We have concluded amendment No. 86d and we will move on to amendment No. 86e, proposing a new section, in the names of Senators McDowell, Boyhan and Craughwell. It has already been discussed with amendment No. 86c.
Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)
NEW SECTIONS
I move amendment No. 86e:
In page 28, between lines 25 and 26, to insert the following:
“Function of Attorney General under Article 30 of Constitution
41. Nothing in this Act affects, limits or inhibits the function of the Attorney General under Article 30 of the Constitution to freely advise the members of the Government at a meeting thereof in relation to the suitability for appointment to any judicial office of any person whether or not such person has been recommended by the Commission to the Government in respect of any judicial appointment.”.
Is the Senator pressing the amendment?
Yes, I am pressing it.
Amendment put.
The Committee divided by electronic means.
In view of the extraordinarily narrow margin separating the two sides, I call for a walk-through vote.
I oppose that.
The Senator is entitled to do that but his definition of "narrow" seems perplexing.
Yes, it is.
It is a pity those who want Seanad reform are not so good at reform now.
There is only one digit between us, the number 1 - one, zero.
It is a pity those who want Seanad reform are not in favour of real reform.
We know how eager the Leader is for Seanad reform.
Sure the Senator is one of his-----
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, 13; Níl, 23.
Tá
- Bacik, Ivana.
- Boyhan, Victor.
- Craughwell, Gerard P.
- Davitt, Aidan.
- Gallagher, Robbie.
- Horkan, Gerry.
- Humphreys, Kevin.
- Leyden, Terry.
- Marshall, Ian.
- McDowell, Michael.
- Norris, David.
- Ó Céidigh, Pádraig.
- Wilson, Diarmuid.
Níl
- Burke, Colm.
- Burke, Paddy.
- Butler, Ray.
- Buttimer, Jerry.
- Byrne, Maria.
- Coffey, Paudie.
- Coghlan, Paul.
- Conway-Walsh, Rose.
- Conway, Martin.
- Devine, Máire.
- Gavan, Paul.
- Hopkins, Maura.
- Lawlor, Anthony.
- Lombard, Tim.
- McFadden, Gabrielle.
- Noone, Catherine.
- O'Donnell, Kieran.
- O'Mahony, John.
- O'Reilly, Joe.
- Ó Donnghaile, Niall.
- Reilly, James.
- Richmond, Neale.
- Warfield, Fintan.
Tellers: Tá, Senators Michael McDowell and David Norris; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.
I move amendment No. 86f:
In page 28, between lines 25 and 26, to insert the following:
“Authorisation of Commission
41. Nothing in section 11(8) shall be construed as authorising the Commission to appoint any person, consultant or advisor to evaluate or assess the suitability of any person holding a judicial office for appointment to any other judicial office or to advise the Commission in respect of that matter.”.
This amendment serves to make something clear. By the way, I am absolutely confident that the Minister will accept this because rejecting it would have extraordinary consequences.
Is the Senator referring to profound constitutional issues?
Yes, Minister.
There are simply questions as to whether common sense has evaporated completely from the legislative process.
No, that is Senator McDowell's aftershave.
I wish to draw the attention of the House to what is provided in section 11(8), which we have already discussed. Section 11(8) provides for the functions of persons who can be appointed under section 11(7) as persons, consultants or advisers. Section 11(8) provides:
Any contract or arrangement with a person, or appointment of a consultant or adviser, referred to in subsection (7) may enable the person, consultant or adviser to—
(a) advise and assist the Commission in its consideration of applicants at a preliminary stage in the course of the selection procedures, and
(b) provide an evaluation or an assessment of an applicant’s suitability for appointment that would assist the Commission in making any decision in the course of carrying out those procedures,
but shall not enable the person, consultant or adviser, for the purpose of performance by the Commission of that function, to do any other thing (other than a thing which facilitates such performance).
