Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

SECTION 48

Question again proposed: "That section 48, as amended, stand part of the Bill."

Senator Michael McDowell

Am I correct in stating we have agreed that subsections (2) and (3) of section 48 should be deleted? This effectively means that the section replicates a provision in the 2002 legislation in stating that, where a person has been appointed to judicial office:

the notice shall, if it be the case, include a statement that the name of the person was—

(a) recommended by the Commission to the Minister in accordance with the provisions of this Act, or

(b) recommended to the Government under section 44,

as the case may be.

Unfortunately, we are still stuck in the position where in its present form section 44 appears to be wholly unacceptable to the great majority of Members of this House, notwithstanding the attempts made by me and other Senators to amend it. All of our proposed amendments have been rejected and we are being asked to make provision for section 44, even though no one supports it.

An Leas-Chathaoirleach

We are on section 48.

Senator David Norris

We can discuss relevant sections.

Senator Michael McDowell

I am suggesting that in subsection (1) of the section we are proposing to deal with we are making provision for section 44(1)(b), which will mean a section will have effect, even though, as far as I know, no one in this House, with the possible exception of Sinn Féin Members, supports it in its present form.

Senator David Norris

No Sinn Féin Members are present to explain their position.

Senator Michael McDowell

It leaves us in a very strange position in that we are being asked to make provision for a section with which none of us agrees or, at any rate, with which the great majority of us disagree. I have repeatedly asked the Government to publish the text of its proposed amendments to section 44 in order that we can consider whether we are content to allow section 44(1)(b) to remain as it is in the Bill. If we are to make provision for it, we should know what is intended, but we are being asked to play blind man's buff.

The Minister knows well that this legislation has been debated at length in this House.

There are few points that should be put on the record of this House in that context. The Bill came to this House in what the Attorney General described as dog's dinner condition and so the Government could not override this House and deem it to be law. The Government has been effectively afflicted by the fact that it has to get the agreement of this House to its passage. The Commission of the European Union and the GRECO committee of the Council of Europe have condemned the scheme of this Bill. Not only have they done that, but it emerged from a recent freedom of information request that officials-----

Minister for Justice and Equality (Deputy Charles Flanagan)

I hesitate to interrupt Senator McDowell but we are now into the realm, once again, of Second Stage type contributions.

Senator David Norris

Excuse me, is the Minister the Cathaoirleach of Seanad Éireann?

An Cathaoirleach

Please continue Senator McDowell.

Senator Michael McDowell

It is not acceptable that on Committee Stage in this House we are being asked to consider a section which makes provision for another section with which none of us agree and that we are not being told what its ultimate content will be. The Government has had plenty of time to make its wishes in this regard clear. The Minister need only state what he will be proposing for section 44. We can then consider what this section actually means in that context. The Minister constantly references that once the Bill has completed Committee Stage in this House the Government will consider and publish amendments to it. I do not think that is acceptable or reasonable. The Minister should specifically state how he sees section 44 operating before we are asked to approve section 48, which makes provision for section 44.

Senator David Norris

I will make a few-----

An Cathaoirleach

I am sure Senators McDowell and Norris have noted the observations of the Minister.

Senator Michael McDowell

We have.

Senator David Norris

We have noted the inappropriate observations of the Minister, who seemed to be acting under the illusion that he is Cathaoirleach of Seanad Éireann, which he is not.

An Cathaoirleach

Senator Norris should confine his remarks to the-----

Senator David Norris

The Minister would have to be a Member of the House to be appointed by the Government to the position that the Cathaoirleach holds in such a distinguished manner.

An Cathaoirleach

The Senator should stop trying to do my job and make his observations on the section.

Senator David Norris

I am not trying to do the Cathaoirleach's job. The Minister was trying to do it, and not very well, I might add, because Senator McDowell was not engaging in a Second Stage speech.

On the legislation enacted in 2002, I agree wholeheartedly with the points made by Senator McDowell regarding the relevance of section 44, which I do not propose to repeat. I am tempted to do so, but I will not. With regard to the observation that this legislation is in dog's-dinner condition, that, in my opinion, renders it essential that we in this House subject it to minute scrutiny. If the Government's legal adviser describes it as in dog's-dinner condition, it is our responsibility to hold it up to the greatest test.

I am glad that subsections (2) and (3) have been removed. They were among the worst aspects of this section. I await the Minister's response before deciding whether to call a vote against the section.

An Cathaoirleach

The Minister does not wish to comment further.

Question put.

The Committee divided by electronic means.

Senator David Norris

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, 20; Níl, 6.

Tá

Burke, Colm.
Burke, Paddy.
Buttimer, Jerry.
Byrne, Maria.
Coffey, Paudie.
Coghlan, Paul.
Conway, Martin.
Devine, Máire.
Feighan, Frank.
Hopkins, Maura.
Lawlor, Anthony.
Lombard, Tim.
McFadden, Gabrielle.
Mulherin, Michelle.
Noone, Catherine.
O'Donnell, Kieran.
O'Reilly, Joe.
Ó Donnghaile, Niall.
Reilly, James.
Richmond, Neale.

Níl

Boyhan, Victor.
Horkan, Gerry.
Humphreys, Kevin.
McDowell, Michael.
Mullen, Rónán.
Norris, David.

