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Seanad Éireann debate -
Wednesday, 20 Feb 2019

Vol. 263 No. 15

Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

Debate resumed on amendment No. 91a:
In page 31, to delete lines 6 to 12.
-(Senator Michael McDowell).

I will say a few words. This particular provision conjures up the notion of members of the commission hanging around the pillars of the Four Courts and asking various members of the Judiciary passing by if they can talk to them for a minute and if there is any chance they would take on the job of Chief Justice. As my colleague, Senator McDowell said, it is rather bizarre. I made the point in the previous discussion that, in the event that the second advertisement for this post failed, three months after the first advertisement, I would see nothing wrong with the Attorney General making a recommendation to the Government of a suitable person. One cannot continue to advertise a vacant post. I made the point that the media would have a ball if we were unable to find a Chief Justice out of all the legal experts in the country. We could not have such a situation. As the Minister is mindful to remove this section, rather than further delay the progress of the Bill, I will give way and let the Minister tell us how he intends to get rid of the provision.

I wish to comment on the unique nature of this occasion where we have the Minister agreeing with Senator McDowell. Senator McDowell has been raising some very significant points about the constitutionality of the legislation. It has been a very useful exercise to listen in to a great deal of the most recent debate.

I also extend a welcome to the Minister from Malta and apologise to him for leaving the Joint Committee on Foreign Affairs and Trade earlier when he was speaking. I did so to attend votes in the Chamber on the Judicial Appointments Commission Bill.

I too acknowledge the presence of the Maltese delegation. Through the Chair, I ask that my best wishes be conveyed to my colleague, the Minister for Home Affairs and National Security, Dr. Michael Farrugia, with whom I enjoy a very positive and constructive relationship at the EU Council.

The original subsection (9), to which Senator McDowell referred, did not feature in the Bill as published. Section 46, as it was then, was amended on Committee Stage and replaced in its entirety with a new section that had the effect of transferring the senior judicial appointments advisory committee process into the mainstream commission process. It introduced ranking in order of preference and the carousel-type arrangement of seeking expressions of interest for the three top most judicial posts at three-monthly intervals. I stress the carousel aspect because the process has the potential to continue for a considerable time. There is no definitive end to the process, as Senators McDowell and Craughwell have adverted to. I agree that the subsection should be deleted. I am conscious that amendment No. 91a is an alternative to amendment No. 90 and involves the deletion of subsection (9).

I have indicated on a number of occasions that I am giving detailed consideration to a type of senior officials committee. I invite Senators to agree that idea worked well in the case of the recent appointments of the Chief Justice and the President of the Court of Appeal and that a similar type construction is worthy of favourable and positive consideration. I intend to table amendments to section 44 on Report Stage.

While I support the removal from the section of the current subsection (9), I would prefer to tackle it by way of a broader approach to dealing with the challenges arising under section 44 as a whole. On that basis, and as we appear to have reached agreement, I ask Senator McDowell to withdraw the amendment while, of course, reserving the right to resubmit it on Report Stage. At that stage, Senators will have had an opportunity to examine in detail my alternative which will, in effect, be a more extensive approach to dealing with section 44.

We are discussing two amendments now. I hear what the Minster is saying. I cannot, however, see why he should object, even while he is preparing for Report Stage, to making this amendment. I do not know why we are always on autopilot to Report Stage. It could not possibly affect the efficacy of the Bill between now and Report Stage to accept the amendment. From that perspective, I do not see any useful purpose in withdrawing it. This particular provision should be removed from the Bill at the earliest available opportunity. It should not await something happening on Report Stage.

The Minister might also be able to assist me with another issue, since he was there and I was not. The current text of section 44, as I understand it, was inserted on Committee Stage or Report Stage in the Dáil. Will the Minister indicate, for my information so that I can work out what is likely to pass in this House, if this provision had the support of the Sinn Féin party on Committee and Report Stages in the Dáil? If the Minister is going to be in a minority on this provision in this House, we could be in difficulty.

I do not have a record of proceedings with me. I accept that is an important point. My recollection is that the construct now in the Bill, unsatisfactory though it is, certainly had the support of the majority of the committee. I doubt very much whether that majority could have been obtained without the support of Sinn Féin. I would be happy, however, to provide Senator McDowell with such information later this evening.

Progress reported; Committee to sit again.
Sitting suspended at 5.45 p.m. and resumed at 7 p.m.