Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

SECTION 27
Debate resumed on Government amendment No. 66:
In page 20, line 34, after “not” to insert the following:
“, without the consent in writing of the Commission or (save where the intending discloser is the Director) the Director or except as required by law or in the circumstances provided for in subsection (3),”.

I welcome the Minister. We are on section 26, amendments Nos. 66 to 71, inclusive. The amendments are related. Senator McDowell was in possession.

May I first ask the Chair to remind the House the length of time that we have spent on this section?

Yes. On the previous occasion we debated this Bill, we allocated an hour and a half, with this the only section discussed.

I thank the Acting Chairman. That was helpful. I believe, however, that we have actually reached section 27 and are not still on section 26. Certainly, I thought that we had agreed to-----

Indeed. Apologies, as that was my error. We are on section 27, amendments Nos. 66 to 71, inclusive. I was reading from above rather than below.

There are a few points I want to make to the Minister on the detail of the Government amendments to section 27. As I understand it, the intent of amendment No. 66 is to amend the introductory part of section 27(1) to provide that there has to be written consent for the disclosure of confidential information. Amendment No. 66 proposes - it is phrased peculiarly - to insert "without the consent in writing of the Commission or (save where the intending discloser is the Director) the Director or except as required by law or in the circumstances provided for in subsection (3)". What I think the proposed amendment is trying to achieve is if the director proposed to make a disclosure, he would have to have the permission of the commission. I think that is what it is driving at. Strangely, it seems that if a member of the staff of the director, or a member of staff directed by the director, disclosed the information, that person would not require the permission of the commission. It seems to be somewhat illogical that the commission must give consent in writing if the director intends to disclose something but a member of staff can obtain permission from the director without the commission's intervention, providing that the director puts it in writing. I wonder if that is really what is intended. It seems that the only member of staff who actually needs permission from the commission is the director and that members of staff, other than the director, or people who are not even members of staff for that matter because it applies to "a person" and could apply, for instance, to the so-called consultants and advisers do not have to have the permission of the commission. They can do it on the written authorisation of the director. That is one anomaly I see in the way amendment No. 66 has been drafted. Perhaps I am missing something and the Minister will put me right.

One will see that the following amendment has been designed to exclude all references to advisers and consultants on the basis that it is my strong opinion that we do not need consultants and advisers. It seems that what is being planned but never admitted openly is that much of the work of the commission will be farmed out to recruitment advisers in interviewing and short-listing people. They will perform a winnowing out of supposedly unacceptable people and produce smaller lists for consideration by the commission. I am deeply unhappy at the notion that some group such as Ernst & Young or KPMG or some reputable group-----

-----such as either of those acting as management consultants could be brought in to engage in a winnowing exercise on applications for appointment to the Judiciary.

That views Goldman Sachs as a charity.

It worries me that private companies and partnerships could be handed the function of carrying out a primary winnowing out of people applying to be judges. It does not happen with the JAAB and I do not think it is a particular problem. When I was a member of the JAAB - I know it also from the time I was Minister for Justice, Equality and Law Reform - it was quite common for over 80 and sometimes fewer than 120 applicants to apply for the position of District Court judge. I do not think it is a great State secret. I want the House to know the size of the number of applications one might expect to receive. On the other hand, there was an almost pyramidal aspect to the number of applicants the higher up the judicial hierarchy one went.

(Interruptions).

I know that my rhetoric is powerful, but I have never driven a Member of the House onto his knees before.

We will hear Senator McDowell without interruption.

I was smothering a telephone call.

It reminds me of a colleague of mine at the Bar who was always-----

No, he was not. He was always reminded of the occasion one of the jury died during his speech.

One of us definitely might die while this Bill is being considered.

I greatly regret Senator McDowell being disappointed. I will do my best to die in the next hour.

Given the length of time it is taking to deliberate on the Bill, one of the 60 of us may actually die in the process. Can we hear Senator McDowell on the section, please?

Let me make an observation. It reminds me of the Sallins mail train robbery case in which the counsel for the defence suggested the judge was asleep. When somebody gave him a push, it turned out that he was dead.

Once again, we are speaking about the subject of death. We are trying to speak to the section. It has all gone a bit mad on this Bill.

That is the problem.

I have to chair the proceeding and would like things to move along.

I am making the point-----

Perhaps I might offer a little assistance. If everybody spoke every now and then, we would know that he or she was still alive and could continue on.

I am sorry. There is no way we could not realise Senator McDowell was alive. We will again give him the floor and try to have some order in the House.

I am attempting to address the substance of section 67 which has been designed-----

Amendment No. 67.

Yes, amendment No. 67. It is intended to eliminate the issue of consultants and advisers because, as I said, for the reasons I gave, it is inappropriate, especially when there are large numbers of applicants who might not be known or known well to any of the members of the Judiciary, the legal practitioner members or the lay members. There may be people who are completely unknown to any of the people on the commission. The same happened in the Judicial Appointments Advisory Board. People applied and there was complete unawareness of the kind of person they were. Nobody on the Judicial Appointments Advisory Board actually knew who they were or could put a face to the name. They were simply looking at an application form in the common forum. That is what amendment No. 67 is all about.

In amendment No. 68 which clearly is an alternative the Minister is proposing to delete line 40 on page 20 and line 1 on page 21 and substitute the word "commission".

I am not quite clear about how that will read. Perhaps I am misreading what would be left.

It would read "or other arrangement by the Commission".

No, but at the top of the next page-----

-----the Bill reads "unless he or she is duly authorised by the Commission to do so". I do not know where that goes. There is a complexity to that.

The amendment proposes to delete line 1 and substitute “Commission.”". As such, "Commission" will be there on its own.