Tellers: Tá, Senators Anthony Lawlor and James Reilly; Níl, Senators David Norris and Michael McDowell.

Question declared carried.

NEW SECTIONS

Senator Michael McDowell

I move amendment No. 96a:

In page 32, between lines 17 and 18, to insert the following:

“49. Where the Commission has in the previous three years recommended the appointment of any person to any type of judicial office, that person shall for the purposes of this Act also be deemed to be recommended to any judicial office of the same type except when the person has notified the Commission or the secretary to the Government that he or she no longer wishes to be considered for appointment to such an office.”.

In the context of our consideration of section 48 of the Bill, my colleagues and I moved amendment No. 95b. It was pointed out in the course of that debate that the assumption that somebody had applied in the past and had been recommended would not of itself justify the provision unless that person still wanted to be appointed to the position for which he or she had previously applied, and for which he or she had been previously recommended. In light of that discussion we have tendered a new section, section 49, to the Bill. The new section reads: "Where the Commission has in the previous three years recommended the appointment of any person to any type of judicial office, that person shall for the purposes of this Act also be deemed to be recommended to any judicial office of the same type except when the person has notified the Commission or the secretary to the Government that he or she no longer wishes to be considered for appointment to such an office." In my view this is a perfectly reasonable thing. The provision would hugely enhance the proper operation of this legislation were it, by any mischance, to be enacted. I say this because if somebody has been shortlisted in the previous three years and has been recommended to the Government for appointment to a particular position there should be no question whatsoever of his or her being publicly deemed to be a non-recommended person if the Government receives a different shortlist that does not contain his or her name within a short period of time of three years.

Let us consider the case of, for example, a High Court judge who is successful in applying to the commission and is included on the shortlist of three that went to the Government. In the meantime, one of the other people on that shortlist might be appointed and this would mean that there would be two people who would not be appointed and who would be disappointed as a result. It seems strange that where another position arose within six months or a year, the Government could not say that the commission had recommended those two individuals for appointment to fill a similar vacancy and that, while it was disposed to appoint another candidate, they were not merely also-rans but were suitable for the job. It is also strange that those two individuals should somehow disappear off the list from which the Government would be expected to make its selection.

The arguments against such a provision are completely empty and specious. What harm could this amendment do? It could not create a situation whereby someone who was willing to be appointed would be given the position in unfortunate circumstances. This raises another question: is someone in that position, for example, a judge of the High Court, expected to continually reapply? Are people to be interviewed in respect of each appointment? Are they to be asked different questions? Are they to be asked if there is anything since they last applied for recommendation to the Government which should cause the commission to take a negative view of their application? Is something of that nature envisaged? I am worried about the consequences if the commission is putting up a shortlist which is influenced by considerations such as gender. If the Government decides to appoint a female judge, will the next list also be the subject of gender influence such that the two males who were disappointed candidates on the previous occasion might be-----

Senator David Norris

The new requirement for a quorum is that six Members, as opposed to 12, need to be present. That does not seem an extravagant number but I notice that not a single Senator from Sinn Féin-----

An Cathaoirleach

What is the point?

Senator David Norris

-----the Civil Engagement group or Fianna Fáil is present.

An Cathaoirleach

The Senator does not need to lecture. Is he calling for a quorum?

Senator David Norris

That is correct. I thank the Cathaoirleach.

An Cathaoirleach

The Senator could do so more efficiently.

Senator David Norris

I do not want to be efficient.

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

Senator Michael McDowell

There is no reason this provision should not be part of the Bill. There is no valid reason that somebody who was recommended in the short period prior to a similar vacancy arising could not be deemed to be suitable for appointment. Earlier, I was giving the example where there might be a shortlist consisting of one female and two males, where the Government appoints the female to fill a vacancy and where, in a short period, the commission is obliged to consider candidates for another vacancy of the same type. In that case, because of its mandate to try to seek gender balance, the commission might nominate two females and one male. One male might just be dropped from the list as a result of the commission attempting to achieve gender balance. He might just fall off the shelf, as it were, and not be further recommended. That seems contrary to the spirit of the legislation, which is that if, within a reasonably short period such as three years - which the Minister agreed is reasonable- a person is deemed suitable, why should the Government not decide, in circumstances where the previous decision between the two candidates was quite narrow and one is now gone, that it might remedy matters by appointing the person to whom, after the successful candidate, it was most favourably disposed on the previous occasion? From that perspective, I can see no harm arising from this amendment and I invite the Minister to point out any such harm if he can identify it. Given that we have altered matters to allow persons who are no longer interested to indicate this to the Government, and effectively put themselves out of the reach of the section, no harm can come from accepting the amendment but a good deal of practical benefit can certainly be derived from doing so.

Senator David Norris

I hope the Minister will look favourably on this amendment. Senator McDowell in his contribution said he saw no harm that could emerge from the amendment. I do not see it in that light at all. I see not just that no harm will come from it, but that good will flow from it. The Minister seemed to agree because, in a very informed comment during previous discussion of this area, he said it would be a bit ridiculous to have someone hanging onto a position of being permanently nominated and that this could go on for decades and decades. I took up this point and then suggested to Senator McDowell that he reword the amendment and put in a fixed period of years. He has done so, and I think the amendment now coincides with the Minister's view, so he has some intellectual gymnastics to go through in order to find himself against it. In addition-----

Deputy Charles Flanagan

I would not rule it out.

