Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

SECTION 48

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

I move amendment No. 95a:

In page 32, lines 7 to 11, to delete all words from and including “was—” in line 7 down to and including line 11 and substitute the following:

“was recommended by the Commission to the Minister in accordance with the provisions of this Act.”.

This is a proposal to amend section 48 by the removal of all the words from the word "was" in line 7 down to and including line 11 and to substitute for them the words "was recommended by the Commission to the Minister in accordance with the provisions of this Act". The effect of this amendment is to remove paragraphs (a) and (b) and the reference to section 44, and in its place simply to say that notice of an appointment to judicial office shall be published in Iris Oifigfiúil and the notice shall, if it be the case, include a statement that the name of the person was recommended by the commission to the Minister in accordance with provisions of this Act. This effectively removes the reference to section 44 and to tidy up the section accordingly.

Since we last debated this legislation, we had quite a tussle over an effort to impose a guillotine this morning on this Bill. Since that battle is now over, there is not much point in me making a reference back to it. I thank, first of all, the Members of this House who opposed the effort to impose a guillotine on this Bill, which effort and the circumstances in which it was done were very undemocratic. I also thank the many Fine Gael Party Seanad Members who have expressed their pleasure to me at the outcome of the vote on the guillotine. I hope that whoever is listening, somewhere away from here, to the outcome of today's proceedings takes on board the fact that nobody or significant group of people in this House wants the guillotine imposed. They are tired of having the business of this House manipulated from a distance. I hope that message has finally got home and is understood clearly. If we had had a guillotine imposed, the Bill would gone forward to Report Stage with section 44 in its present state. The Minister himself does not want that to happen.

It would, because the Minister has not amended it. It would have gone to Report Stage with an unamended section 44 and with this House still unaware of the fine print of the Minister's proposal.

The Minister is shaking his head. If I am getting something wrong------

The Minister should explain that.

It was Senator McDowell who introduced the issue of the Order of Business of the Seanad by stating that he would not make reference to it. Of course, he has the protection of the Chair.

We all have that, including the Minister.

I will not make reference to it because I do not have standing in the Seanad. I am a mere guest of the Seanad.

The Minister is held in very high standing by the Chair and the House.

The Minister is more than a guest.

I do not interfere-----

The Minister is a very welcome guest. We enjoy the long periods he spends in the House. He always gets a good welcome.

Senator McDowell has made his opening remarks.

I was saying that-----

The point I was going to make is that, as is usual in any motion such as that referred to by Senator McDowell, the particulars of which are unknown to me, any amendments in the name of the Minister would be deemed to have been passed. In particular, I refer the Senator to amendments Nos. 94 and 95.

We are dealing with amendment No. 95a to section 48.

In any event, I note that it is reported in today's edition of The Irish Times that, without an expensive commission, any of the bells and whistles entailed in this legislation, setting up a new body or having a lay majority, the Government has already put in place a perfectly sensible non-statutory arrangement whereby it consults with senior members of the Judiciary about the filling of the posts of President of the Circuit Court and President of the District Court. We do not need the measures contained in the Bill. The Government is getting on perfectly well without them. What is the compulsion to spend millions of euro to do what the Government is perfectly capable of doing without those measures? I strongly believe that should be underlined. There is nothing stopping this or any subsequent Government appointing high-quality judges such as those the Government has been appointing in recent times using the means it has adopted and taking advice from wherever it wishes. It does not need to set up a quango which will cost a large sum of money and delay the whole process immensely. The interesting thing is that the process detailed in The Irish Times does not seem to entail a public advertisement of the positions of President of the Circuit Court and President of the District Court, but this Bill will entail such advertisement, which is extraordinary. I do not know why we should have a public advertisement and the involvement of a commission. I know that the Minister does not want the commission to be involved in certain high-level appointments.

I come back to another point I made on the Bill. If the appointment of the President of the District Court merits a different process from the commission and the Government is happy to do that, surely the appointment of an ordinary judge of the Supreme Court can be dealt with in the same way.

I am very glad that we frustrated the attempt of the Government to impose a guillotine because it flew in the face of the policy announced by the Taoiseach, Deputy Varadkar, who stated very clearly that as a matter of policy and under the new politics he would not impose guillotines. The attempt to do so on the Bill flies completely in the face of that statement. It was a narrow squeak because there was an equality of votes in the first vote. I was hoping that the Cathaoirleach would buck the trend and vote with us, but he did not. However, we called a walk-through vote and won it, which was very satisfactory.

I support amendment No. 95a, but I am curious about the fact that the formula of words used by Senator McDowell in the amendment is identical to that in subsection (a). What is the reason for the deletion of subsection (a)? It would be preferable to take out the word "or" at the end of subsection (a) and delete subsection (b). Perhaps Senator McDowell has a reason for that.