Perhaps the Minister will explain it to me. I cannot follow the textual connection.

It is nonsense. That is the reason.

I am a bit slower than Senator Norris. I would like to hear an explanation first.

Senator McDowell can be as slow as he likes.

Can we have the discussions in this House through the Chair?

They are only trying to be helpful.

I am trying to move this along.

We then come to the Minister's proposed amendment to make it a criminal offence to disclose information as described in section 27(1), presumably as amended. He proposes to make it an offence for which a person will be liable "on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both". I want to make this clear. That is a useless proposal. When I was Attorney General, there was a good deal of upset, particularly on the part of my predecessor, Mr. David Byrne, when a Garda file purporting to identify people who had unlawful abortions in Ireland was revealed to a newspaper. The result was that when the Garda file was given to the newspaper, reporters from that newspaper presented themselves at the doors of various women mentioned in it. This caused absolute outrage among the people who were mentioned in this way.

Of course it did.

The result was that the then Attorney General, David Byrne, asked the Garda Commissioner to use all of his powers to identify the source of the leak and prevent this kind of thing from happening. The Garda Commissioner at the time was Mr. Patrick Byrne. He attempted to comply with the Attorney General's request and found himself being effectively stonewalled, with people refusing to make any statements to the investigating gardaí. At the end of this futile investigation in which he could find out nothing, he informed the Attorney General's office that unless and until a power of arrest and questioning was conferred on him, he could do nothing to investigate the unauthorised leaking of sensitive Garda information of that kind.

That led, when I was the Minister's predecessor, to the insertion of an indictable offence in the Garda Síochána Act 2005 so that where leaking of sensitive information took place unlawfully, there was a power for An Garda Síochána to arrest persons suspected of leaking or inciting other people to do so and the power of detention for questioning under the terms of the Criminal Justice Act 1984.

In effect, the Garda Commissioner was saying was that the Official Secrets Act 1963 was no help to him because of the penalties involved. In the circumstances, therefore, he needed to have investigatory powers. If leaking confidential information is to be an offence, it must the case that if a member of An Garda Síochána knocks on the door of a journalist or whoever else and asks how that person seems to have published leaked minutes of a certain body, he or she is not in a position to simply say the Garda must talk to their solicitor and bid them good night. That is the position if it is a summary offence of this kind. If the Minister wishes to make it an offence and give its enforcement teeth, An Garda Síochána must be given the right to investigate where egregious breaches of confidentiality take place.

I have no doubt the Minister will be tempted, and perhaps prompted, to say that this is a very black scenario, that he hopes this never happens and that I am conjuring up an unlikely scenario. I do not accept that proposition. People will be expected to apply to this commission in confidence, knowing the information concerning their application and, even more seriously, their assessment will be handled. Can Members imagine if the assessment of a professional person or a judge were to be leaked to a newspaper? Whether the assessment was carried out by a consultant or the commission itself, imagine the discrediting damage not merely to the person involved and to the commission, but also to the Judiciary itself.

Either we are serious about keeping some level of confidentiality in this matter or we are not. I refer to material such as the marking of assessments, the results of an interview process or pre-screening carried out by a consultant or advisory group. Either we are serious about preventing that from appearing on the front page of a newspaper or we are not. I have no problem with making such leaking a criminal offence, because purely civil duties of confidentiality do not inhibit journalists from printing material. They do not inhibit people from leaking material unless they can be identified as the source by their employer, by one means or another. A member of the commission may be stupid enough to leak information to a third party, even in good faith. If any of that information gets on the front page of a newspaper, it will be deeply damaging to the people who are being assessed, to the commission itself and to public confidence in the Judiciary. I shudder to think what the result would be if a Circuit Court judge who applied for appointment to the High Court were to find that his or her assessment was on the front of a newspaper.

I believe that leaking such information would have to be made a criminal offence. The JAAB does not leave a trail of that kind. When I was there, it never had minutes that could be leaked. The worst secret that could be revealed about somebody is that they applied to JAAB, because there would not be a record of any kind beyond that. In the new world which has been conjured up for us in this legislation, there will be formal interviews, ranking of applicants and a pre-interview process of winnowing out unsuitable people. Presumably these will be documented, stating the reasons why Joe or Josephine Soap never even made it to an interview process. If happens there will have to be a documentary trail.

All of that is going to happen, so there will have to be a documentary trail. If there is a documentary trail, it might have consequences for sitting judges and others. Take, for example, a solicitor in practice in rural Ireland. If it was revealed that there was a document somewhere created by this commission or its advisers or consultants saying that, in the view of a particular person, the person was wholly unsuitable to be a judge for one reason or another, it would have a serious affect on that person. There will be a chilling effect if the protections against breach of confidentiality are not observed. Whether or not the Minister is attracted to the substance of subsection 2 of my proposed section 28 in amendment No. 70, one has to have the five year term in order to make it possible for An Garda Síochána to investigate and bring to book those who breach the obligation of confidentiality.

To return to the point I made about former Attorney General David Byrne and me when I was Minister for Justice, Equality and Law Reform, it was the appreciation of the effect on ordinary people's lives of the absence of an effective remedy to stop the leaking of Garda files to members of the press due to salacious material contained in them that led to the amendment of the Garda Síochána Act.

