Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

SECTION 39
Debate resumed on 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.”.
- (Senator Michael McDowell)

I welcome the Minister, Deputy Flanagan, back to the House and wish him a happy new year. This matter is to be adjourned not later than 9.30 p.m., if not previously concluded.

I thought it was 9.15 p.m.

The document in front of me states 9.30 p.m. and that is what was agreed to on the Order of Business. We are on amendment No. 85b. When we concluded the last day, Senator McDowell was making his third contribution and in possession. I invite him to continue on No. 85b before I return to the Minister.

On the last occasion before the Christmas break, we were discussing a proposal on my part and the part of Senators Boyhan, Craughwell and Norris for the amendment of section 39 by the addition of three additional subsections, one of which was to provide that nothing in the Bill should 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 respect of those courts, including the offices of Chief Justice of Ireland, President of the High Court and President of the Court of Appeal. Subsection (6) of the proposed amendment was to provide that a member of those courts would still be able to notify the secretary to the Government in writing of his or her willingness and availability to be appointed to any vacancy for any such judicial office mentioned in the first subsection and to provide that where a judicial office mentioned in subsection (5) stood vacant that in the ordinary course the commission should seek applications from persons who were otherwise eligible for appointment to such office such as practising barristers, solicitors or members of the District Court or the Circuit Court, as the case might be.

I want to point out to the Minister something by which I was taken aback. During the Christmas break there was some coverage of this legislation and its passage through this House. The coverage was generated by the Minister for Transport, Tourism and Sport, Deputy Ross. On 2 January he said it was is totally unacceptable to see inordinate delays because of vested interests and that it was a terrible waste of parliamentary time. I would not expect him to say any different. In an interesting Irish Examiner article he went on to say: "The Irish Times has been constantly critical of him for some time ... the opposition there which is relentless is all down to their opposition of the Judicial Appointments Bill." He was effectively saying that the poor press he was getting generally in The Irish Times largely stemmed from its concern about this legislation, which is a bit over the top because his other activities merit close scrutiny and sometimes condemnation, with or without this Bill. He said: "The bill has passed the Dáil but is being filibustered in the Seanad and being cheered on by the Irish Times which is a fairly irresponsible attitude for the newspaper, but that is up to them." On 31 December he said:

The filibuster by legal insiders in the Seanad has come up with an ingenious new delaying ruse. They will appeal to the judiciary itself to make independent judgments on the very system of political appointment that landed them in their current positions. Wow.

I will stop there. I presume that was a reference to a suggestion on my part that the constitutional issues in this Bill would be well teased out by an Article 26 reference, which is within the power of the President.

In reference to that, to so misconstrue and misrepresent Article 26 of the Constitution so as to say effectively a "new ruse" had been dreamed up to allow them to consider the validity of the terms of this legislation before the President signed it into law and say it was somehow designed to assist a conspiracy of judges and other opponents to effect the way in which this legislation was passed or whether it was passed at all is demeaning for a Minister. The President's role in this is for the President to operate under Article 26. It is a matter for him to consult the Council of State and take its advice but to exercise in the last analysis his own personal judgment as to whether an Article 26 reference would or would not be appropriate.

I refer to the suggestion, therefore, that a "new ruse" was to:

Appeal to the judiciary to make independent judgements on the very system of political appointment that landed them in their current positions. Wow.

That was a disgraceful remark for any Minister in the Cabinet to make about the Article 26 reference process. It is disgraceful in many respects because it shows remarkable ignorance and a remarkable disloyalty to the terms of the Constitution because this legislation is eminently suitable for an Article 26 reference if that is the view of the President. I do not presume to advise the President on this issue, although I have clear views which I have expressed.

The point I am making is about why it is wrong for a Minister to try to impugn the Article 26 procedure, as applicable to this Bill. It is wrong because if the Bill is unconstitutional for any or all of the reasons I have proposed orothers which I have not yet seen or which may occur to others on an Article 26 reference, or if any part of it is arguably unconstitutional in a manner that would require or justify such a reference, I will say the very purpose of Article 26 is to make sure something which becomes law and which should be looked at before it becomes law should have an adjudication made on it in limited circumstances.

From my experience as Attorney General, Minister for Justice, Equality and Law Reform, Tánaiste and a member of the Council of State, I know that Presidents are very sparing in their use of Article 26 precisely because of the stare decisis rule to the effect that once a Bill has been referred to the Supreme Court under Article 26 and found to be valid, the matter may never again be canvassed in any court at any level. Commentators query whether that should be the case. I would not have inserted it into the 1937 Constitution but it is there and, as a result, Presidents rightly take the view that they should not cut off constitutional challenges to legislation for all time where factual situations, changing values and views on the Constitution may emerge which nobody could envisage and which might justify a constitutional challenge to legislation.

The converse is equally true. Why is Article 26 there and why would the President refer the relevant matter to the Supreme Court? There are circumstances in which, having regard to a number of distinct issues, it is crucial that a preliminary check before final promulgation as a law by the President's signature take place. One of these is that if legislation which had the effect of unconstitutionally tainting the manner in which judges were appointed were to be passed, it would be far better if that was discovered at the earliest available opportunity. There are two reasons for this. The first is that there can be downstream consequences of appointments being made in a unconstitutional manner. The second is that the fact that whether a challenge might be made depends largely on who is likely to make it. Without going into an overly long discussion on the matter, we must consider who is likely to make a challenge of this kind. The person who is most likely to do so is somebody who is directly affected by the legislation. Will it be a disappointed judge who believes that he or she was improperly excluded from being shortlisted by unconstitutional legislation? Will it be a disappointed would-be appointee to a position on the Bench? Who would have locus standi to challenge this? It is perhaps not just anybody who is an ordinary citizen. It might be argued that ordinary citizens simply do not have it. In the context of some views of the law, it might be argued that they do have standing.

I think they do. It affects them.

It affects them, albeit indirectly and distantly. Article 26 has functions, one of which is to deal with situations where something the President is considering signing into law constitutionally appears suspect. Another function is in circumstances where the President comes to the view that it should not become law until it is tested because it is unlikely that an action will be taken subsequent to his or her signature of the Bill and its promulgation as a law that somebody will be in a position, without significant embarrassment, to make such a case. The Minister criticised me for using the term "embarrassment" in the context of asking sitting judges to make applications for all promotional appointments. Surely it would be far more embarrassing if a member of the Judiciary started an action, the subtitle of which is the pop song "It Should Have Been Me".

To quote the Minister for Transport, Tourism and Sport, Deputy Ross: "Wow."

Give us the words of the song.

That would hardly be an edifying or proper position in which to put a judge, as the only person who could really protest about the new method of requiring all judges to submit themselves to external adjudication and exclusion by a process which is utterly non-transparent, from being shortlisted or made available to the Government as a would-be appointee. That judge would have to litigate. It would be deeply embarrassing and unedifying. It is wrong to put anybody in that position. If anybody was of the view that this process tended to subvert the independence of the Judiciary by requiring its members to periodically and frequently make applications for promotional appointments, a phrase which I use loosely, that person would find it exceedingly embarrassing to make a claim that the process somehow prevented him or her from being shortlisted, especially since he or she would not be told that he or she had been shortlisted or not. We would have discovery issues and other unsatisfactory aspects.

On the remarks attributed to the Minister for Transport, Tourism and Sport about the new ruse of having the Judiciary look at this issue under Article 26, it is not a ruse at all. It is a perfectly sensible issue for this House to consider when it is trying to come to the view of whether there are constitutional difficulties which should make us hesitate. It is interesting to note what the Minister, Deputy Ross, is reported as stating on this subject by the Irish Independent. The article in question reads:

"By delaying the judicial bill in the Seanad, they're perpetuating political patronage, they're perpetuating political favours," the minister said in an interview with the Sunday Independent.

"That is what they are doing. So, if that's what they want to do, let them say so," he added.

"They're not dictating policy because they are not introducing new policies. They're quite destructive, that's all."

It continues with a fascinating statement that those behind the delaying of the legislation were "horribly powerful" people. Then the Minister stated, "We beat the vintners and we're going to beat the judges and barristers." Those are shameful words from any Cabinet Minister.

I am not here to defend the comments of someone who is not present but I do not think the intention was to physically beat anybody.

No, quite the reverse.

I do not think anyone suggested that.

The Acting Chairman must not have been listening.

There is nothing worse than a reformed tart.

