Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

SECTION 35
Debate resumed on amendment No. 78:
In page 25, to delete lines 25 to 34 and substitute the following:
“(3) In the case of an appointment to the office of ordinary member of the High Court, the Commission shall not recommend the name of a person to the Minister unless in the opinion of the Commission the person has—
(a) an appropriate knowledge of the decisions, and
(b) an appropriate knowledge and appropriate experience of the practice and procedure, of the High Court.”.
- (Senator Michael McDowell)

According to the Order of Business, we are due to conclude this debate at 6 p.m.

I wish to give notice of an urgent Topical Issue matter submitted in the Dáil, which may or may not be accepted. I may seek leave to go to the Dáil for about 15 minutes at or around 5 p.m.

The Leader's office will sort that out before 5 p.m. if necessary. Senator McDowell has the floor on amendments Nos. 78, 79 and 90.

I have said most of what I wanted to say about the whole question of the sitting Judiciary being required to apply to a body which is not the Government for consideration to be appointed to positions in the Supreme Court or Court of Appeal or to the presidencies of those courts. I will ask the Minister a simple, factual question. As I understood it, a procedure was recently put in place whereby judges who were interested in promotion to vacancies which were arising or had arisen could inform either the Secretary to the Government or the Attorney General in writing of their interest in being so promoted in order that their names would be put before the Cabinet. Is it proposed that this procedure be discontinued from now on as amounting to some kind of canvassing or will it continue under this legislation? If it is proposed that it be discontinued, there would be certain implications arising from that. It is an informal arrangement with no legislative basis, which seeks to address the problem of sitting judges writing long letters to politicians extolling their own virtues. I have no problem with that. Members of the Judiciary do not have to do a sales job on themselves to members of Government. For this reason, the new arrangement under which they indicated to the Secretary to the Government their willingness to serve in a position which was vacant or about to become vacant was put in place. Is this system still in existence? If so, will it be ended if the requirement that every judge apply to the judicial appointments commission for every promotional vacancy comes into place?

The first two amendments in the group, amendments Nos. 78 and 79, narrow the criteria an applicant must satisfy to be recommended for a judicial position. The amendments also remove references to courts higher than the High Court to accord with the subsequent amendments concerning senior judicial officers. Amendment No. 90 is more comprehensive. It reintroduces the Government's original section and extends the senior judicial appointments process to ordinary members of both the Court of Appeal and the Supreme Court. It codifies the procedure the Government has adopted in respect of recent senior court appointments and it follows that this process should continue on a statutory basis. These proposed amendments are fundamental to safeguarding against the weakest elements of the Bill in its current form, which, as currently drafted, would involve 16 members of the judicial commission appointing the Chief Justice, the President of the Court of Appeal, the President of the High Court and all ordinary members of the Supreme Court and the Court of Appeal.

The process of appointment by the Government to all the aforementioned positions in the past two years or so has been to include the president of the appellate court, the Attorney General and the chair of the top level appointments committee. This process has been used to appoint the current Chief Justice, new ordinary members of the Supreme Court, the President of the Court of Appeal and new ordinary members of the Court of Appeal. For most litigants, the Court of Appeal will be their last opportunity to have a case heard, with only cases of exceptional importance ending up in the Supreme Court.

The High Court, District Court and Circuit Court are bound by the decisions of their superior courts. This includes the Court of Appeal with regard to the Supreme Court. Decisions made by the Supreme Court and the Court of Appeal are of fundamental importance to the rule of law in this State, and the officeholders of these courts bear enormous responsibility as to how the law is both interpreted and applied. The Government in its wisdom deemed that it was appropriate at a bare minimum for the Chief Justice, the President of the Court of Appeal and the President of the High Court, all of whom are members of the Council of State, to be appointed by a separate senior judicial appointments committee. This proposal was voted out of the Bill in Dáil Éireann. The Government proposes that the Chief Justice, Attorney General and chairperson of the judicial commission recommend the appointment to these offices rather than the 16-member judicial commission, which is how the law will currently operate if enacted as the version passed by Dáil Éireann.

If the Government accepts the principle that the appointment process for the roles of Chief Justice, President of the High Court and President of the Court of Appeal requires a more finessed consideration than the process involving a motley crew of 16 commission members where all of these officeholders are either members of the Supreme Court or ex officio members of the Supreme Court, it is difficult to see why it would object to ordinary members of these courts also forming part of the separate senior judicial appointments committee process. It is essential that such a senior judicial committee not comprise a sitting member of a court, for example, the Chief Justice, having a role in appointing his or her successor or a person to serve alongside him or her on the Supreme Court. The same consideration should apply for the Court of Appeal, where the President of the Court of Appeal should have no role in appointing his or her successor or members to serve alongside him or her.

It is clear, therefore, that the senior judicial committee must be broadened so that, at all times, there are existing senior judicial officeholders capable of providing an assessment of the capabilities of a particular candidate for these exceptionally high offices, allied to the Attorney General and the lay representatives, such as the chairperson of the Top Level Appointments Committee, TLAC.

Another essential component of these grouped amendments is the plainly obvious proposal that persons deemed suitable for recommendation to the High Court ought to have an appropriate knowledge of its decisions and appropriate knowledge and experience of its practices and procedures. It would be a nonsense to appoint people who had no knowledge, practical experience or wisdom in these matters. It is obvious that they must. It is unfathomable how the Government could view these qualities as unnecessary components for a 16-member judicial appointments commission to consider when recommending candidates for appointment to the Judiciary. These are the core skills that a suitable judge might possess.

I wish to point out my great disappointment that there are more members of the public in the Gallery than there are Senators in the Chamber during the passage of this extremely important Bill. I would like to welcome our visitors. They can see now the way the process goes - it is the same two or three Senators all the time on every Bill.

(Interruptions).

-----wherever Senator Norris is.

I am getting a kind of strong weakness-----

-----that is inclining me to ask for a quorum so that our pearls of wisdom should not be thrown before artificial swine.

I thank the Senator for such a dramatic and interesting introduction to the quorum.

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

Senator Norris was in possession.

I had just concluded my remarks.

Does the Minister wish to respond?

Yes. I acknowledge the importance of the amendments.

(Interruptions).

Can we have quietness in the House, please?

The subject matter of the amendments is receiving every consideration in respect of how to deal with an important issue which has been raised by Senator McDowell, in particular, but which has also been supported by other Senators. I do not wish to repeat points I made on the last occasion. I will respond directly to the issue raised by Senator McDowell on expressions of interest. There is a procedure under which it works whereby a sitting judge makes it known that he or she wishes to be considered for a further assignment. I do not like using the word "promotion" in talking about the courts, but we all know that we are talking about an assignment in moving from one court to another.

It is appointment to a more senior position.

(Interruptions).

The Minister to continue, without interruption, please.

What did the Acting Chairman say? I could not hear her.

The Senator could not hear me because all Senators were talking. I called for the Minister to continue, without interruption.

It is often to a position of greater seniority. Under the Bill, the proposal is that there will be one route and that each applicant for a position will go through the appointments commission, not in the manner that obtains with the JAAB, where sitting judges do not go before it. I acknowledge that under the new regime, the President of each court will not only be a member of the commission but will also have a very influential role in the deliberations of the committee. What I am giving consideration to, as I said on the last occasion, is having a senior appointments commission that would deal with what Senator Norris described as exceptionally high office. He is right because they are positions of exceptionally high office. I have a difficulty with Senator McDowell's amendment in so far as subsection (7) is concerned. What the Senator intends to achieve under the amendment is broader than what was mentioned previously and would go beyond what I am keen to explore. I also understand from Senator Norris that he might regard the parameters of subsection (7) as being somewhat broader than he might envisage.

Is it about informing all members?

No. It involves an amendment that would be significantly broader than what I regard as exceptionally high office, the positions of Chief Justice, President of the Court of Appeal and President of the High Court. In the amendment Senator McDowell wishes to encompass all senior appointments or all appointments that might be regarded as senior, which would be too broad. I want to reflect on the matter further. I want to give it scrutiny, which is what I have been doing, and also want to take advice on it. I am keen to frame an appropriate amendment to the legislation on Report Stage which would allow for the type of senior officials' committee that worked particularly well in the case of the recent appointments of the Chief Justice and the President of the Court of Appeal. It is a vehicle that could also be used in the case of the President of the High Court. They are the three most senior positions and the three exceptionally senior positions mentioned by Senator Norris. In its current guise, I am not prepared to accept amendment No. 90 which I regard as being the amendment within the group that carries a broader array of reforming changes than previous amendments and that carries more weight.

