exactly, it should have fallen.

The Leader thinks the Bill should fall. I think that should probably be seconded.

I point out to colleagues that there is one Chair here. If somebody wants me to vacate it, if they are not happy with the way I am chairing the discussion, I would be quite happy to do so. I call on Senator Humphreys to resume his contribution without interruption.

I am certainly not suggesting the Acting Chairman is not capable. I always find him a very capable and fair Chair, as are most Chairs in this House. I do not know if the Leader is going to stay in the House or if he is off again. I was just saying before the quorum was called that the Leader might have a discussion with the Deputy Leader and look at scheduling a debate on GRECO.

I am conscious that we are only speaking to a relatively short section of less than one A4 page. Section 10 contains provisions for membership of the commission and the general functions. I am not going to labour too much on GRECO as many other people have made the points about it. As we know, the Attorney General referred to the Bill as a dog's dinner. I had better disclose that I happen to live, not in the constituency of the Minister for Justice and Equality, much as I might like to live there, but in Dublin-Rathdown. Lord Ross - or rather, the Minister, Deputy Ross - has his name on my ballot paper, and on those of Senators Richmond, Craughwell and Marie-Louise O'Donnell. I do not know if any of us voted for him the last time and I am not sure if any of us will next time. Obviously, a lot of people did.

I do not see a reference to any of those people in section 10.

He is still the sponsoring Minister. I do want to address the whole idea of the lay majority. I was privileged to be nominated as one of the few lay members of the Dental Council in 2010 by the then Tánaiste, Mary Coughlan. That board involves fees of zero, by the way, before anybody starts to worry about how much I was getting paid. It was on Merrion Square so I never even claimed expenses for travelling from my house to there. There were 19 members on that board, of whom 14 were dentists or people involved in dental education, auxiliary training workers and so forth on the various committees. It was essential for something as technical and complex as the Dental Council, which is the regulator and registrar of dentists and has a fitness to practice committee, an education committee, an auxiliary workers committee and so on, that people know quite a lot about the field. If one was advertising for an editor of a newspaper, would one have an interview board made up of people who have nothing to do with newspapers? It is technical, complicated, legal stuff. I am not a solicitor, barrister or judge. If I was a judge I would not be here.

I apologise for interjecting but I do not think we have a quorum present.

Notice taken that 12 Members were not present; House counted and 12 Members being present,

As we have a quorum, we will continue.

I will try to keep going while I can before another quorum is called. The point I am making is that the idea that an appointments commission involving judges should have a lay majority is grossly disrespectful to the legal profession generally. I do not like the idea of having lots of people who might not know much about judges or judicial appointments as opposed to people who do it for a living as their existence. People with the necessary expertise might include current judges and, as is listed here, the Chief Justice; the Presidents of the Court of Appeal, the High Court, the Circuit Courts and the District Courts; and the Attorney General - I appreciate it being changed slightly.

The general function of the commission will be to select and recommend to the Minister candidates for appointment to judicial office. I am not sure we have really discussed those who are to be appointed as laypersons and how that is taking place. Perhaps it has been discussed already. I was not here for all of the debate on this section but I was here for a good bit of it. Who trains the trainers? Who manages and scrutinises those who are being appointed as laypersons? If we appoint a group of laypersons of any one particular political persuasion and they have a majority, they could almost do what they liked. I am sure other parts of the Bill put some caveat on that but I do not think we should assume it is a good idea to have a majority of people on a committee who know less about the committee's business than those doing the work on a daily basis.

I have book in my hand called The Politics of Judicial Independence in the UK's Changing Constitution written by Graham Gee, Robert Hazel, Kate Malleson and Patrick O'Brien. Dr. Patrick O'Brien is a member of the department of law in the London School of Economics and Political Science. He makes reference to the Judicial Appointments Commission Bill 2017 in respect of diversity, which we have discussed. He says he has no particular difficulty with the involvement of lay members in the proposed commission and that the evidence from the UK suggests such involvement does not preclude significant judicial influence in a selection body of this kind, even when lay members form a majority. In terms of diversity, however, he says there a risk which has demonstrably occurred in the UK. I was listening very carefully to Senator Ruane's words on diversity last week and Senator McDowell's response to her argument. Dr. O'Brien says there is a demonstrable risk that the move to a formalised and administrative approach to judicial appointments will result in a reduction in the diversity of those appointed to the Bench. He is arguing that the formalised, tick-box approach will reduce the diversity of those appointed. He suggests that a more informal and political appointment process, whatever the other faults of such a system may be, seems to better facilitate the choice of candidates from non-traditional backgrounds - something many Senators have addressed in recent days - and allows a panel to make a judgment on the basis of likely future performance and the composition of the Judiciary as a whole rather than simply on the basis of the career history of an individual applicant. A formalised and strictly merit based system, he says, that looks at individual applications in isolation, tends to favour those from more traditional backgrounds and with more traditional career paths, with the result that progress towards a more diverse Judiciary is hampered.

Some of the people sponsoring this Bill and who believe it is a great idea might want to consider the comments from Patrick O’Brien from the law department in the London School of Economics.

He also stated:

A formalised and strictly merit-based system that looks at individual applicants in isolation tends to favour those from more traditional backgrounds and with more traditional career paths, with the result that progress towards a more diverse Judiciary is hampered. Further, the legal profession and Judiciary in the UK have tended to resist the kind of formal rules for positive action appointments which might address this within the context of a formalised process as they see them as undermining the centrality of the principle of appointment on merit. The diversity of the Judiciary is not simply a matter of abstract concern. The Judiciary is more than the sum of its parts, especially in the higher courts where policy concerns may be more significant. A diverse Judiciary with broad life and professional experience is better able to address the myriad issues with which it will be confronted. A more diverse Judiciary also presents a more legitimate face of the population it serves.

I heard much of this last week from various Members about having a broader base. I accept it must always be on merit and must always be people who are qualified for the job, regardless of background. We have a job, however, to ensure people of diverse backgrounds get into the law faculties of various universities, get through college, then into solicitors and barristers and work their way up through the process.

Patrick O’Brien continued that section 7(2)(a) and section 55 permit the commission to have regard to the importance of gender and cultural diversity. He feared that this objective would be crowded out in the practice of the commission, given that it is made subject to requirement in section 7(1) that appointments would be based on merit. He suggested an amendment that might address the problem that would make it explicit in the Bill that a requirement of the commission should be that it would present to Government a balanced slate of names and candidates who were all highly able and appointable, meeting the merit requirement but also reflecting the objective of a diverse Judiciary. That would require amendments to various texts further on.

He stated:

The experience [in] the UK, as well as internationally, suggests a diverse Judiciary would not happen organically but would require deliberate and conscious effort by politicians and policymakers to achieve it. If a diversity criterion is not expressed as a formal requirement in the recommendation process, it is unlikely to be achieved. The balanced slate approach can be an effective way of achieving this goal without compromising on the requirements that all judges be appointed on merit.

Last week many Members, some of whom are supporting the Bill, said they wanted more diversity, yet it looks like there is nothing in the Bill to promote that. I note the Minister is nodding. I hope he is agreeing with me, rather than disagreeing.

The Politics of Judicial Independence in the UK's Changing Constitution contained a significant section on the judicial appointments commission. I am not going to read all 250 pages of it, although I am sure some people would like if I did. It stated:

The judicial appointments commission is an independent body but it manages a long and highly formalised selection process involving advertising, short-listing by tests or paper sifts, interviews, and, for some posts, presentations or role-playing. It was created, despite its name, as a recommending body that makes initial selections for judicial office, with the final say whether or not to appoint being made by another decision-making authority.

The book’s findings indicated “it effectively functions more akin to an appointing body”. There was a Lord Chancellor involved at one stage.

The book referred to the relations with the Ministry of Justice. It stated:

The judicial appointments commission is an executive non-departmental public body, operating at arm's length from, but within strategic framework set by, the Ministry of Justice. The relationship is defined formally by legislation and a framework document, but also, as with so many of the institutional relationships, informally by one-to-one personal relationships. The [JAC’s] lay chair is accountable to the Lord Chancellor for formulating a strategy to deliver the JAC’s main objective of selecting candidates.

It then referred to the history of various individuals with which I will not bother the House.

It then stated:

In its short history, the JAC’s relationship with the Ministry has been turbulent, at times divided by [a] series of clashes over both policy and personality. From its very beginning, the JAC had a tense relationship with the Ministry's predecessor, the Department for Constitutional Affairs. In 2006, when it assumed day-to-day responsibility ... it encountered several challenges: financial, workload and staffing. On top of a 5% budget cut in its first year.

The book continued with the experience of various Ministers, including Kenneth Clarke. His tenure was described as having much less emphasis placed on meaningful ministerial appointment and far more stress on cutting the JAC’s size and cost. Clarke described his involvement in appointments as largely ceremonial and ritualistic. In other words, he went through the motion of reviewing candidates about whom he knew little or nothing.

Generally, there is much opposition to this Bill. The idea there must a lay majority on the commission purely because a certain Minister appears not to trust the legal profession to do its job is wrong. I found with the Dental Council that the members who were the toughest on dentists who were not behaving were the dentists themselves because they felt these people were impugning the entire profession and its integrity. Judges and the law profession generally would be very tough and careful to ensure they do not seem to be appointing people just because they are friends. In fact, they will be far tougher than any lay majority because they will have much more information and savvy about the individuals and the job involved. Lay people, with all the best will in the world, cannot say they have as much expertise in this particular field as somebody who does it every day for their entire career.

Will the Minister consider the points I am making? It is important the lay majority idea is not absolutely adhered to. I believe having a lay chair and lay majority will do a disservice to the commission. I take on board what Senator Craughwell said earlier. This legislation will be around for a long time, if it makes through both Houses. We must ensure that whatever is passed is right and not just for one individual who seems to have an agenda.

I agree. It seems to me to be quite extraordinary that one should disqualify from the appointments committee the very people who have personal and direct experience and knowledge of the situation. That seems to be absolutely 100% daft.

The House is in the debt of Senator McDowell for his magisterial illustration of the genesis of this legislation in a personal animus from one person. The idea of putting a lay majority on the nominating body for judges, to which the majority of the Opposition in the Dáil disagreed, is quite extraordinary and is breathtaking.

I beg your pardon, Minister?

That is fake news.

I think the Minister should avoid those phrases. It got his leader into trouble.

I will deal with Senator McDowell. He does not need Senator Norris to act as his parrot.

I am not acting as a parrot.

Please, Senator. Can we come back to section 10?

I have to respond to the Minister because he is such a nice and charitable man usually, and he does come from Laois. However, I do not know what he is going to challenge. Senator McDowell read the provisions of the Bill into the record of the House.

It was a phantom Bill.

It was a Bill that was printed by the Bill's Office.

It was a phantom Bill.

The Minister can call it a phantom Bill and call it fake news. I do not know. What are the Minister's views on President Trump?

What are the Senator's views on President Craughwell?

Can I have a break for a little laugh? I think I have done something unusual in that I have unearthed a new point, even though the old melodies are lovely and go to our hearts and we do so much enjoy the repetition of the good old tunes. We were asked what was in-depth. That is like Joxer from "Juno and the Paycock": "What is the stars? That is a darlin' question, Captain Boyle." I believe I have the answer. It comes from the GRECO report:

GRECO recalls that the current recommendation was, inter alia, based upon on-site discussions between its Evaluation Team (GET) and representatives of various interlocutors, including the judiciary, the executive branch, the Bar, the Law Society, the Prosecution Service and representatives of civil society.

That is in-depth, but there is no suggestion whatsoever the Minister for Justice and Equality has conducted anything remotely like that with the Judiciary.

The report goes on to say:

As reflected in the Evaluation Report, it is noteworthy that the perception of a “politicised” recruitment system was not aimed at the pre-selection procedure carried out by JAAB, but rather at the fact that the JAAB, a body of the judiciary, had to produce a list of candidates (at least seven) without priority and sometimes much longer lists without any order of priority to the government for its final appointment. Consequently, the potential risk of political lobbying and favouritism referred to in the Report, was in the second stage, i.e. once the list of candidates had been established and handed to the government for decision.

In other words, what it is attacking is not the composition of the Judicial Appointments Advisory Board, but rather that it would hand to the Government a list, sometimes consisting of seven members and sometimes of more but without any prioritisation, so the Government could pick and choose from an extensive list. That, in the opinion of GRECO, opened it up to politicisation. That is the point that GRECO makes.