Much as I may not have wanted to listen, I was listening when Senator McDowell used the term "We beat the vintners." I do not think I saw the Minister, Deputy Ross, go out and physically beat vintners either. I presume Senator McDowell's inference was that he had won his row with the vintners.

(Interruptions).

I was listening to the Senators. I also listened to the Minister, Deputy Flanagan.

I am grateful to the Chair. I do not believe it was an admission that he had physically beaten them.

Is it in order that the past 20 minutes have been devoted to criticising somebody who is not in the House to defend himself?

That is a fair point.

Criticising his views is not criticising him. This is criticising views that appear in the public forum.

At the start I suggested Senator McDowell had spoken three times on this amendment and was in possession the last time. The difficulty is that he was referring to the comments of the Minister for Transport, Tourism and Sport, Deputy Ross, which were related to amendment No. 85b.

That is the issue. They were related to the amendment. It is not a general discussion about the Minister, Deputy Ross's contribution. If I am right, he was discussing amendment No. 85b in his comments. That is what we are talking about.

If he had read it. I think he does take a close interest. The other point-----

The Minister was asleep.

I am in the Chair. I am independent.

I am grateful to the Acting Chairman, but I also make this point. This is a Government Bill. Under the Constitution, the Government meets and acts as a collective authority. The Minister for Justice and Equality, Deputy Flanagan, is here representing the Government and part of his collective authority, his Cabinet colleague, has said those things-----

I do not intend to read the comments.

I have not read the comments to which Senator McDowell refers and do not intend to read them.

On the other hand, I do not read much of what is attributed to the Minister's colleague, but this jumped off the page at me and I thought the Minister should be aware of it. He is now aware of it. He also told the Sunday Independent that The Irish Times had been "ranting and raving in a kind of almost fervent zealotry" about his proposals. He said, "They're very keen to stop it and they expressed that editorial opinion in the last year and that's their point of view, I don't think it's the case with rest of the media".

Let us be very clear on the question of whether this relates to promotional appointments, which is what we are dealing with. As I understand it, the Cabinet has made judicial appointments to which this legislation would apply on 36 occasions. That was under the Judicial Appointments Advisory Board system. Some 36 appointments have been made to every court in the land-----

I am glad to hear the Government has done it today.

Excluding today then.

The Senator had not heard about it.

I had not heard of it. There are more in the pipeline. I am glad to hear it.

Some very good judges were appointed today.

It makes it very clear to me. The statement that this is about cronyism and perpetuating political patronage and favours and that that is what I am doing here really needs to be underlined when the Minister's own Cabinet colleagues have made 36 appointments. Either those are good appointments - I think they are good appointments - or they are not. Either they are exercises in political patronage or they are not and I do not believe they have been. Either the appointments that have been made fall into the category of political favours being given to people or they do not.

The Government, the Taoiseach and the Minister for Justice and Equality should publicly condemn that kind of language about the decisions the Government has made and say it is unacceptable. It must state that far from depoliticising the appointment of judges, this language accuses the Minister's colleagues in the most scandalous way of engaging in patronage and favour giving without any justification whatsoever. It is about time that Fine Gael got off the fence completely and admitted that it does not agree with this legislation. The great majority of Members of both Houses of the Oireachtas from the Fine Gael Party, with whom I have had private conversations, do not agree with a word of this legislation.

Let it be there. It is scandalous that members of the Government, from the very top to the lowest member of the Government, whoever that might be - I have a candidate in mind, I have to say - refuse to condemn this kind of language in respect of decisions they are making. I really resent it. It is perfectly-----

I have done so in the Dáil and the course of the 75 hours of this debate, if the Senator will check the record. I am not going to repeat it.

It is about time that some discipline was imposed in the Government. Instead of telling us how to do our business in this job, I suggest the Government meet and act as a collective authority. Either it is engaging in patronage and favour-giving or it is not. If any member of the Government thinks the old system is inherently an exercise in patronage or favour giving, he or she should resign or the Taoiseach should tell him or her to stop making those remarks. It amounts to a dissent and an imputation about the quality of decisions to which the relevant Minister is a party.

The Minister, Deputy Ross, is an expert in cronyism. Did he not bring his entire family into the Sunday Independent financial section?

I do not want to get personal. I do not want to go there.

Senator McDowell has the floor.

The Minister is not here to defend himself. This is fundamentally unfair.

The Minister is not here, but I have been told by his paid employees that he pays close attention to everything that is said in this House. From the media exposure over the Christmas break it seems he is quite happy to fire off volleys at those who oppose his legislation but like Mrs. Mulligan's dog, he is a devil to give it but cannot take it.

I draw the Minister's attention to-----

Was the dog educated at a rugby school?

Without being disorderly, I bring the Minister forward to why this amendment is so important. It is because of what is later provided for in sections 48 and 49 of the Bill with which we are dealing. Section 48 innocuously states:

(1) Notice of an appointment to judicial office shall be published in Iris Oifigiúil and the notice shall, if it be the case, include a statement that the name of the person was—

(a) recommended by the Commission to the Minister in accordance with the provisions of this Act, or

(b) recommended to the Government under section 44,

as the case may be.

Subsection (2) is significant. It states:

(2) In the event that a person appointed to judicial office has not been recommended by the Commission under this Act, the notice of that appointment published in Iris Oifigiúil shall include a reasoned written explanation of the decision of the Government not to nominate a candidate recommended by the Commission.

I ask people to let that sink in for a second.

It is terrible. It is appalling.

It is a shocking piece of nonsense.

It could amount to libel.

What it is supposed to be, I do not know. Why it is there, I am not clear. The section I am dealing with aims to prevent sitting members of the Judiciary from having to go through this process and states it does not apply to them. It is partly motivated by the fact that section 48 requires the Government, if it does not agree with the commission's viewpoint, to give a written explanation, published in Iris Oifigiúil, of its decision not to nominate a candidate recommended by the commission, apart from stating it thought the appointee was better or more suitable for appointment than anybody else. Is that a reasoned explanation?

It is not a reasoned explanation. It is a self-evident piece of nonsense.

It is a statement of a view.

As it does not give a reasoned explanation, why are we even being invited to consider legislation in this form? Why are we asking a member of the sitting High Court, the Court of Appeal or the Supreme Court who is seeking an appointment or seeking to signal an appointment to any position in those courts to go through this meat grinder process, which requires, if they are appointed notwithstanding the views of this so-called commission, the writing of a reasoned explanation of the Government's decision not to appoint a candidate recommended by the commission?

Let us suppose 12 persons apply for a job in one of those courts and, typically, eight might be judges. Three people - one practising barrister and two judges - might be placed on the short list. As I pointed out on the previous occasion, this Bill is designed to prevent people from really knowing what happens. Let us also suppose the Government believes Mr. Justice Bloggs is a better appointee as Chief Justice than any of the three people chosen for inclusion on a short list by the commission. How could a reasoned explanation be given for that apart from stating the Government thought he was more suitable? How could that amount to a reasoned explanation? Unless it stated it had flipped a coin, it would not be possible to have a less reasoned explanation than to say the Government believed the person appointed by it was more suitable than those on the short list.

If one did not identify the people on the short list but merely identified the appointee by means of a little paragraph in Iris Oifigiúil, somehow asserting their superiority over unnamed persons who were short listed, what, then, is this subsection all about? It is deeply offensive. It is so ridiculous that I wonder how it got there in the first instance. It is deeply offensive because it is designed for one thing only. The only motive for such a strange provision in a Bill is to make it deeply embarrassing for the Government not to accept the short list, to plunge the Government into a kind of internal crisis that rather than just stating it prefers Mr. Justice Bloggs to the people on the short list, it must now engage in publishing a reasoned explanation as to why the particular judge it chose was better than three other judges who were recommended and give some reasons for it.

The undeniable and obvious inference to be drawn from the inclusion of that measure in this legislation is that it is designed to prevent the Executive from using its own discretion in cases where it thinks that is appropriate and disregarding what is, in effect, merely advice from an external body in the exercise of a constitutional function. That is the only possible reason for putting into Iris Oifigiúil a reasoned explanation for one person getting a job rather than others is to make it difficult, embarrassing and controversial and to impugn in ways the appointment it makes.

It does not happen in any other job.

It is an astonishing provision. If one thought that this is just a little aberration, one must look at section 49. We will come to the latter in the fullness of time but it states, "Within 30 days after the end of each year, the Minister shall cause to be laid before the Houses of the Oireachtas a statement of appointments to judicial office made by the President during the previous year".