I am grateful to the Minister for saying as much as he did, but I wanted to know whether the procedure for signifying willingness would continue or be prohibited?

It will be prohibited.

That is the point. The only channel of communication for an ordinary judge of the High Court to the Government will be via the judicial appointments commission.

I am teasing it out, but if that is the case, it means what I said on other occasions about other amendments must certainly be true in this instance. The Government will effectively be kept in the dark on the sitting judges who are willing to serve in the Court of Appeal or the Supreme Court. The Minister is effectively saying it will be unlawful for anybody to communicate his or her willingness, other than by making an application to the commission.

I believe that is unconstitutional, but it is a contrived opinion of mine. To me, there is absolutely no excuse. Senator Bacik has just arrived in the Chamber.

For her information, I point out that the Minister has clarified that once the Bill comes into operation, it will be prohibited for a member of the Judiciary to communicate to the Government his or her willingness to accept promotion or appointment to the Court of Appeal or the Supreme Court and the only method of communication with the Government by a sitting judge regarding a willingness to serve in that way would be by making an application to the commission. I believe that is manifestly unconstitutional. The Government has not merely a right, but a duty to consider all people, particularly sitting judges, who are eligible to serve and willing to accept an appointment to one of those courts. It is manifestly unconstitutional to set up an advisory commission, which turns into a censorship device such that the Government is prohibited from knowing that a particular judge is willing to serve on either of those courts.

One of the fundamentals of the Constitution is that it is an executive function of the Government to advise the President on such matters. It is not merely a right; the Government has a duty to do so. The Government must consider its options, but in order to do so it must be informed of what those options are. One cannot state it will have discharged its function if the only way under this new regime that it will become aware that Mr. Justice Michael McDowell, a member of the High Court, wishes to be considered for a vacancy in the Court of Appeal or the Supreme Court is via Mr. Justice McDowell making an application to the appointments commission, which then decides whether the Government is made aware of that name having been put forward. According to the Minister, the commission, including the Attorney General, will be prohibited from telling the Government that a judge applied but was not included on the shortlist. A first year law student in King's Inns would know that is unconstitutional. One cannot do that to the Government. One cannot state that the only names it will be lawful for the Government to be told are the names chosen by people outside of Government, the majority of whom are not judges, although that is irrelevant, and that the choices will, therefore, necessarily be curtailed.

The fig leaf saving this Bill from manifest unconstitutionality on another front is that it is accepted in the Bill that the whole procedure does not prevent the Government from appointing an eligible person off its own bat. However, that fig leaf does not apply if the legislation provides that the Government cannot know the identities of wiling candidates other than the three put forward on a shortlist. Given the Government attitude to my amendment, I am being asked to assent to legislation which is manifestly unconstitutional. I have no doubt on this matter. There are occasions when lawyers query the constitutionality of various matters. As I have stated, I do not claim infallibility on this issue. However, this is manifestly unconstitutional if it has the meaning for which the Minister has contended. This House should not be asked to accept legislation that, in the view of its Members, is unconstitutional.

It is a forlorn hope, but I would love to see a memorandum detailing the Attorney General's reasons for this being constitutional. His opinions are never circulated and, having been Attorney General, I see good reason for that, but I would love to see the arguments as to why the provisions for which the Minister is contending comply with the Constitution. I would love to see set out in writing why the points I am making are wrong because, to me, they are manifestly right.

Ultimately, I hope the Bill will be tested by the Supreme Court on an article 26 reference because these issues are such that on ordinary locus standi rights to challenge legislation, it would be difficult to work out who would challenge it. Are we inviting a disappointed High Court judge to take a legal action pointing out that he or she was not recommended or appointed and is disappointed with the process? Perhaps a case will be taken by an ordinary citizen who thinks that the Judiciary would be improperly composed if this legislation should come to pass and that a decision of the Court of Appeal was invalid by reason of the improper constitution of the court. An Article 26 reference would be entirely appropriate in this case.

The Minister's stated that I am being overly broad in stating that ordinary positions in the Court of Appeal and Supreme Court should be comprehended by a special process. Let us remember one fundamental fact mentioned by Senator Norris - I am glad he reminded me of it - namely, that every member of the High Court is capable ex officio of functioning as a member of the Supreme Court or the Court of Appeal and every member of the Court of Appeal is capable ex officio of functioning as a member of the Supreme Court. That does happen. I have been in court when judges have been, so to speak, brought up to make up numbers for particular reasons. If that is the law as things stand and the Bill does not seek to change that, it is amazing that a judge cannot be a permanent member of the court but can be a temporary member for a particular case and be entirely suitable for that purpose by virtue of being a High Court judge without having been recommended by this external group of people.

It is a very telling point.

Such a judge would not even have any means to communicate to the Government his or her wish to be appointed. It is strange that the Supreme Court could function with one or more members of the High Court sitting on the bench and yet a group of people other than the Government-----

-----can censor the fact a judge of the High Court has applied to become a member of the Supreme Court but been found unsuitable for that position. How can the commission be permitted to deliberately keep the Government in the dark in that regard?

There is another issue of which I wish to remind the Minister.

We were told in Part 2, at section 7, that the decision to recommend a person for the commission should be "based on merit", whatever that means. It is hard to imagine how a shortlist could be composed by a group of people whereby those on the list do not merit inclusion. When one moves on to subsection (2), one sees that when selecting and recommending persons for appointment, "regard shall be had" by the commission to the objective that the membership of the Judiciary should comprise equal numbers of men and women. This is a criterion that the commission is obliged to consider when filling a position in the Supreme Court, for example, which is odd. Regard should also be had to the objective that the membership of the Judiciary should, where feasible and practical, reflect the diversity within the population as a whole. Reference is also made to the Irish language. However, these are not the criteria by which the Government would necessarily decide to fill a vacancy in the Supreme Court. If a liberal-minded woman member of the Supreme Court was retiring, the Government might decide that it wants a liberal-minded man, whom it has identified, to sit on the Supreme Court in her place, or vice versa. There has been an enormous transformation in the composition of the legal profession from the ground up and among the Judiciary, from the least senior courts up. The number of women judges now, relative to the number of senior persons in other professions, is far healthier than in the past. The Government is, on occasions, conscious of gender and gender balance but it is also, on occasions, conscious of other issues such as liberalism, conservatism and so on.

What this comes down to is that the entire purpose of this Bill is to create a situation in which the Government will effectively only know of the desire of persons who are recommended by the commission to be appointed and will be prohibited from knowing that there were other choices, other willing candidates, available to it, which is absolutely unconstitutional. To turn to what the Minister said about amendment No. 90-----

With respect, the Senator has imparted his views to the Seanad as if this is something that has not been discussed to date. This was quite clear from the Second Stage reading and the in-depth Committee Stage debate on Part 2, to which he now refers. It was also dealt with in the context of the discussions on sections 27 and 28. The Senator is right about the confidentiality aspect of the Bill. He is also right when he speaks of the need for the commission to deal with all applications. However, he is not saying anything new, as though this has suddenly dawned on the Seanad by dint of an answer that I gave half an hour ago to Senator McDowell. This was well known. This is the basis of the Bill but the crucial point is that nothing in the Bill interferes with or diminishes the ultimate power of the Government to make an untrammelled recommendation following due consideration.

I thank the Minister for his observations but would point out that Senator McDowell is entitled to make his points, once they are relevant to the amendment, and they appear to be so.

I agree with the Minister in one respect, namely, that this is the logic of the positions he has successively adopted in the course of the Second Stage debate and the Committee Stage debate. This is the logic of his position but it must be clearly understood. If this Bill goes to the Supreme Court under Article 26 of the Constitution, it must be clear what the Minister intends, in case someone suggests that this is a fanciful construction of the Bill. The purpose of the Bill here is to prevent the Government from knowing the eligible and willing members of the Judiciary who are free to act up as temporary members of the courts on a daily basis. We are being told now, very clearly and explicitly, that if -----

It is not a case of only being told now. The Senator was told that all along-----

No. If we enact this law, it will be unlawful for anybody to tell the Government the names of the judges who wished to be considered by the Government for appointment but who were forced into the judicial appointments process and left off the shortlist that goes to the Cabinet. There could not be anything starker as an unconstitutional proposition than that.