Senator David Norris

I see. We will test the amendment by vote.

Senator McDowell has also provided for someone who decides for one reason or another that he or she does not want to be appointed to have every right to notify the commission or the Secretary to the Government that he or she no longer wishes to be considered for appointment to such an office.

I will make just one observation in this wonderful world of diversity and political correctness. I am surprised that "she" still follows "he". Perhaps I could appeal to Senator McDowell to vary this practice in future in the interest of diversity in order that one amendment would read "he or she" and the next would read "she or he". It would be so much more diverse and politically correct.

Senator Michael McDowell

Senator Norris may think he is being very politically correct in making such a suggestion, but now one must be cis or trans in gender terms as well as all these other things, so-----

Senator David Norris

"Cis"?

Senator Michael McDowell

Cisgender and transgender.

Senator David Norris

What is cis?

Senator Michael McDowell

The Senator obviously does not read his papers any more.

Senator David Norris

I certainly do not, not since they-----

An Cathaoirleach

Please, Senator Norris.

Senator Michael McDowell

Apparently, we have now arrived at the point at which people who are not transgender should identify themselves as cisgender, as Transalpine Gaul and Cisalpine-----

Senator David Norris

Does the Senator mean heterosexuals?

Senator Michael McDowell

No.

An Cathaoirleach

I ask Senator Norris to let Senator McDowell make his point.

Senator Michael McDowell

I am referring not to heterosexuals but to people who are not transgender. People, whether homosexual or heterosexual, who are content with their gender are now to be described as cisgender, so we all have to be-----

Senator David Norris

I refuse to be cis.

Senator Michael McDowell

You are cis.

Senator David Norris

I am not cis.

An Cathaoirleach

Please, Senators.

Senator Michael McDowell

In any event, when I said this amendment would do no harm, I was inviting the Minister to say precisely what harm it would do if he considers it to be an unacceptable amendment. That is all I was saying. I just wanted him to-----

Senator David Norris

The question is what harm the amendment will do.

Senator Michael McDowell

No, it is not simply a question of what harm it will do; I am asking the Minister to specify, before he says he is against it, why he is against it. That is the issue.

Deputy Charles Flanagan

I am not against the amendment but I do have a reservation. We debated this issue earlier at some length in respect of amendment No. 93b. The only difference between what we have in amendment No. 96a and amendment No. 93b is that we are now dealing with a period of time, namely, three years-----

Senator David Norris

At the Minister's suggestion.

Deputy Charles Flanagan

-----whereas amendment No. 93b simply referred to the past. I am not convinced that three years is an appropriate cut-off point.

Senator David Norris

Has the Minister a suggestion?

Deputy Charles Flanagan

I accept the point that the eventuality outlined by Senator McDowell needs consideration. I will give it consideration.

I wish to reflect further on the time span of three years. My preference - and I say this in the context of more general remarks Senator McDowell made at the start of this debate - is to revisit this issue on Report Stage because I believe that that is the due process and order for debates such as this. I will table an appropriate amendment, having reflected on the issue of the time span. If I were to accept the amendment now, I would have to revisit it. I acknowledge, however, that I am favourably disposed to it. I indicated that I would look at the previous amendment, which was similar to this one, for Report Stage, and I repeat that now.

An Cathaoirleach

The Minister has indicated he is willing to look at this again. Is there any point, then, in pursuing debate on the amendment?

Senator David Norris

No, but I wish to ask the Minister a question. He says he will table an amendment after due consideration. I take it that this means he is committed to an amendment along general lines.

Deputy Charles Flanagan

A workable amendment. I would be happy to engage with Senator McDowell on the matter. I am not sure where the period of three years comes from.

An Cathaoirleach

The Minister is being fair.

Senator Martin Conway

Absolutely.

Senator David Norris

Unusually.

An Cathaoirleach

How stands amendment No. 96a?

Senator Michael McDowell

In light of the Minister's proposal, I will not press the amendment.

Amendment, by leave, withdrawn.

Senator Michael McDowell

I move amendment No. 96b:

In page 32, between lines 17 and 18, to insert the following:

“49. (1) The Government shall not be obliged to publish the names of persons who have not been appointed to judicial office following their recommendation by the Commission.

(2) Nothing in this section shall prevent the Commission from informing persons who have applied to it to be recommended for appointment to judicial office whether such persons have been recommended by the Commission to the Government for such appointment.”.

This amendment proposes to amend section 49 by inserting in page 32 of the Bill, between lines 17 and 18, the following:

“49. (1) The Government shall not be obliged to publish the names of persons who have not been appointed to judicial office following their recommendation by the Commission.

The purpose of this is to make it very clear that instead of the proposed provisions of section 49, there should be a totally different procedure, namely, one whereby the Government would under no circumstances be obliged to publish the names of persons who have not been appointed to judicial office following their recommendation by the commission, but that this removal of obligation in the context of reporting to the Dáil should not inhibit the Government from informing persons who have applied that they have been unsuccessful or have been short-listed. The problem with section 49, as it has come to us, is that if it is left in its present state, it will state:

Within 30 days after the end of each year, the Minister shall cause to be laid before the Houses of the Oireachtas a statement of appointments to judicial office made by the President during the previous year (not being appointments made before the commencement of this section) and that statement shall include—

(a) the name of each appointee and the judicial office to which he or she was appointed,

(b) particulars of the education, professional qualifications and experience of each appointee, and

(i) recommended by the Commission to the Minister in accordance with the provisions of this Act, or

(ii) recommended to the Government under section 44.