I wish to make a very brief intervention. I seek the Acting Chairman's help. Once again, Senator McDowell is referring to sections 48 and 49. I agree with much of what he said. I have tabled amendments to change sections 48 and 49. I am not in a position to discuss them because we are actually dealing with amendment No. 85b. I ask the Acting Chairman to assist the House by facilitating the provision of some order in this debate. That is all I ask.

Could the Minister facilitate the House by revealing to us the nature of the amendments?

I am sorry, Senator Norris-----

In due course, yes.

We do not have them.

I am sorry, Senator Norris-----

We do not have the amendments.

I am sorry, Senator Norris-----

The House will have them in due course.

I have tried to facilitate the debate.

Like the Oracle of Delphi.

I can understand the level of frustration the Minister must be experiencing.

There is no frustration on my part. I want to make that precisely clear. I merely seek the assistance of the Chair for what I regard as good order.

I have been providing good order. If the Minister feels I have not, I am sorry. However, I am not aware if anyone else is of his view.

I have to deal with the Bill as it stands. If I look at the list of proposed amendments-----

There are other Government amendments.

-----the Minister has not brought forward any. Now he is stating he intends to make some undefined amendments at some point because he agrees that these sections are unsatisfactory.

I am sure the Minister will do so on Report Stage-----

I am trying to be helpful.

I am also trying to be helpful. In the context of section 48, amendment No. 96 states: "In page 32, to delete lines 12 to 17." Amendment No. 97, a Government amendment, states-----

Yes, but there is an asterisk beside it which means that it is also a Government amendment. Perhaps one of you copied the other or maybe it is a case of great minds thinking alike.

I merely seek the Chair's assistance. I do not think it is too much to ask.

I have to say-----

I point out for the benefit of Senators who may have had the opportunity of reading the transcript of the previous debate in the House that I oppose the content of the current sections. The amendments that gave rise to the current text were inserted by the Opposition at an earlier Stage and I intend to revisit the issue. Again, I seek the assistance of the Chair in the maintenance of order.

The Minister may not need the assistance of the Chair because-----

I have tried to assist everybody as much as possible.

-----up to now I have regarded those amendments-----

The asterisks indicate that they are also Government amendments.

I am beginning to see that they are Government amendments, as denoted by the use of asterisks.

I realise I will be speaking for the Government when proposing those amendments.

Senator McDowell is well used to that.

We have not reached section 49. We are still on amendment No. 85b which relates to section 39. Has the Senator concluded?

Is it not amendment No. 85a?

If the Minister succeeds in persuading Dáil Éireann to accept a deletion of those, that is one thing. However, if he does not-----

This is the Seanad.

I thought we were dealing with the Bill in the Seanad.

On a point of order, in the text I have, there is a very clear reference to amendment No. 85a.

No, it is amendment No. 85b.

Amendment No. 85a was defeated on the previous occasion. We are dealing with amendment No. 85b and have been doing so since 6.20 p.m. or thereabouts.

I presume Senator Norris was not here at the time.

We are on section 39, not sections 48 and 49, although there is relevance.

I have been here all the time-----

No, you have not.

-----unlike the Senator.

Prior to Christmas, you were not.

Senators Norris and Conway should address their remarks through the Chair, please.

We want to be accurate.

You are getting no more envelopes.

I am dealing with the Bill as sent forward to this House by Dáil Éireann. The Minister says he proposes, by means of these asterisks, to accept my amendments when I move them. Presumably, it is quite likely that the House will accept the amendments I am proposing. If that is to be the case, we are still not sure Dáil Éireann having in its wisdom, or in this case, I suggest, the lack thereof, inserted this into law, would take it out.

I think I am entitled to deal with the Bill as I see it rather than the Bill as the Minister promises to try to amend it in this House.

The Senator will have the opportunity to do so when we will come to discuss the amendments to sections 48 and 49. We are still discussing amendment No. 85b.

Regarding amendment No. 85b, a lengthy list of the appointments to the High Court, the Court of Appeal and the Supreme Court made by the Government was read out.

Senator Norris is unaware that there is a second additional list of amendments.

I thank my colleague.

Many promotional appointments to the High Court, the Court of Appeal and the Supreme Court give rise to a domino effect, whereby other vacancies arise. One of the curious things about this legislation is that if, for instance, the Government decides to appoint a judge of the Court of Appeal to the Supreme Court, a vacancy thereby will be created in the Court of Appeal. As the Bill stands, either the Government has to anticipate its decision to appoint an appeal court judge to the Supreme Court and seek in advance that the commission advertises the position in the Court of Appeal or the resulting vacancy has to be advertised. In respect of each of these matters, members of the Judiciary are supposed to put in a separate application to the commission seeking appointment. What I find difficult is that a Government that announces that Ms Justice Blogs in the Court of Appeal is to be made an ordinary judge of the Supreme Court, having discussed with the Attorney General the consequences of making such a decision, cannot say that morning that it will appoint Mr. Justice Smyth of the High Court to the Court of Appeal in consequence. The Government cannot do that. The new procedure will slow everything down and create an unusual situation where that position now has to be the subject of this mass circulation of the Judiciary and mass application by all members of the Judiciary who are intent on applying.

That is another reason this clumsy proposed legislation should not be law. One cannot have that situation. The Judiciary needs to function smoothly and Cabinets should be in the position that if they decide to appoint a High Court judge directly to the Supreme Court or a Court of Appeal judge to the Supreme Court or an existing Supreme Court judge to be Chief Justice, there will be a follow-on, domino-like sequences of events which they will want to fulfil. The Government will have to ask each member of the Judiciary who wants to be part of that snakes and ladder process to put in an application, to be considered afresh and short-listed by this commission simply makes no sense. For the Government to received shortlists arising from a vacancy created by the promotion and to go through a process whereby a shortlist has to be devised by the commission based on a process involving interviews and all the rest is just nonsense. This is bad and foolish and we should not go down this road.

The 36 appointments I mentioned were good appointments and properly made in proper circumstances by a system that is not broken, if it is operated in good faith. To ask individual judges of the High Court, the Court of Appeal and the Supreme Court, respectively, to apply to outsiders for every promotional appointment within the courts system, especially in the context of what the Dáil has done in sections 47 and 48, is bad law and designed to create a situation in which the Government effectively is coerced into divesting itself of its judgment which is vested in it under the Constitution as to what kind of judge or who should be in the Supreme Court. As I have said previously, this is a political decision for the Government in the sense that it is a matter of policy and it is not one on which the JAAB is even asked to make a recommendation. It is not one on which its views are in any way relevant and particularly it is not one on which the Government should be curtailed in any way from making its own decision.

I regard my arguments as being reinforced strongly by the points I have made about the Attorney General not being in a position to tell the Government who the unsuccessful candidates who were not short-listed were. I believe all of these factors, taken together, strongly indicate that this proposed legislation is unconstitutional. That is not a ruse; that is not a wheeze; that is not perpetuating patronage or doing anybody any favour; it is merely upholding constitutional values and the separation of powers.

I completely concur with Senator McDowell's points on the constitutionality of the Bill. It seems to be absolutely absurd to preclude the Government from knowing the names on the list. That is a complete absurdity and I believe it to be unconstitutional.

With regard to the article that was referred to, it was rather let down by the immature, comic book exclamation, "Wow", but reference was made to vested interests and legal insiders. I have been one of those who have been responsible for the detailed examination of this legislation and I do not apologise for one second for being in that position. I would like to know what vested interests I have, except as a Member of the Oireachtas. I would like to know in what sense I constitute a legal insider, apart from the fact that I have taken between 40 and 50 cases in the courts and won every single one of them.

Senator Norris is a cash cow for the legal profession.

I can tell the Senator that they are a cash cow to me. They paid for what they said about me in the presidential election.

I am very glad that Senator McDowell, in particular, and I, in a minor way, have seeded into this debate many valid reasons for the President to use Article 26 to refer the Bill to the Supreme Court for consideration as to whether it is constitutional.

I am concerned about what has been said about sections 48 and 49. I will not go into them in any great detail.

I might remind the Chair who was not present when I made the point earlier that we are not debating sections 48 and 49; we have been debating for almost an hour amendment No. 85b.

I understand that and-----

It is an amendment in the names of Senators McDowell, Boyhan, Craughwell and Norris.

Senator Norris has requested leave to debate sections 48 and 49.

No, I have not.

I seek the protection of the Chair for the maintenance of good order.

The Chair is well aware that we are on amendment No. 85b.

