Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

SECTION 45
Question again proposed: "That section 45 stand part of the Bill."

I welcome the Minister for Justice and Equality, Deputy Flanagan, back to the House yet again. We are on section 45 and we are discussing the section. Senator Norris was in possession but he is not here. Did Senator McDowell indicate?

I have nothing further to say on the section.

Has the Minister anything further to say on the section?

Question 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.

Question again put:
The Committee divided: Tá, 19; Níl, 7.

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Gavan, Paul.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • Reilly, James.
  • Warfield, Fintan.

Níl

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Victor Boyhan and Michael McDowell.
Question declared carried.
NEW SECTION

Amendments Nos. 91g, 91h, 92a and 92b are related and may be discussed together by agreement. Is that agreed?

Is the Senator proposing that they be discussed individually?

I move amendment No. 91g:

In page 31, between lines 24 and 25, to insert the following:

"46. Where any three members of the Commission make a request to the Chairperson in regard to any person whose name is recommended by the Commission, the Commission shall also provide to the Minister a dissenting statement setting out the reasons that the requesting members are of the opinion that the person is not suitable for appointment to the judicial office concerned.

The purpose of this amendment is to insert a section immediately after section 45. The latter states:

The Commission shall, in respect of each person whose name it recommends to the Minister, provide to the Minister a statement setting out the reasons the Commission is of opinion that the person is suitable for appointment to the judicial office concerned.

The amendment states:

Where any three members of the Commission make a request to the Chairperson [which here refers to the chairperson of the commission as defined in the Act] in regard to any person whose name is recommended by the Commission, the Commission shall also provide to the Minister a dissenting statement setting out the reasons that the requesting members are of the opinion that the person is not suitable for appointment to the judicial office concerned.

As things stand, if this Bill were to be enacted in its present form, there could be a candidate who was strongly objected to by, say, all the judicial members of the commission who were strongly of the view that this particular candidate was an unsuitable person to be put on the courts and they could be outvoted. As the commission will operate on the basis of a majority vote and a casting vote, it is perfectly possible that a minority, whether it is members of the Judiciary or other people, would be outvoted and a statement would go to the Government in the name of the entire commission setting out why the candidate was suitable. The opposition to that person's appointment would be effectively silenced and gagged because of the confidentiality rules. The Government would only hear one side of the story - the reasons the person was considered suitable - and would not hear that there was strong opposition to that person and that a considerable minority of the commission believed the person in question was entirely unsuitable to be appointed and had reasons so to believe.

If one imagines how the system would work, where there was a strong division of opinion on the commission about the suitability of a person for appointment, the Government would only hear the reasons the person should be appointed. Those on the commission who had attended the interviews, examined the other candidates, gone through the written application form and all the rest of it, looked at the references provided for that person and had a strong view that was contrary to the majority commission opinion would be required, under the confidentiality obligations, to remain absolutely quiet about the matter and not say a word about it to anybody. The Government would then get the impression that the entire commission was of the view taken by the majority that the candidate was suitable for the reasons given. That cannot be right. It simply cannot be right that nobody on the commission can tell the Government that he or she is strongly opposed to a recommended candidate of the commission. There is nothing that one or more members of the Judiciary on the commission can do about it. They have to zip their lips and stay absolutely quiet because it was the view of the majority. They cannot tip off the Government of their view as to why that person is unsuitable.

One might ask if this provision would ever be employed and I hope it would not have to be employed. I hope the commission will operate on consensus and if there was a strong minority saying a candidate was unsuitable, I hope the majority would say that, in view of the strong view of the minority, the candidate would not be short-listed and the shortlist will be done on much more of a consensus basis than having a majority vote. Unfortunately, this Bill has been cast in the form that there are to be majority votes if there is a disagreement and the chairperson is to have a casting vote. In addition, the chairperson is to be a layperson and no member of the Judiciary can ever have the casting vote. That has already been put into this Bill and all amendments to try to shake that situation have been rejected.

I am strongly of the view that it would be very wrong to have a position in which a significant minority of members of the commission were completely opposed to an appointment and the Government could not be informed of that fact and, not merely that, but would gather the impression, because of what is in section 45, that the reasons given as to why the person was suitable represented the views of the commission in its entirety. This is hugely important because it is another instance of how this Bill is keeping the Government in blindfolds. The Bill is effectively keeping the Government in ignorance of the real situation. To compare that with the position of the Judicial Appointments Advisory Board, there is nothing to stop a member of the JAAB who is seriously distressed or greatly worried by a recommendation informing a member of the Government of that fact. There is nothing to stop the Chief Justice informing the Government of his or her misgivings about the wisdom of a recommendation from the Judicial Appointments Advisory Board. This Bill goes much further and makes it a criminal offence to disclose what happens at the commission and closes off the capacity of members of the commission to bring their misgivings to the Government's attention. It is part of a pattern of creating a complete cloak of secrecy through which the Government cannot see. It cannot see that any recommendation was heavily fought and strongly dissented. It is kept in the dark about that.

The Attorney General, who will sit as a legal adviser to the Cabinet, is prohibited from telling the Government that a particular candidate on the recommended shortlist from the commission was trenchantly opposed by, say, seven members of the 15-person commission. Those seven members might totally disagree with the recommendation of that person and the reasons given by the majority as to why the person is suitable. This amendment is designed not to facilitate just one person who is a crank or a permanent dissentient from alerting the Government to the situation. It is designed to have at least three people ask the chairperson for permission to put in a dissenting statement and state their grounds for opposing a particular recommendation. This particular provision is necessary and improves the Bill. It improves the capacity of the commission to function well. It improves the capacity of the Government to understand what is happening at the commission, that there are differences of opinion and that, in circumstances such as those envisaged here, there is strong disagreement.