It goes on to say there is no argument at all about the question of merit, that merit should be the basis for all appointments, which I think we are all agreed on. What we do not agree with is the extraordinary notion that a majority of people should make decisions about professional appointments from outside. They are specifically disqualified because of their experience. The very thing that should qualify them, and the very knowledge that should qualify them, has them disbarred. That is completely and utterly farcical.

The Public Appointments Service, PAS, is referred to as the body which will organise the selection process. During one of the breaks for a quorum, I Googled what the PAS is, and I was told it is different from the Public Appointments Commission, PAC. I would like to know what the PAS is. It is not defined in the Bill, as far as I can see. Is it defined in the Bill? I do not think it is.

It is the body that selects the lay people in section 10.

It is referred to but not defined.

It is mentioned in section 12. I wonder who these people are. We have been told they will be independently selected by the PAS, but there is no definition that I can see of the PAS itself. What is it?

It is the body that makes the senior appointments.

Can I clarify that? Is Senator McDowell clarifying the difference, if any, between the PAS and the PAC?

The PAC is not the PAS. In my Googling, I was told the two things are different.

Dr. Google is not always right.

The PAC is a statutory body but this nebulous thing, the PAS, does it exist as a body at all?

But it does in this legislation, is that what you are saying?

Without definition.

It is referred to as the PAS, and when one Googles it one is referred to the Department of the Taoiseach but is not told anything more about it. This is supposed to be a body which is to be given a statutory function in selecting the independent members. I would like some clarity as to who these people are. Who decides who sits on the interview boards? Who decides what happens in the PAS? It is a bit strange that we are giving a huge statutory power to select people and we are not being told who constitutes the body that makes these decisions.

Absolutely. It defines "chairperson" as chairperson of the commission. If one defines a chairperson, surely one should define the PAS.

It is a vague phrase which is thrown into this statute without any definition. The only thing I know is it is not the PAC, because the website for the PAC says it is not the same as the PAS. If it is some kind of an attribute, quango or loosely defined body of some kind, I would like to know who is on it, who is not on it-----

And are they all lay people?

That would be a very good question.

They must be disqualified if they have any legal qualifications or understanding whatsoever.

I see this absence of a definition. We are expected to approve a lay majority selected by the PAS, and we are not told what the PAS is. We are not told exactly how this nebulous body, the PAS, would constitute a committee to make the selections. It does not seem to be regulated by statute. Is it subject to ministerial direction? Who is it? What is it? We simply do not know.

On in-depth consultation with the Judiciary, it should be noted that as far back as November 2016, Mr. Justice Donal O'Donnell, a member of the Supreme Court, wrote to the then Tánaiste and Minister for Justice and Equality, Deputy Frances Fitzgerald, on behalf of himself and a number of judges. In a very telling passage, they said that they recognised the importance and value of significant lay involvement in this process, and that in particular the lay membership provided an additional guarantee of fairness and a restraint on any possible over-narrow technical or professional assessment. These were judges talking to the Government. They said they appreciated there was a current debate about the composition of the board, and that the programme for Government contained a reference to a lay majority, but that provision did not appear to have been the subject of any prior discussion or debate and that the justification for a lay majority, as opposed to lay involvement, had not been articulated. Those words stand equally valid to this day.

The letter went on to say that it appeared that it may have been desired to avoid a process which could be characterised as self-replication by a group of judges and lawyers. I think that is a fair assumption as to what the motivation might be. They said that in the first place, this expressed concern was an anticipated problem rather than an existing or a historical reality, given their experience within the range of views within the Judiciary on any issue unlikely to emerge in fact. They said that, as was discussed, any concerns could be met by having a body composed of equal numbers of lay and judicial members, a member from each branch of the practising profession and a requirement that the group should seek to make its decision by consensus, and that in the event of any contested decision, it would be required to be made by a weighted majority either by number or composed of a minimum number of lay or judicial members, or both.

This was before the text of the Bill was ever published, and it was this Minister who published the Bill and brought forward the heads of the Bill with all the foot-stamping going on about no appointments and the urgency of it. It is the Minister for Justice and Equality who brought forward the text of the Bill. However, the former Minister, Deputy Fitzgerald, received this communication from a senior judge in our Supreme Court which asked where the lay majority idea comes from.

If one was overly concerned that lawyers would all gang up, surely it could be provided that in any contested decision, a weighted majority with a minimum content from both sides of the matter, should be the deciding majority.

There is so much sense in this, yet the point the judge made in the letter was that there had been no articulation of any reason as to why there should be a lay majority. He looks to the possible reason that it would be to stop judges engaging in self-replication and lawyers and judges getting together to make sure that only people of a certain type become judges. He then points out a very reasonable way to ensure that that does not happen. There would be an equal number of lay people and judges and for a decision to be made, there would have to be a working majority which would indicative of both elements of the commission in contested cases. No real answer was ever given to that suggestion.

That happened in November 2016. In June 2016, the Association of Judges in Ireland, AJI, had a meeting with the then Tánaiste, Deputy Frances Fitzgerald, and the Attorney General. The note of that meeting in the Department said that the AJI also had concerns about the process of selecting the lay members and it was necessary to understand that lay members would have vested interests, such as promoting rights of victims, civil liberties, human rights, etc. It recommended that the majority of the commission should comprise lawyers and judges.

Then there was a meeting of the Tánaiste, the Attorney General and officials with Justices O'Donnell, Mary Finlay Geoghegan and George Birmingham. It noted that a key issue for the judges was the type of lay member who might come forward under the proposal, referring to the background of lay members in the neighbouring jurisdiction as being very eminent, and that people would want to shape the Judiciary and would have an agenda to do that. The Judiciary underlined its concern about the wrong motivation that a lay member could have if the bar is not set right. In particular, the judges indicated that the Bill should not exclude people who were formerly judges or practitioners. It should not exclude current practitioners who work on behalf of precisely the type of body that might provide an excellent lay perspective. This goes back to what Senator Bacik was saying about FLAC, for instance.

There was a note of a meeting of 2 March 2017 between the Taoiseach, the then Tánaiste, the Attorney General, and Justices O'Donnell, Mary Finlay Geoghegan and George Birmingham. That note says that a number of points of concern regarding the proposed new model for judicial appointments were made by the Judiciary representatives, including the need for legislation to be based in a comprehensive research process and on good and bad lessons from other countries; that the system proposed with a lay majority and complex processes would deter applicants of the required calibre from putting themselves forward; that a system that might deter the right applicants is damaging to the administration of justice-----

Excuse me, but we are discussing important issues here which will inform the debate and I believe we should have a quorum in the room.

Notice taken that 12 Members were not present; House counted and 12 Members being present,

I was quoting from a note of a meeting on 2 March 2017 between the then Taoiseach, the then Tánaiste, the Attorney General and Justices O'Donnell, Ms Finlay Geoghegan and George Birmingham. The note says that a number of points of concern regarding the proposed new model for judicial appointments were made by the Judiciary representatives, including the need for legislation to be based in a comprehensive research process and on good and bad lessons from other countries; the concern that the system proposed with a lay majority and complex processes would deter applicants of the required calibre from putting themselves forward; that a system that might deter the right applicants is damaging to the administration of justice; that there were particularly important requirements for the selection processes for the superior courts that they regarded as inappropriate, such as that the Chief Justice would not be the chairperson of the new body; that lay people required for the new body should be selected by a very careful process to avoid "people with an agenda" becoming part or even part or even a majority; that the lay people should be people of eminent standing with expertises in HR selection processes; that the Chief Justice and all court presidents should be members of the body; that academics with no practical experience should not be eligible for judicial appointment - that has been remedied because the academics will be required to have practical experience; and that consideration should be given to ensuring that the new body can work through a system of selection panels for the purpose of a particular selection process.

These proposals were made at meetings but when the Bill was published and amended in the Dáil, GRECO continued to express concerns about it. The Government stated that it had had in-depth consultation with the Judiciary about the Bill in its present form, but it turned out that this was not the case.

For me to get my head around the idea of laypersons being either a majority or minority, I have to understand the selection process. The term "Public Appointments Service" is not defined in the Bill. I do not know whether it means anything as a matter of law. If it is a group of people in an office somewhere who have no statutory basis, I have a concern about this because their composition can be changed completely. If it was the Commission for Public Service Appointments, on which people such as the Ceann Comhairle, the Ombudsman, the chair of the Standards in Public Office Commission, SIPO, and various others are five ex officio members, I could understand even though I would point out that the Secretaries General of the Government and the Department of Public Expenditure and Reform are Government appointees under that statutory model. I am much more concerned with getting clarity about what "Public Appointments Service" means. If it is not a statutory body, then we have a problem with the Bill.

Following on from Senator McDowell's comments, and from my time involved in trade unionism, I saw countless appeals about appointments and so on. Section 12 of the Bill deals in more detail with this "Public Appointments Service". We are discussing a new, open and transparent way of appointing judges but there is something at the beginning of the Bill that lends itself to the "dog's dinner" description the Attorney General gave. A line in the Bill refers to the "Public Appointments Service", but we have no earthly idea what that is or how it is composed. Is this a group that is working out of the Office of the Taoiseach? As my colleague, Senator McDowell, said, that was the only reference he could find to "Public Appointments Service". Does this mean that these people are appointed by the Taoiseach to fill certain vacancies? If so, where does that leave the issues of transparency and openness and the accusations of political interference and so on that can be thrown at future appointees?

How would I apply to join this commission? Is there an appeals process if I am turned down? We will have to consider these matters later in the Bill. I am anxious to see a definition for "Public Appointments Service". Let us have clear definitions as we work our way through. The Bill is likely to come back and haunt us for the next 20 or 30 years.

As no other Senators wish to contribute, I will call the Minister. Before I do, however, I remind him that we must suspend at 6 p.m.

I am aware of that.

Regarding the penultimate point raised by Senator McDowell, the Public Appointments Service, PAS, is a statutory body under the Public Service Management (Recruitment and Appointments) Act 2004. It is different from the Commission for Public Service Appointments. It is established under section 11 of that Act and is widely used to facilitate the appointment of persons to the public service. It has a board and a chief executive officer, CEO, currently Ms Fiona Tierney, a woman of the highest repute. The current board is chaired by a former departmental Secretary General, Mr. Tom Moran, and includes such well known and independent persons of high repute as Dr. Eddie Molloy. I would be happy to furnish Senator McDowell with the names of the full board.

Who appoints its members?

They are appointed under the 2004 Act, and the board has been in existence for some time. As to who appoints them, the process is independent of the Government. The board acts independently. It was most recently involved in assisting the Policing Authority with the recruitment to the high-level public service job of the Garda Commissioner designate.

How does one get appointed to the board?

I would allay any concern that Members might have. Regarding the point about GRECO, the independence of the PAS needs to be stressed. It is independent from the Government in the performance of its role, function and duties.

I will refer briefly to the issue of the GRECO report, about which we have heard so much in the course of this afternoon's debate. I was pleased to be in a position to facilitate the publication of the report following its approval by the Government last week. I regret that there was some controversy in the Seanad. As explained on the occasion, in the normal course of events, these reports would be published after being approved by the Government. Last week, the Government meeting was on a Thursday. I indicated that, notwithstanding the Government's prerogative to make a decision, my recommendation and subsequent expectation was that the report would be published, and it was. I am pleased that Members had sight of it. However, I acknowledge that some Members had sight of it before it was approved by the Government.

One of the key points that has been made this afternoon is that Ireland is in some way out of line with European and international norms. However, no one whom I heard making that point shed any great light on what international and European norms are. I will explain why that is the case - there is no universal international norm. Nor is there any binding international or European norm. As I said last week, Ireland, the United Kingdom, Malta and, in some respects, Cyprus operate under a different administrative process than other EU countries when it comes to the law. There is no binding or specific international norm.

Two years after the 2010 Council of Europe recommendation, we had a major policy statement from the European Networks of Councils for the Judiciary, ENCJ, known as the Dublin Declaration, since it followed a network meeting in Dublin. In it, the ENCJ referred to the necessity in circumstances such as those in Ireland, where the Government is, in effect, the deciding authority, for a relevant number of members of the Judiciary to be directly involved and for the majority membership of this body to comprise individuals independent of the Government. The real point in this discussion is the new commission's independence from the Government.

We are only dealing with section 10, but I am sure that, having regard to the fact that I have sat here patiently for almost four hours, the Acting Chairman will indulge me.