The Minister is insisting that members of the Judiciary, for example, those at High Court or Court of Appeal level, can only effectively become ordinary judges of the Supreme Court by applying to the commission under the terms of this Bill. Given that is the policy position, it occurred to me that it was absolutely appropriate to make very clear that nothing in section 11(8), which is the section I have just read out, shall be construed as authorising the commission to appoint any person, consultant or adviser to evaluate or assess the suitability of any person holding a judicial office for appointment to any other judicial office or to advise the commission in respect of that matter. What does this mean? It means that under no circumstances can a sitting judge of the High Court or the Court of Appeal be sent to or have his or her curriculum vitae evaluated by a person who is not even on the commission by way of a suitability test.
We cannot accept this proposition that a sitting High Court judge has to be evaluated by an outside person who will then submit a report to the commission as to his or her suitability. Are we going to oblige sitting senior members of the Judiciary, who are day in, day out functioning as members of the High Court, to be vetted by people who are not even on the judicial appointments commission? Are we going to oblige them to be the subject of a report as to their suitability? If we cannot accept that, then the mind boggles as to what is going on in the collective minds of those proposing this legislation. Is it to be the case that a Court of Appeal judge is to be evaluated as to his or her suitability to be made an ordinary judge of the Supreme Court by some outside expert engaged by contract with the commission? This is the question. There is either a "Yes" or "No" answer to that. If the Minister cannot accept this amendment, I wonder whether we are living in an "Alice in Wonderland" world in which sitting members of the High Court or the Court of Appeal would have to be evaluated by some third party and would be the subject of a report to the commission. It seems to me to be a strange scenario. Therefore, let us rule it out and say that is not the purpose of the legislation and that it can never have the effect that a judge should be evaluated by a third party or be the subject of a suitability preliminary screening test to be promoted to the Court of Appeal or the Supreme Court.
I hope other Members will support me in this amendment and that the Minister will accept it. Rejection of the amendment raises many questions about the motivation of those who are proposing this legislation.
In answer to Senator McDowell's appeal for support from his colleagues, I certainly will support it. First of all, this curiously inelegant phrase "other than a thing which facilitates such performance" is used.
I am not at all sure what it means. Can the Minister assist me by explaining what the meaning of this inelegant phrase is?
I completely agree with Senator McDowell. It seems to me to be the height of absurdity that a member of the High Court or the Court of Appeal would be subjected to this scrutiny by an unnamed consultant or advisor. Will the public know who these people are? Is there any process by which the public can find out who the people are who are making this judgment, and what their qualifications are? Will the ordinary citizen in Ireland be made aware of this situation?
It occurs to me that we have the benefit of Senator McDowell's remarkable legal insight, but there is only one member of the Government here, along with our very distinguished colleague from Northern Ireland. We should have a quorum; I am sure the Minister would agree.
Notice taken that 12 Members were not present; House counted and 12 Members being present
On a technical point, it must be said in the first instance that, whatever about the merits or otherwise of amendment 86(f), I have no doubt that it would sit better if it were closer to section 11(8), to which it more appropriately relates. I am happy to have a look at it in that context.
I have listened to Senator McDowell and I am somewhat concerned about the motive for the amendment. On one view - and I invite Senator McDowell to agree with me - it would appear that the intentions of the Senator are simply to ensure that serving judges should not be subject to an evaluation or assessment of their suitability for appointment to a particular judicial office, where such assessment is conducted by advisors or consultants who may, from time to time, be assisting the commission. If that is the case, I believe there is merit in so exempting serving members of the Judiciary from any such assessment or evaluation. I will reflect further on it between now and Report Stage, with a view to bringing forward an amendment.
However, any amendment will be to section 11(8) because I believe it is a more appropriate location for such a subsection in the Bill. If Senator McDowell was to accept that there is no other motivation for such an amendment, I would be happy to accommodate him by way of an appropriate draft on Report Stage, taking on board the importance of what he had to say.
What the Minister has said is half encouraging. However, I have to say that, on the other hand, I do not know what the gloss about my motivation has to do with this.
Nor do I accept it is in the wrong place. The reason I say it is in the right place is we are now dealing with a large series of amendments centred on the issue of whether serving judges should or should not be forced to go to the judicial appointments commission for appointment to the position of ordinary judge of the Court of Appeal or the Supreme Court. It is in this context that the amendment arises.
