Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

SECTION 37
Question again proposed: "That section 37 stand part of the Bill."

On the previous occasion we were discussing the meaning of section 37, insofar as it disapplies Chapters 1 and 2 of Part 7 of the Bill to a judicial office to which section 44 applies. This means it disapplies the provisions of sections 38 to 43, inclusive, to the offices of Chief Justice, President of the High Court or President of the Court of Appeal. This would be all very well, except when we go to section 38 we find that the disapplied provisions include information on the selection procedures and other matters being set out in a published statement and the advertisement of an invitation for selection applications. It also disapplies provisions to do with applications for appointment to judicial office. The provisions of sections 40 to 43, inclusive, which deal with health and other issues, are also disapplied with regard to appointments to those offices.

Why is this being done? Section 37 really makes no sense unless the commission is extracted completely from the process of appointing persons to the position of President of the High Court, President of the Court of Appeal or Chief Justice. There is no logical reason to disapply these general provisions unless section 44 is amended. This is the point I find a little bit disturbing. The Minister has had plenty of time, and he has complained about the amount of time the Bill has taken, to indicate and table an amendment to section 44 that we could consider on Committee Stage. He has not done this. He is keeping his cards close to his chest. Has the Government come to a view that section 44 cannot stand part of the Bill? Is this why section 37 is being left in?

I am seeking the Minister's guidance because section 37 just states, "Nothing in this Chapter or Chapter 2 shall be construed as being applicable to a judicial office to which section 44 applies." I follow Senator McDowell in taking it that this refers to the Chief Justice, the President of the Court of Appeal and the President of the High Court as these are the officials named. The explanatory memorandum states something I do not quite understand. Perhaps the Bill has been reordered in some way and the numbering is wrong or perhaps there is a reason I have not seen this. It deals with the principle condition to be satisfied, which is basically that the committee will not recommend a person unless the practice requirements set out in the Courts (Supplemental Provisions) Act 1961 are fulfilled. The explanatory memorandum states:

Section 37 provides that in addition to the provision that recommendations be based on merit pursuant to section 7, a relevant committee shall not recommend the name of a person to the Minister unless the relevant practice requirements set out in the Courts (Supplemental Provisions) Act 1961 are complied with. A relevant committee must also ensure that the requirements in the published statement(s) are complied with.

I do not really follow that. Will the Minister say if this is the appropriate explanation in the explanatory memorandum? Perhaps he can tell me if I have mistaken something or it has been renumbered. It does not seem to deal directly with the material either in section 37 or section 44.

I do not wish to disturb Senators in any way but I am on record as having said that I will be coming back on Report Stage with appropriate provisions in respect of dealing with section 44 appointments. I am giving appropriate consideration as to whether it might be expanded and further developed. I want a framework for dealing with what may be regarded as the three most senior appointments. Whatever precise arrangement is arrived at, I will ensure that all the appropriate criteria will necessarily apply to all posts. I am not minded to table an amendment at this stage but I am very keen to examine, in detail, the Bill as amended on Committee Stage. I will then proceed to Government with the issues which I regard as outstanding. I will bring a message from Senators relating to certain points which we have spent some time discussing. I am minded to deal distinctly with senior appointments.

I am very keen to reach a position of finality on what precisely is meant by senior appointments, in the knowledge that specific reference is made in section 44 to what constitutes the top three. All the necessary criteria should, of necessity, apply to all posts and they will do. I will come back on Report Stage in response to the very strong representations made by Senator McDowell and others regarding senior appointments.

The Minister did not address my confusion about the explanatory memorandum.

As is the case in the normal processing of legislation, the explanatory memorandum will probably bear a date which is the date when the Bill was initially circulated. It will have changed significantly in its composition since then.

I had imagined I had got the wrong section and I now see that section 36 limits the application. Section 37 should probably read "section 36". It is the wrong number.

Some of the numbers have been changed. I would certainly be happy to provide Senator Norris with a note as to where the memorandum corresponds and does not correspond with the Bill as amended by the Dáil.

It will take into account future sections.

I thank the Minister. That would be very helpful.

I am glad to hear what the Minister has said. The more I have reflected on section 44 and on whether it should be wide or narrow or should apply purely to the Chief Justice, the President of the Court of Appeal and the President of the High Court rather than to ordinary members of those courts, the more convinced I have become of the merits of making the broader case which I have made.

I wish to put on the record of the House, for the information of other members of the Government who may take an interest in these proceedings, my particular reasoning in relation to this matter. One of the things this Bill seems to ignore in its present structure is the fact that every member of the High Court, man or woman, is ex officio, and is entitled, when invited by the President of the Court of Appeal or the Chief Justice, to serve as an ordinary member of the Supreme Court in any particular case. To become a member of the High Court, as the law currently stands, one has effectively to be franked as a person who is suitable when invited to sit on the Court of Appeal and to sit as an ordinary member of the Supreme Court. It is part of the job and nobody should be on the High Court if they are not capable of discharging that function when they are invited to serve on a temporary basis. There are no grades of judicial capacity as between the High Court, the Court of Appeal and the Supreme Court. It is not a pyramid structure with a judge of one calibre in one court while a judge of another calibre can only be in the second or third court. If every single judge of the High Court can, when invited, serve as an ordinary judge of the Court of Appeal and the Supreme Court, the corollary of that is that, on becoming a High Court judge, a person is deemed to be somebody who can serve on the other two appellate courts.

