Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

SECTION 30
Question again proposed: "That section 30 stand part of the Bill."

Senator McDowell was in possession. If the Senator has completed his contribution, I will call on the Minister to reply to the debate on section 30.

I reported progress yesterday-----

On a point of order, before we start, I assume, in accordance with the revised order of the House, that we are sitting until 10 p.m.

Hear, hear. Absolutely.

There is no revised order. My order is that we shall adjourn at 5 p.m. so we have 28 minutes.

No, we are sitting until 10 p.m.-----

The House is due to rise at 5 p.m.

-----in order to make up for lost time.

No, we are sitting until 5 p.m. I call Senator McDowell.

We were discussing section 30 when I reported progress yesterday. It occurred to me overnight that it is all very well to talk about €500,000 per annum being the increased cost of this body, but I ask Senators to consider that if this is to become a permanent or semi-permanent part of the budget of the State, it is equivalent, in terms of annual interest servicing, to an increase in the national debt of approximately €25 million. If we could put the €500,000 which is proposed to be spent on what I consider to be an extremely wasteful project into debt-servicing or whatever, we would be able to retire debt to the amount of €25 million. This is assuming that we will not be running surpluses. We never seem to get to a budget surplus. Perhaps this year will be the year we hit a budget surplus again. Before we blithely add a sum of this amount to achieve nothing worthwhile, however, we should pause and reflect on it.

I will not detain the House much longer on this matter except to make the following point. In recent times this Government has made excellent appointments to the superior courts of this country, on which I congratulate the Minister and his colleagues. It did not need a judicial appointments commission to do so. Putting excellent people on the Bench does not require the establishment of a quango of this kind. Unless it is suggested, or the excuse is, that what is proposed is insurance against a Government of lesser discernment putting less meritorious candidates on the Bench, then this is an entire waste of time and money. The annual increase of €500,000 may seem small in terms of the larger picture but it is the equivalent of adding a very significant amount to the national debt or else not retiring the equivalent amount from our national debt. I very much regret that this wasteful quango is being established and that the office proposed in section 30 will absorb taxpayers' money, which will be thrown away. We have excellent judges, we are appointing excellent judges and we do not need this system to assist the Government in its choice of judges. This Government has shown, as has the Minister, who is the person who proposes individual members to the Cabinet under current procedures, that we are capable of excellence - not merely excellence in terms of stellar lawyers, but also diversity, men and women, people who are top-class lawyers and people who are perhaps not recognised but equally skilful and who have more modest practices. All this is possible without the establishment of this quango.

The Minister keeps saying that this is an important part of the Government's legislative programme. That is only because one member of the Government thinks it is important. It is not important if we look at it in the broader sense, that excellent appointments can be made and are being made without it. I spent two and a half hours waiting for this debate to begin. The Government had other priorities regarding the House's time. If that is the Government's way of conducting business, it is fine by me. However, if the Bill is regarded as important, the Minister, Deputy Ross, is the only member of his Independent Alliance who regards it as such. The vast majority of Fine Gael people I have met resent this Bill and think it is a waste of time. The great majority of Members in both Houses-----

And the general public.

-----think it should not go further, yet we are throwing this money away.

The Senator is straying into general-----

He is making sense.

I will keep strictly to section 30 and the proposed judicial appointments commission office. It is not proposed to be a physical office because subsection (1) states, "There shall be attached to the Commission an office to be known as the Judicial Appointments Commission Office (in this Act referred to as the "Office") which shall assist the Commission in the performance of its functions." It will obviously be composed of people and will not involve a building or anything of that nature. I wonder about this because we have already had reference to persons, consultants and advisers. Is this office in addition to these or will it consist of those persons, consultants and advisers? What will be the relationship between them? Is this an additional element of personnel? Subsection (2) states, "The Office shall be funded by moneys provided by the Minister with the consent of the Minister for Public Expenditure and Reform." Should this not be a clear budget? How much is involved? Are there any limits at all on it? It seems very vague.

Subsection (3) states, "The office shall be under the management and control of the Commission and subject to the direction of the Director." That is pretty bland and is perfectly all right. I have no problem with it at all. Subsection (4), however, states, "The Commission may, with the consent of the Minister 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." That is enormously wide. It is really swingeing. Listen to it - "such and so many persons to be members of the staff ... as it may determine". One could have thousands of them. It just seems to me to be absurdly wide. Then we have subsection (5), which states: "The terms and conditions of service of a member of staff of the Office shall be determined by the Commission with the consent of the Minister and the Minister for Public Expenditure and Reform." I presume this is a kind of trade union thing as it refers to the pay and circumstances of employment in the office and so on. That is fair enough. Subsection (6) states, "A member of staff of the Office shall be a civil servant in the Civil Service of the State." How long are they expected to last? Does this concern pension rights? Will they be already covered in terms of secrecy by the Official Secrets Act and so on?

