Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

NEW SECTIONS
Debate resumed on amendment No. 91d:
In page 31, between lines 20 and 21, to insert the following:
“45. (1) The Government may prescribe a time period within which the Commission may make its recommendation in respect of any particular vacancy or apprehended vacancy and the Minister shall inform the Commission of any such time period when requesting the Commission to make any recommendation in respect of such vacancy.
(2) The Commission shall make any recommendation within the time period prescribed by the Government pursuant to subsection (1).”.
- (Senator Michael McDowell).

I welcome the Minister for Justice and Equality, Deputy Flanagan, back to the House yet again.

There was some debate between us as to whether the word "may", where it appears for the second time in the proposed section 45(1), would create a problem. I will leave it to my colleague Senator Norris to confirm this, but I believe we had all agreed that the words "the Commission shall" in subsection (2) removed any element of doubt.

On the Minister prescribing a time period, we did not want to leave the process open-ended. Having sat on interview boards for public appointments, the Minister will be aware of the difficulties in bringing a board together, getting agreement on the advertisement to be placed and deciding the marking scheme to be applied and the questions to be asked. As appointments are made to the Supreme Court, it may be necessary for the court to call on expertise in criminal law, corporate law and so on. All of these matters give rise to the possibility of an appeal. If one tries to scope the advertisement in a particular direction, one is automatically excluding other people. This will cause serious problems. Our main concern is that we not leave the process open-ended, whereby a post will be left unfilled for an extraordinary length of time.

I will refresh the Minister's memory.

We had a very pleasant chat over lunch and I am glad to see that the Minister has been restored to his good Laois humour.

As the father of the House, Senator Norris is well aware that whatever happens in the restaurant stays in it. It is not to be raised on the floor of this or the Lower House.

No. What happens in the Members' bar stays in it. When it comes to the restaurant, it is a grey area.

Regarding my difficulties with the word "may" where it appears a second time in the amendment, it would be better if it was turned into "shall", but I accept that the matter is covered by subsection (2) which governs the entire process. I am satisfied in that regard and there is no difficulty.

I am distressed to hear phrases such as "marking scheme". That sounds as if judges will be held up like schoolchildren for some little test by outside consultants. That is not their function. I do not at all like the idea of marking judges. The purpose of the amendment is clear and obvious, namely, to allow the Government some control over how quickly the judicial appointments commission may make a recommendation in respect of any particular or apprehended vacancy. It is an absolutely essential check and balance over the commission to ensure the Government will not completely outsource and lose control over its constitutional function to recommend to the President judicial nominees. This is an important point about the idea of outsourcing to consultants something that is part of the essential Government's prerogative. Article 35 of the Constitution states clearly and explicitly that it is the right of the Government to recommend to the President an appointment to the Judiciary. This provision cannot be undermined or changed without a vote of the people. It is included in the Constitution for a good reason.

The Supreme Court is equivalent to the American Supreme Court, the composition of which is a matter of considerable political importance to the American people, as the composition of the Supreme Court is to the Irish people. If the Government believes the Supreme Court is showing tendencies to be a little too liberal or illiberal, it is its right to nominate a judge whose appointment is intended to ensure the balance will be correctly maintained according to its viewpoint. Citizens elect politicians to represent their interests, with their first task being to elect a Taoiseach who appoints the Government.

On a point of order, I wish to remind the Chair that this has nothing to do with the amendment. Senator Norris appears to be reading from some legal textbook, but it has nothing to do with the amendment under discussion.

It does, as I referred to the outsourcing judicial appointments to a group of consultants as one of the most significant aspects. I will finish. There is is just one more paragraph. I am sure the Minister will-----

It seems that this House is rudderless and lacking in any form of leadership. It disappoints me greatly.

It is not up to the Minister to attack this House. I ask him to withdraw that comment about it being rudderless and leaderless. It is a disgraceful comment, of which he should be ashamed. He can wipe the smirk off his face, too.

There you are. I will not repeat what you said to me in the division lobby the other day-----

-----but it applies to the Minister.

Please, Senator. While the Senator is concluding, the Minister might want to reflect on what he said.

I have reflected on what he said. I referred very clearly and specifically-----

I am sorry, but I asked the Minister to reflect on what he said. Perhaps the Senator might conclude.

He has no intention of concluding.

This is what I said: "It is an absolutely essential check and-----"

That is part of my-----

I am coming to a conclusion, if the Minister would stop interrupting me.