With the original Judicial Appointments Advisory Board, JAAB, the word "advisory" meant what it said, in that the Government was taking advice from a body. In this legislation the word "advisory" is dropped because the Minister for Transport, Tourism and Sport, Deputy Ross, thinks that this commission is more than advisory in nature. Perhaps it is more than advisory because under the proposed terms of the Bill, it will be the keeper at the gate as regards the information going to the Government. The Minister says that it is clear that the power of the Government under the Constitution to appoint somebody unrecommended remains untrammelled, but it is not untrammelled if the Government, through this legislation, is deliberately kept in the dark as to its choices. It cannot be that the Government's constitutional power still exists if it is playing blind man's buff, trying to work out what other judges might be interested in being appointed to the Court of Appeal or the Supreme Court.

It is not that this is a sudden revelation to me but it is now starkly before us as to where we are going and where we are being led with this legislation. We are being asked to walk into an unconstitutional cul-de-sac. The Minister should at least accept the fact that I said on many occasions that when we reached amendment No. 90, I would be proposing a different way of doing business which is designed to save this Bill from being deemed unconstitutional. It is designed to stop members of the Judiciary having to engage in a beauty parade before the judicial appointments commission to be appointed to courts where they are ex officio capable of serving without any such process.

It is unconstitutional, in my view, to have a group of people vet the applications of judges by reference to criteria by which the Government is not bound if, at the same time, the law is that the Government cannot be informed, either directly or indirectly, of the willingness of those judges to accept office in a more senior court. I make no apology for wanting to extend this provision to ordinary judges of the High Court because those judges can be asked by the Chief Justice to serve in the Supreme Court for a particular case. The same applies to the Court of Appeal. One may be brought up, sat beside these judges and asked to serve. What business does this proposed appointments commission have in telling the Government that somebody who is capable, by virtue of the fact that he or she serves on the High Court day in, day out, of functioning on the Supreme Court, should or should not be selected to these positions? As a group of people, all High Court judges are entitled to serve in those courts if called upon to do so. The provision is inexplicable and it is wrong.

The Minister has said that he is considering bringing in some amendment in this area on Report Stage. We know what happened. He had a special committee in the Dáil which effectively took this proposal off the table by leaving the section in place and providing that everything goes back to the judicial appointments commission. If the Minister is merely telling us that he is a bad loser in the Dáil and wants to put back in a provision the Dáil rejected, that does not deal with the points this amendment deals with, which is the idea that ordinary judges of the High Court who are ex officio capable of functioning as judges of the Supreme Court should, notwithstanding that fact, submit themselves for scrutiny of their suitability for appointment by a body which is not the Government. One of the problems I have with the Minister saying that he might deal with this on Report Stage and that he may take advice on this - in effect, saying that anything could happen - is that it leads to uncertainty, which is unsatisfactory. If this goes to the heart of the Bill and the heart of the issue of its constitutionality, which I say it does, the idea that we are being told that the Minister is contemplating going some way back towards recovering the position he lost in Dáil Éireann is not good enough. The problem with Report Stage is, as we know, that unless the section or the amendment is recommitted to Committee Stage, we will have a process in which there are a few contributions and the whip will be imposed and the proposal will go through. That is not satisfactory either.

I am not minded to be bought off with the statement that the Minister, as was said, might think about it for longer and that he might do something about it on Report Stage. This is too serious for that. He cannot say that he may do something about it and that he will tell us what he is thinking of doing later, but not today. If the Minister is serious about a Report Stage amendment, he should tell us what it would be. If he does not, I cannot see why anyone in this House would withdraw his or her objection to the Bill as it is currently drafted.

I do not share the Minister's timidity in using the word "promotion". If a person is moving from the High Court to the Supreme Court, it is of course a promotion.

It is a higher court. It is the Supreme Court of the land. There is no higher court. Of course it is a step up. The decisions are more serious.

We have been told that it is an entitlement.

Senator Norris, without interruption.

That is fine, but I am talking about the question of promotion. The Minister has said that it was not a promotion.

I do not think it is a promotion

He hesitated. He thinks the idea is too delicate and requires political correctness. It is a higher position, the candidate gets more money and the views expressed are the law of the land. One could not get higher. One could not get a bigger promotion. It is spelt p-r-o-m-o-t-i-o-n - promotion.

With the focus on confidentiality, there is a frightful whiff of the Cosa Nostra or some other such secret society emanating from this entire bloody thing. If a High Court judge said in a newspaper interview that he or she had applied for the job and was very disappointed that he or she was not even shortlisted, can he or she be held criminally liable for that under this legislation?

It depends on his or her behaviour.

Perhaps the Senator is correct. This is most extraordinary and represents a really serious curtailment of freedom of speech. Will the Minister explain precisely what is so dangerous to the Government about allowing it to see the longlist of candidates who have put themselves forward? Where lies the danger to the Government in that? What is the difficulty? I cannot see that there is a difficulty. In fact, under any form or rules of logic, I would say that the more information one has about a situation, the better one's decision-making will be. Constricting the information also constricts the nature of the decision made.

The Minister has also said that senior judges could be on the committee and they would have a very influential role. How does he know that? These meetings have not taken place yet. Some of these senior judges could have an upset stomach or-----

They will be in a minority at every stage.

Senator McDowell is correct. How on earth can the Minister possibly know that those judges will have a more influential role than anyone else on the committee? He cannot say that, because he is predicting into the future.

It is a matter of one's rank. The Senator is fond of that concept. They will be influential by virtue of their rank, influence and authority.

That does not mean that they will have a more influential role.

No, it does not. We are talking into the future. They could sit down and say nothing at all. What would their influence be then? We are always being told about openness and transparency, but there is very little of that contained in the Minister's response. I have asked a series of questions, and I would like to hear the responses of the Minister.

This is not being done for the protection of the Government in any way. Rather, it is for the protection of those who may not gain favourable consideration under the commission process.

Did the Minister ask for an opinion?

It seeks to ensure that their names will not be in the public arena if they do not want them to appear.

How does the Minister know what these people might wish?

It was an issue that was the subject matter of consultation. I am satisfied about that provision. I do not subscribe to the idea-----

Anyway, letting the Government know who has applied is not the public arena.

----- that the process should be undertaken.

The Senator should let the Minister answer. The Senator can come back in at the end.

I do not accept that there is a majority in either House that would subscribe to Senator Norris's view that every candidate for consideration for selection should have his or her identity in the national newspapers.

Nobody suggested that their names should be in the national newspapers.

Excuse me, but I am being accused of saying that they should be in the national papers and I most definitely am not.

Senator Norris has made an eloquent contribution, as he does on most occasions on which he contributes to debates.

I am beginning to feel a quorum coming on.

He should allow the Minister an opportunity to answer his questions without interruption. He will get another opportunity.

The Minister is talking about the national newspapers. I never said anything about the national newspapers; I was talking about the Government.

Let the Minister respond, please.

Since when is the Government of Ireland a national newspaper? It is not. I never mentioned national newspapers.

Senator Norris will have an opportunity to come back in if he is not satisfied with what the Minister has to say.

There is no intent on the part of the Government to endeavour to protect itself in some way by ensuring confidentiality. I do not agree with the Senator. I do not accept at all that the issue is one of protection of the Government. Rather, it is an issue of protecting the candidates themselves.

I want to refer briefly to a point which Senator McDowell has raised again. It is an important point. It is about the architecture, which was to be a senior appointments commission. I do not come back with this on the basis of it having been defeated in the Dáil or otherwise. I come back to this House to attract support for something which, to my mind, meets the issues of concern as raised by Senator McDowell, albeit not in the comprehensive and wide-ranging way he intends. I invite Senator McDowell to agree with me that what was proposed in the Dáil is more desirable than the current framework in the Bill, having regard to the issue of senior appointments raised by Senator Norris. Senator McDowell wishes to have the best and worst of every world, which is his right as a Senator. However, there comes a time when I would ask Senator McDowell to agree that ultimately, if there are parts of this Bill that can be improved upon, that we should do so. I invite Senator McDowell to agree with me on the construct of a form of senior appointments group.