On the other side of that coin, accepting this amendment would strip away the notion that the Government would be left under the illusion that a particular recommendation of the commission is a unanimous view and the reasons given are shared by senior members of the Judiciary. Let us imagine that. Section 45 states that: "The Commission shall, in respect of each person whose name it recommends to the Minister, provide to the Minister a statement setting out the reasons the Commission is of opinion that the person is suitable for appointment to the judicial office concerned." If a document of that kind arrives on the Cabinet table and a significant minority says this is completely wrong and strongly object to the recommendation of a person, how is the Government even to guess that has happened?

How is it to even be alerted at all to the possibility that what looks, on the face of it, to be a unanimous endorsement of the person and a statement of why he or she should be appointed, is in fact illusory, and that this was not what had happened during the commission's deliberations? I ask the Minister to accept this proposal as it is necessary. The Minister may instinctively reject it but if he does so it will compound the wrong being done by the Bill, which is that it will keep the Government in the dark as to what really went on at the commission and what the strength of the recommendation was. It will also be in the dark as to whether the reasons for a person's nomination were unanimous or there had been significant dissent.

If the Government is to be kept in the dark, and given the false illusion that the reasons given represented the thinking of the entire commission, and there is no mechanism whatsoever for the Government to be alerted to a controversy as to this person's suitability, it falsifies the whole process and gives a phoney sense of unanimity. I ask Members to consider what would happen if a somewhat controversial appointment was made on the recommendation of a majority. The minority, including the senior Judiciary, will be taken by the public not merely to have acquiesced in this but to have supported it because they will not be in a position to signal any disagreement to the Government, to alert anybody to the fact that they disagree or to pull the emergency cord to say they have a problem with it. If the public sees a notice in Iris Oifigiúil stating that the person's appointment was recommended by the judicial appointments commission, they will assume that the members of the commission were collectively of that view and that there was no dissent. I ask the Minister to accept the spirit of this amendment so that a future Government will not to be lulled into a false sense of security on a majority verdict by the commission which it believes was a unanimous verdict. That would be misleading and unfair to a judicial officeholder who believed, in his or her heart, that the person being recommended was highly unsuitable to be a judge but who had not been able to convince his or her colleagues to that effect.

Senator McDowell is an eminent and experienced lawyer. He knows the constraints and the possibilities of legislation. He has been a Minister for Justice and Attorney General, among many other things. This proposal in amendment No. 91g to section 49 reads:

In page 31, between lines 24 and 25, to insert the following;

“46. Where any three members of the Commission make a request to the Chairperson in regard to any person whose name is recommended by the Commission, the Commission shall also provide to the Minister a dissenting statement setting out the reasons that the requesting members are of the opinion that the person is not suitable for appointment to the judicial office concerned.

I will not repeat what Senator McDowell said as he already made a strong case, and we have yet to hear what the Minister has to say. He is nodding and I do not know if that is in dismay or in acceptance. He is now nodding in a different way.

He is reflecting.

There is no need to comment on what the Minister may be doing.

He indicated something but I may have read too much into it. My apologies for that. He will have an opportunity to verbalise his thoughts in a few minutes.

Much has happened relating to this legislation since we were last here and we have seen a lot of reports in the media about it in the past few days, on which I will not comment. I am the leader of the Independent Group in the Seanad. I met the other leaders and the Whips last Wednesday and we were told by the Leader of the House that this legislation would not be taken today.

The Senator made that point on the Order of Business. What happened was quite clear and the Leader referred to it on the Order of Business.

I will further elaborate, as I undertook to do with the Leader earlier. It is my understanding that a particular Government Minister has put pressure on the Minister.

That is a very serious charge.

It should be withdrawn.

That is a very serious charge in regard to a partnership Government, in particular. I ask that the charge be withdrawn.

As I did with the Minister last week, I ask the Senator to reflect on what he said.

I will withdraw the remark. I believe in working in a spirit of co-operation and I do not believe in abusing one's position. I am glad the Minister is smiling. I can only read his body language but he seems happy with that.

If we were to refer to every comment made in this House, we would get no business done. We would be lucky to get through the Order of Business. I ask the Senator to leave the references to body language out of the debate. Perhaps he wants to put down a specific amendment concerning body language.

It is for this House and not any other-----

The Senator is changing Standing Orders.

-----to decide its Order of Business. Nobody is filibustering and nobody is frustrating the progress of this legislation. The people who feel frustrated do not have to come in here. There are only four Senators in this House at this moment. Despite what people may say on Twitter or on Facebook, nobody is frustrating the legislation. I invite any Government Minister or the Leader of this House to bring forward business that is being held up or stymied.

I wish to speak in support of amendment No. 91g, as proposed by Senator McDowell, to insert a new section. I spoke on a similar and related topic on the last occasion we debated section 45 and asked the Minister at that time why the statement required to be provided in that section set out only the reasons the commission was of the opinion that a person was suitable for appointment, rather than also setting out the reasons a person may not be suitable for an appointment. It is eminently sensible to include a provision of the sort proposed by Senator McDowell in his proposal for a new section 46, to be inserted by the amendment.

As I said during the previous debate on this, it is pretty standard for anyone sitting on interview panels that the people to whom it is most important to supply reasons are those who are not to be appointed or not deemed suitable for appointment. This is a very important point. They are the people who will be disappointed and who will be looking for reasons to be given. Much more care generally is spent in drafting the rationale or basis on which people are not to be appointed or on which people are not suitable for appointment. This is a sensible amendment that would assist in the way in which the commission is to go about its business given that the Bill envisages the commission will operate by way of majority vote.

I do not feel the Minister has given me an adequate response to the questions I asked in respect of how section 45 would work in practice. Overall there is a real difficulty with sections 45 and 46 and the process as set forth in the Bill. The process that is to be followed by any future commission is unwieldy and cumbersome. It is also opaque. I listened carefully to Senator McDowell's points about a cloak of secrecy. It seems to me this is a big part of the problem. While this is purported to be a reform of the process for judicial appointment, what we will be left with if the Bill is passed in its current form, or even in its amended form, is a Bill that provides for this extremely cumbersome procedure and yet a procedure that lacks transparency and a rational basis. For example, without amendment No. 91g we will see a requirement that the commission will provide the Minister with a statement setting out the reasons a person is suitable for appointment in respect of each person who is recommended but we will not see any detail provided to the Minister as to reasons a person might not be suitable for appointment. Again, without amendment No. 91g we will not see details provided to the Minister, or any requirement for the Minister to be provided with details, as to whether a vote or recommendation is made by way of majority, perhaps a majority of only one, on the commission or whether it is, in fact, a unanimous recommendation where the person is so clearly meritorious there is no dissenter. The problem is this will be a cumbersome procedure but it is also an opaque procedure that will lack any rational basis.

