Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

NEW SECTIONS
Debate resumed on 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.".
- (Senator Michael McDowell)

I welcome the Minister for Justice and Equality, Deputy Flanagan. Senator McDowell was in possession.

On the previous occasion I was asking the Minister about the massive hole that this proposal, as it currently stands, will make and the major delay it will create in the filling of judicial vacancies. I understand Senator Craughwell wishes to contribute.

Looking at the methodology we are talking about using here, it is quite similar to what is used for appointments in the education system. Where a deputy principal is appointed as a principal, his or her post cannot be advertised until it has been vacated. The backfill works its way down the line. It is my experience that it can take up to 18 months to clear a backfill of this nature. With what we are discussing, a judge of the Supreme Court could be appointed as Chief Justice and if we have to go back to the commission to replace him or her, it would take time to do so because of advertising and all the work that goes with it. One cannot use the same panel and there is no panel system in the legislation. The post must, therefore, be re-advertised before applicants can come in for interview and assessment. Eventually, three names would be given to the Government, which may choose any one of the three people involved. However, I go back to my original point that it does not have to do so. The Government can decide under the Constitution that it does not like any of the three individuals and can recommend to the President the appointment of whomever it likes. If a High Court judge is appointed in the Supreme Court position, there would then be a vacancy in the High Court. As this process works through, there would be an ongoing vacancy in the system. I can almost guarantee that by the time we get to the end of the line, we would have to start all over again because the Chief Justice would probably have retired by the time every vacancy had been filled.

I see the Minister shaking his head and I understand from where he is coming. I have great difficulty with this. We had a little discussion on the Order of Business about the amount of time this Bill is taking. I put on record that this is not a game we are playing or a filibuster for the sake of it.

This is a genuine concern on the part of Senators Bacik, Norris, McDowell, Boyhan and myself. There is a genuine concern that we are putting through a Bill that at the end of the day has no real teeth. I am not convinced that even the Government is supportive of this, not all of the Government anyway. Our job is to challenge this. If we cannot defeat it then we have to change the Bill and make it more robust and less open to challenge. We are privileged, in my view, to have my colleague, Senator McDowell, a former Minister for justice, Attorney General and Tánaiste, and a man with a distinguished record in the courts. I know the Minister will accept that and he is not short of being distinguished himself.

We have two fairly immovable objects here confronting one another. I ask the Minister to think about where we are going here. This Bill is not going to fundamentally change the way we appoint judges because, as the Minister has admitted himself, the Constitution cannot be trumped by the Bill. I do not know why we are pushing the legislation through if we really wanted to change the appointment system for judges. I should say that I am fully supportive of the notion that we should review how we appoint judges. I am fully supportive of the efforts by the Minister to change the appointments system for the Judiciary but this Bill is not going to do that for him.

I will be surprised if the President signs this Bill into law. I really will. We will have, I am told today, 66 hours of debate so far in this House. The one thing I will say about the Minister is that I admire his dedication. I admire the way he comes in here every day this debate is on and he sits there and responds. In fairness to him, he is fighting for the Bill. I am not so sure that any of us have faith in the Bill but he is fighting for it.

I ask the Senator to please stick to discussing the amendment.

I will stick to the amendment. I will leave it at that and I will be interested in the reply by the Minister. Perhaps my colleague, Senator McDowell, might have more to say.

I was just trying to work out how bad this particular lacuna in the Bill is going to turn out to be and what inefficiencies will be created by it. If for whatever reason - illness or whatever else - the position of Chief Justice were to fall vacant tomorrow, supposing it did, regarding the procedure going to be put in place to fill that position, and as I understand it at the moment, every person who wanted to be considered for appointment to the position of Chief Justice would apply to the Judicial Appointments Commission, following an advertisement put in the newspapers for that purpose. As the Bill presently stands a commission-based approach to that would operate. The applicants would set out at length their qualifications for the job. They would, as the Bill currently stands, be interviewed, presumably, because the lay members of the commission would not know one of them from another. A procedure would be engaged in whereby the commission would then come to a conclusion as to its recommendation for appointment to the position of Chief Justice and the matter-----

The amendment does not deal with the Chief Justice. I have to attract the Chair to the subject matter of the amendment, in fairness.

Hold on a second. Just wait and see. I will come to that. The Minister is misreading the amendment.

I ask the Senator to continue, without interruption. It is okay, Minister. The amendment is about the right of Government to advise the President, just to remind the Senator.

I know what the amendment is about.

I am just reminding the Senator.

The Acting Chairman should not try to hassle me. I am-----

Excuse me. I am not hassling the Senator.

The Chair is doing so.

I am chairing this session of the Seanad. I am not hassling the Senator. I have just stated that the Senator should be allowed to continue without interruption; I am supporting him.

This is a Committee Stage process-----

-----and the Minister, if he thinks I am making a mistake, is perfectly entitled to point that out.

-----and I am entitled to respond-----

The response was made. It is a deliberate attempt to-----

With respect, I ask the Senator and the Minister to respect the Chair. I have asked Senator McDowell to continue without interruption. That is a message from the Chair to Senators and the Minister. I ask the Senator to continue.

The amendment 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 [...] to any judicial office". Therefore, it does apply to a member of the Supreme Court being made Chief Justice, for instance. Let us get that straight. With the greatest of respect, the Minister should not contradict me on it. This amendment deals with a situation where the Government decides to appoint a member of the Supreme Court to be Chief Justice. The Minister's interruption is interesting because it shows he has not read the amendment.

I have read the amendment.

He is misreading it, unfortunately.

I ask both the Minister and Senator to respect the Chair and to speak through the Chair.

I have had the amendment in front of me for the past three weeks.

Yes. This reminds me of F.E. Smith, Lord Birkenhead. I saw him on television last night or the night before on the RTÉ programme "The Irish Revolution". He was in court on one occasion and a judge said to him that he had been listening to him for the preceding two hours and was none the wiser. F.E. Smith said he agreed but that the judge was better informed. This amendment deals with a case where the Government advises the President to appoint any member of the Supreme Court to any judicial office. One of those offices is the position of Chief Justice. This scenario is covered. I am not elongating the debate but dealing with what this amendment proposes to do.