I have not sought any-----

I ask the Chair to remind the Senator-----

I have not sought any leave but I am seeking precisely the same treatment as was accorded to Senator McDowell, although I would just make a couple of comments.

The Chair ruled on that matter in the absence of the current Chairman.

He did not rule in the Minister's favour.

He most certainly did-----

He certainly did not.

-----insofar as he requested Senator McDowell to stick to amendment No. 85b.

No, he did not.

I defer to the Chair and request that he do the job of Chair.

We are on amendment No. 85b-----

-----to section 39.

The situation regarding the section to which I have referred is that-----

Which section is it? Is it section 49?

Is the Minister interrupting me?

No, I am merely asking the Senator to which section is he referring.

The Minister is interrupting me.

I am asking to which section is the Senator referring.

That is perfectly in order.

Why did I have to take the Chair at this point?

The Minister is looking for clarification from Senator Norris. That is quite in order.

How would the Senator know? The section states: "In the event that a person appointed to judicial office has not been recommended by the Commission under this Act, the notice of that appointment published in Iris Oifigiúil shall include a reasoned written explanation of the decision of the Government not to nominate a candidate recommended by the Commission". That is most extraordinary. I am glad that the Minister has indicated that he will table an amendment agreeing with Senator McDowell. I am delighted that the debates-----

To what section is the Senator referring?

-----and deliberations of this House are taken so seriously by the Government that it actually adopts amendments made by persons like Senator McDowell. I applied for a job in Trinity College Dublin for which there were 47 other applicants. I can assure the Minister Trinity College Dublin did not send 47 letters saying the applicants did not get the job because of this, that or the other. If it had done so, it might well have been subject to actions for libel. That is all I will say on it. I have been very reticent, despite provocation.

I do not have anything to say on amendment No. 85b because it is repetition of amendment No. 85a which I opposed. I will also oppose amendment No. 85b and ask that the question be put.

Amendment put.
The Committee divided by electronic means.

In order to be absolutely certain, under Standing Order 62(3)(b), I request that the division be taken again other than by electronic means.

Amendment again put:
The Committee divided: Tá, 10; Níl, 21.

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Daly, Paul.
  • Horkan, Gerry.
  • Leyden, Terry.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • Norris, David.
  • O'Donnell, Marie-Louise.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Richmond, Neale.
  • Warfield, Fintan.
Tellers: Tá, Senators Michael McDowell and David Norris; Níl, Senators Maura Hopkins and Gabrielle McFadden.
Amendment declared lost.
Question put: "That section 39 stand part of the Bill."
The Committee divided by electronic means.

In order to establish the situation with absolute clarity, 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, 20; Níl, 5.

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

Níl

  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Horkan, Gerry.
  • McDowell, Michael.
  • Norris, David.
Tellers: Tá, Senators Maura Hopkins and Gabrielle McFadden; Níl, Senators Michael McDowell and David Norris.
Question declared carried.
SECTION 40

Amendments Nos. 86, 87 and 91 to 93, inclusive, are related and may be discussed together, by agreement. Is that agreed?

Amendment No. 91 was part of a previous grouping or did we change it?

I have been advised by the clerk that it is in this grouping.

I apologise. I made that change. It had been included in an earlier grouping.

Is that agreed? Agreed.

I move amendment No. 86:

In page 28, line 22, after "persons," to insert "at least one of whom must be of each gender,".

Amendments Nos. 86, 87, 91 and 93 all deal with the same general principle of seeking to ensure gender balance among the Judiciary.

Amendment No. 86 proposes to amend section 40 by inserting in subsection (2) the words, "at least one of whom must be of each gender", after the words, "the Commission shall, in accordance with this Act, recommend to the Minister, in respect of the judicial office concerned, the names of 3 persons". These names are to be ranked in the order of the commission's preference. The amendment specifically seeks to ensure there is an adequate gender balance among the nominees for the Judiciary or those recommended.

I will not go through all of the other amendments in great detail. Amendment No. 87 proposes to make a similar change to section 41(2) by insert after the word "concerned" the words ", having regard to the objective that the membership of the judiciary should comprise equal numbers of women and men".

Amendment No. 91 is to section 44 which deals with the appointment as Chief Justice, President of the Court of Appeal and President of the High Court. The amendment uses the same formula in providing that at least one of the nominees for these appointments must be of each gender. Similarly, amendment No. 93 proposes to change section 46 and refers to the objective that membership of the Judiciary should comprise equal numbers of men and women.

Before I speak about the gender balance amendments, I should note that amendment No. 92 is somewhat different, although it is related to the other amendments. It does not refer to the issue of gender balance but seeks to change section 46 by inserting a specific reference to the need for the commission to make a ranked recommendation. Section 46, as the Minister will see, refers to recommended persons to be considered first. It is the section that refers to the Government's consideration for appointment of those persons whose names have been recommended to the Minister. There is no reference currently in section 46 to the Government having to consider those names in the order in which they have been ranked. This seems to be an omission, given the reference in section 40(2) to persons being "ranked in the order of the Commission’s preference" and an identical reference in section 41(2). While this may seem a somewhat technical point, as the Minister is well aware, every critique or criticism of the Judicial Appointments Advisory Board, JAAB, and the current judicial appointments process has tended to refer to the flaw that JAAB recommendations are not currently ranked and, as a result, a group of names may be submitted to the Government for consideration. It would be preferable if JAAB were to rank the names, thus making the shortlisting process more real in the same way that we rank at interviews and so on.

Which section is the Senator discussing?

I am referring specifically to amendment No. 92 which seeks to amend section 46. The reason I have singled out this amendment is that it is somewhat different from the other amendments in this group. I will speak more generally about the gender balance considerations in the other amendments when I have explained the reasons we tabled amendment No. 92. We did not do so to change the nature of the Bill but to strengthen the provisions of sections 40(2) and 41(2), both of which require the commission to rank the names of those it recommends in order of preference. There appears to be a gap or an anomaly in the Bill because whereas sections 40 and 41 include a requirement for ranking, the Government is not required to consider for appointment in the order of the commission's preference when the recommendations come to it, as provided for in section 46. Amendment No. 92 simply strengthens what is already contained by way of a principle in the earlier sections. The amendment is related to the other amendments because it concerns how the commission is to make its short list. However, it differs from them in that it refers not to gender balance but to the issue of ranking in order of preference.

Some argument has been made by Jennifer Carroll MacNeill and others that the Judicial Appointments Advisory Board could have ranked applicants before now but had not done so. One of the strengths of the Bill is that it requires ranking in sections 40 and 41. The new body will have strengthened powers in the sense that it will be required to rank applicants rather than only having the power to do so. That will strengthen the position of the commission because it makes the process more real and similar to other interviews.

Amendments Nos. 86, 87, 91 and 93 refer to the important policy objective of achieving a balanced Judiciary, in particular, that the Judiciary should represent the balance of women and men. I table these amendments as the author, some years ago, of the first and only major study of gender in the legal professions in Ireland, which I conducted with my colleagues, Eileen Drew and Cathryn Costello in Trinity College Dublin. The study which was published in 2003 under the title, Gender inJustice, examined the issue of gender balance in the Judiciary. We took note of processes that were being implemented in other jurisdictions to try to encourage more women to seek promotion to the Judiciary and ensure more women were appointed to the Judiciary. We noted at the time that Ireland was not the worst among common law countries in terms of the proportion of women in the Judiciary. From memory, I believe the proportion here stood at between 20% and 25% at the time. Ireland now leads in terms of gender balance in the Judiciary. I am conscious that two appointments made to the High Court last week slightly skewed my figures because I had looked at the data beforehand. I understand women now make up 37% of the Judiciary, that is, the District Court, the Circuit Court, the High Court, the Court of Appeal and the Supreme Court. Women make up three out of eight judges in the Supreme Court, which is 38%, and 50% of the Court of Appeal, which is the highest proportion. That is much better than we see in comparable common law jurisdictions but it is still not as good as in some civil law jurisdictions where there are career judges and a different method of appointment.

I will not dwell on the difference between the legal systems. Women make up 51% of the population. In recent years, as the Minister will be well aware, more women than men have qualified as solicitors and women have joined the Bar in much larger numbers than before. It is important that we at least sustain a figure of 37% or 38% of the Judiciary being female. For that reason, it is important to place this in our legislation when we are reforming judicial appointment processes. The Minister will see that the provisions have been drafted in such a way to be gender neutral in the same way that our legislation on the gender quota in politics is gender neutral. The section of the Electoral (Amendment) (Political Funding) Act 2012 which provided for a gender quota for political parties is also framed in a gender neutral fashion. It requires parties to select at least 30% of their candidates of each gender. We saw the difference that legislation made in the 2016 general election when the proportion of women Deputies increased significantly from 14% to 20%.