If the Minister keeps rejecting all efforts to exempt the Judiciary from having to apply to the commission for appointment to a position as an ordinary member of the Supreme Court, then of course, if he evinces this attitude, we must look back at the text of the entire Bill to see what this section actually means. One of the things it potentially means is that the envelopes of all of the applicants for consideration will be sent off to some person, consultant or adviser, before the commission actually processes them at all, to give a report on their suitability. I regard this as repugnant. It is bad enough that the Minister should stick to what I believe is the wholly wrong-headed view that every member of the High Court or Court of Appeal who wishes to be considered for appointment to the position of an ordinary judge of the Supreme Court should have to apply at first instance to the judicial appointments commission but if this entails, as a preliminary step, some person - and, as Senator Norris said, we do not know who this person will be but he or she will be chosen by the commission - going through the applications and making a preliminary check as to suitability, and this process is envisaged for sitting members of the Judiciary then, as I said earlier, all common sense has fled from this entire procedure.
I have said it before so I will not repeat it at length but there is a serious constitutional issue when it comes to the interference this procedure amounts to in the function of the Executive, in the form of the Government deciding to fill a position of ordinary judge on the Supreme Court. I have said this before and it does not really require repetition. What is wrong with the Bill, and what is fundamentally flawed about it, is the commission will be required to apply entirely different criteria to the consideration of such an appointment from that which the Government is required to apply. The Government is entitled to say, as I have said before, that Mr. Justice So-and-So or Ms Justice So-and-So is conservative or liberal, or has one set of attitudes on social issues, European issues, civil liability, judicial activism or whatever, and then state on that account it wants or does not want that person on the Supreme Court. This is the type of decision the Government of the day makes. The judicial appointments commission will not be entitled to evaluate candidates by these very criteria. It will be obliged to use its so-called "merit" regarding representation of the diversity of society, gender balance or other criteria in making a recommendation. It will be obliged to devise a three-person shortlist by reference to criteria that have nothing to do with the Government's view of the matter. Merit in this context can mean a host of things. One can be a very meritorious lawyer and yet still be somebody whom the Government would prefer not to be on the Supreme Court, or it might prefer a less meritorious lawyer to be on the Supreme Court, because of that person's attitude.
It is absurd and nonsense that all judges who want to be considered for such an appointment will be forced to go through hoops in the judicial appointments commission process, in which criteria are applied to them that are irrelevant to the Government's choice. In particular, if we force all judges through all of these hoops, the very notion they in any sense should be open to evaluation by non-members of the commission as to their suitability is especially repugnant.
The Minister says he can see some merit in the amendment, depending on my motivation for moving it. I do not know what question mark he has over my motivation for moving the amendment. To me it is so blitheringly obvious that it is inappropriate that third parties should be looking at judges and sending in reports to a commission on their suitability for appointment. The wider point is who, in the name of goodness, outside of the commission will look at an appointment as an ordinary judge of the Supreme Court and sit down and start ticking off people and saying "yes", "no", "suitable" or "unsuitable" before the commission even sees the application? Who will carry out this function? What possible justification is there for this function being carried out? Who is there? Is there some genius out there who will be given €5,000 or €500 per evaluation and who will state this person would make a good member of the Court of Appeal prior to the judicial appointments commission actually seeing the application to consider it? It will get a preliminary report. Is a position on the Supreme Court or Court of Appeal really going to be the subject ever of an evaluation of this kind?
I must say I find it very strange that the Minister should persist with the notion that serving judges should be sent through any of these hoops or evaluated by criteria that are simply none of the business of the judicial appointments commission and entirely the business of the Executive.
If I propose something that is plain simple common sense, I cannot see how my motivation comes into it, unless the Minister thinks-----
The Senator's motivation is the public good.
It is to get rid of rubbish out of this legislation and to prevent rubbish from being in the legislation. I have explained my motivation and it is a bit strange, in those circumstances, to be asked, as I am being asked, to explain my motivation and then to be told that depending on my motivation, the Minister may try to replicate the effect of the amendment on Report Stage in the House. I wonder what is afoot.