It is purely a stylistic way of formulating an amendment. If one just deletes a line which involves paragraph (a), one must then deal with the fact that "(b)" appears in the middle of nowhere. The formulation I used is purely to avoid that.

Of course, I am disbarred from making reference to any aspect of Seanad rules or Standing Orders or the way it does its business, having regard to my experience last week. Although Senators McDowell and Norris may wish to taunt me by way of provocation, I wish to make it clear that I subscribe to the long-hand view and tradition and, indeed, Standing Orders, that these matters are entirely for the Seanad. I am a mere guest. I was told to be here at 3 p.m. and I am here. I will take my leave when instructed to so do by the Chair or Senators.

In the meantime, on amendment No. 95a, I made clear that I intend to address the mechanism set out in the Bill for senior appointments by tabling the necessary amendments on Report Stage. I will need the assent or affirmation of Government in that regard. I will recommend such amendments because I am firmly of the view that section 44 needs to change. I expect that, at least, it will revert to how it was in the Bill as initiated. In 2017, the Government decided to use a new arrangement along the lines set out in the original section 46 - the mechanism referred to by Senator McDowell - of a three-person committee to advise on the appointment of the Chief Justice. It worked well. In fact, I wish to acknowledge on the record of the Seanad that it worked so well that last year the Government decided to use a similar non-statutory three-person advisory committee in respect of the appointment by Government of the President of the Court of Appeal. Senators have accepted that it worked well. The three-person committee comprised the Chief Justice, the chair of the top-level appointments committee and the Attorney General. Against the background and in light of the remarks of Senator McDowell on what he read in today's edition of The Irish Times, a similar-type construct is proposed for the impending appointment of the President of the Circuit Court and the President of the District Court. Of course, I proposed it because this legislation and the new commission are unlikely to be in place by June or July of this year. I accept that as a reality. Even if the legislation was passed tomorrow-----

It would take a year to implement it.

-----it would take some time to implement it. One must have regard to the fact that the Bill is yet to move to Report Stage, on which I would again be keen to listen to the views of Senators, having listened to them for a considerable period. A number of amendments were made on Report Stage in the Dáil. It is against that background that, in deference to realism, I believed that a three-person advisory committee was warranted.

What Senator McDowell did not say but what he knows is that there is no provision in the current JAAB system for a JAAB-type mechanism or arrangement in dealing with the President of the Circuit Court and the District Court. In order not to subscribe to a certain ad hocery, I deemed it appropriate to seek the support of my Government colleague for an advisory committee which will report directly to the Government and which I expect will get down to work in the next few weeks. In so far as references to section 44 are concerned, generally I accept that it needs to change. I will introduce the special advisory committee arrangement to section 44 on Report Stage when I will seek the support of Senators for it. Any consequential drafting matter will be considered in that context. I am not of a mind to leapfrog that proposal in order to accept Senator McDowell's amendment.

The Minister has twice said section 44 needs to be changed and that he intends to bring forward amendments on Report Stage. This has been a lengthy process and I would have thought there was plenty of time to introduce the amendments on this Stage.

It has now gone beyond that and cannot be rectified. I am interested in hearing the Minister's reasons for saying it was not possible to introduce the amendments on this Stage because there was a lot of time to do so and it would have been very helpful if it had been possible to do it.

I am interested in hearing the reply to that question too.

Quite simply, as a matter of order, I am very keen to ensure we complete Committee Stage at a time to be determined by this House. I will then reflect on the Bill as passed in committee. That is not unusual; in fact, it is entirely desirable. I will then bring my proposed amendments to the Government for approval between Committee and Report Stages, which is entirely satisfactory.

That is not a compelling reason.

The other thing is that the Minister has just said the informal non-statutory process which he has put in place is in recognition of the fact that this legislation is not and never was going to be in operation this side of this summer. As I understand it, the process does not involve putting an advertisement in a newspaper to say it is proposed to fill a vacancy and invite people to apply for it, but perhaps I am wrong about that. Perhaps the committee is going to put advertisements in the newspapers, but I do not think it is. I think it will just look at the available members in those courts or whatever else and come up with a process that will not involve putting advertisements in the newspapers and carrying out interviews. It will come up with its own informal report within a matter of weeks. That is precisely the way the system should work.

