Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

SECTION 46
Debate resumed on amendment No. 92b:
In page 31, lines 28 and 29, to delete “or, in the case of section 44 the Government in accordance with the provisions of this Act”.
- (Senator Michael McDowell)

The Minister is welcome.

I have said all I want to say on this amendment.

Does the Minister wish to say anything?

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

  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Daly, Paul.
  • McDowell, Michael.
  • Norris, David.
  • Swanick, Keith.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Conway-Walsh, Rose.
  • Devine, Máire.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Richmond, Neale.
Tellers: Tá, Senators Ivana Bacik and Michael McDowell; Níl, Senators Gabrielle McFadden and James Reilly.
Amendment declared lost.

A correction had to be made, as Senator Norris pressed two buttons.

I move amendment No. 93:

In page 31, between lines 29 and 30, to insert the following:

“(2) In considering the persons whose names have been recommended by the Commission, the Government shall consider those persons in the order of the Commission’s preference and having regard to the objective that the membership of the judiciary should comprise equal numbers of men and women.”.

We have already debated this amendment. It is one of a group of amendments that I indicated I would withdraw at this point with a view to resubmitting them on Report Stage. It relates to the issue of gender balance in the Judiciary. We had a good exchange with the Minister on this matter, so I am happy to withdraw the amendment now and reserve the right to table it and the other amendments again on Report Stage.

Does that mean that amendments Nos. 93a, 93b and 93c fall as a consequence?

No. We will move on now.

Amendment, by leave, withdrawn.
Question proposed: "That section 46 stand part of the Bill."

What I really want to discuss is the impact of section 44 on section 46. I am actually speaking about section 46.

Section 44 has been dealt with.

That is right. We are on section 46.

Will you stop telling the Leas-Chathaoirleach what to do?

Through the Chair, please.

Through the Chair, Minister.

I was talking to the Chair.

We are on section 46. I have asked whether it stands part of the Bill, but I gather that the Senator opposes that. Senator Bacik also wishes to speak on it.

On 26 February, the Minister said of section 44-----

That has been dealt with.

-----on Committee Stage:

Senators will be aware that the existing section 44 is not in keeping with my particular position on the matter. I will table amendments on Report Stage that will, if agreed, revert the direction of section 44 towards the specific procedure that we mentioned on numerous occasions in the House that will be applicable for the selection of what we have been describing as the three senior judicial posts where recommendations or the engagement on the part of the commission will neither be required or applicable.

On the same date, he stated:

Senator McDowell is being entirely reasonable when he says he would like to see the disposition of the Government as far as amendments are concerned at the earliest opportunity. I acknowledge this and will be happy to accommodate him.

This is April 2019-----

Forgive me, as this may be me acting off side, but how is this relevant to section 46?

Due to its impact on section 46.

The Chair is never off side.

I am not saying I am infallible. I just do not see the point. The Senator will bring me to it now.

I will. It has been 43 days since the Minister agreed that it was entirely reasonable that the disposition of the Government to amendments be known at the earliest opportunity, yet we still have not seen what the amendments to section 44 will be. Therefore, amendment No. 92b was meant to address the current section 44. As the Minister is aware, section 44 in its current form would involve 16 members of the commission appointing the Chief Justice, the President of the Court of Appeal, the President of the High Court and ordinary members of the Supreme Court and Court of Appeal. The process of appointment by this Government of all of the aforementioned positions in the past two years or so has included the president of an appellate court, the Attorney General and the chair of the Top Level Appointments Committee, TLAC. This process was used to appoint the current Chief Justice, new ordinary members of the Supreme Court, and the President and new ordinary members of the Court of Appeal.

For most litigants, the Court of Appeal will be their last opportunity to have their cases heard, with only cases of exceptional public importance going to the Supreme Court. The High Court, Circuit Court and District Court are bound by the decisions of their superior courts. This includes the Court of Appeal with respect to the Supreme Court. Decisions made by the latter two courts are of fundamental importance to the rule of law and their officeholders bear significant responsibility for how the law is applied and interpreted.

The Government in its wisdom deemed as a bare minimum that it was appropriate for the Chief Justice, President of the Court of Appeal and President of the High Court, all of whom are members of the Council of State, to be appointed by a separate senior judicial appointments committee. This proposal was voted out of the Bill in the Dáil. The Government proposes that the Chief Justice, Attorney General and chair of the committee will recommend appointments to these offices rather than the 16-member judicial commission, which is how the process will operate if the section is enacted in the Dáil version. If the Government accepts the principle that the appointment process for the Chief Justice, President of the Court of Appeal and President of the High Court requires a more finessed consideration than the 16-member commission process, wherein all of these officeholders are either members or ex officio members of the Supreme Court, it is difficult to see why it would object to ordinary members of these courts also forming part of the separate senior judicial appointments committee process. As matters stand, we do not know what the Government's position is regarding section 44, which bears directly on the operation of section 46.