I will not repeat what I had to say earlier about section 44. However, if this is to be the law, that the Minister is to lay a report before the Houses of the Oireachtas every year stating who he has appointed to various positions, giving details of their suitability and the like, it raises the question as to why the Minister is being asked to do this.

If each House of the Oireachtas is not entitled to consider the report that has been put before it and is not entitled to debate it in some shape or form then the purpose of the report seems to me to be entirely non-existent. If, on the other hand, it is anticipated that, I do not know, the justice committee of each or both Houses or the entire Chamber in each or both Houses should be free to debate the report of the Minister under this section, then that raises the very significant issue of what purpose such a debate could actually have. Are people to say, "Why did you appoint so and so as I do not think much of her or his [to keep Senator Norris happy] educational qualifications?" Is this information just simply to be put out there and never commented on? Is it to be put out there so that the media can comment on same or is it to be the subject of debate and consideration by the Houses of the Oireachtas? For the life of me I cannot see any useful purpose in having such a report or debate. It would tend to embarrass and politicise the Judiciary. It would tend, if there were negative criticism of the actual appointment made, to undermine public confidence in the appointments which were made. I do not see how it could advance anything in particular except, perhaps, some people might make the point that there were not sufficient members of each or either gender appointed, or people from a diverse background. All of that can be gauged by looking at Iris Oifigiúil. There is no need for a report of this kind. I do not know whether I am right or wrong and perhaps the Minister will inform me because I have not had the opportunity this afternoon to go back over the Dáil record in terms of this legislation. Is this an original part of the legislation or something that was brought in when Committee Stage was considered by the Select Committee on Justice and Equality or when Report Stage was considered in Dáil Éireann? I do not see why section 49 should be part of the Bill. It is for that reason that I think the amendment put forward by us stating, "The Government shall not be obliged to publish the names of persons who have not been appointed to judicial office", should be substituted for section 49.

Senator David Norris

I seek guidance from the Chair, which can come from Senator McDowell via the Chair if he likes. I understand that amendments Nos. 96 and 97 have not been taken yet.

An Leas-Chathaoirleach

No, we are on amendment No. 96b.

Senator David Norris

I understand. I just wanted to make sure that I was not talking about something that had already been addressed.

Section 49(2) states:

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

This is an appalling thing. It is bad enough for somebody not to be recommended but to have this disgrace laid before the public and be told, "Oh, you were not fit because of this, that or the other" is absolutely dreadful. I gather that the Minister agreed because I am very glad to see that amendments Nos. 96 and 97 have asterisks beside them. That indicates the Government has rethought this issue and is now prepared to delete these noxious elements of the Bill so that is something to be welcomed. This is an indication of how co-operation in this House on working on the minutiae of this Bill works.

I shall now discuss another element of the Bill.

An Leas-Chathaoirleach

We are on amendment No. 96b.

Senator David Norris

Yes.

An Leas-Chathaoirleach

Right. I thought the Senator might have indicated he was going to stray.

Senator David Norris

Did I?

An Leas-Chathaoirleach

Well.

Senator David Norris

The Leas-Chathaoirligh is attempting the science of physiognomy. It was a great passion of the Victorians but has proved to be most unreliable.

An Leas-Chathaoirleach

Yes.

Senator David Norris

My late brother, who was very unreliable, could go into a bank and ask for €500-----

An Leas-Chathaoirleach

The comment is entirely irrelevant to amendment No. 96b.

Senator David Norris

-----and be offered €5,000. I have never done anything in the least incriminating.

An Leas-Chathaoirleach

Yes.

Senator David Norris

Yet if I asked for €100 my birth certificate would be sought.

Senator Martin Conway

Back to the amendment.

Senator David Norris

I just wanted to illustrate to the Leas-Chathaoirleach the dangers of applying physiognomy as if it were, as the Victorians believed, a science. Let me outline my concern, and this is indeed section 49.

An Leas-Chathaoirleach

Amendment No. 96b, yes.

Senator David Norris

The whole idea of placing things before the House, having debates and all of the rest of it, seems to me to raise at least marginally or spectrally the question of the separation of powers. What would we be doing in this House debating the merits of judges or the wisdom of the Government appointing this, that or the other?

Senator Michael McDowell

It is important to bear in mind that although the Minister has indicated support for the amendments being tabled by Senators Craughwell, Boyhan and myself in respect of deleting subsections (2) and (3), that still leaves us with subsection (1). The Minister will be aware that in the list of amendments my colleagues and I have also indicated opposition to the section even if that amendment were made to it. I do not see why the Minister should make such a report to Members of the Oireachtas. I do not see why one should start telling Members of the Oireachtas the details of "the education, professional qualifications and experience of each appointee". I do not see what useful purpose is served by what information it happens to be. Mostly, when somebody is appointed to the Bench the media are informed by the Department of Justice and Equality, as things stand, that the newly appointed Mr. Justice David Norris or whoever it might be was educated at St. Columba's or wherever he was, or St. Andrew's-----

Senator David Norris

St. Andrew's was a horrible school.

