Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

SECTION 38
Debate resumed on amendment No. 83a:
In page 27, line 16, after “Part” to insert “, and notwithstanding the provisions of section 37”.
- (Senator Michael McDowell)

Senator McDowell is in possession.

I have said all I wanted to say on the amendment.

That is rather pleasant. Does anyone else wish to contribute? Does Senator Bacik wish to contribute, given that Senator McDowell has said everything he wishes to say on the amendment?

I do not have anything further to add on the amendment.

Does the Minister wish to comment?

(Interruptions).

I do not wish to hear too many voices.

If the Chair wishes to take the opportunity to invite any other comments-----

The Chair will rule. I do not wish to hear voices simultaneously. The Minister is not a Member of the House.

Amendment put:
The Committee divided: Tá, 13; Níl, 17.

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Daly, Mark.
  • Gallagher, Robbie.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • Marshall, Ian.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • Nash, Gerald.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Feighan, Frank.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Richmond, Neale.
  • Warfield, Fintan.
Tellers: Tá, Senators Ivana Bacik and Michael McDowell; Níl, Senators Gabrielle McFadden and James Reilly.
Amendment declared lost.

Amendments Nos. 84, 85 and 85a are related. Amendment No. 85a is a physical alternative to amendment No. 85. The amendments may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 84:

In page 27, between lines 26 and 27, to insert the following:

“ (2) Without prejudice to the generality of subsection (1)(c), the Commission may, as the occasion requires, directly invite a particular person (including a person who is for the time being a serving judge or a relevant office holder within the meaning of section 41(5)) to make an application to be considered for selection; such an invitation shall not constitute or give rise to preferential consideration by the Commission of an application made in response to such an invitation. ”.

The grouping comprises my two amendments, amendments Nos. 84 and 85, and Senator McDowell's amendment No. 85a. My two amendments relate to section 38 and seek to insert a new subsection concerning the power of the commission to directly invite a particular person, including a serving judge or relevant officeholder, to make an application to be considered for selection.

I note an error in the drafting of the amendment where it refers to section 41(5), which no longer-----

I am advised that can be dealt with on Report Stage.

That is fine. I wished only to ensure it was noted on the record in case I need to refer to it on Report Stage.

The amendments seek to draw a distinction between those who are serving judges or relevant officeholders and other potential applicants, conscious that section 39 of the Bill provides for applications for appointment to judicial office through section 39(1), which allows for an applicant to be "a person who is for the time being a serving judge a relevant office holder" and which goes on to require that the person shall make an application to the commission if he or she wishes to be considered for judicial office.

In amendments Nos. 84 and 85, combined, we are seeking to take out of section 39(1) the reference to serving judges or relevant officeholders and make a separate provision for serving judges or relevant officeholders in order to enable the commission to directly invite such persons, and others, to make an application to be considered for selection. Amendment No. 84 makes it clear that the power to make such an invitation does not constitute or give rise to preferential consideration by the commission. It simply gives the commission power to invite directly a particular person to make an application to be considered for selection rather than leaving it up to the person to make the application to the commission, as in section 39 as currently constituted.

Our amendments Nos. 86 and 87, which are coming up shortly, are different and relate to gender balance. The gender balance in our Judiciary is, in fact, better than in many other common law countries but it is well established that, from time to time, to achieve greater diversity in any profession, including the Judiciary, powers such as positive action, mentoring or some other additional support to those who are under-represented should be built in and amendment No. 84 should be seen in that context. It gives the commission power to invite persons to apply, which is a power that may, from time to time, be useful particularly if the commission is to have regard to the need for gender balance among the Judiciary.

Amendment No. 85 is the consequent amendment because it would delete the relevant provision in section 39(1). We are trying to provide a distinct power to the commission of direct invitation for potential applicants, including those applicants who are, for the time being, serving judges and relevant officeholders.

To some extent, the amendments in the name of Senator Bacik and her colleagues and my amendments are, if not diametric opposites, quite different in some respects. The effect of section 39, as it currently stands, is that a person, including a person who is, for the time being, a serving judge or relevant officeholder, who wishes to be considered for appointment to judicial office is obliged to 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. Section 39(2) provides that an application under subsection (1) shall not be made otherwise than pursuant to an invitation made by the commission under section 38(b) that relates to the judicial office concerned. In the round, this section is effectively stating that nobody can apply to the commission other than in the context of an advertisement for consideration.

Section 38(b) states that the commission shall, as the occasion requires, invite through means of advertisement the making of applications for persons to be considered for selection, that is, for their selection to be the subject of a recommendation for appointment to judicial office. The net effect of the provision in section 38(b), combined with section 39(2), will be that the only way somebody can bring themselves to the attention of the commission is in response to an advertisement. Section 39(1) states that a person who is, for the time being, a serving judge or a relevant officeholder who wishes to be considered shall make an application in that behalf. That application effectively changes the current practice, which is that a judge of the superior courts who wants to be considered for a position simply notifies the Secretary to the Government of his or her willingness to be appointed and his or her desire to be considered by the Government in that respect.

It seems we are dealing with a provision that is meant to obliterate any channel of communication between members of the Judiciary and the Government, other than a response to the commission's advertisement. This is a provision the gist of which is that the only communication a judge can make to the Government of his or her willingness to be considered for appointment as a judge in the High Court, Court of Appeal or Supreme Court is by means of the section 38 advertisement procedure. As I have said before, I have a very strong objection to that, based on the fact that every single member of the High Court is eligible to serve, at the request of the President of the Court of Appeal or the Chief Justice, as a member of the Court of Appeal or the Supreme Court, respectively, and such people are already deemed worthy to be able to serve in those courts when requested. When appointing somebody to the High Court, a decision is also made that the person in question is not merely a person who will function on a day-to-day basis as a member of the High Court but may, from time to time, be asked to serve on the Court of Appeal and the Supreme Court. Therefore, the question of their suitability for membership of the Court of Appeal or the Supreme Court is something which has to be considered at the time of their appointment to the High Court. If they are appointed to the High Court, it is implicit in that appointment that the person is somebody who can, from time to time, serve on the Court of Appeal and the Supreme Court when requested to do so.

In that context requiring members of the High Court, the Court of Appeal or the Supreme Court to apply to the commission for consideration for any other appointment within those courts is deeply obnoxious. It puts them in the position of having to effectively re-prove their suitability for the Court of Appeal or the Supreme Court to the satisfaction of the judicial appointments commission. It is not preferential treatment for existing superior court judges to say that they should not have to apply to the judicial appointments commission. They have already proved, by definition, their suitability to act on either of the courts above the High Court by the mere fact that they have been appointed to the High Court in the first place.