I challenge Senators who tell me there is something of a conflict in that this Bill in some way compromises the independence of the appointments commission.

By order of the House, I intervene to ask the Minister to pause his response at this point.

I appreciate the time being made available.

As it is 6 p.m., in accordance with an order of the Seanad of 5 July the sitting is suspended until 6.30 p.m.

Sitting suspended at 6 p.m. and resumed at 6.30 p.m.

We resume on section 10 after a short sos. The Minister was in possession before we took the break at 6 o'clock so he may proceed.

I was dealing with the report of GRECO. I am very pleased that Senators have had an opportunity to give consideration to the report in the context of where we are in the debate. Having read the GRECO report in its entirety and its earlier drafts, as I did, it seems clear that the Bill before us increases judicial independence rather than attempting to reduce it. The Bill proposes a reduced number of names coming to Government, the inclusion of all judicial promotions, which is currently done outside the appointments board process, and a reduced role of Government in the selection of the lay members of the commission, which will be now done by the Public Appointments Service, PAS. The PAS will nominate the appointees to Government, and this will be done independent-----

-----of Government. I mentioned to Senator McDowell - I am not sure whether Senator Norris was present - that the chair of the Public Appointments Service is retired Secretary General, Mr. Tom Moran. His board, the full particulars of which I would be happy to lay before the House, includes Mr. Eddie Molloy and other persons with a strong track record in public service. The CEO is Ms Fiona Tierney. The latest experience that Government has had with the Public Appointments Service was the very successful competition run by the Policing Authority through the Public Appointments Service for the nomination to Government of the new Garda Commissioner. The body is entirely independent of Government. As I mentioned in the context of the increased judicial independence under the Bill, the new commission dealing with the Judiciary will be entirely independent of Government. It is not true to say, as has been said, that judges are debarred or disqualified from the new commission. In fact, I was very pleased, following discussion with the judges, that we were in a position to amend the Bill to include a greater reference to judges and a greater involvement of members of the Judiciary.

Senator Craughwell and others speak about a new system, which of course is envisaged under the Bill, but I must say yet again that under our Constitution the Government and no other group, body or authority decides who to recommend for appointment to the President. The Bill, together with any changes to it proposed in this House between now and its conclusion, must operate within the context and confines of our Constitution. I refer specifically to Article 35, providing that judges shall be appointed by the President, and Article 13, concerning the powers and functions conferred on the President by the Constitution and exercisable and performable only by him on the advice of the Government. The position in that regard is not changing. There is no constitutional referendum or amendment proposed that might indicate as much, nor have I heard any calls for a constitutional referendum to take the power to advise the President from Government and ultimately for the President to appoint the judges.

The Bill has been very carefully constructed following consultation. Senator McDowell is right that the former Minister, Mr. Alan Shatter, initiated this process of change, reform and modernisation some five years ago by engaging in a public consultation which formed part of the process. The Bill now ensures full participation by the Judiciary following an amendment that we were pleased to debate, successfully so, in the Lower House, providing that judges at the highest level and the presidents of all the courts will be ex officio members of the new commission. This is something that GRECO welcomes and which, to my mind, allays many of the fears and concerns expressed by that organisation. We now have representatives of all the courts, whereas when the Bill was drafted in the first instance, it did not provide for membership of all the presidents of all the courts on the commission.

The reason we now propose an expanded commission is to ensure the Government's core objectives of having a non-legal or lay chair and a non-legal or lay majority are met. The non-judicial cohort of people who will serve on the commission will be selected by the Public Appointments Service, an independent body operating to the highest standards and an organisation that we trust to operate the selection processes for the highest public officials and officeholders, including those who operate independently of Government. Therefore, no departure from international norms, which Senators appear to suggest was the fundamental flaw in the Bill, is proposed. We must have regard to our common law system. I said last week - and it bears repetition because the point was raised again in the course of the debate this afternoon - that what we are doing here is not dissimilar to what pertains or operates across the water in England and Wales and also Scotland.

I listened to Senator Craughwell talk about his cardiologist. I am still at a loss as to what relevance the Senator's cardiologist has to the Judicial Appointments Commission Bill. I do not want to provoke him into further repetition.

He would not be of any use to the debate. That is the problem.

I believe it has to do with the heartbeat of the occasion.

I need to know if the Minister can do CPR.

President Higgins would do it for the Senator.

The independent, non-judicial, non-legal chairman of the Judicial Appointments Commission in England and Wales is none other than Professor Lord Ajay Kakkar who is, among other things, a professor of surgery in University College London. He may be someone to whom Senator Craughwell might defer if he has a difficulty with his own medical scheme, which is perhaps-----

Is he in cardiology?

-----why the Senator introduced this into the debate.

The chairman of the Scotland commission is Mrs. Nicola Gordon who is an engineer by profession and an expert in international petroleum and gas engineering. She is the non-legal, independent and very successful chair of the Judicial Appointments Board for Scotland. There are four judges on the board in Scotland and in Ireland it is proposed to have five. The board in Scotland has six lay members and six non-lay members. I do not accept the suggestion that the proposed commission in Ireland is unique or, as has been said, that it is fundamentally flawed.

I shall now turn to the assertions made by Senator McDowell, who continues on the chapter he opened up here last week around the motivation or otherwise of a member of Government who Senator McDowell has assumed is a champion or sponsor of this Bill.

It is not much of an assumption.

The points raised by Senator McDowell about Private Members' Bills in the past, whether they were initiated in the Dáil or the Seanad, and which Senator Norris also invited us to accept as being in some way relevant-----

Of course it is relevant. It shows mens rea.

It is a phantom Bill and has absolutely no bearing on the current Bill.

It has. It shows the state of mind of the Minister.

That Bill is not before the House. If it was before the House it would certainly be opposed by me. It would be nothing short of shambolic to suggest that the Opposition parties might be the ones to make appointments to the Judiciary. I dare say-----

Did the Minister, Deputy Ross, not suggest that?

If that was the case I am sure that Senators Craughwell, Humphreys, Norris, McDowell and others would be apoplectic in their opposition to it, as would GRECO.

The Minister is very generous.

It is a fake comparison.

In an unusual step in the course of the debate Senator McDowell named two journalists from The Irish Times, Mr. Pat Leahy and Ms Sarah Bardon. They are two journalists of the highest repute and they are objective in their ongoing analysis. It is my understanding that the article penned by Mr. Leahy, which Senator McDowell referred to, had an inaccurate quote from an RTÉ interview undertaken by my colleague the Minister for Transport, Tourism and Sport, Deputy Shane Ross. It was a journalist's interpretation of a misquote on the part of the national broadcasting service.

What about Mark Tighe's article in The Sunday Times?

As I have said, Mr. Leahy and Ms Bardon are journalists of the highest standing and I do not regard it as either-----

There are one or two more that the Minister should cover also.

-----relevant or accurate to engage them in this debate, or to refer to a Bill that is by no means before the House.

I do not agree with my colleague, the Minister, Deputy Ross when he makes an assertion - such as he has in the past - that the Government continues to appoint friends to judicial office.

I do not accept that. I fundamentally disagree with that.

Has the Minister, Deputy Flanagan told him that?

I disagree with any assertion that there has been anything that might in way be associated with cronyism or the equivalent. I disagree with Senator McDowell when he says that a Minister or Ministers exercise a veto over the appointments. The proof is in the numbers. In 2016 there were 14 judges appointed. I was appointed as the Minister for Justice and Equality halfway through 2017. In 2017 there were 16 members of the Judiciary appointed, and halfway through 2018 there have been nine members appointed. I intend to recommend more names to Government at an early opportunity in order to ensure that our courts are properly equipped to oversee the administration of justice in the State, as is their function. I believe that I have a fundamental obligation in that regard and I will continue to fulfil it. In the figures I have just given I see no evidence of vetoes, blocks or stops, irrespective of what might have been said by way of speculative articles in newspapers.

Only last week the Government agreed on my proposal to nominate Mr. Justice Patrick McCarthy to the Court of Appeal. This is the latest in a number of very important appointments and the latest in a number of appointments that have been made solely on merit, expertise, experience and qualifications. I look forward to bringing forward more names to the Government as required.

I do not see any evidence of any veto and I stand over all appointments that have been made by the Government, especially over the last few years with regard to experience, qualifications, expertise and the merit principle, as we are discussing in the Bill. I make no apologies for fundamentally disagreeing with the Minister, Deputy Ross on this. He is not a member of my party. He was but he left it, as did Senator McDowell.

See where you went to.

Senator Craughwell was with us as well.

I am not bound to any agreement. Senator Craughwell referred to his father as the great party supporter, so presumably Senator Craughwell resigned and left also. Senators Craughwell, McDowell and the Minister, Deputy Ross have more in common-----

The Minister has nothing on me.

I will get to Senator Norris later on.

We are looking at 40 shades of blue.

Senators McDowell and Craughwell and the Minister, Deputy Ross have more in common than they wish to concede. The fact that I do not agree with a Government colleague of a different party is the norm in partnership governments. I agree with a lot of what Senator Kevin Humphreys did when he was in Government. He left us, and he and his party spurned the opportunities of serving in power.

Senator Humphreys and his colleagues might have had the opportunity, which we would have wished them to have, to make a more positive and constructive contribution to Government Bills.

And save the Minister the problem he is having with this Bill.

Senator Humphreys may well have an opportunity at some future date.

I thank the Minister for the invitation.

I refer to the consultation-----

They might throw the Minister a lifeline if things got a bit rough.

-----that has been mentioned on four or five occasions by Senator Craughwell and others. There was direct consultation. It did not consist of phone calls. It was round-table consultation that was meaningful. It might not have produced the desired result for everybody in the room. Agreement was not reached with the Judiciary. That seemed to be a step too far. I do not think it is any surprise that there was something of a disagreement. I do not believe that in all circumstances, Government should have been unduly influenced by members of the legal profession or the Judiciary but they were accommodated in many respects. There were meetings with the then Tánaiste and judges; meetings with the then Tánaiste and the Association of Judges of Ireland, as evidenced by the documentation from which Senator McDowell; and meetings involving the Attorney General, the Chief Justice and the Taoiseach along with the Minister for Transport, Tourism and Sport himself on occasion. I speak from facts within my own knowledge. Early in my tenure as Minister for Justice and Equality, I had a meeting with all the presidents of the courts wherein this Bill was discussed. I was very pleased to give due consideration to some of the proposals put forward and I evidenced the amendment to ensure direct representation on the commission by all the presidents of the courts. To my recollection, that was a very important step forward and one that was referred to by GRECO as being somewhat important.

In response to Senators Craughwell, McDowell, Norris and Humphreys, the changes as referred to in the GRECO report - it was a point raised by Senator Bacik earlier when she referred to a draft of the report and the final report - were not solely from negotiations but from attendance by senior officials in my Department at a plenary session of GRECO a couple of weeks ago. At that session, officials from my Department were happy and satisfied to answer questions and queries and hear submissions and observations from GRECO resulting in some of the changes that have been referred to. Ultimately, I do not believe it is any great surprise that full agreement was not reached and I say this with the greatest of respect for GRECO, with which we will continue to engage. One will see from reading the report that there might be a greater level of reference in the fourth report to the Judicial Council Bill than there is to the Judicial Appointments Commission Bill. We will, of course, continue to engage with GRECO. This is the fourth evaluation round. I have spoken to the Minister for Public and Expenditure and Reform, Deputy Donohoe, with a view to ensuring that another important legislative item that is referred to in the GRECO report will be processed through the House, which is happening. We have the Judicial Council Bill, which is currently before this House, and where I would like to see progress at the earliest opportunity. However, I doubt it is going to happen over the next ten days or so.

We keep in constant contact with GRECO. We are anxious to ensure that we have a very positive and sound relationship with it but when it cites European standards, it is no doubt aware that we operate in a different system in terms of the administration of justice compared with that of many European states and that our appointments regime is more aligned to our colleagues across the water in the UK. I referred to that earlier. I am satisfied that the Bill will actually strengthen judicial independence rather than weaken it.

I will briefly refer to the point raised by Senator Mark Daly when he asked whether a person with a criminal record could become a member of the commission. I refer the Senator to section 19(2), which provides that a person shall not be eligible for appointment as a member of the commission if, among other things, that person has been convicted on indictment of an offence. Senator Humphreys raised the question of the cost and whether it will be €1 million. I do not expect this to be the cost. It might be a little over half that amount. Obviously, it is very difficult to make a an absolute prediction here but I expect that the changes that have been made to the Bill in the course of its passage - the other committees or sub-committees that will not now be proceeded with - will ensure that there will be just a commission and the procedures committee. I do not expect the cost to be of the order of €1 million.