This Bill should not even remotely attempt to state that, once a person is on the High Court or the Court of Appeal, he or she has to persuade the judicial appointments commission, whether that be composed of judges, lawyers or lay people, that they are suitable to be a permanent member of a court of which they can, as a matter of law, be a temporary member in any event. I am not trying to put up a barbed wire fence or to rope off the High Court-----

The Senator might be more familiar with this than me.

-----from the Court of Appeal or the Supreme Court. I am not saying, for reasons of intellectual snobbery or any such reason, that the members should not apply to the judicial appointments commission.

It is because nobody should be on one of those courts who is not capable of functioning when invited on the Court of Appeal or the Supreme Court. There are not two tiers of Judiciary in the High Court. There are not class B judges whom nobody would touch with a barge pole, who should never be asked to participate in the hearing of an appeal because they are in some sense inferior or of a lower grade. They are ex officio capable of discharging the function of an ordinary judge of the Court of Appeal or the Supreme Court. It is precisely for that reason that there is no rhyme or reason in asking them to submit themselves to another group who will re-evaluate them or ask if they should be there permanently rather than just temporarily. They are capable of doing both. That is why I am offering the Minister, in a constructive and friendly way if I can, a coherent intellectual reason for saying that serving members of the High Court, the Court of Appeal and the Supreme Court should not be asked to resubmit any application to a body at any stage. They have already passed the test. They are already deemed to be capable of discharging the functions of ordinary judges of those courts.

I am not going to push the matter much further. I know the Minster started off with the position, which I fully understand, that the three presidencies were to have this special arrangement. Everybody else who was to be considered for appointment had to go via the commission and be the subject of a shortlisting arrangement. The fact that a judge has been put on the High Court effectively shortlists and qualifies him or her to be an ordinary member of the Supreme Court when requested to act. Therefore he or she has passed all the relevant tests. I have to nail down this point; the question then is whether he or she should be a permanent member of the Supreme Court or just somebody who may be asked by the Chief Justice to act up, so to speak, from time to time. Under the Constitution, that latter question, whether Mr. or Ms Justice Blogs, a member of the High Court, should be in the Court of Appeal or the Supreme Court, is one for the Government alone to decide. It is the Government that decides the composition of the Supreme Court. The Government looks to the kind of Supreme Court it wants. It looks to the kind of judges that are available to it, and others, to make up the kind of Supreme Court it wants and it makes its selection. It is a governmental matter. A re-evaluation of each judge by a group of outsiders is not needed. When I say "outsiders" I mean outside of Government, not outside of the practice of law. The Government does not need to be told that a man or woman who has been serving on the High Court for ten years must be re-evaluated to see if he or she should be a member of the Supreme Court. That function is reserved for Government. It is my view that the spirit of this legislation is an attack on that constitutional prerogative of the Government. It is designed to say that the Government can theoretically select Mr. Justice Norris and put him into the Supreme Court but it cannot really do so. The legislation will make it very embarrassing for the Government to do so unless the candidate has gone to the judicial appointments commission and somehow persuaded it that he is all right from the point of view of background, social representation, gender balance, the whole lot.

I am very gender balanced.

There is no doubt about that.

The legislation would require the candidate to be selected as one of a list of three to be appointed to a vacancy.

I believe that the entire High Court is a shortlist for appointment to the Court of Appeal and under the Constitution the entire High Court and the Court of Appeal are the shortlist for appointment to the Supreme Court. We do not need some further evaluation. We do not need people's health examined. We do not need them to apply and be interviewed by other people. It is a prerogative of Government to make a choice from that shortlist.

The exception to that is where a judge has been directly appointed as a member of the Supreme Court from being a practitioner. That has happened in some cases. There is a serving member of the current Supreme Court who fits into this category. I have no problem with somebody in those circumstances being asked to submit to some form of evaluation or to show some interest. I have no objection to that. However, I am also very clear that if the Government decides, notwithstanding the provisions of this legislation, to simply ask such a person to accept appointment to the Supreme Court, there is no constitutional reason that he or she should not be appointed without involving the commission at all. The Minister and I are at one on this.

The advantage of the commission that I can see is that people, particularly people who are not serving members of the High Court, the Court of Appeal or the Supreme Court, who might be interested in appointment to any of those courts are "encouraged", in inverted commas, to feel that there is an outside agency to which they can make an application. They are encouraged to feel that this agency will look at them fairly and squarely, on a par with judges, and conclude that the Government should consider them when it makes an appointment. Therefore the advantage of the Judicial Appointments Advisory Board as it currently stands and of this commission, however exactly it ends up, is this; people who heretofore have felt they have no particular entrée into the category of people the Government would even consider appointing have some method of coming to the attention of a body which takes a look at them, says they are good, bad or indifferent and shortlists some of them for consideration for appointment to the Judiciary by the Government.