I am warning the Minister that if every ordinary position in the Supreme Court, the Court of Appeal and the High Court has to be the subject of an advertisement, interviews and the like and if sitting members of the Judiciary have to apply, as well as non-sitting members, it will not be possible to follow the perfectly reasonable approach taken to the presidencies of the Circuit Court and the District Court in the new arrangements for these positions for ordinary members of the courts. I go back to the point which has been the subject of an attempt to amend the Bill, that there are consequential vacancies. If the Government decides to move somebody from the Court of Appeal to the Supreme Court, that will create a vacancy. If that decision is made and it then has to start advertising the vacancy in the Court of Appeal and seeking applications, every consequential appointment process will be very lengthy. If it is a triple or double linked chain where at the end the Government decides to fill the position in the Court of Appeal with someone from the High Court, one appointment to the Supreme Court may trigger a cascading series of obligations to start a new competition every time and receive new short lists from the commission. That is incredibly clumsy, but it would all be avoided if the Minister at least was to accept that when the people in 1994 created the Judicial Appointments Advisory Board, they said they would not apply it to "promotional appointments" in the Judiciary because they did not have to have competitions to do so and that there was no need to do it. The system works perfectly well, as the Government is showing week after week in the appointments it is making. This is all just an expensive waste of time. It is not just a waste of time and a quango, it is also going to disimprove the quality of the Judiciary because it will deter people from making themselves available for promotion.

The interesting characteristic of what I read in The Irish Times today - I believe the report is correct - is that the new body will be charged with the task of seeking out people for promotion, tapping people on the shoulder to ask them if they are willing to become President of the court. It is a different approach. That is perfectly reasonable and I have no objection to the Government's having an advisory body that will tap people on the shoulder to tell them that they have made enough money from their practice as a solicitor or a barrister and suggest they do the State some service, instead of having this utterly different approach where there cannot be any canvassing, communication or signalling in advance to a talented person that he or she should apply. None of that will be permissible under the new system. It will be quite the reverse; the person will be told that if he or she applies, he or she is not supposed to talk about it to anybody who is involved in the process and that he or she is to simply apply on the blind, so to speak. That will make for a really serious disimprovement in the Judiciary, in the usual way of getting high quality people to accept that they should do the people some service in the form of judges. The philosophy of the Bill is deeply misconceived in one respect. From my knowledge of practitioners, solicitors and barristers, there are several of them who have had it as a lifelong ambition to become a judge, but there is a much larger number who understand the life of a judge is an onerous one, that it is socially isolating, that it is less remunerative for many partners in large solicitors’ firms and many senior counsel than their current mode of living. For them, the notion that underlies the philosophy of the Minister for Transport, Tourism and Sport, Deputy Ross, is that this is all gravy, that it is a gravy train, that it is jobs for the boys-----

He would know all about that.

-----that it is about handing out sweets to one's favourites-----

He would know all about that too.

-----that it is about giving things to people who may not deserve them-----

He would know all about that.

-----and that it is about handing out the baubles of political power to people. I know that the Minister may not share that view and I am not suggesting he does, but if he reads the books the Minister, Deputy Ross, or Senator Ross as he then was, wrote about cronyism and the like, it is quite clear-----

The Minister, Deputy Ross, is not here.

The Minister, Deputy Flanagan, is present.

While I am on the subject, the fact that the Minister, Deputy Ross, is not here did not deter him from spending the whole morning communicating with Members of this House whom he thought he might be able to influence to back use of the guillotine.

The Senator is engaging in speculation.

It is not speculation. I have seen the emails from the Minister, Deputy Ross, who contacted Members of this House to ask for their vote.

The Senator's comments are without foundation.

They are not; I have seen the emails.

Clearly, they clearly did not work.

Colleagues should not be making assumptions or comments because we do not have any basis-----

There is plenty of a basis for it.

The Minister, Deputy Flanagan, acknowledges that he is a guest in this House and not badgering individual Members to vote for use of the guillotine or the like. He regards this House as being the master of its own fate. I can assure him, however, that strong pressure was brought to bear on many Members of this House, not by him but by someone at Government level.

I want to make a point that is not directly related to the amendment but which is-----

The Senator should not be allowed to make such a point.

The Minister should behave himself, like a good Laois man.

The Senator should withdraw that remark.

What remark should I withdraw, for God's sake?

The Minister is well behaved any time he comes into the House.

Go away out of that. I do not know on what cloud the Senator is living.

Senator Norris to continue, without interruption, please.

I thank the Acting Chairman.

The Chair does not disagree with the interjection of the Minister.

It is not directly related to the amendment, but it refers to the entire debate. The debate is to be adjourned at 5 p.m. and we will return to it after Easter. Can we request the Bills Office, or whichever body is in charge, to produce an amalgamated set of amendments? It would be very helpful and stop us from having to look around for additional lists of amendments and groupings.

The Senator can raise that issue with the Leader on the Order of Business when it is next taken. Does the Minister have anything further to add?

I have nothing further to add.

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

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Gallagher, Robbie.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • McDowell, Michael.
  • Norris, David.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Hopkins, Maura.
  • Lawless, Billy.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Richmond, Neale.
  • Warfield, Fintan.
Tellers: Tá, Senators Michael McDowell and David Norris; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

Amendments Nos. 95b and 96a are related and may, by agreement, be discussed together.