As regards the start-up date, my recollection from last week is that I did point to the Legal Services Regulatory Authority. I think I said something in the region of nine to 12 months. I see Senator McDowell has exercised the rubber band on that and has now mentioned two years. I am not sure whether I did mention two years but I would expect that within a period of two years, the new commission would certainly be up and running. I would be disappointed if that was not the case.

I believe section 10 is the core of the Bill. The commission shall consist of 17 members. I note that some amendments were put and defeated but having interrogated the section, I recommend that it stands part of the Bill and that we would proceed to the following sections.

All Senators have exhausted all avenues of opposition to section 10.

I have one or two questions. I will be very brief.

The Senator is quite entitled as it is Committee Stage.

Could the Minister give this House an absolute assurance that regardless of the timeframe, be it a year, two years, 18 months or nine months, the Government will not in any sense refrain from appointing more judges? When I say more judges, I mean appointing judges to vacancies that are there at the moment or that will naturally occur during that period due to roll-over in judicial terms. Far more important than that is the fact that some courts desperately need more members. I mentioned some remarks made from the bench by a High Court judge to a jury panel the other day. I noticed the President of the High Court said similar things, namely, that his court was seriously hampered by the lack of judges. We amended the Constitution to establish a Court of Appeal. One of the reasons that was done was because the Supreme Court was becoming silted up with appeals from the High Court and there were huge delays in the Supreme Court. The current situation in the Court of Appeal is by no means a happy one. The new President of the Court of Appeal, Mr. Justice George Birmingham, is facing a fairly critical situation in terms of the backlog of cases. When one goes to the Court of Appeal, unlike the old Supreme Court appeal process, one does not simply slap in a notice of appeal and say that it will bide time for 18 months or whatever.

One has to put in a very detailed notice of appeal setting out exactly what the appeal is about. It then goes to a process of case management and the problem with the case management is that dates for hearings of these appeals by a three-person court, while I do not want to exaggerate, can be 18 months away at present, or worse. That is a very serious delay. We have this appellate process and somebody has got a judgment in the High Court, but the Court of Appeal, which was supposed to speed things up and change the way in which appeals were dealt with, and leave the Supreme Court to deal with important points of constitutional law and other points of law, has become very silted up and is unsatisfactory, which is all I will say on how things stand.

Before we finish with section 10, I would like the Minister, first, to give me the assurance that the Government is listening to what the presidents of these courts are saying about judicial resources and, second, to give me a clear understanding around the inevitable delay in the process. Even if everybody in this House was 100% behind every comma of this Bill in its present form, we know there would be a very significant delay before this commission gets up and running, gets its premises, appoints its chief executive officer and then starts inviting applications. Given that inevitable delay, it will not be permitted by the Government to do either of the following, namely, to deal immediately and quickly with vacancies or to address what the members of the Judiciary are saying. It cannot be gainsaid that there must be more appointments to the Bench because the system is creaking very badly at the moment.

I thank the Minister for his very considered reply to my question about the consultation between GRECO and his officials concerning what I said was a relatively minor change to the report, and to the wording of paragraph 35 in particular, a change which did not alter the substance of the critique that GRECO had expressed. However, I repeat my question on the number of appointees to the commission if section 10 were passed with the Government amendments which have already been passed. It is now to have 17 members, seven of whom are to be appointed under section 12. I asked, given that was quite different to the number originally anticipated in the Government's own draft of section 10, whether that number was somewhat unwieldy.

I referred the Minister to amendment No. 14, which we put in on behalf of the Labour Party and which specified that different bodies would nominate, so it would be easier to ensure an appropriate balance of knowledge, experience, qualifications, training and expertise among the non-judicial or lay members of the commission. While we will debate this in more detail, under section 12(6) there are criteria to which the Public Appointments Service must refer in recommending lay persons for the commission. A possible problem may be that it is hard to ensure one has that spread of knowledge and expertise, given the way sections 10 and 12 are currently drafted. That was why we put forward the perhaps more focused method where there would be different bodies, like the legal aid services and the citizens information services, nominating lay people for appointment. It is really a question about this number of 17.

Will the Minister also deal with the question of the anticipated remuneration of members of the commission?

My query is very much in the same area as Senator Bacik's. I wonder about this number of 17, which was cobbled together because they made a mistake in the other House. It seems quite unwieldy to have 17 people sitting around a table and I believe their deliberations would take an awful long time. Does the Minister think this number is unwieldy or manageable? Would the deliberations take a very long time? Is he completely satisfied with it?

I thank the Minister for his answers. He has certainly done his best to answer the questions in full. I welcome the number of judges the Minister has appointed since taking up office. He has been proactive, if we are to believe media reports that he had to push them through Cabinet. If the legislation is passed, or when it is passed, it will be nine, 12 or 24 months before the commission is up and running and there has to be some certainty in regard to appointing judges in that time. There were reports in the Sunday newspapers that judges had made remarks. I would be glad if the Minister can clarify if it is a fact that juries might have to go home and that courts will be closed. I would welcome a response on those issues. I believe the Minister is indicating there may be a bit of fake news, so I am interested to hear his reply.

To answer the questions directly, I will make two points in response to Senators McDowell and Humphreys. Yes, I would be satisfied to be held to account, so long as I am Minister for Justice and Equality, in regard to the nominations to the Government of names that are to be recommended to the President for appointment to the courts. I feel very strongly about the need to ensure the courts are firing on all cylinders and that resources are made available by the Government to the Courts Service and the courts in that regard. We all know what happened during the crash in terms of a lack of investment and I am very pleased to be in a position to reverse that trend. I believe it is important that continuous professional development is available to judges in order to ensure they are in a position to carry out their duties and functions in accordance with the Constitution and laws of the State. I do not want to see any appointments left unfilled. I have recently been in correspondence with the Chief Justice on this particular issue.

I note Senator McDowell raised the matter of one court, the Court of Appeal. I would regard the setting up of the Court of Appeal as being one of the successes of the Fine Gael-Labour Party Government in the earlier parts of this decade. Having done that, and having ensured the new court was established, I believe it is fundamental to its running and to those availing of its services that it would be best equipped, and that means it being led by a full complement of judges. I would be very happy to continue on in that regard by ensuring that appointments are made, and made in a timely manner.

On the second point raised by Senator McDowell on the timeframe for the setting up of the new commission, as I said, two years is his figure, not mine. I would refer Senators to a later section, section 61, which makes provision for a transition in regard to the recommendation function of the new commission. I believe that will be important in the context of ensuring there is early engagement.

To refer to the points raised by Senators Bacik and Humphreys in respect of the numbers, while it is correct that 17 will be the number, I reject assertions that this number is unwieldy.

On the second point raised by Senator McDowell in respect of the timeframe for the setting up of the new co

Many bodies, organisations, commissions and committees have numbers to this order. I refer to the Cabinet, which currently has 19 or 20 members if reference is made to the super juniors, as well as the Attorney General, all Cabinet Ministers and the Taoiseach. I do not accept that 17 people is too many or that a commission of 17 members is too big. I believe also that consideration can be given towards ensuring an appropriate and timely aspect to the discussions, having regard to the issues to hand. In other words, if they are discussing Circuit Court appointments then it is unlikely that all the members of the Judiciary would be actively engaged. So, I do not accept that.

I would say that by having 17 members, we have the advantage of having a representative at the highest level of all the courts, ranging from the Chief Justice, through the presidents of the Court of the Appeal, High Court and Circuit Court to the President of the District Court, all sitting around the table in the company of the Attorney General, nine non-legal or laypersons or non-judicial figures, including the representative of the Irish Human Rights and Equality Commission, who is a very important representative, and the two legal representatives from the Bar Council and the Law Society of Ireland. I think we have a good balance and a very good mix. We will also be in a position to ensure that the diversity principle, as pioneered by Senator Ruane at last week's debate, can be fully met. This is very much to the advantage of the commission in its deliberations, work and duties.

As regards the point made by Senator Bacik that her amendment might be a better fit, I would say that relying on the independent Public Appointments Service could well reflect the import of the amendment as regards ensuring we have persons with experience of the law and with expertise and not the type of randomer that was speculated upon last week in our debate. We will return to section 12 later but the importance of sections 12(5) and 12(6), as evidenced by Senator Bacik, refers to matters connected with the operation of the courts, the operation of the courts and the provision of supports to persons who are victims of crime. Section 12(6) also refers to persons who are users of the courts on an ongoing basis, persons with expert knowledge of offending behaviour, persons with expertise knowledge of commerce, finance or administration, including public administration, persons engaged in mediation activities and persons engaged in professional dispute resolution.

It can be a very exciting commission that draws on some of the best names available across society. Therefore, having a complement of 17 people engaged in the deliberative process will ensure that we provide a good service to our independent Judiciary in the manner in which names are brought forward to Government for nomination to the President, in accordance with the Constitution, which of course we are not changing.

As regards costs, I am not in a position at this stage to tie down actual amounts in terms of costs. If between now and the end of the debate, I am in a position to run a slide rule through it or whatever, I would be happy to provide Members with more information. I do not see the commission costing €1 million a year. I did make a stab at the stipend or expense allowance that would be available to persons, along the lines of a State board. I have sought further information on that to see what further figures I could project for Senator McDowell. I do not believe that service on this commission will be full time nor do I believe that it will be unduly costly in the discharge of its functions under the Act.

The Minister has referred to the 17-person commission. He stated it would not be unwieldy and likened it to the Cabinet and all of the people who sit at the Cabinet table. I remind him that many of the people who are in Cabinet are in the same political party and consequently, in a sense are whipped into a certain position. Therefore, his comparison is inaccurate.

I ask the Minister to refer to the diversity issue. Last week, I spoke about diversity at length. I ask him to suggest to this House ways that the Department could support people who undertake traineeships, whether they are trainee solicitors or barristers. Such support would allow people from different backgrounds to enter the profession in the first place and then be in a position to become judges in due course. Has the Minister information on the matter? Will his Department sponsor scholarships or bursaries for people from minority backgrounds to receive training?

I gather that the people in the Public Appointments Service are appointed by the Minister for Finance and Public Expenditure and Reform. How does one apply for a position on that?

Is the Senator looking for another job?

Is it by invitation of the Minister? Are the posts advertised?

The Minister partially answered the question on the size of the board for the appointment of judges. He said that in the lower courts, he could not envisage 17 people sitting to appoint a judge. I am interested in the High Court and above.

I did not say that.

I understood that the Minister said that it would not require the full committee.

No, I did not. I said it may not require the intense deliberation of the full committee but they will all be present.

I assume that the phrase "the intense deliberation of the full committee" means that the full committee do not have to be there. I ask the Minister to clarify the matter.

As the Attorney General is one of the 17 members, if the Attorney General is a candidate then he or she must clearly withdraw. In that case who replaces the Attorney General to retain a members of 17 people?

That is a speculative question and does not require an answer.

I thank the Minister for his response to my question. To be clear, I never used the phrase "randomer". I acknowledge the Minister did not say that I did so. I fully support lay membership on the commission. It is hugely important to have a good spread of lay members with diverse backgrounds, not necessarily a law background and far from it. Section 12(6) is correctly drawn to cover a whole range of other areas of knowledge or experience, including persons who have experience as users of the services provided by the courts. That means the consumers, litigants or, indeed, those who have knowledge of offending behaviour or rehabilitation of offenders or both and so on. It is just about how to make sure we can get such diversity of experience represented on the commission and that is the issue that I am trying to address.

I agree with Senator Bacik. Of course she did not make any reference to any persons who might not be suitably qualified. I expect and am of the view that what is in section 12 is sufficient. If there are issues that arise in the context of the debate, I would be happy to engage further.

Senator Craughwell outlined a hypothetical example such as one of the persons involved in the commission being a candidate.

Of course, I expect that in the normal course of events that person would excuse himself or herself from the process and that that would be within the practice and procedure of the commission in terms of its standing orders or the manner in which it does its business. I would regard any such candidate as having a conflict of interest that might, in effect, contaminate the entire process. Common sense and good practice and procedure will obtain. That is why we have the independent Public Appointments Service, a body that employs the highest standards of practice and procedure in the manner it does its duties and is very much beyond reproach and a leader in recruitment. It has ensured the type of independence that both Houses of the Oireachtas have regarded as essential in the context of public appointments in recent times. It is the appropriate body to engage in the selection process for members of the commission while remaining independent of the Government and objective in analysis and complying with the rigorous formula set out in the Bill.