This is the point. Once someone is a member of the senior Judiciary, he or she is already part of a shortlist as a matter of law. It is wrong to tell people on what is in effect a statutory shortlist of people who can be appointed by the Government without further ado that this does not count for anything. It is wrong to tell them that they must resubmit themselves to a body whose function is to consider for appointment to the courts people who are not judges at all, and they must start again among those candidates. It attacks the spirit of the Constitution.

Going back to the particular, it is very clear to me that section 37 as it currently stands is explained by the fact that an entirely different avenue to appointment to three separate offices, the presidencies of the Supreme Court, the Court of Appeal and the High Court, was contemplated by the Bill as originally drafted. However, Dáil Éireann in its wisdom decided that even those positions should be ones for which there should be no access to a shortlist, say through the judicial appointments commission. That is why we are in a slightly strange position where the Minister is now asking us to accept a section saying that nothing in chapters 1 and 2 of Part 7 will apply to certain senior positions, without definitively coming down on one side or the other on the question of what those senior positions are. He has produced a slightly anomalous arrangement whereby some criteria that look as if they should be applicable to all judicial appointments are effectively disapplied.

I do not want to prolong the matter any further.

I think we are in agreement.

I could not hear the Chair. He was mumbling.

Having said all of that, as far as I am concerned, the distinction between section 44 appointments as currently envisaged and other appointments is not valid for the reasons that I have explained. The only distinction I see is between serving members of the superior courts at all three levels who are ex officio qualified to function in the upper two courts and there should be no involvement of any other agency except the Government in making a decision as to which of them should be appointed.

I think there is agreement on this point.

I would not bank on that.

On a point of information, if I could, as Leader, acknowledge the presence in the Gallery of a former colleague and Deputy, Mrs. Áine Brady. She is very welcome.

I would like to concur with that welcome.

Hear, hear. I would like to third it.

I strongly agree with my colleague and friend, Senator McDowell, that it seems absurd that a group of people, including the Chief Justice, should be forced to apply to this external group composed of persons, experts and consultants.

This is an embarrassment according to Senator McDowell. It is an embarrassment to go through a selection process. This is really what we are saying here.

We are not at all. The Minister must listen more intently.

Senator McDowell described it as an embarrassment and this is the nub of the argument.

I am speaking now.

There is only one Chair.

I am not doing anything to the Chair.

Senator Norris has the floor. He should make his point.

Should this process apply to these people? They have to apply to the persons, consultants and experts and all the rest of the blather despite the fact that they are ex officio deemed to be suitable to sit on the Supreme Court. If they are suitable in one instance, how can they not be suitable? Why do they have to do this? This is one of the things wrong with this wonderful country, we are drowning in unmitigated bureaucracy. I got a thing from some crowd demanding that I sign up to 12 pages about sexual harassment and bullying. I shoved it straight in the bin because that is where it belongs. I have never sexually harassed anybody. It is part of my difficulties in life. That is why I am on my own.

Senator Norris was right to put it in the bin. It has damn all to do with section 37, with respect.

The Chair is quite right. I will return to the section and address particularly Senator McDowell's amendment. It reintroduces the Government's original section and extends the senior judicial appointment process-----

There is no amendment on section 37.

I have section 37 here.

I am sorry, it is in section 44, which is consequential. They are all related.

We are dealing with section 37 on its own.

Section 37 applies directly to section 44. Section 44 is explicitly mentioned in the one sentence that deals with this matter. I think I am perfectly entitled to talk about section 44.

It might be noted that the Senator's guests have left.

We have driven them out. They are not my guests.

Well, they are no longer here.

We are on section 37.

Section 37 explicitly states: "Nothing in this chapter or chapter 2 shall be construed as being applicable to a judicial office to which section 44 applies." Section 44 is bang in the middle of it. It is directly germane, as is Senator McDowell's amendment and he has already spoken about his amendment because it is directly relevant.

There is no amendment on section 37.

There is an amendment on section 44 and we were talking about section 44.

We will come to that amendment when we come to it.

Senators should respect the Chair.

We will come to the amendment on section 44 when we come to it. Members should address section 37, please.

I beg your pardon.

We will deal with that amendment when we come to section 44. We are on section 37 now.

It is not section 34 but section 44. I wonder why the Chair takes this aggressive attitude towards me because he allowed Senator McDowell to expatiate-----

Senator Norris is the father of the House and I have never been aggressive to him. He is the father of the House and I have never been other than respectful.

Whatever can be said about Senator Coghlan, he is not aggressive by nature, to be fair to him now.

He is passive aggressive.

He is not that either.

That is not relevant.

It is not relevant, but section 44 is relevant. I want to say that this amendment codifies a procedure that this Government has adopted in recent senior court appointments and it follows that this process should continue on a statutory basis. That is directly relevant.

Actually, now when I look at the situation in its global context, I get a feeling that we are really whistling in the wind here. Only Senator McDowell and myself were in the House when we commenced here this evening.

