Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

SECTION 31
Question again proposed: "That section 31 stand part of the Bill."

When the debate adjourned on 15 November, we were discussing section 31 and Senator McDowell was in possession. I invite the Senator to continue.

I have said a fair amount about section 31. I do not propose to say much more. I will outline the problem I see with the section as currently drafted.

What kind of person would take a job of such seniority for five years? It seems tailor-made to exclude people who are not in the public sector or in a position to take secondment from another form of employment. There are very few people wandering around who are qualified to take a job of this kind. I do not understand why the maximum employment period is ten years. If a person aged 52 is suitable to be appointed as director, why can they not serve out their period in the role until they are 65? Why are we bringing in this constraint? The commission might be totally satisfied with the person but will have to dispense with their services after ten years. I can see that two terms as a member of a board is enough and that, in many cases, certain positions require freshness after a certain period but this is different. Is this director going to be a civil servant? A member of staff is referred to as a civil servant in section 30(6) so if the director is a civil servant, why would he or she have to go after ten years? What commonsense objective is served by introducing such an artificial limit of the time the director can serve in office?

Section 30 states that there shall be attached to the commission an office to be known as the judicial appointments commission office, which shall assist the commission in the performance of its functions. With the consent of the Minister given the approval of the Minister for Public Expenditure and Reform, the commission may appoint such and so many persons to be members of the staff of the office as it may determine. However, there is a different provision in section 31(1), which states that the commission shall, following a selection process held by the Public Appointments Service, PAS, appoint a person to be a director. The strange thing is that the person in question is not covered by the terms of the provisions of section 30(6), where an employee is a civil servant. That is my reading of the Bill and I would be glad if the Minister would elaborate on this. If the appointment provision is different from that for staff members under section 30(4), it seems to follow that the director will not be a member of staff and will not, therefore, be a civil servant. I would like some clarity on this because it is problematical. Is the director a member of staff appointed under subsection (4)? If he or she is appointed under subsection (4), are the provisions of section 31 in substitution for, or in refinement of, the provisions of section 30 as they relate to staff? Will the director be a civil servant? Can the Minister say precisely why, if somebody is appointed to the job of director aged 52, they should be out of the job aged 62?

It will be at 57 years, unless they get an extension.

What is so special about this job? There are all sorts of positions in the Civil Service and many people can remain in the public service in similar circumstances. Why has this job been selected for an arbitrary maximum duration of ten years? I do not see the logic of it. I presume the Minister will have notes from the drafting stage of the Bill, which will justify a maximum period. Supposing a man or woman was appointed to this job aged 52 and was doing a stellar job directing this commission, notwithstanding the fact that I do not approve of it, why should they be given the boot aged 62? Why would the Oireachtas, in its wisdom, decide they had to go aged 62? No policy reason has been advanced for such an arbitrary provision. It is unfair on somebody who gets the job and it seems to be designed to make it almost impossible for somebody who is not on secondment from the Civil Service, or some other employment to which they can return afterwards. I find that to be indefensible.

This discussion flows on naturally from our discussion on the previous matter, the Employment (Miscellaneous Provisions) Bill 2017. Sections 31 and 32 go together. Section 31(1) states that the commission shall, following a selection process held by the PAS, appoint a person to be the director. It refers to "a" selection process, which is not terribly specific. It could be any kind of selection process and it would be worthwhile to include some information as to what kind of process it will be. I assume the Minister means it to be a normal, run-of-the-mill selection process such as the PAS so excellently conducts but it does not state this. The whole business of the selection process is vitiated by section 32, which refers to the functions of the director, stating: "(1) The Director shall manage and control generally the staff, administration and business of the Office." That does not tell us very much and it tells us nothing about policy. How does this help the commission in researching and trying to find the correct person? The terms of employment are vague. Section 32(2) states; "The Director shall be responsible to the Commission for the performance of his or her functions." That does not give an appointments commission much to go on if it is looking for a particular employee. It is far too vague.

I share Senator McDowell's reservations about the five-year term. It is relaxed slightly by the provision that they can be reappointed by the commission but it seems otherwise pretty firm and it also states that they shall not hold office for a period the aggregate of which exceeds ten years.

Again, I would like to hear the Minister's rationale for an appointment term of only five years, which may be extended to double the term to ten years. I really do not see the logic in that.

Having spoken about logic, I am going to talk a bit about the language in section 31(3). I would have thought it is a little elevated and it certainly does not help the common reader, the ordinary Joe who is trying to read this Bill. Subsection (3) states:

Subject to subsection (4), a Director whose term of office expires by the efflux of time shall be eligible for reappointment by the Commission.

The efflux of time, how Miltonic; why was it not worded "the passage of time"? I do not see why we are using this kind of language. I would be interested in the Minister's reply.

I will not elaborate on issues that were the subject matter of discussion on the last occasion when dealing with section 31. The section shall be put as is.

That attitude simply will not do. I have asked reasonable questions. What is the Minister's rationale for the term of ten years? I have asked a reasonable question and I am entitled to a reasonable answer. If the Minister thinks that he can avoid giving me a reasonable answer to that question and say he will see his way to bludgeon this through, without answering simple questions which are legitimate, then there is only one answer and that is to have -----

I do not mean to interrupt Senator McDowell but I am very sorry to see that there are so few Members in the House. I wonder should there not be more? May I call a quorum?