I am not agreeable to discussing the two amendments together, for reasons I will come back to at a later stage.

Is it the case, then, that we are not going ahead with the grouping? The House has to agree to the grouping.

The two amendments are different.

They are also for different sections. Can we get a ruling on whether they should be in a group?

They would need to be uncoupled and that needs to be agreed by the House. Is that agreed? Agreed.

What is the advantage of uncoupling them?

There is more time to discuss them.

I move amendment No. 95b:

In page 32, between lines 11 and 12, to insert the following:

“(2) Where a notice of appointment to judicial office is published in Iris Oifigiúl in accordance with this section a person who was recommended in the past three years by the Commission for appointment to a judicial office of the same type shall be a person recommended by the Commission for the purposes of subsection (1).”.

This amendment inserts into section 48 a provision which reflects, to some extent, a conversation we had in this House on the last occasion we discussed the Bill. The amendment proposes to insert a subsection (2), "Where a notice of appointment to judicial office is published in Iris Oifigiúl in accordance with this section a person who was recommended in the past three years by the Commission for appointment to a judicial office of the same type shall be a person recommended by the Commission for the purposes of subsection (1)." That means that if somebody is short-listed in the relatively recent past for a position of a particular kind the Government, in publishing a notice in Iris Oifigiúil, could state that the person had been recommended by the commission for that position. The reasoning behind the amendment is that every time a notice in Iris Oifigiúil is published which does not state that a person has been recommended by the commission, people may draw an inference that the person was never recommended by the commission, has not gone through the process or been short-listed and has never been considered by the Government before. That would be unfair to some people because it would suggest the Government had ignored the commission when, in fact, the Government would be remembering that a person had been previously recommended and that their name had been on a shortlist of three persons recommended by the commission for that type of judicial office.

It is arguable that the existing text of section 48(1)(a) allows a Government to state that a person whose name did not appear on the most recent shortlist was a person who had been recommended by the commission to the Minister in accordance with the provisions of this Act, and that this amendment is not strictly necessary but I have the feeling that the Minister does not intend that a person who was previously recommended, and not on the latest shortlist, would qualify as a person who had been recommended by the commission to the Minister. Therefore, what I am attempting to achieve with this amendment is to keep recommendations alive for a period of three years. In the context of a previous discussion on section 47, the Minister indicated that he might consider a time-limited period in which a recommendation would remain alive, even if a person was not on the latest list. This amendment puts that to the Minister. What is wrong with my amendment? What is wrong with accepting it? It seems to be an improvement to the Bill and it should be made.

Before I call the next speaker, I am sure the House will join with me in welcoming a delegation from the European affairs committee of the national assembly of Portugal, led by Ms Regina Bastos, chairperson of the committee. On behalf of colleagues in the Seanad and myself, I extend a very warm welcome to them and good wishes for a very successful visit to Ireland.

Our visitors from Portugal are extremely welcome. They come at an interesting juncture because Senator McDowell and I are going through this legislation with a fine toothcomb. We have spoken for nearly 90 hours on Committee Stage and it is my intention to frustrate this Bill in every possible way I can. I noted on the last occasion we discussed this that the Minister referred to a situation in which a person was recommended and left on the list for years and years. I suggested to Senator McDowell that he include a time limit and I am glad to notice that he has done so. It would be in line with the attitude expressed by the Minister on a previous occasion for him to accept the amendment.

I am concerned that it might be assumed that a person who had been recommended, but whose name was not published, had behaved disgracefully in the meantime and so was banned from being considered. I also think it would be daft. If somebody has gone through the whole rigmarole of applying, preparing statements, making submissions etc., why should he or she be expected to repeat exactly the same material? As it all seems to be redundant, I strongly support Senator McDowell's amendment.

We went through this at some length on the last occasion we discussed it.

I will reflect further on the content of the amendment. I want to mention amendment No. 96a which is a more substantive amendment but I am not going to accept this now.

This is very unsatisfactory in a way. The Minister says we should look at amendment No. 96a and it would effectively cover this matter. Without committing himself to what he is going to do in respect of amendment 96a he just says he wants to reflect on the matter. I concede my function is not to be allowing opportunities for reflection, it is to amend the Bill and to make it good as soon as we can before it goes to Report Stage. That is what I think Committee Stage is all about. I do believe that if the Minister wants to indicate that he is going to accept amendment No. 96a I will happily withdraw this but if he is not going to do that I must persist with this amendment.

We agreed to decouple them and I did say at the time that there was merit because they were linked. However, that was disputed. Now I see that there is a link.

I am, however, a mere servant of the Seanad, an invitee sometimes. If I am not out of order I could mention amendments Nos. 96 and 97 and say to Senator McDowell that I will be disposed to accepting both amendments.