Irrespective of the process before the Government makes its decision on a vacancy, as matters currently stand and because the Dáil amended section 44, the commission is the means by which the position is filled. By the time the commission has considered all the applications from all the eligible judges to be made Chief Justice and advised the Government as to a short list of three candidates it believes should be considered, and by the time the Government has considered that short list, in all probability two months will have elapsed since the arising of the vacancy. That is the position as the Bill currently stands. What happens then? If a member of the Supreme Court is appointed as Chief Justice, a follow-on vacancy has to be considered. If an ordinary member of the Supreme Court is made Chief Justice, its numbers will be depleted and there will be a vacancy in that court that presumably the Government would intend to fill. The Government would then have to consider the position of ordinary member of the Supreme Court. That vacancy would have to be advertised and made the subject of a request to the commission to carry out its processes. It would be likely to take two or three months before qualified barristers, qualified solicitors and qualified members of the Judiciary could apply for the position of ordinary member of the Supreme Court. It is by no means pessimistic to state that it would take two or three months to carry out interviews and for the lay majority body to acquaint itself with the merits and demerits of each candidate.

Let me stop at that point to examine the circumstances. Could the Government ask for applications to the Court of Appeal and High Court in case an appointment was made from one of those courts? It cannot do so under the legislation as currently drafted-----

-----because it would pre-empt the whole idea.

This would suggest that the Government had already made up its mind about who it wanted to appoint.

That is not intended in the Bill or the amendment.

Exactly. Therefore, the follow-on vacancy in the Supreme Court, on foot of an ordinary judge of that court being appointed as Chief Justice, would be sent out for filling. Is it even in any sense unfair to say it is quite probable that one of the applicants for the ordinary position in the Supreme Court would be a member of the Court of Appeal? Where the Government gets a recommendation and, lo and behold, there is on the shortlist a judge of the Court of Appeal, be it a man or woman, whom it says it want to appoint, the consequence is that, under the Act, it would have to notify the commission of the vacancy that would arise in the Court of Appeal and ask all practitioners and judges interested in the position to submit their applications for it. The decision could not be anticipated. Another couple of months would elapse during this process.

The position in the Court of Appeal would in all likelihood, or with a good deal of likelihood, be filled by a judge of the High Court. The same process would take place to fill the follow-on vacancy that would eventuate in the High Court. The sequence of events, therefore, is that if each step took two or three months, the best part of the year would elapse before the follow-on consequential appointments to fill the vacancies in the courts system would come to be filled. If I am being unfair and the Minister believes these things can be done in a week-----

Eighteen months according to the Senator's colleague Senator Craughwell, with whom he has been engaged in intense discussions.

Through the Chair, Senator Craughwell was talking about the teaching profession. It can take up to 18 months to fill some positions in certain schools.

That has no bearing on the commission.

No, but he is-----

I am glad Senator McDowell has admitted that it has no bearing.

-----talking about the same principle, namely, that vacancies cannot be filled on a pre-emptive basis. One cannot start a process for a non-vacancy on the basis that one thinks one would be creating it by effecting a particular outcome because this would prejudice the whole arrangement. That is what Senator Craughwell is talking about. He said that, in his experience as a teacher, it may take 18 months. I am stating that we have a process of four times three in respect of which would take either eight or 12 months to make the consequential judicial appointments to positions arising on foot of one vacancy.

It will not be the case that the Chief Justice will frequently vacate office and, therefore, it is more likely that we will have cases whereby the process will take nine months rather than 12 months. I accept that. However, the Minister has accepted that it will not be permissible under the Bill to seek candidates to fill a vacancy created by appointing a judge of the Court of Appeal to higher office. This will lead to a sequential cascade of consideration of applications for positions going from the top of the Judiciary to the bottom, with separate recommendations, interviews, applications and advertisements required to fill each of the positions. That is implicit in the arrangement. Why would we do such a thing? While I was Attorney General or Minister for justice and Tánaiste, it was the practice, when an appointment to a particular court came before Cabinet, for the consequences of that appointment to be considered concurrently. Two, three, four or more appointments would be made such that all vacancies were filled on the same day and each of the courts could quickly function normally. The matter was resolved by the Government. The Bill will------

I am not sure about that.

It was always the case in my day that if a vacancy was created, the question of who would be appointed to fill that vacancy would be considered.

Except in certain circumstances.

I am referring to the appointment of judges. Of course, the reason that was done was that under the 2002 Act the appointment of judges to posts within the Judiciary fell outside the remit of the Judicial Appointments Advisory Board. If the Government decided to select a judge, such as an ordinary judge of the Supreme Court or High Court, to higher office - my experience predates the Court of Appeal, so I do not have experience of that process - it was customary to consider the follow-on consequences of that appointment. The vacancy would be noted and the Cabinet would deal with it on the day.

There was an absence of process.

There was no absence of process. Under the Bill, the process is one involving an absence of judges for long periods and a trickle-down effect whereby a vacancy is created in court after court. There is no absence of process whatever in the former arrangement. The Government would be well advised to ensure that if it creates a vacancy at one level of the Judiciary, it acts smartly to fill that vacancy. The scenario I have drawn of an ordinary judge of the Supreme Court being appointed to higher office, a judge of the Court of Appeal being appointed to fill the resultant vacancy on the Supreme Court and a High Court judge being appointed to fill the vacancy on the Court of Appeal is not unlikely or fanciful. However, the consequence of failing to deal with that and accept this amendment is that if it appoints a judge to higher office, the Government will be dealing with follow-on applications for the following three, six or nine months or more. That is to where this process is bringing us.

On the most recent occasion this was discussed I pointed out to the Minister that the current situation may be preferable to the one he is mapping out. Perhaps it is a good idea, if one creates a vacancy as an ordinary judge of the Supreme Court, to decide to deal with that vacancy. The balance of the Supreme Court may change as a result of the promotion of one of its judges. The Cabinet may appoint a liberal or conservative as Chief Justice and want the balance of the Supreme Court to tilt a certain way and collectively decide to fill the vacancy in a certain manner. The problem with introducing a system with the rigidity of that proposed in the Bill is that the Government cannot of its own accord anticipate any action. It cannot prepare for the follow-on consequences of its decision because it must keep an open mind at every step in the process and must keep inviting people to participate in supplying every vacancy on the sequential ladder of judicial vacancies. This is a retrograde and reckless approach to the process of appointing judges. It will make life extremely difficult if the Government cannot fill the vacancy left on the Supreme Court by the appointment of a Chief Justice unless the fully competitive and open procedure is gone through and everybody is invited to apply for the post. This is not a casual vacancy such as the principal of a school as referred to by Senator Craughwell. This is about our Supreme Court.