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

I wish to respond to Senator Norris. Senator Norris is correct that the selection process shall be undertaken by the Public Appointments Service, PAS. I now propose that the question be put.

In terms of responding to Senator McDowell on the question of the term of ten years, does the Minister believe he has dealt with the issue already?

With the greatest respect, I do not remember the Minister explaining the rationale for a ten year maximum limit. If he has not done so at any point until now, I am asking him, as Senator Norris asked him, to do so.

I am not going to be drawn into the Senator's games. He ran out of the Chamber laughing as though to waste another ten minutes of the Seanad's time.

I did not call a quorum. I was asking at the time for an explanation from the Minister but he was indicating in a churlish and bad tempered way that he was not going to answer my question. I now repeat the question, because we will have to have the Fine Gael Senators back up to hear it, if necessary,

They should watch the Minister behaving in the way he is behaving this evening.

I answered questions for 42 hours.

Sorry Minister, we will deal with the 42 hours -----

The Minister did not do so for 42 hours. That is nonsense.

May I say that each section in this debate has taken less than one hour to deal with on Committee Stage? That is a fact. There has not been an excessive amount of time spent on it and there will not be an excessive amount of time spent on it. What the Minister seems to be concerned about - and let us be clear about this - is that he cannot bulldoze this legislation through.

On the contrary, there is no question of bulldozing it.

It is quite the opposite. It is reverse engine.

I wish to inform the Minister that no less a newspaper than The Irish Times published an editorial last Saturday which advised him to scrap the ill-advised Judicial Appointments Commission Bill, which is being foisted upon the country at the whim of the Minister for Transport, Tourism and Sport, Deputy Ross. It went on to say the Bill is bogged down in the Seanad because of a rearguard action led by the former Attorney General, Senator McDowell, but I am not on my own on this.

No, the Senator is not.

A great majority of Senators are opposed to the Bill, and a great majority of Fine Gael Members are being forced to vote it through against their own judgment by a party Whip imposed on them from outside. Let us be clear: a great majority of Senators think this is a bad Bill which should not be before us. That is the situation.

The Senator has simply no evidence of that.

I have spoken to many of the Minister's colleagues and I am quite confident that is the case.

The Senator has no evidence for that certainty.

If I have no evidence, is it not strange that The Irish Times in the same editorial wrote that it is an open secret that many Fine Gael Members have serious concerns about the Bill but feel-----

The Senator had said "a majority".

-----but feel bound by the commitment to the Minister for Transport, Tourism and Sport, Deputy Ross, which was included in the programme for Government. It is a majority.

"A majority" is different from "many".

We will call a quorum in a moment and I will ask one Fine Gael Senator who believes we should have this Bill rather than the present system to stand up and be counted. None of them has spoken in favour of the Bill on Committee Stage. Not one of them has said the Bill is worthwhile. Let us remember that before we make charges of obstruction. Not one Fine Gael Senator has stood up and said the Bill makes sense.

The Senator said it was "bogged down" in the Seanad. Why is it bogged down in the Seanad? It is bogged down because of the tactics employed by the Senator and his comrades.

It is bogged down by people who are entirely within their rights to use all available parliamentary means to scrutinise deeply flawed legislation. The Irish Times editorial will explain it to the Minister.

We are dealing with section 31 but I hope the Minister will be able to respond to the Senators' valid queries.

I asked politely about two matters, both of which are capable of being answered. Is the director a member of staff or not? If not, is he or she a civil servant, and where is the provision which makes the director a civil servant if he or she is not a member of staff?

I also asked for the rationale for somebody appointed to the position at the age of 52 being required to resign at the age of 62. I would like some indication on both of those things. If the whole Fine Gael Party must spend all night listening to the answers not being delivered, so be it. I am not obstructing. I am asking simple questions, which I am entitled to do as a legislator. What is the rationale for the provision for a maximum of ten years?

I have entitlements as an elected Senator. The Minister may laugh at the concept of an "elected Senator", but I have more first preferences than some Deputies, which I want to say before we get carried away. I was elected here with more first preferences.

So was I. I topped the poll.

I am just making the point that I am entitled, as somebody elected to this House under the Constitution with more first preferences than some Deputies, to get a civil answer to a civil question.

On the Senator's question, the director may or may not be a civil servant, depending on the process.

My colleague, Senator McDowell, made some valid arguments. I take some offence from the Minister's remark about Senator McDowell and his "comrades" frustrating a process. No one is here to frustrate a process. The Minister is here to discuss legislation. His leader, the Taoiseach, Deputy Varadkar, came to the House once and once only since he became leader, and went to great lengths to tell us, rightly so, that our principal focus must be to improve, polish up and work on legislation. He impressed upon us to stay focused on legislation. He said the role and function of the Upper House, Seanad Éireann, is to home in on, work on and improve legislation in co-operation with other arms of the Legislature, through the Minister with key responsibility for a given matter.

The Minister may not like the intensity of the scrutiny, or he may be under considerable pressure from other individuals or those who are party to these proceedings, but the bottom line is we are doing what is right and what we are elected to do, which is to play a meaningful role in Seanad Éireann on the scrutiny of legislation, of which this is an important aspect. So be it if Fine Gael Senators cannot be here for whatever reasons, many of which will be valid, but we are here. We are here because we are interested and committed, and we are asking hard questions which the Minister must answer. We should not do politics by having people jumping up and down the stairs, but so be it if we must call a quorum. The Minister may stand up and say we are not dealing with it because it was dealt with before, or that he has been here for more than 40 hours, but the Minister will be taken through the Bill section by section. We may decide later in these proceedings today or in the next few days to defer some of this or not to delay it from moving to the next Stage. That is also our right and prerogative, which I know the Minister would accept. There are many ways of teasing out and prolonging a process if necessary, but the Minister must accept in the spirit of the people here that they are here to tease out this legislation.

