Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

SECTION 27
Government amendment No. 69:
In page 21, between lines 1 and 2, to insert the following:
"(2) A person who contravenes subsection (1) shall be guilty of an offence and shall be liable, on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both.
(3) Nothing in subsection (1) 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.”.
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, 9.

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Hopkins, Maura.
  • 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.
  • Reilly, James.
  • Richmond, Neale.

Níl

  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Daly, Mark.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • Nash, Gerald.
  • O'Sullivan, Ned.
  • Ó Ríordáin, Aodhán.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Ivana Bacik and Kevin Humphreys..
Amendment declared carried.
Question proposed: "That section 27, as amended, stand part of the Bill."

I ask Senators to leave the Chamber if they wish to have a chat or we will not hear Senator Bacik who is about to contribute on section 27.

This section is headed "Confidential Information". I think I am right in saying that most but not all the amendments to the section were Government amendments. I will wait for quiet in the Chamber.

We have not yet had an opportunity to debate the section itself and I wish to take up a few points that were raised on the previous dates on 6 and 8 November by Senator McDowell and if I may, some of the Minister's responses. I should have started by welcoming the Minister to the House.

On section 27, Senator McDowell has spoken in particular on the implicit principle within it that it should be a criminal offence for the Attorney General to disclose to the Cabinet the names of judges who applied for promotion but were unsuccessful. That has been the kernel of the issue that has been raised in terms of the debate on the section. I hope I am not misstating what Senator McDowell has said, but I know he has put forward the point that-----

I do not think we have a quorum in the Chamber and I would like to call a quorum. This is a very important point and it deserves an audience.

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

I was referring to the point raised by Senator McDowell on a previous occasion in regard to section 27, his point being that the provision would put the Attorney General in an invidious position, as he suggested the Attorney General would effectively be restricted on expressing his or her view frankly as to the merits of candidates before the Cabinet. The question was whether the Attorney General should be so restricted and whether this had the potential to be a measure that would lead us into unconstitutional territory, which is the argument Senator McDowell made. This refers to the ban on canvassing later in the Bill, which I support fully as I think it is a very important reform. Senator McDowell's point was that the ban on canvassing, coupled with the presence of the Attorney General on the commission, an issue that he supported, and I know he and the Minister were in agreement on that point, together with the prohibition on the disclosure of identities of unsuccessful candidates to the Government, could lead to an unconstitutional restriction on the powers of the Attorney General.

The continued presence of the Attorney General on the commission in a sense undermines at least some of the purported purpose of the reforms in the Bill. There is this fundamental contradiction, if one likes, that while the Bill purports to be an attempt to reform the judicial appointments process fundamentally so as to render it less politicised, as with the ban on canvassing, which, as I said, I support, the continued presence of the Attorney General makes it clear the appointments process retains its political tenor. That is not necessarily a bad thing and, indeed, under the Constitution, the Cabinet and the Government cannot be curtailed in their choice.

There is also an interesting academic debate about the importance of having a political voice in the selection of judges and that it should not just be, for example, judges choosing their own. We are all conscious of the existence of affinity biases within selection and recruitment procedures generally, so I would be very much against any model that had judges simply, without any external influence, capable of choosing other candidates for the Judiciary. That is important.

The difficulty is how the Attorney General's position will be left after section 27, in particular as amended by the Government amendments. I want to say a little more about the constitutional function of the Attorney General as it will be affected by this section. We know the principal constitutional function of the Attorney General is to act as legal adviser to the Government, in that capacity to attend all Government meetings and to advise the Government on all constitutional and legal issues which arise prior to or at Government meetings. This would include whether proposed legislation such as this Bill complies with the provisions of the Constitution or with Acts and treaties of the European Union, the European Convention on Human Rights or other international treaties to which Ireland has acceded. We are all well aware of these functions of the Attorney General.

There are other aspects to the role of the Attorney General, and this is where section 27 becomes significant. For example, as the forensic representative, and this is topical in another setting, the Attorney General represents the State in legal proceedings. The Attorney General is legal adviser to each Department and to certain other public bodies and, indeed, is the representative of the public in all legal proceedings for the enforcement of law and the assertion or protection of public rights. The Attorney General defends the constitutionality of Bills referred to the Supreme Court under Article 26 of the Constitution and in other constitutional proceedings. I am reminded of being against Senator McDowell when he was Attorney General and I was arguing a case against the putting of a particular referendum to the people. He won that case, but that is just an aside. The Attorney General is an ex officio member of the Council of State, which the President can consult in regard to his or her exercise of certain powers and functions under the Constitution. The Attorney General has functions in respect of the Law Reform Commission under the Law Reform Commission Act 1975. As we know, as regards legislative programming, he or she is a member of the legislation committee chaired by the Government Chief Whip and also has a function under the Coroners Act 1962 to direct a coroner to hold an inquest where he or she considers that the circumstances of a person's death make the holding of an inquest advisable.

The Attorney General has other miscellaneous and limited statutory functions, for example, under the Geneva Conventions Act 1962. The Office of the Parliamentary Counsel and the Chief State Solicitor's office are constituent parts of the Attorney General's office and, accordingly, the principal legal functions carried out by the office as a whole include the provision of legal advice, legislative drafting, the provision of litigation conveyancing and other transactional services on behalf of the Government.

This is the point relating to section 27. If the Attorney General is by statute appointed ex officio to membership of the commission, clearly he or she is so appointed in the capacity of the Government's legal adviser. In that capacity, as in the other capacities I have outlined, a normal lawyer-client relationship has long since been recognised as arising. This is the crucial point that Senator McDowell was suggesting when he spoke to the amendments to the section, although we have not yet had the opportunity to debate the section itself. That normal lawyer-client relationship, as the Minister is aware, carries with it the normal principles of legal professional privilege. If, as this statute purports to do, a statute appoints the Government's lawyer to be a member of a commission whose recommendations are brought back to Government to be discussed, it seems both unreasonable and unfeasible to seek to prohibit the lawyer from discussing with their client, that is, with the Government and the Ministers at Cabinet, what may have transpired at meetings of that commission. That is the point about section 27. It would seem to curtail the Attorney General from so doing. This would be unreasonable because it encroaches upon the proper performance of the functions of the Government's legal adviser in regard to what is, under the Constitution, Government business.

To speak for a moment about the overall context, we are looking at legislation that seeks to reform judicial appointments fundamentally. Of course, we still retain this political element in the appointment of judges, and that is the requirement under the Constitution. However, any lawyer must be permitted to discuss fully and frankly the business of his or her client with the client. This is the argument arising from the Attorney General's functions more globally and the role he or she has under other legislation, by convention and under the Constitution. This facility to discuss fully and frankly the business of the client is all the more important if the lawyer is the Attorney General, the client is the Government and the business is vested in that client by the Constitution, as with the appointment of judges. Any prohibition, therefore, is not just unreasonable but also unfeasible, and that is what would put the Attorney General in this invidious position.

Under the doctrine of Cabinet confidentiality, which was also raised in Senator McDowell's earlier discussion, details of what is discussed at meetings of the Government are inadmissible in any court or other proceedings.

This relates to section 27, but we will make a similar point about section 28. Section 27 seeks to enact a rule in circumstances where it would be constitutionally impermissible to prove that the rule was ever breached. We must recall how this section and section 28 fit within the existing provisions of the Constitution which provide for the concept of Cabinet confidentiality which were passed, as we know, in a referendum some years ago. It is really where I would like to receive a response. How can these points which are related to the putting of the Attorney General in an invidious position vis-à-vis his or her client be addressed in section 27?

I looked back at what the Minister said in response to some of the matters raised by Senator McDowell on 6 November. He said he had taken the opportunity to seek further advice on the status of the Attorney General. He stated: "It is clear from that advice that the Attorney General would not be at liberty to say that a candidate who was not the subject matter of a recommendation and whose name did not appear was, in effect, more suitable than any of the three people who were recommended." It took me some time to unravel that sentence because there is a triple negative. He is saying the Attorney General would not be free to say a candidate who was not the subject matter of a recommendation from the commission and whose name did not appear on a short list was more suitable than any of the three people recommended. That is the point where we are saying the Attorney General's capacity to advise his or her client - the Government - in a full and frank manner is curtailed.