The Bill as it came to us originally in the Seanad was inherently inconsistent. Of course, it has now been amended to resolve at least that glaring problem in terms of the numbers on the commission. There are still quite a number of areas where the Bill lacks inherent or internal consistency and this is one of the issues we seek to address with these amendments. This is why I will support Senator McDowell's amendment No. 91g.

To reflect on what Senator Boyhan has just said, there has been a lot of comment in the press about the way in which the Bill is proceeding through the Seanad and the length of time taken on Committee Stage. I have not spoken to any huge extent, other than on my amendments. It is important to make this point in respect of amendment No. 91g and the other amendments. It has been very helpful that the Minister has indicated to us on the floor of the House where he does intend to bring forward amendments on Report Stage and we all appreciate this. He has indicated this in respect particularly of earlier sections dealing with the most senior appointments. He will bring forward quite extensive or significant amendments on Report Stage. He has also indicated a willingness to accept the points made in some of the amendments already put forward by those of us in opposition. I withdrew some amendments I tabled with regard to gender balance in the Judiciary with a view to redrafting them and bringing them forward again on Report Stage.

It would really be of greater assistance if we could engage with the Minister and his officials in seeking compromise and resolution of some of the issues we have raised in an attempt to be constructive-----

-----and improve the process that is to be brought about through the Bill. There has been no suggestion from the Department that this type of meeting outside of the Chamber or constructive engagement with officials would be possible. I say this as somebody who has brought forward Private Members' Bills and seen them brought into law, generally after this type of constructive engagement with a view to seeking compromise. I agreed to amendments to my Private Members' Bills, for example, the Competition (Amendment) Bill that became an Act of 2017. It introduced certain rights for freelance workers, including the right to engage in collective bargaining to determine minimum pay rates. That Bill was initially opposed by the Government and reluctantly supported in principle. I, Senator Nash and officials at the Department of Business, Enterprise and Innovation worked together with a view to achieving compromise. This is the type of approach that would generally be the case where extensive amendments have been tabled to a Bill or where extensive opposition is expressed to procedures in legislation. We should see this type of compromise approach being adopted.

Amendment 91g is an eminently suitable amendment for adoption, at least in principle, by the Government with a discussion on where it could be improved or how the point it is making could be addressed so we can see an improvement to the mechanisms provided for in the Bill. Otherwise, the problem is we are just debating these amendments and, ultimately, we will be left with a procedure that, as I have said, will be unwieldy and cumbersome to operate and will not have any merit in terms of increased transparency of or rationality for the basis of the recommendations that the commission will be making.

I very much welcome the comments of Senator Bacik. I also acknowledge her constructive and positive approach to the legislation. I accept what she says about her contributions not being in any way associated with the filibuster, which has been openly admitted on the part of her colleagues. I agree with her on the matter of compromise. This is the essence of Committee Stage debate. I have listened very carefully, and will continue to listen very carefully, to the views of all Senators.

We speak about careful consideration but my understanding is the amendments before us were submitted at a very late stage. Notwithstanding this, I was very keen that we would have the type of debate we are having this afternoon on them. I am very pleased Senator Boyhan withdrew his unfair and untrue remark. He has now accepted in his withdrawal that it was inaccurate, untrue and unfair. I hope we do not have a repetition on the amendment before us.

I accept the points that have been made but I would prefer to leave these issues of the decision to the commission and not have a situation where we introduce minority or dissenting reports to the Government, which would have the effect of creating havoc at some stage. For example, if the majority of commission members recommend candidates A, B and C and a minority of three would prefer candidates D, E and F, under Senator McDowell's amendment they would notify the Government. Another three members of the commission could exercise their preference in favour of candidates G, H and I, and forward a further report to the Government. We would have a situation where the Government would have three reports from the commission with nine candidates from which it would be obliged to pick one. I would regard this as being less than satisfactory and as being against the spirit of the Bill. This is why I am reluctant to include it in the letter of the Bill. We should not stray into the business of minority and dissenting reports, particularly in the sensitive area of appointments and recommendations. The sensitivity of the issue is probably something that has exercised Senator McDowell more than any other issue by way of common thread and I agree with him in this regard.

I am not minded to accept an amendment which would introduce the concept of a number of reports coming to the Government. This would mean the Government would not have a clear message from the commission. Uncertainty, doubt and inability on the part of the commission to make a clear recommendation is not desirable in the circumstances.

I know Senator McDowell will also want to respond. I am disappointed that the Minister will not take on board at least the principle expressed in Senator McDowell's amendment No. 91g. It makes sense to me. The Minister says he wants to leave this matter to the commission. Again, we are being unduly prescriptive and bureaucratic in some provisions of this Bill. For example, section 45, about which I spoke the last day, requires the commission to "provide to the Minister a statement setting out the reasons the Commission is of opinion that the person is suitable for appointment". If the commission is required to provide that statement to the Minister, I do not see why it should not similarly be required to provide a statement explaining why certain persons are not suitable for appointment. Moreover, where there is a dissenting member, as envisaged in Senator McDowell's proposal, I do not see why the commission is not required to provide a dissenting statement as well. The Bill seems rather selective as to what information the commission is required to provide to the Minister. Why require the commission to provide the Minister with a statement at all? Why not simply require the names? If one follows the logic of what the Minister has said, all the commission should supply to the Minister is the names of those recommended for appointment. However, that is not what section 45 says. In respect of each person it requires a "statement setting out the reasons the Commission is of opinion that the person is suitable for appointment".