On amendment No. 69 proposed by the Minister, I have the strongest possible objection to it becoming a summary offence. If it is to be an offence, it has to be an indictable offence for the purpose of making it properly investigable by An Garda Síochána. If it is not an indictable offence, a person can simply get his or her solicitor to write to the local sergeant to say that he or she will not be available for interview on this subject and does not propose to say anything about it, even if he or she is the prime suspect for the leak. The same applies to a journalist who publishes it. The journalist will be able to say that he or she has nothing to say and does not want to participate in any interviews with An Garda Síochána. He or she would be able to just walk away from it, and An Garda Síochána would have to prove that a particular person was the person who leaked the document by some extraneous means. To return to the case I mentioned of An Garda Síochána files identifying alleged victims of backstreet abortions in Dublin which led to reporters appearing on their doorstep, it proved so damaging to those people, but the Commissioner was effectively powerless to deal with it because the offence was a summary offence which did not carry a five-year term of imprisonment. Perhaps it was statutory as well, but it carried a two-year term. Under the Official Secrets Act, the garda in question was effectively immune from arrest or interrogation in respect of the action, as was the journalist.

I strongly advise the Minister that the remedy has to be effective. If it is not, because of the complexity and the documentary nature of the procedures this commission is supposed to undertake, the effect of breaches of confidentiality could be enormous. The Minister may well say that this contrasts with my willingness to have the Attorney General tell the Cabinet that a particular applicant was unsuccessful. My answer to that, if that point is made, is simply that the Government is entitled to know who wants to be appointed. I have never heard, in all of my time as a barrister, Attorney General, Minister, Deputy and Senator, of a breach of confidentiality coming from Government of a type which is damaging to a lawyer. I have never heard that happen. Members of the Government, as very senior constitutional office holders, would understand the absolute importance of confidentiality in such circumstances, while at the same time believing that it is totally right to know who was seeking the job, including those who were not shortlisted. Under the present Judicial Appointments Advisory Board procedures, which are very informal, I have never come across a newspaper, television or radio report indicating that a person applied and was not recommended for the job, even though that information is available to the Minister and the Government under the present system. There is no paper trail. It is one person's word against another's, and it is not the kind of thing a journalist would publish, even if he or she got news of it over a pint in a pub. The journalist would not dare to publish it because he or she would not know if it was true or untrue and would not know what the situation was, unless he or she heard it from a disappointed applicant.

I ask the Minister to deal with the textual problem I raised, and also the seeming illogicality in amendment No. 66, whereby members of staff do not have to have the consent of the commission in writing whereas the director does. I cannot follow how that would work. Real problems will arise if this is backed up solely by a summary conviction and penalty. It will mean any breaches of this criminal law will be impossible to investigate unless the person doing the leaking is foolish enough to volunteer a confession to An Garda Síochána, even though he or she is not capable of being arrested or questioned about it.

I will make three points in response to Senator McDowell. I thank him for making an important contribution, particularly in the area of sanctions. Before I respond to the Senator, I will make two brief points in response to the questions posed by Senators Norris and McDowell when they wondered as to the sense of amendment No. 68. I wish to allay their fears and concerns by pointing out that it is a drafting amendment solely. We are adding a full stop and taking account of amendment No. 66, which overtakes the sense of what is in line 1, page 21.

The Minister proposes removing "commission," and replacing it with "commission."

Does that meet with the Senator's approval?

The notion put forward by Senators McDowell and Norris that much of the work of this commission will be in some way outsourced to the private sector has no basis. It will not occur in the way suggested.

It would be wrong to suggest that the important work of this commission will be performed elsewhere in some routine manner by consultants or even, as has been specifically suggested, by accountants. What we have here is merely an enabling provision to avail of assistance and services should the need arise. We debated that earlier in the context of previous sections. May I yet again allay the concerns of the Senators in that regard?

I will turn briefly to the issues raised by Senator McDowell concerning summary offences being minor offences and why we would not have indictable offences. If we were to follow the logic of Senator McDowell we would question the necessity at any remove for a summary offence process. I do not accept that the summary offence regime does not provide for adequate penalties or a deterrent or disincentive from wrongdoing.

What about investigation?

My amendments, in respect of which Senators were addressing concerns, provide for summary offences under sections 27 and 28 and confine the offences to being dealt with within the District Court, with a maximum fine on conviction of €5,000. That is set out in the Fines Act 2010 and it can be varied by the Oireachtas, should it be deemed necessary. As Senators are aware, the categories of fine are classed A to E. The highest value of fine is class A at €5,000.

It is a question of balance and of ensuring that there is criminal sanction. It was in response to Senator McDowell that I was very keen to ensure that there is a criminal sanction regime in respect of the unauthorised or unlawful disclosure of information. It is important not only to be proportionate but also to be consistent. On the matter of consistency, I point to the approach under section 62, the lesser offence, for example, of canvassing - of making contact with a Senator in order for a favour to be proffered in respect of a particular issue. A person convicted under that section is liable to a class A fine and the question of imprisonment would not apply.

I have given the matter consideration. I have heard Senator McDowell speak on this issue before. I have reflected, but I share the advice given to me to the effect that a summary offence is sufficient and is appropriate for dealing with the breaches of the non-disclosure principles in sections 27 and 28, as amended. I take very seriously the points Senator McDowell makes and the analogies he draws. However, despite his exhortations, I am not convinced that the argument in respect of making such offences punishable by a term of imprisonment on indictment is compelling.

In the context of consistency, I examined other legislation. Section 15 of the Property Services Regulation Act makes it an offence punishable by a class A fine only for disclosed confidential information expressed by the Property Services Regulatory Authority. I know Senator McDowell would probably put his Bar colleagues higher up the pyramid in terms of importance.

That is very unfair.

I am not sure about Senator Norris, but he might be provoked into agreeing with Senator McDowell on that, perhaps unbeknownst to himself. In any event, it is important that we have consistency. There are similar sanctions for similar breaches in other legislation. Ultimately, I do not go along with the view that summary offences do not provide for adequate remedies in circumstances. If that were to be the case - I gleaned that from what Senator McDowell has been saying - then, by extension, why would we not do away with the concept of a summary offence altogether?