Senator Michael McDowell

-----and in Trinity College-----

Senator David Norris

Trinity was good.

Senator Michael McDowell

-----and, if it were the case, which happily it is not, that he was also educated in King's Inns but, nonetheless-----

Senator David Norris

I did not have the appetite for port that the Senator has.

Senator Michael McDowell

-----that would have been in the public domain in any event. The idea that the Minister should start justifying appointments by reference to their qualifications is, in my respectful submission, unnecessary. If it were necessary for such information to be officially published by the Government then why not provide that it would be in the notice of appointment in Iris Oifigiúil that these are the person's professional qualifications and experience?

What is to be the person's professional experience? I know there are now 2,500 barristers, roughly speaking. Most of them will have ten years' practice if they are appointed to any judicial appointment. What is one to say about their experience? Is it that they practised in this court or that court, prosecuted or defended mainly, or specialised in defamation and constitutional matters, administrative law or personal injuries cases? What is the point in setting out particulars of their experience in a report to the Dáil or the Seanad for that matter?

It is usually the case that any document that is laid before the Houses of the Oireachtas is liable to be discussed in those Chambers, otherwise there is not much point in laying it before them.

Senator David Norris

None.

Senator Michael McDowell

What kind of discussions could take place about the experience, or the inadequacy of the experience, of a particular judge? I do not see what useful purpose is served by this provision at all.

I agree completely with Senator Norris that subsections (2) and (3), which arrived in the Bill against the wishes of the Government in the Dáil, are obnoxious and should be removed. They are patently obnoxious. The previous provision about publishing a general report on people's experience means nothing if it is not debatable. It serves no useful purpose. If it is capable of being debated in either or both Chambers of the Oireachtas, it opens the door to infelicitous remarks being made about the lack of experience of a judge, which serves no useful purpose either.

Senator David Norris

Hear, hear.

Senator Michael McDowell

In addition to supporting the amendments that will be dealt with later in the context of subsections (2) and (3), I ask the Minister to consider indicating now that he will abandon the entire section. He does not have to make a report. People who are interested in the matter - for example, the legal correspondents of the newspapers - will be able to consult Iris Oifigiúil and discover who was appointed during the previous year. A parliamentary question submitted in the Dáil could include a request to the Minister to specify the names of people appointed to the Judiciary in each court in the previous year and there could be no objection to the Minister answering it.

In such circumstances, why do we have this amplified provision that deals with the particulars of the education, professional qualifications and experience of each appointee? It serves no useful purpose and that is why I am opposed to it. The reason the amendment we are discussing has been proposed is in order that the legislation will stipulate, "The Government shall not be obliged to publish the names of persons who have not been appointed to judicial office following their recommendation by the Commission." In other words, it will in no way be obliged to publish the names of unsuccessful candidates. The amendment also states, "Nothing in this section shall prevent the Commission from informing persons who have applied to it to be recommended for appointment to judicial office whether such persons have been recommended by the Commission to the Government for such appointment." The proposed new section 49(1) is intended to be inserted in substitution for the entirety of the existing section 49 and not merely the final two subsections, which, as Senator Norris stated, are clearly obnoxious and could only result in grave unhappiness and issues relating to the separation of powers.

I have made the following point in newspaper articles but I will make it again for the record of the House. It is the Government alone that takes responsibility for appointments to the superior courts. It is the Government's decision alone to recommend to the President that a particular person should be appointed. It is a decision which it has to make by reference to criteria which are perfectly sound such as whether, for example, someone is a notorious conservative or a notorious radical liberal. These are issues the Government is entitled to take into account. As I read it, however, the criteria which will be set out in the remainder of the legislation will never make reference to matters such as the outlook of the person in question, his or her history in deciding cases or any articles he or she may have written as a lawyer or as a person involved in public affairs. Those are the kinds of issues the Government could and should take into account, particularly if they are relevant to an appointment, but they are also the issues that the commission is not entitled to take into account as far as I can see. A point made to me by an individual I met related to one of the so-called pillars of this legislation, namely, that appointments should be made on merit. There are two qualifications on gender balance and representation of society as a whole. Merit is not a term of art or science. If one is to say someone is to be appointed on merit, is a conservative more meritorious than a liberal?

Senator David Norris

Surely not.

Senator Michael McDowell

Perhaps he or she is. Who knows? What does merit mean? The point made by the individual to whom I refer, who is an eminent person, is that judges are lawmakers to some extent. I do not want to breach parliamentary protocol by talking about current cases, but there is currently a test laid down in respect of smear test cases that will be the law unless it is reversed on appeal. I say nothing about the merits of it one way or the other, except to point out that judges make law. Judges are stating that this is the standard of duty of care that applies in examining smear tests.

Senator David Norris

They actually resent doing it and look at it as our responsibility.

Senator Michael McDowell

In appointing someone to the Bench, one is appointing someone to make the law in an interpretive sense. Judges have principles they apply.

Senator David Norris

They may make law but they are not appointed to make law.

Senator Michael McDowell

Inevitably, they will find themselves in a position where they have to decide whether the duty of care in medicine comes down on this or that side of an issue, such as in the case of smear tests. That is the kind of matter which arises. Surely, "merit" is a very dubious term in that context. If someone is more liable to make a decision on this or that side of a line, saying that he or she is more meritorious than another candidate means nothing. It is very clear, however, that the Government of the day is entitled to state that Mr. Justice Michael McDowell-----

Senator Martin Conway

That sounds good.