As I said, it does not seem logical that a statement of reasons of this nature is required whereas a statement of reasons a person is not suitable for appointment, or reasons certain members believe that a majority recommendation is not suitable, is not. This is an example of an unduly bureaucratic and a fundamentally illogical procedure of the kind we see too often. I wish to reserve the right to bring an amendment forward on Report Stage, addressing more specifically the issue of a statement of reasons that a person is not suitable for appointment. Alternatively, I would like time to reflect on whether it is preferable to change section 45 more fundamentally, so that the commission is not required to provide any statement of reasons but rather simply to provide the names. Does the Minister have a view on that? Is that preferable given the issues that the Minister has pointed out, that is, he does not wish to see minority reports and different statements of reasons? In that case the obvious answer is to change section 45.

For the record, the Minister mentioned that these amendments were produced late in the day. I must be very clear about this. Senator Boyhan was informed last Wednesday that because of the Brexit legislation it would be weeks before we returned to this matter. On Thursday evening we became aware that this had been reversed and we were to have an extra session today. Furthermore, we learned that in order to meet the deadline for today we were obliged to submit any amendments to sections 45 and 46 to the Bills Office by Friday at 11 a.m. This U-turn resulted in the Minister not having more than three days to consider these amendments. It was nothing to do with us.

If I might make a more general point, as the Committee Stage debate on this Bill proceeds the Minister is entitled to bring his own amendments. There is nothing wrong with that. In fact I would argue, though I do not wish to widen the discussion from the particular amendment-----

That is entirely what the Senator is doing.

I would argue that in saying he will deal with these issues on Report Stage and will just listen on Committee Stage, the Minister is in breach of the spirit of the orders of this House. On Committee Stage, Members are supposed to debate the minutiae and put their amendments forward so that they can be considered in detail. This is not meant to be done simply on the basis of Report Stage procedure.

If the Minister looks at the wording of the change amendment No. 91g would make to section 46, he will see that it does not allow commission members to talk about other more suitable people. A minority of three could not say that so-and-so was better. This is a means whereby the requesting members can state that the person recommended is not suitable - not that somebody else is more suitable, but that the person recommended is not suitable. The Minister conjures up the notion of three fragmented groups in the commission, each with their own favourite shortlist and each opposing those of the others. This does not provide for that. This would mean that where the commission by majority says-----

It could be that.

No, it means that where the commission nominates three candidates by majority, a minority can state its disagreement that the three candidates are suitable for appointment. It is not a licence to say that somebody else is more suitable for appointment. It allows the minority to say that a particular candidate is not suitable for appointment and to give the reasons therefor.

Consider a situation where the judicial members of the commission, who account for five out of a total of 17, have a strong view about the suitability of a certain person. If the Minister's Bill goes through the Government itself will never know that the five judicial members, namely, the Chief Justice, the President of the Court of Appeal, the President of the High Court, the President of the Circuit Court and the President of the District Court, share the view that one of the people on the shortlist of persons recommended to the Government is unsuitable for appointment. This is what the Minister is trying to enact. He should not cod himself that he is trying to enact anything else. He is trying to bring about a situation where all the judicial members could be of the view that somebody is wholly unsuitable and the Government would never have an inkling of this. Nobody could tell the Government, because it would be a breach of confidentiality and a criminal offence to impart to it that the five members of the Judiciary were of a different view. We are dealing with "transparency", a word that is sometimes used, sometimes abused and sometimes used to mean its exact opposite. To echo what Senator Bacik said, how can it possibly be a good idea to enshrine in law a series of measures whose result is that if the judicial members of the commission are wholly opposed to a particular appointment they cannot impart that information to the Government? That is wrong in principle.

I raise a point which has been touched on. This is the Government's constitutional choice. The Government is responsible for the decision to advise the President to appoint a person. It is the Government's duty to consider the suitability of such a person quite separately from the commission. That is a constitutional obligation on the Government. It cannot be a rubber stamp under our Constitution.

The Government cannot state that the commission made a recommendation and that this is fine. Individually, it has to take responsibility for what it is doing. If the Government advises the President to nominate a particular woman or man to be a judge, it is its responsibility to ensure that it should be so. For that reason, it is entitled to the maximum amount of information, not the minimum, regarding what it is doing. It flies in the face of the constitutional requirement to enact legislation that would make it a criminal offence to tell the Government that the entire judicial component of the commission has stated that a person is unsuitable for appointment to the Judiciary. Leaving the Government under the utterly false impression that everybody in the commission is of the view that everything is hunky-dory with the recommendation is subversive of the constitutional order. It is strongly subversive of the constitutional order to attempt to put into law a mechanism whereby the Government cannot know the real views of the senior Judiciary, in whom one hopes it reposes some trust, regarding the suitability of any candidate where those members of the Judiciary have an objection that is not shared by majority because they constitute only five out of 17.

This is not just my view or that of Senators Boyhan, Craughwell and Bacik. In the past fortnight, the European Commission published the following about this Bill:

The proposed composition of the Judicial Appointments Commission, which - according to the amended proposal [not the first version of this Bill - the dog's dinner that came to us from another place - but this Bill, as now amended] - would comprise only five judges out of 17 (including a lay chairperson 'accountable to the Oireachtas') would not be in line with European standards (Council of Europe, 2010) and with the recommendation of the Council of Europe's Group of States against Corruption (Group of States against Corruption, 2018) which require that an independent and competent authority drawn in substantial part from the judiciary be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice.

Let us look precisely at what the European Commission stated. Its objection was based on the requirement that an independent and competent authority drawn in substantial part from the Judiciary be authorised to make recommendations or express opinions that the relevant appointing authority follows in practice. Under this Bill, however, we have circumstances in which all the judges together comprise less than one third of the entire commission. Furthermore, we are now about to reject an amendment, if the Minister persists, that allows that minority of senior judges to warn the Government of its opinion on a candidate whose name is to be included on a shortlist. If the European Commission is listening, it should please hearken to my words. This is worse than its worst imaginings. It is to be a criminal offence to disclose to the Government that the judicial element of the commission objects strongly to an appointment that a majority is recommending to the Government. We are, therefore, flying in the face of what the Council of Europe, the European Commission and the GRECO report have stated in condemnation of this Bill.