I have asked a few questions but I have no significant difficulty with the section except for the vagueness of the terminology in it.

Does the Minister wish to respond?

I will not engage in repetition but I assure Senators this is a Bill that is proceeding through the Houses in accordance with the priority given to it under the programme for Government. It is reforming legislation that will improve, modernise and update the manner in which members of our Judiciary are appointed, bearing in mind the need to honour the Constitution and the independence of those offices. I say that in response to Senator McDowell.

To Senator Norris, let me repeat that the office will be small and it will be headed by the director appointed by the commission following a selection process undertaken by the Public Appointments Service. The director will have a Civil Service staff of two or three persons. They will be appointed by the commission in accordance with this section. The staffing costs for the support office under this part of the Bill will be for a small number of civil servants and the director. That will be in the region of €300,000, to which will be added non-pay costs, which should bring the annual cost to an estimated €500,000.

Question put:
The Committee divided: Tá, 20; Níl, 8.

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Donnghaile, Niall.
  • Richmond, Neale.
  • Warfield, Fintan.

Níl

  • Bacik, Ivana.
  • Daly, Mark.
  • Humphreys, Kevin.
  • McDowell, Michael.
  • Nash, Gerald.
  • Norris, David.
  • Ó Ríordáin, Aodhán.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Michael McDowell and David Norris..
Question declared carried.
SECTION 31
Question proposed: "That section 31 stand part of the Bill."

The Minister has indicated that the proposed appointee would be somebody who would be remunerated at the level of a principal officer in the Civil Service. That is, I suppose, a reasonable salary range to nominate for this position, but if one looks at subsections (2), (3) and (4), then we have a slight difficulty because subsection (2) states: "The Director shall hold office for such period not exceeding 5 years from the date of his or her appointment as the Commission shall determine." The first thing is that we are saying that the director can be appointed for a period of less than five years, which would be a very temporary kind of appointment in the circumstances. If one is going to give somebody a senior position of this kind, I do not see why it should be open to the commission to say it would give someone a couple of years or three years to carry out one's function.

Second, subsections (3) and (4) have the effect of saying that if one is appointed for five years one can be appointed for a second period, not exceeding five years, but the total entitlement to hold the office is ten years. One of the problems with these kinds of temporary appointments is that it seems to me they have the effect of frightening off everybody who is not being seconded from some position in the Civil Service because nobody else in the private sector could apply for a job of such seniority and be effectively told after five years that he or she is gone.

It seems to me that this is designed to effectively frighten off people who are not already public servants, who might be seconded to act as director of the commission. Bearing in mind the high hopes surrounding the Bill and that we are told this will be a game-changing new institution, I wonder whether in all of the circumstances subsections (2), (3) and (4) are not going to have the effect of frightening away everybody except a career civil servant who will be shifted sideways in and out of the position for such term as the commission suggests.

Whereas section 31 might on the face of it appear to be a fairly standard provision, in the context of this particular institution I am trying to work out in my own mind what would happen in the event of a lawyer or administrator who was interested in taking up this position. Let us suppose it was a woman or man in her or his 40s or 50s and she or he is given a five-year term with no guarantee of reappointment. Unless one is a public servant, and teachers are one group who can be-----

I must halt Senator McDowell there. We have reached 5 p.m. and I must ask that progress be reported.

As we adjourn, let it be recorded that we are on section 31 and-----

-----Senator McDowell is speaking. There are 62 sections in the Bill and we are half way there. We are on the 42nd hour-----

I must correct the Minister. There are 63 sections in the Bill.

Then, unfortunately, we have not reached the halfway stage. We are on the 42nd hour of debate. In that context, I ask Senator McDowell to report progress.

I have already asked Senator McDowell to do that.

I will happily do so but I want to put on the record that I-----

I do not want Senator McDowell delaying.

I made myself available for a three-hour debate this afternoon.

I want to make the point in response to-----

I appreciate Senator McDowell's point but-----

I will finish on this, if I am allowed to say one sentence. I made myself available.

The Government decided to talk this matter out by having the Greyhound Racing Bill 2018 spill over until 4.35 p.m.

I take issue with that.

That was out of order.

(Interruptions).

I am not allowing any discussion. We will obey the Order of Business, as agreed. That is the end of the discussion.

Progress reported; Committee to sit again.

When is it proposed to sit again?

At 2.30 p.m. on Tuesday, 20 November 2018.

The Seanad adjourned at 5.05 p.m. until 2.30 p.m. on Tuesday, 20 November 2018.