That is a very gracious statement on the part of the Minister.

Amendment No. 96a or 96?

Amendments Nos. 96 and 97.

That is very gracious on the part of the Minister.

Amendments Nos. 96 and 97 are scheduled to be discussed together but we need to dispose of amendment No. 95b first.

Amendment put.
The Committee divided by electronic means.

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

Amendment again put:
The Committee divided: Tá, 7; Níl, 21.

  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Daly, Paul.
  • McDowell, Michael.
  • Mullen, Rónán.
  • Norris, David.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Hopkins, Maura.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Reilly, James.
  • Richmond, Neale.
Tellers: Tá, Senators Michael McDowell and David Norris; Níl, Senators Gabrielle McFadden and David Norris.
Amendment declared lost.

We proceed to amendment No. 96.

What about section 48?

Amendment No. 96 is to section 48.

It is. Is the Senator not aware that the Cathaoirleach is always right in these matters?

That is the point I was making earlier, that we should have an amalgamated list of amendments.

I am following what is in front of me. Amendment Nos. 96 and 97 are related and may be discussed together, by agreement. Is that agreed?

They appear to be related.

Is Senator Norris arguing that they are not related?

No, I just do not like the grouping of amendments.

The Senator is being objectionable at this point.

Yes, I am objecting to it.

I ask the Senator to reflect on the matter. These are amendments on which we will reach agreement, in spite of him.

I withdraw my objection.

I thank the Minister. Amendment Nos. 96 and 97 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Government amendment No. 96:
In page 32, to delete lines 12 to 17.
Amendment agreed to.
Question proposed: "That section 48, as amended, stand part of the Bill."

My colleague and friend Senator McDowell praised the Government and pointed to the positive aspects of the situation where the Government had appointed senior judges. There is an article on the matter today in The Irish Times. I have a certain degree of anxiety because it seems that the Minister is anticipating the passage of the Bill - he is nodding - and I wonder what is the legislative basis for this procedure. It seems that there is no legislative basis for it. If there is not, it calls into question the legality of the appointment of the judges.

I will not even enter into a debate on that issue, but I would welcome a discussion with Senator McDowell on the point. I would not have anticipated receiving a welcome from a former Attorney General, Tánaiste and Minister for Justice-----

He is also a senior counsel.

I ask the Senator to reflect on the matter.

I have concerns because it seems that in these provisions the Minister is anticipating the passage of the Bill.

Of course, I am. Everybody in this House is anticipating the passage of the Bill, bar Senator McDowell and the Senator.

I am not anticipating------

I said bar Senators McDowell and Norris.

I do not think so. To be quite honest, there are a few sleepers on the Fine Gael side of the House.

The Senator tried to flush them out.

We have flushed some of them out. I will leave it at that. As the Minister does not want to explain the situation, I will certainly be happy to listen to what Senator McDowell has to say, if he can defend it, in particular, about the legal position and whether there could be a challenge to a judge appointed under this type of ad hoc arrangement.

When this section was presented to this House it was part of the dog's dinner that the Attorney General referred to because it was proposed in the original form in which it came to this House that where somebody who was appointed to judicial office had not been recommended by the commission, the notice of appointment would also include in Iris Oifigiúil a reasoned explanation of the decision of the Government not to nominate a candidate recommended by the commission. The Government was to justify and write a little essay in Iris Oifigiúil saying why it had not chosen from the shortlist put up by the commission. That would have been grotesque because-----

Very damaging for whoever would be in the job.

We then have to look at the absolutely ridiculous subsection (3) that was appended to it in its original form which says: "In publishing the reasoned written decision in accordance with subsection (2), the persons recommended by the Commission shall not be identified." We had somebody who was not recommended being appointed, the Government was to put a reasoned explanation as to why the people who were recommended were not appointed and then it had to do that without identifying any of them.

This raises a question which I really want to tease out with the Minister. What degree of publicity will there be for people who have been recommended? Is it to be the case that the shortlist is never to be made public and it is entirely a secret between the commission and the Cabinet? If that is to be the case, how does that sit with what the Minister has repeatedly said in this House, namely, that he would expect people who were not short-listed to be told they were not short-listed and people who were short-listed to be told that they had been short-listed? Are they sworn to secrecy? Is that the idea? If I, for instance, as a barrister, had applied to the commission and I was not short-listed, the Minister says that in accordance with best practice I will be told that. Can I tell my friends that I did not make the shortlist? Likewise, if I am short-listed, am I somehow sworn to secrecy? Is it to be the case that I cannot tell people that I am now on the shortlist that will go to Cabinet? I want to have clarity as to whether the fact that one is being short-listed is to be a complete secret or if one is entitled to know about it but is sworn to secrecy about it in some duty of confidentiality, or if one is perfectly free to go on television and announce that one was short-listed three times for appointment to the High Court or whatever it is and say that one is astonished that one has not been appointed after all these years. Which is it? Are people to be in a position to tell the public how many times they have been short-listed and say they never get chosen but they are on the shortlist? Are people supposed to keep their mouths shut about that for some reason?