On Senator McDowell's point, I have spoken directly to members of Fine Gael and other parties who have serious concerns about this legislation. It is the nature of a large political movement and party that people will not agree on everything. There is a commitment in the programme for Government, however, and the Minister for Transport, Tourism and Sport, Deputy Ross, is committed to this. I do not wish to personalise the matter because I am not in the business of personalising politics, but the bottom line is that people are under pressure and want to deliver. There is a common belief that there will be an election in two or three months and, therefore, people must build Garda stations here, community centres there, health facilities somewhere else and deliver on all the promises, but they will not deliver on all the promises because the promises were not always right, correct or suitable to proceed with.

Our function as Senators in regard to this legislation is to tease it out with the Minister, the principal Minister with responsibility in this area, who has much knowledge of the legal profession. He is well versed and trained in this area and, therefore, it should not be difficult for him to respond. He should show his respect for the House, that is, not for Senator McDowell, Senator Boyhan or anybody else. He should answer the questions that were put because the more he delays, the more issues people will have. This process may take many more hours but what is the rush?

I also read The Irish Times editorial on the Bill. No one circulated it to me but I went down to the Library, got a copy for myself and I read it. It was impressive journalism, which discusses the mess that is the Bill. I am sorry if the Minister is caught in the middle of the matter and is being forced to deliver this for a particular purpose or a particular Minister, but we would fail in our job if we did not tease out each and every issue with the Bill. I appeal to the Minister to respond to the simple questions which Senator McDowell put to him.

I am conscious that we are dealing with section 31 but I am also conscious that the Senators are responding in frustration because they are not getting responses to the questions they asked. Senators McDowell, Clifford-Lee and Norris are to speak on section 31, ideally, and I will then ask the Minister if he has a response.

I will simplify the question again.

What is Senator Noone doing here?

It seems clear to me that the director is not included in the phrase "member of staff" for the purposes of section 30(6). I asked the Minister whether somebody, when he or she becomes director under section 31, would ipso facto be a civil servant. If the person would not be a civil servant, why not, unlike the other members of the office's staff? It is a simple question and if there is an answer, it will also be simple.

The second point on which I want an explanation from the Minister is why somebody appointed to this job at the age of 52 has to be excluded from office after ten years, at the age of 62, if his or her service is perfectly satisfactory, regardless of whether he or she is a civil servant. I am entitled to answers to those two simple points.

I support Senator Boyhan. He referred to this Bill as a mess. One might also refer to it as a dog's dinner. Other people have done so. This House has a wealth of experience that the Lower House does not possess. We have a former Attorney General and Minister for Justice and Equality. Senator Norris has substantial experience in the House. We are much the better for having somebody with his experience. Senator Bacik has academic expertise. If they want to contribute, tease out the provisions of the Bill and make it better, they should be afforded every opportunity to do so. I hope the Minister will co-operate with us.

The Minister asked about the amount of time being spent on the Bill. I can justify it very simply and clearly using two points from the editorial in The Irish Times, which states, "Ross insists that this is designed to remove political interference [his well-vaunted cronyism] from the appointment of judges but it will do no such thing."

I did not ask a question. I do not ask questions.

The Minister queried.

I did not ask a question.

The Minister queried the amount of time.

No. I commented on the amount of time.

The Minister queried it. I have some nodding acquaintance with English so I know what I am talking about. He queried it.

The editorial also states, "It will simply mean that the recommendations for appointment to the judiciary will be made by a body which does not have the necessary expertise or experience to make informed recommendations." That makes it an absolute obligation on this House to go through the Bill with a fine-tooth comb. As the editorial, which appeared in one of our most influential newspapers, states, it does exactly the reverse of what the Government purports it will do. Let me give the second reason we should go into the Bill in so much detail. The editorial states authoritatively, "this Bill was drafted on the basis of no serious research, analysis or international comparisons."

The first reason is that the Bill will do exactly the reverse of what it sets out to do. That means this House has an absolute obligation to hold it up as much as it can, scrutinise it and expose it to the most ruthless dissection. The second reason is that the Bill was produced on the basis of "no serious research, analysis or international comparisons". The editorial suggests that the Minister's Cabinet colleagues should find their courage and tell him to take the Bill back to the drawing board, whether or not it means the resignation of Senator Ross.

The Minister Deputy Ross, even.

Is he a Minister now?

That is where all the trouble comes from.

He is not a Senator.

Senator David Norris:Everybody diminishes as life goes on. He is in the Dáil.

I thank Senator Norris. I believe he has concluded. Does the Minister want to respond to any of the queries on section 31?

In response to the question on whether the director will be a civil servant, I repeat that the director may not necessarily be a civil servant. Therefore, the director may not necessarily be covered by the already-passed section 36. The director may be a civil servant or the director may not be a civil servant. This will depend on the Public Appointments Service process, as referred to by Senator Norris. I expect it will in the normal course of events be organised by the Public Appointments Service.