I am not straying irrelevantly because I am of the view that this amendment really crystallises how egregious the departure from European standards actually is. Why do I say that? I say so because it prevents the senior Judiciary members from imparting to the Government their collective view that a particular candidate, selected by a non-legal majority, is unsuitable. Surely the Minister must hesitate when he contemplates that. Could it possibly be right to penalise, with criminal sanction, any person who informs the Government that the senior Judiciary members are of the unanimous view that one person recommended to the Government from a list of three is unsuitable? I cannot believe that the Legislature is contemplating doing such a thing. I am astonished that we would ever contemplate bringing about such circumstances. Time and time again in this debate - I make no apology for coming back to this - I have said this is compounded by the fact that the Attorney General, sitting at the Cabinet table with the Government, is, by way of a point of deliberate legislative policy enunciated by this Minister, equally prohibited from telling the Government the position of the senior Judiciary regarding the suitability of the candidate. I find it absolutely astonishing that this could be the outcome of this Bill.

Returning to what Senator Bacik said about consulting the Minister in a collaborative way, I would love to sit down around a table and ascertain, apart from the formality of this House, why the Government believes this is a good, defensible idea or an idea that for one minute should be tolerated by a parliament in a democracy. I fail to understand why this amendment is not being accepted. It would not bring about factionalism. It could not be deployed in favour of another person on the list. It merely affords a dissenting minority, and potentially the entire judicial component of the commission, the entitlement to inform the Government that it dissents from the recommendation being given and to give the reason it dissents regarding the suitability of a particular candidate that the majority wants to recommend.

I do not want to open old wounds but for the Minister to state that Senator Boyhan is somehow misinforming the House, being incorrect or spreading false information when he indicates that the Government is being leaned on by one of its members to proceed with this Bill. We all know the Senator is telling the truth. We all have seen it, to the point where telephone calls are made to Members of this House by a particular source demanding explanations as to why they are voting in a particular way.

Those are very serious charges about the use of telephones in this House.

I have given the Senator some latitude.

Members of this House are regularly interrogated about why they vote against Government amendments. It is not by the Minister, and that is my whole point. It is by one of his Government colleagues.

Is the Senator saying that Senators are being threatened?

No, I am saying-----

Is he saying that they are being pressurised or interrogated?

I will be very careful, and I have been very careful.

For the Minister to say that there is no pressure, there is. The pressure is coming from one source. Members of this House are regularly being challenged as to why they are supporting amendments.

These are charges of the most serious nature.

Minister, the word "threatened" was not used by Senator McDowell. I want to make that quite clear-----

He said that Senators were being put under pressure.

The word "threatened" was not used by Senator McDowell.

I never used the word threatened.

They are being lobbied.

Sorry, I have put a good bit -----

A Senator should be in a position to vote in accordance with how he or she feels at any time and on any issue.

Plenty of telephone calls are made about plenty of things.

Any evidence of pressure or threats -----

I am not going to let this descend into he said or she said or they said-----

I am not going there, Chairman.

-----or words being misinterpreted-----

I am not going there. I will not be dragged into it either but I am saying that for Senator Boyhan-----

The Senator is on very thin ice.

For Senator Boyhan to be slapped down as being wrong on this issue is itself wrong.

He is speaking the truth as we all know.

He too is on thin ice. These are very serious charges for the institution that we are serving and in which we sit.

The interpretation of the type of ice or its depth is a matter for me as Acting Chairman to interpret. Please, I have given colleagues a good bit of latitude-----

-----in relation to both sides' comments and further comments. I ask colleagues to please stick to the amendments and to the Bill.

I accept that. I believe that we should uphold the dignity of this House. I think that no Member of the Oireachtas should go public with a tweet saying that the conduct of the Judicial Appointments Bill in our Seanad undermines the urgent need for root and branch Seanad reform or a second referendum. No Member of the Oireachtas should reduce himself or herself to that.

There is a report.

The Minister is right on cue.

In that regard, there is a report before the Government which is receiving consideration. There is also a minority report and a dissenting report which is exactly what Senator McDowell is trying to transfer to the new judicial appointments regime. I do not believe in the circumstances that it is in any way desirable for a Government to be provided with a report other than that which the Bill ordains.

Section 15(6) deals with the issue quite precisely where there is no consensus on a question of a meeting of the commission the matter should be determined by a majority of votes. It is best to leave the power and authority with the independent commission and not have circumstances where the Government is in receipt of an official report, a minority report, a dissenting report or another report. That gives rise to the type of difficulty that Senators McDowell and Boyhan wish to avoid.

The very point I made was that section 15(6) is in the terms to which the Minister has just adverted. Let us ask ourselves what the words "where there is no consensus on a question" actually mean. They mean that there is a group, in all probability, of people who are in a minority on this issue, and that it should be determined by a majority vote. That is the situation where a majority vote comes in. The Minister is now saying that where there is a dissenting minority and even where that dissenting minority includes the entire judicial component of this commission, the Government must be kept in the dark about the existence of a minority and the fact that the Judiciary is in that minority. This is wholly insupportable and wrong.