I am a little disturbed by the Minister's reply. I listened very carefully to what Senator McDowell stated and, as I understand it, he instanced a situation in which a member of the Garda Síochána gave information to the newspapers about people who had back-street abortions, which were then completely illegal and a cause of great shock and condemnation among the majority of the population. When the information was published, people were left in considerable distress. As I understand it, the point Senator McDowell made in that regard is that because this was a summary, not an indictable, offence, the Garda was frustrated in its investigation and no charge was laid. That seems to be an extremely serious situation and one which the Minister has not satisfactorily addressed. We have an historical case in which the rights and well-being of Irish citizens were seriously affected by disclosure but because that was not an indictable offence the Garda-----I am sorry, I beg your pardon-----

I am sorry Senator Norris. My apologies.

Some men find it challenging to whisper if they are speaking in the House. I apologise to Senator Norris. The Senator should continue.

Perhaps I was not being clear.

No, Senator Norris is absolutely fine. He was being interrupted.

I thank the Acting Chair very much.

My concern is that we would allow a situation to continue under which the welfare, rights and dignity of citizens can be trampled over, with no comeback and nobody is accused, charged or affected in any way by that.

I wish to turn also to the troublesome bit of amendment No. 68, which proposes on page 20 to delete line 40. Let us delete line 40 as a start. Line 40 contains only one word, "Commission," and the proposal is to delete that. On page 21, we are deleting line 1 and substituting the word "Commission".

Section 27(1)(b) reads, "the Director, a member of staff of the Office or a consultant, advisor or other person who is or was engaged under contract or other arrangement by the Commission," but what we have got rid of - and this has not been addressed by the Minister - is the remainder of that paragraph, which read, "unless he or she is duly authorised by the Commission to so do." As I understand it, that is gone. We have deleted it. I would like the Minister to refer to the necessity for this deletion because the purpose of amendment No. 68 is "to delete line 1". Line 1 includes the phrase "unless he or she is duly authorised by the Commission to so do". We are getting rid of that and substituting just the word "Commission", which is a leftover from the previous paragraph. We are actually deleting an entire idea. We are deleting the idea that somebody can in fact disclose information if "he or she is duly authorised by the Commission to so do." We are removing a significant flexibility from the legislation. Perhaps I am wrong but I do not think the Minister addressed this point.

On the issue of confidentiality, I hate to find myself totally in agreement with Senator McDowell. However, those putting themselves forward for senior judicial posts will generally come from the Bar Council and will generally be what we now refer to as sole traders. One negative word can have a detrimental effect on a person's income for the remainder of his or her life. That is something we must take very seriously. If I have learned anything in this House, it is that confidentiality is something which can be taken with a grain of salt in some cases. I recall one day walking out of a commission meeting. We had discussed a particular matter on a confidential basis but as I walked through the door to my office, the phone rang and it was a newspaper reporter asking me to confirm whether the following issue had been discussed. I understand what the Minister meant when he said that he hopes we will not have a plethora of consultants involved in the appointment of judges. However, there is a clear provision for the judicial appointments committee to appoint consultants. Senator McDowell referred to 120 applicants applying for a particular post. There is no way that the committee will have the time to go through each one of those applications so it will employ consultants to come up with a short list.

Finally, this is an important discussion and I am devastated to see the emptiness of the benches. I wonder if it is possible to have a quorum.

Is the Senator calling a quorum?

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

To get back to the point I was trying to make-----

The Minister made a comment that will not endear him to Members of this House.

Some Members may not have heard the remark but the Acting Chair has now compounded it. It was directed at Senator Norris.

Senator McDowell heard it. Can we have some order, please?

The Minister will not be getting an invitation to the Fitzpatrick clan rally.

I understand that everyone is starting to get a little bit giddy but we have to try to get through this Bill.

It is the freezing conditions in this gaunt old barn.

The Senator is too fat.

That is an insult.

I ask Senators to stop flinging insults at one another. Can we have order and can everyone focus on the job at hand?

I applaud the Minister for his patience because if ever a Bill has had a difficult passage, it is this one. To return to the issue of confidentiality, I am not satisfied that confidentiality is covered under the current wording. I am not sure there is anything in it that would deter an individual from the engaging in the old "dúirt bean liom go ndúirt bean léi" type of thing. We could have friendly chats in corridors or two people out having a drink and one telling the other that Murphy was put forward and that he should have heard what the committee had to say about him. The next thing we know some up and coming senior counsel's career has been destroyed. I am not satisfied in that regard.

I agree with my colleague, Senator Norris, about the deletion of the line, "unless he or she is duly authorised by the Commission to so do". That little bit of flexibility needs to be provided.

The most important point I can make on this particular section is that I believe it makes the Bill unconstitutional. Senator McDowell has made this point on a number of occasions. The Attorney General, the adviser to the Government, will sit on this committee. The Government will be presented with three candidates as a result of the deliberations and the Attorney General may find himself or herself totally opposed to the appointment of any of the three. The Government may find itself opposed to the appointment of any of the three and may ask the Attorney General whether another person may have been better suited to the position. Is the Attorney General, who has a constitutional role as adviser to the Government, to say he or she is awful sorry, that he or she knows of somebody but cannot open his or her mouth because he or she is bound by the legislation? I am extremely concerned. If I were a member of the Bar and had my eyes on the Bench, the first thing I would do following the passage of the Bill would be to challenge it under the Constitution because it could destroy my career prospects. That is without even referring to the role of consultants in the matter.