Asking them to go back to square one and prove again their suitability for another job in the same set of courts is deeply obnoxious. Let us remember it is not unprecedented for an ordinary member of the Supreme Court to be appointed as President of the High Court. It has happened. Mr. Justice Kearns, the last holder of that job, was serving as an ordinary member of the Supreme Court prior to his appointment as President of the High Court. Without personalising it, I make the point one can be an ordinary member of the Supreme Court and ask to be made President of the Court of Appeal or President of the High Court. There is nothing unusual about it. What might appear to some people to be a downward step is not a downward step because the President of the High Court is an ex officio member of the Supreme Court and so is the President of the Court of Appeal. It is a movement sideways to carry out a different function within the Judiciary. The Bill is based on a number of misapprehensions which mean people who attain membership of the High Court would have to prove again to the satisfaction of the judicial appointments commission that they should go further upwards or even sideways or downwards. They would have to prove to the satisfaction of the commission that they should do so. I am very much against such a proposal.

The purpose of amendment No. 85a, which is in my name, is to amend section 39 to make it clear that section 39(1) does not apply to existing members of the High Court, the Court of Appeal or the Supreme Court and to excuse them from the necessity of applying via the judicial appointments commission for appointment to any other position in those courts.

Section 39, as it stands, in conjunction with section 44, as it stands, effectively says that somehow the judicial appointments commission is in a better position to form judgments on who should be, for instance, the President of the High Court than the Government itself is. The Minister, as we discussed on the last occasion, has already made it clear he wants to have a special procedure for the three presidencies - the Chief Justice, the President of the Court of Appeal and the President of the High Court. I made the point on the last occasion that it is not quite clear and no rationale has been offered as to why the Government would not be capable of making that decision unaided by the judicial appointments commission and why the recommendation of the judicial appointments commission is sine qua non in respect of every other judicial appointment but the Minister has decided to table an amendment on Report Stage to make its intervention unnecessary in the case of those three presidencies. It raises the question as to why it would be competent to decide on the ordinary memberships of those courts but not competent or suitable to be the advisory body in respect of the presidencies of those courts. We did not hear on the last occasion from the Minister because we were dealing with amendment No. 83a but we are now dealing with this issue. We did not hear a rationale for why, if its advice as to who should be an ordinary member of the Supreme Court is sine qua non for appointment to that position, its advice is not merely not required but not permitted in the case of the presidencies of any of those courts. I ask the Minister to indicate to me and the House what it is about the three presidencies that makes the commission's participation in the decision unsuitable and why it is he finds section 44 unacceptable in its present form but nonetheless thinks the commission should be involved in ordinary appointments to the Supreme Court. I cannot follow that logic and I would like to hear some explanation for why it is competent and suitable for one purpose but is to be excluded for another purpose.

Before the Minister responds, I will add three further brief points. The first concerns the relationship to which Senator McDowell referred between section 38 and section 44. It is an important point. Section 44 refers to the most senior judicial appointments. Section 44(1) and (9) give the commission power to seek expressions of interest from eligible persons who wish to be considered for appointment to such office. It is interesting it is provided for in section 44 in respect of those three positions, although only at the request of the Minister. There is not a similar power with regard to other appointments. That is the power we are seeking to insert through amendment No. 84.

I will make two further points on amendments Nos. 84 and 85. The issue of the internal inconsistency of the Bill is something we have spoken about before. There is one issue in terms of section 38 that may already enable the commission to seek expressions of interest if one reads it in a particular way. Section 38(c) gives the commission power to do such other things as it considers necessary to enable it to perform its function in selecting persons to be the subject of a recommendation for appointment to judicial office. Arguably, it could empower the commission to directly invite a particular person to make an application but-----

Except the application under section 39(2) must be pursuant to-----

That is the point. If one reads section 38(c) in one way it seems to give the commission this wide power but it is subsequently contradicted by section 39. There is a difficulty with that. It is why we seek through amendments Nos. 84 and 85 to give the commission an explicit power to invite persons and that clears up any internal inconsistency or contradiction.

My final point is on the relationship between section 38 and section 36 which refers to the conditions to be satisfied where the commission is recommending the names of a person to the Minister. It refers to the names of a barrister, solicitor or legal academic and sets out the conditions including character, temperament, health and so on but it does not refer to serving judges. It is something we discussed in the context of section 36. I draw it to the Minister's attention because it points to some inconsistency. It appears the practising barristers, solicitors or legal academics who are the subject of appointment are subject to separate and different conditions from serving judges where there does not seem to be a justification for it. Perhaps the Minister can point me to somewhere else in the Bill where similar conditions are applied for serving judges. It seems odd that section 36 does not relate in any way to those who are serving judges or officeholders. Where they are being recommended for appointment there is no such conditionality on their appointment. The commission does not need to assure the Minister the person has displayed the various characteristics that are required.

It may be that reading section 36(1), one might say that some parts of it do apply to serving judges, notably sections 36(1)(b) and (c). One could argue the character, temperament and health grounds and the undertaking in writing to take courses, and so on, refers to all persons recommended to the Minister, whereas it is only section 36(1)(a) that refers to barristers, solicitors or legal academics. There is a lack of clarity there as to whether this section applies to serving judges who are being recommended for appointment by the commission. It is by way of justification of our amendments Nos. 85 and 85 that we are seeking to resolve an internal contradiction or inconsistency within the legislation.

There are others too between sections 38 and 36; 38 and 44; and 38 and 39. On Report Stage we may look to put in further amendments to resolve these serious issues because our amendments only go some of the way to resolving some of these quite serious issues between the different sections of the Bill.

I thank the Senators for their amendments and their contribution to the debate thereon. Amendments Nos. 84 and 85 are straightforward amendments.

Essentially, Senator Bacik and colleagues propose to enable the commission to make approaches by way of a direct invitation to a particular person, including a serving member of the Judiciary, to make an application to be considered for selection. I am not inclined to accept the amendments, notwithstanding what has been said. The new arrangements for the selection and recommendation of candidates are about incorporating the process for persons to be appointed either for the first time as judges, or indeed serving judges that might be elevated under the new open process, which will be operated by the commission. The statute relevant to the qualification is amended to some extent by the Bill which sets out in essence what are basic requirements of the systems of selection and recommendation, merit criteria - upon which we had some debate, the application process, and the conditions that need to be satisfied, all of which are open, transparent, open to scrutiny and clear to everybody. This is an important component of the Bill that runs right through it by way of theme. The accountability process to the Oireachtas and to the Minister will be vital parts of a more open approach to an important area of the appointments to State offices. Part 8 of the Bill is an important set of measures. It will modernise the process and open up the procedures for selection and deal with the skills and attributes required to fulfil the function of a member of the Judiciary.

All of this is open and transparent. There will a published statement on the matter, reports to the Minister and reviews. Having listened carefully to what the Senators have said, what is sought is in effect a derogation from the norm that the Bill sets up.

I restate that the commission has an important job to do. I do not see any difficulty with the basic requirement that an application be made and that there be a process where people who need to be considered can be considered, and that consideration would be open.

I do not accept - as we discussed on the last occasion - that to make an application for public office should be regarded as an embarrassment or described as such or beneath people which is the implication. I do not see it like that. Neither do I see why any other mode of access to the process might be necessary. It is something of an unreasonable expectation to create a situation where the commission might be charged with responsibility, or might have the power or authority to invite people, or make direct contact by way of invitation with particular persons. I do not see it working. The most important point to make by way of reply to Senators is that I do not see it as being consistent with the basic tenet of openness and transparency which the Bill espouses. I cannot, therefore, accept these amendments.