I was going to make that point but I need no longer do so. Senator Craughwell's comparison and the contrast he drew is immaterial.

It was merely analogous.

It is obvious that Senator Craughwell was drawing an analogy regarding what happens when one has cascading vacancies. That is what we are now dealing with. It is introducing an artificial and undesirable delay to the process of appointment to judicial office to stipulate that a Government which decides to appoint a judge to another position in the Judiciary would not be able to decide to appoint another person to fill the resultant vacancy. That was the practice followed when I was in Cabinet and it worked well. It was not a question of cronyism or anything of the sort.

For instance, if the Government was minded to appoint to the position of ordinary member of the Supreme Court a member of the Court of Appeal who specialised in criminal matters and was experienced in criminal trials and criminal appeals in order to give the Supreme Court day-to-day, hands-on experience of the criminal process rather than solely being composed of civil, administrative and constitutional lawyers, that appointment would remove a specialist in the area of criminal justice from the Court of Appeal and weaken that court pro tanto until that position was filled. It is perfectly reasonable to expect the position of a member of the Court of Appeal with experience on the criminal side who was appointed to the Supreme Court by the Government to be filled through the appointment of a criminal lawyer from the High Court or solicitors or barristers profession in order to ensure a properly balanced Court of Appeal.

The point I am making is that those are the types of decisions the Attorney General and the Minister for Justice and Equality should bring to Cabinet. They should say that if they are appointing Ms Justice Bloggs to this particular position, they are going to need somebody of the same kind of approach or calibre of that judge to remedy the vacancy they are thus creating in the court from which she is being appointed. Those are real day-to-day considerations for the Attorney General for the proper operation of the Judiciary, and the like.

There is nothing wrong with the principle which exists at the moment that the Cabinet, in considering whether to fill one position, also addresses its mind to dealing with the consequences of its decision for the court from which the appointment is made. There is nothing wrong with the Cabinet addressing its mind to that and it works well. However, what will be wrong is if that kind of process becomes elongated and a whole lot of civil lawyers, for instance, see a vacancy in the Court of Appeal arising from the appointment of one of its prominent criminal law experts to the Supreme Court, and they waste their time putting in applications for a job which the judicial appointments commission will not take into account. While the Government may want a particular balance in the Court of Appeal, the criteria in the Bill that the judicial appointments commission is expected to apply do not require it to consider what the Government might or might not want to achieve by consequential appointments.

I am strongly of the view that to introduce this chain reaction to the - I will not use the term "promotional" - consequential vacancies in the superior courts is a very big mistake. It means that, at the most ridiculously optimistic, one could have six to nine months of delay in filling consequential appointments down the ladder. That is not in the interests of the Judiciary. On the last occasion, I mentioned to the Minister the plea from, I think, Mr. Justice Kevin Cross in the High Court and the plea from the President of the Circuit Court in regard to the fact they are being asked to labour with inadequate numbers in their courts. However, this is recipe for further inadequacies on an institutional basis going forward.

For instance, if an ordinary judge of the Supreme Court is made Chief Justice, I do not see why that should mean the Government should leave the vacancy thereby created as ordinary judge of the Supreme Court vacant for a number of months while the judicial appointments commission applies its brain, its processes and its interviews to filling that position. It is going to damage the Supreme Court and the expeditious discharge of its workload that such built-in delay is contemplated in this legislation, and the whole trickle-down effect is as I have described.

I am strongly of the view that the present flexibility which allows the Government, when it advises the President to appoint any member of the superior courts to any other office in those courts, and at its discretion to further advise the President to appoint any other member of those courts to the vacancy thereby created without going back to the commission, is a sensible and reasonable arrangement, the absence of which in the Bill will create serious delays, difficulty and waste of time. Any serious Government would have in its mind the consequences of there being a vacancy in the Supreme Court consequent on one of the members of that court becoming Chief Justice. Therefore, any serious Government should be in a position to say this gives it an opportunity to appoint Ms Justice so-and-so or Mr. Justice so-and-so to that position. It can say that is the balance it wants and it does not want to waste the commission's time by asking for its advice or for it to give a shortlist of three, because that is the kind of decision the Government wants to make and that is the balance it wants to re-establish in the court as a consequence of its decision that day. That is what this section is all about. I plead with the Minister to heed what I am saying because, in the end, we are going to have further delay and further waste of time.

The other thing is that the Minister seems to consider that it is great to have transparency and great to have everything open to everyone, and that is supposed to be fair. However, if the Government is going to have a serious process, and if it is going to ask members of the Judiciary, members of the legal profession and legal academics to prepare their case for appointment to these vacancies, it is asking them to undertake a lot of work. This is not just a case of filling in an application, ticking four boxes and saying how long the person has been a lawyer, whether he or she likes animals and a few other tick-box things. They are being asked to make the case for their appointment. The Government is saying to a professor of law in Trinity College, UCD or UCC that it is inviting that person to seriously put himself or herself forward for a position of this kind. It is saying the same to members of the Judiciary, who have a huge caseload, to each put their case together to be given this position, rather than one of their colleagues. It is saying the same to a practising barrister or solicitor who is looking for an appointment to the superior courts. It is saying, "Do not just spend the weekend chewing a pencil. This is going to be a serious process." If the person is going to be treated fairly and not just be knocked on the head by some outside expert who says he or she is not even recommending that this person be considered further, then there will be an interview and that person will go before some interview panel and make his or her case. That takes time, commitment and preparation.

I remember, from when I was in the Minister's Department, promotions within that Department. The amount of time the serious candidates for the seriously senior positions put into preparing for interview was very considerable. It was not a matter of saying, "The Minister will recognise my name", or "Sure, I have been here 30 years and I am the obvious candidate." They put in a huge amount of work, considering what a fair interview was likely to ask them about, such as how well they will perform as leaders of the Department and what their agenda is for the Department. We now know that one can get the senior position in the Department of Justice and Equality from outside the Department but somebody in a different Department who wants to be considered for Secretary General has to put a huge amount of effort into preparing for that interview. It is not something they just do on the back of a beer mat and say, "I will stick my name in and see how I go", and then just wander into the interview and give a few off-the-top-of-the-head views about what they would do in the Department of Justice and Equality. They have to study the position they are looking for.

Rightly so. However, when it comes to the Judiciary, it is not the case that the Minister should be asking judges to self-assess for the purpose of being promoted to the Court of Appeal or the Supreme Court.