While I fully understand the Minister's view of how this Bill will work, with all due respect, he will establish an independent committee and once that independence is in place, it will be up to that committee to decide whether to appoint a group of consultants, whoever those consultants may be. I have some difficulty with appointing judges using consultants from the accountancy profession or some other profession. Who will draw up the shortlist in the scenario presented by Senator McDowell where there are 120 applicants? Will some 25 year old graduate who has just finished a business and law degree in one of our esteemed universities sit down, check boxes and decide which 15 applicants should go forward for interview? I am very concerned about this matter. Once this committee is in place, the Minister cannot tell it how to do its business. He cannot preclude it from using consultants or tell its members he expects them not to use consultants. At the end of the day, it can use as many consultants as it wishes. I am concerned about the constitutionality of these provisions.

I appreciate the Minister's patience and that he is being run around the same issues time and again. Surely that must ring alarm bells for him at this stage. I will leave it at that for the moment.

I want to correct a false impression which the Minister has created. He has suggested that I am against it being possible to prosecute a confidentiality breach on a summary basis. I am not against that. I am saying that, if that is the only basis on which a breach can be prosecuted, there can, as Senator Norris has picked up, be no effective investigation of someone who participates in a leak-----

-----or of someone who receives the information from a leak. The Minister has not dealt with this. He is either serious about this or he is not. Amendment No. 70, which is in the names of Senators Boyhan, Craughwell and me, makes it very clear that we have no objection to a summary disposal in the District Court of such an offence. The proposed section 28(2) of the amendment states:

Any person who knowingly discloses or makes public in any manner any information that is secret within the meaning of subsection (1) shall be guilty of an offence and shall be liable on conviction thereof—

(a) in summary proceedings before the District Court to a fine or to six months imprisonment,

(b) on indictment to a term of imprisonment not exceeding five years or to a fine or to both.

It is simply wrong to suggest that I have some problem with the existence of a summary jurisdiction to deal with this. I have said plainly, and I will say it now on the record of this House, that I have no such problem in the case of minor offences. If it is a minor offence, I have no problem with it being dealt with summarily but the consequence of saying that is the only way in which it can be dealt with is that if gardaí arrive at someone's door to investigate an alleged leak, that person can simply say he or she is busy this evening, has dinner inside and does not propose to make any statement in respect of the inquiries, before asking the gardaí to go away or deal with his or her solicitors. That is the door slammed in the faces of the gardaí. In the abortion case to which I referred the Commissioner found himself in that position. I should just say this because everybody should know about it and I do not think I am revealing anything that should not be revealed. The Garda had a suspect at the time and even had a place in mind for where the file had been handed over. It had no evidence, however, unless it could interview the member of Garda Síochána who was suspected of leaking and the journalist to whom it was suspected the garda had leaked. The Garda had a very clear picture, however, of whom had been involved in this offence and of when it occurred, down to the very day. The gardaí involved were very clear in their minds about what they were dealing with but they ran into a brick wall because they had no power of arrest or investigation. They were told to get lost by the people involved and they had to get lost.

I presume the garda in question was paid.

I presume both the journalist and the garda kept their positions and the women who were confronted on their doorsteps and asked to confirm whether they had been the subject of a backstreet abortion had no remedy for this massive intrusion on their privacy, regardless of whether they had been involved in such a matter.

I want to make it very clear that it is simply not the case that I am saying that this matter should not be capable of being dealt with in the District Court. I have made it clear, as have Senators Craughwell and Boyhan, that it is capable of being dealt with in the District Court. However, if it is not capable of attracting a five-year penalty at the maximum, it is not capable of an arrest, detention for questioning or any thorough police investigation. That is the simple position and there is no point in codding ourselves. I want to make that point as clear as I can. I have no problem with there being a capacity for a summary conviction to be handed down.

In case there is any misunderstanding and in case anyone watching this debate should be under any misapprehension about it, the person who will make the decision as to whether it is a summary offence or an indictable offence is the Director of Public Prosecutions. He or she will take into account the seriousness of the offence in choosing whichever venue it is. There could be a grossly serious offence. If a year’s minutes or whatever were to be handed to a magazine or newspaper, it could have catastrophic consequences for an awful lot of people.

The Minister has painted a picture. Senator Craughwell was absolutely on the button with one point. We have declared that the commission is to be independent in discharging its functions. What the Minister or his successors might think it would be preferable for them to do is not really relevant to this; it is what they can do that is relevant. I ask Members to look back to a section we have already debated, section 11(7) and (8). Section 11(7) says the commission, as it considers necessary, not as anybody else considers necessary-----

Yes. The wording is:

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.

There is a distinction here between “any person” and appointed consultants and advisers. I ask the House to remember that. Then section 11(8) 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, 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,

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).

We discussed the ludicrous unintelligibility of that provision before. It is very clear from the last paragraph of section 11(8) that the sole purpose for which persons, consultants and advisers can be appointed is to advise the commission in its consideration of applicants at a preliminary stage, which I described as the winnowing out stage, and then to provide an evaluation or assessment of an applicant’s suitability for appointment that would assist the commission. That is in the Minister’s Bill; I am not conjuring it up. That is the function of the three categories.

In respect of the category of "a person", I do not know what sort of person they might appoint who was not a consultant or an adviser. However, they could ask a "person" to look at all the applications for such a position, first of all to winnow out under section 11(8)(a) the people who are at a preliminary stage and are not even to be considered, and then under section 11(8)(b) to do a further and much more serious thing, which is to carry out an evaluation of an applicant. That is what the law is providing. None of this is in the JAAB procedure, by the way. It has never, ever attempted to do anything like this and it would be foolish of it ever to contemplate doing this kind of thing. I should point out because it is relevant that in section 11(7)(b), the Minister alone is entitled, by withholding consent, to prevent the appointment of consultants and advisers, but he is not able to stop a "person" under section 11(7)(a) from being appointed by the commission to carry out these functions. He has no veto power there.