He is certainly not helping the progress of this Bill in the way he is behaving. He can interrupt me as much as he likes. I do not give a damn. The longer this goes on the better as far as I am concerned, but I am being economic in what I am saying. I will repeat what I said for the Minister's education. The purpose of this amendment is clear and obvious, namely, to give the Government some control in this regard. It is an absolutely essential check and balance over the commission to ensure that the Government does not completely outsource and lose control over its constitutional function to recommend judicial nominees to the President. What could be clearer and more directly relevant to this amendment? The Minister was talking nonsense when he said it was irrelevant. It is a constitutional duty of every Government and every Minister to make major decisions that have lasting impacts on citizens' lives. Shirking those decisions, or outsourcing them, to unelected lay persons appointed by civil servants represents a gross dereliction of that duty.

By the way, I very rarely read from a briefing. It is not up to the Minister to point out that I was reading and that was because I had gone to the trouble of getting a brief on this matter. It is highly technical. Deputy McDowell is delayed in the High Court and cannot be there. I am speaking to his amendment and I need a brief to deal adequately with these matters. I make no apology whatever about it. I raised a question about Members reading in the Seanad because it used to be something that was forbidden, prohibited or discouraged but I was told that is the case and they could read whatever the hell the like.

My point is not the reading; it is the straying from the amendment.

I did not stray from the amendment and I indicated perfectly clearly that the principle of outsourcing was germane and directly relevant.

I have asked the Minister to reflect on the comment he made previously and perhaps he would do so.

I was speaking to the Minister. It is the job of the Chair to interpret whether the Member is speaking to the amendment.

The Chair is the missing rudder as far as the Minister is concerned.

I call Senator Craughwell to be followed by Senator Bacik.

I am reflecting. I have been reflecting for the last nine months on the Seanad. I will continue to reflect. Thank you for encouraging me to do so.

The Minister need not bother with his reflections. The former Taoiseach, Deputy Enda Kenny, tried to get rid of the Seanad and he failed dismally.

I will sometimes utter the result of my reflection and it might be nice.

I want to clear something up. Regarding what Senator Norris said----

It was perfectly right.

-----there is something we have got to get clear.

What we are talking about is fixing a time for the commission, at the request of the Minister, to report. The point I have been trying to make, and I hope I make it clear, is that there is no simple way to fill a public appointment because, ultimately, it is reviewable by the courts, and I have been involved in public appointments during my life. When the commission prepares its advertisement it must cover all eventualities. My colleague, Deputy McDowell, made the point yesterday that the questions that are asked of applicants must be the same. We cannot have different questions asked of different candidates. They must be the same. There must be a way to evaluate the questions in order that it can be ensured they are equally treated across all applicants.

I fully accept what Senator Norris said. We are talking about the most senior judicial appointments in the country but we cannot allow subjectivity to come into the appointment process. We are talking about a process where we are trying to put in place a system to appoint members of the Judiciary. There is no room for subjectivity in such a system. It must be fully transparent and reviewable in the event of a dispute, and such a review must be seen to have been fair.

There are countless cases in public appointments down through the years where people who were disappointed in a competition went for a review and in the review a marking scheme was an absolute must. The point we are making is that we need the commission to know on the day the Minister asks it to fill a vacancy that it has X many days in which to do that. It is up to it to find an interview board, prepare the advertisement, compile the questions it will ask of the applicants, have a marking scheme for those questions and remove any element of subjectivity because subjectivity gives rise to doubt. That is what we are trying to ensure. That is the nub of what I hope will be in this new section 45.

Let there be no doubt about it. I do not care how senior a position we are appointing, be it from the Chief Justice down, every applicant is entitled to know that he or she was treated in a fair and consistent manner. Applicants are entitled to know what marks were available for each question, how many of those marks they got and why they lost marks. They are entitled to all of that. They are also entitled to have themselves compared against the ultimate winners. I do not know how we will do that because we are talking about putting three people forward.

Senator Norris adverted to the fact of their being external consultants. There is an issue where external consultants may be used in the short-listing process. That is something that would have to be built into the time to which we are adverting. If the Minister accepts this amendment, and I hope he will, in setting a time limit for the commission to report, it will have to take into account all the matters I outlined, including the possibility of an appeals process because natural justice requires that there would be an appeals process of some sort or other. I will leave it at that and await the Minister's response.