If one had any sense one would.

One might or one might not.

I agree with the Senator.

One might think one has been short-listed four times now and been constantly turned down by the Government.

Always a bridesmaid never a bride.

Exactly. One might ask at some stage why one has been on the shortlist on a number of occasions and even though other people are added to the shortlist, one is always discriminated against by the Government or the Government has it in for one for some reason. A thought process of that kind might take place. The Minister has not accepted amendments to this effect so I really want to know if the Minister is advancing this Bill on the basis that unsuccessful candidates for short-listing will be told that is what happened to them, that successful candidates for short-listing will be told that is what happened to them or is it implicit in this Bill? The original architecture and philosophy behind the Bill is that none of this is disclosed to candidates, it is a secret process, Ministers are not to mention the people who they have not accepted and it is to be kept secret from the public. I cannot follow what the underlying philosophy in this Bill is. I can see very good reasons, if we have a system of this kind, for saying everybody must treat the shortlist in total confidence and, therefore, one of the things we will not do is tell people whether they were on it or off it because that will undermine that confidence. If I tell a good friend that I was short-listed and he tells Senator Norris who immediately tells the newspapers that I have been short-listed-----

I would never do such a thing.

In his normal discretion and absolute-----

-----zipped mouth he makes-----

-----an exception on this occasion-----

-----and tells a newspaper man that I was short-listed. Is that a secret? Has a confidence been broken? I would like some clarity on this. For instance, would it be open to a Minister to say that Senator Norris has been short-listed three times but we have no intention of appointing him? Would that be legitimate? There seems to be a mixed message coming from this legislation and I would like to have the Minister explain clearly if he is in favour of candidates being told whether they were not short-listed or whether they were short-listed. Is that confidential information? If they find out that somebody is or is not short-listed, are the media free to publish that information?

Through the Chair, I ask Senator McDowell, as the Minister has suggested, for his view on the question I raised about the legal standing of judges appointed under this recent decision and whether or not they could be challenged?

I have made it clear on many occasions in this debate that the Government is entitled to seek advice from whatever source it likes. It could consult with the Attorney General and the Minister for Justice and Equality alone, or it could ask them to ask senior judges for their opinions on who should or should not be appointed to any particular office. The Attorney General could say to the President of the High Court or somebody that his or her court needs strengthening and ask him or her to come up with some names of people who they should try to get to accept appointment to the court because they do not seem to be applying in sufficient numbers. There is nothing wrong with approaching people and telling them they should consider serving their country as a judge and that they should consider that they have had a very good opportunity to earn a good living as a lawyer and now they might consider doing some public service. Of course, somebody who is at the receiving end of such an approach, from my experience, would consider that such an approach would not be made if he or she was then just thanked for volunteering and told there is no interest in his or her application. That process is totally unreal. If a feeler is put out to people and they are asked to consider being a judge, by whatever channel, be it the Attorney General, the Minister or a senior judge, and if people are given the signal that the Government would like to appoint them or thinks they should apply for appointment, it seems to me to be completely ridiculous that they should then put in their application and find that they were misunderstanding the message completely and there really was very little interest in appointing them in the first place.

From my experience as Attorney General and Minister for Justice and Equality, there were occasions when people were asked to make themselves available as judges, both through and not through the JAAB. There has to be some credibility to such an invitation.

Were the people appointed?

Yes. There has to be some credibility if such an approach is made to somebody. He or she needs to know that he or she is not wasting his or her time and that his or her hopes are not being raised and dashed. That is why I have a real concern. The amendment is quite narrow in its focus. If somebody is to be shortlisted, either it is a secret between the commission and the Cabinet or it is not. If it is not, are the media, if they find out about it, free to publish the information by whatever means? If a Minister inadvertently says, "By the way, David Norris was shortlisted three times but we have not appointed him," is he to read it on the front page of a newspaper?

Why not? Journalists would certainly publish it.

A journalist would certainly publish it; that is the point. Is this confidential information or not? I would like the Minister to be clearer on that point. He blithely says best practise is to say who was shortlisted and who was not. From my experience as a Minister, I know that where people were shortlisted for non-judicial jobs, they were told that they were on the shortlist and then if the Minister was making the appointment personally, usually he had the courtesy to tell each of the candidates who knew that they were on the shortlist that they were not getting the job, that X was getting it instead. That is what happens. In this case I am mystified about whether we are really drawing a veil of secrecy over the shortlist. I ask the Minister to state clearly where he stands on the issue.