It is very important that we are proactive when it comes to our commitment to ensuring gender equality and gender balance. It is in that spirit that my colleagues and I put forward these amendments. They build on the work that has already been done in terms of research and the policy objective framed in the political funding legislation. They also build on the very good work done on ensuring greater gender balance in the Judiciary. I have outlined the figures. The increase since my colleagues and I compiled our study in 2003 is very welcome but we need to ensure it is sustained and that we have a diverse Judiciary generally.

I have no problem with diversity in the Judiciary. However, probably more significant in terms of the judgments delivered and the appearance of equity in the courts would be to make clear that there should be representation from the less advantaged social groups in society. In my view, having spent a number of years, for one reason or another, viewing proceedings in the District Court, there very often was a clear sense, as far as I was concerned, of class justice.

I question the grammar of amendment No. 86 which reads: "In page 28, line 22, after "persons," to insert "at least one of whom must be of each gender"." That line seems unnecessarily to favour bisexuality or gender fluidity. I wonder if it could be rearranged some way because one person having to be of each gender would be a little awkward in the fitting of the gowns and matters like that.

On the question of ranked recommendations, I am not as enthusiastic about it as my colleague, Senator Bacik. When names are ranked as one, two and three, the natural presumption is that number one is the favourite, number two is the second favourite and number three is the third choice.

It seems to be a further attempt to tie the Government's hands. I am not against it but I have that hesitation. We should leave sufficient scope for the Government to make up its own mind but I will be supporting all of these amendments and really hope we will have votes on each and every one of them in the interests of democracy.

Does Senator Bacik want to say something?

I thank the Senator. I want to briefly respond to Senator Norris's point. I obviously bow to him in matters of English grammar and I am happy to withdraw amendment No. 86 in any case to see if I can draft it a little more elegantly. I apologise in that regard.

None of these provisions ties hands in terms of gender balance but in the same way as our 2012 political quota legislation, they are simply opportunity quotas that seek to ensure more women will be put forward as candidates and not to determine who will ultimately be selected as candidates.

On ranking, we will agree to differ but it has been suggested by those who have been critical of the current Judicial Appointments Advisory Board, JAAB, process and want to move away from political patronage because ranking ensures there is a clearer indication from the external independent body as to who are the most meritorious candidates.

With Senator McDowell's and the Acting Chairman's agreement, can I make one observation?

It is not at Senator McDowell's discretion; it is my decision but the Senator can go ahead.

There could be an equal number of candidates but that could still lead to a situation where the Chief Justice of Ireland, the President of the Court of Appeal and the President of the High Court were all women or all men.

That cannot be prevented from happening.

Would it not be great if they were all women?

I call on Senator Norris to speak without interruption.

I am interrupting myself by sitting down.

That is fine. I call Senator McDowell.

The Acting Chairman has reminded me of something. This is such an important point. It would be much nicer if more people could be aware of our discussions in order that possibly we could-----

Is the Senator calling for a quorum?

That is exactly what I was thinking of.

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

While I appreciate Senator Bacik's commitment to fairness and justice for women and gender justice, I do not agree with her amendments. I will explain why. Section 7(1) states: "A decision to recommend, under this Act, a person for appointment to judicial office shall be based on merit." Section 7(2) states:

Subject to subsection (1), where the function, under this Act, of selecting and recommending persons for appointment to a judicial office falls to be performed, regard shall be had to -

(a) the objective that the membership of the judiciary should comprise equal numbers of men and women,".

The subsection goes on to state it should reflect diversity and, third, should make provision for people with the Irish language. As I understand the Bill, its policy is that the commission must operate on the basis of merit, but while considering people from that point of view, it shall have regard to the objective that the membership of the Judiciary should comprise equal numbers of men and women. That is a simple intellectual exercise. The overriding rule is merit, therefore the three best people are always recommended. However, in looking at whether people are best or not regard should be had to the objective that the membership of the Judiciary should comprise equal numbers of men and women. We are either adhering to section 7 or we are not.

The first of Senator Bacik's amendments relates to section 40. That section as it is proposed to be amended would add to the words "the names of 3 persons, ranked in the order of the Commission’s preference" an extra phrase, "at least one of whom must be of each gender". Now we have a different concept. Merit is no longer the overriding cardinal principle. We are saying that even if one arrived at the view that three women were clearly the best, one must throw in a man and delete one of the women to conform with the Bill. That cannot be right. Either section 7 or section 40 operates. The commission is being told that having looked at the available people to be, for example, President of the Circuit Court and having come to the conclusion that the three best qualified are women, it must then grab the emergency brake because Senator Bacik's amendment provides that it must dump one of the women from the short list and put a man on it. Even though they are clearly better, the commission must hunt for the best of the men who applied and put him on the list to satisfy this requirement.

I fully understand affirmative action and such ideas-----

The Senator does not like them.

-----but the section 7 approach is based on merit and in making merit-based decisions there is a desideratum that there should be a balance between men and women in the Judiciary. However, in this section Senator Bacik is saying that even if the commission comes to the conclusion that three persons of one gender are the best people, it must slam on the brakes, delete one of them and add a person of the other gender. She is going too far. It is not something I could support and it is not something we should impose on the commission or the Government in such circumstances. It appears that the Senator is taking and pocketing section 7 as an advance and then seeking to overrule it also, whereby if there were three people of one gender, notwithstanding the fact there should be balance, the lowest of the three would be knocked off and a person of the other gender would be made available for the Government to choose from. That is unfair.

I have sympathy for the proposition that there should be gender equality in judicial appointments, up to the point of not producing a Judiciary that is not the best that we can do. My interpretation of section 7 is that the commission should do its best and give us the best judges but have regard to gender balance as a desideratum. That is the right solution. However, the Senator is inviting it to go a stage further whereby if a single gender slate turns up, be it women or men, the commission must delete one person and include a person of the opposite gender to the other two to achieve balance. I do not think that is what she believes. If there were three meritorious women, she would be horrified if a man was slapped in just for gender balance.

I do not think so.

She would be horrified if that were to happen.

I indicated to the Minister, in the context of the reprehensible remarks made by Senator Ross about the judicial appointments that have been made by the Government since he became a member of it-----

He is not a Senator any more.

I am not sure that is the case. I am not sure that the Minister, Deputy Ross, referred to recent appointments made by the Government.

He did. He said this Bill was the only way to stop, as he said - I will have to check it again-----

Do not misquote him.

I would hate to misquote him. He said that by delaying the Bill, we were perpetuating political patronage and political favours.

It is perfectly clear.

Either they have stopped or they have not. If political patronage and political favour giving are taking place-----

I strongly reject that.

However, there is the minor problem that in the Government there is a person who was party to Government decisions to make the 36 appointments to which I referred who says the only way to stop patronage and favour giving is to alter the way in which those people have been selected. We will not return to that matter again, but they are disgraceful remarks. He is either a member of a Government that acts as a single, collective authority or he is not.

He should stop making remarks which cast a shadow over appointees under the present system because as far as I am concerned they have not been incidents of patronage or favours granted. I say that in a spirit of generosity and truthfulness.

I am pleased the Senator said that.

I have been emphasising it from the very beginning. I am the person who supports the present system which is working and which the Government is operating perfectly well. The Minister is the person who is trying to politicise the appointment of judges by handing the entire function over to a group of lay people. That is what is happening. We should remember that it was the Minister, Deputy Ross, who as a Deputy proposed that every appointment should be scrutinised by a Dáil committee and subject to its approval and that a majority of the committee should be Opposition Members. He wanted to politicise the appointment of the Judiciary in that way and amend the Constitution to do it; therefore, the Minister should not give me a lecture about this. I stand over every appointment I made.

I request that we, please, have all commentary in the House through the Chair.

I cannot hear what you are saying, Acting Chairman.

That is because the Senator's colleagues are all talking together. I ask that we have commentary through the Chair and that no direct remarks be made.

Through the Chair, I ask the Minister not to suggest I favour political patronage or have ever acted that way. I ask him to check the record when I had anything to do with judicial appointments when he will find that far from exercising political patronage-----

I never made such a suggestion.