The second point Senator McDowell raised was in respect of the term of appointment. In the normal course of events, there will be a term of appointment. It can be five years, seven years or six years. The rationale chosen in respect of this is in accordance with the original general scheme of the Bill, which was first circulated in 2016. It refers to a renewable period of five years. If Senators are not happy with that, they have a course of action open to them. In the circumstances, the balance is deemed to be in favour of a five-year term which can be renewed.

With respect, I asked whether a person who occupies the position of director will, ipso facto, be a civil servant. I am getting a different answer, namely, that somebody could be a civil servant when appointed or might not be, depending on what the Public Appointments Service-----

Was the Senator's question on whether a person will become a civil servant if he or she is not already a civil servant?

Does a person become a civil servant when appointed? That is the first question.

If he or she is not already a civil servant.

My second question is on why, for some policy reason, a person appointed to the position at the age of 52 should be told at the age of 62 that his or her services are finally dispensed with and that he or she may not carry out the function any longer. I have not heard one solitary reason that should be the case. Saying it was in the Bill as drafted does not help us at all because much of it was drafted before the Minister took office. I am asking the very simple question as to what possible reason there is to say to a man or woman appointed at the age of 52 that he or she must quit at 62 - despite the fact that he or she may have been doing a brilliant job - because the Legislature, at the behest of the Minister for Justice and Equality, said in 2018 that he she must quit the post on having done ten years. I am not getting an answer to either of those questions.

Does the Minister wish to respond to the last point?

I have given a response. If Senators wish to change it, they may do so. In the circumstances, it is not unusual for an appointment to be for a period of five years. At the end of a period of five years, it is up to the board to renew the appointment or otherwise. Whether somebody comes to the end of his or her tenure at 62 or 64 is a matter of given circumstances. Just because somebody has done ten years and reaches the age of 62, Senator McDowell would like to give him or her an automatic opportunity for renewal. Having two terms, each of five years, is considered appropriate in the circumstances.

That is not the case. If somebody who is not a civil servant is appointed under section 31 as director, and if it is conceded — it has not yet been — that he will not become a civil servant by virtue of such an appointment, then the question arises as to whether such a person should perform properly for two terms, at a maximum, up to the age of 62 and then be told, unlike any civil servant in the State, that his term is over and he is no longer eligible to hold office. That is the question I am putting. The Minister knows full well that this is an indefensible proposition. First, it is indefensible that the staff should be civil servants but not the director. Second, it is indefensible that somebody who is in charge of all the staff should not be a civil servant ex officio - by holding the office. Third, there is no reason that the Legislature should say to a person who holds the position and discharges the functions satisfactorily for ten years that he or she must leave at the age of 62. No reason is being offered for any of this. No rationale is being offered. If that is the way this House, which is supposed to be the revising Chamber and which is supposed to ask why legislation takes the form it does, is going to be treated, that is contemptuous. It is simply contemptuous of the House not to offer any further explanation.

I remind the Minister that so far we have spent less than one hour on each section of the Bill. It is not as if the Bill is not important. The Minister claimed many times himself that it was important. I say it is not important because I say it is going to damage the quality of our Judiciary. There are many other provisions of the Bill which are far more damaging than the proposal to make the director float in space as a non-civil servant with no job security when he or she comes to the end of the first or second term, having performed satisfactorily. It is a major fault in the legislation and no defence is being offered to it. It is indefensible as a proposition.

I ask the Minister to think of the common sense of this. If a clever man or woman applies for appointment to this job through the Public Appointments Service at the age of 52 and serves one term, he or she will have reached 57. If the commission considers that person to be the bee's knees and is very happy to reappoint him or her to another term, it will bring him or her to the age of 62. The House is being asked to insert into the terms of that person's appointment the proposition that he or she is denied civil servant status and must drop the job at the age of 62 with no pension entitlements or anything like that. It is scandalous and indefensible. The Minister can see fully why anybody would have the gravest difficulty accepting the section in its current form.

The Minister has the advantage of having advisors here and a Department which crafted subsection (4) to introduce this maximum ten-year period. There must be a note somewhere in the Department which says why that is being done. The legislative intent and the policy underlying it lie somewhere within the Department of Justice and Equality, but the Minister is deciding to withhold it from the House and refusing to tell us the basis on which the ten-year limit has been imposed. I find that very distressing. I served in the same position the Minister now holds and moved many important Bills in the Senate in my time. I never told a reasonable questioner in this House, "That's the why", when asked for a justification of some provision of a Bill I was moving. No Minister should ask the House to accept that situation.

I listened attentively to Senator McDowell but I think the same thing applies in local government where county managers can only serve for ten years. They could enter the system at 45, 48 or 50 years of age and be finished in their late 50s or early 60s. It is exactly the same situation.

Are they civil servants?

They are in the system.

If they are civil servants, that is one thing.

They are public servants. That was brought in while Senator McDowell was a Minister. He might not have been the Minister responsible but he was a member of the Government when it was brought in.

There is collective responsibility in Cabinet.

The question about county managers is whether they are civil servants.

They are public servants.

If they are public servants, is the director a public servant?

They are employed by the local authority.

Local authority staff are public servants not civil servants.

Is Senator McDowell asking whether this person is a civil servant?

That is exactly what he said.

This is for clarification, Senator Norris, for the benefit of the Minister and everyone else.