My Labour Party colleagues and I had tabled two amendments to section 46. We withdrew amendment No. 93, which related to the issue of seeking to ensure an adequate gender balance on the Judiciary. We called a vote on amendment No. 92, which sought to insert the phrase "in the order of the Commission's preference". Not only would regard be had to the objective that membership of the Judiciary should comprise equal numbers of men and women, but amendment No. 93 also called for the names recommended by the commission to be considered by the Government "in the order of the Commission's preference". This concept was crucial and should have been included in the text of section 46. Without this additional element, the section is lacking. This point has been made in numerous critiques of the Judicial Appointments Advisory Board, JAAB, namely, that the JAAB should be empowered or required to rank its recommendations in order of preference, as this would significantly improve and reform the system of judicial appointments. Without having that concept or principle in section 46, we see a section that is a missed opportunity for the reform it could have represented.

We called a vote on amendment No. 92.

We have reserved the right in amendment No. 93 to resubmit it with a different wording, but with the same principles, on Report Stage. We will have another opportunity to debate that then.

I would ask the Minister in the interim to examine the text of section 46 again to see whether it could be amended to incorporate either, and preferably both, of those principles - first, that the names the commission recommends should be considered by the Government in the order of preference recommended and, second, that there should be a specific reference to the need to ensure gender balance in the Judiciary.

As it currently is, it is a flawed provision. As I have said, it is a missed opportunity for reform.

We are now discussing section 46 and a number of amendments that have been proposed to it. I am opposed to adopting the section for all of the reasons that have been rehearsed in the debate on those amendments, including Senator Bacik's objection and the matters referred to just now by Senator Norris.

First, it should be remembered that an amendment was tabled to allow three members of the commission to intimate dissent so that the Government should have some clear view that these decisions are not all unanimous when that is not the case, and that was rejected.

Then there was a further amendment dealing with the situation that arose - we discussed this on the last occasion - that if a person is recommended for a vacancy, say, in the Court of Appeal, he or she should remain to be regarded as a person who the Government may have regard to in making an appointment even if a subsequent list comes in with three other names on it.

We are now being asked to effectively make provision for section 44 although, as Senator Norris said, it is a long time since the Government was called upon to indicate exactly what it was proposing in respect of section 44.

We have not had a clear picture. It would have been so easy for the Government to table its amendment to section 44 as part of the process. Then we could have had a clear view, when considering section 46, to understand what we were effectively agreeing by reference in the context of the Government's proposal to section 44, but none of that has been done. I do not want to be disorderly or to go back to section 44, but I want to emphasise the importance of the another point.

I do not accept for one minute that the positions of Chief Justice, President of the High Court and President of the Court of Appeal are radically different from ordinary members of those courts. The Chief Justice is primus inter pares but he or she is not somebody whose function under the Constitution is radically different. The court operates by a majority and the opinion of a judge of the Supreme Court is just as weighty if he or she is an ordinary member of the court as if he or she is the president of that court. The Minister's policy of segregating these three particular appointments, the presidents of the courts, and stating they are radically different is mistaken. They are not radically different and they are of equal importance. Two ordinary members of the Supreme Court can outvote the opinion of the Chief Justice. I do not see that there is a basis for making a wholly different process for three particular appointments when the functional aspect of being a member of Supreme Court is not radically different whether one is Chief Justice or an ordinary member of the court.

Second, judges make law in some respects. The Constitution means what individual judges decide it to mean. As Senator Norris stated, the great majority of people will not get beyond the Court of Appeal. The Court of Appeal, when that amendment was made providing for it recently by the people, is, in effect, the Supreme Court for most people. It is the point at which law will be decided, except in exceptional cases of public importance, such as Article 26 references. The ordinary membership of those courts is of considerable importance because judges make law. They interpret the Constitution, make common law-type decisions, and apply European precepts to Irish law. Although they are separate from the Legislature, they are, in fact, law makers of a different type.

I want to make this final point on this section. If it is considered correct that the top three presidencies - if I may use that phrase about them - should be determined by a separate process, it underlines the need to reconsider the concept of ordinary members of those courts being treated radically differently. I have mentioned here on occasion the fact that any member of the High Court is ex officio capable of functioning as a member of the Court of Appeal if asked to do so, which happens, any member the Court of Appeal or the High Court is ex officio capable of functioning as a member of the Supreme Court, and that happens from time to time. I believe that if one looks at these judicial positions from a functional point of view, they are more or less similar. A High Court judge sitting on his or her own makes the law. The Court of Appeal determines whether he or she was correct in making the law and, in so doing, it makes the law. It seems to me, therefore, that the effort to confine a special process to the three presidencies under section 44 is mistaken and should not be proceeded with. The corollary of that thought is that judges who are in those positions and capable of carrying out those functions should not be required to go through the commission process and apply for a promotion, etc. I have made that point on a number of other occasions. I re-emphasise that section 46, which adopts by reference the terms of section 44, which is fluid at this stage because we have not seen the Government's proposal but the Minister has given us a fairly good indication that he intends to confine it to the three presidencies, it is objectionable on that ground. I am opposed to it. It should not form part of the Bill in its present form.