I am somewhat perturbed by all of this, with all of these secrets flying around the place. If ever there was a gaping hole in a Bill, it is with these secrets. We all know that nobody keeps secrets. Senator McDowell has alluded to telling a friend that he was shortlisted and everybody knows that that friend will tell two more friends who, in turn, will tell two more. Everybody says it is in confidence and that it should not be told to anybody else. That is absolute nonsense. Secrets are not kept. There are leaks from the Cabinet and committees. There are leaks from everything under the sun. There is one gaping feature of this section that sticks out for me and it brings me back to something we discussed sometime last year. Having done all of the work in advertising a position, shortlisting the candidates, interviewing, finalising three names and presenting them to the Government, the Government may decide it does not like any of the names and will appoint its own person. It is provided for in the legislation; it can do it. What does the Bill do? How have we in any way met the needs of those who want to see an open and transparent judicial appointments system in place? The Bill will not do it because a Government could decide it did not like the method used. For some time there has been an allegation of cronyism in the appointment of judges. If we have a Government with a sufficiently large majority-----

The Minister, Deputy Ross, is an expert on cronyism.

A Government with a sufficiently large majority could decide, "To hell with this for a system. We want to appoint our pal Joe Bloggs." There is nothing in the Bill to stop that from happening. If it comes to the essay about which Senator McDowell spoke-----

We amended the section to take out the essay.

Thank God for that. I am sure creative writers could be found to write essays that would justify anything. We are back to where we were. We go to all of the expense of having a commission in place and the difficulty of advertising positions and come up with and present the names of three individuals, assuming we can get three to go for the post. If I was working as a barrister or a solicitor, I would not go near this because of the risk of having my reputation destroyed by a loose tongue somewhere. I would not touch it with a 40 ft. pole. On the other hand, if I was the Taoiseach or the Minister for Justice and Equality, I might give the two fingers and say, "To hell with it. I will appoint who I want. I am not going to be dictated to by some commission." It fails in what we are attempting to do. We should be talking about holding a referendum to change the way in which judges are appointed, not a Bill with no teeth.

I listened with great interest to what my colleague and friend Senator McDowell who is a very distinguished lawyer had to say about the legality of this process. I am still not 100% convinced because the article I hurriedly read this morning stated there would be a commission. I wonder what its statutory basis is because, as far as I know, no provision is being made for it in law.

I think it is being called a committee.

It does not matter. What statutory basis does it have to make recommendations?

Through the Chair, please.

What else am I talking through?

I thought the Senator was looking over and addressing Senator McDowell directly.

I can look anywhere I like. A cat can look at a king. I can look at Senator McDowell with great affection-----

-----and admiration.

The Senator has been displaying some of it in recent times.

The Senator was not looking at me with affection.

No. The Senator is too fat.

I ask the Senator to make his point.

There are not too many healthy shapes around here.

I have made the point

The tedium is-----

I apologise to the Minister. I return to my point. There seems to be no statutory basis for the committee, commission or whatever it is the Minister has established.

Does the Minister wish to-----

Not really. The publication arrangements are set out clearly in section 48, as amended.

On the matter of confidentiality, I again remind Senators of sections 27 and 28 which deal with the issue of confidential information. We have amended the Bill to inform candidates when they have been shortlisted, which is desirable. I detect a welcome on the part of Senators for this, as a courtesy and in fairness. However, the hyperbole on the part of some Senators cannot be resisted. I do not believe any unsuccessful applicant, having been informed on a confidential basis by the commission of his or her shortlisting and lack of success, will then appear on "Prime Time". It is funny that Senator McDowell makes this point - I agree with Senator Norris - given that only recently on "Prime Time" he spoke about the concept of camera sluts. I do not believe any judicial candidate would find himself or herself in the category of a camera slut, where, on receipt of a registered letter or a communication in accordance with the rules and regulations, he or she would immediately ring RTÉ and book a slot to tell the world he or she had been unsuccessful on a number of occasions.

On Second Stage Senator McDowell indicated the need for a significant element of confidentiality in order to preserve the process and ensure people would find it a reasonably attractive proposition to apply in the first instance and not have their names bandied about in every newspaper or on prime time television in the manner in which he now believes to be the case.

It is not acceptable to have one's cake and eat it too. I remind Senators of sections 27 and 28, with section 48, as amended, which is under discussion.

It is interesting and somewhat amusing that the Minister has repeated with great relish the phrase "camera slut", yet the other day he objected to me using the phrase "nutjob". I do not see much of a difference. "Nutjob" is a perfectly reasonable phrase to use.

I am sure they are in different categories.

To use the Minister's own words, he is having his cake and eating it too.