We are dealing with the capacity of the commission to appoint a person by way of contract to carry out a winnowing function and then, among those who have survived the winnowing, to carry out an evaluation of applicants. That is what the legislation is about. I do not want to waste the time of the House just going back over this. It is wrong-headed and should not be there. If this commission is going to be so elaborate and so great as the Minister, Deputy Ross, has claimed, and so well resourced, why would it want to appoint persons to evaluate the suitability of applicants? The Minister has said here that he thinks I have the wrong end of the stick. I am saying these are the provisions he is giving this independent commission, which, as Senator Craughwell said, he has the right to do.

How does this tie in to section 27? The evaluations, presumably, will be in writing. Presumably, they will contain confidential information. If it is the case that members of the Judiciary seeking promotion or members of the legal profession seeking to be appointed as judges in the first instance are to be subject to a process whereby a person not even on the commission evaluates their suitability, then breach of the obligation of confidentiality could be catastrophic for them.

If they are no use.

It could be catastrophic if the expert appointed by the commission decided that a particular judge was not suitable for promotion or that a barrister or solicitor was unsuitable. Presumably there is going to be a documentary record of such decisions because they are going to be made under a contract and the person who provides this evaluation is going to come to quite subjective views about the suitability of somebody else to be a member of the Judiciary which could, if disclosed, be catastrophic for that person, for the commission’s integrity and for the whole process of confidence in the Judiciary.

And the person could be a Government representative.

Could I make another point? Supposing a sitting judge was regarded as a bit of a mistake - these kinds of things can happen-----

They happen at the moment.

Supposing a sitting judge was considered to be a bit of a mistake and supposing the evaluation was more or less to that effect, that he or she was struggling to do the work he or she was doing at the moment and should not be appointed to any further position.

Is the Senator saying some of them are there at the moment?

I am not being tempted into irrelevance here. I am dealing strictly with what is relevant. I welcome Senator Lawlor to the House and am glad this morning’s proceedings have made him more interested in the Bill.

I was worried I might be found dead in my own room.

I say that without any malice whatsoever. I welcome the Senator’s presence.

I have been here before on other occasions.

I am not going to get into the discussion. I am not going to get stuck.

Senator Lawlor is the only representative of the Government in the House, apart from the Minister. That is Senator McDowell’s point.

I am not going to get diverted into comments about current members of the Judiciary. I am saying it is perfectly conceivable that a proper evaluation of a sitting judge might come to the conclusion that the person is having enough difficulty firing on all cylinders in the court he or she is in and is certainly unworthy for promotion. If that report was reduced to writing and leaked, the damage it would do to the Judiciary would be very significant indeed.

I refer to a report in which a person under contract to an independent commission makes an evaluation on an official and statutory basis. It is simply not good enough for the Minister to come to this House to say he proposes to have a criminal offence, but he does not propose to make it possible to investigate that criminal offence.

If the Minister is serious about this proposal, there must be investigability. He must provide for the power to detain the person who leaks that information and put him or her through the ordinary process of questioning for a serious offence under the Criminal Justice Act 1984. In the absence of such a power, this confidentiality obligation is more or less worthless. The Minister suggested that I should compare this provision with the punishment of the disclosure of confidential information under the property registration system. Perhaps there are terrible secrets in the Four Courts relating to who owns a certain property, who enjoys a right of way over a property or who applied for a right of way over a property. Maybe there is confidential information in what used to be the registry of deeds and processes in the land registry and is now part of the Property Registration Authority. Maybe there is some terrible secret down there, but I cannot imagine it, whereas I do not need an imagination to see that an evaluation of the suitability of a professional person or a sitting judge must of its very essence remain confidential, especially when it is carried out by a person who is not even a member of the commission. I remind the House that such a person will be appointed under contract with or without the consent of the Minister because the Minister will not choose these people. He will have no say in who the person is because the commission is independent.

The Minister has shied away from the point that has been picked up on by Senators Norris and Craughwell, which is that we are talking about the power to carry out a proper investigation. I suggest that providing for a summary offence, rather than the power to carry out a proper investigation, is parking ticket stuff in terms of the consequences for those involved. If they are in any way intelligent - most of the people involved in this whole process will be intelligent - they will realise that they are free to tell the Garda to get lost because they have nothing to say and do not propose to be interviewed on foot of the Garda's suspicions on the matter. This will mean that the door is slammed in the face of any proper investigation. I ask the Minister to reconsider the circumstances I have detailed and the point I have made. The confidential information provision needs to be taken seriously. When I said on Second Stage that I was worried about this aspect of the legislation, the Minister kindly told the House he would do something on this front. However, the proposal he has introduced is simply not adequate. There is no point in coming up with a non-solution to the question of investigability dressed up as a half-solution to it. Breaches of this kind are investigable or they are not. My experience, based on the incident I mentioned earlier, is that the impact of this provision will be limited in the absence of a power of arrest. That was the view of the then Garda Commissioner. He found that doors were slammed in his face. He had to accept that people did not want to be investigated and did not want the investigation to go further. That is the evil we are dealing with here. I strongly urge the Minister to face up to that fact. He should accept that his amendment is not acceptable in its present form. It is not up to the job. It does not add very much to the Bill because it can be ignored with impunity. That is the problem.