I ask the Minister to imagine if he is re-elected, reselected and renominated as Minister for Justice and Equality - as he richly deserves, perhaps, to be, I grant him that - in two years' time when this appalling legislation comes into operation, if such a thing happens, and if he received a report from this commission as Minister and presented it to his colleagues in government, and it said that these are the three people who have been recommended and the reasons for their recommendation and somehow afterwards he discovered that every single judge on the commission had said that he or she strongly disagreed with that person's inclusion on the short list, would he and his Cabinet colleagues not feel shortchanged? Would they not ask who in heaven's name put into the Bill for the commission a prohibition on the Government being warned that that was the true situation? When one thinks about it, it is a major responsibility to bear. The Minister is saying that there is to be no mechanism whereby the entire judicial component of the commission cannot intimate its dissent from a majority decision taken against them, they being, in numbers, less than a third of the commission as the EU Commission has warned us against. This is not some type of fantastic, exotic or improbable scenario that the Judiciary would say that a candidate was unsuitable or that there would be no consensus on an appointment or that a majority would say that someone was on the list and that they were suitable and the minority cannot tell the Government either that they dissented or the reasons for so doing. It is remarkable that this is being proposed now, in the 21st century, that this is a good idea and that the Government which, under the 1937 Constitution, bears the responsibility for judicial appointments, should be kept in such a state of abysmal ignorance as to the attitude of the Judiciary to a potential appointee. It flies in the face of the Council of Europe and the GRECO condemnation of this Bill and the EU Commission's recent reminder. They have not walked away from this. They have looked at the amendments that we have made to the Bill and have said that it is still wrong. Yet we still proceed with it.

There is another, less contentious, matter. Is there anywhere in the Bill, and I ask the Minister to point it out to me, that says this particular statement of recommendation shall itself remain secret? It does not fall under the confidentiality obligation in respect to the commission's own activities. It is a message that it sends to Government. It sets out certain reasons. Is there anywhere in the Bill, as currently drafted, that says that this statement of recommendation shall remain secret? Is it even subject, God help us, to freedom of information? I would like to have a clear answer to that.

I expect that it would be covered by the confidentiality issue within the Bill. I cannot immediately point Senator McDowell to the letter. I would be happy to do so at the earliest opportunity. In the event that it is not, I would be keen to ensure that the report itself would be confidential.

As such, this would be subject to the confidentiality rules and conventions of Cabinet. If there is no specific reference, I would be happy to ensure we would work towards having such a specific statement in an appropriate place in the Bill before its enactment. I do not wish to open a further flank on the Council of Europe GRECO reports but I remind the House, as I have on numerous occasions, that there are no set international norms in these matters. The Council of Europe would be aware of our legal system and common law regime, which is considerably different in practice and procedure from what is the norm among Council of Europe members. That is a point on which we have made considerable argument in the context of our engagement with GRECO, which has been active and will continue.

What Senator McDowell wishes to support is not something that has arisen with regard to this particular amendment but is common to a number of amendments. It becomes clearer the longer we debate the matter that there is a desire on the part of a number of Senators to have something of a parallel process, having regard to the fact that this will be a 17-member commission. There appears to be support in this House for a small group of people who will assemble and be influential within that group of 17 people. I am concerned that if we accommodated groups within groups and minority or dissenting reports on the part of a group within the commission, we would be going against the fundamental principle of the Bill.

The European Commission heard the Minister's responses on a number of occasions. It is following this debate and it is clearly aware that we have amended this Bill to reduce the judicial element to less than one third of the proposed judicial appointments commission. The Commission has maintained its objection to and criticism of the Bill on the grounds set out. I am not a person who believes the Commission of the European Union is infallible but it is interesting to note that the Tánaiste spoke about Ireland being absolutely at the centre of Europe in its thought processes, etc. Nevertheless, the Commission has repeatedly told us that this Bill is not what it thinks is appropriate. We have increased the size of the proposed judicial appointments commission to 17 and fixed the number of judges at five, which is less than one third of the membership of the total commission. We have been repeatedly told by the European Commission that this is not a circumstance in which the Judiciary would be a "substantial" part of the body making the recommendations. It would be less than substantial and in a small minority. It would be less than one third of the entire body. The Commission has warned us repeatedly about this but we are ploughing ahead regardless. That is just an observation.

It is not a matter of having a faction within the judicial appointments commission. If the entire judicial component of this commission comes to the view that a person is not suitable, there is to be no mechanism whatever for those members to inform the Government. The Minister speaks about a desire on the part of some people to maintain a parallel process. I will put this in a constitutional context. The starting point is that the Government is free to appoint any person eligible for appointment in accordance with law and its own decision as to whether to advise the President to appoint a person to be a judge. It is the starting point under the Constitution that this is an executive function. The derogation that this legislation proposes from that constitutional principle is that there should be an advisory body whose opinions, in the case of judicial appointments, should be brought to the attention of the Government by way of shortlists. That does not detract from the constitutional right, prerogative and duty of the Government to make a decision by itself on the basis of its own judgment and on foot of its own responsibility as to who it should recommend to the President.

It is a simple matter and it is not a question of a parallel process. The purpose of this Bill seems to be to destroy all incoming information to the Government as to the real position and give a false view as to what the choices really are or who is really available. It also affects information to the Government as to whether there is dissent or consensus on any particular recommendation. It is what the policy of the Bill seems to be.

We can go back to what was included in the programme for Government and what was adopted collectively, satisfying one particular member of the Government in doing so. The programme indicated the shortlist should be as small as possible under the Constitution, meaning as few people as possible should be on it, and not more than three. There was some vague recognition that the Government had some rights in this matter but there would either be one, two or three persons on the shortlist according to the programme for Government. We now have three, which I presume arises from the recognition that there is a Constitution and an obligation to allow the Government to make its own decisions. This is not a question of a parallel process but rather maintaining the right of the Government to really know what is going on and not be dictated to by a commission through a starvation of information and the presentation of a false facade of unity about a particular shortlist.

We have discussed this adequately and the majority of people present now are of the view that this amendment should be obeyed. They may not be a majority in the House when the matter is put to a vote. Let us have no illusions as to what we are doing in rejecting this amendment. We are saying it will be a criminal offence to tell the Government that the five members of the Judiciary ex officio on this commission were of the minority view that one of the people recommended was unsuitable. It also indicates there should be no means whatever for that group to inform the Government of the reasons its members are of that view. Is this not a flagrant breach of the Council of Europe policy on the matter and GRECO recommendations, as well as a flagrant disregard of the European Commission's repeated reminders to us of those standards? More important, is this not a flagrant disregard of what the Constitution requires, which is that the Government be entitled and free to know all relevant factors when it comes to making a decision on who to appoint to the Bench, including the attitude of people whom it trusts and the Judiciary?