-----the Governments in which I operated as Minister for Justice, Equality and Law Reform and advised as Attorney General were singularly politically blind in their appointments.

For the purposes clarification, I do not take issue with that.

Through the Chair, I concur.

I am pleased to hear it.

Will the Senator speak to the amendment?

The point I was trying to make-----

The Senator is the one who introduced this aspect to the debate.

I did not. I introduced the fact that there had been a list of 36 appointments.

I ask Senators to, please, address the amendments and the Bill.

The Senator is throwing hoops around his own comments.

I wish to say for Senator Bacik's interests that when I did my tot of the 36 appointments, 16 were women, which is quite a lot. It is not 18-----

It is very close.

-----but it is as close as makes practically no difference. The Government has been exemplary in its approach to gender issues concerning judicial appointments without any assistance from the Judicial Appointments Commission Bill. One does not need all of this stuff to make good appointments and appoint good women to the Judiciary.

We will go back to what Senator Bacik is proposing. What is in section 7(1) is a merit-based obligation and expressly provides that merit-based decisions must be cognisant of the desirability of gender balance. That is one thing but Senator Bacik is going one stage further and saying that in addition to this, if one gets three people of the same gender, women or men on a list, one must delete one of them and put somebody whom one did not consider as good as the three recommended in order to satisfy some other criteria. As I am against the proposition. I am against her amendment to section 40.

I fully accept that it is well intentioned but in my view it goes too far. It is unnecessary for the reasons I have mentioned, namely, that merit-based appointments now being made by the Government without any of this paraphernalia are reasonably gender balanced and, second, it requires a clear departure from merit-based decision-making to make a token obeisance to gender balancing the short list, even after the merit-based issues have been taken into account. I am in favour of merit-based appointments and taking into account the need for a gender balance but I am against the idea of having a 2:1 arrangement for short lists. I do not say that critically because I know Senator Bacik wants to rethink her amendments, but I am worried that if one has more than three on a short list one might not achieve much by having a proposition that at least one of them shall be a man or a woman. I am not clear that that is a very good idea. Section 7 is good enough as it is.

In terms of amendment No. 92, I do not agree that we should now tell the Cabinet how it should do its business. If it gets a short list of three ranked in order from one to three, I do not think we should say the Government should consider the matter on the basis of the ranking.

The members of the Government are not idiots. If a short list of recommendations is made of candidates from one to three-----

Does the Minister agree with that?

Senator McDowell has jumped through hoops here the past hour and eventually come up with the profound statement that he does not think the members of the Government are idiots.

I am saying it is unnecessary.

Can we stick to amendment No. 92?

Through the Chair, I do not think it is necessary to tell the Cabinet, having received a list ranked in order of preference, that when they sit down to look at it they must consider the candidates in the same order.

Hear, hear. That is well said.

I think they are capable of saying it.

The Senator is supposed to be avoiding repetition.

We are all elected under the PR system and understand what one, two and three means.

"Touché" is the word Senator Norris is looking for.

I am not in favour of Senator Bacik's amendments. I ask her to withdraw them in the fullness of time but it is important that we at least have an opportunity at this stage to express some preliminary opinions if the amendments are to stand.

We have had a good debate. What Senator Bacik is talking about is gender opportunity quotas, with which I agree. Sometimes it is about the language we use. I agree with Senator McDowell that it has to be an appointment on merit alone. I accept what Senator Bacik says about gender opportunity quotas because that is an important issue but ultimately section 7 refers to the appointment on merit and merit alone and that is important.

I wish to comment on what Senator McDowell said. I will not open up the debate about what is wrong with the current system but, as Senator McDowell alluded to, there were 34 appointments to the Judiciary: one appointment to the General Court of the EU; one appointment to the position of Chief Justice; one appointment to the Supreme Court; four appointments to the Court of Appeal; 12 appointments as judges of the High Court; nine appointments of judges to the Circuit Court; and six to the District Court. They are all judicial appointments or changes within the Judiciary as some of them, already being judges, moved positions.

They are the facts, as printed off today. That is important. In addition, I note that the Minister's Department ran another advertisement two weeks ago in all the national newspapers again seeking to recruit judges to the various courts and again under the current system. I am, therefore, somewhat amazed by all of the allegations of filibustering and inappropriateness and all of the terrible, objectionable comments being made by one Government Minister on the appointment of members of the Judiciary. As the Cabinet and the Government have seen fit to endorse 34 appointments, the system works well. Given this fact and the advertisement to which I referred, one must ask the question, what is the Government at? The current system works; the Minister knows that it works and no one is saying it does not.

Again, I make the point that we have been served with distinction by the Judiciary in all courts. I think all of us, without exception, can say that. They have a tremendous record in serving the State. That is an important point. I understand, however, the issue of gender opportunities and quotas. That should go through every walk of life when it comes to appointments. I am also conscious, however, that merit must be the ultimate prerequisite in appointment to the Judiciary.

I thank my colleagues for having taken the time to consider these amendments in such detail. In my initial speech I acknowledged the increase in the number of women serving as judges. I gave my current count of approximately 37% of our Judiciary being female, which is a huge increase from the time when we did our study some years ago. It is certainly a very positive sign in my view and, I think, the view of most people - everyone, I hope. However, we want to ensure this gender balance is sustained. That is the approach we are taking in these amendments. Section 7 sets out this policy objective and we use the same language in amendments Nos. 87 and 93. Therefore, I do not think anyone can object to thee amendments, given that they simply encapsulate the policy objective the Government has already stated in section 7 and in the same terms. Yes, we seek to go further in amendments Nos. 86 and 91 which, while still providing only for an opportunity quota, state in respect of each clause referring only to three applicants on a shortlist "at least one of whom must be of each gender". I have already indicated that I wish to withdraw these amendments in any case to look at them again, in particular, at the grammatical issue Senator Norris raised. The amendments, however, simply strengthen the Government's policy objective to have this additional provision included.

I have listened to what my colleagues have said about merit and that appointments must be merit-based. Of course, we all agree with that, but there is a large body of contested literature on what merit means, how we determine it and the criteria we use to adjudicate on it.

I know that Senators McDowell and Boyhan will be aware of this. For a very long time women and other groups faced difficulties in that regard. Senator Norris referred to class bias in the system, which was absolutely a fair comment. Disadvantaged groups are so called because they face existing disadvantages and there is not an equal playing field. If a woman applies from a position of disadvantage to a position in which women are under-represented, she is at a disadvantage. There is not a level playing field to begin with and speaking about the Holy Grail of an objective system of merit neglects or overlooks this difficulty with the pre-existing disadvantages. We have written about this before in the case we made at the justice committee in 2009 for gender quotas in politics, which culminated in the 2012 legislation. In that we talked about the five c's, that is, the disadvantages women face: lack of cash, confidence, childcare, culture and, of particular relevance in the case of politics, candidate selection procedures. The first four c's also apply to disadvantaged women in terms of career progression in law. Again, this is documented in our study, in which we did qualitative and quantitative work on gender bias in the legal system - structural biases, not necessarily prejudice. That is why we need to be careful when we talk about merit. There is the literature to which I have referred and we are well aware that merit can be a very fluid concept. It is not a fixed or predetermined concept and we must take account of pre-existing disadvantage. It is in that spirit that we table the amendments.

I have very much supported the Minister's Government in the affirmative action measures such as the women-only professorships the Minister of State, Deputy Mitchell O'Connor, has proposed. They are sensible ways in which to address an existing gender imbalance. Our amendments, taken as a package, seek to do the same thing for the Judiciary, that is, to ensure there is a sustained gender balance in the Judiciary and that this objective is front and centre throughout the legislation, not just in section 7. It is in that spirit that we table the amendments, but I will withdraw them at this stage. I do want the opportunity to debate this matter further on Report Stage because I am keen to ensure we have a wording on which I might get more support from colleagues on both sides. I will bring the amendments back on Report Stage but I am glad to have had the opportunity to debate them on this Stage.

Does the Minister wish to respond to-----

On the basis that the amendments are being withdrawn, no.

I would like the Minister to respond to amendment No. 92 and the ranking issue because it is somewhat discrete. Again, I will withdraw the amendment at this stage and bring it back on Report Stage, but the Minister may have a view on the matter.

I listened closely to what the Senator said. Having regard to the fact that she is withdrawing the amendment, I would be happy to engage further but I would prefer a situation in which the Government was free to exercise its constitutional prerogative on the issue. A Government will receive names in a certain order and I think this will result in an appropriate level of conversation and consideration on the part of the Government. In the circumstances I do not believe the amendment is necessary.