I am grateful to the Minister for reconsidering and answering Senator Craughwell's question but, as I understand it, he also asked whether the Attorney General or another relevant person would withdraw if he or she were a candidate and whether arrangements would be made for a substitute in order to keep the balance on the commission.

In aid of the Minister, section 47 provides: "The name of a person may be the subject of a recommendation to the Minister by the Commission notwithstanding that the person is a member of the Commission, but this is without prejudice to the following provisions of this section." Subsection (3) provides: "The person shall take no part in the performance by the Commission of the particular function and, accordingly, shall neither attend any meeting of it held for the purpose of the performance of the particular function nor cast any vote in relation to any decision falling to be made by it for that purpose." In light of those provisions, it appears that the Attorney General would be prohibited from taking part in a deliberation process in which he or she was------

Is there provision for a substitute?

The Minister did not respond to my question on the steps that will be taken by his Department and the Government to ensure diversity within the legal profession and allow people from diverse backgrounds undertake traineeships at the Bar or with the Law Society. I strongly believe that there should be a scholarship or bursary scheme because, as I outlined to the Minister last week, getting one's law degree is just the first rung on the ladder and it is often beyond the means of people of ordinary backgrounds to progress in the profession.

I did not answer that question. My apologies to the Senator. Last week, I referred to the functions of the Legal Services Regulatory Authority. Among the work it is currently undertaking is a report on education. I do not yet have the report but expect to receive it in the coming months. I expect it will deal precisely with the issues raised by Senator Clifford-Lee regarding perceived obstacles and barriers to the legal profession in terms of education. I agree with the Senator that that is the most appropriate way to deal with expanding eligibility for entry to the profession in order to ensure that people from all backgrounds are eligible to train as solicitors or barristers.

An Independent Senator earlier raised the issue of specific training for judges. Unlike many European countries, we do not have a specific training centre for judges. However, it will be considered in the context of ongoing legal education development. In many European countries, France in particular, young men and women embark on a legal career or legal education with a view to pursuing a career on the bench as a member of the judiciary. They go through a school of education specifically designed to equip people with the knowledge and expertise to conduct the affairs of the administration of justice from judicial office. I again refer to the recently established Legal Services Regulatory Authority, which has committed to several reports. I expect to receive its report on legal education in the autumn. The report may be the subject of debate in the Seanad and I would be happy to make an appropriate contribution at that time.

Question put.
The Committee divided by electronic means.

Under Standing Order 62(3)(b) I request that the division be taken again other than by electronic means.

Question again put: "That section 10, as amended, stand part of the Bill."
The Committee divided: Tá, 23; Níl, 15.

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Reilly, James.
  • Ruane, Lynn.
  • Warfield, Fintan.

Níl

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Davitt, Aidan.
  • Gallagher, Robbie.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • McDowell, Michael.
  • Mullen, Rónán.
  • Nash, Gerald.
  • Norris, David.
  • O'Sullivan, Grace.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Gerard P Craughwell and Michael McDowell.
Question declared carried.
SECTION 11

Amendments Nos. 26 and 29 are related and may be discussed together by agreement. Is that agreed?

I do not agree with it. Votáil.

I am ruling that they can be taken together.

I think they are dealing with slightly different topics. One is to do with expenses and the other is to do with-----

We are taking amendments Nos. 26 and 29.

They are not really related at all.

Does the House want them to be taken separately? There is no problem.

I believe they should be taken separately.

Does Senator Higgins agree that we will take them separately?

I move amendment No. 26:

In page 11, line 22, after "expenses" to insert the following:

", including expenses for such training as might be appropriate to the functions of the Commission,".

Personally I would have seen these amendments as being somewhat connected in a potentially complementary way.

Amendment No. 26 seeks to ensure that, inasmuch as expenses are being provided for, there are mechanisms to provide for expenses to allow for "such training as might be appropriate to the functions of the Commission" for the lay members of the commission. As was mentioned previously, there will be a number of lay members of the commission.

Is this related to amendment No. 29?

Amendment No. 29 relates to the question of external supports, so both amendments relate to that question. However, I will not divide the House.

With respect, I want to agree that first.

If we wish to take them separately I am happy to do so.

The Senator wants to discuss them separately.

If that is the preference of the House.

Is that agreed? Agreed. We are taking them separately.

Amendment No. 26 is designed to ensure that lay members who may be appointed to the commission are given and have access to the supports or training they may need in respect of the delivery of their functions within the commission. This is to ensure there is a mechanism which, while recognising that lay members appointed by the Irish Human Rights and Equality Commission, IHREC, may have access to a separate source of expenses as would the legal representatives, ensures that there are expenses for training for the lay persons to ensure that, as was discussed in an earlier part of the debate, they are fully supported and confident in engaging on the questions they will be discussing. For example, they would be given training in respect of international best practice in judicial appointments in order to ensure that they are meeting the highest standards. It effectively makes sure that the lay members who are participating in this process are supported and resourced, while still respecting their independence and that, in the end, it is they who will have to make the decisions. This is where I saw the import of that.

Although I know we are not coming to it yet, I am quite supportive of amendment No. 29 from Senator McDowell which seeks to address the section of the Bill which allows the commission to employ consultants and experts in the consideration of applications for judicial roles. That is a step too far. It is inappropriate. It is important that the commission itself undertakes the important work and task it has been assigned, namely, that of sieving through applications and ensuring that the right standards are applied and the best candidates are put forward for judicial appointments as roles arise. In that respect I am quite supportive of the Senator's amendment. I see amendment No. 26 as complementary to it because amendment No. 26 recognises the role of external supports, which is to train and strengthen the capacity of commission members rather than replacing their work or decision-making role in any sense. I hope the Minister might be amenable to at least take the spirit of amendment No. 26 on board to ensure that those supports are put in place and to provide a mechanism by which they can be put in place for the lay members.

I support the thrust of this very useful amendment but it seems to me that the general framework of section 11(1)(b), which says that members shall "subject to subsection (2), be paid by the Commission such remuneration (if any)and allowances for expenses (if any) as the Minister with the consent of the Minister for Public Expenditure and Reform may from time to time determine", gives a very broad remit to the Minister, so he could certainly undertake this if he wanted to. The benefit of Senator Higgins's amendment is that it specifically includes "expenses for such training as might be appropriate to the functions of the Commission". With respect, I think it would be rather better if the Senator included the essence of the argument she made to the House, which was that this training was particularly for the lay members as they may need more training than the others. Perhaps it would be better if that was specified because it formed a large part of Senator Higgins's argument. I imagine the Minister might be open to this; I do not know. I do not think he is in the mood to accept too many amendments.

Not too many. The Senator said "too many". What Minister would accept "too many" amendments?

That is a kind of stylistic phrase, which the Minister is taking literally. He comes from Mountmellick. That is the problem.

I may take the Senator literally but I do not take him seriously.

That is fair enough. Well it is not really but we will move on. The reason I said the Minister might be disposed to accept this is that he spoke very well about the need to consider the establishment of schools for judges and so on, such as there are on the Continent of Europe. It seemed to me that this might be in line with that kind of thing. The Minister wants to get the best out of the people he puts on this commission and, in order to get the best out of them, he should give them training. If one picks people without any legal background whatever, while they may very well have business acumen, or knowledge about human rights or about Travellers, they might not have knowledge of how to deploy these talents in this particular forum. It is a useful amendment but, as I said, it would be better if it referred specifically to the lay members.

I support this amendment. It is very important and very well considered. However, I would like to suggest that not only the lay members be provided with this training, but the judicial members because while they are experts in the legal sphere, there may be other areas with which they are not that familiar. Perhaps other kinds of training, such as in diversity or in other areas of society, should be considered. Perhaps the Minister could consider that further.

I support this amendment. There is nothing more important than making sure that boards are aware of procedures and have the necessary training in human resources and in the skills their members will require. We spoke about diversity a lot the other day. One of the things of which we would want to be very sure is that the commission established under this legislation would be a diverse group. For that reason and that reason alone there should be training that would standardise the members' level of skill in this particular area across the board. I am grateful to Senator Higgins for bringing forward this amendment and I too support it.

I also strongly support Senator Higgins's amendment. Unlike Senator Norris, I do not think any differentiation can be properly made between lay members and non-lay members, be they judges, practising lawyers or the Attorney General for that matter, for the reason that it is not the function of the average barrister to conduct appointment interviews. Perhaps solicitors do it a bit more often than barristers, but it is still rare enough and, since they do it mainly for the purposes of their own practices if they are running small practices, they may not be skilled in conducting fair interviews which are equivalent for all candidates and they may not be conscious of things that somebody filling a job should be doing. Larger solicitors firms delegate this function to committees. The fact that one is a solicitor in a large firm as distinct from a small firm does not mean that one has any experience in this area. I can say for a certainty that barristers would have little or no skills in conducting interviews for appointments.

That is a very sweeping statement.

They would of course be quite good at choosing good lawyers over bad lawyers but one of the very important points about this procedure is that everyone has to feel equally at home with the process if and when they are interviewed. The people conducting the process have to understand that interviews have to be conducted with rigid fairness and not give some people the idea that they are on the outside and others the impression that they are on the inside track. I support Senator Higgins's proposal.

It should not be confined just to the lay people. If I were appointed to this commission, I could benefit a lot from having a course of some kind to remind me of things I would have to bear in mind if I was conducting an oral interview.

I welcome the support I am hearing from across the House for the amendment. I will make a couple of points of useful clarification. It does relate to lay persons, in response to Senator Norris's question, because where my amendment is inserted is subject to subsection (2) which sets out the exclusion of a number of members who are effectively not lay person members. My proposal in terms of training is something that would and should be open to all members of the commission. Senator Norris mentioned that there is scope within the Bill for that to happen within the commission.

My amendment relates to expenses because a number of the other persons who would be there in a representative capacity from bodies, be they from the Irish Human Rights and Equality Commission, IHREC, or the Judiciary, would have other mechanisms for expenses. This is to clarify that expenses may be made so that we do not have a situation of duplicate expenses occurring in respect of training. I agree that all of us at different points, in whatever role we might occupy, can benefit from ongoing training and review. For example, in the case of lay persons, as the Minister has mentioned, they could examine the Hanseatic or common law legal code or the practical skills Senator McDowell described, such as interviewing. I am grateful for the support from across the House and I hope the Minister will also be able to see his way to supporting the amendment.

As Senator Higgins quite rightly says, the amendment operates on section 11, in particular section 11(1)(b) allowing for certain remuneration, if any, and allowances for expenses, if any, as determined to be paid to certain members of the commission. The amendment seeks to insert into the subsection a particular category of expenses, namely, expenses for training appropriate to the functions of the commission.

I have listened to the debate and I fully understand where Senator Higgins is coming from. I said earlier in response to a question from Senator Clifford-Lee that of course there should be training available to members of the commission and everybody involved in the process, whether that training is done individually or as a group. I acknowledge that they will have to become familiar fairly quickly, and I use the words "fairly quickly" advisably in response to the point raised by Senator McDowell in so far as when this commission will be established and be engaging in the work that is designed for it. Individual or group training will be necessary to ensure that the responsibilities, duties and obligations under the new Act, including on good selection processes, are clearly understood.

I am not sure, however, if it is necessary to stipulate training in the Bill in this way. First, the provisions of section 10, which stipulate that the commission is independent in the performance of its functions and that the commission should have all such powers that are necessary or expedient for the performance of its functions, are more than sufficient for the commission to spend necessary resources for the training of its members, either individually or as a group. This will be the case with any new organisation seeking to start up and be in compliance with governing legislation in terms of the new board and the governing authority. The commission will have the necessary resources and it will be empowered to utilise these resources as necessary in such areas. I expect that one of the first things it will do is assess what assistance and training is needed to provide for members of the commission so they can do the job properly.

Apart from the fact that I think it is covered in the legislation anyway, I have a second reservation about the amendment that by expressing the training issue in the manner in which Senator Higgins does, it seems to provide that necessary training would not necessarily be procured by the commission for its members but that the commission would set aside a sum of money which would be payable by way of expenses to members to defray the cost of their own training. I am not sure if that is the most efficient way of bringing about what I would agree with the Senator is the desired result here, namely, that there would be assistance available, and it would be expected that such assistance would be in the form of training.