The Minister went on to say that when the Attorney General signed up to a report from the commission, "it would be unlikely - in fact, it would be unacceptable - for him or her to say something completely different at a Cabinet meeting, or to do the opposite in practice." Senator McDowell took issue with him on the point that the Attorney General should not be so curtailed. He went on to say: "To function properly as Attorney General, the individual in question should be free at a Cabinet meeting to express his or her views not merely as between the short-listed people, particularly when it is quite possible that he or she will not have agreed with the composition of the short list in the first place, but to indicate to the Government that there are other people who are interested in the job, have not been short-listed and, in his or her view, are more suitable for appointment." That is a really fundamental constitutional point. Does the Attorney General have this duty under the Constitution and does this function to be "full and frank", as we might put it, derive from the constitutional relationship of the Attorney General as legal adviser to the Government and the normal rules of legal professional privilege? If so, is that not a really problem with section 27?

In an attempt to be constructive, I looked at the Minister's responses to see if the answer had been given to the question. I know that it was raised in the context of a debate on a group of amendments to section 27, rather than the substance of the section, but I cannot see a specific response to it. I know that the Minister has said he does not see the position arising because if a Government were to choose not to go with a recommendation of the commission - I am paraphrasing a previous response - it would be rejecting a decision of the commission and also rejecting a decision to which the Attorney General was a party. If I am correct, it is almost circular reasoning, as the Minister is saying that once the decision is made by the commission, there is an assumption that the Attorney General must have been a party to and, I presume, in agreement with it, but I am not sure if that is necessarily the case. The argument is it would be invidious for the Government to refuse to follow the decision as it would go against the advice of its Attorney General, but I do not see how that can be the case. The decision of the commission is not the same as Attorney General's legal advice. Where the Attorney General gives advice to the Government, it is clearly a big problem if the Government fails to follow it. It also demonstrates a lack of trust. It is the fundamental issue of a breach of the relationship as the client would no longer be in a trusting relationship with the lawyer in refusing to follow the advice given. It is clear if the Attorney General gives legal advice, but I do not see how the same conclusion can be drawn from a report of the commission just because the Attorney General is an ex officio member. That does not necessarily mean that the Attorney General is in agreement with the decision or a party to it. The Minister has said that in rejecting a decision or recommendation of the commission, the Government would be rejecting a decision to which the Attorney General was a party. However, if I am right, that is the problem, as the Government would not know it because of section 27. The Government would not know if the Attorney General was in agreement with the decision. I would welcome an answer as I do not see it in earlier debates, but it is a very fundamental point.

There are related points and to be constructive I will mention a number of them. The question was put as to whether the Attorney General could tell the Government if candidates recommended had previously been short-listed, rejected or turned down. It is another question to which I could not see a specific answer. A related question concerns the information given to the candidates who are short-listed. If a candidate for judicial office has applied previously or been short-listed on previous occasions but turned down, can the judge be told? These are certain questions-----

I am very reluctant to interrupt the Senator and know that she will not allow me to do so.

I will. I am happy, if the Minister would prefer-----

We have had these questions all the time and the Senator heard my replies.

Yes. I have listened.

If she was not present, perhaps she should have been. She had the opportunity to read the transcript of Senator McDowell's contribution. She is merely repeating ad nauseam matters raised by Senator McDowell in her presence over a period of 38 hours. We have had 38 hours of debate on this Bill.

I will answer the questions, but the answers will be no different from those given to Senator McDowell. I mean no disrespect either to the Leas-Chathaoirleach or the Senator, or any other Senator, but we have had 38 hours of debate on this Bill.

With respect, I have been present for longer than any other Senator, apart from Senator McDowell and the Minister.

Yes and the Senator is aware of what was said during the debate.

I am well aware of what was said during the debate-----

-----and have gone to the trouble of printing it.

Therefore, the Senator is aware of the position. She has taken the opportunity to read replies I gave 38 hours ago as though my position is going to change in some way. I can tell her that it is not.

Does the Senator have any new question?

To be fair, I read only parts of the Minister's response and could have read a much lengthier response. I will certainly not do so as it would be pointless. I read the passages-----

What purpose would be-----

I am asking what is the purpose of reading a transcript of what I or other Senators said on previous occasions. The only reason for doing so is to delay the debate.

No. To be fair, I have spoken very little in the debate, particularly in the discussion on section 27. I have not intervened to speak to it because the amendments-----

The Senator had every opportunity to do so.

I beg to differ as the amendments proposed to section 27 were in the name of Senator McDowell. We have not spent 38 hours debating section 27 and the related amendments. Senator McDowell spoke at length on the amendments, not the section. I am raising, in the context of the debate on the section, as I am entitled to do, some answers which were given by the Minister, or which are purported to have been given by the Minister to Senator McDowell.

I am pointing out to the Leas-Chathaoirleach where we have been for 38 hours.

Please allow me to finish. I ask the Minister not to interrupt.

If the references to the Minister's previous replies are succinct and to the point and if the Senator has further questions to ask, she is within her rights to speak.

The Minister gave lengthy replies, but none of them responded specifically to the points raised by Senator McDowell and me.

What is the question?

Is the role of the Attorney General constrained unconstitutionally by section 27? That is the nub of the issue. I have one more point to make on the section.

The answer is "No". I sought advice on the matter from the Attorney General.

The Senator has a further point to make.

I have a final point to make on section 27. On a point of order, it is not acceptable to be constantly interrupted when I am trying to make a point and when I have not previously spoken on the section. I take issue with the Minister in that regard.

The intent of amendment No. 66 was to amend the introductory part of section 27(1) to provide that there would have to be written consent for the disclosure of confidential information.

The question I need to ask is whether the effect of that amendment to the section or the effect of the section, as amended, is that the only member of staff who needs permission from the commission is the director and that members of staff other than the director or persons who are not even members of staff require permission. There seemed to be an anomaly in the way amendment No. 66 was drafted. I know this has been passed and I now have a question about the section, as amended. That issue was not raised previously because we had not yet amended the section.

The issues in section 27 around confidential information and disclosures are extremely topical and important and I do not apologise for raising them. As I said, I have not spoken to this section previously. Senators Norris and McDowell spoke at great length about the amendments to this section on 6 and 8 November. I checked the record and I did not speak to it. Therefore, I have the right in to put forward my view on section 27, which is what I am doing now.

The Senator spent the past 20 minutes quoting Senator McDowell.

I did not. I was reading from my legal advice. The bulk of what I gave the Minister was from my legal advice and not from Senator McDowell. It was referring to points raised by Senator McDowell but the document was my legal advice.

In terms of confidential information and disclosures, in the very powerful RTÉ programme last night entitled "Whistleblower: The Maurice McCabe Story", we saw the significant importance, benefit and value to the State of ensuring we deal correctly and fairly with confidential information and disclosures and with those who give confidential information in the public interest. This is why we now have protected disclosures legislation. It is also why we need to take very seriously and deal very carefully with issues around confidentiality, confidential information and disclosures in the context of judicial appointments, as in other contexts. In the context of judicial appointments, we can ensure that it is at least likely that those who feel they have not been fairly dealt with in the process will be able to take legal proceedings. This is why it is so important.

In terms of later amendments, amendments Nos. 92 and 96 from the Labour Party group suggest that the shortlist-----

I do not think it is in order to talk about later amendments.

On a point of order, there is a set of procedures relating to how-----

I simply reminded the Chair.

Can Senators speak without an interruption from the Minister?

Is the Senator raising a point of order?

Yes, I am asking who is chairing this session. Is it the Leas-Chathaoirleach or the Minister?

I am chairing the session.

Maybe the Minister should stop interrupting speakers.

I would hope the Chair is chairing the session and I would-----

Here we go again. This is out of order.

I am chairing this session and I have ruled that provided she is succinct and to the point, Senator Bacik is within her rights to put further questions.

I hope the Leas-Chathaoirleach will apply the same standard to Senators Norris and McDowell because I am beginning to feel that the same standard is not being applied. As I said, this is my first intervention on section 27.

With respect, I have allowed Senator Bacik to continue and I have interrupted Senators Norris and McDowell on another occasion, for which I was criticised afterwards, when there was no meeting of minds and I insisted on putting the question.

With respect, they spoke for far longer than I have spoken and I am entitled to finish the point I am making. I am about to-----

That is the real reason. We now have the real reason. The Senator wants to surpass both Senator McDowell-----

I am calling a quorum because this is outrageous.

We now have the real reason. Thank you, Senator.

I have not called a quorum but I think enough people want me to call one.

I ruled that Senator Bacik could continue but she has called a quorum.

I have called a quorum. I will not be treated like this by the Leas-Chathaoirleach or anyone else.

Senator Bacik must withdraw that remark.

No. I am entitled to finish my point.

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

I ask Senator Bacik to resume on section 17.