It should be free to know these things. If it is not that, I do not know what it is. I have put the point to the Minister as strongly as I can. I will not prolong the matter any further. This is yet another flag as to why this Bill is unconstitutional and should be referred to the Supreme Court by the President.

I merely wish to point out to Senator McDowell two things which he already knows but which he is reluctant to accept. First, the Senator is now critical of some departures from the strict expressions in the programme for Government, a programme with which he had a difficulty. In the spirit of openness and compromise, to quote Senator Bacik, I will say that any departure from the programme for Government recommendation-----

-----arises from the type of debate we have been having. Second, Senator McDowell is incorrect when he speaks about the commission dictating to the Government. That cannot and will not happen under this Bill. In any event, it cannot happen under the Constitution. Throughout this debate people on all sides of the House have been very keen to ensure that nothing in this Bill in any way interferes adversely, or impacts upon, the Government's unfettered discretion on the matter of the appointments. To use the word "dictate" with regard to the commission is something of an exaggeration.

If the Government really does have unfettered discretion in this matter, how could anybody defend the proposition that it should be kept in the dark about the fact that the five presidents of the courts of Ireland, holding office under the Constitution, are opposed to a particular appointment and wish to inform the Government as to why they think it is unsuitable? If the Government has unfettered discretion, why should it not know that fact? It is all very well to talk about discretion, but discretion can only be exercised in the face of knowledge. One should know that there are two sets of circumstances. How can one have unfettered discretion if one has to play blind man's buff, put earphones on, and not know how one is exercising such discretion while pinning the tail to the donkey with a blindfold over one's eyes?

That is very unfair from somebody who has served in government. For a former Minister for Justice, Equality and Law Reform and former Attorney General to reduce the debate to a children's game-----

Through the Chair, I want to say that there was never a situation in which any Government to which I was Attorney General or of which I was a member as Minister or Tánaiste could not ask the Attorney General what the Judiciary made of a given candidate, what he or she thought of that candidate, or who else showed an interest in the job. Such a situation still does not pertain and will not until this Bill in its present miserable form is passed. These provisions are now being introduced for the very first time by this Government. It is all one-way traffic. One can say that there is a slight fig leaf in this Bill where it is said that nothing interferes with the right of the Government to make its own recommendation in any event, but the entire Bill does precisely that. It keeps the Government in ignorance of the true facts and makes it a criminal offence to tell the Government about those facts. I despair sometimes, but there we are.

Amendment put:
The Committee divided: Tá, 7; Níl, 18.

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Horkan, Gerry.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • 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.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • Reilly, James.
Tellers: Tá, Senators Victor Boyhan and Michael McDowell; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.
SECTION 46

I move amendment No. 91h:

In page 31, line 27, to delete “firstly”.

This amendment is in the names of Senator Craughwell, Senator Boyhan and me. At present, section 46 reads as follows:

"In advising the President in relation to the appointment of a person to a judicial office the Government shall firstly consider for appointment those persons whose names have been recommended to the Minister or, in the case of section 44, the Government in accordance with the provisions of this Act." This is modelled on an equivalent provision of the Judicial Appointments Advisory Board legislation about which I have often wondered. In what sense is it open to the Oireachtas, when the Government is considering the matter of how to advise the President, to tell the Government in what order it must deliberate on the subject? That is the case in the current provisions relating to the Judicial Appointments Advisory Board. As a matter of fundamental principle, it seems that it is for the Government to decide whether it will look to its own idea of who should, for example, be Chief Justice. It is for the Government to decide whether it will consider its own proposed name in the first instance and then consider the shortlist of the Judicial Appointments Commission before it makes its decision. It is a legislative impertinence for the Oireachtas to tell the Government, when it comes to advising the President to, for example, appoint someone as Chief Justice, to consider the people on the shortlist before it considers the person it has collectively decided is the right person. That is not leaving it as a choice for the Government as to how to regulate its business and approach the giving of advice to the President on judicial appointments.

Is it possible for the Oireachtas to tell the Government, when it comes to consider a question, that it must first consider this before it decides that? Is that the case in the context of any issue? If the Government chooses to propose a certain judge as Chief Justice, is it possible for the Oireachtas to ask it to consider a shortlist of candidates before it makes its decision? Can the commission ask the Government to consider the merits of three other candidates before considering the merits of somebody who the Government is disposed to appoint in the first instance? It is not within the competence of the Oireachtas to tell the Cabinet the order in which it must approach the candidates for judicial appointment. If the Government was fully of the view that a particular candidate was going to be appointed Chief Justice, telling it that it must consider the merits of the candidates the commission proposes before considering the merits of its preferred candidate seems to be invading the discretion that is given to Government. If the Government has a discretion to make appointments not recommended by the commission, this is telling it that, before it goes on to appoint somebody else, it must effectively reject the commission's appointments. That is what this means. If the Government must consider these people first, it must reject them before moving on to its own choices. That is an interference with the constitutional prerogative of the Executive to order its own business.

That is not a huge point, or one that I will die at the stake for, but it is important. The language of the Judicial Appointments Advisory Board legislation is somewhat unrealistic. I do not know if this persists, but there have been cases in which the Government has authorised the Minister for Justice and Equality or the Attorney General to approach a particular candidate and ask if he or she will take a position and tell him or her that he or she will be appointed if he or she is willing to accept the position. To say that, before it does this, the Government must consider all the other options is an invasion of its prerogative and discretion to make such decisions as it considers correct under the Constitution.