It is perfectly reasonable to question the motivation of the Senator in any amendment. However, I go back to the import of what Senator McDowell has said as far as particular positions are concerned.
I will look at the issue between now and Report Stage and draft an amendment more appropriate to section 11. If the aim of the amendment - this goes to the motivation of Senator McDowell - is to exempt serving members of the Judiciary in their entirety from assessment or evaluation, I have a problem with it because that goes against the policy and fundamental thrust of the Bill, namely, that every applicant or interested person, be they a practitioner or a serving member of the Judiciary, will apply to the commission, as provided for in section 39. If Senator McDowell is referring to an individual position, I will be happy to take a look at it. He reminds me in many respects of the best cow in the dairy herd-----
He has big udders.
-----that is producing the finest cream to such an extent that before all of the milk is produced, it kicks over the bucket. I am willing to go along with him as far as an individual position is concerned, but I will not contemplate an amendment that would offer a blanket exemption across the board for serving members of the Judiciary. I regret that he commenced his contribution by saying he was half encouraged and then removed the positive half-encouragement over a period of ten minutes with a long submission of a type that we had heard on each and every occasion since the warm weather departed the country last July. I am willing to examine the issue as far as an individual placement or position is concerned, which is why I believe it is perfectly valid for me to question the motivation behind the amendment.
The Minister's analogy in comparing Senator McDowell to a milk-laden cow is a little unfortunate. I am in the House 32 years and cannot recall other occasions when Ministers questioned the motivation of a Senator. Any Senator has the perfect right to table whatever amendment he or she likes without a Minister raising questions about what I am sure Senator McDowell would call the mens rea, or state of mind, of the Senator in tabling it. Whatever Senator McDowell motivation is - it is something to which I cannot speak, as I simply do not know, as I am not in his mind-----
Is the Senator sure?
------ I am perfectly certain. Are we going to have a conversation and ignore the Leas Chathaoirleach?
That is up to the Senator.
It is not up to me because I respect the Chair. I always address my remarks through the Chair.
That is a first.
Ahem; please excuse me while I clear my throat. I strongly support Senator McDowell in this matter. Whatever his motivation is, the Seanad discusses the matter on its merits, which is how it should be decided. I will be supporting Senator McDowell enthusiastically.
The Minister has just said he is concerned about whether I am trying to achieve a blanket effect or an effect in relation to individual jobs or levels of jobs, or individual appointments or levels of appointment, in the Judiciary, but I am not clear. It is intended to be a blanket provision that no sitting judge who applies for any other position in the courts should be the subject of a preliminary report to the judicial appointments commission on his or her suitability for appointment. Let us take a very simple example. Let us take an ordinary judge of the Court of Appeal or the Supreme Court. It seems that no judge should be subject to an outside person running the rule over him or her as to whether he or she is or is not suitable for appointment to such a position. That is my proposal. There is no motive behind it, except to rule out the grotesque alternative that the commission might state it had received 12 applications for a vacancy for an ordinary judge in the Supreme Court and that before it would ever get to look at them, it was appointing some expert consultant - I do not know who it would be - to examine the applications and give it a preliminary view on whether any or all of them should be accepted. I regard that as a grotesque possibility. Therefore, it was with some confidence that I moved the amendment to exclude it.
Let us consider a judge of the District or the Circuit Court who is applying for a position in the next court in the hierarchy of courts. Why, in Heaven's name, should the application received from such a judge who had made it because the Minister insisted on it being made be sent to be vetted by some so-called consultant who would report to the commission on his or her findings on the suitability of the judge? That is reprehensible and grotesque at any level. What would this consultant say about a District Court judge? What would an outsider say - that the judge was unsuitable? What would an outsider say about a Circuit Court judge - that he or she was unsuitable? Would they winnow them out and say they were not good enough for consideration and that the commission should not look at them? The same applies to a Circuit Court judge in looking for a High Court position, to a High Court judge in looking for a Court of Appeal position or to a Court of Appeal judge in looking for a Supreme Court position. Why have a situation where an outside expert would look at applications and start to put ticks and an X on them, ruling them suitable or unsuitable in a preliminary report to the commission? I cannot imagine any circumstance in which that would be done.