Senator Michael McDowell

-----has shown himself to be very liberal on civil liability or damages and that it should think long and hard about appointing him to a vacancy on the Court of Appeal and whether that predisposition should be represented in that court. It might wish to appoint someone of a more conservative outlook, which would be a perfectly legitimate consideration to which to address its mind, however it might decide. It might decide that Mr. Justice Michael McDowell was a very heavy sentencer in the criminal courts and that it was a good thing to have him in the Court of Appeal to bring a bit of rigour to sentencing law. It might think the exact opposite and that someone much more lenient was needed as the prisons were silting up with people being sent there to no good. It is a decision for the Government.

What I find difficult to understand is what the word "merit" means in the context of the legislation and how it is suggested the commission will decide between conservatives and liberals, lenient sentencers or hard ones, people who are generous on damages and people who take a strong view on the powers of the police, one way or the other. These are the kinds of issues the Government must always consider and it is wrong to ask it to consider a shortlist compiled by a group which is prohibited from taking those issues into account. I emphasise that point. If the purpose of the legislation is to confront the Government with a shortlist in circumstances in which it will be embarrassing to go outside of it, we are left with a situation in which the people making the recommendations and compiling the shortlists are addressing issues and adjudicating on inclusion or non-inclusion by reference to criteria which the Government does not take into account. It appears that all of these provisions are props to that process of embarrassing the Government were it to appoint someone who had not been recommended.

In those circumstances, I really do believe that the amendment I am proposing should be made.

Senator David Norris

I will make a couple of comments. I normally agree with my distinguished colleague, Senator McDowell, particularly in light of his wide experience of the law as Attorney General, Minister for justice and as a very effective practising senior counsel. I take issue with one statement wherein he said that judges, particularly at the higher end of the Judiciary in the High Court, Supreme Court and Court of Appeal, were appointed to make law. I do not believe they were appointed to make law at all. They make law faute de mieux. They make law because they are left in a situation where there is a gap in the law that has not been filled by the Oireachtas. I recall many occasions on which the Supreme Court chastised both Houses of the Oireachtas for not acting and leaving it to the Supreme Court to make a judgment in this area. I absolutely accept that judges, particularly of the superior courts, make law particularly by providing precedent and so on but that is in the absence of the kind of action that the public wants and requires. There is a significant cowardice on behalf of both Houses of the Oireachtas in not facing up to these issues.

One classic example, and I will not go on about it, was the abortion issue. Both of the main parties were terrified of the issue and would not go near it but the public were in advance of them.

Deputy Charles Flanagan

The Senator is straying from the point.

Senator David Norris

The Minister is not the Cathaoirleach, as I pointed out.

Deputy Charles Flanagan

I am merely alerting the Cathaoirleach to a fact before his eyes.

Senator David Norris

The Minister should wait until he is asked.

Senator Martin Conway

The Leas-Chathaoirleach needs to intervene.

An Leas-Chathaoirleach

Is the Senator finished?

Senator David Norris

No, I am not.

An Leas-Chathaoirleach

He should move on.

Senator David Norris

There is one other point I wanted to make. Senator McDowell raises the issue of the Government being in a position to select judges. The Government might think somebody was too conservative, not conservative enough, too liberal, not liberal enough and all the rest of it. I hardly think the Government is likely to advertise the fact. I am not sure if Senator McDowell is suggesting that the Government would wish to advertise this fact and let the public know. I imagine this would be a matter of Cabinet confidentiality.

Senator Michael McDowell

I agree completely.

Senator David Norris

We are ad idem on that. Of course the Government will take into account these considerations and will want somebody of a more conservative or liberal bent of mind. However, it will not want to advertise this fact to the public and I am glad that Senator McDowell and I are at one on that.

Senator Michael McDowell

This is why I queried the notion of merit. The criteria for appointing somebody are manyfold. Governments have in the past, to my certain knowledge, been confronted by people who are clever, hard-working and well steeped in the law and by people who are less clever, less hard-working and less learned in the law and yet the first person who has all these attributes might appear to be somebody whose judgment the Government did not have confidence in. It might not appear in a paper interview, or a suitability interview before the judicial appointments commission, or whatever, but it might well be that a rather dull and unambitious High Court judge is far preferable to the whizz-kid young barrister who seems to know everything and has a degree from Oxford or Cambridge, a master's degree and a diploma and is earning a fortune in the Law Library or whatever. It might well be the case that the plodding judge is the kind of person in whom the Government would have more confidence. That is the point I am making.

Going back to what Senator Norris was saying about the judges making law, the Constitution is the Constitution. It means, at first instance, what a High Court judge, subject to the right of appeal, says it means. Even the fundamental law of this State is interpreted in a particular way. When I say "making the law", it is not legislating in the form of enacting legislation. I agree with Senator Norris. The separation of powers and the Constitution say that the sole function of making laws for the State is vested in the Oireachtas. I have no problem with that but, in the end, the administration of justice involves a radical power of interpretation of the Constitution, common law and statute law to consider, for instance, if somebody falls and breaks a leg, is that worth €30,000 or €80,000? Is the person who was responsible for it liable to pay €80,000 rather than €30,000? Unless we had some far-reaching legislation on personal injuries damages of some kind, or guidelines from the judicial council-----

Senator David Norris

Take the English precedent and multiply by four, I understand, is the usual settlement.