On a point of order, will the Leas-Chathaoirleach listen to the recordings to hear how previous speakers were treated compared with how Senator Bacik was treated a few minutes ago? He should reflect and state there is a very large difference between how Senators McDowell and Norris have been treated and how Senator Bacik has been treated.

I cannot account for other Chairmen.

I wish to add to the point made by Senator Humphreys. There has certainly been an inconsistent approach with regard to how Senator Bacik has been treated. It is bordering on misogynistic. I call on the Minister to reflect on his comments towards Senator Bacik and issue an apology.

Senator Clifford-Lee should withdraw that remark. I never ruled against Senator Bacik. I told her she was within her rights.

I did not say the Leas-Chathaoirleach did. I am pointing out the inconsistency-----

I thought Senator Clifford-Lee was levelling a charge against the Chair. Is she levelling a charge against the Chair?

I am not, but there is an inconsistency in the approach, and a degree of leeway is given to certain Members of this House that was not given to Senator Bacik when she was debating her point.

I cannot account for how other Chairmen conduct their sessions.

It is an important point to make at this point in the debate. I did not think it was very fair when she was interrupted while making her point. There is an inconsistent approach in how some Members of this House are treated.

I cannot resolve what the Senator imagines is an inconsistent approach. She is within her rights to report the matter to the Committee on Procedure and Privileges. She may also take it up with the Cathaoirleach if she wishes.

I was not making reference to the Leas-Chathaoirleach.

I appreciate that.

For clarification, I am holding up a note, from which I am reading, which is from the Labour Party legal adviser on section 27. That is what I was reading from and it had not previously been raised in this House. I would be grateful to finish the point I was making without any further interruption. I do think there is an inconsistency of treatment and I thank Senators Clifford-Lee and Humphreys for pointing that out because we need to address cases where it occurs.

We have amendments relating to the candidates on the shortlist. It is a major flaw in the Bill that it does not require the recommendations on the list to be ranked in order of preference by the commission, and amendments Nos. 92 and 96 to section 46 are designed to address this. It might also have an impact on section 47 because a ranking in the commission report would change the nature of the information that goes to Cabinet in the first place. It might also change the way the advice of the Attorney General to Cabinet is dealt with. I know the Minister will not respond in a real fashion to the points I have raised and I do not expect him to, given what he has said.

The Minister was not fair to me. A Chairman in the Seanad should allow a Senator to speak as long as he or she is not waffling. I was not waffling.

I did not interrupt the Senator at all.

The Leas-Chathaoirleach did not interrupt me. A Chairperson should enable a Senator to finish speaking without constant ministerial interruptions. That is the point I am making. I am not making a point about the Chair's interruptions. I was speaking for the first time on an important section in an important Bill.

Senator Bacik and other colleagues have made their point, which has been noted.

I thank the Senator and I am glad to hear it. That is the conclusion of what I wanted to say. I would have said it all in a far shorter period and would not have called a quorum had I not been constantly interrupted.

I would not have intervened if the Leas-Chathaoirleach had done more to ensure the smooth running of the debate.

That is an attack on the Chair of the Seanad.

It is an attack and it is quite despicable.

With respect, I thought-----

I join Senator Humphreys on this. It is ridiculous for a Minister to interrupt constantly a speaking Senator who has not spoken on the section previously, and then attack the Chair for not allowing the debate to flow. It would have flowed a lot more smoothly if I had been allowed simply to make my points without interruption. I had a specific number of points and I was about to finish when I started being interrupted.

I formally ask the Minister withdraw his remark against the Chair.

The Minister may have felt that I was allowing the Senator to engage in too much repetition. I do not think I was but she did not quote the entirety of what she had. She quoted selected pieces, as I understood it.

They were very short pieces. The document from which I read at length was our legal advice, which I am entitled to read into the record because it has not been dealt with here before. The points I raised were very short excerpts from the very lengthy responses of the Minister to the very lengthy points made by Senator McDowell on previous occasions when the Senator spoke to amendments and not the section.

I am now ruling that we move on. Are there any further speakers on the section?

I still believe, and Senator McDowell will when he looks at the record, that we did not receive satisfactory responses to the very real concerns he, I and Senator Norris raised about section 27. We will be raising the points again on Report Stage.

I assure Senator Bacik that I acknowledge her clear entitlement to raise any issue at any time during the course of a debate. I also acknowledge, as Senator Clifford-Lee said, that the bulk of the debate was taken up by the contributions of Senators McDowell and Norris but that is not for me to comment on. We have had 38 hours of Committee Stage which has been punctured by quorums and votes, including walk-through votes. This is an entitlement of Senators but there are forces at work here which are designed to ensure a filibuster is engaged in.

I take issue with that. If they look at the record, any objective observer will see that I have spoken very little throughout this Bill.

I did not refer to the Senator.

I have made succinct and concise contributions.

The Minister has now made an accusation that there are forces at work. If he believes this, or has evidence to that effect, he needs to name and shame people. The same accusation was made this morning on the Order of Business by Senator Lawlor and it was not challenged, but it needs to be dealt with now.

We are on section 27. I just want to hear commentary on that section.

If the Minister is going to make accusations, it is very curious that he would make them when a female Member of this House is speaking.

I reject that entirely.

I have been here for the majority of the 38 hours to which the Minister referred.

I think Senator Bacik knows me better than that.

If the Minister was going to make such a point, he could have done so on many another occasion. I find it very curious that he makes it today when Senator Bacik is speaking on this point. I am not happy to sit here and witness this and I would like the Minister to give an apology to Senator Bacik and to this House.

Absolutely not. Senator Bacik knows me better than that.

I would like a withdrawal of the filibuster remark as it applied to me because I have not spoken at any length.

It was certainly not directed at Senator Bacik but at a Senator who, on occasion during the course of the 38 hour debate, admitted that a filibuster was under way.

I thank the Minister for withdrawing it.

I have attended all sittings of the Committee Stage of this Bill so far and, as the Minister quite rightly pointed out, one Member, namely, Senator Norris, said filibustering was a distinguished thing. He said he was proud of it and that, if he felt something was not right, he absolutely would filibuster. I thought this was an appalling comment. To be fair to the Minister, he challenged both Senator McDowell and Senator Norris over the issue of repetition on a number of occasions. It has not just been Senator Bacik. If people check the record of the House, they will see that that is the case. We have to have fair procedure for the Minister as well.

We are on section 27 and I want to hear commentary on that section. Is everybody finished?

Lest it be said that I did not respond to the Senators who made a contribution today, I will say exactly what I said on the previous occasion in response to the same issues as have been raised by Senator Bacik and other Senators. My advice is that this Bill, including the confidentiality aspects of both sections 27 and 28, has no implications for the exercise by the Attorney General of his or her advisory role under the Constitution. I disagree with the assertion of Senator Bacik, if I interpret it correctly, that the involvement of the Attorney General on the commission or, as currently, on the Judicial Appointments Advisory Board is a political involvement. I am not going to get involved in what is or is not an issue of Cabinet confidentiality.

As I said on the last occasion, as a member of the commission the Attorney General must be mindful of section 27 and confidential information. I am not going to get involved in a debate on Cabinet confidentiality, nor will I be drawn into a debate on what does or does not come under the doctrine of Cabinet collective responsibility. Senator Bacik is right. After the last occasion when the issue was raised by Senators here I reverted for further legal advice, and my advice is the same. The Attorney General will be bound by both section 27, as amended, and section 28.

I wish to respond to the point the Minister made about the Attorney General. I support the presence of the Attorney General on the Judicial Appointments Advisory Board, JAAB, as on the commission. I am simply making a point related to some of the academic debate internationally, which I will not go into here, about whether judicial appointment processes should be entirely divorced from political decision-making or whether they should have some input that is political with a small "p". That is the bigger debate about the presence of the Government's legal adviser on judicial appointments bodies. I do support that, as others have, and as we have voted on already in this House. I welcome the clear response from the Minister that the Attorney General will be bound by sections 27 and 28. I wish to ask just one question which did not come out clearly from previous debates. Does that differ from the current position under the JAAB, and how does it differ? That is an important point.

I do not have any evidence of cases where the Attorney General, either at Government level or at any level, discussed any of the proceedings undertaken under the Judicial Appointments Advisory Board regime.

That is a partial response. Unlike other Senators in this House I have never been an Attorney General or indeed in Cabinet, so I do not know whether that means that this has never happened or that it could happen. Perhaps it is something we will come back to. There are still points concerning section 27 that deserve fuller consideration.

Question put.
The Seanad 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:
The Committee divided: Tá, 22; Níl, 11.