Amendment No. 85 seeks to amend section 39. That amendment would have the effect of deleting from that section 39 (1), which is the reference to a person who is for the time being a serving judge or a relevant officeholder. It is tied very closely to amendment No. 84 and the points I have made on this amendment, which would provide for direct approaches by the commission or its members to judges. That really goes against the basic grain of the new legislation and I do not intend to accept it.

I have listened very carefully to Senator McDowell and he has repeated points made on the last occasion on section 44, and on section 36, which we have already debated at some length. We are now dealing with section 38 and the point raised about section 44 at that time. I am on record as having said, and I will be brief a Chathaoirligh, that the three top positions - if we can describe them as such - are positions that involve more than just officiating as a member of the Judiciary or as a judge. They involve quite a significant amount of management and administration, skills that could not be considered to be the same as those required to officiate or perform one's duties as a member of the Judiciary. That is one of the reasons I am proposing that we depart from the proposed process, but only in respect of the three positions of Chief Justice, President of the Court of Appeal and President of the High Court. I invite Senator McDowell to agree that there are good and sound reasons that we should depart in the circumstances. We will come back, however, to it during the debate on section 44, in any event.

In response to that invitation, I agree with the Minister in one sense that there are good and sound reasons the presidencies of those three courts should have nothing to do with the commission. I agree with him on that very bare proposition. I go one stage further and say I can see no reason the commission should have anything to do with the selection of somebody to be an ordinary judge of the Supreme Court. I do not believe that the commission is any position to judge whether a High Court judge, after ten or 15 years of service should or should not serve as an ordinary member of the Supreme Court. Perhaps the judicial members of the commission or the lawyer members may have a view on that matter but, as an institution, this commission does not have any function in advising the Government as to who the ordinary members of the Supreme Court should be.

It comes back to this, the criteria laid down for the judicial appointments commission to make recommendations are emphatically not the criteria which the Government applies in deciding who should and should not be appointed as ordinary members of the Supreme Court.

From my experience the Government decides what kind of Supreme Court it wants; what kind of outlook it wants seen in the Supreme Court; and what kind of likely approach to particular decisions at a high level of principle a particular person is likely to take by reason of the general judicial and philosophical outlook he or she has shown over the years. Those are the kinds of decisions that are made at Government level. It is not appropriate simply to appoint a person who has done ten years and is polite to litigants and professionals. Nor is it appropriate to appoint an extra two men or two women simply to establish some gender balance in the Supreme Court. It may well take gender into account. Given the background in the Irish system of judicial appointments, every Government should remind itself that women solicitors and barristers have in the past been passed over just out of ingrained habit of mind when perhaps they should have been considered earlier. I accept that proposition.

However, when it is making appointments to the Supreme Court it is not making the same kind of decision as the judicial appointments commission is bound by this statute to make. It will not apply the same criteria. It will not appoint one person rather than another person to the Supreme Court on the basis of diversity or the social background it wants.

Whereas I agree with the Minister and I respond to his invitation with great alacrity to say that the judicial appointments commission should have nothing to do with the presidencies of any of the superior courts, I say it equally applies to appointments within those courts. The judicial appointments commission is simply not in a position to make up its mind on those issues.

For instance, on the idea that a High Court judge might be promoted to either a position of ordinary member of the Supreme Court or ordinary member of the Court of Appeal, the reason a Government might have for selecting one candidate rather than another could be quite different from the criteria this statute proposes the commission to adopt. I will give an example. It might decide we need people who are more conversant with the European Union’s laws in one of those courts than another. While that is perfectly reasonable, it is none of the business of the judicial appointments commission. It is not obliged to take that into account and it is not authorised to start asking how candidates square up from that point of view. Nor is it in a position to decide it actually wants a pro-European or an anti-European tilt, if I may use that phrase, in the composition of the Court of Appeal or the Supreme Court. It is simply not competent, authorised or enabled to make decisions of that kind.

Therefore, short-listing eight people down to three people, which is its function, and presuming that these three people are the best when the Government, itself, will apply different criteria and may have very different search criteria in its own mind when filling those positions, is wholly inappropriate. That is my point. That is why I wanted to keep the appointments to positions in the Court of Appeal and Supreme Court out of the hands of the commission because those are fundamentally decisions to be made by Government.

In response to Senator Bacik’s point, the Minister says that he can see no reason that a direct approach should be made to anybody to consider applying. From experience, I can tell the Minister that is very frequently the case. While I do not know what the present Attorney General does, in the past the Attorney General has indicated to a particular practitioner, solicitor or barrister, that an application from him or her would be welcome and asked the practitioner to put their name into the JAAB. That is what happens at the moment.

Formally or informally, it does not make much difference; if someone gets the tap on the shoulder it is the same thing. If the Attorney General asks someone to put their name forward for consideration, implicit in that is confidence that they are not wasting their time in doing so.

I go one stage further. When that happened in cases of which I had experience, I was always very careful before I tapped anybody on the shoulder, in whatever capacity, to make it very clear that I was not going to raise an expectation and then disappoint it by not following through. I thought it would be particularly cruel and unfair to an applicant, to say, “You should apply for a particular position” giving them a clear message that they would be considered and then have to go back to the person and say, “Sorry, nobody agreed with the idea; it was just my own personal idea.” One would not do something of that kind.

There is nothing wrong with approaching people and asking them to make applications. There is nothing wrong with having a system whereby that can be done. The Minister makes the point that it is an informal arrangement at the moment. I accept it is somewhat informal. However, I understand this Bill to be designed to bring that informal arrangement to an end such that everybody who turns up before the judicial appointments commission will turn up on the same basis. They will not have felt any kind of tap on their shoulder and will not have been given any encouragement to do so from anybody in a position to make the appointment. From that point of view I radically disagree with the Minister’s view on the matter.

I believe amendment No. 85a in my name should proceed. I also support Senator Bacik’s amendments, even though they are somewhat at variance with what I am suggesting but nonetheless are going in the same overall direction. In the circumstances, I cannot add much more to the matter.

I have listened to the Minister’s response and Senator McDowell’s comments. It is very helpful to hear from Senator McDowell of the practice whereby the Attorney General has given the tap on the shoulder to potential applicants. In other words, direct approaches are being made, albeit in this rather informal and unstructured way.

The Minister spoke about seeking to create a new, more transparent and open process, which is important. Our amendments seek to do that. They seek to create a more formal and structured way of enabling the commission to invite applications rather than simply an informal tap-on-the-shoulder approach. It is better to have that structured approach. As I said earlier, those who are under-represented will typically be more reluctant to apply for positions. That goes for any career, any office, running for politics and so on. It is well established that in areas such as politics, women are under-represented. Women, in particular, need encouragement as they are often less likely to put themselves forward for promotion or for candidacy in politics than are men. There is merit, therefore, in having a formal system whereby the commission can directly invite applications, particularly if these amendments are read in the context of our amendments Nos. 86, 87, 92 and 93, which seek to ensure gender balance in the Judiciary will always be a factor for consideration.