Senator Michael McDowell

Unless we have a legislative intervention of that kind, in a considerable number of cases, the law means what the Judiciary says it means. That applies not simply in Ireland but across the common law world. The power of the common law Judiciary is to interpret the law subject only to the right of the appellate courts to put them wrong, or for the Legislature to legislate where it is competent to do so, or for the people to amend the Constitution to reverse a particular outcome of a particular case. The people did that, for instance, in the X case on the right to travel. The people said that, when they voted for the eighth amendment to the Constitution, they had no intention of people being subject to travel injunctions. We effectively reversed the finding by the Supreme Court of what the eighth amendment meant by saying it did not mean that anymore.

That is why I say the Judiciary has a function in lawmaking - not in the sense of legislating but in the sense of interpreting the law and Constitution. I will add, by way of a footnote to that, that every judge of the High Court, sitting alone, has the power to invalidate an Act of Parliament, an Act of the Executive or the acts of a lower court by reference to the Constitution. That power is not present in many states in the world. It is peculiar to the common law where there is a written constitution. That goes to the point as to why we are asking people who have that power to prove their suitability to be of an appellate court by subjecting them to an interview, selection or short-listing process since they have that power already and since, as I pointed out here and in a recent newspaper article, they are entitled, if invited by the President of the Court of Appeal or the Chief Justice, to sit as a member of that court pro tem already. Why they have to submit themselves to an assessment as to their suitability to a group of outsiders, the majority of whom are being selected on the basis that they are not legally experienced persons, I cannot understand at all.

To return to the point that we are dealing with here, I really believe it is important that under no circumstances can the Government be obliged to identify people who have been unsuccessful applicants. That has to be stated as part of the law and that is the first leg of this amendment. I do not see a prohibition of that kind anywhere in the legislation unless it is by inference that the Government, by convention, should not reveal that kind of information. That the Government is not obliged to do so should not, in any way, inhibit the Government from informing unsuccessful applicants of the fate of their application.

Senator David Norris

I want to make a brief comment on the notion of merit. There is a certain fluidity attaching to the interpretation of the word "merit".

Let me give one example. When I was lecturing in Trinity College Dublin, my lectures were always full to capacity, with students sitting all the way down the steps. People came from abroad to attend my lectures. Next door one of my very distinguished colleagues might have been reading from 20-year old notes.

Senator Michael McDowell

Was the subject of the Senator's lectures "humility"?

Senator David Norris

It was. It is a subject on which I am an acknowledged world authority. Next door to my lectures colleagues might have been lecturing with two students in attendance. It was not my fault. I could not help it if the other lecturers could not attract students, but I was held at the merit bar for junior promotion until the provost intervened. I was quite happy to live on the lowest rung, out of the way, out of sight, ignoring the world and giving my wonderful lectures to a wildly enthusiastic audience. I thank Senator McDowell for his suggestion in that regard. I say this in all modesty, but it just shows that the word "merit" is capable of being subject to quite a number of fluid interpretations, including those motivated by jealousy and spite.

An Leas-Chathaoirleach

Does the Minister wish to comment?

Deputy Charles Flanagan

I merely wish to bring Senators back to the amendment-----

An Leas-Chathaoirleach

Amendment No. 96b.

Deputy Charles Flanagan

-----if it is in order for me to do so.

An Leas-Chathaoirleach

It is totally in order.

Deputy Charles Flanagan

Before I do, I offer clarification. I was asked a direct question by Senator McDowell about the construct of the section 49 that now appears before us in the form of subsections (1), (2) and (3). In the Bill as presented at the outset section 49 comprised what is now subsection (1). Subsections (2) and (3) were inserted following a lengthy debate by the Select Committee on Justice and Equality, to which we will refer. I acknowledge amendments in the names of the Senators that are broadly or very similar to mine. I welcome the support of Senators in that regard.

Senator David Norris

They are identical.

Deputy Charles Flanagan

It is my intention to propose, with the support of Senators, the deletion of subsections (2) and (3) from section 49. I heard Senator McDowell go further and say that, irrespective of that proposal, he intended to oppose section 49 because he did not see merit in it. He does not have any regard for the laying before the Houses of the Oireachtas of what will be no more than a statement of information. The provision of information for Members of the Oireachtas is important. It represents an important channel of communication by the Executive with the Legislature. What the Legislature does with it is entirely a matter for the committee or a plenary session of this or the Lower House. We are in an era of information and the provision of information is important. That is why it is not my intention to remove, in its entirety, section 49. There is good reason to leave subsection (1) in the amended section 49, to which we will I hope agree at some stage.

