Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

SECTION 15
Debate resumed on amendment No. 46:
In page 14, lines 27 to 29, to delete all words from and including “the” where it secondly occurs in line 27 down to and including “meeting” in line 29 and substitute “the acting Chairperson shall be a member who holds judicial office in accordance with seniority”.
- (Senator Michael McDowell)

I remind members that Amendments Nos. 46 to 52, inclusive, are related and may be discussed together.

This debate must conclude at 6.45 p.m, if not previously concluded.

The debate shall not be concluded at 6.45 .p.m. It shall be adjourned at 6.45 p.m.

I thought I had made the point, and that I had made it sufficiently often and at length to convey my opinion, that the provisions of section 15, insofar as they purport to exclude the chair being taken on any occasion or at any committee of the commission by somebody who has legal experience, is unnecessary and vindictive. I will not put the matter any further.

There does seem to be a clear bias against members of the legal profession. It is a quite extraordinary situation. I will leave it at that for the time being.

I have no objection to amendment No. 53, in the name of the Minister, which excludes the payment of expenses to the judicial officeholders. I just wanted to indicate that I have no problem with that, in case there was any doubt about that.

Amendment put:
The Committee divided: Tá, 13; Níl, 22.

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Horkan, Gerry.
  • Leyden, Terry.
  • Marshall, Ian.
  • McDowell, Michael.
  • Norris, David.
  • O'Donnell, Marie-Louise.
  • O'Sullivan, Grace.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Donnghaile, Niall.
  • Richmond, Neale.
  • Warfield, Fintan.
Tellers: Tá, Senators Michael McDowell and David Norris; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

I move amendment No. 47:

In page 14, line 29, to delete "lay".

Amendment put:
The Committee divided: Tá, 13; Níl, 22.

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • Norris, David.
  • O'Donnell, Marie-Louise.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Donnghaile, Niall.
  • Richmond, Neale.
  • Warfield, Fintan.
Tellers: Tá, Senators Michael McDowell and David Norris; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

I move amendment No. 48:

In page 14, to delete lines 32 to 33.

Amendment put:
The Committee divided: Tá, 13; Níl, 22.

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • Norris, David.
  • O'Donnell, Marie-Louise.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Donnghaile, Niall.
  • Richmond, Neale.
  • Warfield, Fintan.
Tellers: Tá, Senators Ivana Bacik and Kevin Humphreys; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

I move amendment No. 49:

In page 14, line 33, to delete ", 5 of whom shall be lay members".

Amendment put:
The Committee divided: Tá, 13; Níl, 21.

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • Norris, David.
  • O'Donnell, Marie-Louise.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Donnghaile, Niall.
  • Richmond, Neale.
  • Warfield, Fintan.
Tellers: Tá, Senators Gerard P Craughwell and Michael McDowell; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.
Question proposed: "That section 15 stand part of the Bill."

We must adjourn at 6.45 p.m.

After an extensive effort to amend section 15 and make it more sensible, we now come to consider what it looks like. It provides as follows:

(1) The Commission shall hold such and so many meetings as may be necessary for the due performance of its functions.

(2) The chairperson shall fix the date, time and place of the first meeting of the Commission which shall be a date no later than 3 months from the establishment day.

I find it difficult to understand why such a time limit has been put in. It is extraordinary that the chairperson would not convene a meeting less than three months after the establishment day. It goes on:

(3) At a meeting of the Commission—

(a) the chairperson shall, if present, be the chairperson of the meeting, or

(b) if and so long as the chairperson is not present or if that office is vacant, the other members of the Commission, as the case may be, [which includes the judicial and legal members] who are present shall choose another one of its lay members to be chairperson of the meeting.

It is extraordinary that a majority of people, who may be lawyers, are obliged to choose which of the lay people they want to be the chair of the meeting. The people who are there in the absence of the chairperson cannot choose anybody else to be the chairperson of the meeting. The significance of the chairperson being a lay person is emphasised by subsection (6), which states:

(6) Where there is no consensus on a question at a meeting of the Commission, the question shall be determined by a majority of the votes of the members of the Commission present and voting on the question, and, in the case of an equal division of votes, the chairperson shall have a second or casting vote.

The curious thing about this provision is that it means the lay persons would, theoretically, have a majority, even where there is an equality of lay and non-lay people present. It makes one wonder why a red-line issue was put in place about a majority of lay people being on the commission. This provision gives a lay majority via the second, or casting, vote of the chairperson. The song and dance about the necessity of having a lay majority on the commission is undermined by this provision. If the Bill had been drafted to give an equality of numbers as between lay and non-lay members, the lay people would have an effective majority by virtue of having a lay chairman. I wonder why we went to all the bother about a lay majority when there was always to be an effective majority, in the event of a division of opinion, in favour of the lay members present.

It is not to be assumed for one minute that the lay members will be a cohesive group or that the lawyers and judges present will be cohesive and of one mind on any issue. It is fanciful to believe there will be a bloc on one side or another on the issues that arise.

It is much more likely that the commission will operate on the basis of an ad hoc expression of views on each subject, regardless of whether a person was a lawyer or judge or a lay person selected in the manner provided for in the Bill, whatever that ends up being. It is unlikely, if they were just dealing with the merits or demerits of an individual, that there would be unanimity on either side in terms of a block of lay persons and another of legal people. When one imagines that the lawyers are effectively confined, in every situation as far as the Bill can have its way, to being a permanent minority no matter what way the issue goes, unless the lay persons divide among themselves - considering that this is the apparent aim of the Bill, it does occur to me that the one occasion on which all the lawyers decide to oppose something will be when the lay persons are going to do something very foolish indeed.

This is not the purging of the lawyers. That is a complete exaggeration.

Senator McDowell should write a novel.

Senator McDowell, without interruption.

I am just making the point that so much care has been taken that even if somebody for some reason is in attendance, the casting vote can never go to a lawyer. That is an extraordinary provision to put in if there was an equality of votes as to whether-----

The Senator is filibustering. He was part of the Government that blocked Members of the Houses of the Oireachtas from sitting on boards.

Senator Buttimer will have a chance to come back in. Senator McDowell, without interruption.

Hold on a second. What boards are you talking about?

I do not know what the Leader is talking about.

The harbour boards. That was the Government you were part of.

Through the Chair, I have to tell the Leader that I always had misgivings about the ending of the dual mandate.

You still went along with it, though.

I often think that one of the slightly ludicrous side effects of the ending of the dual mandate-----

This amendment is becoming a side effect.

I am only responding to the Leader's question.

We could go back to having that system and could all be back on councils, but anyway.

The point was that Senators were entitled to the same service from a local authority with respect to a constituency in which they geographically lived as a member of a local authority would be. That always struck me as an anomaly.

The Senator wants to get rid of us altogether. He is going round the houses now.

I sometimes think that this and the other House would have been strengthened rather than weakened by having members of local authorities sit in the Houses as opposed to other things.

I agree with you, but your party brought it in.

On section 15, please, Senator McDowell, in the remaining minute.

We have to be relevant and I want to be relevant.

Relevant or redundant.

There is one point I do want to ask the Minister about. Subsection 15(5) says the quorum for the commission shall, unless the Minister otherwise directs, be nine members, five of whom shall be lay members. Is the Minister entitled to select a different number than nine, permanently or temporarily? Can he issue a general direction that the quorum is going to be four?

I ask Senator McDowell to report progress.

It is my pleasure to do so. I will give the Minister time to think about these circumstances so he can give a direction.

He will have plenty of time.

There was very little progress.

Progress reported; Committee to sit again.