The amendments which were proposed would have considerably improved this section and they have been rejected. In those circumstances, I must indicate opposition to the section.

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

Does the Minister wish to respond?

I wish to make three points, one of which is for the benefit of Senator Norris. If he had failed to return-----

-----I would be reduced to two points. The reason I have not brought forward the amendments is due to the tedium of the current debate. I have been in the Seanad for almost 100 hours on this Stage.

My proposal, as mentioned on numerous occasions, was that I would return to the Government with the views of the Seanad and that that would inform a number of amendments on Report Stage, along with a number of amendments which are necessary in order to ensure consistency across the Bill. I regret that Senator McDowell stated that he is not minded to support a proposal that would involve a committee of three people for the appointment of the three presidents. I disagree with him when he states that the three presidents are no more distinguished in terms of the operation of their obligations and duties than are other judges. I bow to his experience, but I beg to differ in that regard. If the Seanad is not minded to support the proposal I intended to bring on Report Stage, I may not bring it at all. That is another reason I think it appropriate to wait until Committee Stage has been completed. Of course, I do not sense any disposition on the part of Senator Norris or others to facilitate the progress of the Bill-----

-----and hence there is an incapacity on my part to accede to his request that the amendments be brought forward before the debate takes on any further complexity.

I will not delay the House on the matter of my support for section 46. Obviously, it is of great import that, in advising the President in regard to an appointment, the Government should firstly consider the names recommended to the Minister. That has always been the position of the Government. If Senators were minded to go back to the general scheme of the Bill and the heads that were published at the outset or, indeed, to look at section 16 of the Courts and Court Officers Act 1995, they would see consistency there. Of course, although the Government shall first consider the appointment, that does not necessarily mean that this in any way impacts upon the constitutional right or requirement of the Government to ultimately make that decision. We must ensure in this legislation that the Government is not constrained to only accepting advice that might be proffered by the commission. I strongly advocate the retention of section 46. The Seanad has voted on a number of amendments and I have a certain amount of sympathy for some, but they are covered in other aspects of the legislation. I respectfully suggest that the question be put.

What the Minister just stated is of interest because he suggested that he is half minded not to amend section 46-----

I need the support of the Seanad.

-----because he is overcome by the tedium of this debate, which is a novel reason for abandoning a policy. It occurs to me that the fundamental philosophical mistake being made is that the promotional appointments - if I may use that phrase which I do not like very much - to the Court of Appeal and the Supreme Court are, in my view, matters on which the Government should exercise its discretion because the Government as the Executive is the institution in which that discretion is vested by the Constitution.

I again make a point which, in this context, bears repetition, namely, that under the criteria by reference to which the commission is supposed to make its decisions on recommendation which are set out in the Act and will be set out in greater detail in the statements of the procedures committee, the one thing the commission is not allowed to consider is probably the one thing with which the Government will be most concerned. When the Government receives the three names, it will ask, "Who are these three people? What kind of Supreme Court will we have if we accept one or more of them as recommended appointees?" The Government comes to a view as to whether the candidate in question is liberal or very conservative. That is one thing which the commission is prohibited from taking into account. Such an assessment might involve looking at the judgment record of a particular judge to see whether he or she was reactionary or progressive, if one wishes to use those terms, which I do not particularly like either.

Those are the kinds of things that the Executive will ask. Taking the example of a very simple issue of huge significance in the day-to-day lives of ordinary Irish people who pay insurance premiums, it would ask, "Does this judge take a liberal and generous approach to the awarding of damages? Has he or she shown that tendency as a judge of the High Court or Court of Appeal? Do we want that approach reflected in the jurisprudence of the Court of Appeal or Supreme Court?"