Senator McDowell makes such a play about the State losing out on the expertise and experience of current serving members and future members of the Judiciary, or about people not applying, because they cannot make direct contact with Government in order to inform it of their intentions. In response to that I would point to the content of section 39, which states clearly that any of these members of the Judiciary will be in a position, and will be required, to submit their names to the commission for consideration. This is the means by which the appointments procedure will be undertaken. The fact that they will not be in a position to express an interest to a Minister or publicly should not act to their detriment because they will be encouraged to apply under section 39(1) in the same way as anybody else who wishes to have his or her name considered for appointment.

The more I hear about this the more alarming I find it. First, let us deal with the invitation the Minister gave me, which was to indicate that his senior appointments committee would be better than what we have here. I am very loath to do so because, if he simply brought us back to the position at which this Bill had us in the Dáil, it would still be unconstitutional for the reasons I have mentioned. I am not going to say that one unconstitutional version of this Bill is better than another unconstitutional version. Unless the Minister deals with the constitutional issues I am raising, then both versions are equally bad in my view. The fact that one may look prettier or be more polished than another does not save it from ultimately being judged as to whether it is constitutional or unconstitutional.

I invite the Minister to tell me what is wrong with the present arrangement whereby the holder of a position in the High Court, the Court of Appeal or the Supreme Court who seeks to be considered for a more senior position is invited to intimate to the Secretary General to the Government that he or she is so willing. What is wrong with that? Does it somehow embarrass the Government to know who is interested in a particular appointment? Does it produce worse results? Does it amount to a form of canvassing which is reprehensible in some way? Of the 40 or so High Court judges - I am not sure how many there are, it is 40 or thereabouts - if 20 would, if asked, serve in the Court of Appeal why should the Government not know that? Why should it not know who they are?

By the way, I am absolutely sure that some judges of the High Court would not like to be appointed to the Court of Appeal, notwithstanding the slightly larger salary that goes with the appointment, because being a member of the Court of Appeal requires great intellectual endeavour and industry in terms of written submissions, preparing written judgments and the like. Some judges might feel that, having done ten or 15 years in the High Court and having dealt with defamation actions and this, that and the other, they frankly do not want to specialise as a points of law judge from now on. That is a perfectly respectable point of view. It is not to be assumed that every member of the Judiciary would like to be on the Court of Appeal or the Supreme Court. Yes, the term "promotion" can be used and it is doubtless that all of them would consider it an honour of sorts, but some might say that if they have another five or ten years to serve as a judge they might prefer to spend it on a mixture of cases rather than hearing points of law cases for the rest of their lives.

Likewise, it is very definitely my view that many judges might like to be on the Supreme Court but might not like to be on the Court of Appeal. Such judges would be minded to make an application for one, but not for the other. There is nothing wrong with that. I can well imagine men and women on the High Court Bench saying that they would not like to be on the Court of Appeal but that they would like to be on the Supreme Court if asked by the Government. That is a perfectly reasonable, rational frame of mind for somebody to have.

When the Minister asked if I would not consider that what he had in the Bill before it was amended in the Dáil was better than what we have now, I am dubious about the proposition because at least the constitutional flaws in this legislation are more obvious, even though they were present in the original version of the Bill.

If the Minister wants to reverse the decision taken in the Dáil on the presidencies of the Court of Appeal, the High Court and the Supreme Court, why did he not put down an amendment on Committee Stage in this House so that we could discuss it in the proper way? Why is he holding back until Report Stage to come forward with his proposals? I do not see why that should be.

To have a special procedure for the presidency of the High Court, the Court of Appeal or the Supreme Court suggests in some sense that those positions are of much greater importance than the ordinary membership of those courts. For example, in many respects the Chief Justice is the titular head of the Judiciary. One Chief Justice does not outvote two ordinary members of the Supreme Court, however, and it is not as if they are qualitatively different or have greater clout by virtue of being on one side of an argument rather than another in a collegiate decision. I do not accept the proposition that we should provide a wholly different mechanism for somebody to be appointed an ordinary judge of the Supreme Court from the mechanism we provide for the appointment of somebody to be Chief Justice.

I have a postscript, if one likes, to these remarks. I am not as convinced, as many judges are, that they are in the best position to tender much advice on these matters. I shy away from the idea of a self-perpetuating, self-appointing or self-recommending Judiciary. The Government is the body that makes the decision-----

The Minister has been abandoned. There is not a single Member from the Government side in the House.

The appointment of an ordinary member of the Supreme Court, whether it is a man or woman, is of major importance. We only have to look to America. It was not the appointment of a chief justice that caused President Trump to get into such a state of high excitement but rather the appointment of an ordinary member because he was affecting the complexion or balance within the court. This distinction between the presidencies and the ordinary membership of the various courts is of doubtful value. The amendment we have tabled seeks to look at the Court of Appeal and the Supreme Court ordinary memberships and presidencies in an equally serious light and protect the Government's rights in the process.

The Government is always free to look for advice, have advice or set up procedures to advise it on such appointments, and I have no problem with that. I object when the so-called advisory body is portrayed, as it has been by the Minister for Transport, Tourism and Sport, Deputy Ross, as a means whereby politicians would no longer have a say in making judicial appointments. That is manifestly false. It is unconstitutional and wrong. Elected politicians who are part of the Government have, as I said, the right and duty to make appointments of judges to the best of their judgment. They can take advice from other people as to the qualities of potential candidates but it is their judgment, for which they are responsible and for which the Constitution holds them accountable and gives them discretion in advising the President.

I welcome the Minister to the House and take his point about the senior level judicial appointments committee. He has indicated his willingness to take on board some of the points that have been raised about that matter in the context of this debate. I will briefly address the point raised by Senator McDowell and which will be dealt with by amendment No. 90, which is currently under discussion. He proposed a new subsection (8) to a new section 44, which shall require the committee to make a report to the Government, including the names of persons who have expressed an interest in appointment to judicial office, as well as the names of the persons whom the committee recommends. I still do not see why there is a difficulty with requiring the committee to provide what Senator Norris has described as a "longlist" of candidates to the Government. Following the debate, I cannot see where the problem lies in giving the Government that list of names.

Like Senator McDowell, I am against the idea of a self-appointing or self-perpetuating judicial appointments process, where judges simply appoint people in their own mould. I have already spoken of the dangers of affinity bias and so on and I will not repeat all that. I do not see where the difficulty lies in having the committee supply the longlist to the Government. In keeping with Cabinet confidentiality, that would not be published anywhere else. It would be outrageous if it were to be published anywhere else. That is not the proposal, which is simply to make a report of those names to the Government. I will not labour the point but I still do not see where the difficulty lies in making that provision.

The Minister was rather disingenuous in his response to the subsection (7) element of Senator McDowell's amendment No. 90, which indicates that the committee shall "inform all members of the Superior Courts of the vacancy and invite any such member to express an interest in being appointed to the judicial office mentioned in subsection (2)". The Minister's response was to point to section 39(1), which states, "Subject to subsection (2), a person, including a person who is for the time being a serving judge or a relevant office holder, who wishes to be considered for appointment to judicial office shall make an application to the Commission in that behalf (specifying the judicial office concerned); that application shall be in writing or in such other format as may be specified in the selection procedure." That does not answer Senator McDowell's amendment. The Minister is firmly placing responsibility back on the shoulders of the applicant, whereas Senator McDowell's amendment has a requirement to let the members of the superior courts know a vacancy is to be filled.

I imagine that the overwhelming majority of members of the superior courts would probably have a bloody good idea if there was a gap in the Judiciary. They would know this almost instinctively because there would be gossip around the robing chambers and all that kind of stuff. Is the Minister suggesting judges should be grateful for not having been actively barred from seeking appointment, or promotion as I would call it?

I am glad to see the Government side has been replenished by somebody who probably does not want to be here but there was a period of five minutes when no Government Member was present.

That does not pertain to the amendment.

It is relevant to what I am on the point of saying. Wait for it. I feel a quorum coming on.

Notice taken that 12 Members were not present; House counted and 12 Members being present,
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, 19; Níl, 20.