That does not matter.

It does matter.

It is not relevant.

There was nobody here. Senator Buttimer will see how relevant it is now in a minute.

It is not relevant to section 37.

There was not a single person from the Government or the Opposition, only Senator McDowell and myself. Are we the Legislature? I am sorry to say I feel a quorum coming on.

Is Senator Norris calling for a quorum?

I am. It is the only thing that will shut Senator Buttimer up.

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

If I could say over the karaoke from the backbenches that it would be impossible to discuss this section -----

Who is the karaoke? The Senator has a full quorum.

The Senator should stop barracking.

I am not barracking. I am just delighted that the Senator will discuss the section.

I am ashamed of this coming from the same county as my own.

Order. Senator Norris to speak without interruption.

I am talking about Laois. How dare the Senator call it Laois-Offaly.

Please do not engage the Senator in conversation.

It is Queen's County.

Oh no, she was an awful old bitch, Queen Mary.

I will discuss the impact of the amendment on section 37. I see that the Minister is waving his pencil.

If I could intervene briefly it might be of assistance to Senator Norris. I very much agree with what Senator Norris is saying and would like the opportunity of engaging with him in some detail on the amendment. However, we are not dealing with the amendment.

The amendment is No. 83a under section 44. If there was any means by which we could move on to section 44 I would be very happy to take Senator Norris's points on board. I agree with him that we should discuss the amendment but I would be out of order if I replied to his exhortations on an amendment to which we are precluded from addressing.

As I said, we are on section 37.

Yes, but I would ask the Leas-Chathaoireleach once again to exercise his discretion ------

I am doing my very best. I have already said -----

-----to allow us.

It will take the same amount of time whether we discuss it now or on the amendment.

It is a question of whether we are in or out of order.

My legal advice -----

Senator Norris, we must avoid repetition, please.

I have not repeated anything.

No, the Senator has been. He has been going on about an amendment that is in a different section.

That is not repetition.

The Senator should speak to section 37, please.

The Chairman is going against my legal advice, which is from a former Attorney General, former Minister for justice, former senior counsel -----

The Senator should proceed.

----- and current Senator.

He has had his day. This is history.

Did he not lose his job?

The Senators should not be encouraging him.

It sounds like "The Mikado".

No, it is "Patience".

The Senator is out of order, please. He is trying to make a joke of this. We are on section 37. He is to stop rambling. I want to put the question.

Okay fine. It seems daft that we are having a ruling -----

On a point of order, it is important that we have a certain amount of decorum in the House. I made the point last night that I understand there is a certain amount of filibustering going on by some Members, not by all. The House has an obligation, and it behoves us that when we make our deliberations we do so on the relevant section and amendment. I have great respect for Senator Norris but some of the behaviour in discussing the Bill does not befit the Chamber. To be fair to Senator McDowell, he has always maintained decorum in the presentation of his points. I urge Members to respect the Chair and to understand that we are dealing with legislation with which some Members have an inordinate difficulty, which I respect. However, it does not befit the House that we act in a manner that is cavalier, disrespectful and condescending to many of us. I am being honest on this.

The Leader is correct that Senator McDowell is not filibustering; I am and I regard it as a perfectly legitimate political tactic to get rid of a Bill that is absolutely ridiculous and outrageous. I will continue to filibuster unless and until Standing Orders of this House remove the possibility to do so. I remember one wonderful occasion when Senator Pól Ó Foighíl spoke for three hours in English and then repeated it the next morning as Gaelige.

Is this a history lesson?

I am going to put the question.

Fine. Off you go.

Question put.
The Seanad divided by electronic means.

In view of the extraordinary narrowness of the vote, 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, 21; Níl, 8.

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Devine, Máire.
  • Dolan, John.
  • Feighan, Frank.
  • Gavan, Paul.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • Reilly, James.
  • Richmond, Neale.
  • Warfield, Fintan.

Níl

  • Boyhan, Victor.
  • Craughwell, Gerard P.
  • Humphreys, Kevin.
  • Marshall, Ian.
  • McDowell, Michael.
  • Norris, David.
  • Ó Céidigh, Pádraig.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Michael McDowell and David Norris..
Question declared carried.
SECTION 38

I move amendment No. 83a:

In page 27, line 16, after "Part" to insert ", and notwithstanding the provisions of section 37".

This amendment would provide that section 38, effectively, would not be disapplied by section 37. The structure of the Bill, as it currently applies, indicates that section 38 will not apply to senior appointments, whatever they may end up being, under section 44. By inserting these words, "and notwithstanding the provisions of section 37"", it would be made clearer that in all cases and for all appointments, the commission would be required to publish "information on the selection procedures and the other matters that are set out in a published statement", as well as for all appointments invited "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 that in all cases it should be enabled to "do such other things as it considers necessary to enable the commission to perform its function in relation to selecting persons to be the subject of a recommendation for appointment to judicial office". In effect, as I read section 37 which the Minister has insisted remain in the Bill, it is intended that it will disapply section 38 in the case of some appointments. I am trying to ensure it would apply to all appointments, not just to a majority of them.