We are not trying to preserve any sort of system that could be accused of cronyism or anything, but rather to formalise a system whereby the commission can invite particular persons to apply and thereby give encouragement to persons who might not otherwise think of applying or might not think they would be eligible candidates.

It is something that one could anticipate that the commission might stretch its own powers, under section 38, to do if that were provided. I think we need to provide for that much more explicitly.

In response to Senator Bacik, I reiterate that I have already indicated that I will be, on Report Stage, addressing the issue of the most senior appointments. As to her point about Part 6, I will also be reviewing how the requirements under Part 6 relate to all serving judges across the board, which is the point that was made.

It is an important issue that Senator Bacik has made.

She asks why expressions of interest are sought, under section 44, but not allowed otherwise. Again, I intend addressing section 44 on Report Stage. Having regard to the fact that section 38, which we are discussing now, and section 39, which, hopefully, we will be discussing shortly, envisage that the commission will do the selection work, which of course is not the case under section 44, I will have to make some changes in respect of section 44. I take the related points, which have been raised by Senator Bacik, in respect of the other sections. I note what she said in that regard.

In conclusion and in short, I do not wish to open up the process any further as is envisaged under amendments Nos. 84, 85 and 85a because I believe that extending the Bill to incorporate the sentiment in the amendments actually goes against the spirit of the legislation. Having listened carefully to the Senators, I am not prepared to accept what would be a fundamental departure from the Bill.

I thank the Minister for his comments on the other points that I raised in respect of sections 36 and 44. As he has said previously, he will address some of those issues on Report Stage, for which I am grateful.

I am sorry that the Minister is unwilling to accept my amendments Nos. 84 and 85. They would formalise what we know to be happening but they would do so in a way that could be of great benefit in terms of ensuring there is balance and diversity when it comes to judicial appointments. I will press my amendments to a vote and await to hear what Senator McDowell will say about his amendment.

I think I am right in saying that the Minister has said that any amendment of this Bill, which had the effect of saying that in the case of ordinary appointments to the Court of Appeal from the High Court or to the Supreme Court from the High Court or Court of Appeal, to exempt those type of appointments from the purview of the commission would be against the spirit of this Bill. I am glad that he has said that because that makes it clear this Bill is at heart unconstitutional.

At various Stages it was thrown before this House that the Judiciary itself had recommended shortlisting and the like. I have never seen the Judiciary ever say, collectively or individually, that it favours what the Minister is proposing now, and that is that individual judges who want to be considered for appointment to the High Court, the Court of Appeal or the Supreme Court should have to make an application to the commission. I have never seen that said in public and I do not believe it is their position. In fact, I believe the contrary to be the case, that that is not their position.

They do not want to be in a position that they have to apply to the commission or, of their number, those who want to be considered, have to make an application to the commission as the ordinary way of being considered for appointment to those offices. The reason is twofold. The Minister has referred to the phrase that I have used, which is "embarrassing". It is embarrassing for a serving judge to constantly put his or her name forward for every promotional position that comes up and constantly be told, or infer from the silence that follows, that he or she was not shortlisted without explanation. It is embarrassing. It will have the effect that the ambitious people, who may not be the best people in those courts, are the people who feel most disposed towards making repeated applications to the judicial appointments commission for consideration for promotion. Whereas the more intellectually humble but far harder working and, perhaps, far more suitable people will say, "I am not going through this process. I have done it once and I was not even told whether I was shortlisted the last time so why should I continually keep going back again and keep submitting to interviews by a whole load of people who are going to ask about my suitability on grounds of temperament or whatever else to have such a position?" The provision is going to have a deadening effect.

I do make the point to the Minister that this legislation is not going to improve the quality of our Judiciary at all and will disimprove it. The legislation will inhibit people. The legislation will inhibit the Government from making appointments that it considers correct and it will inhibit applicants for judicial office from going through this convoluted rigamarole, which will appear under Part 8, for being considered to be shortlisted.

The Minister has said that best practice would be applied to the manner in which these appointments would be made. He never made the following clear to me. Will people who were not shortlisted be informed of that fact? Will people who were shortlisted be informed of that fact? Will they just submit their applications, attend whatever interviews that take place but end up in a total fog where they do not know what happen only to read it in newspapers or Iris Oifigiúil that somebody else got the job and that is it? Those aspects are fairly crucial.

If one is a High Court judge, and I do not have too florid an imagination to see myself in this position even though I am past it now, if one were a male or female High Court judge and one submitted three applications yet nothing happens, does one just keep banging one's head off the stone wall and hope something will come up sometime? This system seems to imply that one just keeps putting one's name forward, attending interviews, submitting forms setting out all of one's wonderful characteristics but one keeps being told "No". Does the Minister expect sitting High Court judges to spend their time doing this? In the nature of things, with the current size of the Judiciary, the expansion of the Court of Appeal that the Minister has now publicly undertaken to bring about, the fact that there are between 50 and 60 superior court judges now, and given that they are all people in their 50s or 60s, though another issue is when they should retire, we are going to be in a position that there is going to be a fairly constant stream of appointments?

There is going to be a fairly constant stream of appointments. People who want to be appointed to those positions are going to submit applications once or twice but if they do not know what happened to their applications or even whether they were short-listed, they will lose interest. When they apply for the post of Secretary General of the Department of Justice and Equality, civil servants know whether they were short-listed. They are not left in the dark. Judicial applicants will be left in the dark.

I think I have said enough on the amendments. The Minister has stated very clearly that it would be against the spirit of the legislation not to require current superior court judges to apply to the Court of Appeal as the primary means of being appointed. That raises a question that is left hanging in intellectual space by the terms of section 40(3), that nothing in subsection (2) shall be construed as limiting the advice the Government may give to the President with regard to the appointment by the President under Article 35 of the Constitution of a person to be a judge. It is all very well to say that and to claim this is a little constitutional safety valve which lets us off the hook completely. What the Minister has said here is that judges will not be allowed approach Members of the Government or indicate their willingness to the secretary of the Government. He informed Senator Bacik that nobody will go and tap them on the shoulder and he has told us that the Attorney General would commit a criminal offence if he or she told the Government of the people who applied but were not short-listed. Putting all that together, the Government is being placed in a position of total isolation from knowledge of what its real choices are. The Government is practically stuck with the short-list because there are no means of knowing what the alternative to the short-list actually is. For the Government to take a look at the short-list and say these three are not much good and for it to ask the Attorney General to go and find somebody who is good seems to be the only circumstance in which section 40(3) could have any application at all. I do not think that is a satisfactory means of deciding who should be on the Supreme Court.

I remind Senator McDowell once again, when he talks about the contact between the commission and applicants, of a later section to which we will be addressing our attention at some stage, namely, section 53(5)(g) and (h), which would appear to cover the points of concern and query for the Senator in respect of communication.