  • Bacik, Ivana.
  • Black, Frances.
  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Daly, Mark.
  • Daly, Paul.
  • Davitt, Aidan.
  • Gallagher, Robbie.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • Nash, Gerald.
  • Norris, David.
  • O'Donnell, Marie-Louise.
  • O'Sullivan, Ned.
  • Ó Céidigh, Pádraig.
  • Wilson, Diarmuid.

Níl

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

I welcome to the Gallery the students from Christian Brothers College, Cork. They are wonderful representatives of the school.

There must be an election coming.

They must be reducing the voting age.

I move amendment No. 79:

In page 26, to delete lines 12 to 16 and substitute the following:

"(a) the provisions of the Act of 1961 as amended relating to qualification for appointment as an ordinary judge of the High Court including section 45A of the Act of 1961 (as inserted by section 33(4)),".

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, 19; Níl, 21.

  • Bacik, Ivana.
  • Black, Frances.
  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Daly, Mark.
  • Davitt, Aidan.
  • Gallagher, Robbie.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • Marshall, Ian.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • Nash, Gerald.
  • Norris, David.
  • O'Donnell, Marie-Louise.
  • O'Sullivan, Ned.
  • Ó Céidigh, Pádraig.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coghlan, Paul.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • 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 Michael McDowell and David Norris; Níl, Senators John O'Mahony and James Reilly..
Amendment declared lost.
Question put: "That section 35 stand part of the Bill."
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, 22; Níl, 16.

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coghlan, Paul.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • 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.
  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Davitt, Aidan.
  • Gallagher, Robbie.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • Marshall, Ian.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • Nash, Gerald.
  • Norris, David.
  • O'Donnell, Marie-Louise.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.
Tellers: Tá, Senators John O'Mahony and James Reilly; Níl, Senators Michael McDowell and David Norris..
Question declared carried.
SECTION 36

I move amendment No. 80:

In page 26, line 27, to delete "The Commission" and substitute "Without prejudice to section 7, the Commission".

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, 12; Níl, 21.

  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Daly, Paul.
  • Gallagher, Robbie.
  • Higgins, Alice-Mary.
  • Humphreys, Kevin.
  • Marshall, Ian.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • Nash, Gerald.
  • Norris, David.
  • O'Sullivan, Ned.

Níl

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

Amendment No. 81 is in the name of Senator Ruane, but she is not present to move it.

Amendment No. 81 not moved.

I move amendment No. 82:

In page 26, to delete line 38 and substitute the following:

“(b) is suitable on grounds of character, temperament and capacity, and”.

I wish to withdraw the amendment but reserve the right to reintroduce it on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 83:

In page 26, to delete line 39.

I wish to withdraw the amendment but reserve the right to reintroduce it on Report Stage.

Amendment, by leave, withdrawn.
Question proposed: "That section 36 stand part of the Bill."

A number of aspects are becoming clearer as the discussion goes further. Section 36 is in Part 6, Chapter 2 of the Bill.

Surely the Senator is not confused.

I just want to be clear. The confusion seems to lie entirely in the drafting of this legislation. This section states:

(1) The Commission shall not recommend the name of a person to the Minister unless the person—

(a) has displayed—

(i) in the case of a barrister or solicitor referred to in subsection (2), in his or her practice as a barrister or solicitor, as the case may be, a degree of competence and a degree of probity appropriate to and consistent with the appointment concerned, and

(ii) in the case of a legal academic, in his or her role as a legal academic and also in his or her practice as a barrister or solicitor, as the case may be, a degree of competence and a degree of probity appropriate to and consistent with the appointment concerned,

Subsection 36(1)(b) states that before a person is eligible for appointment, he or she must be "suitable on grounds of character and temperament," and subsection 36(1)(c) states the person must be "suitable on grounds of health." This sounds sensible until we go back to what we have just enacted in subsection 34(1), which states: "Nothing in this Chapter shall be construed as being applicable to a judicial office to which section 44 applies." Section 44, in its present form, applies to the President of the High Court, the Chief Justice and the President of the Court of Appeal. We are now saying the provisions of section 36, which prohibit the appointment of a person who has not shown, in his or her practice as a professional, a degree of competence and probity appropriate to and consistent with the appointment concerned or is not suitable on grounds of character and temperament or on grounds of health, do not apply to the most senior positions in the country. We are told the commission is bound to inquire about the suitability on grounds of character and temperament for any other judicial position but because of the way the Bill is drafted - section 44 has been amended by the Dáil - we are now saying the one thing the commission does not take into account in selecting a Chief Justice is suitability on the grounds of character and temperament or on the grounds of health.

And a degree of competence.

Yes, and a degree of competence when the person was a barrister. These are the kinds of things the commission does not take into account when appointing a Chief Justice, President of the Court of Appeal or President of the High Court. It is very reassuring that these positions are now to be filled by people who have not been vetted on their competence, character, health, temperament or anything else. A certain officeholder - I will spare his blushes - said the Bill was a dog's dinner as it emerged in Dáil Éireann. Surely this is the greatest dog's dinner of all.

A dog would not eat it.

When sections 34 and 36 are combined, the commission, which for most judicial appointments is supposed to look at suitability on grounds of character, temperament, competence, probity and suitability on grounds of health, is not to do this for the three most senior appointments in the land. I cannot understand how that could possibly make sense. I do not understand why we have this multiplicity of chapters and apply bits and bobs of chapters here and there. We will have the same problem at section 37(1) when we get to it. It disapplies Chapters 1 and 2 of Part 7 to the senior appointments. Curiously, if one looks at section 37 - I know I am straying - the same problem arises. Bad drafting and bad amending have brought us the point where section 37 will have the effect that section 39 will not apply to people applying for the post of Chief Justice, President of the High Court or President of the Court of Appeal but will apply to everything else. Surely this must emphasise that the Bill is a dog's dinner. It does not make sense. We are being asked to pass things that are incoherent and which cannot be defended as a matter of common sense. We are being told by the Minister that he wants to get on with this and get through Committee Stage. How can he stand over sections 34 and 37 as they affect sections 36, 38 and 39? It is a complete shambles. It says that all of these things do not apply to the most senior positions in the land. That simply does not make sense and I would like some explanation as to how the Minister reconciles these provisions. I would like it to be taken for granted that somebody who is about to be appointed Chief Justice is suitable on grounds of character, temperament and health and that when the person was a barrister or solicitor he or she behaved with probity and competence. Maybe that is expecting too much of senior positions.

Senator McDowell raised an important point that relates to an issue I raised on the last occasion with the Minister concerning the way the Bill links with existing legislation. The Minister dealt with that point and I believe he took it as a point worthy of consideration that the definition of "practising barrister" in this legislation is not compatible with the definition in the Legal Services Regulation Act. There is a difficulty with a lack of joined-up thinking or consistency. It raises a lack of joined-up thinking within the provisions of the Bill because section 34(1) seems to disapply everything in the chapter to the most senior judicial appointments under section 44. Section 37 disapplies that chapter and Chapter 2 of Part 7 for the most senior positions. Therefore, it is very hard to see how the section 44 appointment procedure is to be run if none of the normal considerations, or the considerations that are normally to be applied by the commission in deciding on competence and merit and so on, is to be applicable when we come to the three most senior positions.

I am conscious that we have tabled amendments to section 38 trying to address some of the discrepancies or issues about these most senior positions. In subsection 44(9), for example, we see a provision that if the commission cannot recommend to the Minister any names of persons to fill these three most senior judicial vacancies, the Minister shall request the commission to seek expressions of interest and so on. I do not think there is any equivalent provision related to any other judicial offices. That is what we are seeking to address through amendment No. 84, which we will come to later. This seems to indicate a very different approach to the three most senior positions compared with the other judicial offices. It is hard to see why there is this very elaborate procedure set out for appointment to the other judicial offices, yet many of those provisions are disapplied to the three most senior judicial offices through subsection 34(1) and section 37. Is there an explanation for that?

On the points we have just discussed with regard to the names of those who are longlisted, can we say the commission cannot forward the names of those longlisted for the three most senior section 44 positions to the Government? I am looking at section 44 to see if I can see any indication there. Is the discussion we had only relevant to those non-section 44 positions? In other words, is the commission similarly precluded from supplying the names of those longlisted for Chief Justice, President of the Court of Appeal or President of the High Court to the Government as it is from supplying the names of those longlisted for other judicial appointment?