I welcome the Minister to the House. First, I have certainly reflected, and I know the Acting Chairman has asked the Minister to reflect on his comments about the nature of the House. Having sat here and listened to those comments and reflected on them, I believe they are extraordinary. The tenor of them is to reflect on the leadership of the House, which is in the hands of Fine Gael as a Government party and not in the hands of Senator Norris or anyone else other than the person designated and the party position designated for leadership. It was an unfortunate comment. The Chair was right to ask the Minister to reflect on it and I believe the comments should be withdrawn because they reflect upon the Leader of the Seanad, not upon any of us who have been participating in this debate.

I would like to point out-----

Senator Bacik, without interruption, please.

I did not interrupt. I sat quietly and-----

I had my hand up to raise a point of order.

It is to point out that the management of the House is dealt with by negotiation because Fine Gael does not have-----

That is not a point of order.

Senator Conway is right that we do have a weekly leaders’ meeting. It is very welcome that we do that and is a practice we have had for some time but there is still a Leader of the Seanad and that is a post and a role that is held currently by Fine Gael. It is unfortunate if comments reflect badly on that person because the Leader does seek to lead by negotiation and by giving every other leader of the groups notice. That is welcome and is an exemplary style of leadership. It is unfortunate that the Minister would make a comment that suggests the leadership of the House is somehow lacking or inadequate. I call upon the Minister again to withdraw his remark.

I have not spoken much in recent times on the Committee Stage of this Bill because my amendments have been dealt with. We have debated those and I have indicated to the Minister that I would withdraw quite a number of them in order to resubmit them on Report Stage, notably those on the gender balance issue around sections 44 and 45. However, I wish to speak briefly on Senator Norris’s comments on the amendments we are debating currently, Nos. 91(d), (e) and (f), and the fact Senator Norris, as he has said, was reading from a briefing with which he had been provided. That is an absolutely acceptable practice. If I am not personally able to be present when my amendments are before the House I would provide a written briefing to whatever colleague I had asked to introduce them on my behalf. That is what Senator Norris was doing, as he has said, and there is nothing wrong with that.

I thank the Minister. I just wanted to make the point-----

That was not the issue, though.

-----on the record of the House.

Finally, regarding the substance of the-----

I accept what the Senator says.

I thank the Minister for indicating he accepts that. That is fair.

Finally, without going back over the points my colleagues have made on these amendments, I ask the Minister to consider accepting them. As I think the Minister himself said last night, he will bring forward his own amendments to significant parts of the Bill, notably section 44, on Report Stage. He has again indicated a willingness to look at some of our amendments on Report Stage with a view to accepting them or versions of them. I ask him again to look at these particular amendments, amendments Nos. 91d, 91e and 91f, in the same spirit.

I welcome Shane Hegarty, a transition year student from Pipers Hill school, Kildare, who is a guest of Senator Horkan. Mr. Hegarty is very welcome to the Seanad.

Does the Minister wish to add anything more to the debate on this amendment?

I made my position clear last night, and nothing has happened overnight or during the course of the past three quarters of an hour that has convinced me in any way to accept these amendments.

I may be talking to the wall on this, but I would like to address amendment No. 91e now, if I may.

They have been separated by-----

We separated those last night.

Yes. We will stick with amendment No. 91d then. I am really rather shocked that the Minister would dismiss this amendment so lightly.

I did not dismiss it. I spoke on it last night.

The Minister is not accepting it, though.

If Senator Craughwell has something to say about this amendment, I would be grateful if he would say it. If the Minister then wishes to comment further, he may do so. Senator Conway-----

The Minister has been quite definitive in-----

It could not have been clearer that Senator Craughwell was speaking to amendment No. 91d because he referred to it.

The Minister has been quite assertive in rejecting the amendment. That is regrettable.

I will make just a couple of points. I think what the Minister was referring to earlier was leadership within the House.

No. I have sat here for hours without speaking, and I mean tens of hours-----

The Senator is only after speaking three or four minutes ago.

-----so I will make my contribution now if that is okay.

The Senator will do so on the amendment.

I will speak to whatever amendment we are dealing with.

Given the fact that this is another suite of amendments that has appeared in the past 48 hours, what will ultimately happen-----

-----is that the very good practice of being able to table amendments on Committee Stage will most likely end up being changed because it is being used, in my view, as a means of delaying the passage of this Bill on Committee Stage. The people voted to retain the Seanad - just about.

There was bloody little help from Senator Conway.

I voted to keep the Seanad.

Hold on, Senator Conway, please.

I am not finished.

Give way to the Chair, Senator, please.