The Minister may talk about the best cow in the dairy herd kicking over the pail-----
"Bucket" was the word used.
The bucket.
We hope the Senator does not kick the bucket.
The Minister seems to think I am trying to drive at some general exemption for members of the Judiciary from consideration by outside experts of their suitability in any application and I am. If he is talking about narrowing it down to specific appointments - he says he is of a mind to accommodate this in a Report Stage amendment - I would like him to indicate the specific appointments or types of appointment he thinks he could accept such an exemption?
I refer to the people who have applied for promotion. Whatever about the Government not knowing about his or her application, the individual applicant would certainly know.
I do not know if it is impossible to contemplate a situation where such a person might take legal action and force discovery of the reasons he or she was disbarred. If the person was told that he or she was useless as a judge, or was an old drunkard or something like it, he or she could take an action for libel. I do not believe that is beyond the bounds of possibility. Perhaps my esteemed colleague Senator McDowell might enlighten me on whether this scenario is a possibility. If an individual had put his or her name forward and was refused on the grounds of being inappropriate, could he or she take an action to force discovery and then a libel action? I would be very interested in knowing the answer to that question. It would expose the Government to a risk.
I am grateful to Senator Norris for his kind words, but I defer to him in matters of the law of defamation because sometimes he has more experience of it than I do.
Very successful.
I am talking about more practical experience of it. I do not believe the law of libel would be the issue. I do, however, believe there could be a judicial review if some member of the Judiciary was to find that he or she had been reported on adversely by an outside expert to the judicial appointments commission by whatever means. Taking Senator Norris' point seriously, any such report would occasion qualified privilege. It is very unlikely, therefore, that any action for defamation would lie. For there to be a challenge to the judicial appointments commission's procedures, it is quite possible that a judge whose application was farmed out to a third party for a preliminary examination would seek to discover this or make some argument based on his or her premature rejection in a report to the commission. The Minister has said he would see it applying to a narrower category of appointments. I would like him to indicate the narrower category he would be willing to accommodate in his proposed Report Stage amendment that would exempt sitting members of the Judiciary from being vetted by third-party strangers in this way.
I would certainly be looking at the High Court or courts that might be regarded as the higher courts.
As I see it, the Bill is actually making members of the District Court eligible to be appointed to the High Court, the Court of Appeal and the like. That is one of the terms of the Bill, as it stands. Is the Minister creating a two-tier approach to members of the Judiciary, which he has always accused me of doing, or is he now saying he might amend the law to have no preliminary examination of High Court judges or candidates for appointment to the High Court? I am not quite clear what he is saying. Is he saying members of the High Court in seeking appointment to the Court of Appeal or the Supreme Court would be positively excluded from the possibility of being vetted by a third party on a preliminary basis? I seek clarity on that issue. Is the Minister also saying it would be for appointments to the High Court? I also seek clarity on that issue. I would like an explanation for why Circuit Court judges, for example, would be evaluated by third-party assessors in a preliminary evaluation process before the judicial appointments commission would come to look at and decide on their application. Why would it be justified in the case of Circuit Court judges?
As I have indicated, I am prepared to reflect on the matter in the light of what Senator McDowell said, with a view towards tabling an appropriate amendment on Report Stage to section 11 or thereabouts.
Is Senator McDowell pressing the amendment?
I have said everything I have to say about it. I was partly encouraged by the Minister in saying he could see some merit somewhere in the amendment, depending on my motivation. It seems that section 41 just makes plain and simple, obvious common sense and the Minister should be in a position to accept it. If he wants to shift it later to a different place in the Bill, let him do so, but there is nothing in the section that offends common sense. In demurring, or kicking the can down the road, on the proposed section-----
I ask Senator McDowell to repeat what he said. Did he say there was nothing in section 41 that would offends common sense?
I think that is what the Senator said.