The Senator's proposal is to add the words ", and notwithstanding the provisions of section 37", to the introductory part of what would be section 38, with the aim of reversing what the Seanad has just agreed to in section 37 on the basis that it stands part of the Bill. The section disapplies the various provisions of chapters 1 and 2 in Part 7.

It reapplies them.

No. It disapplies the various provisions of chapters 1 and 2 in Part 7 in the process set out in section 44 which concerns the recommendation arrangements for the three most senior judicial positions. In other words, the proposed addition of the words ", and notwithstanding the provisions of section 37" by the Senator and others would ensure, conversely, that the provisions of section 38 would extend to these three posts. I am, therefore, not minded to accept the amendment.

I do not wish to unduly detain Senators, but I remind them of the import and history of section 37. It was a provision included in the Bill, as initiated. I go back to Senator Norris's point about the original ordering of sections. It was originally section 39. It served as a general explanatory provision to the effect that chapters 1 and 2 in Part 7 did not apply to the procedures for certain senior judicial posts, namely, the top three senior judicial positions, which are provided for separately in section 44 in chapter 3 in this Part. Chapter 1 comprises sections 37 to 39, inclusive, and sets out the functions of the commission insofar as the general explanatory provision is concerned. Chapter 2 comprises sections 40 to 43, inclusive, and sets out the specific requirements in the recommendation of names by the commission and the procedures to be applied.

I restate my policy in bringing forward the Bill. The top three positions are that of Chief Justice, President of the Court of Appeal and President of the High Court. I believed that because of the particular demands and requirements of these posts, they should be subject to a process that could be regarded as distinct and separate from the selection of other candidates. I am still very much of that view. I am not of the view that similar considerations need to be applied to all ordinary judges of the Supreme Court, the Court of Appeal and the High Court.

I will refer briefly to the points made by Senator McDowell in support of his alternative process as he spoke about them being, ex officio, entitled to serve because they might have done so, albeit on a temporary basis. I am not sure if there is a similar arrangement across the public service. For example, I can cite numerous instances where a deputy or an assistant Secretary General acts up for a period as Secretary General, albeit on a temporary basis, and I am not sure if the same rigour as applied by the Senator to this precedent is applicable in such cases. That is when the position of Secretary General becomes vacant. The fact that somebody has acted up does not proffer the entitlement the Senator deems to be appropriate in the case of a court.

I do not subscribe to the view that because someone is suitable for a position, he or she is entitled to that position. That would appear to be the import of what the Senator-----

Such a person is entitled to be considered.

Of course he or she is entitled to due consideration. That would take place under the basis of this Bill. I think Senator McDowell addressed his real issue when he said it would be embarrassing for certain people to have to endure a selection process. To my mind, that forms the basis of much of the opposition coming from Senators.

Does the Minister think it would be demeaning for such a person?

The word Senator McDowell used was "embarrassing".

It would be very demeaning as well.

The Senator may well consider it to be demeaning, but I do not. Equally, I would not consider it to be an embarrassment. That is where there is a real divergence of opinion between Senators and the Government. In any event, I remain firmly of the view that the particular demands and requirements of senior judicial positions warrant serious consideration being given to a process that can be regarded as separate and distinct, which is what I wanted. The section that was originally included in the Bill to provide for this was deleted on Committee Stage in the Dáil. Deputy Clare Daly and I tabled amendments on Report Stage in the Dáil to reinstate the section in question. As a result of the acceptance of one of those amendments by the Dáil, what was section 39 of this Bill when it was initiated is now section 37 of the Bill before us. The wording of the section has not changed, but the number of the section has. The Senator referred to the positioning of the numbers, but I am not sure if he noticed the change.

The last time we considered this Bill, we discussed the proposed disapplication of certain provisions to certain senior posts. I accept Senator McDowell's point that this is significant and important. I have already indicated this evening, as I did on the last occasion, that I intend to bring forward an amendment on Report Stage as a solution to the position of the most senior appointments. I urge Senators to give it due and careful consideration. The proposed amendment will ensure any conditions - they may be referred to as "obstacles" by Senator McDowell - under Chapter 2 of Part 6 that need to apply will, in effect, apply. If we are to have some kind of bespoke recommendation process relating to the top posts, of course we will need to ensure the general run of application and recommendation procedures will not apply to such posts. That is why, in any event, the provisions of section 37 of the Bill are needed from a drafting point of view. I want to labour the point that I intend to have a separate and distinct arrangement for us to consider on Report Stage. I acknowledge that the Senator and I differ on this issue as far as the whole range of court appointments is concerned. I am very keen for us to reach agreement on an approach to section 44. I urge Senators to acknowledge the importance of having the top three positions distinct and separate. I ask them to assist in ensuring that is the case by reaching an appropriate and suitable agreement on how best this can be managed within section 44.

Another difficulty with the synchronicity of the numbers became clear to me when I read the explanatory memorandum:

Making of recommendations: certain functions

Section 40 provides that the Commission may make available information on the selection procedures through such means as it considers appropriate. The Commission must advertise for applications for selection for appointment to judicial office.