I voted to keep the Seanad, but with this type of whatever one wants to call it - there is not even a word created yet in the English language to describe what is going on with this Bill. It is totally-----

On a point of order, it is called fulsome debate.

Senator Clifford-Lee, I do not need a lecture on the English language.

I am not giving you a lecture; it is just a point of order.

I am quite proficient in the English language; I do not need a lecture on it. My point is that the manner in which this debate is being conducted is doing this House enormous damage. It is being talked about at this stage by members of the public and is seen as in poor taste and showing the House in a poor light. The likelihood is that there will be a change of Government at some stage in the not-too-distant future. Any legislation can be changed, amended and altered by a Government.

Excuse me, Senator Conway. That is not relevant to the amendment we are discussing.

I just feel that the manner in which this debate is progressing is doing this House enormous damage.

I thank Senator Conway. As a senior Senator, he will be aware that Members are entitled on Committee Stage to table amendments and have them debated rigorously-----

Under normal circumstances that is absolutely-----

-----to the satisfaction of the Member who has tabled the amendment or until it is defeated in a vote when pressed. I say this just for clarification

I am alarmed and concerned by what my good friend and colleague, Senator Conway, has just said. A quorum in this House was recently reduced to six.

That is a decision that has been taken by this House and I will not allow debate on it. This is-----

I am just saying that a quorum of 10% is ridiculous. In many boards that would be one person turning up.

Excuse me, Senator Norris. We are discussing amendment No. 91d.

Yes, and what I am saying is this: Senator Conway said we were tabling amendments and all the rest of it and that this might have to be looked at and changed. That is a most extraordinary statement for a Senator to make in this House, that we might actually be inhibited in tabling amendments.

With the way-----

It is absolutely absurd to suggest we should be restricted in tabling amendments. Yes, amendments can be ruled out of order by the Chair, and there are certain minor restrictions put on them - we are considering Standing Order 41 at present - but apart from that, it is appalling to suggest that because people have had the temerity to dare to table amendments to Government legislation, amendments should be infringed upon in some way.

This amendment just deals with a time period and imposes certain conditions upon the commission such that it must report within a certain amount of time. My final question to the Minister is this: what has he got against this? It increases efficiency. I do not see any possible objection to it. We are just saying that if the commission is to make these recommendations, it must do so within a certain period. I do not understand why the Minister would so adamantly place himself against this.

I realise we are speaking to an amendment but I want to put on record that I am fully aware of the fact that this Bill has struggled through this House. Debate on it has gone on for many, many hours, and I commend the Minister on his patience as it has gone through the House. However, I will not be threatened that at some stage the CPP or someone else will limit my right and the right of every Senator to table amendments.

Senator Craughwell, I have clarified-----

The Acting Chairman had indeed, but I just wish to make the point clear. I call on anyone-----

I never threatened the Senator.

-----who has looked at the amendments that have been tabled during the debate in this House to show how any of those amendments were vexatious or frivolous. We sought to improve the Bill. We are totally opposed to the Bill. We do not believe it has any purpose in this country and we believe that our Constitution already deals with the appointment of judges. I would like to see a new system but I do not believe this Bill is it. Again I put on the record of the House, let someone show me where I have been vexatious or frivolous in what I have done. Sure, there are people in Leinster House who are deriving some hilarity from this, and there are others in Leinster House who are completely annoyed with the time it has taken-----

Senator, we are dealing with amendment No. 91d. I have ruled on and clarified the comments that have been made.

I respect the Acting Chairman's ruling.

I ask Senators to stick to the amendment and the Bill, please.

Is the Minister prepared to indicate what he has against this amendment? My argument is that it makes the whole system more efficient.

I do not believe it would be particularly helpful to lay down strict time limits. The object of the exercise, under the explanatory memorandum and the Long Title of the Bill, is that this is a mode or method of appointing judges. The commission will act in accordance with the importance and the urgency of the matter. The laying down by us of time limits could prove to be counterproductive.

Before I put the question, I welcome Rory Good from Bishopstown, a transition year student who is a guest of Deputy Michael McGrath. Mr. Good is very welcome to the House.

Amendment put.
The Committee divided by electronic means.

Under Standing Order 62(3)(b) I request that the division be taken again other than by electronic means.

Amendment again put:
The Committee divided: Tá, 10; Níl, 23.