A point of concern is that there are such different procedures and the Bill has been constructed in this way. It appears these procedures are all to be consistent around judicial appointment generally, yet through sections 34(1) and 37, section 36 in particular will not be applied to these three more senior positions nor will the other provisions be later in Part 7. Will the Minister explain why there is this different approach? Clearly it is intended to be different. What is the rationale for the different approach? Would it make more sense to apply the same criteria?

Given we are talking about section 36 specifically, it seems of particular concern that all of these considerations around competence, probity, character and temperament are currently not required by the appointments commission under section 44. It might be that I misunderstood this but I do not see where there are any similar or equivalent provisions relating to section 44 positions. Section 36 simply does not apply to those provisions.

When one looks at section 36(1)(d), there is a concern that similarly there will be no requirement for any person appointed under section 44 to give an undertaking in writing to the commission to take courses or courses of training or education as may be required. Perhaps we are saying there should not be any requirement for anybody appointed as Chief Justice, President of the Court of Appeal or President of the High Court to take any courses of training or education. That seems at odds with the purported general principle of the legislation that we would have continuing professional development for judges at all levels. I have been involved in the publication of various reports, in particular one on the legal process and victims of rape some years ago, a topical issue. In that, as in many other expert reports, there have often been recommendations for continuous judicial training and professional development for members of the Judiciary, including senior members of the Judiciary. It would seem odd if we are not going to apply section 36(1)(d) to the three most senior judicial positions.

It is clearly intended that the commission will only recommend the name of a person to the Minister where the person has given an undertaking that if appointed he or she will take courses or courses of training or education such as may be required. Can we square that with the provision in section 34(1) that states that this is simply not to be applied to a section 44 judicial office? There are probably other consequences of sections 34(1)(d) and 37. It is quite difficult to tease these out. When we look at section 36, it clearly has been disapplied and there is no equivalent provision relating to section 44 appointments. As a result, section 44 appointments are made in the absence of any indication as to specific criteria or conditions to be satisfied for those appointments.

That is a valid matter of concern which does require some discussion and explanation.

It seems to me it is very plain where it states, "nothing in this Chapter shall be construed as being applicable to a judicial office to which section 44 applies". That rules out a whole series of the most senior judicial offices of the State. This is a grotesque inconsistency.

With regard for section 44, I note the Minister gives himself the power to request the commission to seek expressions of interest on the part of eligible persons. The Minister objected to an earlier amendment which did exactly the same thing. The Minister is in favour of expressions of interest in one section but against it in another. It is inconsistent.

I hate to tell the Senator but we are on section 36.

Are you on section 36, a Leas-Chathaoirligh? That is exactly the section I am on. What a coincidence. I am so grateful to you for pointing out this unusual conjunction of events.

I did so for fear you were straying. However, I should not doubt you.

Would I ever stray?

Section 44 has been brought directly, as well as quite appropriately as the two sections reflect on each other, into the discussion by Senators McDowell and Bacik. I am just following their example.

It is quite extraordinary that an appointments commission would deal with issues such as probity and all of these other matters. This, by and large, faceless commission, apart from a spattering of judges, will make decisions to say that somebody, including judges and legal academics, who occupies fairly high positions, may not have a degree of competence and a degree of probity. It is a strong thing to say about anybody that he or she does not have the degree of probity, honour and judiciousness, as well as not being suitable on grounds of character and temperament. These enormous circumstances would be actionable measures if the person found out about them.

The section states the commission will not recommend the name of a person to the Minister unless he or she has displayed all of these qualities. To me, that is a most astonishing thing. The unfortunate victims of this process will not even be informed. Not only under this legislation is the Cabinet deprived of this information, I understand the people themselves would be deprived of it. Essentially, when a barrister, solicitor or legal academic applies for one of these posts, he or she could be turned down on the grounds that he or she lacks the character, does not have sufficient probity or temperament, or is incompetent, unworthy dishonourable or his or her health is all over the place. Are the reasons for refusing to nominate somebody made known to the applicant?

Applicants will be notified by the commission as to the status of their application.

Will they be given the reasons?

They could well be.

That is not a satisfactory answer.

Senator Norris speaks of grotesque inconsistencies. Were he to read objectively back over the record of his own contributions, even today alone, he might not be too keen to withhold the word “grotesque” when he speaks of inconsistency.

I will paraphrase the late great writer, James Joyce. Am I inconsistent? Very well then, I am inconsistent. I can say that as an individual Member but I do not believe one should be allowed to say that about legislation.

There is no inconsistency because the Senator will be aware that the purpose of Chapter 2, to which he referred, is to address the recommendation process instituted by the commission under the Bill's provisions.

The arrangements which are proposed under section 44 aim to do exactly what Senator Norris suggested earlier, namely, deal with the exceptional cases of seniority, the three most senior judicial positions in the land, that of Chief Justice, President of the Court of Appeal and President of the High Court. What I wish to do is signify alternative arrangements for these appointments to acknowledge the seniority of the positions and their exceptional nature. My position here, as stated time and again in the course of this debate, is to acknowledge those positions and to propose specific requirements relating to these most senior positions. As I said in response to Senator McDowell earlier, I am reflecting on issues that were raised by Senators and points that were made regarding amendments on which we recently voted but that the Seanad did not seem to regard as being of sufficient import to include in the Bill. I assure Senators that whatever precise arrangements are finally considered for the three most senior positions, we will be ensuring that all of the appropriate criteria will apply to all posts and to those senior posts in particular.

Section 44 provides for the specific arrangements for the three most senior positions. I will be reflecting on the mode of appointment, having regard to what Senators have said this afternoon and will come back to the House with a more definitive arrangement on Report Stage. It is my intention to seek to have an alternative arrangement for appointment to the three most senior positions. They will not be subject to the specifics as outlined in Chapter 2. Of course, we must accept that in filling these three most senior judicial positions, the candidates that will be considered by the Government in furtherance of the filling of vacancies for these positions will be senior members of the Judiciary in any event.

In response to Senator Bacik's point, they will be required to engage in continuous professional development. In fact, the section states that they will be directing other members of the Judiciary in that context so it would be entirely inconsistent were they to be exempt themselves. These people will, in effect, be organising the courses, directing that the course be held and mandating those in more junior positions to attend. Of course, continuous professional development will also be applicable to them. I do not have the final arrangement on the senior appointments committee but I acknowledge the important points that have been raised by Senators Bacik and McDowell in the context of earlier amendments and will consider what Senator Norris quite rightly referred to as the importance of the three exceptional positions of seniority.

The Minister's reflections have been so interesting and I am really distressed that there is nobody in the seats opposite. There are only three Senators in the House. Can this be possible? We must call our colleagues to boot and have a quorum.

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

I call Senator Bacik.

We ought to wait for the Minister.

The Senator's eyesight is suspect.

May I propose that the section stand part of the Bill?

The Senator may do so if he wishes, but I have called Senator Bacik.

I thank the Minister for his response to the points raised by Senators Norris, McDowell and me on section 36 and its disapplication to the section 44 appointments. I also thank him for stating that he will come back on Report Stage with more definitive arrangements for those three most senior appointments. That is very welcome, as is his clarification that there will be a separate process from appointments to other judicial offices.

However, that separate process would not preclude an obligation for further training or continuing professional development. I take his point that under section 36(1)(d) to which I referred it is clear that it is the Chief Justice or the President of the relevant court who would require an appointee to undergo a course or courses of training or education. They are different in that respect to other judges because they direct that the courses be taken. However, that does not mean that they should not also have some obligation for continuing professional development.

Sections 44(10) and (11) relate directly to this point on section 36 and its disapplication to the section 44 positions. Subsections (10) and (11) refer to "eligible person" and "eligible member" qualified for appointment to the judicial office concerned, that is, one of the three top positions, by virtue of sections 5 or 45A of the Act of 1961.

Looking at those sections of the 1961 Act, I am unclear whether practising barristers, solicitors or, indeed, once this Bill is passed, if it ever is, legal academics would be eligible or whether "eligible persons" refers solely to those who already hold judicial office. Senator McDowell reminds me that a practising barrister was appointed directly as President of the High Court. I note the Minister is agreeing with me. There is currently provision for such appointment and that will not change under the provisions of the Bill. However, I am unclear how that will link with the existing provisions in the 1961 Act because section 36 refers to barristers, solicitors and legal academics but not to persons already holding judicial office who seek promotion.