I think that very clearly refers to the section we are looking at. I will be very brief on this occasion. I have to bow and show deference to Senator McDowell's legal expertise but I am not entirely convinced that the phrase "notwithstanding the provisions of section 37" will actually have the effect of reversing it. I would prefer something like "and the provisions of section 37 do not apply in this instance" to be included in the Bill. If we include the word "notwithstanding", it will mean that section 37 will be kind of put to one side. It will not mean that it will be absolutely negated. That is what I think, but maybe I am wrong. I am just wondering. Perhaps the House might hear from Senator McDowell on this point.

I agree with Senator Norris that using the word "notwithstanding" is not as clear as simply saying the previous section does not apply to this section at all. The procedures of this House mean that if I were to propose an amendment saying that the previous section does not apply, I would be told that the House had just decided that it does apply and I would be seen to be asking the House to reverse a decision it had just made. I am trying to carve out this section from the rest of the two chapters in order to provide that section 38 will have general application. The Minister has widened the debate-----

I am awfully sorry, but I notice that once again, the only people who are present in addition to Senator McDowell and myself are two-----

There are a few things that I would like to say to the Minister before the Senator asks for a wider audience.

I am not calling for a quorum. I was just making an observation.

If I may say so, the Minister is my audience on this occasion. I agree with the Minister that the positions of Chief Justice, President of the Court of Appeal and President of the High Court are different from the ordinary positions in those courts. That is because the Chief Justice, for instance, has significant other functions, such as chairing the Courts Service, and various other functions in law. Since we amended the Constitution, the holders of the three positions I have mentioned - instead of two previously - sit on the Council of State. The Chief Justice serves on the Presidential Commission when it is required to function because the President is abroad or whatever. Likewise, the President of the High Court has huge functions with regard to disqualification of solicitors, wards of court, administration of the High Court and all the rest of it. The President of the Court of Appeal has weighty responsibilities in organising the business of that court. I agree with the Minister, if this is the point he is making, that those positions require administrative skills which are not just simply judicial skills. One could be a brilliant judge and a very poor President of the High Court if one is not into the business of organising one's fellow members of the High Court, which involves allocating duties to them, getting them to do this, that and the other, and organising and administering the wards of court office. The President of the High Court gets to do all kinds of other things, such as supervising the activities of the professional regulatory bodies, including the Law Society's activities in relation to the discipline of solicitors and the like.

I accept that those three positions are different from other positions. I do accept that proposition. I am not denying that there is that difference but I do ask the Minister why it is that he will not trust the judicial appointments commission to have the same function in relation to them as he does for an ordinary judge of the Supreme Court. What is it about this group of people that he suddenly says they are not getting their hands on making a recommendation for the President of the High Court, that it is too important or sensitive for such people, that the Government and senior judges will decide and there will not be lay involvement? What is the rationale for that? Just to say that again, the Minister says that these are very important positions, that he wants to have a special procedure for appointing them, that he wants to have a committee of senior judges who will give advice to the Government on these matters, and that he does not want the judicial appointments commission to have a function in relation to them.

Why? Why does this body, which is so brilliant at everything else, suddenly become so useless when it comes to those three positions? The answer is because they do not know. I presume that the answer is that he does not trust them to come up with the recommendations for the President of the High Court or whatever. The Minister would prefer if the Government made that decision by itself, in consultation with senior judges, if it likes to do, but he does not want all of this gobbledygook about reflecting the diversity of society to come into it at all. He is saying that he wants a particular type of person to be President of the High Court and that is a skilled administrator who is capable of doing all those functions.

This is a double-edged sword. The Minister says that these are very important positions of a senior kind.

You are wielding the sword on both edges.

I remember the late John Patrick Wilson, the former Tánaiste, teaching me Latin in Gonzaga College. The phrase was gladium anceps, a double-edged sword which would go in either direction. The Minister has come here and said suddenly that he wants to take these three positions away from the judicial appointments commission.

No, not suddenly.

So do I, by the way. Why does he want to do that? I know why I want to do so. I want a rationalisation from the Minister as to why he thinks this group of people would not be a good group to make a shortlist of people for consideration by Government.

I will tell the Minister why. It is because he does not really trust them to know the insides and outsides of what is involved in the matter. They are not sufficiently skilled to give him advice on who should be the Chief Justice-----

That is why you need a double-edged sword: to get at the insides and the outsides.

Through the Chair.

They do not know enough to make a recommendation, or even draw up a shortlist, as to who should be President of the High Court. Why not? They are skilled when it suits the Minister. These are people who are going to be selected from all sorts of life. They are going to be rushed through by the Public Appointments Service. They are going to be approved by Members of the Oireachtas, but suddenly-----

And gender fluid.

They will be wonderful people. They will have all of the qualifications that are required.

Diversity and all the rest of it, but when it comes to making a decision of this kind, the Minister is saying no, they are not to have a function in this, that it is a governmental function on which the Government will take advice from senior judges but not from a majority lay body. Where is the reasoning and justification for that distinction? I can see it a mile away. It is that the Government would prefer to trust its own judgment on these matters to that of a group of people selected in the manner set out in this legislation, in draft form, for the selection and organisation of the lay majority judicial appointments commission.