I would like to pick up on what Senator McDowell has just said. I have made the point that a negative comment about a distinguished barrister from a consultant involved in the selection of a judge or a member of the committee could cause the loss of that barrister's career. It could destroy his or her career. It had not crossed my mind until just now that something negative could arise during the evaluation of a member of the Judiciary who has applied for promotion and find its way into the public domain. In such circumstances, the judge's career would be over. If we look at this from the perspective of the preservation of public money, we will appreciate that such a judge would not walk away quietly. Negative commentary along the lines of, "We appointed the barrister Murphy rather than the judge O'Connor because Murphy was A, B and C and you would want to hear what they had to say about O'Connor", would destroy the unique position the Judiciary has held in this country. I would be the first person to admit I have not always agreed with the sentences handed down by judges or the actions of judges in various cases. I am a layman looking on. Like most people, I judge these matters on the basis of my views or the views of people like me. I am not a member of the Judiciary. As Senator McDowell was speaking, it struck me that when a distinguished judge is looking for promotion, a consultant might discover some box that could not be ticked. The name of such a judge could become known if we fail to provide for strong legislation with respect to indicting and allowing the Garda to investigate. The further we go into this Bill, the more dangerous it becomes. I am concerned that the system we will use to appoint judges is dangerous and the consequences being opened up when confidentiality clauses break down are dangerous. Are we trying to push this Bill through to tick a box and say that is that? Are we seeking to pass the Bill to get it out of the way? Are we prepared to live with the consequences of such an approach? This Bill will outlive the Minister, me and many people who will come after us. We need to make sure we get it right. I am afraid of what we are doing here today.

I would like to put this to the Minister again in simple terms. Senator McDowell has referred to a case in which material greatly to the disadvantage of members of the public was made available to newspapers by a member of the Garda. This has happened in the past. We know this is the historical reality. The case in question could not be prosecuted because it was only a summary offence. Senator McDowell has indicated clearly that he is not confining the matter to an indictable offence. He is very clearly leaving open the question of a summary approach to the Office of the Director of Public Prosecutions, which will decide on the appropriate course to take. It seems to me that section 11(7) is extraordinary. We went into this previously but I want to mention it again. Section 11(7) provides:

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.

As Senator McDowell has pointed out, that leaves the "person" in section 11(7)(a) outside the scope of ministerial interdiction. The Minister will not be able to stop this "person" from getting involved, although he or she will be able to do in the case of the "consultants or advisers" referred to in section 11(7)(b). As the Minister will not have the power to interdict-----

The House dealt with this matter some weeks ago.

Yes. I am want to make this point because it has been raised. I will leave it at this. I have just about one more sentence to go. The phrase "any person" is so vague that it could refer to somebody from the party machine. There is nothing to prevent that. It could be somebody with a vested interest in scuppering the whole process and banjaxing the career of a judge for motives of political spite. This Bill is supposed to provide independence and all the rest of it, but it does quite the reverse.

Does the Minister wish to add anything?

I refer to the points I made earlier in reply to Senators McDowell and Craughwell when they spoke about the criminal sanctions that might be available to the State in the event of there being an unlawful disclosure or breach. My overriding concerns are proportionality and consistency. However, I acknowledge the strong submissions from the Senators and I will reflect on them between now and Report Stage, but I believe in a consistent approach to these issues not just for this legislation but having regard to other broadly similar legislative measures across the public service. It is important that we be consistent, but I will examine it. This was a major point made by Senator McDowell on Second Stage and I said I would examine it in discussions with officials and in reference to the Attorney General The Senators are still not satisfied but I will examine it to see if we can move matters closer towards a meeting of minds. However, I will not go back over section 11 because it does not serve our time well here. These decisions have been taken by the Seanad.

Finally, regarding the point made again by Senator Norris, amendment No. 66 covers any person who is privy to confidential information. This is catered for under section 27. The reference to "director only" in amendment No. 66 simply reflects the fact that it is only the director, not another member of the staff, who could be delegated the function of consenting to a disclosure, that being considered either appropriate or necessary. I ask the Senators to move on, particularly in view of what I have said in respect of the sanctions. Otherwise we will find ourselves in a situation where we will lack capacity to make progress on the Bill. This is an important Bill and that is why I am keen to vent this issue fully in the Seanad and to listen to Senators who have constructive suggestions and important contributions to bring to bear.

I will reflect on the issue of the summary and indictable between now and Report Stage. It must be said, however, that the case cited by Senator McDowell is exceptional. It was something of a one-off, but I will reflect on it.

It is an historical fact.

Thank God it is an exceptional case that something so awful could happen. If there are no sanctions, however, it will not be an exceptional case. If one can ride roughshod through a summary procedure and summary sanction, just ignore the law and send polite solicitors' letters to clients-----

This is not ignoring the law. There is clear sanction in the law.

One can ignore the law if there is no-----

If one cannot get a conviction, what is the point of sanctions?

The Minister is a skilled legal practitioner with a long record in the practice of law. He knows well that the question of sanction does not arise until guilt has been established.

In addition, there are no prosecutions unless there is evidence. Imagine if one were caught for drink-driving and one was able to hand a preprinted card to the garda and say: "Consult my solicitor. I am driving home."

No, the Senator can say: "I am a Member of the Oireachtas".

Okay, I am a Member of the Oireachtas. My point is that these things could be very serious. A garda could impart a piece of tittle-tattle which has no serious consequence, and the Garda Síochána Act was specifically and carefully crafted to state that it had to have very serious adverse consequences before an offence would be committed. In this case, however, it is not necessary to have a fertile imagination to see that disclosure of this type of material almost certainly would have serious adverse consequences for people. My point, which I made on Second Stage and which the amendment is designed to address, is that if there is no workable sanction it is simply window dressing to provide for a summary offence because people can ignore the law and tell gardaí to get lost and get out of the house and that they have nothing further to say to them. If there is no adequate sanction for this, it will affect the frequency of offences. If there is a substantial penalty and a substantial likelihood that if one commits a serious offence here one will be arrested and questioned in a Garda station, one will think a great deal longer than if one thought it was only a matter of politely telling a garda that one has nothing further to say and one wants to go back in to finish one's meal. That is my point.