Should there be an equivalent provision for serving judges who are seeking appointment at a more senior level? One might not wish to refer to such appointment as a promotion, so I will refer to it as seeking another judicial appointment. Does any provision of the Bill require certain standards or levels of competence and probity and so on for such judges or will the commission only be concerned with criteria such as those set out in section 36 when considering applications for judicial appointment by a barrister, solicitor or legal academic?

If judges who seek promotion or further appointment are not to be subject to the same sort of conditions, what are the criteria for appointment to further judicial office for judges? It is a fundamental point for the new regime which the Bill anticipates if a significant section of appointments will not be subject to the same criteria as the appointments of practising barristers, solicitors or legal academics. This is a bigger issue about section 36. It is not just about how it links to sections 34(1) and 44. More fundamentally, as it only relates to barristers, solicitors and legal academics, is there any equivalent provision in the Bill for those who are currently judges and seek appointment to further office through the commission procedure? There may be such provision which I have missed. However, if there is not, that is an anomaly or internal inconsistency within a Bill which is supposed to bring forward a more streamlined and consistent set of procedures for judicial appointment.

Senator Bacik and I appear to be at one on the matter of section 44 dealing with the three most senior positions. As I indicated to Senator McDowell, it is my intention to give further consideration and scrutiny to the issue and seek advice on how best we can propose a form of senior appointments committee on Report Stage. I am disappointed that Senator McDowell indicated that he would have a difficulty giving favourable consideration to any proposal we put forward in that regard, particularly given his acknowledgement in amendment No. 90 in particular of the need for an alternative arrangement to the straightforward commission practice and procedure. We will revisit the issue on Report Stage and I will be asking Senators for their support. I acknowledge the welcome that Senator Bacik has given for such a procedure and I hope that can continue.

A point was raised regarding the application of section 36 to those who may already be serving in judicial office and have applied for further assignment, perhaps to a more senior position or a superior court.

I remind Senator Bacik that section 36(1) reads, "The Commission shall not recommend the name of a person to the Minister unless the person—". Of course if it is recommending the name of a judge, that person will have served in that capacity and will have brought to that position the type of expertise that would be regarded as necessary and appropriate. The section states that the name of a barrister or solicitor can only be sent forward if the Commission has given due and appropriate regard to the experience, competence, and suitability of that person. That will not apply in the case of a person who has already shown competence as a member of the Judiciary. This provision is separate and distinct from the appointments under section 44 and I will have a separate and distinct arrangement in respect of that for us to consider on Report Stage. I would be happy to engage with Senators prior to coming back at a later Stage.

If I may respond to the Minister, I hear what he is saying about section 44. We have discussed that. Leaving it aside, I have raised a more fundamental concern about section 36. It does not apply to serving judges seeking promotion. The Minister has indicated that my reading is correct and that it does not apply. It clearly only applies to barristers, solicitors or legal academics seeking appointment. That is fine but I do not see why we cannot have some equivalent criteria set out for the commission to observe when considering applications from serving judges. Indeed it is of concern that there is not something equivalent. I accept that serving judges could be dealt with in a separate provision. I listened carefully to the Minister as he said that he presumes somebody who has served as a judge will have shown competence in that office, but where in the Bill is it set out that the commission must have regard to the level of competence and probity in a person's tenure as a judge?

On another serious issue, where in the Bill is there a requirement for serving judges to give an undertaking that they will engage in continuing professional development training or education as required? It would be an anomaly to exclude serving judges from the requirement set out in section 36(1)(d), which applies to anyone else. Any practitioner, however long-standing, and any legal academic, however senior, must give an undertaking in writing to take a course or courses of training or education. That is absolutely proper and appropriate.

I authored a report on the legal process in respect of victims of rape with two colleagues back in the late 1990s. It identified many issues in our rape and sex offence trial process which are only coming to light and being discussed now. We recommended, and others have since recommended likewise, that many of these issues should be addressed through judicial training. If a serving judge of the District or Circuit Court is appointed as a judge of the High Court, he or she will therefore preside over rape trials as a Central Criminal Court judge. He or she may never have sat as a judge in a rape trial. One should expect that such a person would be required to undertake whatever courses of training, education, or both as might be required in respect of the conduct of such trials or, indeed, in respect of any other area of trial procedure of which he or she might not have had previous experience.

It is of concern that there is no provision to guide the commission in considering applications from serving judges that is similar or equivalent to those criteria set out in section 36 which must be satisfied in order for the commission to recommend the names of practising barristers, solicitors or legal academics for appointment. It seems to be an inconsistency and it is of concern. I acknowledge that if a person has served as a judge, one might presume he or she has the same level of competence or probity but that is not really good enough when the Bill is supposed to be setting out a whole new streamlined and consistent regime for appointments. Why should serving judges be exempt from the requirement to give an undertaking in respect of continuing professional development in particular? That is perhaps as serious, if not more serious, than the lack of any criteria to guide the commission in considering serving judges for appointment.

I do not want to go on any further. The fundamental issue I have with section 36 is that there is nothing equivalent relating to the appointment of serving judges. As I have said, I am leaving aside the point about section 44, of which the Minister has indicated he is aware and with which he will deal. This is about the appointment of persons currently serving as judges to judicial offices that are not the three topmost posts set out in section 44. It could, however, be any other judicial office in which a vacancy has arisen and which the commission is considering.

I was called away for a meeting of the Committee of Members’ Interests of Seanad Éireann and did not quite hear everything the Minister said in response to the points I raised. I believe I have gathered the drift of them from the discussion thus far. The terms of this Chapter and Part of the Bill and of Part 7 have quite clearly been seriously interfered with by the amendments made in the Dáil. The balance of them and their internal coherence has taken a bit of a battering. Of course I welcome any step to address their coherence in principle but I want to make my objection very clear. I hope that I will not have to state it at great length.

I fundamentally object to the notion that a judge who, after ten or 12 years of sitting on the High Court, considers that the Government might consider him or her for appointment as an ordinary member of the Supreme Court should such a vacancy arise, instead of doing what is working perfectly well at the moment, which is to write a letter to the Secretary General to the Government asking the Secretary General to inform the Government that he or she is available for the forthcoming nomination, would instead be told that he or she cannot do that, that is going to be illegal from now on, and that he or she has to put in an application to a commission. I object strongly to that whole idea. It is seriously damaging to the Judiciary that judges cannot just carry out their functions as normal, indicate their availability, and leave it to the Cabinet to decide which of the eligible serving judges would be the best person to put on the Supreme Court.

I again make absolutely clear my objection to the judicial appointments commission advising the Government on that issue by reference to criteria which are of little interest to the Government. For instance, the criterion that it is desirable that the Judiciary should be reflective of society as a whole can, at best, be defended at the point of entry into the Judiciary. It cannot be the case, however, that a group of people that is not the Government starts working out who is the best person to be on the Supreme Court by reference to whether they went to a particular kind of school-----

Clongowes or wherever else. I will not mention any other school-----

The High School.

-----because I will be accused of snobbery. Other such criteria might include the person's religion or things like that. Why are we even considering for a minute giving the appointments commission the function of trying to work out a shortlist of three people from among the Judiciary in order of preference for appointment to the Supreme Court? Why are we doing that? Who are these people that they know more about these matters than the Government?

What is their qualification? At least a member of the Government has stood for constitutional office as a Deputy or a Senator, theoretically.

It is not just theoretically. There have been two.

Yes. As a member of Government, he or she has undertaken a constitutional office. At least members of the Government are given by the people under the Constitution the role of deciding who they should recommend from among the Judiciary to vacancies for the position of ordinary judge of the Supreme Court. I cannot see any basis in the Constitution for saying the Government should not find out who is eligible and that the Government should be kept in the dark as to who would like to be promoted and instead is to be told only about a shortlist of three ranked in order of preference by people who are not going to the make the decision. That is not advice as it currently exists. That is an attempt to force the Government to carry out the wishes of the commission, by keeping it in the dark, which the Minister says is the purpose of this Bill. In my view it is unconstitutional.