I am not trying to be smart here. I am asking the Minister to justify why the commission cannot address itself to that issue in a manner that he would be prepared to accept. Why does he propose to come back with section 44 to keep it a million miles away from those three positions? The answer must be that he does not trust it to do as good a job as the Government being advised by the Attorney General and three senior judges. The Minister does not trust the commission on the selection of those three positions to do as good a job as his soon to be formulated revised section 44 would.

That makes my point for me. It makes my point for me that this group of people are not to be trusted with certain functions because, on this evidence, they do not know sufficiently much to give advice. Otherwise, the amendment made in the Dáil, which-----

Sufficiently much is a tautology.

Sorry, they do not know sufficient to advise the Government or to draw up a shortlist with which the Minister would be happy. That underlines the fact that a lay majority group is not as good, in some circumstances, as a non-lay majority group.

It is not a group whose judgment would be relied upon as much as on the advice of a group of people who knew more about how the courts function.

I conceded that those three positions have administrative characteristics, which could justify them being put into a separate category. I make the point, however, that the selection of a High Court judge, or the making of a selection between five, ten or 15 High Court judges who are willing to be appointed as ordinary members of the Supreme Court or to be a Supreme Court judge, is just as important a decision, in many respects, as deciding which of the three most senior members of the Court of Appeal should become President of that court, and it is one on which the Government itself should make the decision. It is one on which, frankly, the views of a judicial appointments commission are not of any real value. That is why the present Judicial Appointments Advisory Board makes it very clear that where the Government proposes to appoint a judge of, say, the Court of Appeal, to be a Supreme Court judge, it can do it without any involvement of any people from outside of Government.

The Minister disturbed me greatly by talking about Secretaries General acting up as if this is a Secretary General acting up kind of decision. The constitutional role of members of the Supreme Court, not merely under Article 26 but generally, is to determine what the Constitution means for the people. It is a central function. Every single member of the Supreme Court is performing a central function in our democracy. The decision as to who should do it and who should not do it is just as important as whether Senator Norris or myself will make a better administrator if either of us were a judge. The decision as to where one wants a liberal or a conservative is just as crucial to how our Constitution actually functions and what it actually means in the end as whether the President of the High Court is better or worse than some other member of the Judiciary at running the Office of the Wards of Court.

They are all important functions, but there is this notion that somehow - I think it is held by officials in the Department of Justice and Equality, a Department for which I have great respect - it does not matter who is appointed to the Supreme Court or the one thing that does not matter in terms of who is appointed to the Supreme Court is the Government's view because they are a crowd of eejits in Government Buildings.

Let us have some people who really know about it; let us have a lay majority and let us give them a shortlist which they are bound to consider.

A garage man, to quote the Senator.

That would be far better, but I reject that idea completely. I am not very keen either on installing the Judiciary in a position where it would have a pulpit view in the selection of the Chief Justice. A new Government might take a different view from that of the Judiciary of who should or should not be the next Chief Justice. Asking the Presidents of the various courts to furnish a report with a short list to the Government is not a very healthy development. I was present when two Chief Justices were appointed. I am not going to go into detail, but it was a matter for the Government to consider and discuss. It did not need a group of whatever complexion or even the Judiciary tapping the Minister on the shoulder to say Jo or Josephine Blogg would be better than Jane or James Smith. I do not think the Judiciary should have a significant role to play in making recommendations as to who the Chief Justice should be. That is a bad idea. I know that in the situation as I found it it was perfectly open to the Attorney General to go to the outgoing or soon to be retiring Chief Justice to discuss the question of succession with him or her. That was open to being done and the Attorney General to come back to the Minister for Justice and Equality to say the name, or the Minister for Justice and Equality could have done it and asked the Attorney General who the front runners were. It is perfectly reasonable for a Minister to ask, but in the end it is a matter for the Government to make up its mind on the issue. The intervention of others is not of assistance.

I will go back to my starting point, if we are to be logical, that if one does not trust the Judicial Appointments Commission to make recommendations to the Presidents of the three superior courts, why not? Is there some reason they would not ask for people to be evaluated by the Judicial Appointments Commission appointment to these three positions and that reasoning does not apply in being an ordinary member of any of those courts? I do not see the logic in it.

I read a remark attributed to one member of the Government that somehow Law Library insiders were opposed to this legislation. I will tell Members what Law Library insiders and outsiders and all members of the legal profession, barristers and solicitors, are concerned about. It is the question of whether this legislation will improve or disimprove the quality of the Judiciary and whether it will make it more or less likely that people who would make good judges will be frightened away by a process in which they would have to submit themselves for evaluation in a beauty parade and then be rejected off a short list for consideration by the Cabinet. What I find is that it is not a matter about Law Library insiders but people who care about the constitutional fabric of the country. It is about people who care for the Constitution. They ask whether the Bill will produce different and better judges or if is all window dressing.