I say to the Senator, going back to what she said about not wishing to divide the House in terms of whether we take amendments Nos. 26 and 29 together, that the expenses and the remuneration in section 11(1)(b) do not apply to the Judiciary or the Attorney General if section 11(2) is looked at. What I will do, if Senator Higgins accepts, is to have a look at it between now and Report Stage. I concede the principle to be important and laudable, but I am not sure about giving the provision of expenses in the form of money to members and sending them off to get their own training. I am not equating this in any way with the experience at local authority level, and while I do not disagree with the principle, let me see if we can agree a form of wording for Report Stage. I would be reluctant to see the House divided on it. I ask Members to accept my bona fides in that regard.

What does Senator Higgins think of that?

I will quickly address one or two of the points. On the question of the independence of the commission in recognising its functions, that maybe applies anyway. My amendment is very much in the framing that is already there in respect of expenses paid by the commission for a level of such expenses that the Minister may determine. My amendment does not in any way take from the independence of the commission in determining it. In fact, my amendment would strengthen the hands of the commission in making it explicit that this is one of the grounds under which it may seek expenses and funding.

With due respect to the Minister, I am somewhat nervous of withdrawing the amendment because I want to be clear. I know the Minister has said he will examine it but we can anticipate from the shape of the debate so far that there may be a very narrow period of time between Committee and Report Stages. From my perspective, I want to be clear on whether the Minister is saying that he will come back with an amendment in respect of this issue or simply that he will consider coming back with an amendment in respect of this issue.

It would be my intention to come back with a form of wording that would meet the import of what the Senator is saying.

The Minister's position does seem reasonable to me and I hope, which underlines the need for a break between Committee and Report Stages because I would hate to think of the Minister finding himself in difficulty, that it would also include a situation where it would extend to everybody, given that Senator McDowell's argument seems quite good even though it is precluded on this amendment. It might be no harm to have everybody involved in this kind of training programme. The other consideration that could be taken into account in the Minister's amendment is that it could be made clear that these are not expenses to individuals but they are for a training programme under the aegis of the commission.

I thank Senator Norris for that.

I accept the Minister's bona fides on this, but the comparison he made with local authority members and the situation that existed prior to that in relation to training cannot be made. We are talking about only 17 members. The type of training one member would need would be completely different from what another member would need. Having training courses that everybody would attend would not have the desired outcome. If members of this 17-person commission want to get a certain type of training they should be free to do so, and the expense or part of the expense should be reimbursed. It would not be open to the abuse that other systems have been in the past. I urge the Minister to accept Senator Higgins's amendment in this regard because it is a very good one. It is only if these individualised considerations are taken into account that we will have a good commission at the end of this.

I thank the Minister for that import into the debate. I am very supportive of what he is now talking about. As Senator Clifford-Lee said, with a group as diverse as 17, clearly a number of whom will be non-legal people, the individualised training is good. I am sure the standing orders of the committee when it is set up can facilitate the different needs. All that would be required in the amendment that the Minister will bring back for Senator Higgins is that a fund would be available for training, and that it could be drawn down as appropriate for each of the members. I accept the Minister's bona fides and I will wait to see something coming back on Report Stage.

The Minister said he intends to come back with a proposal in respect of the training. Of course, it needs to be the commission that determines that, but the commission needs to be given the flexibility to respond to individual needs as well as facilitating, for example, group training in things like the GRECO guidelines and so on. I will not press the amendment further at this time but I anticipate the Minister will bring forward an amendment. Otherwise, I reserve the right to resubmit this amendment.

It is within the context of section 11 that I will come back, having regard to the fact that this is a part-time position, and that there will be terms and conditions around services, allowances and expenses, and that if there is a fund it will be limited. I do not envisage a situation that we have seen in the public service where a training voucher is given to equip someone to qualify as a barrister and applying those funds for that purpose. That is not what Senator Higgins is speaking about here. This is to ensure people are in a position to be knowledgeable, up to speed, and in a position to make a decision in the best interests of the both the letter and spirit of the legislation. I will come back to that and I thank Senator Higgins for deferring. Senator Norris makes an important point about the persons whom this training might be applicable to or useful for.

Amendment, by leave, withdrawn.
Government amendment No. 27:
In page 11, to delete line 25 and substitute “any of paragraphs (a) to (g) of section 10(1).”.

Amendment No. 27 has been discussed with amendment No. 13. Is the amendment agreed to?

The spirit of consensus did not last more than three minutes.

No, but it is a filibuster.

Amendment put.
The Committee divided by electronic means.

Under Standing Order 62(3)(b) I request that the division be taken again other than by electronic means.

Amendment again put:
The Committee divided: Tá, 23; Níl, 14.

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Reilly, James.
  • Ruane, Lynn.
  • Warfield, Fintan.

Níl

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Davitt, Aidan.
  • Gallagher, Robbie.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • McDowell, Michael.
  • Mullen, Rónán.
  • Norris, David.
  • O'Sullivan, Grace.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Gerard P Craughwell and David Norris.
Amendment declared carried.
Government amendment No. 28:
In page 11, line 27, to delete "section 10(1)(a), (b), (c) or (g)" and substitute "in any of paragraphs (a) to (f) of section 10(1)".
Amendment put.
The Committee divided by electronic means.

Under Standing Order 62(2) the vote result is unreliable and it will have to be rerun. One of the tellers voted contrary to his teller position. I need tellers who are going to vote in accordance with their intention as tellers.

Amendment again put and declared carried.

Amendment No. 29 is in the name of Senators McDowell, Boyhan and Craughwell.

I move amendment No. 29:

In page 12, to delete lines 8 to 28.

This amendment proposes the deletion of subsections (7) to (10), inclusive, of section 11. It is important to examine what is proposed here and to be very clear about what we are being asked to legislate for by the Minister. Subsection (7) reads:

The Commission may as it considers necessary to assist it in the performance of its functions —

(a) enter into contracts or arrangements with any person, and

(b) with the consent of the Minister, appoint consultants or advisers.

The fact that ministerial consent is necessary means the Minister will have a veto over the consultants and advisers. We should remember this when we go on to consider what the adviser can do. Subsection (8) reads:

Any contract or arrangement with a person, or appointment of a consultant or adviser, referred to in subsection (7) may enable the person, consultant or adviser to—

(a) advise and assist the Commission in its consideration of applicants at a preliminary stage in the course of the selection procedures, and

(b) provide an evaluation or an assessment of an applicant’s suitability for appointment that would assist the Commission in making any decision in the course of carrying out those procedures,

Then comes a fantastic piece of legislative drafting gobbledygook. It continues, "but shall not enable the person, consultant or adviser, for the purpose of performance by the Commission of that function, to do any other thing (other than a thing which facilitates such performance)." One would need to be very clever to understand what that is supposed to mean.

It is horrendous.

It is a very convoluted section. In paragraphs (a) and (b) of subsection (8), the idea is that consultants or advisers could, if the Minister consented, be appointed to advise and assist the judicial appointments commission in its consideration of applicants at a preliminary stage in the course of the selection procedures. What is the preliminary stage? We are not told, but presumably it does not mean the final choice of a recommendation and I presume it does not mean the ranking of persons recommended. The phrase, "provide an evaluation or an assessment of an applicant’s suitability for appointment that would assist the Commission in making any decision in the course of carrying out those procedures" means the commission can get psychologists in and retain consultant lawyers to take a look at the suitability of other lawyers. With the Minister's consent, this allows the commission to appoint lawyers to evaluate an applicant's suitability for appointment to assist the commission in making any decision in the course of carrying out those procedures. As regards the contract, however, it states that it "shall not enable the person, consultant or adviser, for the purpose of performance by the Commission of that function, to do any other thing (other than a thing which facilitates such performance)."

It reads better in Greek.

Please allow Senator McDowell to continue without interruption. We will get clarification from the Minister in due course.

I am sure we will. It goes on:

(9) The Commission may, out of the resources at its disposal, pay to a person, consultant or adviser referred to in subsection (7) such fees (if any) or allowances for expenses (if any) as the Commission may, with the consent of the Minister and the Minister for Public Expenditure and Reform, determine.

(10) The appointment of a person as a consultant or adviser shall be for such period and, subject to subsection (9), be on such terms and conditions as the Commission

considers appropriate.

What is wrong with all of this? We are establishing a body and going to inordinate lengths to ensure the majority of that body is made up of lay people, including the chairperson, but we then say the commission is entitled to enter into a contract or arrangement with any person or, with the consent of the Minister, to appoint a consultant or adviser who can adopt the function of advising and assisting the commission in its consideration of applicants at a preliminary stage in the course of the selection procedures. Absolutely no limitation is put on who can serve as a person, consultant or adviser. They could be lawyers, accountants, psychologists or psychiatrists.

They could be fortune tellers.

They could be HR people, inclusiveness experts or diversity experts but we do not know.

They could be garage men.

They could be garage men or taxi drivers - we have no idea who is eligible to be appointed. Their function is to advise and assist the commission in its consideration of applicants at a preliminary stage in the course of the selection procedures. I do not understand how that can function. If there is a competition for the appointment of a High Court judge, the commission can get KPMG, Arthur Cox or Michael McDowell SC to give it a quick run over, to advise and assist it in its consideration of applicants at a preliminary stage in the course of the selection procedures and to provide an evaluation or an assessment of an applicant’s suitability for appointment that would assist the commission in making any decision in the course of carrying out those procedures. Some other outside body or person can, as long as the Minister consents to the appointment of that body or person, prepare scoping reports saying such a person is a good person while another is not a good person, or say the latter should not go to the second stage and is not even worth an interview. Why should we have this privatised out to non-commissioned staff? Why should the commission be allowed to delegate this function to anybody else? Is it intended that the commission become some form of rubber stamp for other people's opinions? If the commission goes through 50 applications for the appointment of a District Court judge, is it really intended that some outside body should be able to say it has gone through them all and believes, for example, that eight specified people merit a further interview?

Where is the independence in all that? Who are these people, these consultants? Are they supposed to be independent? Where is the evidence of inclusivity and diversity? One does not have to be a diverse member of some particular agency, corporate body or recruitment agency to carry out all these functions. Are we talking about recruitment agencies? How could a recruitment agency possibly state one person was suitable to be a District Court judge while another was not, unless the person appeared from his or her application form to be utterly illiterate or-----

Like the drafter of the legislation.

Like the draftsman of the second paragraph of-----

The Senator is a hyper-literate snob..

Let us be fair to the draftsman.

Of course it is parliamentary rubbish.

How could an expert person start short-listing people for consideration by the commission? Where does that come from? Why should we permit it? If we go to all the bother of trying to ensure there is diversity on the judicial appointments commission, having appointed people who are supposed to take diversity into account, how can we allow them to appoint consultants who are free to evaluate people on a preliminary basis?

In my view, section 11(8)(b) is extremely problematical and wrong. It provides that any person, consultant or adviser to whose appointment the Minister has agreed and who cannot function unless the Minister agrees to his or her appointment can then "provide an evaluation or an assessment of an applicant’s suitability for appointment that would assist the Commission in making any decision in the course of carrying out those procedures". If it were to be an international recruitment agency, a large firm of solicitors, a large firm of accountants or a large management consultancy firm, where is the justice in allowing such a body first to be appointed only with the Minister's consent and second to state it is somehow competent to provide an evaluation or an assessment of an applicant's suitability for appointment, which would assist the commission in making any decision in the course of carrying out those procedures? It is a deeply reprehensible proposal.

The Minister said he was confident he was going to reduce the cost of this commission from €1 million to €500,000. I believe it is intended to farm out the groundwork in respect of the commission's activities to consultants, as long as the Minister approves of those consultants. The terms for their appointment and their remuneration are to be determined by the Minister for Public Expenditure and Reform and the Minister for Justice and Equality together. This is surely something in respect of which the Judiciary have good cause for complaint. The Minister states he is setting up something independent and entirely free from political control but then he states it will be possible, with ministerial consent and on terms agreed by two Ministers, to bring in people to carry out vetting and suitability advisory work. That is entirely wrong and reprehensible, adds nothing to the independence of this commission and is deeply offensive to me.