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

Níl

  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Daly, Mark.
  • Daly, Paul.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • McDowell, Michael.
  • Mullen, Rónán.
  • Nash, Gerald.
  • Ó Ríordáin, Aodhán.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Ivana Bacik and Kevin Humphreys..
Question declared carried.

On a point of order.

Yes, a point of order.

The way the debate spiralled downwards is very disappointing. I note that the Minister-----

The point of order I am making-----

The Senator is not entitled to make a point of order. There is no Minister here.

It refers to the Leas-Chathaoirleach. I am happy to wait until the Minister takes his seat.

I will hear the Senator's point of order in a minute.

Now that everyone is back I wish to say that things got a little tetchy in the earlier session and I refer to the comments that have been made in the course of today's discussion about the duration of the debate on this Bill. The question of undue repetition of debate or irrelevance is a matter which, as the Chair of these proceedings, I keep under review. I am always conscious of the need to balance the right of Senators to contribute to debate with the need to discharge the business of the House efficiently. I will continue to monitor the progress of the debate and will make rulings in this regard whenever I as Leas-Chathaoirleach see fit.

I very much welcome that.

I thank the Minister.

I want to make a point of order. First, however, I fully support the statement the Leas-Chathaoirleach has just made because I have seen him be very fair.

That is not up for debate.

As a point of order, I would like the Minister to withdraw his remark about the Chair.

I think the Minister clarified his position.

He withdrew the point against Senator Bacik and I think it is only fair that the Minister should withdraw the point he made against the Chair, that he was chairing the meeting unfairly and poorly.

I thank the Senator but I am the one who makes the rulings as long as I am in this Chair and I am satisfied with what the Minister has said. That is the end of that debate.

NEW SECTION

I move amendment No. 70:

In page 21, between lines 8 and 9, to insert the following:

Strict confidentiality of certain communications and matters

28. (1) Subject to the provisions of this Act and in addition to the provisions of section 27—

(a) the proceedings of the Commission or of its committees,

(b) confidential information within the meaning of section 27,

(c) confidential communications to and from the Commission or its committees,

(d) confidential communications to or from the Commission or its committees to the Minister,

(e) the proceedings of a Committee established under section 44,

(f) confidential communications to and from the Committee established under section 44, including any report to the Government,

(g) any matter concerning the removal of a member of the Commission (before such removal takes place) under section 20, shall be secret and shall not be made public.

(2) 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.”

This amendment has already been discussed with amendment No. 66 and in view of the ruling against repetition or irrelevance, it should be put.

Amendment put:
The Committee divided: Tá, 11; Níl, 22.

  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Daly, Paul.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • McDowell, Michael.
  • Mullen, Rónán.
  • Nash, Gerald.
  • O'Sullivan, Ned.
  • Ó Ríordáin, Aodhán.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Feighan, Frank.
  • Gavan, Paul.
  • Hopkins, Maura.
  • 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.
  • Reilly, James.
  • Richmond, Neale.
  • Warfield, Fintan.
Tellers: Tá, Senators Kevin Humphreys and Michael McDowell; Níl, Senators Gabrielle McFadden and John O'Mahony..
Amendment declared lost.
SECTION 28
Government amendment No. 71:
In page 21, to delete lines 16 to 25 and substitute the following:
“shall not, except—
(a) for the purposes of this Act, or
(b) as otherwise required by law or in the circumstances provided for in subsection (4),
disclose, without the consent in writing of the Commission or (save where the intending discloser is the Director) the Director—
(i) in relation to a person who applies or has applied for, or who is or has been recommended for appointment to, judicial office—
(I) proceedings of the Commission and of its committees,
(II) communications to and from the Commission and its committees, and
(III) communications to and from the Commission or its committees to the Minister,
or
(ii) any matter concerning the removal of a member of the Commission (before such removal takes place) under section 20.
(3) A person who contravenes subsection (2) shall be guilty of an offence and shall be liable, on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both.
(4) 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.”.
Amendment put:
The Committee divided: Tá, 22; Níl, 11.

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Feighan, Frank.
  • Gavan, Paul.
  • Hopkins, Maura.
  • 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.
  • Reilly, James.
  • Richmond, Neale.
  • Warfield, Fintan.

Níl

  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Daly, Mark.
  • Daly, Paul.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • McDowell, Michael.
  • Nash, Gerald.
  • O'Sullivan, Ned.
  • Ó Ríordáin, Aodhán.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Kevin Humphreys and Michael McDowell..
Amendment declared carried.
Question proposed: "That section 28, as amended, stand part of the Bill."

There are a number of points in respect of section 28 that I would like to deal with. I notice that in section 28(1)(a) the section is stated to apply to the commission, the procedures committee or any other committee of the commission. Is it possible under the terms of the Bill, as it stands, for someone to be or to have been a member of the procedures committee, or any other committee of the commission, who was not a member of the commission itself? Is co-option permissible under this? It seems to me that a person is either a member of the commission or is not a member of the commission. Unless it is suggested that people can be co-opted onto the committees, then it is very hard to see how every word after "a member of the Commission" is relevant. Perhaps I am mistaken about that but I have not seen procedure for co-opting people onto it. It seems to me that there is a mistake in the drafting there.

All members of committees are members of the commission.

Then why are we saying that this applies to a "to a person who is or was ... a member of the Commission, the Procedures Committee or any other committee" instead of just saying "who was a member of the Commission"?

I am happy to look at that between now and Report Stage.

It looks as if it is erroneous. Perhaps at one stage there was a provision in the text for the co-option of people who are not members of the commission.

It could, for example, be somebody who was a member of one committee being a member of the commission but who is now a member of another committee and still a member of the commission.

I still do not understand why it does not apply only to a member of the commission or the director or a member of staff of the commission. I do not understand why it is necessary to specify the procedures committee. Section 28(2) states:

In addition to what is provided for in section 27, a person to whom this section applies shall not, except for the purposes of this Act, disclose—

(a) in relation to persons applying for, or recommended for appointment to, judicial office—

(i) proceedings of the Commission and of its committees,

(ii) communications to and from the Commission and its committees, and

(iii) communications to and from the Commission or its committees to the Minister,

or

(b) any matter concerning the removal of a member of the Commission (before such removal takes place) under section 20.

I will come back to paragraph (b). It seems that the additional strength of section 28 is to prohibit a person to whom the section applies from disclosing material which are the proceedings of the commission and its committees, communications to and from the commission and its committees and communications to and from the commission or its committees to the Minister. I do not understand why there is a different category of people - the members of the procedures committee or any other committee of the commission - in addition to a person who is or was a member of the commission.

I understood the point being made by the Senator was about the relevance or otherwise in section 28(1) of the words "who is or was". I see the reason for it being that one could be a member of a committee charged with communicating issues, resign from that committee and then become a member of another committee. We are seeking to cover all eventualities in the case of persons who are members of the commission and who, at any time, are members of either one or other of its committees. I see this as insurance to cover the confidentiality of communications and proceedings, as provided for in section 28(2)(a).

My point is that the words following "a member of the Commission" have no additional meaning and do not widen the scope of the provision or play any useful part. If a person is or was a member of the commission, regardless of what committee of which he or she might be a member, the duty of confidentiality imposed by section 28(2) is dependent on the committee of which he or she is or was a member. Would it be okay for a member of one committee to leak information on what was done by another committee? I do not believe that would be the case.

The term "Procedures Committee" is referenced. When will the procedures committee be dealing with the matters set out in section 28(2)(a) in relation to persons who are applying for, or recommended for appointment to judicial office? Will the committee have any special role in regard to the items set out in subsection (2)(a)?

This is a drafting provision, the purpose of which is to provide clarity that the confidentiality framework applies to the commission in plenary session and any of its committees. Having regard to the fact that there may be circumstances in which a member of the commission might not be a member of a particular committee but may have been and would be privy to certain information, although not a member of the committee for the time being, he or she would be privy to that information. The provision has been drafted to ensure matters before the commission or any particular committee will at all times be confidential.

I refer the Minister to section 16(1) which deals with the procedures committee and its role in the case of applicants for judicial office. It states:

The Commission shall establish a committee to be known as the Judicial Appointments Procedures Committee (in this Act referred to as the “Procedures Committee”) to perform the functions assigned to that Committee under this Act and such other functions of the Commission as the Commission considers appropriate.

I do not see how applicants for judicial office would be dealt with by that committee.

Section 16(1)(a) allows for the functions of the procedures committee to be determined from time to time as the commission considers appropriate. Again, it is to provide assurance in drafting. I do not see it as weakening the Bill or as a loophole; rather, it is assurance to cover all eventualities.