  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Horkan, Gerry.
  • Leyden, Terry.
  • Marshall, Ian.
  • Nash, Gerald.
  • Norris, David.
  • O'Sullivan, Grace.
  • 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.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Reilly, James.
  • Richmond, Neale.
  • Warfield, Fintan.
Tellers: Tá, Senators Gerard P Craughwell and David Norris; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

We are on amendment No. 91e in the names of Senators McDowell, Boyhan and Craughwell.

I move amendment No. 91e:

In page 31, between lines 20 and 21, to insert the following:

"45. Nothing in this Act shall require the Government or the Minister to make any statement or explanation to the Houses of the Oireachtas in relation to its advice to the President in respect of any person for appointment to any judicial office, whether or not the person was a person recommended by the Commission for appointment under this Act.".

Does Senator Norris wish to speak on the amendment?

I do. Senator McDowell asked me to move it but there is some obfuscation around.

It has been moved. The Senator may now speak on it.

I defer to Senator Norris to speak first.

I thank the Senator very much.

This is a very important and significant amendment that has been tabled by Senator McDowell. It seems an obvious amendment to deal with separation of powers and the Executive's constitutional function. This is really where we are at. There are serious questions about constitutionality going through this entire debate and Senators McDowell, Craughwell and I have, I think, laid a trail as a result of which I believe and hope the President will refer this Bill to the Supreme Court. It is not the Oireachtas that appoints judges, it is the Government. That is a function which has been vested in the Executive by the Constitution and that will remain the case until and unless there is a referendum that changes that.

In a constitutional situation, where there is no question whatever but that it is the Government that appoints, the dangers of creating kangaroo courts where the Oireachtas acts as an effective overseer of judicial action, or exercises quasi-judicial functions, is a very topical and relevant issue following today's Supreme Court ruling. This has to be taken into account. There has been a very important action in the Supreme Court taken by Ms Angela Kerins and there is a decision today from the Supreme Court which is directly relevant to this amendment. The Supreme Court found the Dáil's Committee of Public Accounts, of which the Minister who is promoting this Bill, Deputy Ross, was a member, acted significantly outside its terms in reference in its dealings with the former chief executive of the Rehab group, Angela Kerins. The Supreme Court found it has the power to declare the actions of the Committee of Public Accounts unlawful. That is the nub of where we are at.

As a result of this decision of the Supreme Court today, the kind of interventions contemplated could be deemed to be unlawful and it is significant and interesting to note that the Minister for Transport, Tourism and Sport, Deputy Ross, was one of the members of the Committee of Public Accounts, the actions of which have been called into question by the Supreme Court. It shows a track record of him going outside the remit of the committee. This case is a perfect example of the dangers inherent in the Oireachtas jumbling its constitutional functions and powers and the proposed amendment seeks to ensure there is no repeat of these mistakes when it comes to judicial appointments. In other words, the judgment of the Supreme Court shows that the Oireachtas was in fact jumbling its powers and the Supreme Court has seen fit to rebuke the Committee of Public Accounts and hold that its actions are unlawful. That means it imperative that we ensure this does not happen again in respect of the Judicial Appointments Commission Bill 2017.

It is inevitable that if a constraint is imposed on the Executive that it must inform the Oireachtas whether it has or has not accepted the commission's recommendation for a judicial nominee but, instead of its own motion, recommends another candidate for the Judiciary, the judicial nominee would be sullied and unfortunately name abused, probably in the Dáil Chamber which is often like a dog fight in action and where there is no restraint in shredding people's reputations. That is another danger. I urge the Minister to take on board this amendment, which was very seriously put down by Senator McDowell.

We discussed the issue of confidentiality and the importance of not damaging a person's good name or reputation. We discussed recently the impact of the commission failing on its first attempt to find suitable candidates to recommend to Government for judicial appointment. I made the point at that time that if the commission had to go through a second round, speculation in the media, on social media, in politics and in the Law Library would become more and more prevalent the longer it took to find suitable people. We are trying to ensure that no pressure can be brought to bear on a Government or Minister to provide any insight into the commission's deliberations. We do not want names to be mentioned. For example, if a senior counsel is appointed to a senior judicial position for which a judge on the panel for appointment did not make it to the shortlist, what damage would that do to the judge's reputation and his or her position on the Bench? Similarly, what damage would it do to the reputation and practice of a senior counsel who was not rated for a judicial position?