I will take the Minister's comments on board.

Amendment, by leave, withdrawn.

Amendments Nos. 86a and 86b, on the first additional list of amendments dated 12 December 2018, are related and may be discussed together.

I move amendment No. 86a:

In page 28, to delete lines 23 to 25.

Amendment No. 86a, in my name and those of Senators Boyhan and Craughwell, proposes on page 28-----

This is such an important matter and there are only four of us here. It is very distressing.

Is the Senator calling for a quorum?

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

Amendment No. 86a reads: "In page 28, to delete lines 23 to 25." It refers to section 41(2) which reads: "Nothing in subsection (2) 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". Amendment No. 86a is connected to amendment No. 86b which makes it very clear that, instead of being in an obscure subsection, a new section should be inserted before section 41. Amendment No. 86b reads: "No provision of this Act affects in any way the function and duty of the Government, in advising the President on appointment to judicial office under Article 35 of the Constitution, to advise in accordance with its own judgment and preference the appointment of any person who is eligible to be appointed to such judicial office”. To me, that is the important point. As I have pointed out on a couple of occasions in the course of this debate, the policy of this Bill is to make it extremely difficult for the Government to fail to appoint somebody nominated on a short list compiled by the judicial appointments commission. The means whereby this difficulty is sought to be created are manifold, but the most obvious ones are as follows. First, every current serving judge who is of the superior courts who is, by definition, capable of serving as a member of the Court of Appeal or the Supreme Court, if asked by the President of either of those courts, is required to submit his or her name for consideration and be shortlisted by the judicial appointments commission, no matter how often these vacancies arise. The Minister has made it clear in voting down a previous amendment which I have tendered, that he intends that it will not be possible in future for members of the Judiciary to indicate their willingness to serve by a simple letter to the Secretary of the Government, which is the current practice, without any further requirement of recommendation. For instance, if the position of President of the Court of Appeal or the position of Chief Justice becomes available, instead of having all the Judiciary engage in a beauty contest by sending in applications to the judicial appointments commission, what happens at the moment is that they can simply indicate that they would be prepared to be appointed to the office by writing to the Secretary of the Government who is an independent officer of the State who, presumably, would notify the Government that he had received such a communication. That is dignified, reasonable and sensible. The Minister has indicated that that is to be prohibited under the canvassing rubric and under the other provisions of this Bill and is not to continue, which I think is a mistake.

I will only briefly refer to it but the second way in which the Government is to be prevented from appointing somebody other than a person recommended is to keep it in darkest ignorance as to what choices were made. I will make two observations about this. First, it is entitled to know who is available and willing to be appointed. To say the Government has a full constitutional prerogative to appoint anybody it wants, as section 40(3) suggests it might, while it is kept in a state of complete ignorance as to what the real potential field of appointees is actually constituted of is to render the exercise of that constitutional prerogative very difficult.

The third thing is that the Attorney General, by being appointed to the commission, taking part in its proceedings and knowing who applied and was not shortlisted, is placed in the most invidious position. The Cabinet may ask, "Is this the best we can do?" If that question is asked, the Attorney General must say he or she cannot answer that question, although he or she would like to be able to tell the Cabinet that there were other people who, in his or her judgment and perhaps in the judgment of the Cabinet if it was to hear about it, would be far better than the shortlisted people. That, unfortunately, is part of the new Bill, as the Minister has confirmed.

The Minister has indicated that he is with me on the two amendments I have tabled. The Bill, as it stands, would make it extremely embarrassing for the Government to exercise its own prerogative by requiring it to fill out some kind of examination paper as to why it had departed from the recommendation it had received.

Lastly, there is the difficulty that it undermines the whole status of the judicial independence of the senior Judiciary to require them to constantly make applications to this judicial appointments commission for every vacancy that arises or every consequential vacancy that is created by the filling of a vacancy. The Minister has failed completely to tell us how they will be informed if they were shortlisted. He has also failed to tell us how it will be known that somebody was shortlisted but was unsuccessful at the Cabinet. If these things are to be kept in the dark, the Government is like the crew of a submarine, operating below the surface but without any effective periscope.

How is it going to give reasoned written explanations?

That is a good point. It seems that the Minister is with me on that point and hopes to persuade the Dáil that it is mistaken in that provision.

The second amendment tabled by Senators Boyhan, Craughwell and I states no provision of this Bill affects in any way "the function and the duty", which is the important point. It is not simply an entitlement of the Government to appoint people it considers good-----

It is a responsibility.

It is a responsibility and a duty. If the Government believes one person is better and more appropriate than another, it is under a constitutional duty to make the first person a judge-----

What about gender balance?

The Government is entitled to balance the courts in terms of gender but if it believes that one person is more appropriate than another it is not just its entitlement to make an appointment along those lines, it is its duty to do so, full stop.

What about gender balance?

The words "function and duty" are carefully chosen. The amendment goes on to provide that, in advising the President on appointment to judicial office under Article 35 of the Constitution, the Government will "advise in accordance with its own judgment". That must be the case. It must be the Government's judgment, based on its duty to do the right thing by the people and not to be shoehorned by a series of legislative obstacle courses and hedges into doing something with which it is not comfortable. The appointment of any person who is eligible to be appointed to judicial office must be done in accordance with the Government's own judgment and preference. That formulation in our proposed new section spells out the constitutional provision or position, 100%, whereas the conflation of mistaken and chaotic procedures and provisions keeping the Government in the dark which this Bill now contains is designed to do the opposite. It is designed to get the Government to defer to the views of this commission because difficulties lie in the way of following its own instinct and judgment in accordance with its constitutional duty.

I do not believe the lines proposed to be deleted save the Bill from unconstitutionality because of the other measures in it, to which I have referred. I also do not believe it is right to ask sitting members of the Judiciary to spend of half of their lives sending off applications to a group of people who cannot signify to the unsuccessful applicants what it was about their application that was unsatisfactory. In fact, that would be even worse. Even if there were to be some kind of feedback system for dissatisfied judges, in terms of the commission not liking their approach to A and B, for example, are such judges to change their tune in order to send in a more appealing form the next time, emphasising something about themselves or deleting some view that they may have conveyed, by innuendo, to their detriment on the previous occasion? That is all very wrong for serving members of the Judiciary because it compromises their independence.

When it comes to appointing judges, one might well say one is not going to appoint Ms or Mr. Justice So-and-So because when it comes to personal injuries damages, they behave like Santa Claus or the exact opposite, that they are so mean that one does not want them on the Bench. That is something that the Government might well decide but it is not a decision, under the criteria set out in the Bill, for the commission. The judicial policy of a judge is a matter of huge interest to the Government on occasion and, in particular, in the case of the Supreme Court. The general stance, outlook and predisposition of a judge on social and legal issues and jurisprudential matters may be of serious concern and are very serious and totally justified criteria on which to judge an individual's suitability for appointment to the Supreme Court. A person could be highly intelligent but quite reactionary, for example. He or she may have served on the High Court for the past five or seven years and demonstrated that this is the kind of judge he or she is but the Government may decide, so be it, the judge is independent and as long as he or she is not behaving in a manner which would warrant his or her removal, it is stuck with that judge. That is what the independence of the Judiciary is all about. Fîat jûstitia ruat cælum.

However, if it comes to an appointment to the Supreme Court, one can bet one's bottom dollar that any Government worth its salt would look at a person who, by virtue of his or her judicial record, has been of one predisposition or another and ask itself if he or she is the kind of person it needs on the Supreme Court. It might well be that the Government decides to put the legal contrarian onto the Supreme Court to balance up the attitude of other members but that is a decision for the Government to make. This is a hugely important criterion for an appointment to the Supreme Court but it is one which the commission envisioned by the Bill may not broach. The commission which has a lay majority cannot start evaluating judges by reference to their judicial record. If it is asked to make a short list of three for a vacancy in the Supreme Court, it cannot ask Mr. Justice Boyhan, for example, why he decided four cases in a particular way before shortlisting him.