Section 28(2) states: "In addition to what is provided for in section 27...". Will it be a criminal offence to infringe the confidentiality provisions set out in section 28(2)?

Yes. It is my understanding the criminal offences which apply to confidential information under section 27 will be applicable to the infringement of the confidentiality of certain proceedings under section 28.

Why then is the section being retained in the Bill? To me, it does not appear to add anything to section 27, as amended.

It does. It specifies areas of responsibility in the context of confidentiality, those areas being the proceedings of the commission and its committees, communications to and from the commission and its committees and communications to and from the commission or its committees to the office of the Minister.

I am sorry to be difficult, but where are the provisions of section 27, as amended, made applicable to section 28?

Have we not amended the section?

We are back on the section, as amended. Is that right?

It is a criminal offence under section 27, as amended, by virtue of amendment No. 69.

I see we have amended it. I do not want to be repetitive but I really believe this offence is non-investigable for the reasons I mentioned previously. Could the Minister explain with regard to subsection 2(b) why the ban on revealing any matter concerning the removal of a member is confined to the period of time before the removal takes place under section 20?

After the removal has taken place, the person is no longer a member of the commission and will not be bound by the same regulatory framework as members of the commission.

Subsection 2(b) concerns any matter concerning the removal of a member of the commission. The persons prohibited from dealing with that are people who are or have been members of the commission. Does it mean that somebody who was removed from membership of the commission is free to talk about that and the reasons he or she was removed after the removal but is not free to do so before his or her removal?

No, such a person would not be free to engage in any discussion of a public nature regarding his or her removal.

Before or after? It is of some relevance. If somebody is removed from the membership of the commission, one would presume he or she would be entitled to say afterwards why he or she was removed or why it was unfair that he or she was removed - or maybe not. Perhaps there is a total prohibition and they are supposed to go to their grave without comment about what happened to them and why they were removed from the commission. I would just like to know how that is supposed to work.

I will get back to the Senator about that point.

Is Senator McDowell happy enough that-----

I am unhappy because I am not getting clarity as to whether somebody removed from the commission is entitled to speak about it and whether people are entitled to speak about it before or after their removal. I am not getting clarity on this.

Such a person will not be entitled to disclose information regarded as confidential in respect of any matter before the removal has taken place. In the event that the removal has taken place, that person would no longer be a member of the commission.

It would then be somebody who is or was a member of the commission for subsection (1).

Such a person would, therefore, still be bound by the stricture regarding confidentiality.

That is the point I am coming to. If I am a member of this commission and am removed from it, am I free to talk about the fact that I was removed and how unfair it was, etc., after my removal?

That is a remarkable situation in that somebody could be removed from membership of the commission and be prohibited on pain of committing a criminal offence from discussing the reason he or she was removed from the commission.

Does the Minister wish to further clarify anything relating to Senator McDowell's concerns?

It is clear that such people would not be in a position to comment publicly on the matter of their removal or the procedure surrounding their removal, which would be confined to the business of the commission and, therefore, covered by confidentiality.

I do not find that satisfactory. First of all, a person who is removed should be at liberty to speak about the reason he or she was removed. If the other members of the commission have been party to the transactions that led to that person's removal, they should be at liberty to speak about it and defend themselves if the person removed is entitled to reveal what happened to him or her.

What is the basis for that view?

If Senator Conway indicates, I will call him.

My worry is that we seem to be providing that somebody could be removed from the commission and that it would be a criminal offence for him or her to discuss matters concerning the removal that took place before his or her removal.

Through the Chair, surely-----

Does Senator Conway wish to make a point?

Yes. Surely people would sign up to that principle ahead of becoming members of the commission so they would know that if they were to leave in a manner that was unsatisfactory, part of their duties involves them not being in a position to discuss it publicly.

I find that unsatisfactory and unnecessary. I cannot imagine that it would be satisfactory that somebody would be removed from the commission and would effectively commit a criminal offence if he or she explained to the public what had happened to him or her, so I am opposed to the section.

Question put:
The Committee divided: Tá, 23; Níl, 11.

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Hopkins, Maura.
  • 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.
  • Reilly, James.
  • Richmond, Neale.

Níl

  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Daly, Mark.
  • Daly, Paul.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • Marshall, Ian.
  • McDowell, Michael.
  • Nash, Gerald.
  • Ó Ríordáin, Aodhán.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Ivana Bacik and Michael McDowell..
Question declared carried.
SECTION 29
Question proposed: "That section 29 stand part of the Bill."

This is the last section in Part 4. Curiously, it looks like an insignificant section but it has interesting aspects. One relates to the purpose of the section, which is to oblige the commission to keep a record of all applications made to it under section 39 and its deliberations and recommendations regarding appointments to judicial office.

Several issues arise in this regard. Obviously, there is nothing wrong with the commission keeping a record of all applications made to it under section 39. We will be coming to section 39 when we get to the later parts of the Bill - there are five parts to come. One unusual feature of this statutory duty imposed on the commission is that in addition to its deliberation and decision, which would take the form of a recommendation, it has to record its deliberations as well. That is an interesting point. What are its deliberations? In that context, what amounts to a proper record of deliberations?

Let us suppose there is a discussion about the suitability of a particular candidate and whether he or she should or should not be recommended. Is what each person said in that discussion to be regarded as part of the commission's deliberations? Are we imposing on the commission a strong duty not merely to say who it recommends and to keep a record of this, but to go the whole way and record its deliberations? The term "deliberations" needs to be considered.

Let us suppose I was an applicant for a judicial position and my application was discussed and I was found suitable or unsuitable. The process whereby I was determined to be suitable or unsuitable would have to be minuted. This would include the conversations and a record of the persons voting this way and that way for my inclusion on the shortlist in the case of a vote or a lack of consensus. From one view, the deliberations of the commission go further and require that the position taken by each person for or against any particular candidate and the basis of that judgment formed by each person, if it is articulated, should be recorded as well. I find the idea that the commission should keep a record of its deliberations a particularly onerous obligation to be imposed. I have asked myself to what end, cui bono? Who will look at these deliberations? Once the shortlist has come out, will someone go back afterwards and ask why the commission arrived at that particular shortlist?

Why should there be a record of the reasons they came to a particular short list which would necessarily involve reasons some people were not on it and others were? Who will consult the record and who will have the right to consult it? That is the big puzzle. If the two previous sections, as amended, are enacted eventually, these deliberations will be confidential and it will be a criminal offence to disclose them, except as permitted by the two previous sections, as amended. What I find difficult to understand is why it would be the case that the commission would be under a statutory obligation not merely to record who had applied to it and whom it had recommended but also its intervening deliberations. If that statutory duty is cast on it, it seems that it must serve some purpose. Given that there will be no accountability on the part of the commission for its deliberations, what purpose will the recording of deliberations serve?

The second thing that occurs to me about section 29 is that it is the first inkling we have had in the debate on the Bill so far of a distinction in procedure between applications made under section 39 for appointment to judicial office and a different, much narrower group of offices to which section 44 applies. Section 44 deals with vacancies in the judicial offices of the Chief Justice, the President of the Court of Appeal and the President of the High Court. The commission is obliged to keep a record of "expressions of interest received by it under section 44(1)". It then states, "and the particulars referred to in that section". In that context, what are the particulars referred to? They do not leap off the page as a particular category. When one looks at section 44(1), there do not appear to be particulars which require recording. What is meant by "particulars"? In case it is argued that the phrases "deliberations" and "recommendations" are more or less the same, I draw the Minister's attention to the provisions of section 44(4) which distinguish between deliberating and making a recommendation. I ask him to address these issues.

Section 29 reflects good practice across public bodies. There is a requirement that records be kept. As far as it is concerned, it will be for the commission to determine what those records will comprise. It is regarded as proper practice for a body of this type across the public sector. Public bodies are required to keep appropriate records, including minutes of meetings and important particulars about the manner in which certain decisions are arrived at. Ultimately, the commission will determine what records it should keep. I refer the Senator to section 53(5)(g) which stipulates requirements in the matter of keeping of records, referring to "each step of the selection procedures undertaken and the retention of documentation supplied to the Commission" and the need for good standards of communication, a matter with which we dealt. They include records incorporated in section 29 that would accord with good practice across the public sector, including minutes, records of deliberations, recommendations and issues pertaining to appointments.