The Minister invited me to go down the road of thinking that this is similar to an official acting up as Secretary General, but it is not. Once an individual is made a judge of the High Court, under the Constitution he or she is given the function in an individual case of making a full and original determination on issues such as the constitutionality of an Act. Every single member of the High Court has that power. Once one becomes a member of the High Court, as legislation has it in place, one becomes somebody whom the Chief Justice or the President of the Court of Appeal can tap on the shoulder to ask to participate in the affairs of the Supreme Court or the Court of Appeal, as the case may be. This is not theoretical. I have been involved in a case before the Court of Appeal in which High Court judges were sitting with Appeal Court judges. I do not know whether it was due to a shortage of numbers or prior conflicts-----

I have seen them and they function in exactly the same way as ordinary members of that court. One takes them as if they were ordinary members of the court because they have been invited to act as ordinary members of the court. It is not like saying they are civil servants who are acting up; rather, they are different. Under the Constitution, a judge has significant power and is being asked to act in a different capacity. What the Minister is saying is that he or she cannot be appointed to act in that different capacity on a permanent basis, unless he or she submits himself or herself to scrutiny outside the governmental structure to see whether he or she should be shortlisted to carry out such a function. I am wholly opposed to that principle and it will not improve the Judiciary; rather, it will seriously inhibit members of it in indicating a willingness to accept appointment to the Court of Appeal and the Supreme Court.

The Minister makes fun of my use of the term "embarrassment". If someone has been a judge of the High Court for 20 years and would like the Government to consider appointing him or her to the Supreme Court, he or she will write a letter to the Secretary to the Government and simply say:

Dear Secretary,

I understand there is a vacancy coming up in the next three months or whatever time period. I would like the Cabinet to be aware that I am ready and willing to accept appointment, if the Cabinet considers that to be appropriate.

That is not canvassing. It is simply saying, "I am here."

Barkis is willing.

That is all a judge has to do. Under what is being put in place, as the Minister told us on the last occasion - I will not go back over the terms in which he told us - that will not be permitted in the future. The only way in which a person who has served for ten or 15 years in the High Court will be able to signal to the Government his or her willingness to serve as a member of the Court of Appeal or the Supreme Court is by entering into a competitive process with the Judicial Appointments Commission, whereby applications will be submited, applicants will be interviewed and their names may or not be included in a secret list that will go to the Government. They may or may not be told - we have never had a clear explanation - that they were or were not shortlisted.

That is what is going on here.

The Minister may make light of the phrase "embarrassing" but if a person has been functioning as a High Court judge for ten or 15 years and all he or she wants to do is signal availability - and the person is a humble High Court judge who fully appreciates they may have better judges than him or her, and that is their business, but only wants to inform them that he or she is available - I see nothing wrong in that procedure. If one wants, in these circumstances-----

I am distressed to see that we are, once again, reduced to three Members. I wonder could we have a few more Members here.

Is Senator Norris calling a quorum?

I think that is what it is called. I am unfamiliar with the term.

It does not have to be agreed.

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

On a point of order, who called the quorum?

Senator Norris has gone home.

Senator Norris has left the room.

Has the Senator gone home?

Senator Norris has gone home.

Senator Lawlor should resume his seat.

That is okay. I am merely clarifying that Senator Norris has gone home.

Senator Norris is not in the building.

The Senator has gone home laughing.

I am content to simply say this. It is something, by the way, I am glad that there are more Senators here to listen to. We are being told that, to fill the position of President of the Court of Appeal, President of the High Court and-----

On a point of order, we have discussed this on a number of occasions previously. I have been here on a number of occasions and this has come up constantly.

Senator McDowell has the floor. I appreciate Senator Lawlor's concerns. Senator McDowell is entitled to make his case.

The Acting Chairman, Senator Craughwell, has put his name to this amendment.

The Acting Chairman has put his name to this amendment.

Is it impartial that Senator Craughwell should also be in the Chair?

I am quite entitled to do so. I am acting here in an impartial capacity. Senator McDowell has the floor and I ask him to resume.

I made the point - simply, for those who were not here - that, as far as I am concerned, it is strange indeed that the Minister is contemplating having a separate system of appointing the three senior presidencies in the superior courts, excluding-----

With which the Senator agrees.

-----the commission.

With which the Senator agrees.

The Minister will get an opportunity to reply.

I am glad that the Minister acknowledges that we are in accord on this matter but I am wondering why it is. I know why I think the judicial appointments commission should not be involved but the Minister will not say why it will not be involved. I am saying that is because the Minister does not trust the commission to come up with the right persons to fill those positions and he is uncomfortable with the idea that the commission would draw up a shortlist for Government. The Minister is of the view that such a shortlist would be inferior to the recommendations of the committee that the Minister originally set out in the Bill. I am merely making the point that the Minister does not trust them to carry out certain functions as well as he trusts the present situation, that is, that the views of senior judges can be taken and the Government can make up its own mind.

Progress reported; Committee to sit again.
The Seanad adjourned at 9 p.m. until 10.30 a.m. on Thursday, 13 December 2018.