It is a waste of their time and an invidious thing for them to be invited to do on a constant basis, especially when this awful Bill will mean they will not even be told if they have been short-listed for the job. In my experience in the Department, the people who were short-listed knew they were short-listed, while those who were not short-listed knew as much. There was some degree of transparency but this Bill will leave people completely in the dark.

I want to go back to the issue of the period of time involved. I disagree with the Senator's suggestion that it can be done in a shorter period.

I am being optimistic.

The Senators are arguing among themselves now.

The Minister has sat on interview boards in his capacity as a public representative, and on VECs and other boards, and he will know that the first thing a board has to do is sit down and agree the advertisement. In this Bill, we are dealing with the top legal minds in the country so we have to be very careful that every "i" is dotted and every "t" crossed so that the advertisement does exactly what it says on the tin and that the correct people are attracted.

It is also to ensure it is not challenged in the courts.

A board the size of the JAAB needs to agree to hold interviews on a particular date and the Minister knows that getting an agreed date is always a problem. Some candidates are not available on the appointed day and a second date has to be set up and this is why I believe Senator McDowell is being optimistic. It could take as many as four months to make just one appointment and if there is a trickle-down effect, there will be all sorts of problems.

Senator McDowell raised a number of issues that process and procedures cannot deal with, namely, those that include a human factor. He said the Supreme Court may be overly burdened with conservative members and may feel the need to get some liberal members on the board but we cannot tell the board to advertise for a liberal person because that would open the door for conservative members of the Bar or the courts to object to the advertisement. We cannot prescribe the type of person we want. This methodology will turn people off after the first or second round of vacancies, because applying for a serious position requires a lot of attention to detail and a lot of work. It is not a question of resubmitting the same application, as the application has to be filled out to meet the needs of the advertisement. If the board is not allowed to take into account the various human characteristics of the individuals who apply and has to stick to a prescribed methodology, we will finish up with the wrong type of people. As Senator McDowell said, perhaps we will finish up with a Supreme Court with nobody who has criminal law experience and that will leave the entire process flawed.

The system we have at the moment is one in which the Minister and the Attorney General consider a number of people for appointments as Chief Justice, a Supreme Court judge, a judge on the Court of Appeal or a High Court judge, which are often considered together and announced on the same day. However, this will be taken out of the equation and we will finish up with even more serious bottlenecks than we have at the moment. One of the terrible aspect of this Bill, as it blunders its way through this House, is that the courts system is creaking as it waits for appointments. We would be far better off doing what they do in the United States, which is to have the esteemed members of the Senate interview prospective members of the courts and made a recommendation to the Minister, rather than to adopt the method in this Bill.

Praise the Lord.

This is going to cause mayhem. I saw junior people in the public service appointed to senior positions, leading to the suspicion that it was to avoid the trickle-down effect of which Senator McDowell speaks, and to avoid having to fill a vacancy in the Supreme Court, the Court of Appeal or the High Court by appointing somebody from the academic world. The next thing that happens is that the door is opened to a plethora of appeals from people who feel they were hard done by. The system is flawed but if this Bill has to make its way up to the Phoenix Park, this amendment will make it a little more sensible. I know that the Minister is anxious to work his way out of here so I ask him to consider it.

I do not wish to give any further oxygen to the fanciful notion of cascading vacancies on a regular basis. Both Senators will have to accept that the language of the past hour has been dramatic, to put it politely. What they said would happen will not happen. I am concerned to ensure that the courts run smoothly and that there are no delays of any description. We originally had 18 months and that was reduced to six months while, following Senator Craughwell's intervention, it has now been reduced to four months. There should not be any delays.

The problem the Senators have is hostility to embracing any form of change. My Government colleagues and I are introducing a new, reformed appointments system which will, for the first time, include serving judges. Over the past number of weeks, I have examined in detail the nature, substance and consequences of Senator McDowell's amendment. I agree with him that every effort should be made to ensure there is not any undue delay, or a delay of any description. I am concerned that, were the amendment to be accepted, there could be a presumption that all consequential vacancies should be filled by sitting judges. That would be a misrepresentation and would prevent the potential pool of candidates from including people from outside the current Judiciary. Under the reformed system we will facilitate applications by legal academics and other people who might not rub shoulders with Senator McDowell on a daily basis. My concern is to ensure that, under the current formulation, there is nothing that might impede or slow down the filling of any vacancies or create a cascade of consequential vacancies. I do not see the domino effect that has been painted by the Senators arising.

I will not accept the amendment. It is important that getting at the heart of this reform legislation is the fact that, for the first time, shape and form will be put on the matter of the appointment of sitting members of the Judiciary to a position that may become vacant. I agree with Senator McDowell that the positions should be taken very seriously, the application form should be particularly detailed and the process should be transparent and comprehensive. We do not have that under the current system and it is a weakness. I do not make any apologies for a requirement that, in the event of persons wishing to make an application, they would do so in a way that is transparent, fair and befits the job at hand. A mere tap on the shoulder in the lobby of the Four Courts is not a sufficient means by which the seriousness of the position could be dealt with.

I totally accept the Minister's bona fides here and that he truly believes what he says. However, that will not matter the moment this Bill is passed into law because it will no longer be within his gift to control how this legislation is used by the commission. It will no longer be within his gift to tell the commission what to do or to prescribe how long it should wait after advertising a post or what type of person should fill the post, whether it be a liberal or a conservative. The Minister does not have that gift once this Bill passed into law. Legislation that is many years old is frequently struck down by the courts. This legislation, if passed, will outlast most of us in this Chamber.

If Senator McDowell has his way, that will not be the case.

Senator Craughwell said if it was passed.

How badly have we been served by our Judiciary over the years that there is such a need to bring in such desperately flawed legislation? Why are we doing this? What purpose are we serving? At least the amendment would allow for the fact that there may be a trickle down effect. The Minister does not envisage that happening, but how can he guarantee in the legislation that there will never be a trickle down effect or delay, or that each appointment will take four months, as I estimate will be the case? He cannot do so. We are trying, with this amendment, to ensure we have robust legislation that will provide a guarantee that, in the event of the trickle down effect occurring at some stage - a bit like the backstop we keep hearing about for Northern Ireland - the Minister will be in a position to immediately act. The Minister may not want to give oxygen to it but I do not want to give oxygen to the notion that his beliefs today are de facto, God almighty, 100% certain. I do not want to give him that oxygen today. He and I are equally flawed and both of us are as flawed as the Bill before him.