Section 29(b), as the Senator, rightly, points out, relates to another method by which applications and expressions of interest will be put forward for three senior positions, those of Chief Justice, President of the Court of Appeal and President of the High Court. There are issues pertaining to these appointments that may be the subject of further amendments, but at least we will have an opportunity to discuss them. Section 29(b) merely facilitates the keeping of records under section 44(1). I do not see any mystery. It is important in the context of good practice. I emphasise the importance of the keeping of records and the retention of documentation, which is standard practice across the public service and within the private sector.

Does the Minister consider that the proceedings of the commission and its decisions should be open to judicial review? In that context, will the keeping of records of deliberations be of assistance? Will discovery lie against the commission if there is a challenge to the validity of the decisions or recommendations of the commission?

The normal rules of discovery would apply. There may well be circumstances where decisions may be challenged. One of the challenges could well be by way of an application for a judicial review of a decision of the commission.

That is the point. Therefore, it is not a matter for the commission to decide what it will keep a record of.

Section 53, which concerns the keeping of records, deals with the preparation of:

(a) a statement setting out the selection procedures, and

(b) a statement of requisite skills and attributes.

Each of those statements has to be approved by the commission. Subsection (5) states:

In the preparation of the statement referred to in subsection (1)(a), the Procedures Committee shall, amongst other matters, have regard to-

[…]

(g) the need for the keeping of records in relation to each step of the selection procedures undertaken and the retention of documentation supplied to the Commission in the course thereof.

That is for the purpose of preparing a statement under that part of the Act.

This is a stand-alone provision which states that the commission shall - it is a mandatory duty - keep a record of its deliberations in addition to applications and recommendations. It occurs to me that if, as the Minister accepts, the decisions of the judicial appointments commission are themselves susceptible of judicial review, on discovery it would be possible to find out the deliberations of the commission in respect of individual candidates. It is not a very happy situation for people who apply, or for building up the confidence of those who apply, that somebody can apply for discovery and, for the purpose of making a case of bias or failure by the commission to follow its own criteria in making recommendations, may be able to sift through the records that are provided and then try to build a case that, say, it is not appointing enough women or is appointing too many middle-class people as opposed to other people to the commission, or whatever, and is failing to uphold its statutory duty, which is to take into account the need for diversity or something like that.

In that context, is it wise to require the commission to keep a record of its deliberations because deliberations are distinct from the decision to make a particular recommendation? If they are going to be recorded and if there is an independent, free-standing statutory duty to record them, I keep asking who is going to look at these records afterwards. Why are we requiring that the collective corporate thought process as to why one person should or should not be on the shortlist, rather than another, should be the subject of a record? I wonder about that.

As there is a distinction between section 39 and section 44, will the Minister indicate whether it is his intention to keep in the text of the Bill the requirement that all sitting judges of the superior courts who want to be considered for promotion from the High Court to the Court of Appeal or from the High Court and the Court of Appeal to the Supreme Court apply to the judicial appointments commission. This is something that the Minister at one stage indicated he was open to persuasion on, that is, that existing superior court judges should not be required to engage in some kind of beauty contest in front of a group of others. In my view, it has serious implications for their independence if they are looking over their shoulder at a group of laypeople to whom they must make a case for their own promotion. Is the Minister still sticking to the proposition that existing members of the Judiciary must all make applications, be interviewed, provide character references and submit evidence of their suitability to be appointed to higher judicial office? If it is still the Minister's intention to keep the distinction between section 39 and section 44, it raises questions about the whole architecture of this legislation.

On the second point raised, there are a number of later amendments in this regard. I refer in particular to Senator McDowell's amendment No. 90, which will give us an opportunity to discuss at that stage, which is a more appropriate part of the Bill, the issues surrounding those amendments. I will be happy to engage at that stage.

On the first point in regard to the retention of records, including deliberations as well as recommendations, there is no more here than the adoption of what can be regarded as best practice to expect that a commission of this type and, in this case, this commission, would not only record its deliberations but keep a record of those deliberations for no other reason than to accord with accepted practice across the board.

I appreciate what the Minister says. However, it occurs to me that, if we adopt the current wording of section 29, we are, in effect, approving in advance the distinction between certain senior judicial offices mentioned in section 44 as it now stands and all judicial offices insofar as section 39 applies to them. I am very much opposed to section 44 as it stands and the requirement for all judges to submit their applications under section 39. The Minister well knows the grounds on which I am opposed to that. I think it is nobody's business at all on the judicial appointments commission, and I use those words very carefully, as to who the Government, in its wisdom, decides to elevate from the Court of Appeal or the High Court to the Supreme Court, whereas I have no problem with the Attorney General of the day sounding out the Chief Justice, the President of the Court of Appeal or whoever else about what kind of persons they need and how they think Joe Bloggs or Josephine Bloggs would function as a member of a collegiate court of that kind. I have no problem with that; it is fine. However, I strongly object to, and have always been opposed to the idea of, the Judiciary having a significant say in the promotion of judges from the High Court to the Court of Appeal, or from the High Court and the Court of Appeal to the Supreme Court.

I do not want to stray into things we will be discussing later.

However, I strongly believe that we cannot allow the Judiciary to become self-selecting by giving it the keys to the gate in terms of access to promotion within the judicial system. That is one thing. I believe even more strongly that it would be completely inconsistent with the function of Government if, in the case of a vacancy on the Supreme Court - such vacancies are very important in terms of the balance of that court, its collective outlook, its character and its composition - it was unable to appoint somebody because he or she was a liberal or a conservative, pro-European or moderately anti-European, or socially conservative or whatever. These are issues which are entirely for the Government to deal with. I do not see how the opinion of seven other people, some members of the Judiciary and a member of the Bar Council, expressed in a shortlist of three names, would be of any assistance to the Government if entirely different criteria are used in arriving at the composition of that shortlist. If, for example, the shortlist is affected by the obligation to effect gender balance, social diversity or whatever, the Government may, in approaching a vacancy on the Supreme Court, simply say that it is not interested in whether the particular person it has in mind is a man or a woman and that it is much more concerned about his or her attitude on issues of social liberalism or social conservatism.

Frankly, a shortlist from the group of people on this commission telling us that it has selected three people on entirely different criteria is of no assistance to us at all. I am extremely sceptical in respect of judicial promotions and in respect of lay people and judges in combination making shortlist recommendations on the basis of criteria set out in this Act. The Government must be free to choose whomever it wishes and must not be assisted by the judicial appointments commission's shortlist, which is designed to make it embarrassing for the Government to ignore the people on the shortlist because it would then have to signal to the public in Iris Oifigiúil that the person it is appointing to the Supreme Court was not actually recommended by the commission. People who read Iris Oifigiúil, and there are such people, especially intrepid reporters, will be able to work out whether somebody was or was not recommended by the commission by looking at the notice in Iris Oifigiúil. If a particular lawyer or judge was selected for appointment to the Supreme Court by the Government, it would surely be a shadow on that person's appointment if it appeared, from careful examination of Iris Oifigiúil, that he or she had not been shortlisted by a body on which the Judiciary and lay people were represented and which was charged with drawing up a shortlist of recommended persons.

Going back from that general proposition to this particular proposition, I know that the Minister has said that when he comes to my amendment, No. 90, he will engage with me on the subject, but it is not very satisfactory to think that we will engage when we get to that section of the Bill when this particular provision will have already cemented into place the distinction between section 39 and section 44 as they are currently constituted. We will be on autopilot, so to speak, after that. I ask the Minister to elaborate further on his thoughts now, before he asks us to make provision for section 44, as to whether he is happy with the present terms of section 44 or whether he is really open to amending it to make it so that promotional appointments in the superior courts are not covered by the Act.

I note with interest that Senator McDowell warns himself against straying into further amendments and then proceeds to do so for a period of approximately 15 minutes. However, on the point at issue here in respect of the section under discussion, we are on Committee Stage. In the event of the Bill being amended substantially later, we can of course revisit the sections under discussion on Report Stage. Having been invited to make comment on later amendments, let me remind Senator McDowell of my disposition earlier in the legislation's progress, on Second Stage in the Dáil, when the Bill was very much reflective of Government policy and when I had in mind the existence of a senior judicial appointments committee which would deal exclusively with the three senior appointments of the Chief Justice, President of the High Court, and President of the Court of Appeal. Senators will be aware that concept did not survive Committee Stage in the Dáil. I attempted to garner sufficient support on Report Stage in the Dáil for the reintroduction of such a body, but that again was defeated. I indicated on Second Stage here in the Seanad that I was disposed towards looking at a type of configuration that would deal with the three top appointees for judicial office. I note that Senator McDowell has included that in his later amendment and has, in fact, broadened it considerably. I am reasonably favourably disposed towards it. I hope that we can invite other Senators to participate in the debate at that stage. I do not want to pre-empt a debate for later on but I assure Senator McDowell that in the event of an amending formula being found later in the course of Seanad deliberations on the Bill, we can revisit the section under discussion now at the stroke of a pen, as the Senator well knows.