One of the problems in respect of the existing advisory board - I have confessed this - is that it gets 120 applications from would-be District Court judges from all over the country and I remember this happening. Most of them are complete strangers and the members of the Judicial Appointments Advisory Board, JAAB, are left staring at a form in front of them. They really have no idea whether the application in front of them is from the best person in the world or the greatest idiot, whether the person is applying solely to escape the collapse of his or her practice or is somebody on the exact opposite end of the spectrum, who has done well and has decided he or she would like to perform public service as a judge in their 50s and 60s or whatever. How is that to be determined on a preliminary basis? Is one to look at the paperwork and state the person who comes up with the plausible application form is to be recommended to go to a second round by somebody who is not even a member of the commission and that somebody whose application form looks a bit ropy does not go any further? It is a significant problem because it is a deep politicisation, an abdication and a wrong delegation of the discretion which is being given to this commission to make recommendations.

If one is talking about diversity and one-man band solicitors or junior counsel with a relatively small practice in one of the provinces far flung from Dublin but if one provides that some group can take a look at the candidate on paper and put the person on the inside or the outside track, that is entirely wrong. I do not see what the justification for it is.

I would have thought that if we are going to quit the JAAB process on the grounds that it was unsatisfactory, especially in respect of handling large numbers of applications and sending large numbers of recommendations to the Government, and if one is going to whittle down 120 applications to be a District Court judge ultimately to three, why is it that some outside body will enable the commission to bring it down to the top 15 candidates that one should consider and that the balance are not really worth a second look? I find that really repugnant as a notion. At least the JAAB did not do that. At least for all our ignorance of the people whose forms we were looking at, we did not say that an official in the Courts Service put that into a different tray and said we need not bother with that application. That never happened and does not happen under the present situation.

Who are these consultants; the person or the adviser who will do this work? Much more importantly, the Minister has gone to great trouble to say how the advisers and consultants will be appointed but the independent Public Appointments Service does not seem to be given a statutory role in determining who should or should not be an adviser. The commission is left at large as to who it wants to be an adviser.

I ask myself what kind of judgments could we have in mind? Could it be a psychologist who would have a quick interview with people and would say that as the person looks to be barking mad, do not bother with him or her? Could it be said that the practice the person describes in the application form is so small and narrow that the person does not deserve a second thought either? Could it be the advisers are recruitment agency managers who have their own criteria as to who measures up and who does not, even at what is called the preliminary stage? The interesting thing is not merely that there should be advice on the preliminary stage but that there should be an evaluation or an assessment of the applicant's suitability.

How can a person who is not a member of the commission carry out an evaluation or an assessment of an applicant's suitability for appointment to assist the commission? Again, are we talking about psychology? Is this person, adviser or consultant to say the commission does not have sufficient diversity and there are too many women or too many men on this occasion, so it will knock out a pile of people on an arbitrary basis? Will the adviser or consultant say the commission needs to have people geographically spread around the country to show diversity? Will he or she need to say, as Senator Ruane suggested, that an applicant's social and economic background should come into play, that the commission needs a diverse group of people and that only people who can show they have had it hard or come from a disadvantaged background should get a leg up in the process? Who will decide all this, and why can it not be done by staff of the commission, if it must be done by anyone? I remember when I was Minister for Justice, Equality and Law Reform. In the Minister's office there was a special box into which the letters with writing up the side of them in multicoloured biro went for further consideration during lunchtime by my private office staff.

Would green get one over the line?

Exactly. What are we talking about here, and why should we tolerate this?

The objections I have, and I believe they are well merited, are as follows. First, the commission is being given a broad licence to delegate an important part of its function, namely, assessment at a preliminary stage and further evaluation as to suitability, to a third party that is not a member of the commission and not bound by the rules of appointment to the commission. As I said, the commission can appoint individual people - by the way, "person" under the Interpretation Act means a company as well - who are consultants or advisers to carry out this work. It can enter into a contract with any person but with the consent of the Minister appoint consultants or advisers. If it is the case that subsection (7)(a) purely entitles the commission to enter into contracts, that is already covered by paragraph 4 of the Schedule to the Bill, concerning the power to enter into contracts.

Subsection (8) is the curious thing. It states:

Any contract or arrangement with a person, or appointment of a consultant or adviser, referred to in subsection (7) may enable the person, consultant or adviser to—

(a) advise and assist the Commission in its consideration of applicants at a preliminary stage in the course of the selection procedures.

This means that a limited liability company can be appointed to carry out this function. Second, any such person, consultant or adviser, having done that - because the word "and" appears in the text - can then go on to "provide an evaluation or an assessment of an applicant's suitability for appointment that would assist the Commission in making any decision in the course of carrying out those procedures". What are we talking about here? Is diversity to be delegated or contracted out to a private company, a large solicitors' practice, a large accountancy practice, a management consultancy or an international recruitment agency? We simply do not know.

Then we come to the provision that carrying out these two functions, "shall not enable the person, consultant or adviser, for the purpose of performance by the Commission of that function [that is, in making a decision in the course of carrying out these procedures] to do any other thing". If it stopped there, that would be one thing, but it then states, "other than a thing which facilitates such performance". I cannot follow this qualification. If the Bill states the commission cannot do anything else, that is fine, but then it states, "other than a thing which facilitates such performance". What does the word "performance" refer back to? It is for the purpose of performance by the commission of that function. Then one goes back to what the function referred to is and it appears to be the function of assisting the commission to make any decision in the course of carrying out these procedures. I am utterly mystified as to what this is supposed to do.

Then we see a subsection (9), in which it is proposed that the Minister and the Minister for Public Expenditure and Reform have a whip hand in respect of the fees that would be paid to such third parties. Then there is a provision that "[t]he appointment of a person as a consultant or adviser shall be for such period and, subject to subsection 9 [that is, the veto of the two Ministers], be on such terms and conditions as the Commission considers appropriate". If the commission is going to have its own building, its own officer, its own chief executive, its own committees and 17 members, why should it not carry out the preliminary examination of all applications to it or at least allow a sub-committee of it to do so, assisted by the staff of the commission? Presumably, there will be more than one person on the staff of this commission. Why should this not be done by someone under direct and absolute control as an employee of the commission? Why should it be given to someone who has a kind of privatised contractual relationship of contracting out an aspect of the commission's work?

I find it very difficult to understand the purpose of and the justification for these provisions. Clearly, they raise a number of flags in respect of the assurances the Minister has given us thus far in the debate. They clearly raise a query as to whether the commission itself will carry out the legwork and the donkey work that it must carry out or whether it will be a body to which a file is sent up and it then just decides, on the basis of recommendations from a third party, what it really wants to do. As I understood it, it was intended that the commission should carry out interviews. However, it now appears, if one looks at these provisions, that subsection (8) would permit the contracting out of that work to companies or other bodies at the request of the commission but subject to the consent of the Minister for Justice and Equality. It flies in the face of all the assurances we have got about independence, diversity and all the rest of it if this commission of 17 people will in fact carry out its operations at one remove from the persons who thought that this would be an entirely new procedure. It seems to reverse it to many of the problems which I identified when I served on the Judicial Appointments Advisory Board and as Minister, after I had ceased to be Attorney General, in respect of the JAAB legislation. This commission will look at reports by so-called consultants or so-called advisers, or "persons", whatever that means - and it does include companies - and will look at paperwork prepared by them at a preliminary stage and a later evaluation or assessment of suitability that would assist the commission in making the decision and carrying out these procedures. I am deeply suspicious of this. I can see no justification for it. If this is supposed to be an improvement on what happened before, I do not see how.

I have said enough about the matter and wish to hear some answers and justification for these subsections. I wish to put on the record my very strong objection to the notion that a body as complex as this and involving such intricate membership and recruitment procedures should operate at second hand on the basis of the preliminary consideration and evaluation of the suitability of applicants by third parties. That flies in the face of everything I understand of the intention of the Bill. It would not only apply in regard to applicants for appointment to the District Court of whom the members of the commission may never have heard but, rather, would also apply in regard to serving members of the High Court who wish to be considered for appointment to the Supreme Court or the Court of Appeal, or serving members of the Circuit Court who apply for appointment the High Court, etc.

I note that the Bill proposes that judges of the District Court would be eligible for direct appointment to the High Court, which is strange, although I will not dwell on it for too long. Service in the District Court is not the best preparation for being a High Court judge. Being a good District Court judge involves getting through a large volume of business with speed, efficiency and simplicity in a manner that would be inappropriate for the superior courts, where issues take days or weeks to consider.

I am deeply worried by sections 11(7) to (10), inclusive, and have heard no public explanation as to why they are a good idea. It could have many negative repercussions. That is why we have tabled amendment No. 29, which proposes the deletion of sections 11(7) to (10), inclusive.

Sections 11(7) to (10), inclusive, are extremely poorly drafted and open to great ambiguity and interpretation. Section 11(7) states, "The Commission may as it considers necessary to assist it in the performance of its functions — (a) enter into contracts or arrangements with any person and (b) with the consent of the Minister, appoint consultants or advisers." Section 11(7)(a) is capable of operation without reference to section 11(7)(b). It is open to the interpretation that the commission may enter into contracts or arrangements with a person without the consent of the Minister. As the legal interpretation of "person" includes limited liability companies, the commission could enter into contracts or arrangements with a limited liability company.

The word "and" appears between (a) and (b).

Yes, exactly. I understand that. The section states, "enter into contracts or arrangements with any person, and (b) with the consent of the Minister, appoint consultants or advisers". It does not follow that one is dependent upon the other. My reading of it is that the committee may enter into contracts or arrangements with any person and, with the consent of the Minister, appoint consultants or advisers. The main proposition regards the appointment of consultants and advisers. As regards section 11(7)(a), if my interpretation is correct, the commission could enter into contracts or arrangements with any person, including a limited liability company, which could go on to advise and assist the commission and provide an evaluation of an applicant. I see no reason why that would not be possible under the section as it stands.

The provision of expenses for training has been discussed and the Minister has consented to consider it. The commission members would be trained. There would be a sophisticated procedure for their appointment, then they would be trained and then other people would be retained to do their jobs. It is absolutely------

There should be a quorum present for this debate.

Notice taken that 12 Members were not present; House counted and 12 Members being present,

Senator Norris was in possession but is not present. I call Senator Higgins.

I wish to speak in favour of the amendment.

While I have been supportive of the Government in a number of the votes, and in respect of aspects of the Bill, and I have not always been in agreement with my colleague, Senator McDowell, I believe he is completely correct that this amendment is of deep concern. It has to be revisited and I very much urge the Government to agree to its removal and that if it needs to need to put something back in, that it might be far more nuanced.
There are a number of key concerns here. I, and many of my colleagues, have argued about the importance of trusting the commission and the persons who we will appoint to it with the key responsibility of making decisions regarding the appointment of the Judiciary for our State. It is a very serious responsibility, where safeguards, measures and criteria have been put in place as to the persons who may be nominated to that commission, and to the manner in which they will conduct their work. It seems to somewhat undermine the thought and consideration put into the membership and the make up of the commission, and indeed to the criteria and the basis upon which it will make its decisions in respect of the Judiciary, if we then have a large part of and the preliminary work of that role effectively delegated to private consultants or advisers in respect of whom no conditions, no rules and measures and no standards are set out. It is an incredibly wide provision right now.
Senator McDowell pointed to the ambiguity. It could be a HR company or a major firm of solicitors, which would add to a concern around a conflict of interest, for example, for those who would come through. It could be a former Government member, a prominent member of a political party or a major donor to the Government who happens to run a consultancy business. I have not spoken about GRECO for as long as many of my colleagues in the House but I note paragraph 36 of GRECO which urges the authorities to reconsider matters in order to limit potential risks of improper influence from the Executive or political power over the appointment process to the Judiciary or any perception thereof.
There is an opportunity here to amend and improve the Bill. This section is potentially the most open one. The concerns are around the wideness of the frame in terms of the definition of the consultant or advisers. The second layer of concern is the Minister's role in approving the appointment of these consultants or advisers. We have two layers of concerns. The first is around the parts of the role to be carried out by the consultant or adviser and the second is the Minister's role in terms of appointing consultants or advisers. If we wish the commission to have the power - I believe it is mentioned in section 4 - to enter into contracts, where that may be appropriate, it would be inappropriate, having decided to hire a company or an individual and to delegate to them the pre-screening of applicants and all the information on the applicants, that contract should in any way be determined or approved based on the consent of the Minister.
With greatest respect to the Minister for Justice and Equality, I ask him to look at this section because it has far too wide a remit or power. I have sat on boards where we have had 120 to 150 candidates for a role. We formed a subcommittee and we screened applicants. It was a little bit onerous but became faster. My amendment No. 26 - the Minister indicated some amenability to the spirt of it - provides for the potential training for persons who are members of the commission to be skilled and facilitated in that kind of pre-screening work, in setting out standards and in using whatever grids or references that they need. I have sat on boards and we have gone through 120 applications. It is doable, it is fine and it becomes faster and easier as one becomes more efficient. I do not think it is appropriate that we delegate this work. I am aware that private companies are hired in respect of other roles within the public service for employees of the public service. There is a concern here that is quite different because this is not for employees of the public service or employees of a public or statutory body - I am conscious that recruitment companies have been used in that regard - but it is respect of the pre-screening of persons who are to specifically hold a role, separate from the Executive and the Oireachtas, in the Judiciary.
I strongly support this amendment and I will support Senator McDowell if he wishes to press it to a vote. Moreover, I reserve the right to revisit this on Report Stage. I ask the Minister to reconsider and come back with a more nuanced piece.