Does the Minister think that actually means they will be told whether they were short-listed?

The Minister thinks they will be told whether they were short-listed.

Will he make that clear in a Report Stage amendment? Implicit in that is a whole load of problems. The short-list will fairly easily become generally known and the people who are on it and are overlooked will be easily identified if all the applicants are informed as to whether they were short-listed and all the successfully short-listed people are informed of the position also.

Amendment put.
The Committee divided by electronic means.

Under Standing Order 73(3)(b) I propose that the vote be taken by other than electronic means.

Amendment again put:
The Committee divided: Tá, 10; Níl, 20.

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Gallagher, Robbie.
  • Humphreys, Kevin.
  • McDowell, Michael.
  • Nash, Gerald.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coghlan, Paul.
  • Conway-Walsh, Rose.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Reilly, James.
  • Richmond, Neale.
  • Warfield, Fintan.
Tellers: Tá, Senators Ivana Bacik and Michael McDowell; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.
Question put: "That section 38 stand part of the Bill."
The Committee divided: Tá, 23; Níl, 11.

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

Níl

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Gallagher, Robbie.
  • Humphreys, Kevin.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • Nash, Gerald.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Ivana Bacik and Michael McDowell.
Question declared carried.
SECTION 39

I move amendment No. 85:

In page 27, lines 28 and 29, to delete ", inclusing a person who is for the time being a serving judge or a relevant office holder,".

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

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Gallagher, Robbie.
  • Humphreys, Kevin.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • Nash, Gerald.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.

Níl

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

I move amendment No. 85a:

In page 27, line 28, to delete ", including a person" and substitute the following:

"(other that a person who holds judicial office as a member of the High Court, the Court of Appeal or the Supreme Court) but including any other person".

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

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Gallagher, Robbie.
  • Humphreys, Kevin.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • Nash, Gerald.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.

Níl

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

I move amendment No. 85b:

In page 28, between lines 7 and 8, to insert the following:

“(5) Nothing in this Act shall require any member of the Supreme Court, the Court of Appeal, or the High Court to apply to the Commission for consideration for appointment to any other judicial office in any of those courts (including the offices of the Chief Justice, President of the Court of Appeal, or President of the High Court).

(6) A member of the Supreme Court, the Court of Appeal or the High Court may notify the Secretary to the Government in writing of his or her willingness and availability to be appointed to any vacancy for any judicial office mentioned in subsection (5).

(7) Where a judicial office mentioned in subsection (5) stands vacant or where the Minister reasonably apprehends that it will stand vacant, the Minister shall request the Commission to seek expressions of interest on the part of any other eligible persons for appointment to such office.”.

The purpose of this additional amendment, which was circulated on 18 December, is to add three subsections - subsections (5), (6) and (7) - to section 39. The proposed subsection (5) will read "Nothing in this Act shall require any member of the Supreme Court, the Court of Appeal, or the High Court to apply to the Commission for consideration for appointment to any other judicial office in any of those courts (including the offices of the Chief Justice, President of the Court of Appeal, or President of the High Court)." The proposed subsection (6) states "A member of the Supreme Court, the Court of Appeal or the High Court may notify the Secretary to the Government in writing of his or her willingness and availability to be appointed to any vacancy for any judicial office mentioned in subsection (5)." The proposed subsection (7) states "Where a judicial office mentioned in subsection (5) stands vacant or where the Minister reasonably apprehends that it will stand vacant, the Minister shall request the Commission to seek expressions of interest on the part of any other eligible persons for appointment to such office."

The amendment is in line with the previous amendments that have been tabled by Senators Boyhan, Craughwell, Norris and me. The effect of this would be that no member of whatever kind of the Supreme Court, the Court of the Appeal or the High Court would be required to make an application to the commission for appointment to any other judicial office in any of those courts including the three presidencies the Minister has mentioned and which he has in mind for an amendment to section 44. Subsection (6) preserves the present situation that serving judges are entitled, under present convention, to write to the Secretary to the Government and say they are willing and available to be appointed to a vacancy that has arisen or which is about to arise in any of those courts. Subsection (7) makes it clear that where one of those offices is vacant, the judicial appointments commission would nonetheless retain its function of seeking expressions of interest on the part of any other eligible person for appointment to such office. I cannot see what is wrong with the present situation where if, for instance, the position of Chief Justice or that of an ordinary judge on the Supreme Court becomes vacant or is about to be become vacant by reason of the present incumbent approaching retirement age, a member of one of those courts, for instance an ordinary member of the Supreme Court, who is interested in becoming Chief Justice simply writes a letter to the Secretary to the Government informing it in very simple terms that he or she is willing and available to be appointed to the vacancy.

The advantage of such an arrangement is that it provides a channel of communication between sitting members of the Judiciary and the Government through a formalised procedure that goes through the Secretary of the Government, and it entitles them to apprise the Government of the real situation with regard to who is or is not available and who is or is not interested. The Government can then see there are eight, 12 or 15 people interested in being made an ordinary member of the Supreme Court and it can take a look at them. Unless this provision is put in place the Government, when considering the shortlist, will be completely in the dark in respect of who is willing to be appointed but is not named in the shortlist. In my view, when confronted with a shortlist the constitutional function of the Government is to ask if that is the best there is. There cannot be a presumption that this shortlist is the best that is available and that the Government should be blind and kept ignorant of the fact that other members of the Judiciary wish to be appointed. What possible excuse is there for saying to the Government if it is going to fill a position in one of these courts that it cannot be informed of the availability of an eligible person? If one of those people is an existing member of those courts who, by virtue of his or her appointment, is entitled to sit in any of those courts at the invitation of the relevant President or the Chief Justice, the Government could not judge whether the shortlist is good or bad. One would be putting the Government at a deliberate disadvantage by putting it in a state of deliberate ignorance as to the true state of affairs. If there are no means whereby the Government can be informed that although that may be the shortlist there were five other members of the superior courts' Judiciary who were interested in the relevant vacancy then one is telling the Government that it must make a decision to either accept the confines of the shortlist in front of it or make a wild stab and guess that some other person not on the shortlist might, if he or she was approached informally outside of the whole process, be a person who was a disappointed applicant or be a person who did not apply but was at all times willing to be appointed.

We again come to a fundamental constitutional objection to what this Bill is all about and to what the Minister referred to as the spirit of this Bill. It is the function of the Executive under our Constitution to recommend to the President persons for appointment to the High Court, the Court of Appeal and the Supreme Court. That is a constitutional arrangement. It is the function of the Executive to meet and act as a collective authority, as the Constitution requires it to do. It is not merely its function; it is also its duty to consider all the available options open to the Executive and to decide the appropriate step to take. These are constitutional functions, duties and prerogatives of the Executive of the State under our Constitution. It is not permissible to deliberately put the Government into a state of ignorance through clumsy and ill-considered legislation, and when confronted with a shortlist to be deliberately kept in the dark as to other alternatives that it might consider when making a decision, if the Government was aware that those alternatives were really open to it. That is the constitutional issue here.