Assuming the President is prepared to enact the legislation without referring it to the courts, I have no doubt that, as soon as more than one panel is required to fill a single vacancy, horrendous pressure will be applied to Ministers and the Government to answer questions on why it took two or three rounds to find a suitable judge. Speculation will be rife across the social system. The purpose of the amendment is to try to protect a Minister and Government from having to disclose anything about anyone. It is a tall ask because all those who are eligible may apply for a judicial position. There is a facility to bring in outside consultants to rank the candidates. Confidentiality is vital when consultants draw up a scheme to rank the candidates for the consideration of the commission. The commission will then choose three names from that list. Everybody will want to know who applied, how they fared and why some were rejected. We are trying to protect reputations and the Government.

My colleague, Senator Norris, referred to a case which seems, on the face of it, to have backfired on the Oireachtas. This is dangerous because the separation of powers is one of the most important tenets that we survive on. When the courts are adjudicating on what went on in an Oireachtas committee, it sets a bad precedent. It is not for me to criticise the Supreme Court and I am not for one moment doing that - it is doing its job - but if we leave ourselves open to that type of scrutiny, we risk damaging the Oireachtas to the point where nothing can be said or done. We cannot allow that to happen. I ask the Minister to consider accepting the amendment.

Let me remind Senators of the later section 49, Statement to Houses of the Oireachtas, and respectfully submit to those who tabled this amendment that it should be submitted on that section, rather than on section 45. Section 49 contains elements of the amendment shared across the House. I will seek to have removed from the Bill section 49(2) and (3), which relate to the publication of reasoned written explanations of any decision not to nominate a person recommended by the commission, along the lines of what Senators have been saying here, with which I do not disagree. The amendment we are discussing goes further than the later amendment No. 97, which we will have an opportunity to discuss. I do not want to cut across or contradict section 49 and for that reason I am not accepting the amendment.

I am grateful to the Minister because he seems to be accepting a large part of the principle of this amendment. As such, we are at least in agreement on this point. It is very interesting that one of the points the Minister makes is that he will seek to amend the Bill by withdrawing section 49(2) which states:

In the event that a person appointed to judicial office has not been recommended by the Commission under this Act, the Minister shall within 30 days of that appointment cause to be laid before the Houses of the Oireachtas a statement containing a reasoned written explanation of the decision of the Government not to nominate a candidate recommended by the Commission.

This is a most extraordinary provision.

In the interests of order and not to cut across Senator Norris, I believe it would be more appropriate that we would discuss that when dealing with the amendments to section 49.

I will leave it at that. I am grateful the Minister pointed it out because it is an analogous case.

Is Senator Norris happy that the amendment will be discussed when we reach section 49?

Absolutely. The same principle emerges with regard to amendment No. 91e which states:

Nothing in this Act shall require the Government or the Minister to make any statement or explanation to the Houses of the Oireachtas in relation to its advice to the President in respect of any person for appointment to any judicial office, whether or not the person was a person recommended by the Commission for appointment under this Act.

Senator Craughwell spoke about circumstances where the person was recommended. Far more significant is the circumstance where the person is not recommended. While I believe the Minister is in large part in agreement with us on this issue, I ask him to contemplate a particular situation as it would be more economical if it was accepted at this point. This is, once again, a case of live horse and one will get grass, with the Minister saying he will introduce an amendment. We have, therefore, a hypothetical amendment overshadowing discussions of a specific and particular amendment. I am not sure that is good practice. Let us consider a situation where a High Court judge makes an application to be appointed to the Supreme Court, the Government decides not to appoint him and then gives the reasons for not appointing him. Obviously, these must involve some defect of character, legal training or expertise or related to previous bad judgments in court cases and so on. How on earth would that judge go back to his role in the High Court because he would be discredited and his reputation completely damaged? How could he operate properly as a judge of the High Court in those circumstances? I urge the Minister to accept the amendment at this point.

I am inclined to be sympathetic to the Minister's view that we should deal with this amendment in section 49.

What is throwing me off is that it will not be possible, and as was said our amendment goes further than section 49, on Report Stage to bring in the level of certainty we are looking for in this amendment. I am a bit conflicted in not pursuing it, given the way the debate has gone in this House. If I call a vote, the chances are that I will lose it. We are talking about people's reputations, and we have all seen how this country works. Indeed, in the Minister's Government we have seen fine people hounded out of office by a media frenzy, either cooked up within this Oireachtas or fed to the media. I had to apologise to the Minister's predecessor for getting caught up in that because I think a decent woman was run out of office. I can just imagine the furore within the shark-infested waters in and around this House and the demand to know who applied and how they fared. We love to take people's reputations down in this country. It is a feature of our society that we like to take people down. With this Bill we are expecting people to apply for judicial appointments in the future. If we get one bad outcome, it is going to destroy the entire process of people applying for judicial posts.