I am glad to hear that hint of a hint that things might not be set in stone. Going back to what the Minister said about the passage of the legislation through the Dáil and what happened on Second Stage, Committee Stage, and Report Stage, I was just trying to work out how it was that he was defeated on these matters. Who or which parties were involved? In particular, did Sinn Féin support the Minister in this matter in the Dáil? Were Fine Gael and Sinn Féin defeated on this matter or was it a matter on which Sinn Féin diverged from the Government's proposals?

It was the combined Opposition.

Does the Minister want to clarify for Senator McDowell?

Was Sinn Féin part of the combined Opposition which defeated the Minister on this matter?

That could well have been the case. I would have to check the record.

I am just trying to work out what the prospects of getting agreement in this House are if the same attitudes persist there and here. I do not want to discuss the finer details of what happens in the Dáil, because it is a separate Chamber.

There was not sufficient support for it on Committee Stage in the Dáil.

My recollection was, however, that I did not enjoy the support of other parties, including Sinn Féin.

Can I ask the Minister again, without trespassing excessively on what the other House did, whether the question of promotional appointment was dealt with in the way that I am proposing to deal with it?

No, but I want to make the point on promotions here that there is a school of thought that is of the view that all appointments to the Supreme Court and the Court of Appeal should be by way of judicial promotion. I do not subscribe to that view. There are very good examples where successful, expert lawyers were appointed directly from the well of the Law Library or indeed from the other arm of the profession directly to the High Court or indeed to the other court, so it is not exclusively the preserve of sitting judges. I would be anxious to maintain that.

That is a point of interest because I agree completely with the Minister that it would be a mistake to say that the Supreme Court is off limits to a direct non-judicial appointment. In general terms, most people and politicians would agree that it is probably good that the Supreme Court consists to a large extent of people who have judicial experience rather than people who come in with no judicial experience other than as an advocate or whatever. As the Minister has said, and I completely agree with him, there have been some stellar appointments directly from the practising legal profession to the Supreme Court without any intermediate judicial office. Indeed, there is such a person there now. Nobody whom I would respect could query the wisdom of making such an appointment in the circumstances that have happened in the past. I do not want to go too far-----

-----and we are straying.

We are on section 29.

What I am saying is that the expressions of interest under section 44-----

We have 63 sections in total, so we will try an deal with section 29 now.

We are halfway there.

We are on section 29 and what I am worried about-----

We are nearly halfway there.

-----in this section 29 is that we seem to be cementing into the Bill a distinction that I am very unhappy with, that is, the expressions of interest procedure that goes to this commission and the other mode of appointment under section 29. Does paragraph (b) of section 29 also contain an obligation to keep a record of deliberations, because paragraph (a) does under the section 39 procedure? It does not seem to me necessarily to be the case under section 44(1).

I know it may be difficult to answer but will the Minister indicate what are the particulars referred to in paragraph (b) as being particulars referred to in section 44?

It seems to me that the burden in paragraph (b) is somewhat lighter than in section (a) in that it does not include specific reference to deliberations on particulars. The particulars of the expressions of interest would be the persons involved and the accompanying documentation that might be included with such an expression.

I agree with the Minister's estimate of the distinction between (a) and (b). It is strange that in the context of an appointment to judicial office under section 39, there is an obligation to record the deliberations, but when it come to an office for which there is to be shortlist of three, based on expressions of interest, at the moment being the Chief Justice, the President of the Court of Appeal, and the President of the High Court, there is to be no record of deliberations kept. That is an interesting anomaly in the Bill. The Minister and I seem to agree that the distinction is there between the two where one is lighter in the record-keeping obligation than the other. Is that accidental or deliberate? If it is deliberate, I would like to know the basis of the policy distinction?

The actual expression of interest and the particulars that would accompany such an expression would appear to fulfil the obligation under section 29(b) and not the more onerous requirement of a greater level of deliberation in 29(a). It may well be in accordance with the office. In any event, should the Seanad decide on a later Stage to amend the legislation, we will be striking out this requirement of 29(b).

Will the Minister deal with the other question and his advisers may be able to assist? What are the particulars referred to in that section?

They may be any accompanying particulars that would be included with the expression of interest for a position, for reasons as stated, being accompanying particulars that would be included with the letter or note of interest. It could well be that there may be no further particulars other than the expressions of interest.

I am anxious, Acting Chairman, to make progress with this Bill. We have come to the end of Part 4 and we have a number of Parts still to deal with. Will he put this section to the House, please?

Question put:
The Committee divided: Tá, 24; Níl, 10.

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Devine, Máire.
  • Gavan, Paul.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Domhnaill, Brian.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Richmond, Neale.
  • Warfield, Fintan.

Níl

  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Daly, Paul.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • Marshall, Ian.
  • McDowell, Michael.
  • Nash, Gerald.
  • Ó Ríordáin, Aodhán.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Kevin Humphreys and Michael McDowell..
Question declared carried.
SECTION 30
Question proposed: "That section 30 stand part of the Bill."

Section 30 is an important enough provision of this Bill because the Judicial Appointments Advisory Board that currently exists has no permanent bureau, office or infrastructure of a governance kind attached to it. It is my very strong view that the Judicial Appointments Advisory Board's system is far preferable to this one and if it needs a slight tweaking here or there, it will be far more effective than this one.

The Minister has stated that he believes his original estimate that it will cost €1 million each year to have the judicial appointments commission function was perhaps too pessimistic from the point of view of the Exchequer and he hopes it might be closer to €500,000 per year. That is significantly more money than is currently spent on the Judicial Appointments Advisory Board. I cannot see for the life of me why we need a complicated bureaucratic structure involving not merely the commission, which is just an ad hoc group of people who meet from time to time, but now we are being told we need to set up a permanent institution, which will have permanent staff attached to it. It is quite unnecessary.

We have already had a discussion in the course of Committee Stage about whether the judicial appointments commission will require office accommodation, the word "office" in this case being with a small "o". That very much depends on how many people are to be attached to it. As far as I can see, the commission will need to have meeting rooms as it will not meet in an hotel or whatever. Unless it outsources to the private sector, it will also have interview rooms and committee rooms. In addition, it will have staff. If, as the Minister indicated, the commission will not be located in the same office as the Courts Service, one would imagine that it will have receptionists, telephonists and all of the usual panoply that goes with the establishment of a separate office. That is a very significant expenditure to add to the public service bill.

Section 30(1) states that the office is to "assist the Commission in the performance of its functions", while section 30(2) states the Office "shall be funded by moneys provided by the Minister with the consent of the Minister for Public Expenditure and Reform." Section 30(3) states the office "shall be under the management and control of the Commission and subject to the direction of the Director." We know that there to be a full-time position of director, under the commission, effectively to do day-to-day direction of the staff of the office. Section 30(4) states the commission "may, with the consent of the Minister for Justice and Equality given with the approval of the Minister for Public Expenditure and Reform, appoint such and so many persons to be members of the staff of the Office as it may determine." Prima facie, what we are dealing with here is a decision by an independent body as to what its staff requirements are and that filling those staff positions will be subject to obtaining the consent of the Ministers for Justice and Equality and Public Expenditure and Reform. We should have a very clear picture of what we are authorising the commission to do. How many people is it intended to have appointed under section 30(4)?

I believe the Minister told us on the last occasion the proposed seniority in public service appointment terms of the director of the commission. I will be glad to hear him state again what kind of job this will be. Will it be at principal officer, assistant secretary, assistant principal officer level or similar?

I am very reluctant to intervene.

Senator McDowell is asking me to state things again. We are now on the 41st hour of Committee Stage. My contention is that we dealt with all of these issues in sections 10 to 12, inclusive. Senator McDowell, in asking me to restate the position, is acknowledging that. I riled Senator Bacik earlier.

I very much regret doing so but I have to intervene again and ask the Acting Chairman to deal with the whole issue of rehashing, repetition and asking me to restate answers I gave on a previous occasion.

If I may, since I was named by the Minister-----

Yes, the Senator was named.

I agree that the Minister riled me earlier.