I am saying that. There is nothing in my amendment that would offend.
The Senator said in section 41.
I am sorry; I meant to say in the amendment.
I was not sure and wanted to clarify the position.
The Senator is 100% correct.
I thank the Senator.
I was referring to amendment No. 86f which seeks to introduces a new section 41. There is nothing in it that would offend common sense. That is what I meant to say. In the circumstances I cannot really believe it would be rejected at this stage. It is one thing if the Minister wants to accept it at this stage and move it later, but it would be deeply regrettable if it was not even being accepted at this stage.
Amendment put:
The Committee divided: Tá, 7; Níl, 23.
Tá
- Boyhan, Victor.
- Craughwell, Gerard P.
- Horkan, Gerry.
- Marshall, Ian.
- McDowell, Michael.
- Norris, David.
- Wilson, Diarmuid.
Níl
- Burke, Colm.
- Burke, Paddy.
- Butler, Ray.
- Buttimer, Jerry.
- Byrne, Maria.
- Coffey, Paudie.
- Conway-Walsh, Rose.
- Conway, Martin.
- Devine, Máire.
- Gavan, Paul.
- Hopkins, Maura.
- Lawlor, Anthony.
- Lombard, Tim.
- McFadden, Gabrielle.
- Mulherin, Michelle.
- Noone, Catherine.
- O'Donnell, Kieran.
- O'Mahony, John.
- O'Reilly, Joe.
- Ó Donnghaile, Niall.
- Reilly, James.
- Richmond, Neale.
- Warfield, Fintan.
Tellers: Tá, Senators Michael McDowell and David Norris; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.
I move amendment No. 86g:
In page 28, between lines 25 and 26, to insert the following:
"Right of Government to advise President
41. Notwithstanding the provisions of section 40, nothing in this Act affects, limits or inhibits the right of the Government in any case where it advises the President to appoint any member of the Supreme Court, the Court of Appeal, or the High Court to any judicial office in any of those courts, at its discretion, to further advise the President to appoint any other member of those courts to the vacancy thereby created without seeking any recommendation from the Commission.".
I emphasise that this amendment concerns a very significant problem with the legislation.
I understand that a senior member of the High Court has today called on the Government to appoint judges. I hope the Minister will hear that call. This amendment goes to the heart of the workability of the Judicial Appointments Commission Bill. It states:
Notwithstanding the provisions of section 40, nothing in this Act affects, limits or inhibits the right of the Government in any case where it advises the President to appoint any member of the Supreme Court, the Court of Appeal, or the High Court to any judicial office in any of those courts, at its discretion, to further advise the President to appoint any other member of those courts to the vacancy thereby created without seeking any recommendation from the Commission.
What am I talking about here? It sounds legalistic and formulaic. The Bill in its present form will mean that when three names come before the Government, and if it elects to recommend to the President one of those three names who is the holder of a senior judicial office, it will create a hole in terms of the position of the judge it has recommended for appointment. If the Bill is left in its present appalling and messy form, the Government will have to notify the commission that it wants to start the whole ball rolling to fill that vacancy.
Let us take an example. Ms Justice So-and-so is an ordinary member of the Supreme Court. She is one of three people recommended by the commission. The Government says it is going for Ms Justice So-and-so and making her Chief Justice or whatever the case may be. The result is that her position as an ordinary member of that court becomes vacant as soon as she is appointed. Under this legislation, as now proposed, which is quite different from the existing legislation, whereby in those circumstances sitting members of the Judiciary never go near the Judicial Appointments Advisory Board, JAAB, and nothing happens, it is possible for the Attorney General, the Minister for Justice and Equality and the Taoiseach to arrange the business of Cabinet such that if the Government chooses Ms Justice So-and-so for the job, there will be a vacancy and the Government will fill it with someone from the Court of Appeal or the High Court. If the Government makes the decision to go for that particular candidate, there will be a consequential vacancy and the Government will fill it at the same time. This is the way in which the system works at present. If someone is appointed to a senior position, for example, a Court of Appeal judge is appointed to the Supreme Court, the question that then arises is who will be appointed to fill the resultant vacancy. Without going back to the Judicial Appointments Advisory Board, the Government customarily produces three appointments to deal with the situation it has just created. This works perfectly well and ensures there is no undue delay.