The Minister is a great man for suggesting that scenarios are fanciful and language is exaggerated. Let us analyse what we have just heard from the Minister and work out what is fanciful about the following scenario. An ordinary judge of the Supreme Court is appointed Chief Justice. Is that fanciful in any shape or form? Is it more likely than somebody else from a different court being appointed Chief Justice? The answer is, as the Minister well knows, that it is very likely that one of the eight or nine ordinary justices of the Supreme Court will be appointed to be Chief Justice should that job fall vacant. There is nothing unlikely, improbable or fanciful about it. If the consequence of that probable outcome is that there is a vacancy among the ordinary ranks of Supreme Court members, what is the likelihood that a judge of the High Court or Court of Appeal will be appointed to that vacancy? If I may say so, through the Chair, the Minister knows damned well that the-----

Saying the words "through the Chair" does not mean the Senator is actually speaking through the Chair.

The Minister knows as well as I do that it is very likely that it will not be an outside appointee to an ordinary judge of the Supreme Court. Such appointments occur very infrequently, although on occasions they are well merited. However, if one were to take what is likely and probable, it is very likely that a judge of the superior courts will be appointed to the vacancy in the Supreme Court. By the way, there is very good reason that should be so. Those those men and women have had the opportunity to function as judges, practice the art of adjudication and, so to speak, prove their capacity to be good judges. If the Minister is going to tell me that I am living in the past, I say that you are living in a fantasy world and I say that through the Chair as well.

That was retrospectively through the Chair.

The Minister is living in a fantasy world if he believes there is something improbable about consequential vacancies arising in the Judiciary when appointments of a senior kind are made. If one was going down to Paddy Power to bet that an outside person will be appointed and there will be no trickle down effect of a vacancy in the position of ordinary member of the Supreme Court, as a betting man I would say the odds would be about 1/8 or 1/10. The Minister may offer better odds and put his sign up at Leopardstown Racecourse and get different odds. I am saying, however, that there is nothing fanciful about saying that, as a matter of probability, other judges will move up, not in some kind of grotesque, tap on the shoulder, domino effect process but simply because they are the people in whom the Government is most likely to have confidence when making a particular appointment.

That is the position. Of course it is possible that Josephine Bloggs or Joe Bloggs, barristers with ten years standing from wherever, can put in an application and get one of these positions but the chances of them doing so and being appointed are small. They are, by definition, less likely to be appointed to these positions than people who have established a track record, proven their worth, demonstrated their judiciality, impartiality and suitability for judicial office, and a proven capacity to deliver learned judgments and to listen patiently to lay and professional persons appearing before them. It is to them that, in all probability, the responsibility for filling judicial vacancies at higher levels in the court will fall.

There is nothing whatsoever improbable about a cascade effect. I ask the Minister to retract the idea that I am being extravagant in my language. I am being pragmatic. I am putting forward the likelihood that if there is a vacancy in the Office of Chief Justice, an ordinary judge of the Supreme Court will fill that job. It is not carved in stone anywhere but it is likely. I do not want to put bookies' odds on it but it is a likely outcome. It not an improbable outcome or an odds against outcome; it is a likely outcome.

If the Minister is going to say to the present Judiciary that a vacancy in the Supreme Court, as an ordinary judge, is not likely to be filled by a judge of the Court of Appeal or the High Court, I would love him to justify that in public and say that with this new system it is not going to be likely anymore that those jobs will be filled in that way or those positions are not filled in that way. He should say that and stand over that. I appeal to the Minister to put his hand on his heart and say, "In future, when this new Bill comes into effect, it is improbable that a vacancy in the position of an ordinary judge of the Supreme Court is going to be filled by an existing judge of the superior courts." If that his position, then say so. I am not as kind-hearted as Senator Craughwell on this matter. I believe it is self-evidently not the case that it is improbable. It is probable and, therefore, I say that if the Minister appoints an ordinary judge of the Supreme Court to the position of Chief Justice, it is highly likely that there will be one, two or three consequential appointments among the Judiciary rather than just some person coming in at the bottom and there being no vacancy. It is highly likely that that will happen, although not impossible. I look back over my own career and experience as a barrister to the number of occasions where somebody has come in from outside rather than a judicial appointment, made among the Judiciary, and in my lifetime as a practising barrister, which started in 1974-----

----there have been a handful of appointments to the Supreme Court of that kind. The same applies even under the tutelage of the Minister. Even in recent times, I ask him the number of non-judges who have been appointed to the Court of Appeal. He has an open deck and can appoint whoever he wants at the moment to all of these positions. I ask him to show me how he has filled the Court of Appeal vacancies from outside the ranks of superior court judges because he has not. He has had the opportunity but he has not done it and his colleagues in Government have not done it. The reason is-----

Sorry, this is the fifth time that I have asked the Senator to please direct his comments through the Chair.

Sorry. The Minister has not done it, his colleagues in Government have not done it and we are, therefore, in a position of what is now the norm, we are now being told by the Minister here in the House, is an improbable cascade scenario, what is going on at the moment is likely to change and likely to become improbable in the future, and I am exaggerating when I say that these jobs are filled from among serving judges. It is simply not correct to say that, it is simply misleading the Minister himself and it is not assisting this debate to try to slap down the perfectly reasonable argument based on experience, not least recent experience by the Minister's own Government in filling positions in the Supreme Court and the Court of Appeal, to argue that they will be appointments from among the Judiciary, which will carry with them consequential vacancies. That is what is happening now. I have no problem with it happening now but I have a serious problem with the Minister saying that it is somehow exaggerating the situation------

Overly dramatising.

Overly dramatising the situation.

I am grateful to the Minister for his comment. What have I dramatised?

Cascading vacancies.

I ask the Members what I have dramatised.

I ask Members to focus on the amendment.

I am focusing on the amendment. I am speaking exactly to the amendment and to the substance of the amendment. The Minister is saying, as a reason for not accepting this amendment, that the scenario whereby there will be consequential vacancies, as the rule rather than the exception, is overly dramatising the situation, but he is plainly wrong. If I am over dramatising the situation, could he kindly explain to this House why he has not, in all of the appointments he has made, chosen somebody from outside the ranks of the Judiciary for appointment to the Supreme Court or Court of Appeal? Why has he not done it? If I am dramatising the situation and saying this is the norm and this is the likely outcome, he has no such constraint on him at the moment. He says I am over dramatising the situation by saying that where there is a vacancy in those courts, it is likely to be filled by a member of those courts, there are likely to be consequential vacancies and, as a result, as the Bill now stands, unless this amendment is accepted, each of them will have to be the subject of a sequential separate appointment process.