It cannot ask: "Why did you decide them in the way you did? We find that slightly perplexing." The Cabinet, behind closed doors, listening to the Attorney General and the Minister for Justice and Equality and making up its own mind collectively, can say; "To be honest, we prefer to appoint somebody else." That is perfectly right and, by the way, it has happened and I hope to God it will happen in the future. The Supreme Court is the interpretative court of the Constitution and this, by its very nature, affects the complexion of that court, its weight and balance and, to some extent, its direction. These are issues on which the Government is not merely accountable but has a duty to apply its own judgment and make the appointment, as appropriate. I am convinced, therefore, that the idea of putting a statutory body which cannot take those matters into account and will not be doing so in a position where it can provide a short list for the Government and keep it in the dark as to the people it excluded in composing that short list is a knife at the heart of constitutionality. It is wrong and wrong in principle.

The Minister may think the existing subsection in section 41 preserves that right of the Government but it is hedged around all sorts of other statutory obstacle to make it difficult for it to exercise its own constitutional function in judging the merits and demerits of all who are eligible for a position. He may think it may save the day but my guess is that if this matter comes to be seen in its entirety, especially in the context that every senior judicial appointment and consequential vacancy appointment has to be the subject of this procedure, it is deeply suspect from a constitutional point of view.

I notice that a very strange situation is later provided for. I do not want to be disorderly or stray into subsequent sections too deeply but it is relevant to the consideration of this point. One of the weirdest aspects is that if the commission decides it does not want to make a recommendation at all, a process of readvertising the position has to be engaged in as a mandatory step. It is not that the Government at that stage is free to ignore the situation; it must cause the commission to readvertise a vacancy for which it has made no recommendation.

I hope that in making these comments, even at this late stage, I can convince the Minister that the Bill needs the proposed revision of section 41 to be inserted and the deletion of section 40(3) which is a tattered, fraying, shrivelled fig leaf that does not preserve the constitutionality of this legislation.

Amendments Nos. 86a and 86b are twins. I am not satisfied, nor have I been convinced, that the deletion of section 40(3) improves the situation in any way. I remind Senators that the subsection was included by way of ministerial amendment on Report Stage in the Dáil. It was brought forward to reflect a measure of concern on the matter of the constitutional function, as has been addressed by the Senator for some time now.

The insertion of the subsection underscores, if not copper-fastens, the position in law. I reflected on and sought advice on the matter and believe it is important that it specifically be inserted. Notwithstanding what the Senator said, I maintain that the order of preference, as mentioned earlier and by Senators throughout this debate, would not limit the advice the Government will ultimately convey to the President under the Constitution and it is important that we specifically state that in the legislation. I am happy, notwithstanding anything I have heard, to maintain my position that any ranking or order of merit of persons who may be recommended for appointment to office and which may be submitted to the Government may interfere with and unlawfully fetter the discretion of the Government, as the Executive, to appoint a qualified person. I do not accept that the order of preference, the ranking or the recommendation could in any way be construed as being binding on a Government in a way that is contrary to the Constitution. We have had this time and again during the debate, namely, the anxiety on the part of Government to ensure that in no way is the constitutional position interfered with adversely.

I reiterate that I continue to listen carefully to the concerns of Senators. Despite what Senator Norris might think, I have listened carefully to the points he and others have made-----

I never said the Minister did not.

-----notwithstanding a very large degree of repetition not only this evening but in the past 74 or 75 hours of this debate. I do not want to minimise any of these concerns. They are, in short, the constraints on what an Attorney General might say or do and the concerns about what the Government may be told or knows, or is not told, in certain circumstances, or what it may not know, given the various interactions of key provisions of the legislation. There are the concerns we have discussed on other amendments about serving senior judges being required in any way to enter what is a selection process and having this expressed in the Bill. Of course, I am concerned to ensure nothing in the Bill in any way interferes with the constitutional position.

Let me say yet again that I am amenable to addressing the concerns that have been raised in the House, if that is the objective of amendment No. 86b, which I feel it is. I will come back on Report Stage to deal with some of the concerns. I cannot commit to dealing with all of the concerns, particularly those expressed. However, in short, I have listened carefully, particularly about the role, words and deeds of the Attorney General and what the Attorney General may or may not say and can or cannot do.

I will come back to that issue on Report Stage in a way that, I hope, will allow us to progress the Bill.

I welcome any indication of flexibility on the issues that have been raised. The Minister should remember something. He has pointed out that this has been a long debate and that these matters have been raised before. Like me or any other Senator, he has been in a position to table additional amendments to cater for these issues in order that we might discuss them on Committee Stage. He has preferred to follow a different rubric, namely, to keep his powder entirely dry, just listen to the debate and not deal with these issues - if he does have concerns about them - until Report Stage. I fully know and accept that it is open to the House to recommit any substantial amendment on Report Stage. One of the disadvantages of Report Stage is that if that is not done, the debate is effectively guillotined to one contribution of a limited kind from each speaker. As a result, the dialogue that would be necessary to consider some of these issues is simply not going to happen in the way it should unless the Bill is recommitted in respect of the relevant amendments on Report Stage. I do not want to anticipate the individual instances in which that may be appropriate or inappropriate. It would be a lot more satisfactory to someone in my situation if I received a clear indication of what the Minister means by the language he just used. If he has concerns about the role of the Attorney General, can he share them with us? I am blue in the face banging on about them and now we have a situation where the Minister has gone on record and stated he appears to understand my concerns to some extent and that he is thinking about addressing them. Surely, particularly as the debate has gone on and on, we should hear now about these proposals to amend the legislation to deal with these matters.

Why should everything be kept opaque? What really worries me is that although the Minister might be disposed to making amendments to deal with some of the issues I have raised, the first debate is going to take place in the august Cabinet room where, thus far, there is at least one person who appears to believe the points being made along these lines are being made in bad faith and solely for the purpose of perpetuating cronyism, etc. I really would like to deal with the specifics to which the Minister referred. I would like to know if he accepts that there is a problem with criminalising the Attorney General if he or she reveals the identities of unsuccessful applicants. Is that what I am to interpret from what he said? Is that the advice he is receiving? If that is the case, fine. However, as the Minister pointed out, it is taking a very long time for that to be admitted.

Let me be clear. I spoke earlier in response to the Leas-Chathaoirleach's invitation in order to be helpful. What has happened now is that Senator McDowell has gone far beyond what I said. I recognised that there were concerns and listened to what Senators outlined as their concerns. I am reflecting on them. I have not stated there is a problem. I have not stated I share Senators' concerns. What I am anxious to do is bring forward legislation that can have the assent of the majority of this House having regard to the concerns of Senators. I am not going to change the Bill to accord with the points Senator McDowell has been making for the past number of weeks. I have listened carefully to the concerns and will reflect on them. I have been doing so during the course of the debate. I have not received any advice to the effect that there is a problem. What I am doing is merely acknowledging concerns. I will seek - as is the norm - a period of reflection prior to Report Stage. That is why we have particular Stages. I am not conceding that there is a difficulty. It would be unfair of Senators to suggest I have done so.

Perhaps I misinterpreted what the Minister read from the typescript in his possession. I thought he was signalling an openness to revisit some of the issues he had previously indicated that he was unwilling to examine. I may have been wrong to see flexibility in that regard. Maybe I am just witnessing a desire to appear to be reasonable-----

The Minister's fluidity.

-----that is unaccompanied by any evidence that there will be reasonableness. I am of the view-----

I will grant one point to Senator McDowell. This is the first occasion on which I have acknowledged the existence of the concerns which he has repeatedly conveyed about the role, function and status of the Attorney General. I have listened for months to his concerns. I acknowledge that and I am reflecting in order to see if I can in some way move matters forward, with a view to receiving the assent of the House on that issue.

I am not going to look a gift horse in the mouth. I welcome that. The Attorney General is just one matter. If the Attorney General is to be made free to provide the Government with details of the entire list of runners in the case, with a view to giving advice as to whether, over a number of short lists which the Government may receive, say, for the High Court or the Court of Appeal, there was a worry or dissatisfaction on the part of the Attorney General with the outcome of decisions made by the commission, some balance would be restored because the Government would have a clearer view of the issues with which it was being asked to deal. I would welcome the restoration of a degree of balance in that regard. There are other issues I have raised and we will see about them also. The Minister has stated he understands the point I am making and that he is open to considering it. That is one thing but he is very quick to indicate that he does not see that it is wrong to say he perceives a problem with the current consequences of criminalising the Attorney General. I would prefer him to be slightly more concrete and upfront and state that, on reflection, the-----

I am sorry to interrupt the Senator but I must ask him to report progress.

Progress reported; Committee to sit again.

When is it proposed to sit again?

Maidin amárach ar 10.30.

The Seanad adjourned at 9.30 p.m. until 10.30 a.m. on Wednesday, 23 January 2019.