I wish to be clear that I am objecting to the idea of a senior legal appointments committee only concerning itself with three positions, namely, the presidencies of the three courts. Frankly, it is not all that important. What one needs for the President of the High Court is a person who can manage other people, and who has experience of the court. One needs someone who can manage the court system and keep it firing on all cylinders, keep the Judiciary motivated and keep them organised and serviced as best he or she can. The Government, the Attorney General and the Minister for Justice and Equality are far better positioned to make that call than a group of people who are not concerned with the day-to-day operation of the courts.

The presidencies are selected out in the Minister's model, which was rejected for a special recommendatory process, but the ordinary members of the Supreme Court are just as important as, for instance, the President of the High Court. They are just as important and just as crucial to the operation of the State and the operation of the constitutional order as anybody else is. Therefore, I want it to be clearly understood that I am not being a dog in the manger about this; my objection lies in the Judiciary being asked to engage in a beauty contest before this group when there is no need for it.

Let us take for instance the Supreme Court. Has anybody ever suggested that it was filled on the basis of cronyism or that wholly unsuitable people were ever appointed to it by the Government?

The Senator would. That proves my point.

Senator McDowell is too cruel.

There is no problem here. I served for eight years as Attorney General and Minister for Justice, Equality and Law Reform and the people who were appointed to the Supreme Court were not appointed on the basis of cronyism or political allegiance. They were appointed on the basis of what kind of people they were, what kind of brains they had, what kind of social attitudes they had and what kind of legal philosophy they had. Those were the criteria. I do not like where we are going with this approach. The Minister has indicated that we have not voted yet on amendment No. 90, but he has indicated that he is against the principle of exempting the present Judiciary from this process. No decent reason has been put for it.

I thought he said he was in favour of it.

No. He said I am too wide in my amendment No. 90 and he thinks he is going to try and get back to where he was in the Dáil before it was amended. No practical reason has been given as to why this should be done. I am against this section. It no longer makes any sense at all. It is ridiculous that we should now be putting in legislation that the three highest presidencies in the land will be filled without regard to the criteria set out in paragraphs (b) and (c) of section 36.

Is the amendment being pressed?

I was following the debate on the monitor and with all respect to Senator McDowell, we seem to be wandering back to amendment No. 90 rather than the business we are on.

We are on section 36.

Yes, but amendment No. 90 has already been dealt with. From the tenor of what I could gauge from-----

Section 36 is related to section 34(1).

Could we just call a vote and stop this nonsense?

It is also my prerogative to try to have reasonable debate and it is not my duty or obligation to interfere. I can direct people but it would be out of my character to force people to vote. Senator Norris wants to make a brief comment.

We have been discussing the same thing for three hours.

It will be quite a brief comment. These people are consultants and this, that and the other, but we do not have any information as to their background qualifications, certainly not in any detail. I wonder what entitles them to say that somebody has not got competence, that they do not have probity, that they are unsuitable on the grounds of character and temperament or health. Are they medical practitioners? What do they know? Who are they?

I would like to know what suitability "on grounds of health" means.

Someone in a wheelchair might make a very good judge.

Yes. One could have a lifelong disability of various kinds and be a perfectly good judge. The implication is that there would have to be medical examinations in order to be appointed to the Judiciary.

Does Senator McDowell mean that one would have to undergo a medical test?

Yes, or fill out a form about one's medical background. I wonder why it is that the commission is being given this function of assessing the health of candidates. Why are we doing that? It has not been a problem in the past.

Is Senator McDowell opposing the section?

Does the Minister have anything further to add, or will I put the question?

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, 22; Níl, 12.

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coghlan, Paul.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • 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.
  • Black, Frances.
  • Boyhan, Victor.
  • Craughwell, Gerard P.
  • Gallagher, Robbie.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • Nash, Gerald.
  • Norris, David.
  • Ó Ríordáin, Aodhán.
Tellers: Tá, Senators John O'Mahony and James Reilly; Níl, Senators Michael McDowell and David Norris..
Question declared carried.
SECTION 37
Question proposed: "That section 37 stand part of the Bill."

Section 37 is the first section in Chapter 1 of Part 7 of the Bill. It states: "Nothing in this Chapter or Chapter 2 shall be construed as being applicable to a judicial office to which section 44 applies". As we know, section 44 applies to three offices. Those are the appointments to the positions of President of the High Court, President of the Court of Appeal and Chief Justice. The disapplication of Chapters 1 and 2 is significant. If Chapter 1 is not to apply, it means that, for instance, section 38, which in subsection (a) concerns the commission providing "information on the selection procedures and the other matters that are set out in a [public] statement", continuing in subsection (b) with "shall, as the occasion requires, invite, through means of advertisement, the making of applications by persons to be considered for selection, that is for their being selected to be the subject of a recommendation for appointment to judicial office, and" may do so in other things, does not apply if this chapter does not apply to appointments to those three positions.

Section 39, which would also be disapplied if section 37 stands, states in subsection (1): "Subject to subsection (2), a person, including a person who is for the time being a serving judge ... [and] who wishes to be considered for appointment ... shall make an application to the Commission in that behalf (specifying the judicial office concerned); [and] that application shall be in writing or in such other format as may be specified in the selection procedures". If that does not apply to the Chief Justice, the President of the Court of Appeal and the President of the High Court, it seems to me that it follows that it will apply to the position of ordinary member of the Supreme Court. This section, in effect, is being disapplied to those three particular offices.

Why are the publications of selection procedures and the like disapplied to the position of the Chief Justice, the President of the Court of Appeal and the President of the High Court? There is no reason given for that. Of course, the reason is that under the original section 44, the commission was to have no function whatsoever in respect of those appointments and, therefore, it made sense to disapply all of that chapter to appointments to those offices. One question I have been wondering about is that if it was the intention of Dáil Éireann to require all positions, including that of Chief Justice, to be the subject of applications to the judicial appointments commission, is there any indication that the Dáil has changed its mind? If we start amending the legislation now so as to undo the amendment that the Dáil made, are we going to find ourselves back in the position where this Bill goes back to the same process in Dáil Éireann only for that House to reject the Minister's formulation for the second time? We would then be left with the Bill in a very dodgy condition.

I am worried about that. I am worried about the whole idea that we should have elevated the procedure to those three presidencies to one particular channel. Even if it is remedied by the Minister so that the judicial appointments commission will have nothing to do with it in future, all other judicial offices will be subject to what is provided for here. There is no point in me repeating why I am against it. I just am against it.

I believe, by the way, that if this Bill is considered by the courts, perhaps by the Supreme Court under Article 26, or by the court system in the context of a challenge brought other than under Article 26, the Judiciary will be obliged to consider a very simple question as to whether it is appropriate for it to be looking over its shoulder at an advisory commission which can, effectively, prevent members of the Judiciary from being considered by the Cabinet because the fact that they are interested must be kept secret and the Cabinet must be kept in the dark about their interest in the position.

I believe that the Judiciary, at whatever level and by whatever means, will ultimately find that is unconstitutional. I remind the Minister that every member of the High Court can sit on the Supreme Court ex officio. They are deemed to be capable and suitable to discharge the function of an ordinary member of the Supreme Court. In that context, I cannot see why members of the High Court should have to apply to a group of people, who are not the Government, for a vetting process and a setting in place of preferences for first, second and third on a list when all of them are eligible, ex officio, to be members of the Supreme Court and to sit as a member of the Supreme Court if called upon to do so by the Chief Justice. Why are we doing all of this?

It is a long time now since we considered the views of the European Commission on interference with judicial independence. It seems like it was almost months ago since we discussed all of that territory.

There was high dudgeon.

Senators were swinging from the rafters.

And what happened?

This Bill still offends that and I believe that the Judiciary in Ireland will find that and I believe the objections stated by the European Commission are still valid. What business is it of any group to take upon itself the function of looking at judges of the Court of Appeal, short-listing them and setting them out in order of preference for appointment to be an ordinary member of the Supreme Court? What business is it of theirs? It is the constitutional function of the Government to do this. It is not the constitutional function of anybody else. The Government is entitled to take advice from somebody else but it cannot be corralled into a state of enforced ignorance because the Minister has conceded that the purpose of this Bill is to prevent-----

We have hit 6 p.m., the time at which this debate must adjourn.

Progress reported; Committee to sit again.