Trickle down effect, I think it is called.

The Minister has agreed with the proposition that the Government cannot say, "We will be appointing so and so Chief Justice and we have in the back of our mind to appoint so and so from the Court of Appeal to the vacancy". That would be an abuse of this new wonderful system we have, according to him, so we have to open everything, at every stage, throughout this consequential, sequential appointment process-----

It is fully transparent.

-----to have a separate competition for each and every position.

The Minister stated that it is somehow fanciful and queried the time periods to which I referred. I stated that it will take two or three months for the judicial appointments commission to advertise a position, set a fair period for people to submit applications, interview and evaluate those individuals, meet thereafter and decide its shortlist and send it to the Government for its careful consideration.

And queried, perhaps. I stated that the process in this regard would take two or three months. Senator Craughwell believes it will take four months. Whichever of us is correct, nobody is stating that it will be concluded in six weeks and or two months. Nobody is saying that the timeframe will be anything of that nature. Whatever way the Minister sees this sequence of appointments, it is clear that it is more likely than not to occur, based on the pattern of appointments made by this and previous Governments. It is not fanciful or unlikely that there will be sequential appointments. It has not been the case under the Judicial Appointments Advisory Board system, in cases where it is creating a vacancy by virtue of its own decision, that the Government has to resort to advertising a position when it has a different candidate in mind or whatever.

It is a bit irritating for the Minister to stated that I am overdramatising the situation. The scenario I have painted, be it in respect of two or three consequential appointments, is, first, quite likely to occur and, second, will, on the basis of any rational view and depending on whether Senator Craughwell's opinion is correct, result in a delay of six to 12 months.

As I have indicated, the problem is that we are not getting a fully honest statement of how this Bill will work in practice. I am not accusing the Minister of dishonesty, but we are not getting a full frank indication of how it will work.

I resent that. I have been here week after week and it does not matter what I say. It is not a matter what I say, it is what Senator McDowell says.

Through the Chair, because I have to address-----

The Senator has to address me, but we have to be careful about the type of language we use.

I said that we are not getting a fully honest appraisal of how this Bill will work.

I resent that. I resent the arrogance of it.

In fairness, the Senator has clarified that he is not accusing the Minister of dishonesty.

I also resent the arrogance that I now detect.

Can we try to stick to the amendments?

I think we need a call for quorum in order to allow the Minister to calm down.

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

Senator McDowell was in possession. Does he wish to conclude?

Does the Senator wish to continue?

Yes, I wish to continue. I thought the Acting Chairman asked if I wished to conclude.

Either. Whatever the Senator wishes.

We have not had an honest description of what an individual member of the Judiciary will be told about his or her applications. It seems that under the Bill as currently formulated, a judge who applies to be considered and is interviewed will not be informed that he or she-----

This has nothing to do with the amendment.

Excuse me, I am talking precisely about the amendment. The Minister is here with right of audience, he is not here as a Member of this House and he is certainly not here as the adviser of the Chair.

I have sought the assistance of the Chair in order to ensure an orderly debate. I have done no more than that.

I am trying to have an orderly debate, through the Chair. I am speaking through the Chair as best I can.

Just because the Senator is speaking through the Chair does not mean that he is in order.

That is a matter for the Chair to decide.

The situation is simply this: in this sequential cascade, or whatever one wants to call it - the sequence of appointments perhaps - a member of the Judiciary is obliged to submit an application form and is never told whether he or she is even shortlisted. The Bill is deliberately opaque on this. On a literal reading of the section, it would be an offence to reveal the shortlist to candidates. We have never had a satisfactory explanation as to why that is not the case.

Every time a judicial vacancy becomes available in the superior courts, a judge will have to ask himself or herself, "Do I gird my loins yet again to fill out a new application form; do I attend yet again to be interviewed by people who I have no idea what they made of me on the last occasion, whether they thought I was good, bad or indifferent or if I was short-listed; was it that I had not established to the judicial appointment commission members my suitability to be short listed or was it that I was short-listed and the Government preferred somebody else on the list?" There is complete lack of transparency in that regard in this legislation.

With respect, the Minister was not fair to me or to Senator Craughwell in saying that trickle down or consequential vacancies were somehow over-dramatising the situation. They are not, they are the probability and the likelihood. It is more likely than not that that situation will apply. If that is the case, unless this amendment is accepted, every time there is a consequential vacancy, all of the members of the Judiciary will have to go through this process. They will have to submit a new application to be interviewed again and, at the end of that process, they will remain completely in the dark as to whether they were short-listed or not, whether the Government had made the decision that although they were short-listed they were not suitable for the job, or whether it was the commission that had determined they were not suitable, even to be included among the top three. That is why this amendment is of importance.

I am not talking about an improbable scenario. Rather, I am talking about what is likely to happen. The Minister should remember, before he accuses me and Senator Craughwell of talking about unlikely scenarios or dramatising the situation, that the proof of the pudding is in the eating. The Government of which the Minister is a member has never appointed or advised the President to appoint someone other than a sitting judge to a vacancy in the Supreme Court. The Minister has never, as far as I know, advised the President to appoint a person who is not a sitting judge to the Court of Appeal. I may be wrong on that and the Minister has done so on one occasion. We are not talking about improbable scenarios. It is annoying to be told that one is over-dramatising the situation when the Minister then says that the consequence of not accepting this amendment is that where there are consequential trickle down vacancies, which is the probable likelihood unless something dramatically changes, it will give rise to delays of three, six and nine months in repairing the vacancies to the courts. Someone has to take responsibility for that.

On the point Senator McDowell made-----

I think Senator McDowell made the point well himself.

I understand the Minister's frustration but currently in any public service or private sector job in respect of which a panel is established for interviews, unsuccessful candidates are given the opportunity to meet again with the panel to discuss where they went wrong. Senator McDowell spoke about a judge or a person who puts himself or herself forward for a judicial appointment and is unsuccessful. At the very least natural justice requires that that person be invited to attend the interview board again to discuss where he or she went wrong such that at the interview he or she can counter what was deemed to be lacking in the previous interview. Natural justice requires that.