I am querying how it can possibly be that every member of staff is a civil servant while the man or woman who controls and directs them is not. I am querying why it is that such a person should after ten years cease to have any job at all. If he or she is not a civil servant, what does he or she do at the end of the ten years? Does such a person just walk out the door and say "Thank you"?

It is the same with county managers.

He or she becomes a county manager.

Does the Minister want to address the civil servant and public servant issue?

This is not an unusual appointment. Senator McDowell says it is a scandal that this person may be required to leave the job after a period of ten years. This is not unusual either within the public service or the private sector.

It has nothing to do with the private sector.

It is reasonable to have a term of five years, which is renewable. I refer Senator McDowell to section 31(5) which provides that the terms and conditions of holding office, superannuation and the contract will be determined by the commission in the normal course of events. I do not share Senator McDowell's view that this is a scandal, as he describes it - on the contrary.

It is remarkable. I will remove the word "scandal" and go to the word "remarkable". It is remarkable that the staff the director will be in charge of will be civil servants under section 30(6) whereas the director will not, even though he or she will be appointed by the commission following a Public Appointments Service selection process. I have had no good reason advanced to me as to why he or she should not have civil servant status. I ask again for some indication as to why a satisfactory director has to go having served ten years. To say that other people are in this position does not answer that question. Other people are not the director of an office full of civil servants. I want to know what the policy is that underlies the proposition that the person could not do more than ten years and I am not receiving an answer.

The Minister referred to subsection (5) and said the director shall hold office upon and subject to such terms and conditions, including terms and conditions relating to remuneration, allowances and superannuation, as may be determined by the commission with the approval of the Minister, given with the consent of the Minister for Public Expenditure and Reform. I am not sure how much superannuation there would be if one was only there for five years. It is rather a long and drawn out effort there because one step involves the director holding office under various terms determined by the commission. One then needs the approval of the Minister and then one has to have the consent of the Minister for Public Expenditure and Reform. How many hurdles does one have to get over for this simple business of determining the terms and conditions? There are three. The commission decides it and is second guessed by the Minister for Justice and Equality and third-guessed by the Minister for Public Expenditure and Reform.

There are checks and balances.

Bells and whistles.

What superannuation would one get for five years' service?

That is the point I made.

In the real world where we live, is the Department of Public Expenditure and Reform going to hand out a full pension to someone who has done five years? It is not. As such, what kind of pension will the person get? I find this unconvincing. I continue to ask the Minister and I continue to encounter a stone wall as to why there is a maximum term of ten years in this position.

On the maximum term, colleagues have mentioned local authorities.

CEOs in local authorities are appointed for seven years and they can apply for a three-year extension. Therefore, the norm within that type of environment is ten years. In terms of individuals doing a job, one gets the best out of them for ten years.

The norm is not ten years here, it is the exception. Five years is the norm, ten years is the exception.

No, the norm-----

I ask Members to address their remarks through the Chair.

The norm within local authorities is seven years for the CEO. Even the President, Michael D. Higgins, the Senator's good colleague, does a seven-year term and they can apply then for a three-year extension.

He cannot do so. He has had his extension.

CEOs in local authorities can apply for a three-year extension, if Senator Norris was listening.

I was listening intently.

I hope the Senator is. That is a point of clarification.

I thank Senator Conway very much.

There are a couple of points which I think Senator McDowell feels have not been answered. I am not sure if the Minister wishes to answer them. If he is in a position to do so perhaps the Minister might give the Senator whatever answer he has in terms of why only ten years.

It is ten years because it is deemed to be good practice in the circumstances. Not unusually they are in the public or private sector.

If that is the explanation that is forthcoming so be it. I find this section entirely unsatisfactory.

Does the Senator want an answer on the question of superannuation?

I do not think it is reasonable that at this Stage of the legislation we should be in a position to put figures on allowances or superannuation. I say to Senator Norris that it is entirely appropriate in similar legislation that these would be issues to be determined by the commission with the approval of the Minister and, of course, the involvement of the Minister for Public Expenditure and Reform. I point to the Legal Services Regulatory Authority, for one.

Question put.
The Committee divided by electronic means.

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

Question again put:
The Committee divided: Tá, 25; Níl, 10.

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coghlan, Paul.
  • 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.
  • Warfield, Fintan.

Níl

  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Daly, Mark.
  • Daly, Paul.
  • Gallagher, Robbie.
  • Horkan, Gerry.
  • Leyden, Terry.
  • McDowell, Michael.
  • Norris, David.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Victor Boyhan and Michael McDowell..
Question declared carried.
SECTION 32
Question proposed: "That section 32 stand part of the Bill."

Is the section agreed?

Does the Senator wish to speak on the section?

No. I just do not like it.

If I may comment briefly on the section as I do not wish to waste time. This section is the third section in Part 5 of the Bill. I have set out at some considerable length, and I will not repeat myself now, my entire objection to the wasteful expenditure involved in the establishment of the judicial appointments commission and its office. Therefore, consistent with that position I am opposing section 32.

I am opposing the section on very much the same grounds. I am also opposing it on the grounds I have already set out. I will not repeat myself but there is nothing here about policy. It is very much a damp squib.

Ciúnas. If Members wish to speak could they please leave the Chamber?

I think they are all going to the Cork Chamber of Commerce dinner.

I am sure not all of them are.

I think all of them. Look at how beautifully they are all dressed up.