I will reflect on that issue.

I am glad the Minister will do that. The Minister is correct that amendment No. 67 is effectively consequential on my objections to section 11(7) and 11(8). I will not move that amendment because it would be pointless to remove the reference to advisers at this stage unless section 11 is revisited. I still object to section 11, which is wrong-headed.

We will deal with that on Report Stage.

That is right. We probably have debated this thoroughly and I hope that Senators Craughwell and Norris and I have made a strong case for the changes we are seeking. In the meantime, I am not prepared to proceed on the basis that the Minister will consider it and that his advisers say it is more important to keep consistency with the Property Registration Authority. That is far less important than what we are dealing with here.

This goes to the heart of the constitutional order. I do not believe secrets in the Property Registration Authority are of the same order at all. I cannot even imagine what secrets the PRA has.

Mice in the cornfields.

In any event, this is of a wholly different order and requires a different approach. I ask the Minister to withdraw his amendments and we will proceed to the next section. Otherwise, I must oppose his amendments.

It has been extremely long and arduous to try to get this Bill through the House so I appreciate the Minister's willingness to listen and reflect on matters. The one thing I am adamant about is the position of the Attorney General. An amendment must be introduced to release the Attorney General from any legal sanction where he or she is advising the Government on the appointment.

The Attorney General is appointed under the Constitution and his or her job is to advise the Government. He or she cannot be restricted by legislation. That is what makes this legislation unique and different from anything else the Minister is considering holding forth as peer legislation. The Attorney General must be free to carry out the function that he or she is appointed to do under the Constitution. That means he or she must be free to advise the Government that the recommendations brought forward by the commission are wrong in his or her view and is also in a position to say at that stage, "I believe we should be considering A, B or C rather than the people in front of us".

I ask that the Minister consider tabling an amendment that would release the Attorney General from any restriction when advising Cabinet. I do not expect him or her to go to the media but I expect an Attorney General to be free to carry out the role he or she has under Article 30 of the Constitution.

I agree with Senator Craughwell. It would be absurd to restrict the freedom of movement of the Attorney General in a situation where he or she is charged with advising the Government. We cannot tie his or her hands in this way.

Amendment No. 71 states: "Nothing in subsection (2) shall prevent the disclosure of information, in accordance with law, to a member of the Garda Síochána or any other person, whether within the State or otherwise, charged with the detection or investigation of an offence".

Will the Minister elaborate on what type of agencies or individuals outside the State are contemplated in the amendment? I should imagine there is quite a bit of other law, including EU law, on this. Unfortunately, most of it seems to be guided towards sharing information with the United States, which is not always a good idea. Who are these other agencies outside the State that would be involved? Why is this? Are other states likely to be interested in the appointment of judges? Perhaps they are. I know there was a lot of interest in the appointment of Justice Kavanaugh in the United States. Will the Minister give us an outline of some of the institutions or individuals who are contemplated under this section?

Before I put the question, I want to clarify whether the Minister wishes to speak.

It would also improve the section, if we are going to have a confidentiality obligation, to make it clear that it is not geographically confined as to its ambit and, therefore, any person anywhere, whether inside or outside the State, who reveals this information would commit a criminal offence. We would not want somebody going to Newry to hand over the information. We do not want something like this to happen.

On the issue of consultants, given that most of the consultancy firms in Dublin are now internationally based, what is to stop the firms that are consulting on the appointment of judges bringing in people from outside the jurisdiction to assist them in the short-listing? What control would we have over those persons once they leave the jurisdiction with respect to making statements about the findings of their adjudication? I am trying to be helpful and not to hinder. Once consultancy firms are employed, we have no control over who they will be, who they will employ and who they will subcontract to carry out the investigations for the JAC This is full of problems from what I can see. As the Minister reflects on this, these are some of the areas of concern to me. I am speaking as a layman.

I object to amendment No. 66 on the basis the Minister has defended it here. Effectively, it permits the commission to delegate to the director the business of consenting to information being disclosed. I have an objection to this and I am not happy with amendment No. 66 in any shape or form or however it is defended.

It is only the director who is at play here and not another staff member. Only the director could have the delegated functions.

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, 11.

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Ruane, Lynn.
  • Warfield, Fintan.

Níl

  • Bacik, Ivana.
  • Craughwell, Gerard P.
  • Daly, Mark.
  • Daly, Paul.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • McDowell, Michael.
  • Nash, Gerald.
  • Norris, David.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Gerard P. Craughwell and Michael McDowell..
Amendment declared carried.
Amendment No. 67 not moved.
Government amendment No. 68:
In page 20, to delete line 40, and in page 21, to delete line 1 and substitute "Commission".".

I asked the Minister to withdraw the amendment but he will not do so.

I am not withdrawing it.

Amendment put:
The Committee divided: Tá, 20; Níl, 12.

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Ruane, Lynn.
  • Warfield, Fintan.

Níl

  • Bacik, Ivana.
  • Craughwell, Gerard P.
  • Daly, Mark.
  • Daly, Paul.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • McDowell, Michael.
  • Nash, Gerald.
  • Norris, David.
  • O'Donnell, Marie-Louise.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Gerard P. Craughwell and Michael McDowell..
Amendment declared carried.
Progress reported; Committee to sit again.

When is it proposed to sit again?

Dé Céadaoin seo chugainn ar 10.30.

The Seanad adjourned at 5.05 p.m. until 10.30 a.m. on Wednesday, 14 November 2018.