In regard to this amendment, I want it on the record of the Seanad because in 20 years' time others will be trying to figure out what was going on in the minds of current Senators in regard to this Bill. I want the Minister to guarantee me tonight that there will never be a trickle down problem or lengthy delays in regard to the filling of vacancies at each of the levels below Chief Justice. In terms of this Bill, the Minister cannot give that guarantee. When the commission has short-listed three people the Government can, if it does not like any of them, appoint somebody else. This Bill does not prevent that either. We have spent approximately 66 hours thus far on this Bill. Why are we still arguing about it?

I will make some brief points in response to the Senators' comments. The Bill does not preclude applicants being told by the commission whether or not they were short-listed. I invite Senator Craughwell in particular to look at amendment No. 87b. I look forward to his support and that of Senator McDowell when we come to that amendment.

Senator McDowell spoke in dramatic language about cascading appointments. I point him to section 53(5)(e) which states that the matter of the procedure set out by the commission will be in the best interests of due process and will, I am sure, bear in mind the points that have been raised regarding undue delay. The selection procedure will be set down by the commission and it will be required to ensure that the process is not only transparent - for which we are providing here for the first time but the Senators appear to have a difficulty with it - but smooth. For example, a not unlikely scenario would be a vacancy on the Supreme Court for which up to five members of the High Court may wish to express their interest and may wish to be considered. It is entirely meritorious and desirable that they should be required to express that interest in written form, that the merits or otherwise of their attributes, expertise and experience would be considered by the commission - I make no apologies for that, that the commission would in due course, in accordance with due process, make a recommendation of three to Government, and that in early course the Government would consider those three recommendations and make a decision having regard to the Act and the Constitution. I do not believe we will be in the dramatic territory outlined by Senators McDowell and Craughwell. The process will be determined and should not involve any great measure of delay, undue or otherwise.

It is all very well for the Minister to say I am being dramatic. What is dramatic about saying that there will be a consequential vacancy in a court below? What is dramatic about saying that in all likelihood there will be a sequence of judicial appointments to be made?

Five or six, the whole way down to the District Court.

I did not say five or six the whole way down to the District Court. I never suggested that. The Minister is now over-dramatising the situation. I never suggested that the appointment of somebody to Chief Justice would have a knock-on effect in the District Court. What I did say was that it is very likely to have knock-on effects in the superior courts, the High Court, the Court of Appeal and the Supreme Court. Let us be clear on who is over-dramatising and who is distorting the issues that we are discussing.

It is not me. I am dealing with what is probable but the Minister is now dragging in utterly ridiculous and fantastic notions that somehow I am proposing this amendment on the basis that some District Court judge's position would be the subject of a vacancy consequent on the appointment of somebody as Chief Justice. That is not what I have suggested and I have never suggested that. If the Minister would look again at the amendment he said he has spent weeks considering, it does not mention the District Court. It excludes the District Court.

What about the 18 months?

I do not know what the Minister is saying.

Where did the 18 months come from?

I am not going to argue and I have been told by the Acting Chairman to address the debate through her.

It is just that the debate was getting a bit personal.

I will do so. Let us look at the amendment. The Minister said he read this carefully. There is not one word about the Circuit Court or District Court in it. The proposed new section 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.

It expressly excludes Circuit Court and District Court judges from its ambit. The Minister accuses me of dramatising this by inventing the notion that somehow I was arguing that vacancies would arise in the District Court and, I presume, in the Circuit Court, which is simply wrong. I have never done that and the amendment does not contemplate it. It is a total distortion on the part of the Minister to lay that at my feet and say I am dramatising the matter. Of course it would be totally ridiculous for somebody in this House to say this might have implications for a vacancy in the District Court. The only person who has raised that ridiculous possibility this evening is the Minister. It was not me.

I am also interested in the Minister's statement that Senator Craughwell is ignoring amendment No. 87b in his own name. If we are to infer from the statement that the amendment enjoys the support of the Minister, I would like some clarity as to whether that is the case. If we were confident the Minister would support that amendment, we would not be making some of the points we are making about this specific amendment. However, we have had no signal whatever that the Minister has adopted it. There is certainly no asterisk on this list to suggest amendment No. 87b enjoys the support of the Minister and would proceed as a Government amendment. If the Minister is now signalling that the points we are making are redundant because he proposes to accept the substance of amendment No. 87b, could we hear that?

Yes. I am amenable to that.

I asked how the Minister could guarantee there would not be a trickle-down delay. If he cannot do that, the argument he makes is flawed. It is as simple as that and he must accept the points I make.

The Minister may respond in whatever way he wishes. The Senator may dispute his claims by pressing this to a vote or whatever. If the Minister wishes to respond now, perhaps the matter could be decided through a vote.

I am not going to say or do anything in the context of the debate that might in any way fetter the activities of the independent board. I stand by the practice and procedures, particularly those outlined in section 53, which we will discuss later. I am not in a position to give any guarantees of the type sought and nor would the Senator expect it.

The Minister has just agreed with my comment from approximately half an hour ago, which is that he cannot prescribe how the board or the commission would do its work. He cannot do so and therefore he cannot guarantee that if the Bill passes into law, the scenario outlined by Senator McDowell and me, irrespective of the period-----

That is different. That is a twist. The Senator is playing games.

The Minister has played on the periods I outlined earlier.

It is quite all right for the Minister to respond to the Senator's assertions in any way he wishes. We cannot continue this conversation.

What will we do then? Will we accept that in the Minister's view, this cannot happen and, ergo, we must believe it will not happen, so we will ignore it and move on? Is that what the Acting Chairman is asking me to do?

No. The Senator has in a very articulate way expressed his dissatisfaction with many issues. Ultimately, this could be pushed to a vote to decide the matter. It is the way of these debates.

I am not comfortable pushing this to a vote until I am 100% certain I know where the Minister stands. I am not certain at this time.

In all fairness, I have been the Acting Chairman approximately four times for the discussion of amendment No. 86g. No matter how many times we go back and forth, perhaps the Senator will never be happy with the Minister's comments. It is why I suggest the Senator may wish to press the amendment.

The Minister has stated his belief and he is expecting me and anybody opposed to that belief to accept his word.

I am not expecting Senator Craughwell to accept anything I say, such is his position on the matter.

I specifically refer to this matter.

Perhaps we are at an impasse.

I have seen public appointments go very wrong. I have seen this system working and I have seen how it can frustrate entire organisations where there is a trickle-down effect when an appointment is made. It can cause mayhem. If it causes mayhem in organisations not responsible for the administration of justice in the State, what would it do to the administration of justice? We already have a crisis in the courts system with vacancies.