Will the Minister give me some sort of guarantees, and I know we are not at section 49, as to where we will be before I consider whether I will divide the House on this? I am very mindful that the Minister has been more than facilitating in any area that I have debated with him until now and I am mindful not to frustrate him any further but I would like to have some sort of guarantees.

I am calling for a vote.

We have heard the Minister on this. Is the amendment being pressed?

Hold on a moment. I would like to make another comment on this. I refer directly to the Government's explanatory memorandum dealing with section 45. It reads, "Section 45 requires the relevant committee, in respect of each name that it recommends for appointment to judicial office, and also in respect of each name of an eligible applicant that it cannot recommend, to provide the Minister with particulars of the person’s education, professional qualifications, experience and character, and where applicable, the results of interviews or tests conducted by the relevant committee." This is quite extraordinary. Details of the judge's education would go back to primary school and secondary school. Where does it go? Who are these people appointed to examine this and to establish the educational background of a possible judge? As to "professional qualifications", if somebody is in the High Court already, presumably he or she has professional qualifications. It is redundant for a group of consultants to reflect on the question of their qualifications. As to "experience and character", will the Minister explain to the House what is meant by the word "character"? This opens the way to character assassination. It would be a most extraordinary situation to have a group of consultants giving a long disposition on the character of a proposed judge, whatever about the results of interviews or tests conducted by the relevant committee. What kind of tests is it going to conducted? Will it be the Rorschach test? Will the Minister comment on this business, particularly on the business of character? Are we assuming that there are justices in existence at the moment of bad or dubious character about whom there are question marks? I just do not know. It seems extraordinary to me.

Does Senator Craughwell wish to add anything further to this?

It seems to me that we are in some way wandering into section 49 and I do not want to do that.

There are many things I would like to say about what Senator Norris has just said.

I think they are pertinent to section 49 and I am not prepared to debate them at this time. As a result of what he said, I have no choice but to press this amendment. I am interested to hear the Minister's view before I press it, but I am inclined to press it at this stage.

I am happy to accept the Senator's inclination to press it.

Is the Senator pressing the amendment?

I am pressing the amendment.

Amendment put:
The Committee divided: Tá, 9; Níl, 20.

  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Horkan, Gerry.
  • Leyden, Terry.
  • Marshall, Ian.
  • Nash, Gerald.
  • Norris, David.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Conway, Martin.
  • Feighan, Frank.
  • Gavan, Paul.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • Reilly, James.
  • Richmond, Neale.
  • Warfield, Fintan.
Tellers: Tá, Senators Gerard P. Craughwell and David Norris; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

We will wait for the Minister to arrive before we move to amendment No. 91f.

Can I ask for a walk-through vote?

No, it is too late. I remind Senators of the parable of the wise and foolish virgins. The wise ones were awake and alert, while the foolish ones were not. I will not go into it fully.

I was awake and alert, but somebody was talking to me.

When I said we were moving to the next amendment, amendment No. 91f, and that we were waiting for the Minister, nobody spoke. I am sorry to over-rule the Senator on this occasion, but I can go back to the biblical story.

I move amendment No. 91f:

In page 31, line 23, to delete "Minister, provide to the Minister" and substitute "Minister (or the Government as the case may be), provide to the Minister (or the Government as the case may be)".

I will defer to my colleague Senator Norris who wishes to speak to this amendment.

I do not have a huge amount to say about this amendment which is principally technical. Under it, it may be the Government, rather than the Minister, that is provided with the statement referred to in section 45.

Amendment No. 91f states:

In page 31, line 23, to delete “Minister, provide to the Minister” and substitute “Minister (or the Government as the case may be), provide to the Minister (or the Government as the case may be)”.

It is simply a technical amendment that tidies things up and I hope the Minister will find it possible to accept it.

As in previous amendments, I have already signalled my intention to address what I might describe as shortcomings in section 44 and will do so on Report Stage to bring the appropriate arrangements back, closer to the position as initiated, which was the extract that was read out by Senator Norris earlier from the explanatory memorandum. I never intended to require the senior group to make a section 45 statement to the Government. I will not accept the amendment but I will address the issue in the context of my amendments to section 49.

I thank the Minister. He is accommodating in terms of accepting - as I understand it - the principle of the amendment, but once again he is saying that he will introduce an amendment on Report Stage.

No, some of the amendments will be tabled on Committee Stage, I have tabled amendment No. 97.