The Constitution gives certain rights to the Legislature to make laws. The Constitution gives certain functions to the Government as elected in accordance with the Constitution and under separation of powers to carry out certain Executive functions. The Constitution delineates between legislative, executive and judicial functions. Under the Constitution it is the executive function of the Government, as I see it, to make recommendations to the President in respect of eligible people to be appointed by the President as judges.

Absolutely handcuffed to the idea of the function of the Government being to make such recommendations is the correlative entitlement of the Government to know the options that are open to it in respect of any decision it makes. In my view it is unconstitutional for the Legislature to attempt to break the constitutional separation of powers by creating a judicial appointments commission in an Act of the Oireachtas in circumstances where it is not merely a matter of getting advice from the commission that these three people, for example, are the best people in the judgment of the commission, when the Government has the clear option of disregarding that advice and of choosing an alternative option, which the Government might in its own collective wisdom consider preferable. I do not believe it is open to these Houses to create an obstacle course, by means of the set of provisions the Minister has put in place here, so that the Government is deliberately kept ignorant of the fact that eligible people are ready and willing to serve.

If the previous section stands the Minister has created situation where no judge can intimate his or her availability and willingness to accept office other than by an application to the commission. As I understand it, the commission will have a standard approach so there is no differentiation between persons who are not judges and persons who are judges. No preference will be given and no shortcut or fast-track will be given to judges in the whole process. There will certainly be no fast-track given in the selection process to serving judges over people who are not judges at all. I believe the selection process is to be the same for every applicant, the commission's interviewing will be the same for every applicant, and the criteria applied by the commission will be the same for every applicant, as the Minister said to Senator Bacik some time ago.

We have here an attempt to shoehorn the perfectly reasonable requirement and entitlement of the Executive when making an appointment to know what its options are and who is willing to serve so it can decide which, of all the options open to it, is the best appointment to make. The attempt is being made to shoehorn this into an entirely different and ill-fitting shoe where Government is to somehow be guided away from looking at the broad question, which is its prerogative, and guided to where it is being asked to look at a particular shortlist set out in order of preference. I am against that for many reasons, many of which have already been made clear.

There is no earthly reason why the Government of the day should not be made aware of the fact that a woman or a man who is a serving superior court judge is available and is willing to be appointed by the President on the recommendation of the Government. The Minister has made it clear that it is the purpose of this Bill because he has agreed that one consequence of making the Attorney General a member of the commission, which is to bind the Attorney General - on pain of committing a criminal offence - to not disclose to the Government those persons who applied and were not short-listed for consideration by the Government, is an intended consequence of the passage of this legislation.

It is not simply that we have a different set of goals in mind or that we have a parallel procedure that will involve a shortlist ranked in the order of the commission's preference. It is combined with statutory provisions that are intended to prevent any signal by any eligible person to the Government of his or her availability, other than through the shortlist set out in the order of the commission's preference.

In common sense, why should a Government not know about the options that are open to it, that there are eight people and not three people and who those eight people are? Why should it not be told that? The implication, which is that of the Minister, Deputy Ross, is coming through clearly. It is that it will act in a cronyish way, and will somehow select the five who are not on the shortlist or will look to them for improper or unsatisfactory reasons instead of selecting the three people on the shortlist. That is the implication. If that is not the implication, why not let the Government know, which it does at the moment under the Judicial Appointments Advisory Board's system, of all of the options that are open to it? What is wrong with members of the Government that they cannot be given this information when they look at the shortlist? Would it damage the process that they should know from whom the shortlist was compiled and who was excluded from it?

When one looks at the confidentiality arrangement in this legislation in particular, as well as the criminal offence that has been created, the Minister is trying to create a situation in which it would be against the criminal law for someone to tell the Government that the three people whose names it has received are by no means the best, that there are four other people who are not considered. It would be against the criminal law for someone to tell the Taoiseach about these four other people who the Taoiseach, in his or her capacity as Taoiseach, might have thought were more suited to fill the vacancy under consideration.

There is nothing wrong with such a principle. What is very wrong with the legislative procedure that is before Members for adoption is that it is tainted with the notion that somehow the Government would be making a suboptimal decision, were it to depart from the shortlist that was in front of it. What is suboptimal about not agreeing with the judicial appointments commission? What is suboptimal about saying that a particular judge - man or woman - has served with distinction on the Bench for five, ten or 15 years and is available and willing to be appointed to some office in the superior courts? No purpose is served by keeping the Government in the dark about such an arrangement. That is where the constitutional infirmity with what is being proposed emerges.

The Judicial Appointments Advisory Board arose out of the controversy that attended the collapse of the Reynolds Government in 1994. It went as far as could be done in establishing a system that looked at applications to be made judges, examining them, making recommendations, telling the Government who all the applicants were and then coming up with a shorter list. The only thing there has been controversy about is the length of the shortlist that goes to Government. It is thought that the Judicial Appointments Advisory Board was sending too many names to Government in some sense - I do not know what "too many" means - and somehow, the Government was put in a position of making suboptimal appointments because it had an embarrassment of choices put before it.

We have now achieved clarity from the Minister and I ask that one matter be made absolutely clear. Is the Government in no way bound by the shortlist? If that is the case, why should it not be aware of the non-short-listed applicants? I have never got a satisfactory explanation for that, except distrust of the Government to the effect that if one tells it that it has other options, it will not be so quick to accept the shortlist recommended to it by the proposed commission. It may be tempted to exercise its own judgement in a manner which does not agree with the judicial appointments commission if it knows it has other options.

The basic point is that it is the constitutional function of the Government to recommend the appointment of eligible persons by the President as members of the superior courts. It is the constitutional function of the Government to make its choice with a clear view of the options available to it. It is unconstitutional to keep from the Government, by the provisions of the sections we are now dealing with, knowledge of those who were not merely eligible but ready and willing to be appointed, were the Government to consider them to be the appropriate persons to be appointed. That last thing is clearly unconstitutional and impermissible. One cannot deliberately keep the Government in the dark about the real choices as to who was available and who was willing to act, all of them being eligible.

In particular, asking the serving members of the Judiciary to surrender what is their constitutional right to impart to the Government an indication of their willingness to be appointed to a particular vacancy and to say instead that all one can do is make an application to a body which may or may not inform the Government of one's interest in the matter by means of including or excluding one from a shortlist, is an unconstitutional intrusion on the rights of the Judiciary collectively and judges individually, the Government collectively and members of the Government individually, to discharge the functions the Constitution places in them and in them alone.