Senator McDowell states my approach is unnecessary because he is in the Law Library and familiar with the candidates for high office. That may well be the case, but there are many elected Members of Dáil Éireann and, I dare say, Seanad Éireann who might not be as familiar with the candidates or the process as the Senator and his colleagues. That is why the provision of the information is important. I refer to what is really no more than basic information, a short report on the implementation of an Act of the Oireachtas. Far from it being unusual, it is becoming more commonplace and I support it. The measure is no more than an additional element of accountability on the part of the Government in the matter of its relationship with the Legislature. I refer to the fact that there may well be an interpretation by some that there is duplication in the publication in Iris Oifigiúil and the formal laying before the Houses of the Oireachtas of a brief report. I do not agree. I see a reason for the measure in question, given the nature of the debates that might take place as a result of the laying before the Houses of the brief report. That will be a matter for the Houses, but Senator McDowell is right to point out that such a debate will obviously be subject to restrictions insofar as the role, duty and obligation of the Government in the appointment are concerned. Also to be borne in mind is the concept of Cabinet confidentiality. Should the justice committee or the Seanad decide to call in the Minister for Justice and Equality to deal with certain aspects of the report, it would be the time and place to consider the nature of such a debate and whether it might take place. I am not minded to remove section 49 in its entirety, having regard to the basic information that will be contained therein.

As regards the amendment, we have already accepted amendment No. 87b, which inserts a new section 42 into the Bill. We described it at the time as the provision of information for applicants. I accepted that amendment in February on the basis that, in the event that there was an unforeseen difficulty, we could revisit it. Paragraph (a) of the new section obliges the commission to inform each applicant in respect of the office in question whether he or she was among the persons represented by the commission in the form of a recommendation to the Government. I recognise a potential overlap, not a direct one, with the proposed new subsection (2) in amendment No. 96b. It might even be a clash because the proposed subsection states the commission will not be prevented from informing applicants whether they have been recommended to the Government, but amendment No. 87b requires the commission to inform the applicants whether they were recommended. I do not want to see a potential difficulty that might be the subject of misinterpretation that might give rise to uncertainty.

As regards the proposed section 49(1) in amendment No. 96b, I support the principle. I would like to see how we can protect it in addressing the matter. I will consider it, but I am not minded to remove section 49(1) for the reasons stated.

Senator Michael McDowell

As the Minister pointed out, we are only considering the amendment at this stage.

An Leas-Chathaoirleach

How stands the amendment?

Senator Michael McDowell

That is the point. I just want to indicate that, in regard to the proposed new section, the Government should not be obliged to publish the names or make public the names of persons who have not been appointed to judicial office following their recommendation by the commission.

Senator David Norris

Hear, hear.

Senator Michael McDowell

The Minister now seems to be saying he is in favour of the principle that there should not be an obligation to make the names public. That is the very least that should be done in that respect. The real question is whether the decision ought to be kept secret. Apart from notifying unsuccessful candidates that they have not been shortlisted or have been unsuccessful - they can draw the inference from the notice in Iris Oifigiúil that they did not get the job - the real question is whether we are going to insert into the legislation a provision to protect candidates from having the fact publicised that they were turned down at the short-listing stage or a later stage.

It is fairly central to the operation of this legislation that there must be such a protection. A person may have an entitlement to know if he or she is unsuccessful but it would be hugely inhibiting were that to be made public in one shape or another. We live in a small country. Does the obligation of Cabinet confidentiality prevent Ministers from revealing what they know of a commission decision in a particular shortlist?

Amendment put.

Senator Michael McDowell

Vótáil.

An Leas-Chathaoirleach

Will the Senators claiming the division please rise?

Senators Michael McDowell and David Norris rose.

An Leas-Chathaoirleach

As fewer than five Members have risen I declare the question defeated. The names of the Senators who stood will be recorded in the Journal of the Proceedings of the Seanad.

Amendment declared lost.

Senator Michael McDowell

I move amendment No. 96c:

In page 32, between lines 17 and 18, to insert the following:

“Vacancies in the Superior Courts

49.(1) Notwithstanding any other provision of this Act, where the Government decides to advise the President to appoint any serving judge who is a member of any of the Superior Courts to any vacancy arising in those Courts, the Minister shall notify the Commission of that decision and the Commission shall have no further function in relation to that appointment.

(2) Where the Government has decided to advise the President to make an appointment in accordance with subsection (1), the notice published in Iris Oifigúil in accordance with section 48 shall state solely that the person appointed was a serving judge of the relevant court at the time of his or her appointment.

(3) In this section, the term “Superior Courts” means the High Court, the Court of Appeal and the Supreme Court.".

Deputy Charles Flanagan

Perhaps I could shorten the debate by saying to the Senator that I am minded to accept this amendment.

Amendment agreed to.

SECTION 49

Government amendment No. 97:

In page 32, to delete lines 33 to 39.

An Leas-Chathaoirleach

Amendment No. 97 has already been discussed with amendment No. 96.

Senator Michael McDowell

It was not.

An Leas-Chathaoirleach

My note indicates that it was. Is the note incorrect?

Deputy Charles Flanagan

In any event the Senators have indicated we are probably on the one page here.

An Leas-Chathaoirleach

The amendment is in the name of the Government and your good selves.

Senator Michael McDowell

Exactly. The Minister is indicating he will be accepting it so unless Sinn Féin has some objection, it will probably go through. I thank the Minister for accepting amendment No. 96c. That amendment is important. It came as a surprise to me that the Minister accepted it. It clearly-----

Deputy Charles Flanagan

I accepted it.

Senator Michael McDowell

This is relevant to amendment No. 97 as well. Amendment No. 96c is the new section 49, and it means the deletion we would effect through amendment No. 97 copperfastens very clearly the principle that the Government retains the right without any explanation of any kind whatever-----