I stand over the statement that I certainly believe I was being interrupted far more frequently than other speakers and that it was unfair, given that I had not spoken on the section before, nor had I spoken very much on the two immediate sections, although I have been following the debate throughout. It is an important section and was an important point to make. I had received certain legal advice that I wanted to read as it had not been read before. I was, therefore, somewhat riled. I am glad the Minister has said it and note that he withdrew the remark about filibustering, in which he suggested I had been engaged, about an hour ago. We are trying to be constructive. Senator McDowell and I have pointed out that a tweaking and amendment of the JAAB legislation or some sensible reform of the judicial appointments process would have met with cross-party support in this House. It is unfortunate that that is not what we are seeing. Instead, we are going through a Bill that is very cumbersome and raises difficult, complex and questionable points that we are trying to address in a constructive manner.

Having just taken the Chair for the second time, I assure the Senator that, as has always been the practice when my colleagues and I have been in the Chair, all Members will be allowed to make any relevant point they believe needs to be made and I will not prevent them from doing so. If the Minister believes an area has been covered and does not wish to refer to it again, it is open to him to act accordingly. I understand this is a new section and that we have just commenced discussion of it. Senator McDowell was making a point on it. If it is ground that has been covered before, I will allow him to do so, provided he gets to a point that is relevant to the section.

I thank the Chair for the clarification.

Let me follow up with one brief point about what the Chair has said. I certainly did not impugn the chairing of a previous debate-----

-----but it did appear to me and others that I was being interrupted much more frequently than other speakers. I intervened to point that out.

I am certainly not making any such reference.

To be honest, I know that the Minister did say it, but I have to confess that I have forgotten what rank the director will be. If it is too much for him to say it again, so be it. I will consult the Official Report later to see what the answer was.

There is a second point: the terms and conditions of service of a member of the staff of the office shall be determined by the commission with the consent of the Minister and the Minister for Public Expenditure and Reform. Is it the case that the terms and conditions of a member of staff will be tied to those of public service grades? Will the commission be free to employ part-time staff or hire whomsoever it wishes on whatever terms it wishes? Will public sector pay policy be imposed by the Minister for Justice and Equality and the Minister for Public Expenditure and Reform? I note that a member of staff of the office is supposed to be part of the Civil Service of the State. That is appropriate and I have no problem with it. However, I have to ask whether somebody appointed under this section will have longevity of tenure on the same terms as a public servant. Will he or she be there until the age of 65 years if he or she so wishes, or whatever the retirement age will be, or will he or she be on a short-term contract? It is a matter of interest. This quango should be the subject of a repeal as soon as possible because it is an expensive mistake. I would not like a load of people to be appointed to it with the expectation that they have jobs for life.

I take that as a statement of intent on the part of the Senator that he wants to be in the Dáil at the earliest opportunity to exercise his power to support the repeal of the legislation. In the meantime, I have to say again that this is an important pillar of Government policy. Without repeating issues to which reference has been made by me and others, it is anticipated that the position of director will be at principal officer - higher - level. A small staff is envisaged. The reason for the lower estimate at this point in the debate than that initially given is the Bill was amended considerably in the course of its passage through the Lower House, with particular reference to the removal of a number of committees. I will repeat that, as far as the comparison between the new commission and the Judicial Appointments Advisory Board is concerned, we are not really comparing like with like. The staffing costs of the JAAB are estimated to be in the region of €50,000 per year, but much of its budget comes directly within the Courts Service Vote. In this case, the commission's budget will come within the general justice Vote.

On staff numbers, the issues of contracts for staff and whether they will be part-time or full-time will be determined by the commission as envisaged under section 30(4). It is not really possible for me at this stage to be prescriptive in the actual operational cost down to the last euro. I cannot say for certain where the office premises will be located or how much they will cost, but I point to similar bodies set up under enactments of the Oireachtas in recent years. I refer, in particular, to the Legal Services Regulatory Authority. I also note the importance of the consent of the Minister for Public Expenditure and Reform, particularly in respect of the terms and conditions of service of a member of staff and the need to ensure staff costs in this body will be similar to those in other public service bodies.

The comparison to the Legal Services Regulatory Authority is useful. I would like to know roughly how much it costs the State per annum to run that body. I think it now has its office accommodation and is up and running and carrying out various functions after quite a slow start, for reasons which are not the fault of the members of the body.

I do not have the figure to hand, but it is my understanding new office premises have only recently been acquired.

The body is only now commencing its duties in accordance with the legislation. However, I am happy to forward the Senator a note on the start-up and running costs for the last 12 months. I assume this information is in its annual report but I do not have that to hand.

I thank the Minister. Section 21 makes specific provision for accountability of the director to the Committee of Public Accounts. Will the director be an Accounting Officer for the purposes of public finances or will the Secretary General of the Department of Justice and Equality be the Accounting Officer in respect of this body?

The Secretary General of the Department will be the Accounting Officer.

That is interesting. Section 21 provides for an elaborate system of accountability by the director of this body to the Committee of Public Accounts. It states that whenever required to do so in writing by the PAC, this body shall give evidence to that committee in regard to the regularity and propriety of transactions and the economy and efficiency of the commission and various other matters. Is it not unusual that the person who is by statute accountable for this body to the Committee of Public Accounts will not be its Accounting Officer and that the Secretary General of the Department of Justice and Equality will be the Accounting Officer for the commission that is being established by this legislation?

Presumably, there will be a close working relationship between the Secretary General of the Department and the director. From my reading of section 21, which deals with the responsibilities and functions of the director, it would appear that there will be a close working relationship between the two and the director has specific responsibility in regard to the Committee of Public Accounts and the Comptroller and Auditor General.

I am at a loss to understand why when section 21 sets such an elaborate accountability duty on the part of the director of this body, a policy decision has been made that the Secretary General of the Department of Justice and Equality will be the Accounting Officer. Is there a particular reason whoever occupies the position of director should be amenable in such an elaborate way to the PAC yet not be the Accounting Officer for this commission?

This is standard practice and not a novel arrangement within this legislation. I assume that this arrangement applies across similar bodies.

One of the consequences of the Secretary General of the Department of Justice and Equality being the Accounting Officer is that he or she will hold the purse strings of the commission in the hands of the Department. I recall that when the HSE was being established the then Tánaiste and Minister for Health and Children, Mary Harney, was very concerned at the Department of Finance's insistence that the Secretary General of that Department should be the Accounting Officer for the HSE. She was adamant at the time that the Accounting Officer should be the chief executive of the HSE and that the purse strings should not be held by the Department of Health and Children. What advantage is there in having section 21 and then providing that the Accounting Officer will be the head of the Department of Justice and Equality?

The Senator is speaking about different bodies in terms of overall budget. It is envisaged that this commission will have an annual operating budget of €500,000, or thereabouts. The close working relationship between the Secretary General of the Department of Justice and Equality and the director in respect of the accountability of the director to the Committee of Public Accounts will ensure that there is an appropriate pathway of accountability and engagement with the Houses of the Oireachtas through the Committee of Public Accounts.

While not wishing to stray ahead, the next section references the Public Appointments Service, PAS, being the body with responsibility for the selection process for the office of director. Will the PAS oversee the recruitment of staff by the commission under section 30?

The recruitment of staff will be, in the first instance, a matter for the commission. However, staff complement, whether positions will be full time or part time and the rates of pay and conditions applicable will be matters for the commission in conjunction with the Minister for Public Expenditure and Reform. The selection process in respect of the director will be a matter for the Public Appointments Service. It is not envisaged that other positions in terms of the staffing complement will be recruited by reference to the Public Appointments Service.

Will the staff be existing public servants who will be seconded into the office or is this legislation providing for a body which is independent of Government to recruit people other than through the Public Appointments Service to be civil servants? It would be quite an innovation to allow a group of people who are independent of Government to select people to be civil servants of the State.

The designation of an appropriate level of staff to deal with the projected workload will be a matter for the commission. As I mentioned earlier in respect of the Department of Justice and Equality Vote, it is a matter of law that the Secretary General of that Department would be the Accounting Officer. It is standard for bodies to provide an accountable person to liaise from time to time with the Houses of the Oireachtas and, in particular, the Committee of Public Accounts.

This is a strange situation. As I understand it, the commission is by statute independent in the discharge of its functions. The Minister is now saying that the Secretary General of the Department of Justice and Equality is its Accounting Officer, even though its director is accountable to the Committee of Public Accounts. This is somewhat anomalous. However, as it is 7.30 p.m. we can tease this out another day.

Progress reported; Committee to sit again.

When is it proposed to sit again?

Maidin amárach ar 10.30.

The Seanad adjourned at 7.30 p.m. until 10.30 a.m. on Thursday, 15 November 2018.