To clarify, the Minister seems to be referring to an amendment that is to a later section, rather than to a Report Stage amendment.

Senator Norris will be aware that we will deal with the amendment under section 49, which pertains to the statement to the Houses of the Oireachtas and this should address the issues.

The only point I would make is that once again, it seems that the Minister is deferring things and saying he will address them at a later Stage of whatever mechanism he is using.

It could even be today.

Today, right well, we had better hurry up then.

I am inclined to take the Minister at his word. I do not want to frustrate him. I know how it seems from time to time. If we come to section 49 today, we will address this. I am inclined not to press the amendment at this stage.

Have I the right to press the amendment?

Yes, the Senator has that right.

I am pressing the amendment.

Amendment put.
The Committee divided by electronic means.

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, 9; Níl, 22.

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Horkan, Gerry.
  • Marshall, Ian.
  • Nash, Gerald.
  • Norris, David.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • 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.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • Reilly, James.
  • Richmond, Neale.
  • Warfield, Fintan.
Tellers: Tá, Senators Gerard P Craughwell and David Norris; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.
Question proposed: "That section 45 stand part of the Bill."

A number of amendments were put forward to the section in an attempt to improve upon it. What format is it envisaged the commission statement shall be in the section, given that the amendments to it have been rejected? I will wait for some quietness.

Ciúnas, one speaker at a time please. Senator Bacik to proceed without interruption. I call for order at the back of the Chamber.

I thank the Leas-Chathaoirleach for that. Section 45 requires the commission - as it states, "The Commission shall" - to provide the Minister in writing with a statement setting out the reasons a person is suitable for appointment to the judicial office concerned each time it recommends the name of a person to the Minister. That is the section unadorned with any amendment because the amendments have now been rejected. I am genuinely puzzled about what format the statement shall be in and what detail is it envisaged the commission shall provide to the Minister in respect of suitability for appointment. It is an unusual one. I speak as someone who has sat on interview panels, as many colleagues will have, and generally feedback is provided to people who are not recommended for appointment in the course of job interviews for posts as to the reasons they are unsuitable for appointment. What sort of reasons would be given as to why a person would be suitable for appointment, what would be the level of detail and how personal would a letter of recommendation be? It is a genuine question. I will not labour the point but has the Minister a view on this? Is it something that will be spelled out in greater detail in guidelines or regulations to be attached to the legislation, if and when passed, or is this all that the commission will be given in terms of guidance as to reasons?

Does the Minister wish to comment?

It would be a very short statement detailing the name, the years of experience and any particular expertise. I would not see it going beyond that.

I thank the Minister for the clarification. Senator Norris also made a point in this respect. It is helpful to hear the Minister say that but where is it set out that this is all the commission needs to do? It seems the commission could take a very different view of the sort of the detail that would required in setting out the reasons a person would be suitable for appointment, rather than that simple statement of name, years of experience and so on. It seems a much more detailed set of reasons might be provided by a particular commission. There is an issue about consistency of reasons across different recommendations and across different persons. One would not want to see the commission setting out a lengthy list of reasons one person is suitable for appointment and simply the bare bones of the name, years of experience and so on in respect of another person because one could then immediately have a hierarchy in terms of levels of suitability for appointment to judicial office. I do not know if it is enough that the Minister simply gives us this clarification, helpful though it is. We would need to know where is the basis for that clarification.

The Minister said it would be quite a short statement. He indicated a few points of interest but I would refer him once again to what the explanatory memorandum states regarding section 45. It states: "Particulars to be provided by relevant committee Section 45-----

That is obsolete. That has little relevance now because of the changes made to the Bill.

I still think it is important to consider this. It states: "Section 45 requires the relevant committee, in respect of each name that it recommends for appointment to judicial office, and also in respect of each name of an eligible applicant that it cannot recommend, to provide the Minister with particulars of the person’s education, professional qualifications, experience and character, and where applicable, the results of interviews or tests conducted by the relevant committee." That is very significantly greater and much wider in scope that what the Minister suggested. I am not for one minute suggesting that the Minister is misinforming or misleading the House but there does seem to be a contradiction there. A large number of items are set out there, including education - the Minister did not mention the person's education - professional qualifications, experience and character, and where applicable, the results of interviews or tests conducted by the relevant committee. I would ask the Minister to explain the business of character in this respect.

The Senator will have to pursue that further on the next day. As it is now 5 p.m., I must ask the Senator to report progress.

Progress reported, Committee to sit again.