We have heard there is a need for this Bill to pass in order that other Bills could be acted upon.

What vacancies are unfilled?

Do not ask me right now. If I am wrong about that, I apologise. I understand the Minister's bona fides but they are no good when it comes to the workings of this Bill. The Bill must be robust and be able to meet the challenges that will arise as a result of the establishment of this commission. One of these challenges may arise, and in the opinion of my colleague, Senator McDowell, who is a former Minister with responsibility for justice and a former Attorney General, the probability is that there will be a trickle-down effect. If that happens, it will cause mayhem with unfilled vacancies right across the system. The amendment being put forward today assists the Minister in dealing with that matter. We are trying to assist the Minister and not frustrate him. It is all we are trying to do.

Did I understand the Minister correctly? He asked me and Senator Craughwell to deal with the amendment on the basis that he would accept amendment No. 87b. He used the word "Yes". He then said he did not want to interfere with the independent workings of the commission.

I do not want to discuss the merits of amendment No. 87b now but I can tell Senator McDowell that I am favourably disposed towards its content.

Thank you for the clarification.

That is good to hear and I welcome the comment.

We will not be discussing it now.

No. In fairness, the Senator does not intend to discuss amendment No. 87b.

No.

If it is amended and accepted, it will deal with part of the argument that Senator Craughwell and I have made. This could have been diffused a long time ago if the Minister had indicated that. There is nothing to stop him from writing a letter to Senator Craughwell, me or any other Senator indicating that he is disposed to accept a particular amendment. Why do we constantly operate in the dark as to what the Minister's intentions are in these respects?

It might expedite the passage of the Bill if the Minister were to look at the amendments coming forward and give some indication as to where he stood on them.

I do not get a chance to debate them.

We will deal with each amendment as it arises.

Exactly. The reason we have not reached the amendments, and the record actually stands-----

Does Senator McDowell wish to press the amendment?

Yes, if no other Members want to speak, I will press it.

Amendment put.
The Committee divided by electronic means.

I think we will have a walk-through vote. Under Standing Order 62(3)(b), I request that the division be taken again other than by electronic means.

Senator Craughwell is calling for a walk-through vote despite the margin.

There are no Senators from Fianna Fáil present but they may turn up.

The Senator must not have been here for the Order of Business.

Amendment again put:
The Committee divided: Tá, 7; Níl, 24.

  • Bacik, Ivana.
  • Craughwell, Gerard P.
  • Daly, Paul.
  • Humphreys, Kevin.
  • Marshall, Ian.
  • McDowell, Michael.
  • Ó Céidigh, Pádraig.

Níl

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Richmond, Neale.
  • Warfield, Fintan.
Tellers: Tá, Senators Gerard P Craughwell and Michael McDowell; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.
SECTION 41

I move amendment No. 86h:

In page 28, line 29, after "office" to insert the following:

"(other than the office of the Chief Justice, President of the Court of Appeal, President of the High Court, President of the Circuit Court or President of the District Court)".

One has to read section 41 to see where this fits in. The section states:

(1) Subsection (2) applies where—

(a) more than one judicial office in the same court stands vacant, or

(b) the following conditions are satisfied—

(i) the Minister reasonably apprehends that more than one judicial office in the same court will stand vacant, and

(ii) the Commission has received a request of the Minister (which request shall be addressed to the Commission and which, by virtue of this subsection, the Minister has power to make) that the recommendation referred to in subsection (2) be made.

(2) Where this subsection applies, the Commission shall, in accordance with this Act, recommend to the Minister, in respect of the judicial offices concerned, the names of such number of persons as is equal to the relevant number ranked in the order of the Commission’s preference (and that expression of preference shall not make any distinction between the several vacancies concerned).

(3) In subsection (2) "relevant number" means the number obtained by multiplying by 2 the number of vacancies (or apprehended vacancies), and adding one to the product.

(4) 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.

Under the section, as currently drafted, if there is more than one vacancy in a court, the Minister shall signal to the commission that there is more than one vacancy or there is likely to be more than one vacancy. This could be the case where there are two people approaching retirement age and so on. In those circumstances, the commission, instead of short-listing three people, uses what is known as the "relevant number", which is the number obtained by multiplying by two the number of vacancies or apprehended vacancies and adding one to the product. For instance, if it were the case that there were two vacancies anticipated in a court, the Minister could signal to the commission that he apprehended that there are two vacancies coming up in, say, the Circuit Court and in those circumstances, instead of sending three names forward, the commission should multiply two by two and add one, which means the relevant number would be five. Likewise, the figure would increase to seven if there were three vacancies in a court for whatever reason.

In regard to section 41(1)(a), where more than one judicial office in the same court stands vacant, the question that arises is whether that includes the position of Chief Justice, President of the Court of Appeal, President of the High Court, President of the Circuit Court or President of the District Court. The purpose of amendment No. 86h is to provide that if one of the presidencies is the subject matter of a vacancy, that vacancy is not subject to the requirement to multiply the numbers as would be the case in respect of an ordinary member of the court in question. In other words, if the Minister apprehended that the President of the District Court was retiring on a particular date and also that a District Court judge in, say, County Kerry, who is not the president, was retiring on the same date, the Minister would not ask the commission for only five names. As such, in those particular circumstances the multiplying rule would not apply. This proposal would improve the Bill.

At the other end of the spectrum, if the position of Chief Justice is to be filled and so too the position of an ordinary member of the Supreme Court, providing that a shortlist of five should be provided is not what the legislation should do. There should not be a consolidated list of five in those circumstances on the basis that one of the vacancies is for Chief Justice and the other is for an ordinary member. I am interested in hearing what the Minister has to say about the amendment proposed by me and Senators Craughwell and Boyhan. It seems to me that it makes eminent sense.

This is about the qualifications the State requires for appointment as, say, the President of the Supreme Court and an ordinary member of the Supreme Court. In the case of the Chief Justice such qualifications would include experience, length of time on the Bench, ability to administer and so on. These qualifications would be different from those required for appointment as an ordinary member of the Supreme Court. To lump both together would be akin to holding an ordinary Member of the Dáil in the same way as one would hold a Minister. It cannot work that way or, at least, we would hope it would not work that way. We would hope that the best are chosen to hold the most senior positions. We are trying to ensure that-----

I am sorry to interrupt the Senator but the time allocated for this business has expired.

That is most regrettable.

Progress reported; Committee to sit again.