This ridiculous Bill, however, if it becomes law, will mean that in such circumstances someone must step on the emergency brake, everything judders to a halt in respect of the position vacated, and the Government must go off through an advertisement process to the commission, and all the members of the High Court and the Supreme Court who are interested in this position must submit further applications to the commission and the whole process must be gone through again, advertising the vacancy among all eligible practitioners and going through the entire panoply of provisions because a vacancy has arisen by a decision of the Government. No one seems to have understood the huge problem this will create. One need not be Einstein to see that if, for instance, a Supreme Court judge is appointed as Chief Justice and, in the end, having gone through the judicial appointments commission, a Court of Appeal judge is appointed to the Supreme Court vacancy and a High Court judge appointed to fill the Court of Appeal vacancy, it will take six months or a year to deal with the trickle-down effect of an appointment. No one has put his or her brain into first gear on this issue. If all these appointments and all the judicial replacements, if I may use that phrase, must go through this system, everything will be thrown into complete chaos because one appointment has a necessary knock-on effect in creating a vacancy, the Government cannot cure that vacancy on the day and it must go off and tell the judicial appointments commission a vacancy has arisen.
The funny thing is that the Bill attempts in another way to deal with situations in which the Minister reasonably anticipates that a position will become vacant. He can ask the commission to advertise the matter and seek applications. This is where someone is coming up to retirement or whatever. It cannot possibly be the case, however, that this applies where, say, one out of three shortlisted persons is a judge and the Minister decides to go for Ms Justice So-and-so and then asks the commission to get on with the job and take applications-----
There are a frightful number of so-and-sos in the legal profession.
Whatever.
Is that on or off the record?
This cannot apply where the Minister says, "I anticipate that we will choose this judge; therefore, I will ask the commission to seek applications for the vacancy she will leave behind her." That is not provided for in this legislation and it will not work.
There is method in people's madness sometimes and there are reasons things are as they are. One very good reason the Judicial Appointments Advisory Board procedure did not apply to serving judges is that it enabled a Government to recommend the appointment of a certain judge to a certain position on a given day, the consequence of which would be two further vacancies down the ladder, and to fill those vacancies that day, and that would be the end of the matter. The Government did not have to start successive advertised processes each time each of the vacancies on that ladder was filled.
Let us take the example of an ordinary judge of the Supreme Court who is appointed to fill a vacancy as Chief Justice, which is a perfectly likely scenario. There has been for some stupid reason a shortlist of three. The Government has decided to appoint one of the serving ordinary judges of the Supreme Court to the position of Chief Justice. The result is that there is a vacancy for an ordinary judge of the Supreme Court. The Government cannot, according to this Bill, appoint a judge from the Court of Appeal to that position and appoint someone else to the resultant vacant position in the Court of Appeal and keep those courts functioning. At present this is exactly what the Government does. It does not just create holes and then sit down and ask, "God, what will we do about filling them?" It makes the judicial appointments. If the procedures have been changed-----
That is not necessarily the case. There must be a vacancy.
Yes, but-----
It cannot be filled without a process.
Sorry, I ask the Minister to hold on a second. I know what I am talking about here, and that is-----
No. There must be a process.
I am afraid, Senator, that the time-----
Let him finish the sentence.
If the Leas-Chathaoirleach would let me finish this sentence I will then report progress.
I am introducing a process here. That is what it is all about, not the "ad hocery" or the tap-on-the-shoulder practice that the Senator has been supporting.
It has nothing to do with "ad hocery".
It is "ad hocery".
It is a considered Cabinet decision making provision for the situation it has just created. I want to make it clear that what the Minister is proposing will create a six-month delay where there are two follow-on appointments. We will be dealing with it at great length on the next occasion so the Minister can relax as he will have plenty of time to deal with it.
With respect, we are not going to argue about it now.
Progress reported; Committee to sit again.