I cannot put the matter much more strongly than this. I believe this issue goes to the heart of the Bill. Let us suppose the purpose of the Bill is as I assume it to be, which is to ensure that we have somehow a better Judiciary, a better method of selecting judges or ensuring that better people would, on average, be selected by this means rather than the present means. If that is the purpose of this legislation, then it is a fine aim. However, what we cannot do and what the Legislature is prohibited from doing is erecting screens around the Government to keep it in a state of ignorance about the real choices it has. We cannot make it a criminal offence to inform the Government of people who applied but were unsuccessful in being shortlisted. To me, that is unconstitutional and we cannot do that. We live in a democracy. People in government are entitled to know that Ms Justice so-and-so or Mr. Justice so-and-so was ready and willing to serve in this position. This commission may have come up with three other people, but it is unconstitutional to say to the Government that if people inform the Government of the fact that they indicated their willingness, then those persons commit a criminal offence. It is simply unconstitutional to do it. The Minister has no right to do it. The Minister has no right to keep it from the next Government. The Minister may choose it for this Government if this Bill ever comes into effect. Indeed, from what the Minister has said, it will be delayed for a year or two anyway, which does not really affect the likely lifetime of this Government. To say to those in the next Government that they will be committing a criminal offence if they seek to find out what the other choices were among those who were willing to serve is clearly unconstitutional. What is worse is to say that anyone who gives the Government that information will be committing a criminal offence. Such people would include the Attorney General, who knows the true situation. That is completely unconstitutional and there is no excuse for it. It does not serve any purpose. The only purpose it serves is to create a false impression that somehow the Government input to the appointment of judges will be reduced to the constitutional minimum and the Government's discretion will be reduced to the constitutional minimum.

That is not unfair language because the programme for Government states – this is the agreement made with the Minister for Transport, Tourism and Sport, Deputy Ross - that the shortlist would be reduced to the smallest number that the authors of the programme for Government considered would be consistent with the Constitution. That is the aim. It is to reduce discretion and circumscribe discretion to the maximum extent. That is written into the programme for Government. Doubtless, if the Bill ever goes before the Supreme Court, the Judiciary will look at that too. That was the purpose of this legislation. It was to reduce the discretion of the Executive in these matters to an absolute minimum and to do so by legislation as much as possible. It was to cut back the shortlist to fetter the discretion of the Government and to keep the members of the Government in the dark. That is what this legislation is attempting to do. What flows from all of that is that the Bill, if enacted in anything like its present shape, is designed to create a serious barrier to the exercise by the Executive of its constitutional prerogatives.

I want to say one other thing. Somehow someone thinks that we can do all of this and escape the constitutional consequences by adding in section 40(3) and section 41(4). These provide that nothing in the recommending role of the commission shall be construed as limiting the advice the Government may give to the President with respect to the appointment by the President under Article 35 of the Constitution of a person to be a judge. On one view, that is a trite piece of legislative redundancy. It is not possible to do that. We cannot limit the advice that the President can give in respect of an eligible person to be a judge.

I wish to make a point of order. Will the Acting Chairman remind the House that we are debating, and have been for the past 40 minutes, amendment No. 85, which covers a different issue from that to which the Senator is referring?

We are discussion amendment No. 85b.

I have no wish to intervene unduly but we have heard all the points that Senator McDowell has mentioned and is mentioning. I am not saying they are not important. They are, but there is now a form of repetition that, to my mind, is deliberately inhibiting progress on an important Bill. Senator McDowell is right when he says that we are dealing with the fundamentals of the Bill, but we have been on the same point for a period of in excess of 60 hours.

I worry, perhaps more than the Minister but maybe as much as the Minister, about the consequences for the quality of our Judiciary of passing this legislation. I also happen to be someone who, like all citizens of this State, has to be loyal to the State and uphold the Constitution. I also happen to be a person who has been a member of the Executive and who has been Attorney General.

I accept all of that.

I have never heard the Minister or anyone else describe in clear terms why it is needed to keep the Government in ignorance of those members of the Judiciary who are not shortlisted. No coherent answer has ever been given to us as to why that should happen. In all the 60 hours we have been here, the Minister has never justified keeping the Government in ignorance and in the dark about which members of the Judiciary were available or signalled their availability to be appointed to the Supreme Court.

I would take the point the Minister is making if he thought I was simply repeating it for the purposes of wasting time. What I am saying is that the Minister has never come to this House and explained precisely what advantage is given to the people or the Government or what honour is paid to the terms of the Constitution by putting into law a provision that the Government must make a decision in the dark in respect of its real choices. If the Minister wants to take some more time now to explain to me the exact advantage of saying that the members of the Executive should make a choice without knowing who was available, that is fine. The Minister may want to set that out here and now even in the absence of a quorum, which I am reluctant to ask for. Happily, all these proceedings are made available to the public over the Internet. If the Minister wants to explain to me precisely what advantage is served by that, then I will wait and listen carefully.

Does the Minister wish to make a further statement?

I will comment on amendment No. 85b. This is the territory around which we have been debating all afternoon the amendments of Senator Bacik and Senator McDowell.

To be fair to Senator McDowell, he has indicated on all occasions and at every remove in the course of this legislation both in here and outside, his implacable opposition to the concept of any serving member of the Judiciary, in particular serving members of the superior courts, having to put their names forward for consideration before the independent commission. I reiterate the constitutional position in the matter of the recommendation of names to the President. The nomination of names for consideration by the President for service on the Judiciary is in no way being adversely interfered with by any aspect of this Bill no more than it was by the setting up of the Judicial Appointments Advisory Board, JAAB, some 20 years ago. That is clear. I do not agree with the constitutional issues to which Senator McDowell repeatedly refers, having regard to the fact that the Government's discretion on the appointment of judges is still very much in evidence, and that is written right through the legislation. We have been treated yet again to the rather fanciful and dramatic spectre of the Attorney General committing criminal offences and being led in handcuffs from the Cabinet.

He or she would commit a criminal offence if he or she told the Cabinet. Those are the Minister's words not mine.

That is what has been painted yet again by Senator McDowell, but that is not going to happen. It makes for a good debate, and it makes for good drama and effect. While Senator McDowell makes no secret of the fact that he wishes to have a widespread derogation from this legislation and from the commission for members of the superior courts, it is unacceptable to broaden out a commission process in such a way as is envisaged in the amendment. If I go back to my Second Stage speech, for example, either in this House or in the Lower House, I referred to the key policy issues and the developments of this new statutory framework. I want to ensure in the context of the final product that we have the elevation of serving judges, the reduction to three recommendations only, the movement to a lay majority, and the procedural remit of the commission. Those are the fundamentals of the reform.

This is not something that we are doing here within this jurisdiction that is not a common feature of other common law jurisdictions. I refer again to the similarities between what we are doing here to the situation that pertains in Scotland, or in England and Wales, or both. Senator McDowell mentioned the situation 20 years ago. In the run up to the enactment of the JAAB legislation, when the Bill was being debated and when the architecture was being set, a decision was made that the system then, which was an entirely new step, should only extend to the appointment of first-time judges. The onward appointment of a serving judge, be it elevation or promotion was not comprehended at that time. We have now seen developments over two decades since then. We have seen important developments in international practice.