On the one hand, the Minister is being very precious about the use of language, but, on the other, he flies out with the extravagant phrases Senator McDowell ill-advisedly and so uncharacteristically used on television.

The phrases are all a bit gendered.

I certainly hope I am gendered. I do not want to be neutered.

Contrary to what was stated in the newspapers, I was not called a nutjob.

I never called the Minister a nutjob.

That is contrary to what appeared in the media so loved by Senator McDowell in this context.

That does not have much to do with section 48.

Section 48(2) states: "In the event that a person appointed to judicial office has not been recommended by the Commission under this Act, the notice of that appointment will be published in Iris Oifigiúil". Will that entire piece be deleted?

Yes, subsections (2) and (3) will be gone.

There would still be the possibility of a judge being appointed who was not recommended. I would love to know the circumstances in which that could happen.

To inform the Senator, it has happened on a number of occasions. Very eminent persons have been appointed without the involvement of the Judicial Appointments Advisory Board. As a matter of constitutional law, the Minister has emphasised on a number of occasions that it is not possible to pass a law stipulating that the only people who can be appointed are those recommended by the commission. From a constitutional perspective, that cannot happen. As I have pointed out on a number of occasions, every effort is being made in this legislation to make it very difficult to do so. As canvassing is disqualified, somebody cannot seek judicial appointment under the terms of the Bill, as it stands. The information on who is or is not on the shortlist is now, as the Minister concedes, confidential. I am not suggesting somebody will go on "Prime Time". By the way, my excursus on "The Late Late Show" was light-hearted; it was not on "Prime Time".

It was on an entertainment, rather than, a political programme.

Yes, that is correct. I am not suggesting somebody is likely to say on "Prime Time" that he or she has been turned down by the Government. I cannot imagine a lawyer in whose interests it would be to do that.

Turned down by the commission.

Yes, I apologise. The person would have been turned down by the commission. It would be of huge interest to the media to find out who had been unsuccessful in the process. I have no doubt that it would equate to the crown jewels for some journalists to find out that somebody had been unsuccessful on a number of occasions and that the Government had turned him or her down, especially if the media were sympathetic to the person concerned. They would argue that a worthy person seemed to be turned down constantly by a perverse Government. That is the kind of journalism one could well expect to see. Is it the case that this information on the shortlist is impressed with the words "Cabinet confidentiality" when it gets to the Government and that no Minister can say after a Cabinet meeting to anybody that A was chosen over B or C? Is that to be the case?

My understanding is it would be fully preserved in the context of the new legislation. Sections 27 and 28 deal with communications from the commission to the interested parties, not from the Government which would not be communicating the information.

That is the worrying aspect to which I keep coming back. If it is the case that a Minister could tell his or her buddies somewhere that Senators Norris and McDowell had been on a shortlist three times and that they had been turned down every time and that this appeared in a newspaper, would it be an encouraging process for people like Senators Norris and McDowell to have in mind if they were to apply to become a judge?

No. A Minister would be bound by Cabinet confidentiality. I do not believe the Senator can adduce any evidence where it might have happened to substantiate what would be an unacceptable position if Ministers were in a position to speak freely about a process that had taken place in accordance with due process at the Cabinet. I do not envisage that it would happen and neither do I envisage that any aspect of the Bill would encroach on the time-honoured doctrine of Cabinet confidentiality.

Although I will be voting with Senator McDowell if there is a division, I am inclined to accept the Minister's statement. If the Attorney General, for example, is precluded, because of the possibility of a criminal prosecution, from making germane information available to the Cabinet, it is unlikely that people would breach the doctrine of Cabinet confidentiality.

One could well imagine a situation where a coalition Government was in office-----

It would have to engage the services of people like the Minister, Deputy Shane Ross.

The more liberal party in the coalition might agitate for candidate A, while the more conservative party might argue that candidate A would not be approved and would seek to put candidate B in place. The expectation is that the process will always remain secret and that there will be no discussion in the coalition parties afterwards as to why a reactionary conservative judge was appointed to the Supreme Court. People might well say they did their level best to get Senator David Norris into it instead but that they were voted down, for example. That kind of information is likely to come out and it is naïve to think it will not. For example, would a struggle over who should be in the Supreme Court be kept entirely secret? It is very optimistic to think it would be and that Ministers would keep shtum, not merely while they were Ministers but afterwards as to why the Supreme Court had become more conservative while they were in government, against their wishes. It is quite possible that such things will happen. It is not a matter of imagining strange scenarios. People will be discouraged from applying because it will be known that they are "also rans" in this process. That is why I have a big problem with the shortlist of three people.

I will put the question on the section.

Will we do that or just report progress? I do not mind.

I apologise. It is 5 p.m.

I must ask the Senator to report progress. I was just not conscious of the clock.

Progress reported; Committee to sit again.