There are other criteria but these are the very things that the commission is not entitled to do. The commission is not entitled to ask Mr. Justice So-and-So why he consistently takes such a generous or mean approach to the awarding of damages. It is not entitled to ask a judge why he or she takes a particular line on this or that issue. Those are the kinds of questions which the commission cannot ask a candidate but these are precisely the kinds of things that would influence the Government in reaching a decision. The Government would be interested to know whether someone has been vocally opposed to various referenda being passed, for example, in deciding whether it wants to appoint that person to the Supreme Court. It is perfectly reasonable for the Government to look at the Supreme Court and decide that it wants to give it a more liberal complexion or that it wants to make it more conservative. Those are perfectly reasonable criteria for the Government to have in mind when making an appointment. What I find really objectionable about this legislation is that a group of people who are not entitled to consider these issues and who are expressly prohibited from doing so will make a selection of three names and the Government is then supposed to consider those three people first when different criteria inform Government decisions to appoint people to our courts. What is objectionable about section 44 is that it is so confined. The Court of Appeal and the Supreme Court are hugely important courts. Their membership is a matter of enormous importance. The same criteria on liberalism versus conservatism or activism versus-----

I do not think tedium is the word.

It is passivism, which is unknown in this House.

These are the criteria that the Government will apply but they are the criteria which the commission is expressly prohibited from even going near. The commission cannot ask Ms Justice So-and-So her views on social issues. It cannot ask her that question. It would be acting improperly were it to decide to put her on the list because she is a liberal. That would be improper. That is what is wrong with this whole idea of having promotional appointments dealt with in the way this Bill provides. Even if the Minister were, in exasperation, to make no amendments to section 44 and leave it as a matter for the commission, I would be equally opposed to that. I am absolutely clear in my mind that the proper constitutional thing to do is to leave the Government free to make promotional decisions among the Judiciary to the Court of Appeal and the Supreme Court without the input of people whose procedures expressly exclude them from considering matters which the Executive is bound to and does consider in making appointments. I am opposed to the amendment on that account.

I wish to make one observation. It seems to me that Senator McDowell is making a very valid point. It is important that the Government would know the complexion of the mind of the judge that it is appointing because this is an extension of policy. The Government is charged with making policy and one of the ways in which it does that is by appointing people who will support the particular political complexion the Government wishes to see in the Supreme Court.

When Senator Norris says political and policy, I take it he is not talking about party politics but about outlook and so on.

Yes. I am talking about Government policy.

Question put:
The Committee divided: Tá, 21; Níl, 8.

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Conway-Walsh, Rose.
  • Devine, Máire.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Richmond, Neale.
  • Warfield, Fintan.

Níl

  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Gallagher, Robbie.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • McDowell, Michael.
  • Norris, David.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and James Reilly; Níl, Senators Michael McDowell and David Norris.
Question declared carried.
NEW SECTIONS

Amendments Nos. 93a, 93b and 93c are related and will be discussed together by agreement. Is that agreed?

It is not agreed.

They will be dealt with individually.

I move amendment No. 93a:

In page 31, between lines 29 and 30, to insert the following:

"47. (1) Nothing in this Act shall be construed as requiring a member of the Commission who is eligible for appointment to any judicial office to make an application to the Commission to be considered for appointment to that judicial office.

(2) A person to whom subsection (1) applies may notify the secretary of the Government of his or her wish to be considered by the Government for appointment to any vacancy in any judicial office.".

This amendment is in my name and the names of Senators Craughwell and Boyhan. It is designed to replace much of what is in section 47 for the following reason.

On a point of order, the monitor is showing that the three amendments are joined. They are not joined. They are separate.

I thank Senator Norris. That is a technicality that will be dealt with.

Section 47(1) states, "The name of a person may be the subject of a recommendation to the Minister by the Commission notwithstanding that the person is a member of the Commission, but this is without prejudice to the following provisions of this section." Section 47(2) states, "Subsection (3) has effect where a person, who is a member of the Commission, has made an application under section 39 as respects a particular judicial office and a reference, in either subsection, to the particular function is a reference to the function of the Commission of selecting and recommending persons in relation to that judicial office. Then section 47(3), which is the kernel of the section as proposed by the Minister, states, "The person shall take no part in the performance by the Commission of the particular function and, accordingly, shall neither attend any meeting of it held for the purpose of the performance of the particular function nor cast any vote in relation to any decision falling to be made by it for that purpose."

In passing, regardless of the amendment that I am now moving, it occurs to me that section 47(3) is, in any event, a cast too wide. It prohibits a person who has made an application from attending any meeting of the commission held for the purpose of considering the particular appointment, but he or she could be doing more than one thing at a meeting. It is something that the Minister might consider in any event.

The underlying principle of my amendment is that no member of the commission should be required to submit an application to the commission in any circumstance whatsoever. There is no reason an ex officio person who is on it - not the Chief Justice who would not apply but the President of the High Court and the President of the Court of Appeal - should be required to apply to his or her colleagues on the commission and be included or excluded by them from a shortlist.

The reasons that we advance for it are as follows: first, on the process, let us imagine if the President of the High Court sought a-----

I am sorry, Senator McDowell. As per the order of the House, the House is now due to suspend until 3 p.m.

Sitting suspended at 2 p.m. and resumed at 3.05 p.m.