We have seen the genesis of the legislation in the form of a review that was introduced by one of my predecessors, the former Minister, Mr. Shatter. He reviewed the entire system and entered into what was a pretty widespread consultation process. I have not heard anything about that process from Senator McDowell, other than an expression here that this is something that has been foisted on the Oireachtas in a programme for Government commitment in order to satisfy one or a small minority of members of the Cabinet. It is fair to say that even before anything was agreed in the programme for Government that this ship had set sail and did not at any remove seem to attract the type of opposition that we are now seeing, as evidenced by the previous 60 hours debate here. A number of factors were fully examined in the context of that consultation, including the performance to date of the JAAB process, judicial independence and the matter of eligibility and otherwise. It was precisely because of that that a convincing argument was made that there did not appear to be a reasonable or strong case for any longer excluding a second appointment of a judge from an application process or selection process leading to a number of recommendations or a recommendation being made to the Government. That is all it is. Senator McDowell knows that well.

Who made that judgment?

The judgment was made by the Government, having considered all aspects of the issues to which I referred. The heart of the matter is that as far as section 39 is concerned, anyone who wishes to be considered for appointment to judicial office shall make the application to the commission. That specifically includes a person who may be a serving member of the Judiciary. This issue has dominated our debate here this afternoon in the same way as it has on numerous occasions, going right back to the summer. We have already discussed how the purpose of section 37, which has been mentioned by Senator McDowell, is to disapply from the process of a recommendation, to paraphrase him, the three top judicial positions. I will do that in respect of section 44 and I will do so for reasons that I referred to earlier this afternoon, namely, because they have a somewhat separate position in terms of the role, function, obligations and day-to-day work in which they engage being somewhat different from what might be described as an ordinary member of the court. I intend coming back to that. I ask Senator McDowell for his support. I feel he has indicated that he would be minded to support that, albeit in a way that does not necessarily accord with the range of appointments that he would wish to be included under such a section.

Earlier this afternoon, Senator McDowell referred to the fact that he did not at any stage see any reference to any statement, message or any disposition on the part of any member of the Judiciary or any group as to their position on the new process.

I remind the House that the Judicial Appointments Review Committee, which was formed by senior members of the Judiciary to make submissions on the new process and whose membership included no less an officeholder than the Chief Justice, stated:

Where it is proposed to fill a judicial position by promotion, including the positions of Chief Justice and Presidents of the other Courts, the candidates should also be subject to the advisory process of the Judicial Appointments Advisory Board. Applications from serving judges to advance between different courts should be processed through application to the Judicial Appointments Advisory Board.

The Judicial Appointments Advisory Board, JAAB, is the body now giving way to the new, reformed and modern procedure. I accept, of course, that we are no longer talking about the JAAB but we are modernising, further developing and enhancing the independent process. It seems quite clear that the most senior judges themselves have recommended in principle that judges seeking appointment, right up to the highest positions, be on the same playing field as a first-time applicant. The Bar Council of Ireland has recommended that the Judicial Appointments Advisory Board process be followed for all judicial appointments, including elevation from lower to higher courts. Others were of the same view.

I have listened very carefully to the points raised by Senator McDowell. I certainly do not doubt in any way his sincerity on this issue, considering his first-hand knowledge as a former Minister for Justice, Equality and Law Reform, a receiving party from the JAAB, and given his former position as Attorney General, who is very much in the engine room of that board. I am not prepared at this Stage, however, to delete what is a key reform intended to cater for the selection processes for judges across the jurisdictions, with the exception of the President of the High Court, the President of the Court of Appeal and the Chief Justice. I am not accepting the amendment, therefore.

I asked the Minister to answer a simple question. I asked him to explain the advantage and interest served by saying to the members of the Government that they should not know who among the present Judiciary in the superior courts is willing and able to serve. I have not had an answer from him on that. He has avoided that question in all his responses.

It is a policy issue.

The Minister is saying it is a policy issue but I am asking what advantage is served by keeping the Government in the dark about who is able and willing to serve among the present Judiciary.

The corollary is the question as to the advantage of and permissible policy on keeping the Government ignorant of the choices available to it. I do not remember in any of the submissions of the Bar Council of Ireland or the Judiciary a suggestion that it would be impossible for the Attorney General to inform the Government of those who had been turned down for a short-listing. I never came across that suggestion but that is what the Minister is coming up with now. He said I came up with a fanciful idea of the Attorney General being taken away in handcuffs from a Cabinet meeting because he had breached the confidentiality duty. If the holder of the Attorney General's office is duty bound to uphold the law, there is no question of anybody being arrested or dragged away in handcuffs; it is simply a matter of upholding the laws of the State. That is what the Attorney General is bound to do. If it becomes a criminal offence for the Attorney General to say a certain judge is an excellent candidate and has been turned down on four occasions by the commission, even if said in the secrecy of the Cabinet room, the Attorney General will not make the statement in the first instance and, by means of the threat of a criminal sanction, the Government will be deliberately kept in the dark as to the extent of its options and the true situation pertaining to the transactions related to the commission.

It is well and good for the Minister to say it is a matter of policy that the Government should be kept in the dark on these issues. It is not a matter of policy. I asked for an explanation as to what good would be served by keeping the Government ignorant of those who are ready and willing to serve among the Judiciary but who are not short-listed. I have not heard any good reason advanced even though the Minister spent some time replying to me when I posed the question to him. The reason I suggest he did not answer my question is that there is no answer. There is no coherent answer whereby he could stand up in public and say it is desirable that the Government should not know the names of any other persons among the present Judiciary who are ready and willing to serve, and that this is consistent with the duty of the Government to make the best decisions it can, in its own judgment, when filling the positions.

The Government has a prerogative in this matter that cannot be circumscribed by legislation. It is entitled to know what choices are lawfully available to it. The Minister has included two subsections indicating the Government is entitled to make a completely separate decision but he has also included a series of provisions to make it almost impossible for the Government to do that because it would not know at a Cabinet meeting whether a particular judge was available. I am proposing a very simple amendment that would enable sitting members of the Judiciary to signal their availability without prejudice to the activities of the commission or the shortlist of the commission in order that the Government could assess the quality of the shortlist it is receiving. If one receives a shortlist of candidates, marked one, two and three, one cannot really know whether they are the best available unless one knows who they were chosen from. It is like announcing the winner of a Eurovision Song Contest without having heard any of the songs. One song would be announced to be the winner — it would not be a contest at all.

There would be a voting process.

The Minister talks about other common law jurisdictions. We have a written Constitution. It vests in the Executive the function of advising the President. That is superior to any Bill we can wave at each other in these Houses. It cannot be curtailed. As long as one is eligible, that is one thing. If a Bill had been introduced that went so far as to state determination by the commission was a criterion for eligibility, it would clearly have breached the Constitution but the Minister is sailing as close as he can to that wind while attempting not to cross the line.

The Minister has had the floor here for a good while this afternoon. I have given him the opportunity to explain to the Irish people why a Government, when appointing an individual — to the Supreme Court, for instance — should be kept in the dark as to the identity of those who are willing, able and eligible among the present Judiciary to accept appointment.

Progress reported; Committee to sit again.