I will not speak at length about this matter. The point I am making is simple but I strongly believe that the word "firstly" performs no useful function here. The section without the word "firstly" would state, "In advising the President in relation to the appointment of a person to a judicial office the Government shall consider for appointment those persons whose names have been recommended to the Minister or, in the case of section 44, the Government in accordance with the provisions of this Act." The deletion of the word "firstly" would not fly in the face of the principle of this legislation and the Government is entitled to decide who it will consider first, when and if it wants to make an appointment, whether its own choice or that of the shortlist supplied to them.

I thank the Senator for the point he makes. There are circumstances in which the issue might be regarded as important.

Senator McDowell's referred to the current judicial appointments process and the capacity of the Houses of the Oireachtas to in some way bind the Executive. If followed through on, that would be serious. I am not sure if the Senator can draw on any further evidence to support his claim. I point to section 16 of the Court and Court Officers Act 1995, section 16(6) of which states, "In advising the President in relation to the appointment of a person to a judicial office the Government shall firstly consider for appointment those persons whose names have been recommended to the Minister pursuant to this section." I do not believe, therefore, that the warnings offered by Senator McDowell in respect of the relationship between the Executive and the Legislature are as serious as he would have us believe. I cannot recall that 1995 legislation but it could well be that these points were made at the time of its enactment and that the Minister of the day was satisfied to proceed with the section, the import of which is being followed in the case of the Bill we are discussing.

Government will be giving a due consideration and I do not believe that in any way interferes with the constitutional position of the Executive. I am happy to listen to Senator McDowell if he cares to go further on the issue, which I do not believe he is minded to do, but I am happy to accommodate him.

I am concerned, as with the previous amendments, that we would be in some way downgrading or reducing the status of the independent judicial appointments commission.

I am not prepared to do that. If the Government were not to first consider the recommendations and names coming from the independent commission, the commission would be fatally undermined. It could be that Senator McDowell would welcome that. It would be consistent with his argument over the past few months and, ultimately, this is what he and his colleagues would like to achieve. I understand that position but I certainly do not agree with it and I am not minded to amend the Bill in any way that might undermine, or even downgrade the status of, the independent commission. I am not going to accept the amendment.

Given that this phrase is already in the current legislation and has not, so far, caused much of a problem, I do not think it does cause much of a problem. Governments are free to choose a judge for a particular office at present and not to go near the commission in the first place but this legislation is a good deal more prescriptive. It states that the Government has to first consider the people who are recommended on a shortlist by the commission.

If the Government is really free to say it proposes to appoint Ms Justice So-and-So to be Chief Justice but tells the Minister for Justice and Equality that he or she cannot propose it until the Government has looked at the other three names, it would be an invasion of the Cabinet's right to decide in what order it deals with its business. A matter may have been the subject of a recommendation by the commission under a judicial appointments commission Act but the Taoiseach, the Tánaiste in the case of a coalition Government, the Minister for Justice and Equality and the Attorney General might say they have come to the view that the outstanding candidate is X and they do not propose to waste much time with the three names on the shortlist that they were given. It may be a minor point but telling the Cabinet the order in which it addresses those issues does not diminish the commission but it preserves the prerogative and the primacy of the Government's entitlement to make its own mind up on these issues, regardless of what is in legislation.

It is quite possible that the Minister for Justice and Equality will come into Cabinet and say he is proposing X and that he has the agreement of the Taoiseach. He could say he has consulted the Attorney General, as he is required to do under the Cabinet handbook, and that the Attorney General considered the person to be a very good appointee. He says that X is the best person for the job but to tell him he cannot consider the candidate until he takes out the report and goes through all the reasons offered for the appointment of somebody else would, in my view, technically be an impertinence on the part of the Oireachtas. Nobody knows if the Cabinet will consider such a matter after a prearranged agreement but if it is firmly of the view that the person it has in mind is the correct person to appoint, the obvious course of action is for Cabinet not to concern itself with the three names it gets from the appointments commission.

If Senator McDowell has formed the view, as I believe he has, that this is a case of Parliament exercising undue authority over the Executive or in some way attempting to muzzle Government, I do not accept that. We are dealing with consideration and Government will consider all matters in accordance with the constitutional provisions. To request that it gives consideration to proposals in a certain order does not amount to any undue exercise of authority over its ultimate discretion in accordance with the Constitution.

The section that is proposed to be amended would read:

In advising the President in relation to the appointment of a person to a judicial office the Government shall consider for appointment those persons whose names have been recommended to the Minister or, in the case of section 44 the Government in accordance with the provisions of this Act.

Even without the word "firstly", the legislation still requires the Government to put on the table the recommendations of the judicial appointments commission but it does not require the Government to ignore its own strong preference, on a temporary basis, or to prevent the Minister for Justice from proposing somebody else. If the Minister is proposing somebody else, only to be told he or she must first consider the appointment of other people, it will mean, effectively, that his proposal cannot be lawfully made. That is why I think this is unnecessary.

Although it is in the Judicial Appointments Advisory Board legislation, it is not something that is going to be challenged on the grounds of unconstitutionality, which is something I had in mind when tabling this amendment. A Government Minister is not going to go to the courts to get this out of the Bill but we are enacting a new law. The question is whether we are trespassing on the prerogative of the Executive by telling it the order in which it may consider matters coming to the Cabinet table. My view is that the Oireachtas is not entitled to tell the Government the order in which it disposes of its business, nor is it entitled to lay down laws for Cabinet procedure. Under the Constitution, the Cabinet and the Executive meet and act as a collective authority and they decide their own procedures, much as each House of the Oireachtas decides its procedures. There have been many cases where the Legislature has expressly recognised the right of each House to adopt its own rules and Standing Orders and many statutes make committee procedures conditional on each House of the Oireachtas adopting those Standing Orders. In this case, the proposal is to tell the Government how it should conduct its business at Cabinet meetings, which I find offensive in principle. It is an unnecessary intrusion onto the discretion of the Government as to how it conducts its business. I do not think the section means anything very different without the word in question.

It does not mean that it is an open invitation to Government to wholly disregard the recommendations of the-----

Unfortunately, I must interrupt Senator McDowell and ask him to report progress.

Progress reported, Committee to sit again.