This is a standard provision. There is nothing new. It is in accordance with many precedents in many pieces of legislation over the past number of years, including the Legal Services Regulation Act, the Property Services (Regulation) Act and the Human Rights and Equality Commission Act. I am not sure where the Senator is coming from.

The Legal Services Regulatory Authority and Property Registration Authority are institutions which are performing a useful function. We have a Judicial Appointments Advisory Board which costs practically nothing. The Minister's Government has been making excellent appointments to the Bench without the assistance of a commission of this kind. We do not need this commission and every cent spent on it is wasted.

Question put:
The Committee divided: Tá, 26; Níl, 11.

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coghlan, Paul.
  • 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 Domhnaill, Brian.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Richmond, Neale.
  • Warfield, Fintan.

Níl

  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Daly, Mark.
  • Daly, Paul.
  • Gallagher, Robbie.
  • Horkan, Gerry.
  • Lawless, Billy.
  • Leyden, Terry.
  • McDowell, Michael.
  • Mullen, Rónán.
  • Norris, David.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Victor Boyhan and Michael McDowell..
Question declared carried.
SECTION 33

Amendments Nos. 72 to 77, inclusive, are related. Amendment No. 75 is a physical alternative to No. 74. Amendments Nos. 72 to 77, inclusive, may be discussed together by agreement. Is that agreed? Agreed. Senator Bacik has given written consent to Senator Norris to move amendment No. 72.

I move amendment No. 72:

In page 23, lines 6 to 17, to delete all words from and including "(1) Section 5" in line 6 down to and including line 17 and substitute the following:

"(1) Section 5 (amended by section 11 of the Court of Appeal Act 2014) of the Act of 1961 is amended by the insertion of the following after subsection (7):

"(8) Section 45A (inserted by section 33(4) of the Judicial Appointments Commission Act 2018) provides an additional basis for qualification for appointment as a judge of the Supreme Court, the Court of Appeal or the High Court.".".

I am moving this with Senator Bacik's consent which I obtained from her an hour ago.

I do not have the slightest idea but I can telephone her and ask her if the Senator wishes.

Senator Bacik's whereabouts is not a matter for discussion.

I refer to the amendment which states:

In page 23, lines 6 to 17, to delete all words from and including "(1) Section 5" in line 6 down to and including line 17 and substitute the following:

"(1) Section 5 (amended by section 11 of the Court of Appeal Act 2014) of the Act of 1961 is amended by the insertion of the following after subsection (7):

"(8) Section 45A (inserted by section 33(4) of the Judicial Appointments Commission Act 2018) provides an additional basis for qualification for appointment-----

The Senator does not have to go to all the trouble of reading out the amendment. The Minister is well aware of what it contains.

-----"as a judge of the Supreme Court, the Court of Appeal or the High Court.".".

I want to ask something of the Minister or his advisers because I have just been jumped into this and I was not anticipating it. I am afraid I do not know what "Section 45A (inserted by section 33(4) of the Judicial Appointments Commission Act 2018)" does. It says it: "provides an additional basis for qualification for appointment as a judge of the Supreme Court, the Court of Appeal" and so on but I am not sure what it is.

It is not the Minister's job to explain the amendment.

No, but he might do so if he is feeling helpful.

The Senator moved the amendment so he may speak to it.

I will sit down and see if the Minister is prepared to explain it because it is just a question of information which would be helpful. I am not sure if the Minister knows. I will then continue if I may do so. Is that all right?

Yes. I call Senator McDowell.

I will assist Senator Norris.

There is assistance from all quarters.

Section 33 contains a number of separate proposals, one of which is to allow for the amendment of section 5 of the 1961 Act, which is either the Courts (Supplemental Provisions) Act, 1961 or the Courts (Establishment and Constitution) Act, 1961, to provide that: "A judge of the District Court who has served as such a judge for a period of not less than 2 years shall be qualified for appointment as a judge of the High Court." Then there is a reference to section 33(4) of this Bill which inserts a new section 45A. If the Senator goes down to the bottom of page 23 he will see a subsection 4, which is an insertion in the 1961 Act which is the Act governing eligibility for appointment to the bench.

Is that the bit with the heading "Qualification of certain legal academics"?

Exactly. A new section will be inserted stating: "A person who is for the time being a legal academic of not less than 12 years' standing shall be qualified for appointment as a judge of the Supreme Court, the Court of Appeal, the High Court, the Circuit Court or the District Court, but this is subject to subsections (2), (3) and (5)." It goes on to provide that a legal academic must have been a barrister or solicitor at some stage of his or her career and to have: "practised as a barrister or solicitor for a continuous period of at least 4 years."

To put that in context, this effectively means that legal academics who have been a barrister or a solicitor for four years and practised as such will be eligible to be appointed if they have 12 years standing as a legal academic in addition to that. That is a lengthy period as the Senator will appreciate.

My first comment on this section and the amendments that have been tabled, if I may do so before we come back to the other amendments that Senator Norris has not mentioned at a later stage, is that I have the gravest of reservations about the first amendment to section 33(1). It provides that: "A judge of the District Court who has served as such a judge for a period of not less than 2 years shall be qualified for appointment as a judge of the High Court." I cannot understand the circumstances in which somebody who was appointed to the District Court Bench, after two years would be an appropriate person to be appointed as a judge of the High Court by reason of having served on the Bench for two years.