The first thing I will say about this provision is that it is almost classic of what is going on now, that is, bringing in a consultant so when one gets the decision wrong, one can blame the consultant. Let us look as section 11(7)(a), in particular. One can enter into a contract with any person. It does not tell us what the contract would be about and it is rather confusing. It states, "and with the consent of the Minister appoint consultants or advisers". My colleague, Senator McDowell, spoke about the consultants and advisers. There is huge reliance these days is placed on psychometric testing. Is that the kind of consultant we are talking about? Given the onerous task the Judiciary has, are we talking about psychologists or psychiatrists? Senator McDowell has been through these various professions. I am deeply concerned and confused by section 11(7)(a) and (b). I do not know if they go together or they do not.

Section 8 states that any contract or arrangement with a person, or appointment of a consultant or adviser referred to section 11(7) may enable the person, consultant or adviser to advise and assist the commission in its consideration of applicants at the preliminary stage. This goes back to what we were discussing earlier on. Some person is given a contract. For the sake of argument, let us say it is one of the big five, and its job is to assess applicants. We are hardly going to get the senior partners in the organisation to go through the various CVs. One assumes it will some junior person who will look through the CVs and advise the partner of the firm who in turn will advise the commission as to who is suitable and not suitable. If I am deemed unsuitable and it decides I am not to be short-listed, how am I informed? Who tells me, or am told at all? If I am told that I have not been short-listed, is there an appeals mechanism? One may not like it but people have a right to appeal decisions. Am I going to be told where I failed? How did I fail?

In the evaluation and assessment of the applicant, is there a psychometric test? How do we evaluate? Perhaps the Minister will tell me because I do not know, and am unable to figure it out from this. Whatever evaluation is put in place, the commission will then make a decision and finish up by sending a list of names on to Government. I can see no justification for any part of this. I will support this amendment, as I am one of the people proposing it. I wonder where we are going with this and, as we work our way through it, I can see it is fraught with all sorts of problems.

Section 11(7)(a) and 7(b) have me totally confused. I am not even sure why we are appointing consultants. We are putting a commission together to appoint judges and now we are appointing consultants to advise the commission. Could we not just have a Bill that would advise the Minister directly? Ministers have not done that badly down through the years. Every aspect of this is confusing and I will say no more on it at this point.

As dogs' dinners go, this section would get the Michelin star for canine catering. One might say that it takes the dog biscuit. Senator Craughwell put his finger on it when he identified part of what is going on here, which is the increasing trend of farming out, postponing and creating barriers to responsibility for mistakes or bad choices made, or worse. There is a sense that we cannot trust the people to whom we entrust roles. It seems that has the Government being ró-fhlaithiúlach with people's money, constantly providing for the importation and deployment of consultants and advisers. I presume it is not intended that they will act pro bono.

It is the new industry.

If people had to pay for things such as facilitating the Minister, Deputy Ross's, great plan out of their own pocket, they would not be half as quick to dream up complicated schemes which always end up involving expense on the public. This provides for a doubling of the lack of transparency. There is a process here where the Commission for Public Service Appointments will be responsible for appointing suitable lay people to form a lay majority on this judicial commission, and we do not yet know who they will be. Within that process, the commission is to be allowed to farm out elements of its responsibility. I would have thought that if the Minister really had confidence that he is doing the right thing in establishing a commission in this way, he would have confidence that the people he is appointing to the commission, whether full-time or part-time, are people who have enough expertise to be able to go through a process themselves, to apply their intelligence and expertise to the winnowing of applications to make the best recommendations.

We see a lack of transparency here and evidence of this disease involving consultants and advisers at every level at further expense to the public. Does it in some way facilitate the appointment of lower-quality personnel to the commission because there is a comfort blanket that they will engage consultants and advisers? I am concerned about this. The Public Appointments Service has a prior process that it has to go through, of recommending lay persons for appointment to the commission. Is the Public Appointments Service in a position to appoint consultants or advisers at expense to the State? Does it already happen within its role? Is there no need to provide for it in legislation? Does it need the consent of the Minister? Is there a disconnect there? Perhaps the Minister will say there is not because the Public Appointments Service consists of full-time staff but I do not think that answers the point. There is also the question of ministerial control of the appointment of consultants or advisers. The clause in subsection (b) provides that the commission may "with the consent of the Minister, appoint consultants or advisers." Does that mean that ministerial consent is required for the appointment of consultants or advisers but which consultants or advisers are appointed is exclusively a matter for the commission? Does it mean that the particular personnel to be appointed as consultants or advisers are subject to the sanction of the Minister? I would like an answer to that. Maybe I misread it but I think there is ambiguity there and would welcome clarification on that point.

I wonder about some of the things that have been pointed out by Senators Craughwell and McDowell relating to the complex task of winnowing out applications, selection, and how it will be done. What kind of work is involved? It is worded in a very strange way. The commission may, without being subject to the Minister in any way, it seems, enter into contracts or arrangements with any person. It is with the requirement of ministerial consent that they may appoint consultants or advisers. I presume those contracts or arrangements refer to people who are not consultants or advisers. It is presumably less sensitive. Will the Minister tell us why ministerial consent is not necessary, and maybe illustrate by example, because that always brings clarity where confusion abounds? It would be good if the Minister were to make concrete either tonight or tomorrow, as the case may be, what type of consultants or advisers are to be involved, in addition to telling us why it is necessary and answering the charge that this is about the relentless delegation of responsibility, as I have suggested, and the relentless removal of accountability to a more and more remote place. It would be helpful to know what the Minister means and intends by the words "consultant" and "adviser" in that context.

In the context of what is or is not enabled, there is a remarkable phrase that has been adverted to by my colleagues, that the contract "shall not enable the person, consultant or adviser, for the purpose of performance by the Commission of that function, to do any other thing (other than a thing which facilitates such performance)." When one breaks it down, that means that it enables everything that can possibly be put down under the heading as facilitating the performance, by the commission, of its function. Why is there this apparent restriction on the role of the person, consultant or adviser when, in the next breath, the Minister appears to give them carte blanche? What does "any other thing" mean? Does it mean that they are not enabled to stand on their heads? Presumably, they are in a position to stand on their heads and it is not necessary for the performance of the function. It would be a great help to us, if this is something more than gobbledygook or a dog's dinner, if the Minister gives particular examples of the type of thing he is trying to include and the type of thing he is trying to exclude.

I do not know the detail of the controversy in Poland relating to the appointment of judges and the termination of appointment of judges. I am not saying that what is happening with this Bill is directly comparable but, at a time when there is controversy about the interference by Governments with the independence of the judiciary in states of the European Union, the Government should be much more careful in what it is doing in bringing forward legislation of this kind, which seems to add enormously to ministerial power, in an indirect but nonetheless real way that is opaque as to its meaning in certain key areas.

However, at a time when there is controversy about the interference by governments with the independence of judiciaries in EU states, our Government should be more careful in introducing legislation of this kind, which seems to add considerably, albeit indirectly, to ministerial power, in a way that is opaque in its meaning in key areas.

As I was saying when I was so rudely interrupted by Senator Craughwell's call for a quorum,-----

Senator Norris would not know anything about that kind of thing.

No. I was pointing out that subsection (7)(a) appeared different to subsection (7)(b), leading to an ambiguity. Subsection (8) starts clearly by separating these three entities. It reads, "Any contract or arrangement with a person, or appointment of a consultant or adviser,". In other words, these are two distinct and separate operations. One could have a situation where the commission entered into a contract arrangement with a person. May I tell my distinguished friend and colleague, Senator Mullen, that this is not limited? It could be a psychotherapist, a company or anything because a "person" is defined as also including a limited liability company. The person, consultant or adviser may, "advise and assist the Commission in its consideration of applicants". This means that, under subsection (7)(a), the commission could enter into contracts arranged with any person, that being, any company, be it a polling company or psychological company, to advise and assist the commission and provide an evaluation. Here we are opening this up to all kinds of political interference. I take a very serious view of this provision.

Subsection (9) also appears to separate these three distinct entities. It reads, "The Commission may, out of the resources at its disposal, pay to a person, consultant or adviser". I take this to be a form of saying that the commission can pay three distinct entities. That is the implication.

Then we come to the question of what these entities are allowed to do. They can advise, assist and so on, but most sinisterly they can "provide an evaluation or an assessment of an applicant’s suitability for appointment that would assist the Commission in making any decision". It is more than assisting the commission - it is making the decision for it. Why not do away with the commission and just let the Minister appoint these consultants? That would be the easiest way around it. They are actually doing the job. They will "provide an evaluation", but that is the function of the appointments commission. People will be hired to do the commission's job.

We then encounter some glorious phraseology. I wonder whether there is a tune to which one might sing it. It would be a sean nós through the nose. The late Seosamh Ó hÉanaí could do a good job of this bit. It reads, "but shall not enable the person, consultant or adviser, for the purpose of performance by the Commission of that function, to do any other thing (other than a thing which facilitates such performance)." This is wonderful. It is linguistically, verbally, stylistically and grammatically illiterate, but it carries illiteracy to a kind of supreme beauty. There is something exquisite about this. It is just so delightful. What happened to the campaign for common and accessible English? I understood there was a move in government some years ago to make things understandable by the public. Who in the name of God could understand that? What is "that function"? From where does it come? As to "any other thing", a "thing" could be anything. The last clause is glorious.

What does "to do" mean?

Yes. Has the Senator happened to find "any other thing" in the definitions section? I am sorry. I am going to have to sit down, this is so laughable and wonderful. I delight in it. I want it carved on my tombstone.

Does anyone else wish to speak?

I wish to add something that I forgot to say. It is not that long ago since the Citizens' Assembly was found out to have been faulty in its approach to recruiting some of its members. The organisation that was tasked with recruiting them was found not to have done so properly. That led to a certain amount of controversy in recent months. I do not want to revisit the context of that controversy, but we are once again engaging in the further recruitment of consultants or advisers. Who is to say that that will be properly done on this occasion either?

One of the points that was raised, which triggered in me a problem that I have with all of this legislation, is that no one has explained how it will work. People have said that it will be transparent.

It will be all right on the night.

What does "transparent" mean?

If I as a senior counsel of, say, 15 years seniority fill out the forms and put in my application to this body, what will I know about what happens afterwards? Will I get a rejection slip or a kind little letter telling me that, although on this occasion I had been unsuccessful, I should feel free to have another go? Will it tell me that Joe Bloggs Limited had decided at a preliminary stage that I was out of the whole process under section 11? Will I get feedback as to how I did in my interview? It has become fashionable to tell people how well they did or did not do, give them guidance and assure them that they have been dealt with fairly. It is the nouvelle idée of appointments and employment law to give all applicants feedback. If I do not even get an interview, I might get a message that something had gone wrong. If I do get an interview, will I get feedback afterwards on where I was considered to be weak?

I can tell the Senator what "transparency" is. It means "being able to see through things". We have seen through the Bill.

Senator McDowell without interruption, please.

This is a serious issue and I am not making a facile point. Will the Government know who was rejected by the commission and who was rejected by these contractors, advisers and so on and was not even short-listed? Will anyone know what is happening in the commission afterwards or will it simply be that three names will appear on a short letter to the Secretary General of the Government and everyone else will be in the dark as to what happened inside the dark box of the commission?

Progress reported; Committee to sit again.
The Seanad adjourned at 10 p.m. until 10.30 a.m. on Tuesday, 10 July 2018.