We have to ask ourselves what possible circumstance could lead somebody to make such an application, and from now on people will be applying for all of these positions. If, say a barrister of ten or 12 years standing, is eligible and wants to be on the District Court Bench, why would he or she then say after two years that they want to a judge at the High Court and apply for same? I find that to be a remarkable proposition and I will go even further. It seems to me that nobody ends up on the District Court Bench except by their own voluntary choice and if somebody wants to be a judge in a summary court, I cannot imagine why, after two years serving in that position, they would suddenly say that it was a big mistake and that they should have applied to be a High Court judge. I also cannot see how two years of practise on the District Court Bench would transform one from somebody who was not eligible to be a High Court judge to be somebody who is eligible to be a High Court judge. I know that it would put one on the same basis as a barrister or a solicitor who has 12 years in practice anyway but they are not just a practising barrister of 12 years standing, they are somebody who has asked the Government to put them on the District Court Bench, has applied for that position and had a commission ask if they are a suitable person to be a District Court judge. Two years after that decision is made, that person is supposed to then say that they have changed their mind and they want to be a High Court judge.

I hope that members of the District Court Bench will not take this the wrong way but, by any standard, the work of a District Court judge and a High Court judge are dramatically different types of work. A District Court judge will get the odd complicated case but, most frequently, it is a court of summary jurisdiction and the judge is expected, and obliged, to be the kind of person who would spend a morning dealing with television licence defaulters, drink-drivers or minor assaults and to get through a list of ten to 20 cases and deal with remands and all of the rest of it. That would not be untypical. There are many good qualities required of a District Court judge, namely a capacity for hard work, speed and quick decision-making.

The idea that a District Court judge will say, "I want to think about that", or, "I want to reserve my decision on the application being made and I will come back with a written judgment in two or three weeks", is simply not how the District Court functions. Any District Court judge who operated that way, and listened to lengthy submissions like a High Court judge, would find that his or her court would disintegrate.

Second, a District Court judge might write a lengthy judgment once a year and many District Court judges would get through two or three years without ever writing a lengthy judgment of more than a page or a paragraph. However, we are asked by the Government in this section to suddenly deem such people, by reason of the fact they have done two years in the District Court, to be eligible for appointment to the High Court. Bearing in mind, as the Minister has agreed, that this legislation acknowledges the Government is not bound by the JAC's process or recommendations at all and can make its own decisions, what we are actually doing is saying that a judge of the District Court, that is, somebody who has been appointed to the District Court, could at the say-so of the Government be appointed a High Court judge two years after their appointment.

I wonder in what circumstances that could happen. In what circumstances could somebody who has done two years on the District Court suddenly be transported to the High Court and asked to do a radically different job involving listening to complex cases such as Commercial Court cases, patent cases and constitutional cases? In what circumstances would somebody who applied to be a District Court judge suddenly either credibly want to be put on the High Court or credibly apply to the District Court two years earlier than applying to be a member of the High Court? I cannot see any circumstances in which that would happen, nor can I see how, in the life of the average District Court judge, anything could happen in regard to such a person to suddenly bump her or him up to the top of the queue as somebody who could be appointed to the High Court.

I will go one stage further. It is a big mistake and there is no justification for this, except some notion of trying to achieve equality among all judges, when they are not all equal, their job specification is not equal and the criteria for appointment are not the same. I know, as the Minister knows, that when one is considering appointing somebody under the present system to the District Court, one does not ask oneself for one minute, "Is this person suitable for appointment to the High Court?" It would be utterly artificial and wrong to think that a Government, in appointing somebody to the District Court, would say, "By the way, after two years this person is going to be eligible to be appointed to the High Court", or that we should take into account that eligibility in deciding whether they are suitable for the District Court. I do not accept that at all.

This is not some kind of legal snobbery, intellectual snobbery or intellectual contempt for the summary jurisdiction. It is simply saying that the two functions are radically different. On the one hand, we have somebody who is going to be expected to produce world-class judgments of a reserved kind, with judicial researchers, as a High Court appointee, and, on the other, we have somebody who is appointed to the District Court Bench to carry out a radically different type of function, which is dealing with public order offences and driving offences - 20 in the morning and ten in the afternoon - and to preside over sittings where 50 or 100 people are found guilty of having no television licence. To say that one thing compares with the other is, I am afraid, fundamentally untrue and nonsensical.

I do not say it is impossible that somebody on the District Court could be a High Court judge manqué who somehow got distracted into applying for the wrong court. However, I find it so unlikely and so fanciful that this would be a career path that I ask myself why we are being asked to bring it into law. It is illogical. On occasion during the debate, the Minister has accused me of coming up with extreme cases. However, who in the name of heaven would apply to be on the District Court Bench and two years later say, "I really think that now, after two years in the District Court, I should be appointed to the High Court"? What kind of person would do that? Yet, that is what we are legislating for here. It is bizarre.

I do not know whether an English district judge - it used to be the resident magistrate - after two years becomes eligible to be a high court judge in England but I very much doubt it, although I stand to be corrected, and if I am wrong, I am wrong; I do not study English legislation on this carefully as a night-time occupation at home. However, I would be surprised if two years service as a district judge in England suddenly made people eligible to be appointed to the high court in the English system.

We do not have to ape the English. However, we have to have a common law system which has the respect of not merely the Irish people but also the international community in terms of commercial investments, human rights protection standards and the like. If it is the case that this Bill envisages the commission asking itself, when it puts somebody onto the District Court, whether in two years time this person could also be eligible for the High Court, then I am deeply worried about the quality implications for the reputation of the Judiciary. Almost every practitioner has asked himself or herself the question, "Would I like to be a judge?", although it is probably more solicitors than barristers in respect of some judicial positions. Generally, there is no doubt that nearly every solicitor who has a practice has at some stage or another queried themselves, "Would I like to be a judge? Would I like to retire from my practice as a solicitor and apply to be a judge?" However, for somebody who was considering applying to be made a judge of the District Court, be he or she a barrister or solicitor, there could not be in their mind a state of confusion or the thought, "By the way, after two years I will have a crack at being a High Court judge." That is fanciful in the extreme and indefensible.

That is one provision of the section which is discrete and there needs to be much examination of why this has been done. The remainder of the section deals with an entirely different matter - the legal academics. Many lawyers are wrongly suspicious of the idea of making provision for a legal academic to be appointed a judge of the superior courts. I do not know what most people's reservation would be. I have no problem in principle with a professor of law being made a judge. I especially have no problem with the idea of a professor of law who has practised as a legal practitioner prior to his or her appointment being appointed to a position in the superior courts. If we go to the amendment which Senator Norris has moved-----

He is moving it.

The amendment proposes to "delete all words from and including “(1) Section 5” in line 6 down to and including line 17", which relates to a judge of the District Court, and to leave in subsection (8). This amendment, if accepted, would radically simplify the basis on which individual legal academics could be appointed to the superior courts. It would state:

Section 45A (inserted by section 33(4) of the Judicial Appointments Commission Act 2018) provides an additional basis for qualification for appointment as a judge of the Supreme Court, the Court of Appeal or the High Court.

What professor of law or legal academic would want to be appointed to be a District Court judge? There is a good deal of sense to the amendment, which asks that fundamental question. I support having a means of entry into the legal profession and hierarchy for intellectual jurists, which is what legal academics are. It would be based on their experience as an academic and the fact that before they became an academic they had some basic experience for a number of years as a practitioner in either branch of the legal profession. Surely we must want them to enrich the Judiciary by bringing in their academic approach and knowledge of jurisprudence.

Not a lot of use in the District Court.

I will not dismiss the District Court and say it would not be of much use there but I cannot imagine why somebody who has all of this experience as a legal academic would want to spend time dealing with cases such as people having no lights on their bicycles and no television licence. We have to ask what is going on in this section. It is one thing to say we should have some port of entry into the Judiciary at a senior level for people who are serious jurists and have gone the academic route, having been a practitioner. That is the philosophy of the section as it stands. If is another thing to say we will provide that the District Court can be the place where senior legal academics get to spend the rest of their lives. What are we doing? It is Alice in Wonderland stuff. Who, having spent 12 years as a legal academic and having been a practitioner for four years before that, well into their career would suddenly want to revert from being a jurist to being a District Court summary judge? It escapes me completely. I am against the principle of doing this.

The late Professor John Kelly was appointed Attorney General and was one of our foremost constitutional lawyers, with the fifth edition of his book due to be posthumously launched on Thursday evening. It is one of the major textbooks of Irish constitutional jurisprudence and the authoritative work on the Constitution. I am content that someone such as him would be eligible to be appointed to a position of High Court judge. His collaborator, Professor Gerard Hogan, became a practitioner and a judge thereafter and is now in Luxembourg as advocate general in the European Court of Justice. Another collaborator, Professor Gerry Whyte, is at Trinity College Dublin. I do not doubt they are people who should be capable of having a port of entry into the senior Judiciary and I have no problem with that. I am not commenting personally on them but refer to people of their standing. I have a major problem with scrambling up the idea of legal academics on one hand and the District Court on the other turning things on their head and saying that legal academics as jurists should somehow be eligible to be made District Court judges. I do not see the logic of it. It is hard to defend in any realistic scenario that any of these people would want to do that.

The Minister's intended amendment of section 45A(1) the Courts (Supplemental Provisions) Act 1961, set out in section 33(4), states:

A person who is for the time being a legal academic of not less than 12 years’ standing shall be qualified for appointment as a judge of the Supreme Court, the Court of Appeal, the High Court, the Circuit Court or the District Court

Senator Bacik's amendment effectively knocks the Circuit Court and District Court out of it, which makes sense. The Minister's amendment to the 1961 Act suggests:

Without prejudice to subsection (5), a person of such standing shall have been employed as a legal academic for a continuous period of not less than 2 years immediately before such appointment.

They have to have been a legal academic for two years. It then states:

Subsection (1) shall only apply to a legal academic—

(a) who, at the time of the appointment referred to in that subsection, is a barrister or a solicitor, and

(b) who has practised as a barrister or solicitor for a continuous period of at least 4 years,

and subsequent subsections of this section, in so far as they relate to a person who is referred to in them as a ‘head of a faculty’ or ‘head of another faculty’, shall not be construed as enabling such a person to be the subject of such an appointment unless the person—

The appointment referred to is as a legal academic.

I must interrupt Senator McDowell and ask him to report progress as we have reached the end of our two-hour period.

Progress reported; Committee to sit again.

When is it proposed to sit again?

Maidin amárach ar 10.30.

The Seanad adjourned at 9.10 p.m. until 10.30 a.m. on Wednesday, 21 November 2018.